#### Stevens Voisin, Plaintiff, *v.*The Commercial Mutual Insurance Company, Defendant.

(Supreme Court, New York Special Term,

August, 1900.)

Marine insurance — Innocent consignee not prejudiced by a conspiracy ,of the consignors and master to defraud the insurers — Measure of damages — Incorrect charge — New trial.

The right of a consignee of certain ocean freight, who is also assignee for value of bills of lading covering other parts of the same cargo, to recover upon a valued policy of marine insurance insuring bis interest, is not affected by a conspiracy between the master of the vessel and the. consignors, in which he did not participate, pursuant to which the cargo was grossly misstated and overvalued in the bills *394of lading and the vessel afterwards intentionally abandoned at sea with intent to defraud the insurers of the cargo.

The consignee may recover, upon the 'basis of the goods actually shipped, in such ratio as the goods, upon which he had made advances to the consignors or assumed liability for them, bear to all the goods shipped.

Where however he sues only one of several insurers of the cargo, and its value is shown only approximately, and the court charges the jury that the consignee is entitled to recover all the insurance or none, a judgment in his favor for the full face of the policy must be set aside.

The court will not, upon the insurer’s motion for a new trial, determine the value of the cargo, nor will it fix an amount which it will compel the consignee to take or suffer a new trial.

Motion for a new trial, and to set aside the verdict for plaintiff in an action upon a marine policy of insurance.

William Mitchell, for plaintiff.

Evarts, Choate *&*Beaman (Treadwell Cleveland and Herbert J. Bickford, of counsel), for defendant.

Russell, J.

This motion for a new trial, and to set aside the verdict for plaintiff in an action upon a marine policy on a cargo of merchandise shipped from Vera Cruz and Tecolutla, Mexico, is the sixth motion of the kind after trials in actions upon similar policies against this and other companies, there having been six trials and four reversals of judgments. by the General Term or the Appellate Division; and the inquiry here is, whether the present verdict shall meet a similar fate, or prove to be so far the sole exception.

The defenses to the policy are conspiracy and fraud on the part of the master, William Brooks, and Antonio Hoffman, of Mexico, of the firm of Hoffman Hermanos, to wreck and destroy the vessel and cargo for the purpose of defrauding the insurers, unseaworthiness of the vessel, and unjustifiable deviation at Tecolutla by unnecessary detention and prolonged exposure to the brackish and worm-infected waters of the Gulf of Mexico.

The defense of conspiracy and fraud is the only one necessary to be considered on this motion, as the evidence as to ordinary seaworthiness and the causes for detention at Tecolutla, considering those defenses separately from the more serious one, was suffi*395cient for the jury to justify a verdict for the plaintiff within the rules confiding to the discretion of a jury the conclusions to be drawn as to facts to be ascertained by conflicting testimony and inferences. The graver question of fraud presents more difficulty in its solution, partly in reaching an answer the inquiry as to whether the ascertained facts should have compelled an affirmative response to the question as to whether Hoffman was a participating party in the fraud against the insurance companies, and partly because the case was tried and submitted to the jury by the court upon the erroneous theory that such participation upon the part of Hoffman bound his consignees in New York, so that the plaintiff could not recover upon policies of insurance taken by. him, and could not separate and stand upon his interest as a *bona fide*assignee of the bills of lading, and consignee of one of those bills of lading, to the extent of his actual advances and liabilities for the consignor, and so recover in this case a proportionate amount of those advances in comparison with the total insurance, or at least to the extent of the proportionate value of the goods actually shipped, the evidence for the defense tending to show that only forty or fifty per cent, of the goods stated in the fraudulent bills of lading were actually placed on board the ship freighted.

The bark selected at Vera Cruz to carry the cargo was the sailing vessel *L. E.*Cann, which arrived at Vera Cruz in January, 1882, after a voyage from Cardiff, Wales. After discharging cargo at Vera Cruz, the master, William Brooks, looked around for a freight cargo to New York or elsewhere, and was brought in contact with Antonio Granes, brother-in-law of Malpica, who did the lightering of Hoffman’s cargo from the shore to the vessel. He was also brought in contact with Campos, the brother-in-law of Hoffman. The result of this intimacy was an agreement by which Brooks was to wreck the vessel at some place in the Gulf of Mexico or the Atlantic ocean, between the last port of departure in Mexico and the city of New York, and was to receive therefor the sum of $6,500, which was paid to him in installments. On the 24th of January, 1882, three of the bills of lading were made out, and signed by Brooks, of zinc, brass, bones and rags in one bill of lading, rice root in a second, and duck feathers, goat skins and coffee in a third. In the first bill of lading it was stated that the merchandise was insured on policies *396of the consignees for $7,500; in the second by policy of the consignee for $8,000, and in the third in consignee’s policy for $14,000. The two bills of lading first mentioned were to L. Contanseau, arid by him on the 13th of February, 1882, assigned to the plaintiff Voisin. The third ran to the plaintiff, who had been for some period before the person to whom Hoffman Hermanos consigned goods, for presumably purposes of sale in the city of New York. It will be thus noticed that the consignments to Contanseau were insured for only $1,500 more than the consignments to the plaintiff. The consideration of the transfer of the bills of lading from Contanseau to Voisin appears to be the assumption of certain liabilities of Hoffman Hermanos to Contanseau, the payments of Voisin for Hoffman Hermanos to Contanseau, including the liabilities assumed, amounting to about two-thirds of the alleged value of the cargo, which was $29,500, as valued in the policies. It will also be observed that the policies of insurance had not actually been taken out at the time the bills of lading were delivered or assigned, although so stated therein, but were taken after the vessel had received the Vera Cruz cargo referred to in the bills of lading, and after she had encountered such perils of the sea as were incident to the week’s voyage from Vera Cruz to Tecolutla, and had remained in the harbor of Tecolutla over one month, the date of the issuing of the policies being March 10, 1882.

According, to the testimony of the master, Brooks, only from forty to fifty per cent, of the assumed cargo was actually placed on board. The evidence is very meagre as to the actual extent or value of the cargo shipped at Vera Cruz. Nor is this deficiency of evidence remedied by the books of Hoffman Hermanos, they refusing to exhibit their books to the representative of the insurance companies a few months after the wrecking of the vessel. In the latter part of January, 1882, the *L. E. Cann*sailed for Tecolutla, about 50 miles away, occupying about a week in this voyage, where she remained until about the 30th of March, 1882, excuse being made for the detention that her clearance papers were not right and that with a small cargo taken on board at Tecolutla the lighterage over the bar at that hamlet was imperfect. Two hundred bags of sand were thrown overboard at Tecolutla and still the vessel sailed too light for a voyage to New York. April twenty-seventh she became unfit to carry human *397lives farther, at a point about 180 miles east of Charleston, was abandoned, the crew taking to two boats and rowing to a vessel which was then in sight. About a month afterwards the *L. E. Cann*was found floating derelict about 150 miles east of Norfolk, Va., so heavily laden with water that a few more tons would have sunk her and with nineteen auger holes in her bottom. She was taken by a salvage company to Norfolk and the cargo^ taken out, a record being made of the articles found, which record showed a great difference between the amounts of goods found in the vessel and those stated in the bills of lading, which could not be satisfactorily accounted for by loss from the buffeting of the waves or washing overboard, especially as to the heavier packages of metals which were packed near the skin of the vessel. Many of the packages had to be opened, showing they were intact, and an average may be so taken of the weights to see how the amounts Accorded with the weights of the packages in the bills of lading. It will be remembered that the conspirators did not expect the sea to allow the proof of what the vessel contained, but contemplated , that it would hide the traces of their crime either of the auger holes or the quality or deficiency of the merchandise. Only about one-half of the packages of zinc was found, and those weighed intact only about one-half of the weights of the various packages stated in the bills of lading. Less than ope-fourth of the brass packages were found and those weighed only about one-quarter of the amounts stated in the bills of lading. But little more than half the amount of rags and one-seventh of the bones, one-third of the rice root and one-fifth of the coffee was found in the vessel at Norfolk. Out of 865 bags of coffee contained in the bills of lading with those shipped by Granes only 80 bags of coffee were found, but there were discovered at Norfolk 239 bags of corn, packed like coffee, and 186 bags of dirt, 37 of the bags of corn being marked S. V., the initials of the plaintiff. No corn was mentioned in any of the bills of lading. Counsel for the plaintiff strongly urges, that, if the bills of lading are not common-law evidence of the amounts and kinds of goods shipped, they are not evidence from which a comparison with the amounts found may be drawn. The court admitted the bills of lading, after proof had been taken to sustain the charges of conspiracy and fraud, as evidence of the good faith of the consignors, the element of intent being very material. These bills of lading are instru *398ments proffered by the plaintiff as the foundation of his right to' recover, and as the statement of himself and the consignors of what the vessel contained. It is certainly very proper for the defendant to show the falsity of those bills of lading upon the issue of fraud.

Were Hoffman Brothers the plaintiffs in an action to recover upon a policy of insurance on a cargo insured in New York against legitimate perils of the sea, even including the barratry of the master committed against the interest of the freighters, and they produced, to rebut the inferences to be drawn from the facts proven here, no satisfactory evidence of good faith, honest shipment, willingness to produce books showing their purchases of the articles freighted and their shipment,— books which could not be compelled to be produced in the distant and foreign Republic of Mexico,— they or their consignee being the only persons, so far as the evidence displays, who had an interest in hiring the master to wreck the vessel to. defraud the insurers, I should have little hesitation in setting aside a verdict which asserted that either the shipment or the insurance was honest. They chose a sailing vessel, already impaired by worms and liable to further depreciation of security for want of sheathing protection, to transport to New York merchandise which was valuable, if genuinely described, and part of which was perishable, instead of one of the regular line of steamers plying between Vera Cruz and New York; a slow voyage was made to Tecolutla and a long detention had' there for reasons not sufficiently explained; this vessel was doomed,, before the bills of lading were given or she sailed from Vera Cruz,, to destruction at sea by an evil conspiracy between the master and some one interested in obtaining insurance money upon the cargo; they refrained from personal participation in the delivery at the wharf at Vera Cruz of the cargo they shipped, but selected some broker, whose name they cannot, give and whom research cannot find, for a cargo alleged to be of large value; and when soon confronted with the indubitable fact that a great crime had been committed, to the possible hazard of the lives of an innocent crew, and asked to show from their books by fair business.methods the record of the purchase and the shipment of the articles described in the bills of lading to obtain an honorable and satisfactory cash adjustment for insurances in which the witness Antonio Hoffman confesses they were at least interested to the extent of $10,000 aside *399from their obligations on the drafts accompanying the bills of lading, declined to give any evidence which it was in their power *to*produce, preferring to hazard their right of recovery upon the difficulty of the insurance companies obtaining proof, and acted throughout the whole transaction from the initial steps to the close by methods not usual to honest commercial men, and in a manner calculated to produce inferences, not only of their consciousness that there was something to conceal, but of their guarded participation in the inception and consummation of the fraud. The plea that Antonio Hoffman’s sworn declaration that he acted in good faith rebuts the evidence of the circumstances sufficiently to sustain the verdict of a jury is hardly justified. With the crime then recent and the insurance agent seeking information, and the natural desire which every honest business man would have to clear his skirts as well as to speedily obtain his insurance, Antonio Hoffman is asked in substance, *“*Where are your books and your bills showing the purchases, payments, the storing account, carting, weighing, lightering of these'goods, and as you personally did not ship them, where is the broker who did this work for you and to whom you intrusted this property you aver to have been of great value? ” It will hardly serve as a satisfactory answer to quote his general averment, *“*I acted *bona fide.”*In the mass of testimony taken in this case during this long trial who is it that appears by evidence and not hearsay to be the gainers by the fraud except Hoffman Hermanos and William Brooks?

The evidence in this case, and the strong presumptions, required Hoffman Hermanos, by fairly satisfactory proof, to separate themselves from the conspiracy. Wylde v. Northern R. R. Co., 53 N. Y. 156; Ramsay v. Ryerson, 24 Abb. N. C. 114.

And where a conspiracy is established by *prima facie*evidence, the acts and declarations of each conspirator in furtherance of the scheme are admissible. Cuyler v. McCartney, 40 N. Y. 221; N. Y. Guaranty & Indemnity Co. v. Gleason, 78 id. 503. See also collection of authorities, Place v. Minster, 65 id. 89.

These acts and declarations, in consummating the contemplated result, which was the receipt of money, until that result is reached, are material. Starkie Ev. 401, 403; American Fur Co. v. United States, 2 Pet. 344, 345; Page v. Parker, 40 N. H. 47-62.

It is strongly urged by the counsel for the plaintiff that all of the proof to connect Antonio Hoffman or Hoffman Hermanos *400with the fraud is that which is commonly called circumstantial evidence, and is, therefore, weaker than direct or positive proof. The term “ circumstantial evidence ” is merely a name for the application of reason to facts. It is convincing when the different circumstances point to a single conclusion. It may be much more satisfactory .than the fallible memories of any half dozen witnesses. It is the only kind of testimony which may bring to light the complicity of a principal who necessarily acts through agents, and hides himself from contact with those who execute the crime.

This verdict would be set aside even in an action where Voisin, the consignee and the assignee of the bills of lading, is the plaintiff, were the rule of law adopted by the court upon the trial, and upon which the case was submitted to the jury, still to. be accepted as correct. The case was presented to the jury upon the question as to whether Hoffman was a party to the fraud, and by their specific verdict they answered he was not. It was under the same direction of law that their general verdict was rendered in favor of the plaintiff for $7,132.99, the amount of the policy and interest.

This rule was adopted by the trial justice because he believed it had been so far settled in these litigations that it was not left open for him to rule otherwise. In all of the previous trials, the courts have assumed that Voisin did not insure his interest as consignee, assignee or factor against the fraud of the consignors or principals Hoffman Hermanos in forwarding him a cargo shipped purposely for destruction, and that, as against the innocence of an insurance company ignorant of such felonious scheme, he should be rather the one to be charged with a loss produced by the evil designs of his associates. The initial decision of the late General Term in this case has served as a guide for the acceptance of this principle by the trial courts. The judgment for the plaintiff Voisin was reversed by the General Term, Daniels, J., writing the opinion, and, although the reversal was upon errors committed in the reception of evidence, one of the main grounds would have seemed futile had not the court accepted as an understood proposition of law the principle that Voisin could not. recover if Hermanos Brothers could not. Ho allusion was made to the possible right of Voisin to recover in part, and the reception of testimony given by Malpica, the lighterman of Hoffman, and by Antonio Hoffman, on the issue of conspiracy and fraud as to the goods *401shipped on. the *L. E. Cann,*of which they did not have personal knowledge, was held erroneous, Judge Daniels saying, “ This evidence affected a material part of the case, that which depended upon the existence of a fraud in the lading of the cargo upon the bark.” Voisin v. Commercial M. Ins. Co., 62 Hun, 12.

The Appellate Division, however, has recently in one of these oases met this question in a direct manner, and held that Voisin can recover from the insurance companies to the extent of his advances, or at least to the value of the goods actually shipped, in the absence of direct or presumptive proof that he participated in the fraud. Voisin v. Providence-Washington Ins. Co., 51 App. Div. 553. The motion for a reargument was also denied.

Thus has been established in this case the conclusion that the trial courts have previously erred in assuming the defendant had a right to an absolute verdict, if the jury found that the consignors, Hermanos Brothers, were participants in the fraud by which the vessel was wrecked. Has not then the plaintiff here the right to retain his verdict for the full amount of the policy, the jury finding that Hermanos Brothers were not parties to this fraud, and has the defendant the right to complain because the case was presented to the jury in a more favorable way than defendant was entitled to under the law as now ascertained? Theoretically, perhaps, the plaintiff’s position is the more consistent with logical reasoning in the application of rules of law to trials in courts of justice. Logically, it seems an anomaly to overturn a verdict which has been rendered in favor of plaintiff who had to sustain the burden of a harsher rule of law, as applied against his cause, than' should have been imposed upon him. Practically, the acceptance of this rule by the jury may have operated in plaintiff’s favor.

Neither party should suffer by the error of the court. It is a burden to spend a week or ten days more in the retrial of this case, but it is a heavier burden, as it is a wrong, to suffer a verdict to stand without farther investigation where it is highly probable the misconceptions the jury innocently or sympathetically made prevented substantial justice, and caused a more severe verdict than would have been the case if the jury had been rightly guided by the court in which they had the right to have the utmost confidence. As the case was submitted to the jurors they were required to say that an innocent consignee and holder of bills of lading, who had insured the goods covered, must either recover *402the whole of the insurance or nothing, and could not he permitted to receive the insurance indemnity up to the extent of his pecuniary interest in the actual cargo. Out of this view was horn a great temptation to protect one who was apparently innocent in fact, even to the extent of swaying the reason, and coloring the judgment with a sympathetic tinge of what might seem to those jurors as practical justice. That they would have found otherwise maybe inferred from the strength of defendant’s case upon the facts, and from the verdicts of four successive juries in favor of the insurance companies upon the facts at issue here. Such verdicts are of weight in the consideration of a later motion for a new trial. 2 Rumsey Pr. 417. And, assuming there was fraud on the part of Hoffman Hermanos, as the facts indicate to the court should be the determination of any tribunal upon the evidence as presented upon this trial, no recovery may be had by Voisin beyond the extent of his advances, distributing those recoveries ratably amongst the insurance companies. Nor can he, in the case of such fraud, or such a gross overvaluation as creates a gambling policy, or in case such a mutual mistake of his own and the insurance companies as to the value of the cargo shipped that the one would presumably have not applied for or the others granted insurance to any such amounts, recover ten or fifteen thousand dollars in excess of his own protection, which excess would go into fraudulent pockets, achieve the full result of the conspiracy, and turn a wholesome insurance into an agreement to pay for crime. It is clearly manifest, by the opinion of Justice Ingraham in the Providence-Washington case before cited, that the limit of recovery should not pass beyond the value of the cargo, comparing the total insurance with that value as found. It is impracticable for the court to ascertain that value upon a motion of this kind for exact partition of interest between the plaintiff and Hoffman Hermanos, as the valuation of the actual cargo upon the trial was simply approximate for the purpose of the issue of fraud, the estimate of the master, Brooks, even if his testimony could be relied upon, being only a general and nowise particular estimate, and it being essential to provide a closer investigation where the amount of recovery is based upon the exact value of the cargo. In this sense, therefore, also there was a mistrial, for the important fact of valuation was regarded simply as an incidental circumstance, and in no sense as the measure of recovery.

*403There is ample authority for allowing' the considerations adverted to due weight in determining whether, under all of the circumstances attending the trial and the announcement by the Appellate Division of the rule of law which should govern, for the purposes of substantial justice, a new trial should not be awarded. Barrett v. Third Ave. R. R. Co., 45 N. Y. 628, 632; Young v. Stone, 77 Hun, 395. And see the review of the cases referred to by Justice Martin in his opinion. Lund v. Spencer, 42 App. Div. 543.

The order asked for is not to give to one party or the other final judgment which takes or withholds the amount in controversy, but to give to both parties a fair opportunity in the light of the law as settled to have a jury say what that judgment shall be.

Nor can the court, in view of the doubtful evidence of value of the cargo, fix an amount which it may compel the plaintiff to take or suffer a new trial- The only effective way of fairly determining the controversy is to throw all the questions of fact open to the scrutiny of the jury and the farther review of the courts. New trial awarded upon payment of the trial fee and trial disbursements.

New trial ordered upon payment of trial fee and trial disbursements.