Thurston v. Murray

Tilghman C. J. On the trial of this cause at Nisi Prius, Judge Brackenridge reserved a point of law, for the consideration of this court. The agent of the plaintiffs, when he demanded payment of the loss, lodged with the bioker through whom the insurance was effected, sundry documents to prove the loss, and among others, a writing purporting to be a copy of a decree of the English court of appeals in admiralty cases, not certified under the seal of the court. The defendant’s counsel objected to the reading of this paper to the jury; but it was permitted to be read, not as evidence of [328] the truth of the matter contained in it, but as evidence of a ' communication from the assured to the underwriter. This point involves a question of considerable importance, whether the assured shall be permitted to bring, before the jury, papers which in themselves are not legal evidence. It is agreed, that the copy of the decree was not, per se, evidence. Why then should it be read? Because, say the plaintiffs, it was exhibited to the defendant’s broker, as one of the proofs of loss; and it is expected by the underwriters that these proofs of loss should always be exhibited. Upon the same principle, every paper which the assured wishes to read, however improper in itself, may be brought before the jury; for it is in his power to lay before the broker what papers he pleases. Although the underwriters expect that the assured should inform them of all material intelligence received respecting the loss, yet it does not follow that in case of dispute, it is their intention, that illegal evidence shall be introduced at the trial. If thé defendant had charged the plaintiffs with improper conduct, in withholding from him the information which they had received respecting the loss, it might be necessary to obviate that objection, by proving that they had lodged the papers with the broker. But the defendant did not deny, that this paper had been communicated. On the contrary, he was willing that the jury should read the "indorsement on it, by which it appeared that the brokeiHhad received it. It has been said, that the defendant was not injured by reading it to the jury, because they were told by the court, that it was not evidence of any decree having been made. But I am of a different opinion. The reading of it might, and if I may judge from the verdict, did make an impression, which the court could not erase. We are now to establish the rule in cases of this kind; and it appears to me that it will be of dangerous consequence, if papa's are thus introduced by a side wind, which not being evidence in themselves, could not be brought forward directly. The distinction of being evidence for one purpose, and not for another, is too subtle for the jury; they will not forget what has been read to them. The case of Senat v. Porter, 7 D. & E. 158., was much stronger than this. There the defendant attempted to read in evidence, the captain’s [329] protest, which had been shewn to him by the plaintiff’s broker. There was some little plausibility in the argument, that the plaintiff having produced this paper himself, ought not to object to its going in evidence; but the court were clearly of opinion, that it was not evidence. It seems that in that case, the defendant’s counsel did not think of the ingenious artifice which has been resorted to here. I am of opinion, that the paper, which was objected to in this case, ought not to have been read, and therefore there should be a new trial. Yeates J. concurred. Brackenridge J. I am not prepared to dissent from the opinion of the Chief Justice. I admitted the evidence with considerable doubt, and am now satisfied to take the rule as it is laid down by my brethren. New trial awarded.