
    THE BOSTON MARINE INSURANCE Co., Appellant v. GEORGE SLOCOVITCH, Respondent.
    
      Over-insurance—Effect of as fraudulent misrepresentation of value—Witness; incriminating question—When privilege not waived—Evidence— Offer to purchase at fixed price,t when competent, on question of value— Original cost, when competent.
    
    This action was brought by plaintiff the insurer, under a clause in the policy subrogating it to the rights of the assured, viz.: the holders of certain master’s drafts hypothecating the vessel, etc., in question, and was brought against the owner of the vessel, on the theory that .he had destroyed it to obtain certain other insurance thereon, effected by the owner for his own benefit. Plaintiff claiming that the said vessel was over insured to the extent of more than one third above its actual value, made certain requests to charge, to the effect that such over-insurance should be regarded by tlie jury unless satisfactorily explained, as a willful and fraudulent misrepresentation, and in itself, evidence of fraud. Held, that as the defendant obtained no policy from plaintiff, made no representations to it, and there was no evidence to show that plaintiff was influenced by any representations made, the only charge to which plaintiff was entitled on this point, was to the effect that the jury were to consider on this question of fraud, what the defendant had to gain or to lose by the destruction of the vessel in question.
    The complaint alleged that one Pfaff at defendant’s instigation, had fired the vessel. On the trial, said Pfaff being called and examined by plaintiff, declined to tell how the fire arose for fear he might criminate himself. He was then asked by plaintiff if before the time of the fire he had any conversation with defendant in regard to setting fire to this vessel, whereupon the court instructed the witness, that if he answered tins, he might be compelled to answer the former question. Held, no error, as the substance of the instruction was only as to the witness’s . rights and obligations.
    Plaintiff offered in evidence a deposition of the above witness which showed that he had on another occasion testified to something that was a waiver of the privilege claimed on the trial. Held, that this evidence was incompetent ; that it showed no waiver of privilege here, and could be used only to contradict the witness or refresh his memory, neither of which contingencies existed here.
    One of the material questions involved, was the value of the vessel, which before its loss was the property of defendant, who on the trial asked a witness (a seaman and shipmaster acquainted with the value of vessels), if he had not theretofore made defendant an offer for the purchase of said vessel, and on an affirmative answer being given, further asked the amount of said offer, which was objected to by plaintiff and the objection overruled. Held, that the question was properly allowed.
    After proving the condition of the vessel, at the time of its loss, three years before the trial, defendant was allowed, under plaintiff’s' objection and exception, to show what he paid for it at that time. Held, no error. 1st. Defendant offered the best evidence he could under the circumstances, and brought himself within Jones v. Morgan, 90 N. Y. 4. 2d. The point at issue was not the value of the vessel, that question being material only as it bore on the question of defendant’s motive to destroy it.
    Before Truax and Dugro, JJ.
    
      Decided April 9, 1888.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.
    -The action was brought by the Boston Marine Insurance Company as subrogated to the rights of its assured, to recover from the defendant the amount of a loss paid by plaintiff under its policy of insurance upon certain master’s drafts, hypothecating the ship “Zorka,” of which ship defendant was sole owner, and his firm of Slocovich & Co., the consignees. The complaint, after alleging the incorporation of the plaintiff, the issuing of the said master’s drafts by the defendant, the insurance thereof by plaintiff in favor of the holders, Messrs. I. & C. Moore and others, the loss of the “Zorka” by fire, and the payment by plaintiff to its assured of the sum of $5,000 in full satisfaction of their claim under the policies of insurance on the drafts, which allegations were admitted by the defendant’s answer, then went on to allege that plaintiff thereby became subrogated to all rights of action of said assured against the ship, its owner, etc., that the interest of defendant in said ship was, at all the times referred to, insured in the further sum of $16,000 ; that the defendant, while the said insurance was pending and said drafts were immature, “ maliciously and designedly did cause the aforesaid ship 6 Zorka ’ to be set on fire by her master, Albert Pfaff, who was the defendant’s agent and servant; whereby the said ship ‘ Zorka ’ burned to the water’s edge and became a constructive total loss. At the time of her loss as aforesaid, the sum for which the defendant was insured in his said ship against marine perils was at least three times her value.” These last allegations were denied by the defendant. The verdict of the jury was in his favor.
    Further facts appear in the opinion.
    
      Edward D. McCarthy, for appellant:
    I. The testimony of the witness, Meyer, that he offered the defendant $12,000 for the ship, was incompetent, and its admission was an important error, (a) It was hearsay evidence only. As an offer, it did no more than show the opinion of the would have been purchaser, who proposed to give $12,000 for the ship; and the opinion of the owner, who refused to accept that sum for her. The offer was not the best, because not original evidence of opinion. The opinion, either of the proposed purchaser, or of the owner, was not shown to have empirical value. (b) In every such case, where the value of a chattel is to be determined, the sole legitimate inquiry is for market value. Of course, a mere offer to purchase is no evidence of a ruling price, (c) There can be no principle of law which would admit hearsay, and, therefore, incompetent testimony, merely to show a good motive in an accused person. Commonwealth v. Chubbock, 1 Mass. 144. But, manifestly, this testimony did not show a good motive, because the offer may not have been made, bona fide, (d.) Decisions of weight and authority, maintain the foregoing principles. Fowler v. County Commissioners, 88 Mass. 96 ; Whitney v. Thacher, 117 Mass. 527; Gallinger v. Gallinger, 4 Lans. 473; Dugan’s Estate, Tuck. 338; Wood v. Firemen’s Ins. Co., 126 Mass. 319; Keller v. Paine, 34 Hun 177; Young v. Atwood, 5 Ib. 235; Masterson v. Mayor, 7 Hill. 72; Rice v. Hanson, 5 Lans. 305; Flannagen v. Madden, 81 N. Y. 623. In Campbell v. Woodworth (20 N. Y. 499), the sale was at public auction. In Hoffman v. Connor (76 N. Y. 124), it does not appear that the previous sale was an isolated transaction. In Wells v. Kelsey (37 N. Y. 143), the testimony was elicited by cross-examination, merely to test the credibility of the witness. There is not a recorded case, that an isolated sale, unless inter partes, is competent proof of market value. Much less, would a mere offer be such proof. It would be different if the sale or the offer were inter partes, because the proof would then be competent as declarations.
    II. It was error to receive testimony on defendant’s part, that he paid $10,000 for this ship, three years before, at a private sale. The foregoing authorities seem conclusive on this point. If there were no other objection, the time of purchase was too remote.
    III. It was error to refuse to charge as plaintiff requested in 1st to 3d requests. Taken together, the requests amount to this: A gross over-valuation of property under a marine risk, is evidence of fraud, if unexplained. The following cases, and many others which might be cited are relevant: Catron v. Tennessee Ins. Co., 6 Humph. 176 ; Haigh v. De Lacour, 3 Campb. 319 ; Alsop v. The Commercial Ins Co., 2 Sumn. 470 ; Franklin Fire Ins. Co. v. Vaughn, 92 U. S. R. 519; Hoffman v. West, F. & M. Ins. Co., 1 .La. 216; Ragmer v. West, F. & M. Ins. Co., 12 La. 336; Feise v. Aguilar, 3 Taunt. 506; Lewis v. Rucker, 2 Burr. 1167, 1171; Munn v. Taggart, 3 Binney 305; 2 Story, C. C. R. 51; 2 Cranch, C. C. R. 550.
    IV. The fifth request is peculiar in its character and bottoms on ground of its own. It presents a clean question of law, and inasmuch as it was a material subject, the refusal to allow it, if error, was material error. The following authorities are cited to support this assignment of error. Read v. Mutual Sun Ins. Co., 3 Sand. 54; Smith v. Williams, 2 Caines Cas. 110; Force v. The Pride, 3 Fed. Rep. 162; 3 Wash. C. C. R. 1; 1 Phill. Ins., § 307.
    V. Witness Pfaff was the master of the ship, and set fire to her at the instigation of the defendant. The fact of applying the match he had declined to admit, because of self-crimination. But he was ready to testify to a conversation had between himself and the defendant just before the fire, when he was interrupted by the court, and thus instructed: “ If you answer that question you may be obliged to answer the other question ; you cannot insist upon your privilege.” Thereupon the witness declined to proceed, and the plaintiff lost most important testimony. It is plain that the right to refuse is the privilege of the witness, and it is for him, alone, to determine whether he shall assert a privilege It is no justification of the warning given by the court, that the witness had previously declined to tell the jury what was the immediate cause of the .fire. The fact that he was about to tell had no direct and immediate connection with the ignition of the match. Proof of overvaluation and of conspiracy would have been sufficient to avoid the policy. If nothing else availed, then we showed that the witness had lost his privilege, by having, ■previously, testified to the. same facts.
    
      Sidney Chubb and C. M. Dacosta, for respondent.
   By the Court .—Truax, J.

It was alleged in the complaint, and the plaintiff attempted to prove on the trial, that the defendant destroyed a vessel which belonged to him, in order to obtain certain insurance which he had effected on that vessel. As part of his case, the defendant called a witness, Myer, who was a seaman and shipmaster and who was acquain ted with the market value of vessels in New York, and asked him whether he had made defendant an offer for the purchase of his vessel. He testified that he had made such an offer, and then was asked, What price did you offer ? ” This question was objected to by the plaintiff, on the ground that it was incompetent. The objection was overruled, and the plaintiff excepted.

It has been held that an offer to sell a thing is some evidence of the value of that thing (Harrison v. Glover, 72 N. Y. 451), and there is no reason why an offer to buy should not have at least as much weight as an offer by the owner to sell.

The defendant was also allowed to show, under the objection and exception of the plaintiff, that three years before he had paid ten thousand dollars for this ship at a private sale. It was not error to receive this testimony. Hoffman v. Conner, 76 N. Y. 121. The vessel was no longer in existence, and the defendant offered the best evidence that he could offer under the circumstances of the case. He showed the cost and the condition of the vessel at the time it was destroyed, and so brought himself within the decision of the court of appeals in Jones v. Morgan, 90 N. Y. 4. Moreover, the point at issue was not the value of the vessel, and the question of value became relevant only as it tended to show the motive of the defendant in destroying his vessel, if he did destroy it. We think that it was not error to allow the defendant to show what he had paid for the vessel.

The court was asked to charge, in substance, that every man is presumed by the law to know the value of his own property, and a difference between actual value and an amount insured for, which is more than one third above the actual value, may be regarded as a willful and fraudulent representation, unless satisfactorily explained; and that if the ship in the month of April, 1883, was not worth more than ten thousand dollars and was insured for sixteen thousand dollars, such over-insurance would in itself be evidence of fraud. (See the first, second and third requests to charge.)

We think that these requests, as well as the fifth request, were charged in substance when the court charged the jury that in determining this question of fraud, it was important for them to consider “ what the defendant would have had to gain by her destruction, as opposed to what he would have lost by that event; whether it would be better for him to have the cash from those policies without the obligation to pay the drafts or without their maturing by the arrival of the ship, or was it better for him in his judgment to keep his property and continue his business. If the latter was the case he had no motive to set the ship on fire. If the former was the case, you must find out how much the motive was, what it actually amounted to, and how much it weighed on him in connection with the other facts in the case. He had raised $5,500 on this vessel and got the money for the drafts. If the vessel did not reach St. Johjis, he would owe nothing on these drafts because the condition of the obligation to pay was that she should get to St. Johns.”

This was all that the plaintiff was entitled to have charged. If the defendant misrepresented the value of the vessel, it was a fraud on those to whom he made the misrepresentations—that is, it was a fraud on the insurance companies from whom he obtained his policies of insurance. But he obtained no policy of insurance from the plaintiff in this action, and he made no representations to the. plaintiff. And there is no evidence -that the plaintiff was influenced by any representations, and, therefore, whether they were or were not fraudulent is immaterial.

A witness named Pfaff was called by the plaintiff. The plaintiff had alleged in its complaint and attempted to show on the trial, that Pfaff - had set the boat on fire on the instigation of the defendant. Pfaff declined to tell how the fire arose, for fear that he might criminate himself. He was then asked by the plaintiff’s counsel if he had had any conversation before this time—that is, before the time of the fire—with the defendant in regard to setting fire to this vessel, and the court instructed the witness that if he answered that question he might be obliged to answer the other question. To this instruction the plaintiff took an exception.

We do not think that the court erred in informing the witness—which was the substance of the instruction—of his (the witness’) rights and obligations. If we look at the ruling as a ruling not to compel the witness to answer, there was no error committed. The testimony tended to show that the witness had committed a crime. It was a link in the chain of testimony showing that fact, and he could not be compelled to disclose any portion of the evidence that might help to convict him of an offense.

The appellant sought to offer in evidence a deposition which showed, in effect, that on another occasion this witness had testified to something which was a waiver of the privilege which he claimed on this trial. This was objected to as incompetent, the objection was sustained and the plaintiff excepted.

We think that there was no error in this ruling. The witness had not waived his privilege by testifying on another occasion, nor wras what he had testified to on another occasion admissible as evidence on this trial. The testimony given by the witness on the former examination could only be used for the purpose of contradicting the testimony given by him on this examination or of refreshing his memory, neither of which contingencies existed on this trial. Grattan v. Metropolitan Life Insurance Co., 92 N. Y. 287.

The judgipent and order appealed from are affirmed with costs.

Dugro, J., concurred. 
      
       The 5th request to charge was as follows:
      “Fifth.—These master’s drafts were equivalent to insurance on the ship, and were not payable unless the ship arrived at her destination. So far as this case is concerned they are equivalent to an insurance to the extent of $5,115, which was paid before the happening of any loss.”
     