Mallory v. Perkins — 22 N.Y. Super. Ct. 572

Majority

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Charles Mallory et al., Plaintiffs and Respondents, v. Richard F. Perkins et al., Defendants and Appellants.

Headnote

1. In order to exclude a question which calls for the opinion of a witness, for the reason that he has not been shown competent as an expert, such reason must be specified in the objection. A general objection is properly overruled.

2. Declarations or admissions in respect to the stowage of a cargo, made by a stevedore while employed by the owner of the cargo to stow it, are not admissible in evidence against the owner.

3. The testimony of a witness as to a matter of fact is not affected by proof that he was a public officer required by law to make a record of the facts in question; and that such record, as originally made by him, did not include a statement contained in his oral testimony. Hence, proof of the alteration of the record by subsequent insertion of such statement is inadmissible to contradict his oral testimony.

(Before Moncrief, Robertson and Monell, J. J.)

Heard, October 7;

decided, November 29, 1862.

This action was brought by Charles Mallory, Charles H. Mallory, David D. Mallory and George W. Mallory against Bichard E. Perkins and Charles Stem, to recover for freight for the transportation of some casks of wine and brandy on a voyage from San Eranciseo to New York. The defense was the loss of the contents of two of such casks of wine, by leakage produced by improper stowage, and not by dangers of the seas.

The cause was tried before Mr. Justice Woodruee and a Jury, on the 19th of December, 1861.

On the trial, the delivery of the casks shipped, to the defendants, was admitted, and before any proof was given of their good order or condition, a motion was made by the defendants to dismiss the complaint, because no such proof had been given. Evidence was subsequently introduced of their condition and the cause of the leakage.

The master of the vessel was examined as a witness for the plaintiffs. He testified, without objection, that the casks in question were “well and properly stowed,” and were “not disturbed, removed or displaced after they

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“were” so stowed; and that he had -been a shipmaster seven years, and sailed as mariner sixteen. He was cross-examined as to their mode of stowage, the weather on the voyage, and their mode of delivery. Several questions were also put to him on his cross-examination, as to his opinion in regard to different modes of stowage, and the proper one, in reference to which he said that the safety depended on the strength of the casks. He was then asked the following questions on his redirect examination: “ If wine casks are damaged in stowing them four deep, “ what would that indicate in reference to the quality of “the casks ?” and “ If casks take damage by so filling the “ ship, what does that indicate in reference to the fitness “or quality of the cask ?” These questions were objected to generally, but admitted under exception.

One of the defendants (Stern) being under examination as a witness on their behalf, was asked, what was said by him to the stevedore who was stowing them, in reference to the casks in question, at the time they were put on board; and by such stevedore to him ? and, also, in what manner he called the attention of such stevedore to such casks, and what he said to him ? all of which questions were excluded, under an exception.

The defendants’ counsel read in evidence a copy of a survey made by one of the wardens of the port of Hew York, (Hutchinson,) on such vessel, and reduced to writing, dated on the 18th of December, 1861. This stated, among other things, that, on the 20th of February, 1861, he “ sur- “ veyed the cargo on board-of this vessel, ground tier, and “ found stowage good and dunnage ample. * * * * “ Found Perkins & Stern’s cask near empty, by leaks at “ chimes, caused by being crushed on the bed, by pressure “ of cargo; same mark, one cask a little out, from same “ cause; this cask had settled so much on the bed, that “the board on which the bed rested had flattened the “ bilge; H. Y. one cask, part out, leaking at chime.” At the end of the copy survey were two lines, as follows: “ All the casks that were leaky were weak, and hoops

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“ slack and not sufficient to bear the pressure.” As to those two lines the production of the original entry was required.

Hutchinson, the warden who made the survey, was examined as a witness by the plaintiffs, and testified as to the condition of the casks in question, without the aid of the survey. After he had left the stand, he was recalled by the defendants’ counsel, and the original report of his survey shown to and identified by him, and he testified that the last two lines were written by him:, and his best impression was that he wrote them when he wrote and signed his report; and the entire report, including those two lines, was made by him, “ as one transaction, and “ without any intimation or dictation by any one.” Upon which the defendants* counsel read the original report.

The defendant, Stern, being recalled, the following question was put to him, and excluded: “Did you, after the “ delivery to you of these twenty-two casks, go to the port “ wardens’ office and examine their entries ?”

The defendant, Stern, testified that neither of the casks was weak or inferior. A cooper who cut up the empty one, testified that it was strong. The warden testified that they were insufficient. The master of the vessel testified that they must have been so to have been injured by the pressure. And another witness thought they looked in good condition when put on board.

The Judge charged the Jury, that if the damage to the casks was owing to want of proper strength in them to endure the ordinary pressure to which casks are subject on such a voyage, liable to encounter the gales which had been spoken of by the master of the vessel, as having been met with on the voyage, the plaintiffs were not responsible for the loss of the wine.

The Jury found a verdict for the plaintiffs for the full amount of the freight claimed by them, and judgment was entered thereon. An application was made for a new trial, at Special Term, which was denied; from the order

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denying which, as well as from the judgment, the present appeal is now taken.

James Eschwege, for defendants, appellants.

I. The Court erred in denying the motion made by the defendants to dismiss the' complaint.

II. The Court erred in admitting the conclusions of the master. 1. It does not appear that he is an expert. 2. The opinion which he gives is not based upon facts, but upon inference. 3. It was the exclusive province of the Jury to draw the conclusion from the alleged good stowage and established damage, and not of the witness, the sufficiency of the casks being the very point in issue. (1 Phillips on Ev., [1859,] p. 779, and cases cited, note 2; Id., pp. 781, 784; Taylor v. Monnot, 4 Duer, 121 : Ramadge v. Ryan, 9 Bing., 335.) 4. The witness did not state facts, but his inferences and conclusions drawn from such alleged good stowage and established damage to the casks, which was improper. (Best’s Prin. of Ev., 384, § 344; Paige v. Hazard, 5 Hill, 603 ; Morehouse v. Mathews, 2 Comst., 514; Dewitt v. Barley, 5 Seld., [9 N. Y. R.,] 371; Dickinson v. Barber, 9 Mass. R., 225 .)

III. The Court erred in excluding the declarations made by Cooty, the stevedore, to the defendant Stern, at the time the casks were being loaded on board the vessel.

Cooty was the agent of the plaintiffs for the purpose of receiving and stowing, as part of the general cargo, the casks in question.

And as such it came peculiarly within the scope of his authority to receive or reject casks as sufficiént or insufficient.

And the declarations of such agent, made within the scope of his authority, and part of the res gestee, bind the plaintiffs, and are admissible as evidence.

Such declarations are not hearsay, but original evidence, and should have been admitted. (1 Phil, on Ev., [1859,] p. 507; Dunlap’s Pal. on Agency, p. 273, note 1; Price v. Powell, 3.Comst., 322; American Fur Co. v. United States,

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2 Peters, 358; Perkins v. Burnet, 2 Root, 20 ; Mather v. Phelps, Id., 150 ; Miller v. South Car. Ins. Co., 2 McCord, 336 ; Campbell v. Williamson, 2 Bay, 237 ; Higgins v. Soloman, 2 Hall’s Sup. Ct. Rep., 482,. 487, 488; McCotter v. Hooker, 4 Seld., 497; Baring v. Clark, 19 Pick., 225 ; and see DeMott' v. Laraway, 14 Wend., 225 .)

IV. The Court erred-in excluding the offer to show that the book of the port wardens,-and which had been put in evidence, had been examined by Stern. Although a party cannot be allowed to impeach his own witnesses, he may nevertheless, prove on the merits, by independent testimony, the truth of any particular fact, in direct contradiction to the testimony of the witness. (Thompson v. Blanchard, 4 Comst., 303.)

V. .The verdict is clearly against the evidence.

I. T. Williams, for plaintiffs, respondents;—

Cited, as to the admissibility of the master’s opinion of the casks, Crowell v. Kirk, ( 3 Dev., 356 ,) Corlis v. Little, (1 Green, 232,) Ramadge v. Ryan, (9 Bing., 333,) Malton v. Nesbit, (1 C. & P., 70,) Jameson v. Drinkald, (12 Moore, 148, 157,) Davis v. Mason, ( 4 Pick., 156 , et seq.) And as to the admissibility of the. declarations of Cooty, the stevedore, Governor v. Barkley, (4 Hawkes, 20,) Healy v. Jacobs, (2 Car. & P., 616.)

The evidence of the condition of the casks in question being subsequently supplied; cured any error in refusing to dismiss the complaint for want of it. (Murray v. Judah, 6 Cow., 484 , 499.)

The objection to the inquiry made of the master of the vessel, of his . opinion of the quality of the damaged casks was also properly overruled, because no ground was specified for.it. Proof of the.probable strength of such casks, in- view of their stowage and condition after the voyage was admissible in the cause. If the witness was incompetent to give the testimony,, by not being established to he an expert, the objection should have been put on that

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ground; because the defect might have been remedied on the spot. (Doane v. Eddy, 16 Wend., 522 .) In many, if not all cases, the nature or ground of an objection to testimony should be stated. (Jackson v. Hobby, 20 Johns., 357 ; Elwood v. Deifendorf, 5 Barb., 398 ; Ohio Insurance Co. v. Edmonstone, 5 Miller, 295.) Parties have no right to lie by until ah appeal before disclosing the ground of their objection. (Ward v. Whitney, 8 N. Y. R., [4 Seld.,] 442; S. C., 3 Sandf., 399 ; Roberts v. Carter, 28 Barb., 462 ; Sheldon v. Wood, 2 Bosw., 267 ; Union Bank of Sandusky v. Torrey, 2 Abbotts’ Pr., 271, note.) Where evidence is conditionally admissible, parties should be held to have waived the compliance with the condition, where they do not state a non-compliance with it as a ground of objection. The right of objecting is not given with a view of laying a trap for an adversary, but enabling a party to exclude all but the best evidence, if it can be had.

This view renders it unnecessary to discuss the questions, whether the master of a vessel, who has had seven years’ experience, is a judge of the strength of casks, or whether the prior interrogation of him by the objecting party, in reference to similar matters, is an admission of his competency.

The conversation between the stevedore and one of the defendants (Stern) was also properly excluded; the stevedore may have been the owners’ agent to stow the cargo, but this would not give him authority to admit away his rights, even in regard to such stowage; and if it was intended to prove any notice of anything peculiar about the casks, which required more "care in their stowage, the question was not sufficiently pointed.

It is difficult to understand for what purpose the condition of the entries in the port wardens’ office, in relation to the cargo in question, was introduced. The defendant himself introduced a copy of the survey in evidence, reserving the right of producing the original as to the last two lines. He next attempted to prove by Hutchinson that those two lines were added after the survey

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was made out. I am at a loss to understand how the addition of such statement after a prior admission of it, affected the witnesses’ testimony. He did not testify by the survey, but independently of' it; his omission in making a memorandum, therefore, of a fact, would not shake his oral testimony of its occurrence, and still less would tend to disprove it.

The weight of testimony was against the ability of the casks to resist the pressure and straining, incident to. a voyage. The examining port warden and the master thought they were unable to do so. The defendant Stern, and the cooper, thought they were strong, but how strong did not appear, and another .witness thought that they looked in good condition when put on board.. The verdict of the Jury on that question ought not to be disturbed.

The judgment and order denying a new trial should be affirmed with costs.

Judgment accordingly.