63 N.Y. 77 | NY | 1875
Let it at first be conceded that there was, beyond room for rational dispute, an overvaluation of the property, that does not, per se, render a valued marine policy void. Where the transaction is bona fide the valuation agreed upon is binding, however largely in excess of the true value. (Barker v.Janson, L.R., 3 C.P., 303.) The excess in valuation, however great, is only evidence of fraud. (Id.) So, too, overvaluation is not conclusive evidence that the policy was with a view of gaming or wagering. (Coolidge v. Glo. Mar. Ins. Co.,
This proposition does not include any barratrous act of the master, but only his negligence. Nor does it involve the question of whether he was competent. It assumes that he was competent, but did not use the skill and experience which he possessed. It therefore presents the idea, that a shipper is responsible for the negligence and carelessness of a competent master. This cannot be, unless the master is to be deemed the agent or servant of the shipper, which will not be claimed. He is, of the owner of the ship, but not of the owner of the cargo. And as his affirmative act of wrong done against the shipper is covered by the insurance (Earl v. Rowcroft, 8 East, 126), so are his negligence and carelessness by which the shipper is injured. The underwriter is liable for losses by the perils insured against, though in consequence of the negligence of the insured himself, if it does not amount to gross negligence or willful misconduct. (Johnson v. Berk. Mut. F. Ins. Co., 4 Allen, 388.) How much more so, if in consequence of the negligence of the master, who is not the agent or servant of the shipper? (See 2 Phil. on Ins., §§ 1049, 1096.)
It took the grounds that the proofs preliminary to the admission of it were insufficient, and that the witness had refused to answer important and material questions put to him on his cross-examination before the officers. It may be conceded that the questions, or some of them, which obtained *87 no answer were proper and material, and that it was misconduct in the witness to refuse answer to them.
It may be taken as the rule, that where a party is deprived of the benefit of the cross-examination of a witness, by the act of the opposite party, or by the refusal to testify or other misconduct of the witness, or by any means, other than the act of God, the act of the party himself, or some cause to which he assented, that the testimony given on the examination-in-chief may not be read. (The People v. Cole,
The judgment must be affirmed.
All concur.
Judgment affirmed.