source: Caselaw Access Project

author: By the Court.—Sedgwick, Ch. J.

license: Public Domain

text:
    JOHN P. BRANCH, et al., Appellants, v. LAZARUS LEVY, et al., Respondents.

      Witness—when credibility of, must be assumed.

    Where'the plaintiff voluntarily calls the defendant as a witness, as to matters not merely formal,—upon a motion for a dismissal of the complaint, the judge is bound to consider him a credible witness as to the facts testified to by him, whether upon the direct or upon the cross-examination.

      It seems, that in such case defendant must be held credible as against the plaintiff, even as to matters testified to by him when subsequently called by the defense..
    In this case, the court held that the complaint was properly dis- ; missed.
    , Before Sedgwick, Ch. J., and Freedman, J.

      Decided December 6, 1880.
    Appeal from judgment.
    The facts are stated in the opinion.

      Grimball & Tunstall, attorneys, and R. B. Tunstall, of counsel, among other things, urged:
    I. It cannot be claimed that because the defendant Borg was not directly contradicted, the complaint must have been dismissed on his part. A court cannot dismiss a complaint on the testimony of the witness, even though it be not directly contradicted, if the story of the witness is improbable, or if the witness be an interested party (Elwood v. Western Union Tel. Co., 45 N. Y. 553; Kavanagh v. Wilson, 70 N. Y. 177; Gilder-sleeve v. Landon, 73 Id. 609; Brooklyn Crosstown R. R. Co. v. Strong, 75 Id. 591). Borg was a defendant, and his story was improbable. Again, “ A party is not bound by the admission of his adversary, of which he gives evidence, but is at liberty to use it so far as it makes in his favor, and to disprove the residue —that is, he is not estopped by it” (Mott v. Consumers’ Ice Co., 73 N. Y. 550). Nor are the plaintiffs bound by the testimony of the defendant Borg, because they called him. He was called merely on a technical point—to prove the writing of a letter—and was not examined by the plaintiffs further. And moreover, the Code expressly declares—“The testimony of a party, taken at the instance of the adverse party, orally or by deposition, may be rebutted by other evidence” (Code Civ. Pro. § 838).
    II. It was error to allow the defendants’ counsel to bring out his defense on the cross-examination of the witness, Borg. The plaintiffs had called the defendant as a witness, merely to prove the writing of a letter. They were compelled to do this by the court. They examined the witness on no other subject—hence the defendants were limited in their cross-examination to this one point, and in allowing the defendants to bring out their whole defense was error (1 Greenl. Ev. § 445).

      Burton N. Harrison, for respondent, among other things, urged:
    I. By introducing the defendant Borg, and swearing him as their own witness, as they did, plaintiffs are estopped from denying his credibility. That witness testified, unequivocally, to facts which destroy the whole theory of plaintiffs’ case. There is no pretense that, in doing so, the witness took plaintiffs by surprise, or practiced any deceit upon them. There was no necessity for the introduction of this witness by plaintiffs. They could have called the person who wrote the letter they desired to prove to have been written by authority of defendants; or, if not, and if they found themselves entangled in an unexpected difficulty on the trial, and if they were unwilling to vouch for the credibility of Borg by swearing him as their own witness, and if they were unwilling to rest their case without proof of the letter in question, they could have withdrawn a juror or submitted to a non-suit. Even if there was any other testimony, or any evidence of any kind, in the case, which contradicted . the witness, Borg, the plaintiffs could not, under the circumstances, have availed themselves of it; there can be no contention that Borg was innocently mistaken as to the very fact at issue. For the purposes of this case, it must be held that, either the essential, absolute facts are exactly as Borg swore they are, or that Borg is entirely incredible as a witness. If the facts are as he swore, the judgment must be affirmed; and the plaintiffs cannot here open their mouths to say that their own witness is utterly incredible; certainly they cannot do so when the witness is not contradicted by anything in the case, but swears to facts which harmonize and are consistent with all the facts in evidence (5 Den. 112 ; 56 N. Y. 590 ; 4 Id. 303, 311). The rule is rigid that: “ Where unimpeached witnesses testify distinctly and positively to a fact, and are uncontradicted, their testimony should be credited and have the effect of overcoming a mere presumption” (45 N. Y. 553). The exceptions to, first, the strict cross-examination of plaintiffs’ own witness in reference to the circumstances' under which the letter, as to which they had examined him, was written ; and, next, an examination (which was, indeed, a fair and proper extension of the same cross-examination) into the full particulars of the transaction, are not good. As was said by Sedgwick, J., delivering an opinion of the general term of this court: “ The rule in this State (1 Greenl. Ev. § 445; Jackson v. Varick, 7 Cow. 242; Varick v. Jackson, 2 Wend. 251; Fulton Bank v. Stafford, 2 Id. 483; Bogert v. Bogert, 2 Edw. Ch. 403) is, that when a witness is placed upon the stand and examined, even as to formal matters, he is thereby made a witness for all purposes, and may be cross-examined in the whole case” (34 Super. Ct. 549). “When a witness has been sworn in chief, the opposite party may not only cross-examine him in relation to the point which he was called to prove, but he may examine him as to any matter embraced in the issue. He may establish his defense by him without calling any other witnesses ” (2 Wend. 483).

       See Hodge v. City of Buffalo (1 Abb. New Cas. 356), and note on weight .of testimony of parties.

   By the Court.—Sedgwick, Ch. J.

On the trial, it appeared that if one Harrison acted as broker for the defendants, in selling certain coupons to the plaintiffs, the defendants were liable to plaintiffs for not delivering them, but if Harrison had bought the coupons from the defendants and then sold them to plaintiffs, the defendants were not liable.

The plaintiffs sustained their position that Harrison was an agent, by certain letters and circumstances, which, in the absence of explanation by defendants, made a question for the jury. But there was no admission by any letter of defendant that there was such agency, nor was there any direct proof on that subject, excepting such as was given by one of the defendants. When on the stand, he swore that Harrison was a buyer of the coupons from the defendants, and not their agent. This testimony, if true, was not inconsistent with any other testimony, but furnished the explanation that the documents and circumstances called for. In order to justify the court in dismissing the complaint, it was only necessary to determine that the defendant was a, credible witness. I am of opinion that the judge was bound to hold the witness credible, from the fact that the plaintiffs had called the defendant as their own witness, and thereby presented him as credible. It is suggested that these facts came out on cross-examination. It would make no difference at what time they were called out, even if on direct examination as a witness for the defense, provided the plaintiffs had previously called him and presented him to a jury as credible. They could not thereafter gainsay that. The purpose for which the plaintiffs called the defendant as a witness was not formal, nor* were they obliged by law to call him. Their action was voluntary, and when they called him to the book to be sworn, they admitted and asserted that he would be bound by the obligations of an oath. The circumstances did not allow a supposition that he might, be mistaken, and that his testimony, therefore, might be corrected by the other testimony.

I think that the rule on this subject applies to a party called as a witness by the opposite party. There would be the same inconsistency, in case of a party, in asserting that he was not a credible witness as to some things, while he was as to others. Credibility cannot be divided. It is attached to the moral character. I therefore- think that the court was correct in holding that, as against the plaintiff, who called the defendant, the testimony of the latter should be believed, and the complaint dismissed.

This view of the legal force of the defendant’s testi- . mony renders unnecessary an examination of the exception to the admission of certain letters of the defendants.

The judgment should be affirmed, with costs.

Freedman, J., concurred.


text:
    ROBERT B. BORLAND, Respondent, v. THE MERCANTILE MUTUAL INSURANCE COMPANY, Appellant.

      Man'ine insurance—seaworthiness, when and how must he dlmm—barratry —construction of policy.—Agreement of counsel on trial.

    In an action upon a marine policy, insuring the cargo of a vessel, the insured, in the first instance, need only give general testimony as to the seaworthiness of the vessel, but at the close of the case, the fact of seaworthiness must affirmatively appear in those particulars as to which an attack has been made.
    Where it appears that cargo was so laden upon the deck, as to be likely to interfere with the movements of the crew in navigating the vessel, there is a presumption of unseaworthiness, which, if not overcome (by showing affirmatively that the deck cargo was not likely to interfere with the due management of the vessel), will prevent the insured from recovering, though such lading be an act of barratry by the master, and the policy contain a clause insuring against the master’s barratry; seaworthiness must exist as a condition precedent to the policy attaching.
    Under chapter 242 of the Laws 1857, a foreign vessel which leaves the port of New York without a licensed pilot, is presumed to be unseaworthy, and this presumption is not answered by proof that she was safely navigated out of the port.

      It seems, that to constitute barratry of the master, it is enough that the barratrous act was done willfully, and with a knowledge that it was wrong, irrespective of any fraudulent intent on his part.
    A clause in a marine policy, providing that the insurer is “ not liable for leakage on molasses or other liquids, unless occasioned by stranding or collision with another vessel,” comprises leakage from sea perils insured against, as well as ordinary leakage, from whatever receptable it may occur. Such a clause is not to be deemed, an exception from general liability, and where part of the loss was, from leakage, the insured must prove the amount and cause thereof,, to enable him to recover.
    Agreement of counsel on the trial as to amount of cargo jettisoned,..is-binding on the parties.
    Before Sedgwick, Ck. J., and Speir, J.

      Decided December 6, 1880.

      Appeal by defendant from judgment, and from order denying a motion for a new trial.
    The action was on a policy of marine insurance, containing, among other clauses, the following:
    “ Touching the adventures and perils which the said Mercantile Mutual Insurance Company is contented to bear, and takes upon itself in this voyage (unless specially excepted on the margin of this policy), they are of the seas, men-of-war, fires, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, reprisals, takings at sea, arrests, restraints and detainments of all kings, princes or people, of what nation, condition or quality soever, barratry of the master and mariners, and all other perils, losses and misfortunes, that have or shall come to the hurt, detriment or damage of the said goods and merchandises, or any part thereof.”
    The facts and the exceptions taken appear in the «opinion of the court.

      Scudder & Carter, attorneys, and George A. Blade, of counsel, for appellant, urged :
    I. The shipper of cargo impliedly warrants the seaworthiness of the vessel to his insurer (Silva v. Low, 1 Johns. Cas. 198 ; Howard v. Orient Mut. Ins. Co., 2 Robt. 539 ; Warren v. United Ins. Co., 2 Johns. Cas. 231; 2 Arnould Mar. Ins. 591; citing Oliver v. Cowles, 1 Park Ins. 470 ; Daniel v. Harris, L. R., 10 Com. Pleas, 1; Kopitoff v. Wilson, L. R., 1 Q. B. 381). (1) The warranty is a -condition precedent to the policy attaching (2 Arnould Ins. 590). This policy was a voyage policy on these -goods at and from New York to Pernambuco; and the seaworthiness of the vessel was warranted from the «commencement of the voyage. (2) To constitute seaworthiness of the hull of a vessel in respect to cargo, the hull must be so tight, staunch and strong as to be competent to resist all ordinary action of the sea, and to prosecute and complete the voyage without damage to the cargo under deck (Dupont v. The Elizabeth, 19 How. U. S. 162). If the ship is so heavily or so improperly loaded when she sails on the voyage insured as to be incapable of continuing the voyage, that is unseaworthiness (Arnould Mar. Ins. 612; Biccard v. Shepherd, 14 Moore P. C. 497; Foley v. Tabor, 2 Foster & F. 663). A ship is unseaworthy if the risk is materially increased by reason of the difficulty in navigating the ship, caused either by overloading or bad storage of the cargo, and it is not necessary for the insurer to make out that the loss was caused by the unseaworthiness relied upon. The question depends on the state of the ship when, she sailed on her voyage (Wedderburn v. Bell, 1 Campb. 1; Quebec Marine Ins. Co. v. Com. Bk. of Canada, L. R., 3 P. C. Ap. Cas. 240; Weston v. Minot, 3 Woodb. & M. 436; Leitch v. At. Un. Ins. Co., 66 N. Y. 108). (a) The theory was advanced that the act of the master, in carrying cargo on deck, was barratrous, and protection is sought for the plaintiff in that view. The implied warranty of seaworthiness is a condition precedent to the policy attaching, and if it did not attach by reason of the overloading, the insurance against barratry did not exist. The case of Atkinson v. Great W. Ins. Co. (65 N. Y. 531), shows that the act of the master must be not only willful, but fraudulent, and that the charge was deficient in the definition given of what would constitute barratry. (3) A ship is unseaworthy if she is without a pilot, where usage or the reason of the case required that she have one (Abbott Ship. 344; Dixon Ship. 100, 232 [3 ed.]; Stanwood v. Rich, Mass. Sup. Ct., Suffolk Co., Nov. 1817; 2 Key’sLaw Shipmaster, &c., 756; Dixon v. Sadler, 5 Mees. & W. 414). This, whether the loss can be traced to such breach of warranty in not providing á pilot, or not (Phillips v. Hadlam, 2 B. & A. 380 ; Quebec M. Ins. Co. v. Comm. Bk., L. R., 3 P. C. 234; Law v. Hollingsworth, 7 T. R. 160; Whitney v. Ocean Ins. Co., 14 La. O. S. 485; McDowell v. Gren. Mu. Ins. Co., 7 La. An. 684). Our statute expressly requires the employment of a pilot (Laws 1857, c. 242, § 29, p. 501). See also 3 Kent 175, note C ; and Bolton v. American Ins. Co., tried before Ch. J. Jones, Super. Ct. N. Y., Nov. 1835.
    II. The liability of the defendant to contribute in general average for the deck load, depends upon establishing a usage. An insurance does not reach goods on deck, unless expressly mentioned (Lenox v. United States Ins. Co., 3 Johns. Cas. 179). No usage was shown that these articles, i. e., rosin and kerosene, were usually carried on deck, and as some of them were stowed below, there is no basis to hold the under writers liable for those on deck (Taunton Copper Co. v. Merchants’ Ins. Co., 22 Pick. 108).
    III. The defendant was exempt under its policy from liability for leakage. The clause of the policy invoked is “not liable for leakage on molasses or other liquids, unless occasioned by stranding or collision with another vessel’’ (Nelson v. Stephenson, 5 Duer, 544 ; Emerigon on Ins. [Meredith’s Translation], 312). The reason why the underwriter has exempted himself from risk of leakage is stated in Neilson v. Com. Mu. Ins. Co. (3 Duer, 455), in which case the clause was the same as in the case at bar.
    IY. The language of the policy should be construed in its ordinary sense with reference to the known „ modes of packing fluids, whether in wood, metal or glass, and any method by which the contents escape from the case Without voluntary .opening of the package must be taken to be leakage. This might seem a little strained in the case of glass vessels, where a breakage of the article would be the only method of escape, except through the opening provided. Upon the evidence tin cases are peculiarly liable to rust, and the effect of such rust is to produce apertures through which the contents would escape ; they are soldered, and have no opening provided for the withdrawal of the contents, and where there can be no escape of the contents except through imperfections in the manufacture or those resulting from the decay of the substance, it would seem that the expression “leakage” would necessarily cover any escape of the contents.
    The plaintiff was bound to establish his case as to leakage, not only as to the loss having occurred through the peril insured against, but also how much that loss was. The language of the policy, “Not liable for leakage, &c.,” is a method of describing what risks the defendant would be liable for. And the attempt to make an exception of these words is not sustained by any authority. As to the risks which the defendant did not assume, the plaintiff remained his own insurer, and might have insured these risks in some other company. And in a controversy between himself and this defendant and such other company, he would be bound to establish as to each that the loss claimed was within the particular class of risk which the separate policies insured (Phillips Ins. § 1136). The question as to the burden of proof has been considered in the following cases: Heebner v. Eagle Ins. Co., 10 Gray [Mass.] 143; Baker v. Manufacturers’ Ins. Co., 12 Gray, 608; Paddock v. Com. Ins. Co., 104 Mass. 52, 534; Cory v. Boylston Ins. Co., 107 Mass. 144.

      Owen & Gray, attorneys, and Frank Sturges, of counsel, for respondent, among other things, urged:
    I. The fact that the vessel did not take a pilot on leaving the port of New York does not avoid the policy (1 Phillips Ins. §§ 226, 717, et seq.; Flanigan v. Wash. Ins. Co., 7 Penn. 307; Blanchard v. N. J. Steamboat Co., 59 N. Y. 295; Keeler v. Firemans’ Ins. Co., 3 Hill, 250 ; McMillan v. Union Ins. Co., Rai. R. S. C. 249). It is only necessary that the vessel be guided out of port by a person of competent skill; and what better proof of compentency can there be than that the master of the Hunter took her from New York to South America in safety ?

    II. It was for the jury to determine whether the loading of a portion of the cargo on deck without the knowledge of the plaintiff was willful, and therefore barratrous, These questions the jury have determined in plaintiff’s favor, and he is therefore entitled to recover under the policy for such barratry the insured value of the cargo jettisoned from the deck (Atkinson v. Great West. Ins. Co., 65 N. Y. 531; 2 Whart. Ev. § 1070, and notes).
    III. The loss sustained upon the two thousand four hundred and four cases of kerosene1 sold at auction, was not leakage within the meaning of the policy. (1) Conditions and exceptions are to be construed strictly against the insurer. They are the words of the insurer, and they take a particular risk out of the policy, which, but for the exception, would be comprehended in the contract. They tend to narrow the range and limit the force of the principal obligation (Yeaton v. Fry, 5 Cranch, 535; Hoffman v. Ins. Co., 32 N. Y. 405; Welts v. Ins. Co., 48 Id. 34 ; Frichette v. Ins. Co., 3 Duer, 190; Colt v. Ins. Co., 54 N. Y. 595). Special clauses may or may not refer to every species of merchandise. If they do not refer to a particular class of articles, then as to such articles they are to be rejected as surplusage (Harper v. Ins. Co., 17 N. Y. 194; Babcock v. R. R. Co., 49 Id. 491). (3) The word “ leakage” in the clause in- question is used in its ordinary commercial sense, to which it must be restricted in its application. It is used generally, and without specific reference to any class of merchandise, and therefore has reference only to such articles as to which in its ordinary meaning it is usually applied. In its ordinary sense it has reference to that waste or diminution which usually occurs through inherent defects in the vessels, or through the qualities of the liquids themselves. Molasses in barrels, spirits in casks, and the like, are the articles to which the term has been generally and naturally applied; and in so far as such waste may be increased by a peril of the sea, the insurer may not be liable. (3) It is presumed that the defendant has received a premium adequate to the risk, and nothing but the most stern legal necessity should constrain the court to give the clause a construction which would nullify the policy, and render it a mere deception, instead of the protection the parties designed. If leakage, as used in this policy, means escape of kerosene under all circumstances, then the policy as an indemnity is worthless (Harper v. Insurance Co., 17 N. Y. 194). (4) The loss was not leakage within the proper and usual meaning of the term. Neilson v. Insurance Co. (3 Duer, 455), turned upon this point. (5) Moreover it was for the jury to say whether or not the loss was “leakage” in its proper sense (Neilson v. Insurance Co., supra; Young v. Insurance Co., 34 Super. Ct. 321; New York Belting, &c., Co. v. Insurance Co., 10 Bosw. 428 ; Cummins v. Insurance Co., 67 N. Y. 260 ; Cornish v. Insurance Co., 74 N. Y. 295 ; Jones v. Insurance Co., 51 N. Y. 318 ; Swinnerton y. Insurance Co., 37 N. Y. 174).
    IV. The clause in question is an exception, and it is incumbent upon the defendant to bring the loss within the exception (St. John v. Insurance Co., 11 N. Y. 518). Where the clause was “not liable for any loss occasioned by the explosion of a steam boiler,” see Hayward v. Insurance Co. (7 Bosw. 385); also see 1 Phillips Ins. §§ 1165, et seq. ; and cases cited under III. The clause is a proviso avoiding the defendant’s promise, which he has pleaded in his answer, and must prove. The burden is upon the defendant to show that the loss' was leakage. (1) Perils of the sea embrace every species of damage to the goods at sea by the violent or immediate action of the wind or waves, and not comprehended within the ordinary wear and tear of the voyage (2 Arnould Mar. Ins. 681). We have shown a loss within the policy ; the defendant must bring the loss within the exception (Wood v. Insurance Co., 46 N. Y. 421; 2 Arnould Mar. Ins. 1074 ; Holdsworth v. Wise, 7 B. & C. 798 ; 2 Arnould Mar. Ins. 1072, note; Ross v. Hunter, 4 T. R. 33; Young v. Insurance Co., 34 Super. Ct. 321; Van Valkenburgh v. Insurance Co., 70 N. Y. 605).
   By the Court.—Sedgwick, Ch. J.

The seaworthiness of the brig Hunter was viewed on the trial in several aspects. The defendant’s claim was that the deck load rendered her unseaworthy ; first, simply from its situation upon the deck; second, because it overloaded her, and by its'weight lessening her free-board, or height of side above the water, to an extent that made her unseaworthy. It is assumed that the plaintiff should not have recovered, unless the testimony established prima facie that the vessel was seaworthy (Moses v. Sun Mutual Ins. Co., 1 Duer, 159). I understand that case to mean, that the insured need, in the first instance, given only slight, perhaps general, testimony as to the seaworthiness of the vessel; but that, at the end of the testimony, it should appear affirmatively that the vessel was seaworthy, in the particular,, if any, as to which there has been an attack. I think that, on the trial, there was evidence which supported the verdict of the jury, that the brig had enough free-board to make her seaworthy, and also, with some hesitation, that the situation of the load, on deck did not make the vessel so unsteady that she was, therefore, unseaworthy.

But I am of opinion that, under the special circumstances of the case, the situation of the deck-load called for explanation from the plaintiff, which was not given in other respects than have been noticed: “It is a general and an ancient rule of the law of shipping that goods shall not be carried on deck. ' The reasons for this are obvious—not only is cargo there placed more liable to loss, because, if waves swept the deck, it would be washed over; but it would greatly endanger both ship and cargo, as it puts the weight far from the keel, and, by raising the center of gravity, makes the ship less stable. It incumbers the deck, which might be a matter of grave importance in a storm ” (2 Parsons Mar. Ins. 217). The facts showed that the deck-load, in this case, in the absence of proof to the contrary, incumbered the deck in such a manner and to such an extent that the movements of the crew, in navigating the vessel, were likely to be impeded, and especially so in case a storm should release the deck-load from its fastenings and it should roll or be thrown over the deck. It is not necessary to say that any deck cargo, irrespective of its quantity, kind, and shape, would be presumed to render the vessel unseaworthy. It is only intended to decide that this particular deck cargo called for explanation at least. I cannot find any satisfactory testimony in the printed case, as to the quantity of deck cargo. It appeared that there were at least one hundred and nine barrels of rosin and thirty-seven cases of kerosene on the deck. It did not appear in what way they were fastened or stowed, excepting that the mate testified that the barrels were stowed on their sides and the cases were as high as the barrels, and he thought there were a few cases on top of the barrels. That the deck was greatly incumbered is shown by the quantity, as well as by the further testimony of the mate. In his deposition, the following questions and answers appear:

‘‘ Q. How many barrels of rosin was there on deck ? A. I can’t tell yon—don’t recollect. Cj. Was the deck-full ? A. There was a good many; no, it Avas not at all full. Q. How near full was it ? A. I don’t knoiv; it was not all full; anyhow we had water casks on deck besides. Q. Was there room for any more cargo on deck than that which you had \ A. I don’t think thei ° was ? Q. You mean to say that there Avas no more room for any more cargo on the deck of that-brig % A. We could have put more on. Q. How could you put more on it ? A. Find room for it forward by the foreside of the house, perhaps. I don’t' know how many more barrels we could have put on deck. V ery likely ten. I would not swear to ten or any number. I may put more than five, perhaps. ”

This being the state of the evidence, I think that the plaintiff should, at least, have shown affirmatively that the deck cargo was not likely to interfere Avith the due management of the brig.

The learned counsel for respondent agreed that it was a question for the jury, as to whether the stowing the cargo upon deck was not an act of barratry on the part of the master. Whatever pertinency this position, if well taken, might have upon the question that arose from the jettison of the deck cargo, and the liability of the defendants to pay for the loss of a deck cargo, I do not see that it has any relevancy to the inquiry whether the brig was seaworthy at the time the policy attached. That seaworthiness should exist, was a condition precedent to the insurers becoming bound in any way. No case is cited, nor is a principle urged, upon which it can be held that the fact of seaworthiness, as a condition precedent, is waived or ceases to be a condition, if the unseaworthiness has been created by the intentional wrong of the master. The implication that the insurer’s contract, in respect of a seaworthy vessel, is not the less jnst in a case of insurance upon cargo not owned by the ship-owner. The owner of the cargo, in effect, contracts that the vessel is seaworthy.

As to the effect of the cargo on deck on the navigation of the brig, no explanation was given. It was not "shown that it was the custom or usage to carry deck cargo on voyages like this. There was no attempt to show that the deck cargo did not interfere, or was not likely to interfere, with the due management of the brig.

The defendants also claimed that the vessel was unseaworthy, because she took no pilot in sailing out of the port of New York. This point will be passed upon, under the case of Keeler v. Fireman’s Ins. Co. (3 Hill, 250). A statute of the kind invoked by the defendants (Laws 1857, c. 242, § 29, p. 501), that all masters of foreign vessels, &c., shall take a licensed pilot, may perhaps, under the case last cited, be considered directory in certain respects ; but the statute creates a presumption that such a vessel is not fitted to sail out of the port without a licensed pilot, especially when, as in the case of this port, it is the custom or usage for such vessel to take a pilot. To answer this presumption, and to show that there was seaworthiness, the insured must prove that the person who actually took the vessel out was acquainted with the navigation of the port, and possessed skill and capacity, proportioned to the difficulties, sufficient to make him a proper pilot. In the present case there was no proof of any previous knowledge of the difficulties of the port or of sufficient skill and capacity to avoid or overcome them on the part of the master of the brig, who took her to sea. The fact, that he navigated her safely on the particular occasion, did not tend to show any competency. He may have been a learner, or taken the risk for the first time.

On the question of general overloading, there was evidence enough to uphold the finding that she was not unseaworthy therefrom.

The learned court submitted the questions that concerned the seaworthiness to the jury, in an impartial way; but I am of opinion' that the evidence showed that the vessel was' unseaworthy, in the particulars already noticed as sustaining such a- claim, and that the motion to dismiss the complaint on that ground should have been granted.

The defendants were made responsible for the loss "of the deck load. The plaintiff claimed that it had been jettisoned. The defendants insisted that the proof was that it had been washed overboard. Perhaps the protest contains the truth on the subject, but its contents were not in evidence. There was some testimony that the deck load had been intentionally thrown over to lighten the vessel, and it seems that the defendants are concluded by their acquiescence in a declaration on the trial by plaintiff’s counsel, that it was agreed that one hundred and nine barrels of. rosin and thirty-seven cases of kerosene were jettisoned. The circumstances of the jettison of this deck cargo raise, questions, perhaps, that were not mooted upon the argument, and attention will be confined to an exception that relates to the charge on this subject. The counsel for plaintiff claimed that the insurers were liable for the value of the deck cargo thrown over, if the master was, in loading it upon deck, guilty of barratry. The court .charged “ that if the master of the vessel, having chartered his vessel for a full cargo under deck, and having given bills of lading for the whole cargo as being under deck, took a portion of the cargo on deck, such an act, if done knowingly and willfully, would be a willful wrong on the part of the master against the owner of such goods, which would constitute barratry.”. This was excepted to by counsel for defendants, and the ground urged on the appeal was, that, to be barratrous, the master’s act must also be fraudulent. I am, however, of the opinion that the substance of the opinions in Atkinson v. Great Western Ins. Co. (65 N. Y. 532) does not necessitate the use of that word fraudulent. It is enough if the jury find that the wrong was done with a knowledge or consciousness that it was wrong, and that it was done willfully. I understand that case to assert, in effect, that willfully in that connection means that the act is done purpqsely as a breach of duty, rather than negligently, by omitting to consider that it is a breach of duty. Although I am of opinion that such is the right application of the case cited, nevertheless it must be recognized that there is a doubt of it.

It is proper to say here, that the charge referred to the barratry as being a wrong against the owner of the cargo jettisoned, and did not refer to it as being a willful wrong against the owner of the ship also. The matter may have some importance, because it may be questioned, how successfully need not be here said, that if it is only a wrong against the owner of the cargo, as being a violation of the bill of lading, or of some other implied contract, whether resort should not be had to the ship or ship-owners, rather than to the insurers. In the case of Atkinson v. Great Western Ins. Co. (supra), it can be observed that the opinion of the court considered the act of barratry that was alleged, to have been barratrous as to the owner of the ship, as well as to the owner of the cargo.

The court also charged that the burden of proving the amount of damage resulting from leakage alone is upon the defendants. To this an exception was taken. There can be no doubt that a great part of the loss occurred from the escape of kerosene through holes or crevices in the tin cans, or through imperfectly fastened joints, or joints that had been opened by accident or by shocks received on the voyage. There can be no doubt, also, that the cans had received injuries from sea-perils, and which permitted the great part of this leakage. Neilson v. Commercial Mut. Ins. Co. (3 Duer, 455) decides that a clause like one in the present policy, which is, “not liable for leakage on molasses or other liquids, unless occasioned by stranding or collision with another vessel,” comprises leakage caused by sea-perils insured against, as well as ordinary leakage.

Kespondent’s counsel argues that the word “leakage,” in the clause, refers to a leakage from packages of a kind that theretofore had been usually thought of as liable to leakage, and which usually occurs through inherent defects, and not from cans in cases of kerosene, they being articles as to which leakage from inherent defects were not to be apprehended. The answer to this is two-fold. First, the word leakage, in the contract, must be construed to mean, leakage from whatever vessels it may occur. Second, from the evidence of the merchants in the case as. well from general knowledge of what a tin can is, it appears that tin cans are, from their mode of manufacture, as liable to leakage as barrels.

It is further said that the loss to the plaintiff occurred from the damaged appearance of the' cases of kerosene, rather than from a deficiency of the contents through leakage. The evidence is against this. The testimony of the merchants shows that valuations were placed upon the damaged cases with a regard to the quantity of the contents.

The plaintiff, on the trial, was bound to prove the amount of damage, under the stipulations of the contract. The burden of proof was upon him to prove the amount as well as the cause of action in other respects. In his case, it appeared that the amount he claimed was, to a great extent, made up of the value of kerosene that had leaked from the cases. He therefore claimed to recover something that, according to views already taken, he was not entitled to claim from defendants. Under these circumstances, I do not think the defendants were bound to limit and describe this wrongful excess by showing how much leakage there was. The clause cannot be viewed as an exception in the contract from general liability. It was a limitation of liability, in respect of the consequences of perils of the sea, and the plaintiff was bound to show what consequences had happened, for which the liability actually existed. No doubt, on the facts, it might, in the absence of other proof, appear that a loss of a kind had happened that would make an insurer liable ; and, in such ease, the insurer would be bound the introduce sufficient testimony to show what the facts really were. It would be doubtful, then, whether the insurer would be bound to do more, in the first instance, than to show that the insured claimed for a damage not contemplated by the policy, without proving its quantity. “Excepted risks are sometimes, by the circumstances of the case, mingled with those insured against, so that it is not quite easy to say to which class the loss is owing. The general rule must be that the insurers are liable or exonerated, according as the leading principal cause of loss be one insured against or one that is excepted; and, in such a case, the burden of proof is on the insured to show definitely the amount of his loss by the peril insured against ” (1 Parsons Mar. Ins. 620, citing Heebner v. Eagle Ins. Co., 10 Gray, 143). I am therefore of opinion that this exception should be sustained.

Judgment reversed, and new trial ordered, with costs of appeal to appellant, to abide the event.

Speir, J., concurred.


text:
    FREDERIKE LAX, Administratrix, &c., Appellant, v. THE FORTY SECOND & GRAND ST. FERRY R. R. CO., Respondent.

      Negligence—liability of street railroad, companies.—Action for' causing death, &c.—admissions of deceased as evidence.

    The provisions of the act of April 3, 1850, in relation to the liability of railroad companies, for injuries to passengers while on the platform, &c., does not apply to street railroad companies.
    Where there is a cónfiict of testimony as to whether the car upon a street railroad was stopped at the request of the deceased, and again negligently started while he was in the act of alighting, the case should go to the jury, notwithstanding that it appears the passenger was unnecessarily upon the front platform, and attempted to alight therefrom.

      It seems, that admissions of the deceased as to the manner in which the accident occurred are competent evidence against his representative in an action brought for causing the death of the deceased.
    Before Sedgwick, Ch. J., and Russell, J.

      Decided December 6, 1880.
    Appeal from judgment, dismissing complaint at the trial term.
    The action was under the statute, for compensation, for the pecuniary injury to the next of kin of the intestate, from the death of the intestate, caused as alleged by the negligence of defendant’s servants.
    At the trial, the complaint was dismissed on the ground, that, by the preponderance, of testimony, it appeared that negligence of the deceased contributed to the cause of the injury.

      Lawterbach & Spingarn, attorneys, and F. It. Minrafh, of counsel, for appellant, urged, among other things :
    I. Where the question either of negligence or contributory negligence depends on conflicting testimony of the witnesses, or inferences to be deduced from a variety of circumstances, it is a matter of right for the plaintiff to go to the jury (Wolfkiel v. Sixth Avenue R. R. Co., 38 N. Y. 49 ; Filer v. New York Central R. R., 49 Id. 47 ; Thurber v. New York, H. B. & F. R. R., 60 Id. 326 ; Roach v. Railroad, 58 Id. 626 ; Nichols v. Sixth Avenue R. R. Co., 38 Id. 131; Dunham v. Troy R. R. Co., 3 Keyes, 543; Scofield v. Hernandez, 47 N. Y. 313 ; Gonzales v. Central R. R. Co., 39 How. Pr. 407; Colt v. Sixth Avenue R. R. Co., 49 N. Y. 671 ; Belton v. Baxter, 58 Id. 415 ; Hackford v. N. Y. H. R. R. Co., 53 Id. 654; Smith v. Coe, 55 Id. 678).
    II. Upon a motion for a nonsuit, that version of the evidence most favorable to plaintiff must be adopted (Cook v. New York Central R. R. Co., 3 Keyes, 476; Scofield v. Hernandez, 47 N. Y. 313 ; Gonzales v. New York & H. R. R. Co., 39 How. 407 ; Wolfkiel v. Sixth Avenue R. R. Co., 38 N. Y. 49 ; Ernst v. Harlem R. R. Co., 35 Id. 9, 42; People v. Roe, 1 Hill, 470).
    III. The plaintiff’s witness, Charles Griaser, testifies that the deceased asked the driver to stop ; that the latter did stop, and that just as the deceased was about to alight, the driver started the horses, and the deceased fell from the car and was run over. Again, “ the driver did not stop long enough for him, to give him a chance to get off.” If this testimony is true,- and for the purposes of nonsuit the court is bound to consider it as true, the defendant is liable (Poulin, v. Seventh Avenue R. R. Co., 61 N. Y. 621; Nichols v. Sixth Avenue R. R. Co., 38 Id. 131; Sauter v. New York R. R. Co., 66 Id. 50 ; Keating v. New York Central R. R., 49 Id. 673 ; Maher v. Railroad Co., 67 Id. 52 ; Mullhado v. R. R.,. 30 Id. 370.; Colt v. Railroad Co., 49 Id. 671).

      IV. The notices introduced in evidence by defendant are not applicable to the case at bar, and can have no bearing upon it. The statute provides that 11 In case any passenger shall be injured while on the platform of a car, or on any baggage, wood, or freight car, in violation of the printed regulations of the company, posted up in a conspicuous place inside its ¡passenger cars, then in the train, such company shall not be liable for the injury.” (a) This statutory provision does not apply to horse railroads, but simply to steam railway cars. The terms “baggage, wood or freight cars,” and “the cars then in the train,” show that the intent of the legislature was clearly that it should not apply to horse railways, where such things as wood, baggage or freight cars or trains are unknown. Webster defines the word train as a continuous or connected line of cars or wagons on a railroad (Webster's Dictionary), (5) Such regulation would only be available if the injury occurred to the deceased while on the platform, which is not in accordance with the facts of the case at bar. It is a well established rule, that any authority given in violation of common law right must be strictly construed, and consequently the provision exempting a carrier from his common law liability for negligence, cannot be extended by construction (Maynard v. Syracuse R. R. Co., 71 N. Y. 180 ; Chase v. Lord, 77 Id. 1). The statute clearly :applies to those cases only where the injury occurred while the injured person was on the platform. An injury occurring after he had left the platform is out-ride the scope of the provision, (e) The regulations of .the company and the foregoing statutory provision are .not available to defendant, on the ground that, according to plaintiff’s evidence, the breach of it in no wise «contributed to the injury (Briggs v. New York Central R. R., 72 N. Y. 30 ; Haley v. Earle. 30 Id. 208 ; Buel v. New York Central R. R. Co., 31 Id. 314; Willis v. Long Island R. R. Co., 34 Id. 675).
    V. It is net negligence, per se, to stand on or alight from the front platform of a horse car (Maher v. Railroad, 67 N. Y. 55; Willis v. Long Island R. R., 34 Id. 675).
    VI. The acceptance of fare from the deceased, without objection to his remaining on the platform either by driver or conductor, constituted a relaxation of the rule and a waiver of the statutory immunity (Dunn v. Grand Trunk R. R., 58 Me. 187 ; Carroll v. New York & New Haven R. R. Co., 1 Duer, 580 ; Maher v. C. P. R. R., 67 N. Y. 52; 59 Id. 351 ; 49 Id. 47 ; 36 Id. 135 ; 37 Id. 287).
    VII. The declarations and admissions of the deceased, after the accident, are not competent testimony for the defendant to prove the contributory negligence of plaintiff’s intestate. Such declarations are not part of the “res gestee" (Abbott's Trial Ev. 588, and cases' there cited; Luby v. Hudson R. R. R. Co., 17 N. Y. 132 ; Whitaker v. Eighth Avenue R. R., 51 Id. 295; 1 Greenleaf's Ev. §. 110 ; Abbott's Trial Evidence, 588). Nor were the declarations of the deceased competent evidence as admissions against himself, for, “Where the beneficial as well as the legal right of action is in another than the injured person—as where a parent sues for injuries to Ms minor child—the admissions of the latter are not competent against the plaintiff, except as part of the res gestee (Ohio Railroad Co. v. Hammersley, 28 Ind. 371; Abbott's Trial Ev. 589).

      Ely & Smith, attorneys, and Moses Ely, of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.

The facts, which it was held constituted contributory negligence on the part of deceased, were, that at the time of the occurrence, he was standing on the front platform of a horse car of defendant, and attempted to leave it while it was in such motion that it was against common prudence to make the attempt. The learned counsel for the respondents argued that section 46 of the “ Act to authorize the formation of railroad corporations, and to regulate the same,” passed April 3,1850 (3 Edm. Stat. 636), which provides, that “in case any passenger on any railroad shall be injured while on the platform of a car ... in violation of the printed regulations of the company posted up at the time in a conspicuous place inside of its passenger cars then in the train, such company shall not be liable for the injury, provided, &o.,” is to be applied to the car of a horse railroad. The peculiarities" of the language seems to indicate the opposite of this, and no case has been cited which sustains the proposition.

The law to govern is declared in the case of Clark v. Eighth Avenue R. R. Co. (36 N. Y. 135): “It is the duty of the passenger, on getting on board of a car, to place himself in a safe position therein, if he is able to obtain such position, and it is no excuse for him to place himself in an unsafe one, that the persons in charge know that it is unsafe, and do not drive him therefrom, when the unsafety is known to the passenger. That riding upon the steps of a street car is less safe than a seat inside, requires no proof. It is obviously so.” Itlnay also be held, that standing upon a front platform is, as to certain risks, obviously unsafe. The court, in the cited case, further said, “ that if the plaintiff made reasonable exertions to get inside of the car, and failed to do so, and was permitted by the driver and conductor to remain on the platform, he was not illegally there . . when it was impossible for him to get any other place.”

In Ginna v. Second Avenue R. R. Co. (67 N. Y. 596), it was, held, that under like circumstances, although it may not be physically impossible to enter the car, riding upon a platform is not per se negligence, if the passenger cannot enter the car “ without great and unreasonable discomfort to himself and to the prior occupants of the car.” In both of the cited cases, the platform obviously exposed the passenger to a danger of the kind that was actually incurred, when there would have been no such danger to him, if he were inside of the car.

In the present case, the deceased, according to the evidence, was unnecessarily upon the front platform, and there was no evidence that he might not have seated himself in the car. By the rules that have been cited, he would .have been guilty of negligence that forbade this action being maintained, provided the accident that happened was of a kind he obviously was more exposed to from being on the platform, than he would have been in the car. In that case, his position would have contributed to cause the accident.

But there was evidence in the case that would have justified the jury in finding that immediately before the accident he had asked the driver to stop ; that the driver did stop the car; that the deceased began to alight, but before he had gained a footing on the ground, while he was in the act of alighting, the driver started the car negligently," and the negligence caused the deceased to be thrown down. If such were the facts, it cannot be held, as matter of law, that his having been standing on the platform contributed to cause the injury. If the car were motionless,.the getting from the front platform was no more dangerous than getting from the rear platform would have been. This, I think, should be deemed a matter of law. He must get from one platform or from the other. Neither has greater safety than the other. He would not have a choice between a place of safety and a place of danger. If the car had motion, unless the testimony incontrovertibly showed that it was a dangerous motion, there would be a question for the jury as to whether in fact the motion was dangerous, and whether alighting from the front platform was not obviously more dangerous than alighting from the rear platform. Maher v. Central Park, N. & E. R. R. Co. (67 N. Y. 52), sustains in. principle what has been said in reference to a motionless car.

The plaintiff was entitled to go to the jury upon the testimony of Griaser. The testimony opposed to his was not so overwhelming that the jury did not have a right to believe him. They could have inferred from his testimony that the car was at a stand when the deceased began to step down. It would have been, of course, a question, as in Maher v. Central Park, N. & E. R. R. Co. (supra), whether the deceased was prudent or negligent in his manner of alighting.

In the course of the trial, the defendant was allowed to prove certain declarations of the deceased soon after the accident, which were, in substance, that he jumped off the front platform before the car had lessened its motion. It was .objected that this was incompetent, as against the plaintiff—who does not succeed to the action that, the deceased might have had in his .lifetime, but has an independent statutory action—and that it was hearsay testimony. I am of the opinion that they are admissible, as having been made by the deceased against his interest; he, of course, having full knowledge of the actual occurrence. (1 Greenl. Ev. § 147, et seq.). “The ground upon which this evidence is received is the extreme improbability of its falsehood (Id. § 148.). ”

But on the point first noticed, I am of opinion there should be a reversal of the judgment and a new trial ordered, with1 costs of the appeal to the appellant to abide the event.

Russell, J., concurred.


author: Bv the Court.—Sedgwick, Ch. J.

text:
    COTTON W. BEAN, Respondent, v. GEORGE W. EDGE, Appellant.

      Sale of chattels—what constitutes.—Conversion—when person, issuing process liable for.—Amendment of complaint—when may be allowed,.

    B., the lessee of certain premises, sub-let the same for the unexpired term, together with certain of his chattels thereon, by a lease providing as follows: that 'On performance of covenants and payment of rent (a large part of which was paid in advance by indorsed notes), B. would, at the expiration of the term, convey said chattels to the sub-tenant; that if a loss by fire occurred, B. was to receive out of the insurance money (the sub-tenant agreeing to keep the chattels insured), such proportion as the rent then due might bear to the whole rent, the balance to go to the subtenant; that upon default, re-entry could be made, and the chattels sold, and the rent due taken from the proceeds, the balance to go to the sub-tenant.

      Meld, that under the above agreement, B. did not part with title to the chattels; also, that a sale thereof by B. during the tenancy, unaccompanied by manual delivery, raised no presumption of fraud.
    -The sheriff, under a distress warrant authorizing him to “ distrain the goods, &c., of the tenant,” having taken the property of a third person, the party who issued the process (the defendant herein), caused the goods to be appraised under the statute (of New Jersey), and subsequently received the proceeds of the sale thereof.

      Meld, that the defendant thereby became liable for the conversion of the said chattels.
    Upon the trial, plaintiff moved to amend his complaint to include interest 'on the demand, and the referee reserved his decision, no objection being made to his so doing.

      Meld, that an allowance of the amendment, made in the findings of the referee, was in time.
    Before Sedgwick:, Ch. J., Speir and Russell, JJ.

      Decided December 6, 1880.
    Appeal from judgment entered on report of referee, in favor of plaintiff.

      This was an action for damages, from an alleged unlawful conversion of plaintiff’s goods and chattels, by defendant’s intestate, in taking and selling them under distress warrants for rent, in the State of New Jersey.
    The intestate was the ground landlord. He leased the premises to Moses H. Bean. Moses H. Bean leased them to one Ely, for the unexpired term, and also the goods, chattels and household furniture in the house. These chattels were those afterwards taken by the distress warrants. Moses H. Bean, in the lease by him, agreed that on payment of rent and performance of covenants, at the expiration of the term he would sell and convey to Ely, by a good bill of sale, all the goods and chattels. If there was a loss by fire,' Moses H. Bean was to receive out of insurance money (Ely agreeing to keep the goods insured), such proportion as the amount then due for rent would bear to the whole rent, and the rest of the insurance money to go to Ely. Right to re-enter upon default was reserved, and if there were re-entry, the chattels were to be sold at public auction, and from the proceeds, the rent due was to be paid, and the overplus to go to Ely.
    The greater part of the rent was paid in advance by notes of Ely, indorsed by a third person. Moses H. Bean transferred some of these notes to the plaintiff, and the latter, after they had been due for some time, "re-transferred them. About a year before the ground lease and the other lease were to expire, Moses H. Bean made and delivered to the plaintiff a bill of sale of “all my right, title and interest in and to” the chattels. The plaintiff paid to Moses H. Bean, as a consideration of this bill of sale, or of the transfer of the note, the sum of $3,000.
    Rent being paid due to the grdund landlord (the intestate of defendant), he made and placed in the hands of a constable, distress warrants, that on their face, empowered the constable “to distrain the goods and chattels of Moses H. Bean,” in the premises leased as above “ for rent due me for said premises.”
    A statute of New Jersey was read, empowering landlords to distrain, for rent due them, the goods of their tenants, and not of any other person, which may be found upon the demised premises.

      Marsh & Wallis, attorneys, and. Luther R. Marsh, of counsel, for appellant.

      Erastus New, for respondent, among other things, urged:
    The acts of the defendant constituted a conversion of the property in question (Latimer v. Wheeler, 3 Abb. Ct. App. Dec. 42; Boyce v. Brockway, 31 N. Y. 490; Allen v. Crary, 10 Wend. 349 ; Wintringham v. Lafoy, 7 Cow. 736; Woodside v. Adams, 11 Vroorn [N.Y.] 417).
   Bv the Court.—Sedgwick, Ch. J.

The answer in this action admits that the defendant’s intestate, who was in being at the time of the answer, caused the goods to be appraised, under the statute, and the testimony shows that he thereafter received the proceeds of the sale. This, besides other reasons that need not be specified, establishes the fact that he was responsible for the taking of the goods.

The answer, also, after setting out the statute of New Jersey, was that the goods taken were the property of Moses H. Bean, and were distrained for rent due by Moses H. Bean. It is not avowed that they were the goods of Moses H. Bean’s lessee,—that is, of Ely, dis-trained for rent due by Ely; so that any argument that Ely was the owner of the goods would not, under the New Jersey statute, justify their being distrained for rent due by Moses H. Bean. But the defendant, perhaps, has a right to maintain in this action, that the plaintiff did not own the goods at the date of the distress, and is not entitled to recover for their value, but that Ely did. That position calls for examination.

The plaintiff claimed to show his ownership of the goods, by bis proof that Moses H. Bean had assigned and transferred them to him a year before the distress warrant was issued. Assuming that the defendant had a status that would enable him to impeach the bill of sale, as fraudulent against the landlord, that question was.not, in fact, litigated upon the trial; it was not presented to the referee upon the trial; nor ,was any request made concerning it. On the trial, the contest was that Moses W. Bean’s bill,of sale did not transfer the goods to the plaintiff, because Ely’s interest in them was of a kind that amounted to a title, or in some way took the title out of Moses W. Bean.

It cannot be questioned that if, at the time of the distress, the goods seized were not the goods of the tenant, Moses W. Bean, but had theretofore been so transferred to the-plhin tiff that they had become his goods, the distress was forbidden by statute of Hew Jersey, and was a trespass.

The remaining matter to be examined then is, was Ely’s interest in the goods such that Moses W. Bean could not transfer them to the plaintiff % There is no doubt that before Moses W. Bean’s lease to Ely, the former was the owner of. the goods, and had unlimited power of disposition over them. That lease did not convey the goods. On the contrary, it expressly provided for a bill of sale to Ely at the end of the term, on condition, that at that time there should be no default by Ely in payment of rent or- performance of covenant. Ely’s rights as to the goods did not extend to his becoming the owner of them, under any other, circumstances. If they should be burned, and he had performed his covenant to insure them, he would be ' entitled to an interest in the insurance money. If there were default in the rent, the lessor, Moses H. Bean, might, at. his option, repossess himself of the goods and sell them at public auction, and from the proceeds pay the rent due, and pay the rest to Ely. All this gave no title to Ely. Whatever was the exact nature of Ely’s interest, including a right to possession, the title and the property remained in Moses H. Bean. The transfer of that title would not affect the rights of Ely, so long as the person having title was ready to use it as Ely’s right required it should be used. Ely would enforce his right, not by reason of any interest in the property or power of disposition over it, but simply by reason of the personal obligation of Bean or his transferee, to do the things covenanted to be done. This is perhaps taking an extreme view of the obligations of Bean’s assignee. I see no reason to doubt that Ely’s interest did not operate to deprive Moses H. Bean of his right or power to sell the property to the plaintiff, and therefore the referee was correct in finding that the plaintiff was the owner of the property that had been taken by the intestate’s distress warrant, as the property of Moses H. Bean.

No doubt is thrown upon the operation of the bill of sale, as transferring the property, by the fact that manual delivery of the property was not made. Actual delivery could not be made, as it was in the possession of Ely rightfully. It may be said further that in such case there was no presumption of fraud, it not being in the actual possession of the vendor.

If the propositions already made are sound, the declarations of Ely that were admitted as evidence on defendant’s exception were immaterial, and did not injure the defense. On the undisputed evidence, it appeared that Moses H. Bean had been the owner of the goods. The declarations of Ely did not affect the testimony that Bean had made the bill of sale to the plaintiff. They only tended to show that Ely had voluntarily abandoned his interest, and that interest, we have held, did not impair the plaintiff’s title or the title of Moses H. Bean.

I think it sufficiently appears that the defense made no objection to the referee’s reserving his decision, upon the motion of plaintiff to be allowed to amend the complaint so that it should demand interest, and that his allowance of the amendment was in time, being made in his findings.

Judgment is affirmed, with costs.

Speir and Russell, JJ., concurred.


text:
    JOHN B. DAY, as Assignee, &c., Respondent, v. ELIAS BACH, et al., Appellants.

      Conversion—when will liefor taking of goods under process. —Attachment.

    Where an attachment regularly granted upon competent evidence is vacated upon appeal, for error alone, and not upon the ground of irregularity or for want of jurisdiction,'—in the absence of proof of malice upon the part of the party obtaining the process, action will not lie against him for conversion of the goods taken thereunder.
    Cases in which the process was void, or had been set aside for irregularity, distinguished.
    Before Sedgwick, Ch. J., and Russell, J.

      Decided December 6, 1880.
    Appeal from judgment in favor of plaintiff, entered on verdict of a jury, and also from the order denying defendant’s motion for a new trial, made upon the minutes.
    The action was by the plaintiff, as general assignee of one Scheuer, for the benefit of the latter’s creditors.

      The complaint charged a wrongful taking and conversion, by defendant, of Scheuer’s goods.
    On the trial it appeared that the defendants had begun an action in the supreme court on an account stated, and that, in such action, they applied for and obtained an order of attachment. The affidavit on which this order was made justified an inference that Scheuer was about to dispose of his property with intent to defraud his creditors. There was no irregularity in the attachment, or in the proceedings to obtain it. Scheuer moved, at special term, upon additional affidavits, that contradicted essential parts of the affidavit on which the attachment was issued, and explained others, to set aside attachment, but not on any ground of irregularity. The motion was denied. On appeal this order of denial was reversed, and the attachment was vacated.
    The taking of the goods under the attachment was the wrongful conversion alleged in the complaint. The complaint did not charge that the defendants acted maliciously or without probable cause.
    The defendant’s counsel moved to dismiss the complaint on the ground that the evidence disclosed no cause of action.
    The motion was denied, and the judge left to the jury to find only the value of the goods taken. Exceptions were made to the denial of the motion, and to the charge that the only question was the value of the goods.

      Lawrence & Waehner, attorneys, and L. C. Waehner, of counsel, for appellants, urged:
    I. This action was not in the nature of a suit for a malicious prosecution. It is not charged that the defendants maliciously, and without probable cause, procured the warrant of attachment to be issued and levied. The ground upon which the plaintiff claims to recover is, that the warrant of attachment having been set aside upon the merits, for error in fact, affords no justification for the proceedings taken under it during its life.
    II. The appellants concede that had the attachment been vacated for want of jurisdiction in the court, or because of any irregularity in their proceedings, or because of their failure to present to- the court sufficient facts to justify the issuance of the warrant, in the first instance, they would be liable as trespassers for all acts done thereunder. But neither of those facts exist in this case.
    III. There is a vital difference between erroneous and irregular process. Erroneous process is the act of the court, and even after it is set aside or reversed, whatever was done under it while in force may be justified by the party. Irregular process is the act of the party, and when once set aside, is considered as having been a nullity from the beginning (Blanchard v. Goss, 2 N. H. 491; Palmer v. Foley, 71 N. Y. 109 ; Miller v. Adams, 52 Id. 415; Waldo v. Selden, 4 Week. Dig. 370; Simpson v. Hombeck, 3 Lans. 53 ; Sleight v. Ogle, 4 E. D. Smith, 445 ; Waldheim v. Sichel, 1 Hilt. 45 ; Coupal v. Ward, 106 Mass. 289; 3 Daly, 38; 1 Hill on Torts, 437, 443, 444). The process in this case, being erroneous and not irregular, afforded a complete protection for all acts done under it, and the court at'the trial should have so held. A party suing out process from a competent court is responsible only for its validity and for his own good' faith in causing it to issue (Adams v. Freeman, 9 Johns. 117).
    IV. It not being claimed that the defendants maliciously, and without probable cause, procured the attachment to issue, nor that any acts were done in excess of those authorized by the writ, the plaintiff cannot recover in this action. The presence or partici- , pation of the defendants in the levy does not render u them liable, the process being valid.
    V. It may perhaps be suggested that it is a great hardship to a party to have his property attached without a remedy for the damage which may be occasioned by the execution of the process, and that, if the plaintiff is nonsuited in this action, he is remediless. This suggestion is not, however, entitled to any consideration, as it has been completely answered by the court of appeals, in the case of Palmer v. Foley (71 N. Y. 108).

      Cooper & Bach, attorneys, and S. V. R. Cooper, of counsel, for respondent, among other things, urged :
    Defendants contend, First: That the facts show that the goods were taken under an attachment, and if there was a trespass or conversion it was by the sheriff. Second: That the warrant of attachment having been vacated for error and not for irregularity, it was a protection to these defendants for any act done by the sheriff under it. Neither of the above propositions is true. The sheriff was protected by the warrant of attachment, but the defendants were not (Wehle v. Butler, 12 Abb. Pr. N. S. 139 ; affi’d, 61 N. Y. 245 ; Lyon v. Tates, 52 Barb. 237; Kerr v. Mount, 28 N. Y. 659). The counsel for the defendants claimed, on the triál, that the attachment not having been set aside or vacated for irregularity, but for error, it is a protection to the defendants in this action against any act done by the sheriff under it; and then cites several cases. The case of Palmer v. Foley has no application to this action. In that action an injunction was granted; the action was discontinued by consent. An order was made appointing a referee to ascertain defendant’s damages by reason of the injunction. The court of appeals held, There is no breach of the condition of the statutory undertaking, unless the court finally decides that the plaintiff was not entitled to the injunction, or unless something occurs equivalent to such a decision. The point in this case did not arise in the case of Palmer v. Foley. And it does not appear, by the order of the general term vacating the attachment, whether it was vacated for error or for irregularity. The case of Miller v. Adams (52 N. Y. 409), is not in point. It was an action for false imprisonment. Adams had obtained a judgment against one Thompson, execution had been issued and Returned, no goods. The plaintiff, Miller, had been ordered to appear before a county judge to be examined as a debtor to Thompson, or as.having property belonging to him. Miller disregarded the order, and an attachment was issued against him, under which he was arrested. It was claimed by Miller that the county judge had no jurisdiction to issue the attachment, for the reason that the affidavit upon which the proceedings were instituted was insufficient. The court of appeals held the affidavit was sufficient, and that the county judge had jurisdiction. The case of Waldo v. Seldon (4 Weekly Dig. 370), was an action for false imprisonment, and arose out of proceedings supplementary to execution, and has no application to the present case. Simpson v. Hornbeck (3 Lans. 53), is also a case of false imprisonment, and has no application. The sheriff is protected by the warraút of attachment, and if the defendants are not liable, then it follows that there is no means or remedy by which property attached and converted can be regained, or the value thereof recovered, if attachment be vacated. Money collected on a judgment, which is afterwards reversed, either for error or irregularity, can be recovered back (Simpson v. Hornbeck, 3 Lans. 53, 56).
   By the Court.—Sedgwick, Ch. J.

The court issuing the attachment had jurisdiction for that purpose, and there was no irregularity in the proceeding. The affidavits on which the attachment was made disclosed evidence of a competent kind, establishing, in the absence of explanation, one of the cases in which the statute provides for an order of attachment. Malice was not alleged against the defendants, or charged against them on the trial.

Chitty says, of actions of this kind, that “ case for the malicious motive and want of probable canse for the proceeding is the only sustainable form of action” (1 Chitty Pl. 186).

Reynolds v. Kennedy (1 Wils. 232), was an action for damages, in causing the defendant’s property, some barrels of brandy, to be seized under the revenue law. In the first instance, the plaintiff’s information was sustained and the property condemned, but this was reversed on appeal. The court held that the action for damages would not lie, there being no charge or proof of malice. It was said the “gist of this sort of action arises from some evil practice or malice in him who sues or prosecutes” (Pangburn v. Bull, 1 W. 346; also cases cited in note a, § 11, c. 16, 1 Hill's Torts).

In Beaty v. Perkins (6 Wend. 381), it was held that trespass would not lie against a party who has procured a search warrant to search for stolen goods, if the warrant be duly issued and regularly executed, and it was thought that case would lie if the party has no grounds for his proceedings, and is actuated by malicious motives.

In 1 Saunders (230, b), the law is broadly stated: “And the rule seems general that no action lies for damage or inconvenience sustained in consequence of process of law, unless it be alleged and proved that the party who occasioned it was actuated by malice.”

In Simpson v. Hornbeck (3 Lans. 53), the defendant had obtained a judgment for the conversion, by the plaintiff, of personal property, and the plaintiff was taken by an execution against his person, issued on the judgment. The judgment was afterwards reversed, and the plaintiff brought the action for false imprisonment. Judge Pabkee, in giving the opinion of the general term, said, “ although a void judgment, or one that is voidable for irregularity, will not, after being set aside, justify the acts of the party, done under it, before it was set aside, this principle, I apprehend, has never been applied to a judgment .merely erroneous, and reversed for error by a court of :review.” He cites other cases.

In the cases cited by respondent’s counsel to maintain this action, Wehle v. Butler (61 N. Y. 245, affirming 35 Super. Ct. 1), Lyon v. Yates (52 Barb. 237), Kerr v. Mount (28 N. Y. 659); and in Smith v. Shaw (12 Johns. 257), Chapman v. Dyett (11 Wend. 31), the processes were either void or had been set aside for irregularity.

In substance, if a party were held liable for the cause here alleged, the liability would exist, although he was guilty of no omission or violation of duty to the law or to the individual. If there were damage, it would be damnum, absque injuria.

For these reasons, I am of the opinion that the defendant’s exceptions upon the trial, require a new trial.

Judgment and order appealed from reversed, and new trial ordered, with costs of appeal to appellant to abide event.

Russell, J., concurred.


author: By the Coubt.—Sedgwick, Ch. J.

text:
    LOUISA M. FURNISS, Respondent, v. THE MUTUAL LIFE INSURANCE COMPANY OF N. Y., Appellant.

      Life insurance—effect of false statement in application—what sufficient evidence of falsity.

    Where the husband, as the agent of his wife, and in her name, obtains a policy of insurance upon his life, warranting the truth of his statement in the application that he is of correct and temperate habits, and making the same a part of the policy, a statement of the wife in a verified petition thereafter made by her in an action for separation, that ever since their marriage he had been addicted to the excessive use of intoxicating liquors, is admissible in evidence against her, in an action on the said policy, and if such admission is not explained or contradicted, a verdict for defendant should be directed.
    What answer to questions in application will constitute a declaration of correct and temperate habits, and what is sufficient evidence of such habits in deceased, as against an admission such as the above, considered by the court.
    Before Sedgwick, Ch. J., Speir and Russell, JJ.

      Decided December 6, 1880.
    Appeal by defendant from judgment.
    The action was on a policy of defendant that insured, for the benefit of the plaintiff, her husband’s life.
    On the trial, the testimony showed that the application for the policy was made by the husband for the plaintiff, and in her name, and her name was signed to it by him as her agent. The .application contained the following questions: “Q. (A) Are your habits of life correct and temperate ? (B) Have they always been so?” and the answer was; “Yes. Drink at times.”

      At the end of the testimony, the defendant’s counsel claimed that the plaintiff had, by the policy, warranted the answer in the application to be true ; that by uncontradicted evidence, the answer was untrue ; and moved for a verdict for defendant. The motion was denied, and exception taken.
    Further facts appear in the opinion.
    Fullerton, Knox & Crosby, attorneys, and William Fullerton, of counsel, for appellant, among other things, urged:
    I. “If there is a stipulation that the habits of an applicant are sober and temperate, it is sufficient to avoid the policy for the defendants to show that his habits were intemperate, and it is no answer to this plea to prove the intemperance not to have been such as to have injured the health of the insured, or to shorten his life” (Southcombe v. Merriman, 1 Cov. & Marsh. 286; Jeffries v. Franklin Ins. Co., 22 Wall. 47; Mut. Benefit L. Ins. Co. v. Holterhoff, 2 Cin. 379 ; Bunyan, 45). To prove the representations untrue as to his habits at the time of taking out the policy, it is only necessary to offer the petition of the plaintiff herself, in an action against her husband for a limited divorce, made under oath, and which contains the following allegations: “That ever Since the said marriage between the plaintiff and defendant, the said defendant has been addicted to the excessive use of intoxicating liquors, causing him to be very frequently in a drunken and irresponsible condition of mind. That such drunkenness has very much increased in frequency within the last two years.” This petition was sworn to on April 30, 1877. The plaintiff was married to her husband in 1865, and thó policy issued on September 10, 1874, nearly ten years thereafter. Although, in answer to the question “ Are your habits of life correct and temperate?” he answered “ Yes; drink at times,” yet the latter phrase does not, in any degree, qualify the answer “Yes.” The meaning of the whole answer is that while he drinks at times, “ Yet his habits of life are correct and temperate.” By the phrase “ drink at times,” he did not mean to convey to the company that he indulged in the use of intoxicating liquors to such an extent as to impair his health.
    II. The assured also alleged and promised that he did not then, and that he would not in the future, practice any pernicious habit that obviously tended to shorten life. This was a promissory warranty that was, as appears from the petition of the wife and from other testimony, broken, whereby the policy was made void (Bliss Life Ins. § 44; also p. 61; Angeli on Ins. § 150 ; Arnold on Ins. § 192). The statement of an intention to do a certain act in answer" to a question upon an application for a policy of fire insurance, is equivalent to an agreement to perform such act upon the happening of the event upon which it was contingent (Bilborough v. Metropolis Ins. Co., 5 Duer, 587 ; Fowler v. Ætna Ins. Co., 7 Wend. 270; Dunning v. Chenango Co. Mut. Ins. Co., 2 Den. 75; Stout v. Fire Ins. Co. of N. H., 12 Iowa, 371). The insurance company had an object in incorporating the provision in the policy of insurance, that the insured should not practice any pernicious habit which obviously tends to shorten life. That clause was meant to perform some office. It formed a part of the declaration of the applicant, and which declaration it was mutually agreed should form the basis of the contract of insurance. If, then, the declaration that the assured would not practice any such habit, was the basis of the contract of insurance, how can the contract stand if the basis is destroyed ?

      C. E. & D. B. Ogden, attorneys, and John E. Parsons, of counsel, among other things, urged:
    I. Answers to questions in the application are not to be extended beyond their fair meaning. The answer to the question, “Are your habits of life correct and temperate ?” was not unqualified. He did not answer simply Yes. The words “ drink at times ” qualified yes, or were unmeaning. ' And of that qualifying effect, the jury’were the judges (Edington v. Ætna Life Ins. Co., 13 Hun, 543 ; Swift v. Mass. Mutual, Life Ins. Co., 2 N. Y. Sup'm. Ct. 302 ; Higgins v. Phenix Mutual Life Ins. Co., Ct. App., May 21, 1875, 7 Ins. L. T. 788 ; Baker v. Home Life, Ins. Co., 64 N. Y. 648; Edington v. Mutual Life Ins. Co., 67 Id. 185 ; Pitch v. Am. Pop. Life Ins. Co., 58 Id. 557; Dilliber v. Home Life Ins. Co., 69 Id,. 656). “If a question is not answered, it is not a warranty that there is nothing to answer (Liberty Hall v. Ins. Co., 7 Gray, 261). Warranties in policies of insurance are strictly construed. They will not be extended to include anything not necessarily implied in their terms (Loud v. Insurance Co., 2 Gray, 221 ; Campbell v. Id., 98 Mass. 381 ; Hide v. Bruce, 3 Doug. 213; Fowkes v. M. & L. Life Ass. Assn., 3 Best & Smith, Q. B. 917).
    II. It was a question for the jury whether Leon Furniss’s habits tended obviously to the shortening of life, and there was an abundance of evidence on the part of the plaintiff to be submitted to the jury. The question of intemperance is eminently one for the jury (Rawlins v. Desborough, 2 Moody & Rob. 328; McGinley v. U. S. Life Ins. Co., Ct. App. [June, 1879], 8 Ins. Law, 3,538 ; Fox v. Ins. Co., 4 Dig. 458).
   By the Coubt.—Sedgwick, Ch. J.

On the trial, it appeared that the plaintiff intermarried, in 1865, with Leon Furniss, whose life was insured by the policy in action. The plaintiff, on April 30, 1877, swore that a certain petition made by her in an action against her husband, was true of her own knowledge, except such matters as were therein stated on information and belief, and that as to such matters, she believed the petition to be true. That petition contained the following assertions: “That ever since the said marriage of the plaintiff and defendant, the said defendant has been addicted to the excessive use of intoxicating liquors, causing him to be very frequently in a drunken and irresponsible condition of mind.” These assertions are at variance with the declarations made by the application of the plaintiff for the insurance ; for it is clear that the answer made by the husband to the questions in that regard contained in the application, means that he drank at times, in such quantity as still to leave him with correct and temperate habits of life. The application was made September 9, 1874.

The petition of the plaintiff, that has been referred to, was evidence in the case as to the habits of life of Furniss, at the time of the application. The declarations of the petition were an admission, which, when compared with the answers that have been given, clearly shows that the latter did not give the fact as to his habits. The plaintiff testified that the language of the petition was the language of the lawyer who drew it, but she did not assert that the facts were not truly described by that language.

This admission, nevertheless, the plaintiff was at liberty to explain or to show to have been incorrect by evidence sufficient for that purpose. There was no explanation of the petition. She did not testify what facts she communicated to her lawyer, nor that the petition did not allege the facts as she had said they were, nor that she did not understand the meaning of the language. She did not testify to any facts that would tend to show that the application was true rather than the petition, or that the petition was incorrect. I have looked carefully at the testimony of the other witnesses, to find if their testimony tended to show that the petition'was incorrect. A very small portion of the testimony refers to a time that embraces the date of the application, but that part is not inconsistent with the admission of the plaintiff made in her petition. The evidence on this point that was given by the witnesses who spoke as to the year 1874, was no doubt correct. • The facts they described would not have justified a position that the deceased’s habits of life was not correct or temperate in 1874. But such facts were not inconsistent with actual intemperance, not known to them, or with a knowledge by plaintiff of facts that she specified and implied in her petition. As there was nothing that contradicted plaintiff’s declaration, sworn to by her,' that ever since the marriage the deceased had been addicted to the “excessive use of intoxicating liquors, causing him to be very frequently in a drunken and irresponsible condition of mind,” and nothing that explained it, it must be held, that, like all other uncontradicted testimony, it required a disposition of the cause in accordance with it.

The plaintiff had not personally signed the application, but she had contracted with the company, that the contents of it were true. The policy runs, “In consideration of the statements and representations, or ° either of them, made and submitted to its officers, &c., and contained in the application for this policy (which application and all the statements and representations therein contained, &c., are hereby approved and adopted by the applicant, and are warranted to have been true when made, and are by the parties referred to, and made a part of this contract). By the application, it was affirmed and declared by the plaintiff, “the applicant above named,” that the answers are true and correct, and expressly stipulated and agreed that the “above application and this declaration” shall form the basis of the contract, and that if untrue answers have been made, the said policy shall become null and void.

For these reasons, I am of opinion that tire motion to direct a verdict for defendant should have been granted.

I am of opinion, that the disposition of the case in other respects was correct.

Judgment reversed, and new trial ordered, with costs of the appeal to the appellant to abide the event.

Speir and Russell, JJ., concurred.

       In Barteaux v. Phoenix M. L. Ins. Co. (67 N. Y. 595), it is held that a warranty in an insurance policy must be true, whether material or not.