Ernst v. Steamboat Brooklyn

22 Wis. 649

• Court: Wisconsin Supreme Court
• Decided: February 15, 1868
• Status: Published

Opinion

DixoN, C. J.

"Whether tbe steward of a steamboat is an agent thereof, within tbe meaning of sec. 1, chap. 150, so as to charge such boat with debts contracted by him for supplies of food furnished and used on board such boat, .is altogether a question of fact, depending on tbe general usage and authority of stewards in such cases. If, by tbe general custom and usage of steamboats navigating tbe same waters, stewards are authorized to contract for such supplies and charge their boats, then tbe steward is such agent; otherwise, not — unless expressly made so by tbe owners of tbe boat. This is a question of fact for tbe jury, and tbe court was right in receiving and submitting evidence upon it to them.

If, however, it should be made to appear in such case tbat tbe person acting as steward was engaged under a special contract with tbe owners of tbe boat, by which be was to board tbe officers and crew at so much per week, and tbat tbe party furnishing tbe supplies knew of such contract, tbat would materially change tbe nature of tbe claim. Tbe boat would not then be liable. Tbe difficulty with tbe proof offered upon this point was, tbat it was not shown, nor proposed to be, tbat tbe plaintiff bad any knowledge of such special contract. It was properly excluded. Tbe question of the competency of the plaintiff to be a witness in his own behalf, without having given notice of his intended examination, as prescribed by chap. 17, Laws of 1863, is ruled by the case of Sika v. The Chicago and Northwestern Railway Co., 21 Wis., 370. He was incompetent; and for the error in receiving his testimony, the judgment must be reversed and a new trial awarded.

By the Court. — Ordered accordingly.