The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1851-05-30
Supreme Court Report.

.
SUITS which, by consent OF parties, were rled TO-
gether before jury, three policies OF insur-
ance executed by the defendants in favor OF Para
disc, Lawrason & Co, con account OF whom it
may concern "-one by the Sun Office to the
amount Of $15 900 on freight Of the ship Russia
another by the New Orleans Office on said freight
to the amount Of $1,000; a third by the Nashville
Office the ship Russia to the amount of Sl2 900.
The perils taken upon themselves by the under
writers are among others, "barratry Except EN-
bezzlement or theft of the master, unless the in
sured be an owner OF the vessel" t
There was verdict for the plaintiffs in the court
below for the full amount of each policy. A new
trial was refused by the District Judge, and the de-
PENDANTS have appealed.
The ship and cargo were destroyed by fire after
the inceptions of the voyage. The principal ground
OF defence urged in argument is that the Russia was
harrAtEousy set on fire by the Captain, and 50 the
defendants are discharged, the policy excluding the
liability of the underwriters for barrairy of the mas
ter, if the insured be owner of the vessel. Much
of the argument was also directed to impeaching
the good faith of Knapp, the owner of the Russia.
Before noticing the merits of the cause. II is pro-
per to act upon certain bills of exceptions taken by
the defendants to the admission of evidence.
The first bill OF exceptions is to the competency
of Wilson, the Captain Of the ship, on the ground
of interest, inasmuch the defence rests on the
charge of barratry and deviation against the said
Russia, whereof the owner, Knapp, is party in
interest with the plaintiff herein"
The authorities upon which the defendants RELY
to support this bill are Starkie 652 Edit 1887,
citing Two decisions of Lord Kenyon in ! Esp.
339, and Esp. 27-l Greenl-af on Evd. 439-
Bos. & P. 374-13 Louis 2, g. Some other
cases are cited, which seem not sufficiently rele-
want to require particular notice.
The doctrine enunciated in Nicholson Us. Patton,
IL Louis, goes to this extent, that agent can
not be witness for his principal, in an action
brought against his principal on account Of the
negligence of the agent.
The case in ! Espnasse was an action to
cover the loss on policy Of insurance, on ship and
goods, at and from the Bahama Islands to Liver
pool. The loss charged to have occurred by
barratry of the Captain, for which risk the under.
writer was liable. The barratry alleged consisted
in taking the ship out of her 10 chase and
capture vessels, and afterwards to Bermuda. where
she was lost. The underwater, the defenda mt in
the cause, called the Captain as witness to prove
that tins was done by The consent and with the
knowledge of the owners. 1t was held that he was
incompetent without release from the underwr
ter, upon the ground that he was interested to de-
feat the plaintIf If the plaintiff obtained YER
dict, the defendant might have his action against
the Captain, the loss having arisen from barratry,
which was his act.
The case in Esp. we have not been able to
refer TO.
In the paragraph of Mr.. Greenleaf's work above
cited, he speaks, among other cases, of the incom
potency of ship-master, in an action by his own.
er against underwriters, where the question is,
whether there has been deviation; and says he is
Incompetent to give testimony, the direct legal ef-
fect OF which will be to place himself situation
OF entire security against subsequent action. He
cites the case OF DR.. S'monds Us LIE La Com.
Bos & Pul. The opinion Of Chief Justice Mans
held upon the point Is an obiter dictum.
1t seems to US that the question to be examined
IN testing the competency of Captain Wilson is
whether 1t be true that the success Of the plaintiff
who offered him witness, would place him in
a situation OF security against future action.
Now the question must necessarily be answered in
the negative. For although if the plaintiff sue
ceeds. he will have no action against the Captain,
yet the defendant would not be estopped by the
judgment in this cause, from proceeding against
the Captain, ami recovering from him full indem-
nifty for the amount paid under judgment to the
plaintiff upon proving that the Captain had barra-
trously destroyed the vessel. Whatever, therefore,
be the result of the cause, the door of litigation
against the Captain remains open.
There is another view of this matter which
seems to important and that is the necessity of
the case, where the loss occurs at sea. To whom
the assured resort for proof the circumstances
OF the vessels navigation and loss upon the ocean,
but to those on board of her who are his own en-
ployees And II we exclude the Captain,
cude the person of all others on board, who, by
reason Of his nautical skill, the control he exer-
cses, and the nature of his duties generally, is to
be supposed best capable of giving accurate infor-
nation upon the subject Of the voyage.
We may add, that under the usages of commerce,
the testimony of the Captain on the subject of the
loss in the form of protest, is uniformly required
from the owner by the underwater, preliminary
proof; and there seems an inconsistency in refusing
to have him afterwards on the witness stand.
We are, therefore, Of opinion that the District
Court did not err in permitting Wilson to testify
as witness for the plaintiffs. See also the opin-
ion, upon the same point, of the Supreme Court of
Ohio, in Howell Us Gin. ms. Co., Hammond 2S3.
We have considered this question Of competency,
with reference to the pecuniary interest of Wilson,
which is the sole light in which the matter is to be
regarded in acting upon the bill of exception. So
lar as his feelings and reputation concerned he
is unquestionaby interested in the success Of the
plaintiffs. cloud is cast upon his character,
which verdict for the plaintiffs might dissipate
But this consideration goes only to his credibty.
Ihe next bill OF exception is in these words :
- Be 1t known, that on the trial of this cause the
counsel for the plaintiffs asked several of the wit
nesses, whether they would believe oa.l Eliza
Harris, Josephine Chambers, and Margaret Ross,
witnesses for the defence. The counsel for defend
ants objected to the question, the ground that
the opinion of witness the credibility of
other was inadmssible that it allowed the witness
to usurp the functions of the jury that it was the
introduction Of collateral iss'ie rendering neces-
sary the summoning OF fresh array Of witnesses,
whose opinions might in turn be attacked and de-
Tended; that it was allowing vent in court Of jus.
tce, for feelings of personal spite and malice was
good order of judicial proceedings. But the Court
overruled the objection, allowing the question,
| etc."
1t will be observed that the bill of exception does
not show that the question was put without pre-
vious inquiry touching the general reputation O.
| the persons in question. Where these preliminary
| inquiries have been made we have no doubt that
the question we are considering may be put Il
| it not to be supposed that jurymen personally
acquainted with the character Of all the witnesses
that come before them; and when they callec
| to find out the truth, by means of the testimony
presented to them, it is indispensable for the pur
poses Of truth, that they ould know how far por
tious of that testimony are entitled to credence
The inconvenience suggested is serious one; bu
the exclusion Of necessary information from thu
jury, would be much greater evil.
The next bill of exceptions is in these words
"Be it known, that on the trial Of this cause, th
counsel for the plaintiffs offered in evidence th
testimony of Charles Redfeld, Jas taken under com
mission, and annexed to- and made part Of this bill
of exceptions, for the purpose Of attacking the tes
tmony, and impeaching the credibility, Of the wit
ness Dunlap, by showing that he had made to SAT-
Redfed statements Of the facts relating to the los
of the Russia, different from those by him made o.
) the trial; to the introduction Of which testimon
the counsel for defendant objected, on the groun
! that this mode Of attacking, and impeaching, tn
credibility of witness, was inadmissible unles
the witness thus attacked had been himself interrt
gated to the facts of his making such contradi'
tory statements, and an opportunity given him
accounting for the contradiction. But the obje
ton overruled, and he evidence admitted etc
fl We think the objection could have been su
tanned. See the Queens case, 2 Brod. u Bin
3l3. Greenleaf on Evid, S462.
Fletcher vs Hilcher, s Annual, 40S.
The fifth bill Of exceptions was taken to Il
admission in evidence of certain documents heir