
    Andrew Burnside vs. The Union Steam Boat Company of Georgia and South Carolina.
    Action against a common carrier for damage to cotton. J. W. was examined by commission, as a witness for plaintiff. By agreement, be was to share with plaintiff the profits and losses of the shipment, but had assigned and released his interest to plaintiff. When the assignment was produced, the objection to J. 'W.’s competency was waived, aud his testimony was read. When the evidence in the case was closed, the circuit judge declined to rule out J. W.’s testimony, as incompetent : — Held, that his ruling was proper.
    Where an insurance has been effected on goods shipped, the shipper may maintain an action against the carrier for damage done to the goods, notwithstanding the liability of the insurer to him. Such is not like a case of double insurance; the carrier is primarily liable, and may be sued by the shipper, for the benefit of the insurer, even though the insurer has advanced the amount of damage.
    BEFORE WHITNER J., AT EDGEFIELD, SPRING TERM, 1856.
    Tbe report of bis Honor, the presiding Judge, is as follows:
    “ The defendants were engaged as common carriers in the transportation of merchandize on the Savannah river. December 12, 1852, they received in good condition a lot of cotton belonging to plaintiff, at the wharf in Augusta, designed for shipment to Savannah and executed bills of lading, containing exceptions limiting their liabilities. Seventy-four bales of the cotton were damaged at Augusta, the injury to the cotton being traced to the negligence of defendants, satisfactorily as I thought, and as the jury affirmed by their verdict. The damaged cotton was left in Augusta and the residue taken to Savannah. An insurance had been effected December 11th, with the Columbia Insurance Company on the entire lot, against fire and the usual risks of the river. A survey was held, and a recommendation made that the damaged cotton should be sold in Augusta fox the benefit of all concerned. This was assented to within a few days by the parties, plaintiff, defendants and the Columbia Insurance Company, without prejudice to any. The value of the cotton was shown in the condition delivered, to be from nine to nine and a half cents per pound. The value when damaged as shown by the sales, a fraction over five cents per pound. The proceeds of sale were paid over to plaintiff; and this action was brought to recover the loss and a verdict was had by the plantiff. John Walker, a principal witness on the part of plaintiff, was examined by commission; an objection was taken to his competency on the score of interest. He declared that he was to share the profits and losses of a shipment, and sale in the Savannah market, originally, but had assigned and released his interest to plaintiff. The assignment was produced and examined by counsel, and the objection waived — a subsequent commission had also issued and the further testimony of this witness was read without objection. The sequel of the case disclosed that an insurance had been effected, and some arrangement made on the subject of losses. When, therefore, on the testimony being closed, defendants’ counsel asked that the evidence given by this witness should be withdrawn as incompetent, I declined so to rule, and it was submitted to the jury.
    “ On the second ground of appeal, it is proper to say that plaintiff’s counsel objected to any evidence being heard, and his objection was overruled. I was disappointed that the testimony did not disclose the facts with more precision, as in that event the verdict might still have ended the litigation, though my opinion as to the point raised might be found erroneous. No amount was ascertained as paid by the Columbia Insurance Company on their policy. The agent of the Company proved that a claim had never been made out by plaintiff; that being in a strait for money to meet his draft for the purchase, he made an arrangement with the president of tbe Insurance Company,, whereby an advance was had to await the event of the suit then commenced, and which it was understood was to proceed. On this part of the case it is proper further to premise there was an allegation of interference on the part of the Insurance Company, in preventing the removal of the cotton from the lower wharf, in consequence of which the damage was increased, and my instructions were asked as. to this point, specifically. I do not understand the ground in either aspect as pointing thereto, and hence, I forbear any explanation further on the case made. I did not think the present recovery should, in any way be limited by the additional liability of the Insurance Company, or reduced by any arrangement secured by plaintiff with that Company, or payment made by them. I held the contracts of the insurer and the carrier, to be entirely distinct; that they were not to be regarded in the light of joint contractors or insurers, so as to entitle the defendants to a deduction by way of contribution, much less here, because the policy was anterior in point of time, to the bill of lading. •Was the Insurance Company to be regarded primarily, and mainly liable to the exoneration of the defendants in the present suit ? on the contrary, if the loss had resulted from the negligence of the defendants, they were liable; that on principles -of policy the wrong-doer should not escape, and that the case was the same as though insurers had not paid a farthing — on the authority of cases referred to hastily on circuit, I held that this action could be maintained in the name of the shipper, for the joint benefit of himself and the insurer; or for the benefit of the insurer alone — under the circumstances, I did not think the payment or advance, as the case might be, could inure to the benefit of defendants in part or in whole, in the present proceeding.”
    The defendants appealed, and now moved for a new trial, •upon the grounds:.
    
      1. The witness John W. Walker, haTing a direct interest on the side of the plaintiff, in the result of this cause, was incompetent therefore to testify on his behalf.
    2. The presiding judge, it is respectfully submitted, erred in his instructions to the jury in the following particulars:
    1. In directing them that even though it were proved that the plaintiff had been fully indemnified by the Columbia Insurance Company of South Carolina, for the damage done to his cotton, yet this did not amount in legal contemplation to payment or satisfaction in any wise, or to any extent of the plaintiff’s demand in this behalf.
    2. In directing the jury that no payment or compensation made by the Columbia Insurance Company to the plaintiff, in respect of the injury done to his cotton, should be taken into the account in estimating the amount of damages sustained by the plaintiff in this behalf.
    Carroll, for appellants.
    
      Magrath, contra.
   The opinion of the Court was delivered by

WhitNER, J.

The witness, whose competency is questioned on the score of interest, by the first ground of appeal, had been examined by commission. On the objection being taken, it appeared, that the witness was to share the profit or loss in .the shipment of this cotton then contemplated, in another market, but had executed an assignment and release to the plaintiff, which was produced. The objection was waived and the testimony was read: another commissiont o take the further testimony of the same witness, was also published and read without objection. When the testimony was closed and counsel about proceeding to the argument of the case before the jury, and which, it may be proper to add, was the second day after the testimony had been read, the presiding judge declined to permit or order the evidence of this witness to be withdrawn from the jury. To have sustained the objection renewed at this stage of the case in any point of view of which it is susceptible, would have been embarrassing beyond measure, manifestly unjust to the plaintiff, and, it was not at all unlikely, unavailing to the defendants, inasmuch as it had reached the jury and probably done its work. Such an order, under such circumstances, would have been unprecedented in our practice, for it is to be kept in mind, that the ground on which the objection is still pressed, rests upon the allegation, that inasmuch as losses were to be borne equally, ■hence the release of plaintiff was indispensable to free the witness from interest. It was not the case, therefore, that sometimes happens, where a witness declares he has no interest, but the examination having proceeded, other facts transpire, whereby the interest becomes then for the first time manifest — at most, it was but the case, not uncommon with the profession, where new and other views were suggested by a right reflection, but unfortunately, when well founded, after the opportunity had passed. The objection, therefore, was toe late. But I am permitted by this Court, and- it is due to the sleepless vigilance that guarded the interests of these defendants, to add, that, as an original objection it might well have been overruled and the testimony heard. The validity of the assignment and release has not been drawn in question, and it is clear that the very acceptance by the plaintiff, carries with it a corresponding discharge of witness from all liability to any future account. There was no subsisting mutuality in the adventure, and by the assent of each, fairly inferrible, their engagement was ended, and the witness had no interest in the event of this suit.

Tbe second and third grounds of appeal have led the appellants’ counsel to quite an extended discussion, having reference to the relative rights and liabilities of the two companies, these defendants and the Columbia Insurance Company. I do not propose to follow far in this direction, as I think the grounds depend on the just solution of a single proposition. It has been insisted this was the case of double insurance, hence the deduction of the first ground, that being fully indemnified by the Columbia Insurance Company for damage to the cotton, this, in legal contemplation, was a payment and satisfaction of plaintiff’s demand, or, as in.the other ground, at least entitled the defendants to a pro rata deduction ; again, if not to be regarded in strict legal parlance in the light of a double insurance, yet in point of fact an insurance had been effected with the Columbia Insurance Company, and the defendants were regarded in law as insurers, and hence a payment by the former should operate as a discharge to the latter, it being wrong in morals and in law that one should be twice compensated for the same injury. In point of fact no amount was ascertained to have been paid by the Columbia Insurance Company on their policy: a claim had never been made out by plaintiff. An advance by the President of the Company to this plaintiff to enable him .to meet his draft for the purchase of the cotton, to await the event of this very suit; then commenced, was a very different' thing from an admitted liability in discharge of which a payment was made.

I scarcely deem it necessary to pursue the matter any further. It is true, on circuit, inferences were sought to be drawn from the fact that some amount of money had passed from the President of the Insurance Company to the plaintiff, and hence the fact was one to be inquired of by the jury, and if found by them, then they were instructed as shown by the report.

There is no ground on which to rest an allegation that this was a double insurance, wbicb is said to be where the insured makes two insurances (3 Kent, 280,) on the same risk and' the same interest. There were no two policies here, so essential to define and determine the mode of contribution. A doctrine, which, though it applies very equitably in such a case, would lead to very monstrous results if a common carrier who, though he be in the nature of an insurer, could thus discharge the consequences of his own negligence by securing a rateable contribution, from all underwriters, on the different policies often effected on goods entrusted to his care. To test the principle, divest the case of any pretence of payment by the Insurance Company in advance, and when suit is brought, and a recovery had of these defendants fox the injury to the cotton, occasioned by their negligence, affirmed by the verdict of a jury, on what ground would they place their demand for a rateable contribution towards the loss: for in the ease of double insurance, if the insured recovers his whole loss from one set of underwriters, they will be entitled to their action against the other insurers. A statement of the proposition suggests an answer to the entire allegation. In this case the loss was ascertained by the verdict of the jury to have resulted from want of care, skill and diligence, on the part of these defendants, and their liability was inevitable. The principles laid down on the circuit are approved by the Court.

The motion for a new trial is dismissed.

O’Neall, Wardlaw, Withers, Clover and Muhro, JJ. concurred.

Motion dismissed.  