Hovey v. American Mutual Ins. Co.

I was in the employ of the plaintiffs in the month of May, 1852, as general superintendent, and was on the premises in question at the fire, on the night of the 20th of May. I went into Mr. Edwards's office (he being the defendants' agent), on the morning of the 21st day of May, 1852. Here the counsel for the defendants interrupted the witness, and asked the plaintiffs' counsel what he designed to prove by him as having taken place on the 21st of May, 1852, at the office of defendants' agent, to which the counsel for the plaintiffs replied that he expected to prove the notice to the defendants of the occurrence of the fire the day following the occurrence. To this the counsel for the defendants objected, on the ground that the complaint averred that the first notice to the defendants of the occurrence of said fire was given on the 24th day of said May, and the insufficiency of the notice set forth in the complaint was relied upon in the answer of the defendants as one of the grounds of defence. The court overruled the objection to the admissibility of this evidence, and the defendants' counsel duly excepted to the said decision of the court, and the exception was duly noted. The witness then proceeded. "Mr. Edwards was not in. I asked if that was the agency of The American Mutual Insurance Company. The clerk said, yes. I then asked if the Williamsburgh Oil Factory was insured in their office. The young man turned to the books and said, yes. I then asked him the amount, and told him of the fire the night previous. On the 24th, I gave written notice of the loss to Edwards, and also sent notice to the company at Amsterdam. I came into the employ of the plaintiffs, January 10, 1852. Mr. Paige was in their employ when I came, and continued some time after. When I went into the employment of the plaintiffs, Mr. Bond was the night watch, and remained there in that capacity till the 1st of March, and then his son went to Brooklyn, and the old man with him. Then Mr. Newton hired Patrick Mead, who remained until after the fire. There was a night watch from the time I went into their employ. He, as well as Bond, is an honest, intelligent, and proper man for a night watch. Mead was paid four dollars a week. Bond was paid four dollars a week.

Upon being cross-examined, the witness testified: "I am

Hovey v. American Mutual Ins. Co.

not now employed in the oil factory, but am engaged for myself in the paper business. I remained in the plaintiffs' employment until the end of the month after the fire. The plaintiffs are not now in business anywhere. I did not state that I was unable to find the office of the defendants after the fire; it was another office that I stated I was unable to find. Mr. Bond was employed to remain on the premises during the night hours. I do not know of his sons sleeping there. Mr. Mead was hired at the yard. I was not present when the bargain was made. I examined his recommendations. Don't remem

ber whose they were. He was watching a ship in New York at the time he came. He had quit the ship and was out of employment. Mr. Newton hired him."

And further to prove the issues on their part, the plaintiffs called as a witness,

Madison Page, who, being sworn, testified as follows: I was in the employment of the plaintiffs at the date of the policy, and acted for them in obtaining it. I had then been in their employment five months. I put a night watch on the premises on the 19th of June, the date of the policy, and continued the same up to February, 1852. He was a good, faithful watch; his name was Bond. The duties of a night watch are to be on the ground at six o'clock in the evening, and remain till seven in the morning. This was performed, I think faithfully, up to February, 1852.

Upon being cross-examined, the witness testified: Mr. Bond had a son who slept on the premises. Mr. Hovey desired me to have one of the workmen sleep on the premises to keep the watchman company.

And further to prove the issue on their part, the plaintiffs called as a witness,

Charles H. Newton, who, being sworn, testified as follows: I went into the plaintiffs' employment on the 13th of September, 1851, and continued with them until after the fire. There was a night watch there when I went, and he continued till the 1st of March. His name was Bond. The night Bond left I watched, and I put Patrick Mead as night watch there the

Hovey v. American Mutual Ins. Co.

following night, who continued there up to the time of the fire, and was there that night. His business was to look around the yard. He was to go on the premises at six in the evening, and remain till seven in the morning. I supposed him a competent man. He brought good recommendations from a captain in New York. We paid him four dollars a week. So far as I know he performed his duty well. I was there sometimes in the night myself.

Upon being cross-examined, the witness testified: Mr. Mead was not in any one's employment when I employed him, as he said the last person for whom he was employed was the captain. He brought a recommendation from him. I did not know this captain, but I thought I knew enough of Mead before. He was formerly employed in the yard of Perrine, Patterson, and Stack. I did not go there to inquire about him. I should think it was a month before that I saw him occasionally at the yard of Perrine, Patterson, & Stack.

The amount of the damage by the fire to the property insured being admitted to be as the same is averred in the complaint, the plaintiffs' counsel here rested.

And the defendants, to prove the issue on their part, called as a witness,

William Perrine, who, being sworn, testified as follows: I am one of the firm of Perrine, Patterson & Stack. I know the premises of plaintiffs. Our premises are contiguous, in the same block below, and in the next block above. I know Patrick Mead. He is now in court. He is in our employment as a night watchman. He has been in our employment as such since 1849 or 1850. He was at our yard as our night watch in March and April, 1852. I am not sure that he was in our employ in March. We built the "John Stewart." Mead was liked by the captain. We allowed him to go to accommodate the captain. I can't tell when he came back. We allowed him $10 a month until we got more to do; since then we have paid him $1 per night. He was in our employment, at the yard of Perrine, Patterson & Stack, at the time of the fire, which consumed the oil factory. We paid him ten dollars a

Hovey v. American Mutual Ins. Co.

month. His duties were to go round and be walking about our premises from about half past 5 p.m. until about 7 a.m., when he was relieved by the day watch. I have no knowledge of the employment of Mead at other premises, but I believe Mr. Stack consented, on account of the small wages we were then paying him.

Upon being cross-examined, the witness testified: As soon as we got two or three vessels on the stocks, I think about the first of July, we raised Mead's wages. The plaintiffs' premises are in sight from ours. To go into our saw-yard, or to look into it, the watchman was obliged to go around the buildings. We had no other night watchman on our premises than this man Mead. When he was watching the ship in New York, we had but one vessel just going up, and had but little necessity for a watch. I don't know that I saw Mead away from the plaintiffs' yard any one night. The reason why we paid him at the time such low wages, was that we then had but one vessel to watch. The ordinary wages of a night watchman are six dollars a week in the summer, and seven in the winter. I can't recollect whether I saw Mead on the plaintiffs' premises or my own from April 1st to the time of the fire.

And the defendants, further to prove the issue on their part, called as a witness,

Alfred Edwards, who, upon being sworn, testified as follows: I was the agent of the defendants when the policy was made, and made the contract with Mr. Paige.

The counsel for the defendants here offered to prove by this witness the conversation had between the parties at the time of making the policies, as to the night watch to be kept on the premises; and that, by the express terms of the agreement, the "night watch," employed upon the premises by the plaintiffs, was to have the care and watching of no other premises at the same time, but that he was to be the exclusive night watch of the plaintiffs, upon their premises. To this the counsel for the plaintiffs objected, and the said objection was sustained by the court, and said evidence was not admitted; to which decision of the court the counsel for the defendants did then and there except, and said exception was duly noted.

Hovey v. American Mutual Ins. Co.

The defence here rested.

And the plaintiffs, further to prove the issue on their part, recalled the witness,

Churles H. Newton, who testified as follows: I was never informed that Mead was employed by any one else as night watchman. When he was employed by the plaintiffs I never heard him say anything about his wages.

And further to prove the issue on their part, the plaintiffs recalled

Pierce, who testified as follows: I did not know of Mead's being employed elsewhere, at the time he was employed by the plaintiffs.

And further to prove the issue on their part, the plaintiffs recalled as a witness,

Patrick Mead, who, upon being sworn, testified as follows: I was employed by the Williamsburgh Oil Factory, as night watchman, and was there at the time of the fire. I was never off the premises one night. I was in Mr. Stack's employ three or four years. I told Stack I was employed by the oil factory. The captain asked me to watch the ship. After I left the ship, Newton employed me for the oil company. He told me to keep an eye on their yard when I was going backward and forward, and he would make it all right with me. My boy could look out for Stack's place. It did not prevent my doing my duty. I always kept on the ground of the oil factory.

And upon being cross-examined, the witness testified: The vessel was nearly built in Mr. Stack's yard, at the time of the fire at the oil factory. They had no other night watchman at the shipyard besides myself. I agreed to watch the premises going back and forward. I did not go into Stack's yard. I could see Perrine's yard without going off the premises. There was no other man but myself to watch the ship then nearly finished. I never told Newton or Pierce anything of my employment by Perrine & Stack. I could see over the fence