Broadnax v. Cheraw & Salisbury R. R.

Opinion by Mb. Chief Justice Stebbett, This action of foreign attachment was brought on defendant company’s general average agreement of May 1, 1880, which has been sent up with the record. It is unnecessary to state the circumstances which led to the execution of that agreement, etc. They will be found in report of the case when it was here on writ of error in 1885: 309 Pa. 432. On the last trial, the agreement given in evidence was followed by satisfactory proof of the adjustment and apportionment of general average, etc. Under the evidence that was introduced, the case turned upon the questions concisely stated by the learned president of the common pleas in the closing paragraph of his clear and comprehensive charge, wherein, — after having fully explained the. principles of law applicable to such cases, — he said to the jury: “ You will see from what I have said that the whole case turns upon the question whether this was a proper case for a general average to be made, and whether it was a case in which the expenses of these repairs to the ship ought properly to be charged upon all the parties in interest, ship, cargo and freight, or whether it is not a case for general average. That question depends upon the single central question of all, whether this vessel was seaworthy, in the sense in which I have defined a seaworthy vessel, when she left the port of Philadelphia.” The verdict for plaintiffs necessarily implies a finding of that central fact in their favor, and unless there is manifest error in the charge or rulings of the court the judgment entered on the verdict should not be disturbed. If the verdict was contrary to or against the weight of the evidence, the proper place for correction of such error was in the court below. It was assailed there but without success. The first six specifications charge error in the learned judge’s answers to defendant’s 4th [149] to 9th points, inclusive, recited therein respectively. An examination of these points and answers, in connection with the evidence relating thereto, has failed to convince us that there is any error in either of said answers. We are fortified in this conclusion by what appears in other portions of the charge, etc. In his answers, substantially affirming defendant’s first three points, the learned judge instructed the jury: (1) If the loss, — to recover contribution for which the present action was brought, — was occasioned by the unseaworthiness of the schooner “ Mattie A. Hand,” existing when she commenced her voyage, there is no liability on the part of defendant to contribute to such loss; and the verdict should be for defendant. (2) The defendant is not answerable for any expenses incurred by reason of the leaky and unsound condition of the schooner, if such leaky and unsound condition existed at the beginning of the voyage and was not occasioned by the perils of the sea, as previously explained. (3) If the jury believe that said expenses were occasioned by the unseaworthy condition of the vessel and that said unseaworthy condition existed at the beginning of the voyage, the verdict should be for the defendant. These instructions, given, as requested by defendant, — and of course not excepted to, — are not only accurate but they cover the controlling questions presented by the evidence. The six specifications, above referred to, were grouped together and discussed by the learned counsel for defendant under the following proposition : “ Although there may be a prima facie presumption of seaworthiness, and the burden upon the defendant to prove the contrary, yet where it appears from the undisputed evidence in the case that the vessel sprung a leak or became damaged under circumstances which would not cause such results to an ordinary seaworthy vessel, the burden of proof is placed upon the vessel owners to show that she was seaworthy.” Notwithstanding the ability with which this proposition was pressed, we think its cardinal vice consists in assuming, as an established fact, that which the testimony does not warrant, viz.: that the undisputed evidence shows “ the vessel sprung a leak or became damaged under circumstances which would not [150] cause such results to an ordinary seaworthy vessel.” On the contrary, there is testimony tending to show that the leak, etc., resulted from a peril or perils of the sea encountered on the voyage and notfrom pre-existing unseaworthiness. That testimony was clearly for the exclusive consideration of the jury, and was submitted to them by the learned judge under proper instructions. In addition to his affirmance of defendant’s first three points, above referred to, he further instructed the jury, in his answer to plaintiffs’ first point, that, “ under the pleadings and issues joined in this case, the burden of proving unseaworthiness is on the party affirming it, that is, on the defendant. I must add to this that, if it is shown that shortly .after the commencement of the voyage a vessel, without encountering any stress of weather or any unusual perils of the sea, becomes so leaky as to be obliged to put into a port of refuge for repairs, the presumption then is that she was unseaworthy when she sailed, and the burden of proving the contrary is then on the plaintiffs.” This instruction is in full accord with the established law as recognized by this court in Myers v. Girard Insurance Co., 26 Pa. 195, wherein it is said: “ Seaworthiness is a question of fact to be determined by the jury. The presumption is in favor of seaworthiness of the vessel, and the burden is on the party alleging the absence of it. This presumption, however, may be rebutted, and the onus probandi shifted by satisfactory evidence that the vessel is unable to make the voyage, where such inability does not arise from the character of the weather or from any known cause sufficient to account for the failure, other than the condition of the vessel at the time when the voyage was attempted.” Without attempting to review the testimony in this connection, we think, as the result of our examination of it, that it falls far short of furnishing the satisfactory evidence that is required to shift the onus probandi. Upon the whole testimony, the question of seaworthiness of the vessel when she left the port of Philadelphia was clearly for the jury, and neither of the first six specifications is sustained. The answer of Mr. Jarvis, complained of in the seventh specification, was not given in response to the question therein recited. As shown by the record, the question answered by him [151] was : “ Do you know whether she had a classification of seven years at the time she was built and classed A No. 1 ? ” This question was not improper. It might have been so answered as to throw some light upon the history of the vessel and her condition when she sailed; but the witness was unable to say that the seven years, specified in the certificate of classification, etc., had not expired at that time. As it was, the testimony was of very little, if any, value to plaintiffs, and could not have been prejudicial to defendant. The eighth and ninth specifications are not according to rule; but, waiving that, we think there was no error in admitting the certificate of classification referred to in the former, or in receiving the answers of the witness, given in response to the question recited in the latter. The last specification of error is : “ The admission of the testimony of Charles A. Pettit, on page 140, as follows: “ Q. In consequence of what took place between you and Mr. Sherrerd, did Captain Monroe inspect this ship ? “ A. He came to me and reported that he had been on board the ‘ Mattie A. Hand,’ and surveyed her, and she was seaworthy, and he would soon report to Mr. Sherrerd, and on the strength of that report I chartered the vessel.” As thus presented, the objection appears to be to the answer of the witness and not to the question propounded to him ; but the record shows that the question alone was excepted to, and that was done under the following circumstances. The witness had just testified, in substance, that he knew Captain Monroe, then deceased; that he saw him in relation to the inspection and examination of the vessel, early in 1890 or late in 1889, about the time the cargo was loaded; that he, witness, then represented the vessel, and had been applied to for a charter by Mr. Dilkes who then represented the shippers of the cargo, etc. He was then asked : “ Q. What did you then do ? Did you offer him the vessel at a price ? ” (“ Objected to as irrelevant.”) „ “ The Court: If he knows the fact he may state that in consequence of what took place between him and Captain Monroe, Captain Monroe inspected this ship.” Then followed the question recited in the tenth specification of error, viz.: “ In consequence of what took place between you [152] and Mr. Sherrerd, did Captain Monroe inspect this ship ? ” This question was “objected to, objection overruled, and exception for defendant.” Then followed the answer recited in the above quoted specification. It will be observed that this answer is not responsive to the question that was put and excepted to. That question contemplated nothing more than an affirmative or a negative answer thereto. If the witness had answered affirmatively, his testimony would have tended to prove merely that the vessel was inspected by Captain Monroe shortly before she left the port of Philadelphia, a fact to which plaintiffs were entitled, and one that is admitted to be correct by defendant in its history of the case. Instead of directly answering the question, as propounded to him, the witness proceeded to state what Captain Monroe had told him and what he did in consequence thereof. No objection was made to the answer on the ground that it was not responsive to the question, nor that it was mere hearsay; nor was the court asked to strike out the testimony on either of these grounds, or for any other reason. The irresponsive answer was permitted to go unchallenged and it remained in the case as part of the testimojry. We think it is now too late to object to it as incompetent. When a witness volunteers testimony that is either irrelevant or incompetent, the proper practice is to move the court to strike it out, and if the court refuses to do so, take an exception. In that way the matter is fairly brought upon the record for review. If that course is not pursued, the right to objection and exception must be regarded as waived, just as in all other cases where irrelevant or incompetent testimony is introduced and permitted to remain without objection and exception. This case appears to have been tried with great care and ability, on the part of both counsel and court; and we find nothing in either of the specifications of error that requires a reversal of the judgment. It hinged on the question of fact whether the vessel was seaworthy when she left the port of Philadelphia. That question was fairly submitted to the jury and has been definitely settled by their verdict in favor of the plaintiffs. Judgment affirmed.