Slocovich v. Orient Mut. Ins. Co.

• Decision Date: 17 January 1888
• Citation: 108 N.Y. 56,14 N.E. 802
• Parties: SLOCOVICH et al. v. ORIENT MUT. INS. CO.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 56

14 N.E. 802

SLOCOVICH et al.

v.ORIENT MUT. INS. CO.

Court of Appeals of New York.

January 17, 1888.

Action by George Slocovich and others against the Orient Mutual Insurance Company on a policy of marine insurance. Judgment was rendered for plaintiffs by the general term, and the defendant appeals.

ANDREWS and PECKHAM, JJ., dissenting.

Edward M. Shepard, for appellant.

Sidney Chubb, for respondents.

EARL, J.

This action was brought to recover on a policy of marine insurance issued by the defendant to insure a ‘port risk in the port of New York’ upon the ship Zorka. The policy was in favor of the plaintiffs, under their firm name of Slocovich & Company, ‘on account of whom it may concern;’ loss, if any, to be paid to them or order. The risks which, by the terms of the policy, the defendant assumed, were, among others, ‘perils of the seas, fires, and all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the said vessel, or any part thereof.’ The ship was valued in the policy at the sum of $16,000, and was insured for $11,000. It was alleged in the complaint that after the issuing of the policy, and on or about the fifth day of April, 1883, the Zorka, while lying at anchor in the port of New York, was burned and partially destroyed by the perils insured against. The answer admitted the making of the policy, and that on the day named the ship was burned and partially destroyed by fire, but denied that the plaintiffs had an insurable interest in her to the amount of $16,000; or, otherwise, that she was destroyed by perils insured against in the policy; and alleged by way of counter-claim that the valuation of $16,000 was excessive to the plaintiffs' knowledge; that the ship was in fact worth not more than $5,000; that she was by the plaintiffs valued at $16,000 fraudulently, and to defraud and induce the defendant to accept such valuation and execute the policy, and that the defendant, relying on the accuracy of such valuation, made and delivered the policy, and that she was burned and destroyed by fire by and through the act and negligence of the plaintiffs, and by and with their knowledge, procurement, and assent; and judgment was demanded for the defendant that the complaint be dismissed, that the policy be adjudged and decreed void and of no effect, and that the same be delivered to defendant for cancellation. To the counter-claim the plaintiffs served a reply, denying the allegations thereof. At the trial the issues of fact litigated were as to the insurable interest of the plaintiffs in the vessel; as to the cause of the fire,-the claim on the part of the defendant being that the ship was set on fire by the captain, at the instigation of, and in collusion with, the plaintiffs; and as to the value of the ship,-the claim of the defendant being that there was a fraudulent overvaluation. Upon these issues of fact there was sufficient evidence for the consideration of the jury; and their determination, having been satisfactory to and approved by the general term, concludes us. We deem it important now simply to notice a few of the principal errors relied upon for a reversal of the judgment.

1. As above stated, there was an issue upon the trial as to the value of the vessel at the time of her insurance, and of her destruction soon thereafter by fire, and several experts were called and testified upon both sides as to her value, who varied widely in their judgments. Among the witnesses called on the part of the defendant was Francis A. Martin, who testified that he was a marine surveyor; that he had been engaged in that business altogether 25 years; that he had followed the sea six or seven years, and had been in command of a vessel; that his business had led him to be familiar with the market values of vessels in the port of New York for 10 years; that in his regular business he had been called upon to value vessels, principally by adjusters of averages; that he knew the ship Zorka, and had been on board of her a good many times, but not within five or six years. He stated, in answer to a question, that he thought he was able, from his experience and personal knowledge, and the personal examination he had made of her, to form an opinion as to her value in 1883. He was then asked this question: ‘What, in your judgment, judging from your personal knowledge of the vessel gathered from your personal observation, and your knowledge of the ordinary results of wear and tear in ordinary use, was the market value in the port of New York of the ship Zorka in the month of April, 1883?’ This question was objected to by the plaintiffs, and excluded by the court, on the ground, as we must assume from the record, that the witness did not have sufficient knowledge of the vessel to testify as to her value at the time she was burned. It will be observed that the witness was asked for his judgment based solely upon his personal knowledge. It was for the trial judge to determine, in the first instance, whether the witness was competent as an expert to testify to the value of this vessel. He had not seen her for five or six years, and knew nothing about her condition at the time of her destruction. It did not appear what her condition was at the time he last saw her; and it appeared that, subsequently to that time, and after the year 1880, the plaintiffs had expended at least $7,000 in repairing her. Under such circumstances, we cannot say that the judge committed any error in excluding the testimony. If the evidence had been received it certainly would not have been entitled to very much weight with the jury. While it would not, we think, have been erroneous to receive and submit the evidence to the jury for what it was worth, we cannot say, as matter of law, that the judge exceeded the bounds of a reasonable discretion in holding that the witness was not qualified as an expert to give an opinion as to the value of the ship at the time she was burned. The rules determining the subjects upon which experts may testify, and prescribing the qualifications of experts, are matters of law; but whether a witness offered as an expert has those qualifications is generally a question of fact to be decided by the trial judge; and it has been held that his decision in reference thereto is not reviewable in an appellate court. Sarle v. Arnold, 7 R. I. 582;Dale v. Johnson, 50 N. H. 455;Jones v. Tucker, 41 N. H. 546;Wright v. Williams, 47 Vt. 222. Without going the full length of these cases, it is sufficient to hold here that the decision of the trial judge in such a matter should not be held to present an error of law, and on that account be reversed, unless it is against the evidence, or wholly or mainly without support in the facts which appear. Here, we think, it was a fair matter for the judgment of the trial judge whether this witness had the requisite knowledge and qualifications to give an opinion as an expert as to the value of this ship. And hence we think that judgment is not the subject of review here.

2. The plaintiff called one Boyesen as a witness and examined him as an expert as to the value of the vessel. He testified that he had been a ship-broker and a ship-owner in the city of New York for ten years past, and for five years before that in London; that in 1883 he knew the fair market value of ships in the port of New York; that during the last 15 years he had bought and sold over 200 ships and steam-boats; that he had seen the Zorka once, and knew her from report,-from the books, the American Lloyds, the Green Book, and the Record Book; that those books were published in reference to the standing of all ships, giving their descriptions, and are used by the underwriters and merchants; that he never made any personal examination of the Zorka, but that his knowledge...