Howard v. City Fire Insurance

By the Court, Jewett, J. It is a familiar rule that the credit of a witness may be impeached, either by a cross-examination, by general evidence affecting his character, or by proof that -he has before done or said that which is inconsistent with his testimony on the trial. The fact inquired of by the question objected to, in the case of the witness Howard, was not in the least connected with the subject of the inquiry in the suit. It was purely collateral. Whatever therefore the answer of the witness might have been, it would have been conclusive. No [507] evidence would have been admissible to contradict it. But, for the purpose of affecting the credit of the witness, I think the question was proper, and that the objection was rightly overruled. (Stark. Ev. part 2, 134, § 22, p. 145, § 28.) The value of the plaintiff’s stock of goods at the time of the fire was a question directly in issue; and to ascertain that, the amount of his stock at different and given periods, and the purchases and sales made by him during those periods had been inquired about and evidence had been given upon that subject. The witness Howard had testified that the value of the plaintiff’s goods at the time of the fire was upwards of forty-five thousand dollars, and had given evidence as to the amount and value at previous periods. Other witnesses having greater or less means of knowledge on the subject, testified upon the question. In this state of the case, the defendants, in order to show facts from which the jury would be justified in the conclusion that the quantity and value had been greatly over-estimated by the plaintiff’s witnesses, called the witness West. His evidence was not direct and positive, as to the fact in question ; yet the facts and circumstances stated by him were such, that if the jury gave credit to their truth, a reasonable presumption or inference might well be founded upon them, that the quantity and value of the merchandize destroyed by the fire was much less than the evidence before given, tended to establish; and in my judgment, the evidence was competent and relevant for the consideration of the jury. It was not of the character of the evidence offered and rejected in The Phœnix Fire Ins. Co. v. Philip, (13 Wend. 81.) There the action was upon a policy of insurance on the stock of merchandise and materials of the plaintiff, a hair-worker. The amount insured was $12,000. The property was destroyed by fire, and the plaintiff claimed $11,099,56, and gave evidence tending to show that to be the amount of his loss. The defendant, to show that ' the value of the merchandise was over-estimated, proposed to prove the amount of stock of the largest dealer in hair in the city. It was there held, and rightly too, as I think, that the evi dence offered was too loose and unsatisfactory. It was the [508] mere opinion of the witness, that other dealers in the same articles had much less stock than the plaintiff claimed to have had. But I do not see that the principle decided in that case has any application to the question raised in this. The plaintiff on the trial proved that he had furnished to the defendants preliminary proofs required by the conditions of the policy of insurance, and an affidavit made by the plaintiff, with schedules annexed containing a particular account of his loss and damage in consequence of the fire. The defendants read to the jury such preliminary proofs, for the purpose of showing from the evidence in the case, that the plaintiff had forfeited all claim on the defendants by reason of some fraud or false swearing contained in the plaintiff’s preliminary proofs, pursuant to the last clause of said ninth section of the conditions. The charge upon the effect of that evidence, which was excep ted to, presents the only remaining question made by the bill of exceptions. The principle decided in the case of The Madison Co. Bank v. Gould, (5 Hill, 309,) I think is applicable, and must control this case. The preliminary proofs were furnished, to comply with a condition of the policy upon which his claim to- the insurance depended. Unless that condition was shown, prima facie, to have been performed, the plaintiff .would have failed to make out a presumptive right to recover. Having given that proof, the defendants had the right to show, if they could, that the plaintiff had been guilty of “ fraud or false swearing” in those papers, and if shown, it would, according to the condition, bar the plaintiff of all remedy against the defendants on the policy. To do that, it became necessary to read to the jury the affidavit of the plaintiff, in order to apply the contradictory evidence given. With that view of the question, the court below held that it was proper for the defendants to read the affidavit, and that it was not to be regarded by the jury as evidence in favor of the plaintiff of the facts asserted therein. • In this I think the court correctly decided. After the defendants gave evidence tending to impeach the facts con tained in the affidavit, the plaintiff had no right to the benefit [509] of the affidavit, as rebutting evidence of the facts thereby asserted, on the question of the falsity of the matters represented by it, or of the fraud imputed. The judgment must be affirmed Judgment affirmed.