Majority
p. 129Steinbach against The Columbian Insurance Company.
Headnote
A voyage from one port to another through an intermediate port, where the goods are to be relanded, and shipped to those of their ulterior destination, may be insured as a voyage from the' first to the second port, without mentioning the third.[1] Papers referred to by a witness in his depositions, may be produced on a trial to refresh his memory. Copies of papers referred to in depositions may be resorted to in order to their elucidation. After a witness has been examined on interrogatories, and cross-examined, and his depositions read, a new trial will not be granted, on a supplemental affidavit, stating mistake, or surprise. A new trial will not be granted, because of the discovery of new witnesses to the same fact; nor because a juror was challenged in the absence from court of the defendant’s counsel. Quoin, whether on a trial on a policy of insurance, it is not a good challenge to the favor, that one of the jury is an underwriter.This was an action on a policy of insurance, on the sbip Catharine, at and from Barcelona to Baltimore. The loss averred to be from arrest and detention by the Spanish ^government, at Barcelona, The depositions of a Mr. Benjamin M.Mumford, examined on the part of the defendants, and cross-examined by the plaintiff, were, on the trial, read by the plaintiff. Their contents led to establish a belief, that the voyage actually intended was direct to the Savanna, or some place in the-West Indies. They referred, however, to certain papers and documents, prepared by the deponent at Barcelona, shortly after the seizure of the Catharine, in order to obtain compensation from the Spanish government, and - in the captain of all these the voyage was described as for Baltimore, and from thence to the Savanna,[2] in order, as
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stated by tbe papers, to resbip at Baltimore, and avoid, by tbis circuitous mode, tbe danger of confiscation for going immediately from one belligerant port to another. These papers were lettered, and at the time of Mumford’s examination, shown to him, and be swore be believed them to be true copies of originals,-deposited in tbe archives of tbe consular office in Barcelona. In order to explain tbe manner in which tbe voyage to tbe Savanna was to be prosecuted, tbe plaintiff offered these copies, to which tbe counsel for tbe defendants objected, that as tbe depositions were now read by tbe plaintiff, Mumford was bis witness, and these papers being only copies, unautbenticated, and adduced with a view of discrediting bis testimony, could not be received. This being overruled, a verdict was brought in for the plaintiffl The present application was, to set it aside, and grant a new trial, on account of the admission of tbe above testimony, and on account of some other witnesses being since discovered, who could further testify to tbe facts deposed to. Tbe points made on tbe argument are fully stated in tbe opinion of tbe coun, which was delivered by
Several objections are made to the plaintiff’s right of recovering. 1. It is alleged that the voyage contemplated while tbe Catharine was at Barcelona, was different from tbe one insured, and that therefore tbe risk never commenced. The insurance being at and from Barcelona, it may admit of doubt whether, as the loss happened there, the defendants would not be liable, although a voyage from the Havanna were in contemplation. But on this point of law we give no opinion, because it is sufficiently proved that the * vessel was destined for Baltimore. Thus have the jury found, nor could their verdict have been different, without disregarding all the testimony in the cause. The defendants themselves are aware that this finding comported
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with the' evidence, and have accordingly directed theii principal attack against the testimony itself; for they say, 2. That Mumford was the plaintiff’s witness, and therefore could not be discredited by him. Whether this gentleman be regarded as the witness of the one or the other party, is not very material in deciding this cause; he had been examined out of court, at the instance of the defendants, and cross-examined by the plaintiff, who produced his deposition on the trial. Perhaps the best general rule in such cases, would be to consider the witness, if his deposition be read, as belonging to the party on whose application he was examined, without any regard to the person who may finally make use of it. But without deciding this point, we think nothing was done by the plaintiff to discredit Mumford, even if he bad been his witness. It is not every mistake which a witness may make, when speaking from memory, that will discredit him, and it would be a strange rule indeed, that a party producing a witness should not be permitted, even by the witness himself, to correct a mistake which he may have committed. Nothing more was done here; Mumford had sworn, that from certain papers, the destination of the cargo, according to his recollection, appeared to be for the Havanna,: after this, there could be no impropriety in showing him the papers to which he alluded, or any other to refresh his memory and to enable him to correct his error, if he had made one. This was no imputation on his character; it neither rendered him infamous nor unworthy of credit, as to the other point to which he had deposed; it discovered in the witness a laudable promptitude to rectify a mistake, into which an imperfect recollection had betrayed him, and thus added to, rather than detracted from, the weight of his testimony. 3. The exhibits B. and 0. being only copies, should not, it is said, have been produced. If nc allusion had been made to these papers, by Mumford, they could not have been produced to show the real object of tbis voyage; but he had already testified that he had made out certain claims against the Spanish government, *for the Catharine and her cargo, which stated the vessel to be bound directly for the West Indies : these papers, he added, were lodged in the Consulate office at Barcelona. Having sworn thus far from memory, the plaintiff had aright to refresh his recollection, by showing him copies of the claims referred to: on inspection, he might probably be able to determine whether they were true copies or not, and certainly if he believed them true, they would furnish better evidence of what the originals contained, than any parol account of their contents, which was the only way in which the defendants had attempted to prove them. There is no reason to say, the originals were in the plaintiff’s possession. They remained in a public office in Spain: and this kind of inferior proof was rendered proper by the defendants’ own conduct. They had not only examined the witness, as to the contents of these papers, but gave the plaintiff every reason to believe that nothing would be required of him but proof that the property was American. 4. The abandonment, it is said, was too late. The Catharine was seized in September, 1800, and not abandoned until fifteen months thereafter. It has already been decided by this court, in Earl v. Shaw, that an abandonment may be made at any time after the accident, provided, at the date of the abandonment, the loss still continues total. This being the case here, the abandonment was in season. 5. It is contended that Mr. Mumford was mistaken or.surprised on his cross examination, and that, therefore, a new trial should be had. For this purpose, his affidavit is produced, taken nine months after the trial, in which he states that the captions of the exhibits B. and C. were not shown to him, to the best of his knowledge and belief, and endeavors to explain why they were made as they appear, to wit, to prevent endangering the insurance. This explanation comes toe late; a witness under examination may explain and correct
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himself, but it will be dangerous and improper to receive any elucidation from him after the 'trial, and especially after the lapse of so many months': besides, the defendants were apprised of his deposition, long before the trial, and are without excuse for not calling on him then to make such explanations as might be deemed important. 6. But *there has been a discovery of new evidence, and for that reason there should be another trial. It is said that if a new trial be granted, there are two witnesses who were not known to the defendants at the time of the trial, who can testify as to the destination of the Catha-rine. This was the fact principally controverted on the former trial, and we are now applied to for another, merely because all the witnesses who knew something of the matter have not been examined.[1] Every one must perceive the inconvenience and delay which will arise from granting new trials upon the discovery of new testimony, or other witnesses to the same fact. It often happens that neither party knows all the persons who may be acquainted with some of the circumstances relating to the point in controversy; if a suggestion, then, of the present kind be listened to, a second, if not a third and a fourth, trial may always be had. There may be many persons yet unknown to the defendants who may be material witnesses .in this cause, and this may continue to be the case after a dozen trials. Cases may occur in which, if great doubts exist, as the
(a) (a) It is no ground for the court to grant a new trial, that a witness called to prove a certain fact, was rejected on a supposed ground of incompetenoy, where another witness who was called, established the same fact, and the defence proceeded on a collateral point on which the verdict turned. Edwards v. Evans, 3 East, 451, confirmed in Smith v. Brush and others, 8 Johns. Rep. 84 , where the court say, “it is against the general rule to grant a new trial, merely for the discovery of cumulative facts arid circumstances, relating to the same matter which was principally controverted upon the former trial." Though the fact be new, if it would have no influence in drawing a different conclusion,'on a point in evidence, a new trial will equally be refused. The King v. Teal and others, 11 East, 311: see Halsey v. Watson, 1 Caines’ Rep. 25 , n. (a.)
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first decision, it may be proper, on tbe discovery of further witnesses, even to tbe same fact, to open tbe cause for a second discussion; but this is not one of them. Tbe principal fact here was clearly proved, and if Lewis and Byrnes bad both been examined, it is very uncertain whether tbe result would not have been the same. 7. Tbe last reason assigned for a new trial is, that a juror was challenged, in tbe absence from court of tbe defendants’ counsel, and in consequence of such challenge did not serve. It appears that tbe defendants’ counsel was in court when tbe trial of tbe cause was moved for and brought on: if be afterwards left it, it was bis own fault. In contemplation of law, be was so far present, during tbe whole trial, that no motion by tbe adverse counsel, after be had once appeared, could be regarded as ex po.rte. He bad a right to make bis challenges to tbe jurors, without inquiring whether tbe other counsel was in court or in tbe ball. On tbe challenge itself it is unnecessary to decide ; it may well be doubted, however, if it were not a good one to the favor: underwriters can hardly be proper jurors, in cases in which persons pursuing tbe same business are parties. Jurors should be “ omni exc&ptione majores.” The ^judgment of tbe court is, that tbe defendants take nothing by their motion, and that tbe rule to show cause why there should not be a new trial, be discharged with costs.
New trial denied.
N. B. In another action on the freight of the same vessel, under the same facts, there was a demurrer to the evidence on which the question was raised, whether a' demurrer to evidence confesses all the facts which a jury might infer? But the court avoided a decision on this point, saying there was enough to warrant the verdict of the jury. Spencer, J, however, declared he considered the demurrer confessed every thing a jury might infer. That he founded his opinion on the case of Ooclcsedge and Fanshaw, in
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Doug. 119, and a similar decision in tbe Livingston causes, in our own court of errors.