Louisville Ins. Co. v. Monarch

• Decision Date: 24 June 1896
• Citation: 36 S.W. 563,99 Ky. 578
• Parties: LOUISVILLE INS. CO. v. MONARCH et al.
• Court: Kentucky Court of Appeals

36 S.W. 563

99 Ky. 578

LOUISVILLE INS. CO. v. MONARCH et al.

Court of Appeals of Kentucky.

June 24, 1896

Appeal from circuit court, Daviess county.

"To be officially reported."

Action by R. Monarch and one Cate, co-partners as Monarch & Cate against the Louisville Insurance Company, to recover upon a policy of marine insurance. There was judgment for plaintiffs, and defendant appeals. Modified.

Barnett Miller & Barnett, C. S. Walker, and Walter Evans, for appellants.

Fairleigh & Straus, Eli H. Brown, and Wilfred Carrico, for appellees.

PAYNTER J.

Monarch & Cate owned certain woolen-mill machinery, wool, and other goods, and desired to transport it from Rumsey, Ky. on Green river, to Owensboro, on the Ohio river. Their purpose was to ship it by water, and to do so it would have to be placed upon a boat, carried down Green river to its mouth, thence up the Ohio river to Owensboro. On the 5th day of March, 1892 the Louisville Insurance Company issued to them on the property a marine insurance policy to the amount of $5,000. The adventures and perils which the company agreed to bear and take upon itself were the "unavoidable dangers of the *** rivers." The property was valued at $15,000, and here it may be added that that amount is the conceded value of it. The steamboat George Strecker, under a contract which Monarch & Cate made with her owner, Capt. Crammond, was to carry the property from Rumsey to Owensboro. The policy covered the property during the voyage. The property was received on board of the boat. On the morning of the 8th day of March, 1892, the boat started on the voyage, and at a point between 10 and 11 miles below Rumsey she sank in the middle of the river, where the water was 40 feet deep, entirely submerging her, except the chimneys and the top of the pilot house. After her peril was discovered by the crew, she sank so rapidly that it was impossible to get her to the shore. There was a rise in the river soon after she sank, and she remained submerged for several months. This action was brought by Monarch & Cate to recover of the company the amount of the policy because of the alleged total loss of the property. The answer denies that there was a total loss of the property; that the sinking of the boat was a peril against which it insured; that there was an abandonment of the property or any part of it. The company alleged the loss was occasioned by the willful, fraudulent, and gross misconduct, negligence, and carelessness of the owners, officers, agents, servants, and seamen in charge of the boat. There are other matters pleaded in the answer, which at this point are not necessary to mention. The trial resulted in a judgment for the plaintiff for $5,000.

Many errors, the appellant claims, were committed on the trial of the case, which entitled it to a reversal and a new trial. We will consider some of the questions thus raised, somewhat in the order in which counsel discuss them in their briefs. Immediately or soon after the boat sank, the company was notified of it. It sent its agent, Capt. Harpham, to the wreck, to see its condition, with the view of recovering the property under the "sue and labor" clause of the policy, which fixed the proportion of expense that should be borne respectively by the insured and company. It is insisted that the court erred in permitting Cate to tell upon his redirect examination what Harpham had said to him about the wreck after he had left it. Harpham was sent by the company to act for it in an effort to recover the property. Cate's redirect examination related to what Harpham said as to the meaning of the policy as to the expense of recovering the property, and the interest each party would have in such as was recovered. While what Harpham said as to the meaning of the policy was immaterial, as both parties conceded their rights were to be determined by its provisions, yet the court told the jury, substantially, that if plaintiffs were entitled to recover at all, they were entitled to recover the full amount, $5,000; and also that the company was not entitled to be allowed the expense it incurred before it determined to deny its liability for the loss and abandoned its purpose to recover the property. In view of the conclusions of the court, the evidence of Cate in his redirect examination could not have, and did not, prejudice the rights of the company.

It is complained that the court erred in permitting Monarch to tell, when recalled, what Capt. Harpham had said to Shallcross. Shallcross was the agent of the company. He was in its office, looking after its affairs; talked with Monarch about the settlement of the claim; directed the movements of Harpham in his preparations to recover the property; ordered Harpham to discontinue his preparations to recover the property, looking after the payment of the expense Harpham had incurred; he appeared in court, aiding in this case; made an affidavit for a continuance, and verified pleadings therein. There is no proof in the record showing he was an agent with limited powers. Under these circumstances it fully appeared that he was authorized to speak for the company in the adjustment of the claim in controversy. If he chose to tell Monarch, in a conversation about the settlement of the claim, that he had certain information from another agent of the company, it was not error to permit Monarch to prove the entire conversation which they had. Besides, if Shallcross was the agent of the company without limited powers, as he appears to have been, then this testimony was competent, as tending to prove that Harpham was authorized by the company to adjust the loss with Cate. There was an investigation made in the office of hull inspectors at Evansville, Ind., as to the facts attending the disaster. The testimony of certain witnesses was taken, and reduced to writing. The defendant offered as evidence the so-called duplicates of this evidence. Monarch and Cate were no parties to that proceeding, and were not even present when it took place. A mere statement of the facts shows that the court did not err in refusing to admit them as evidence. Capt. Crammond testified that the boat had a sufficient number of officers and men to make the trip. It was proper to admit this, because it appears that the boat was to make the trip in daylight, and that, therefore, an additional crew was not needed. This testimony would tend to rebut any presumption that might be indulged that the boat was unseaworthy, because the crew was not equal to the number required by the certificate of inspection and license. It could not be said that the company could defeat a recovery when there was a sufficient crew on the boat to properly handle her, although not the number designated in the license; especially when there is no evidence even tending to prove that the sinking of the boat resulted from an insufficient crew. It was likewise proper to allow Crammond to testify that the boat might strike an obstruction, and the contact not be perceivable to those on board. His experience as steamboat man enabled him to have a knowledge of such matters. This testimony was relevant because the effort was being made by the company to show or to create a presumption that she was unseaworthy because of the defective condition of the hull. The answer charges that the boat was sunk because of the willful and fraudulent misconduct of the owners and officers, etc., of the boat. Crammond was allowed to testify that the boat was not insured, and that she was worth $5,000. This evidence was properly admitted to show the owners and officers could have no desire or motive to destroy the boat. If this evidence was not relevant, it was not misleading to the jury, and we cannot, from any point of view see how it was prejudicial to the rights of the company. Testimony may be entirely irrelevant, and yet not prejudicial to the rights of the party objecting thereto.

It is insisted that the court erred in permitting the plaintiff James Cate to be recalled, and to testify for himself in chief, after having introduced the other testimony for himself in chief. Subd. 4, § 606, Civ. Code, provides that "no person shall testify for himself in chief in an ordinary action, after introducing other testimony for himself in chief." This court, in several cases, has held that, when a party has introduced other testimony for himself in chief, he should not be permitted to testify for himself in chief. We adhere to that rule. The question presented in those cases are not involved here. Cate had testified for himself in chief, before he introduced other testimony for himself in chief. After such testimony had been introduced, he was recalled as a witness to prove facts which, if competent, could have been testified to by him in chief. After a party has testified for himself in chief, the fact that he may have introduced other testimony in chief does not bar his right to be recalled to testify to such facts as are pertinent to the issues. His right to do so is in the sound discretion of the court. It is within the control of the court, as it is as to the testimony of any other witness who may have testified, except, if it was manifest the party had purposely withheld certain testimony while he was testifying for himself in chief, with a view of being recalled, after he had introduced other testimony in chief, to give additional testimony in chief, the court would not abuse its discretion in refusing to allow his to so testify. In this...