Percival v. Hickey

18 Johns. 257

• Court: New York Supreme Court
• Decided: August 15, 1820
• Status: Published

Opinion

Spencer, Ch. J.

The verdict of the jury was for the plaintiff; and agreeably to an intimation from the judge, that if they found for the plaintiff, they should state thq grounds of their verdict, they added, that the disaster mas the result of gross negligence in the defendant. Among the points taken, on the motion for a new trial, it has beenstre-tlU0US]y urge¿ by the defendant’s counsel, that the action should have been case and not trespass. This point is open 10 defendant; because in the progress of the trial, a motion was made for a nonsuit, after the plaintiff had gone' through with his evidence, on that ground. •

We must consider, after the finding of the jury, that the., injury done, by running down the plaintiff’s vessel, was not’ designed, or intentional; but that it proceeded from the defendant’s negligence^ as captain and commanding officer of the Atalanta.- We are bound, also, to consider the negligence as a personal one, imputable to the acts and omissions of the defendantand that these acts and omissions were gross and palpáble. '

That the force by which the plaintiff’s vessel was destroyed, was the immediate cause of her destruction, proceeding from the collision, cannot be doubted ; and then the question arises, whether, if such an act, producing the injury immediately and directly, be the result of negligence, and not of a -wilful intention, the action ought to be trespass or case. In the case of Leame v. Bray, (3 East, 593.) all the authorities and .preceding cases bearing on this question, were reviewed. That was trespass, charging the defendant with having drove and struck a single horse chaise which the defendant was driving along the highway, with such great force and violence upon and against the plaintiff’s curricle, which his servant was driying, that by means thereof, the servant was thrown out, and the horses ran away with the curricle ; and the plaintiff", to preserve his life, jumped and fell from the same, and fractured his collar bone. It appeared in evidence, that the accident happened in a dark night, owing to the defendant’s driving his carriage on the wrong side of the road, the parties not being able to see each other, and that if the defendant had kept the right side of the road, there was ample room for the carriages to pass without injury j but it did not appear that blame w-as imputable to the defendant in any other respect; and on an objection, that'the injury happened from negligence, and was not wilful, and that the proper action was case and not trespass vi et armis, the plaintiff was nonsuited. After argument, the non-suit was set aside by the unanimous opinion of the Court. Lord Ellenborough said, the true criterion seemed to be, according to what Lord Ch. J. De Grey said, in Scott v. Shepard, (3 Wils. 411. S. C. 2 Bl. Rep. 892.) whether the plaintiff received an injury by force from the defendant; that if the injurious act be the immediate result of the force originally applied by the defendant, and the plaintiff be injured by it, it is the subject of an action of trespass vi el ar-mis, by all the cases both ancient.and modern : that it was immaterial, whether the injury be wilful or not; and speaking of the case of Ogle v. Barnes, (8 Term Rep. 128) he approved of the decision, though there were words which implied force by the act of another; but it did not appear that it must have been the personal act of the defendants, it not being alleged that they were on board, the ship at the time ; and he observed, he was not aware of any case of that sort, where the party himself sued, having been on board, this question had been raised. Mr. Justice Lawrence, who gave an opinion in Ogle v. Barnes, observed, that he did not mean to say, that the distinction turned on the wilfulness of the act, and he so understood Mr. Justice Grose ; that what he principally relied on there, was, that it did not appear that the mischief happened from the personal acts of the defendant. That the defendant negligently did such an act, might be sustained by showing that it was done by his servant in his employ, in the absence of the master. Grose, J. expressed himself very decidedly; he observed, that in looking into all the cases from the year book in the 21 H. VII. down to the latest decision on the subject, he found the principle to be, that if the injury be done by the act of the pa,rty himself at the time, or he be the immediate cause of it, though it happen accidentally, or by misfortune, yet he is answerable in trespass. Le Blanc, J. is equally explicit. He says, “ In all the books, the invariable principle to be collected is, that where the injury is immediate on the act done, there trespass lies; but where it is not immediate on the actdone3 but consequential, then the remedy is in case.” He illustrates the distinction by the case of a log thrown in the highway. If, at the time of its being thrown, it hit any person, it is trespass ; but if, after if be thrown, any person receive an injury by falling over it, it is case. He observed, that it was chiefly in actions for running down vessels at sea, that difficulties may occur, because the force which occasioned the injury is not so immediate from'the act of the person steering. The immediate agents of the force, said) are the winds and waves, and the personal act of the party rather consists in putting the vessel in the way to be so acted'upon ; and whether that may make any difference in that case, he would not then take upon himself to determine. I do not consider it necessary to review the Antecedent cases. They all support the distinction taken by the judges in Leame v. Bray. 1 will merely refer to some of them. (6 Term Rep. 128. 8 Term Rep. 191. Hob. 134. 1 Str. 596, 5 Term Rep. 649. 1 Str. 636.) It was strongly insisted, that Leame. v. Bray was overruled by Nicholson and another v. Mounsey & Symes, (15 East, 383.) but that-is a mistake. That was a case against the captain and first lieutenant of a sloop of war, for negligently conducting the ship, so that, through mere negligence, bad management, and want of care, she, with great force, ran foul of and struck the plaintiff’s ship, by reason whereof, it was sunk and lost. The cause was referred, and the arbitrator reported, thatat the time the mischief happened, Symes, the lieutenant, was the commanding officer of the watch, and was upon deck and directing the steering and navigating the sloop of war ; that Mounsey was not on deck, nor was he called upon by his duty to be so; that he had not the appointment of the officers; but he, as well as they, were appointed by the Commissioners of the Admiralty. The arbitrator awarded for the plaintiff 4,500 pounds, damages, against both the defendants. The case underwent a full discussion upon the question, whether Mounsey was liable at all; and the Court held him not liable, on the ground, that he was a servant of,his majesty, stationed onboard that ship, to do his duty there, together with others, appointed and stationed there by the same authority, each having their several duties to perform, and that there was no personal interference of the captain with the act of the lieutenant, t>y which the damage was occasioned, and that he ought not to be liable for the act of another, whom he did not appoint or employ ; and the award was set aside as regarded Moun-sey, but judgment was given against the lieutenant. The case does not detail the evidence, nor was there a word said about the form of the action; but it does not admit of a doubt that, had Mounsey, the captain, been on deck, in the discharge of his duty, when the accident happened, that he would have been made responsible, for Symes, who was the acting officer, and directed the steering and navigating the sloop of war, was held answerable, without question or doubt. The case of Stort v. Clements, (Peake's N. P. 107.) was decided on the same principle, as was also the case of Boucher v. Naidstrom, (1 Term Rep. 569.) The case of Covel v. Laming, (1 Camp. N. P. Rep. 497.) which was subsequent to the case of Leame v. Bray, was an action of trespass for running the defendant’s ship against the plaintiff’s. It appeared, that when the accident happened, the defendant stood at the helm, and that he wished to steer clear of the plaintiff, and if he was to blame, it was through ignorance and unskilfulness. On the objection that trespass would not lie, Lord Ellenborough confirmed the doctrine he had delivered in Leame v. Bray, and said, it made no difference that the parties were sailing on ship board. The defendant was at the helm arid guided themotionsof his vessel. The winds and the waves were only instrumental in carrying her along in the direction which be communicated ; the force, therefore, proceeded from 1 i u, and the injury the plaint if sustained was the immediate effect of that force ; and the plaintiffhad a verdict.

The Court of Common Pleas have, undoubtedly, questioned the correctness of the decision in Leame v. Bray, though they have not overruled it. In Rogers v. Imbleton, (5 Bos. & Pull. 117 ) the de.claration was, that the defendant drove his cart against the plaintiff’s horse, with force and violence, whereby he was hurt and bruised, by and through the mere negligence, inattention, and want of proper care, of the defendant. The declaration was demurred to on the ground that it ought to have been trespass. The Court intimated a clear opinion, that as the injury was alleged to have arisen from mere negligence,inattention, and want of care, thé. demurrer conW n°t be sustained. Ch. J. Mansfield said, that it was not to be considered, tbattbe case oí Leame v. Bray was overturned by that decision ; but, he said, it might, on a proper case, be proper that that decision should be re-considered. In Huggett v. Montgomery, (5 Bos. & Pull. 446.) the,action was trespass for driving a certain ship or vessel, whereof the defendant was commander, to and upon and over a certain boat of the plaintiffs, and sinking her. It appeared, the defendant was master and owner of the vessel committing the injury,.but though on board at the time, did not give the order which caused the accident; but the pilot did. The jury were of opinion, that the accident arose from negligence, and gave a verdict for the plaintiff. The Court Were of .opinion that trespass could not be maintained against the defendant, and said, the casé differed from Leame v.Bray, intimating, at the same lime, doubts as to the authority.of that case. In Turner and others v. Hawkins and others, (1 Bos. & Pull. 472.) the plaintiff declared in case, for sinking his boat, and alleged the injury to have happened by the-defendants not slackening the-rope or line by which his boat was drawn, and then stated that the plaintiff’s boat was driven and forced across the^ stream and sunk. There was a verdict for the plaintiffs, and on a writ of error to the exchequer chamber, the error assigned was, that the act complained of was a trespass vi etarmis. Eyre, Ch. J. said, that when the objection is taken after verdict, the point ought to be very clearly made out. That it was clear that the cause of action was a nonfeasance, in not slackening the rope, and that it was fair to infer, that it was not intended to charge the defendants with wilfully driving their boat against that of the plaintiffs, and that all the circumstances were referable to the nonfeasance, which made it a complete action on the case, and the judgment was affirmed. In Blinn v. Campbell, (14 Johns. Rep. 432.) the plaintiff sued in an action on the case, and it appeared that the defendant, being a trooper, had wounded the plaintiff’s leg, by negligently firing a pistol. We held, that if the injury is attributable to negligence, though it were immediate, the party injured has his election, either to treat the negligence of the defendant as the cause of action, and declare in case. or Co consider the act itself, as the injury, and to declare in trespass. The rule is laid down in the same manner in 1 Ckitty PI. 127. and is warranted by the cases he cites^

I am perfectly satisfied, from a review of the cases, that if (he defendant is liable at all, this action is appropriate, and that it ought to have been trespass rather than case, as the injury was immediate, and from gross negligence.

2. It.has been objected, that the answers of P'arker and Dodd to the thirteenth interrogatory, ought not to have been read to the jury. These answers relate to the value of the vessel and cargo, and the interrogatory is the general one. It has been contended, that under that interrogatory, nothing can be answered, but what has been before specifically inquir ed into. This has not been shown to be the practice in courts proceeding according to the civil law. I perceive no abuse likely to follow from allowing the witnesses to state every material fact under that interrogatory, not before drawn forth by the special interrogatories, and such, undoubtedly, was the object and end of the general interrogatory. It certainly was not intended to have the witnesses repeat what they had before said; that would be idle and unnecessary. As the facts stated by the witnesses are pertinent, I am of opinion, that they were properly allowed to be read to the jury.

3. It has been insisted, that the verdict was contrary to evidence. This has opened a wide range of inquiry, and I have carefully, and attentively read, and considered the testimony stated in the case. Very much depends on the credibility of the witnesses ; and it became a very important part of the inquiry, whether the accident was attributable to design or negligence on the part of the defendant, or whether it was involuntary and inevitable. It was distinctly placed before the jury, that if it was the result of design or negligence, that then the defendant was answerable for the consequences ; but if it was involuntary and inevitable, then he was not answerable, and a verdict ought to be found in his favour. It was a most material fact, in this view of the case, whether the night was so dark, that those on board the Atalanta, either with the naked eye, or with night glasses, could see the Mary, or not, when she was at a considerable distance from the Atalanta. If she could be seen at a reasona^^e distance, say half, or a quarter of a mile, then the conclusion seems inevitable from all the testimony, that the collision might have been avoided. If Ephraim Hozo-ard, the mate of the Mary, is to be believed, the night was not so dark but that the Mary might have been seen so far distant as to have been avoided ; and it appears from the evidence of Captain Pechell, that he saw the operations of the Mary from the Cleopatra, at half past nine, and when the vessels closed. This last ship was at a much greater distance from the Mary than the Atalanta ; and it appears, that the Atalanta came up with the Mary, a little after eight o’clock, when muskets and a carronade were fired at the Mary., Captains Coffin and Collins, after being informed of the manoeuvres of the vessels, agree in saying, that if the Atalanta had starboarded her helm, she would, in a length and a half, have cleared the Mary, if the latter was right a head; and they concur in the opinion, that the Atalanta must have seen the .Mary,'from the course she steered. It seems to be agreed, on all hands, that a chasing vessel is bound to take measures to avoid running foul of the chase. All the witnesses concur in saying, that it would have been extremely imprudent, as regards the safety of the Atalanta, to have intentionally run foul of the Mary, and those acquainted with Captain Hickey, exonerate him from any suspicion of such intention. The jury have, in effect, acquitted him of any design to run down the Mary. They say it was the result of gross negligence. This was a matter of fact, and I cannot pretend to means of deciding the fact superior to what thejury possessed; and, on such a questional am free to acknowledge, that an honest, capable, and upright jury, are the most competent to come to a correct concldsion. I cannot, therefore, say, that the verdict is against evidence.

• 4. An exception has been taken to the admission of E. Harvard, the mate of the Mary, as a witness, on the ground that if the plaintiff recovers it is equivalent to the performance of the voyage, and the insuring of freight; and that he will then be entitled to be paid his wages. It has been conceded, that in the case of capture and condemnation, though the owner recovers the amount of freight against the insurers, the mariners are not entitled to wages. There has been no decision of which we are apprised upon the present point. From analogy to the admitted principle, that a recovery from the insurer does not give the mariner a right to recover wages, there would seem to be no objection to Howard, on the score of interest; and I conclude that he was a competent witness.

5. Although the defendant’s counsel excepted to the opinion of the jtidge, at the Circuit, excluding copies of the proceedings instituted by the plaintiff, against the defendant, in the High Court of Admiralty of Great Britain to recover damages for the injury which is the basis of this action ; and also for excluding certain affidavits, with exhibits annexed, taken in the Admiralty case, it has not, as I understand, been made a distinct ground of argument, that these proceedings were emitled to be admitted. The pendency of another suit for the same matter could, at most, only be pleaded in abatement. It is not pretended that- any decision was ever made in the admiralty ; nor that any witnesses examined in that suit are dead, or in a situation not to be reexamined. Under these circumstances, those proceedings were properly excluded.

6. It has been strongly insisted, that this Court has not jurisdiction of the cause ; that it is a case of admiralty, not of common law' cognizance.

The case of Novion v. Hallet, (16 Johns. Rep. 327.) decided in the Court for the Correction of Errors, and the learned and elaborate opinion delivered by Chancellor Kent, settles, iucontrovertibly, that if the original taking was as prize, the court of Admiralty has exclusive jurisdiction of the case $ that the jurisdiction is not affected by the fact that the capture was illegal, or violent, or unjust; that where the admiralty jurisdiction has once attached, by means of such taking as prize, it never can be devested by any matter subsequent, so as to give a Court of common law jurisdiction over the case, as a tort or trespass ; and that the admiralty having jurisdiction of the principal subject, thereby acquires jurisdiction of all the incidents. That court did not profess to decide in what cases Courts of common law have jurisdiction of marine torts ¡ the case itself did not require an examination of that question, and no opinion was pronounced upon it.

Dr. Brown, in discussing the powers and jurisdiction of the admiralty, (2 Brown’s Civil and Ad. Law, ill.) observes, that collisions, or ships running foul of one another, by which one or both are sunk or battered, afford cases of the most frequent occurrence; and he says, that for this damage, if done at sea, remedy may be had in the admiralty. -He then comes to consider whether for sueh injuries, courts of common law have a concurrent jurisdiction. This, he says, may have been doubted, but he thinks it clearly settled, in practice, that they have jurisdiction where the proceeding is not in rem, but merely for damages. He says, Sir 'Leoline Jenkins considered the bringing an action of trover, for a tort on the high seas, as an invasion of the authority of the admiralty. Sir L. Jenkins shows the superior facility and convenience of a suit in the admiralty, where the whole subject matter can be investigated and adjudicated in a single suit, whereas, at law, many might be necessary.

It is well known to those conversant with Admiralty proceedings, that the Court is two-fold : an Instance Court, which takes cognizance of contracts made, and injuries committed on the high seas, and the Prize Court, which has jurisdiction over prizes taken in time of war. The commissions to hold these Courts are distinct, though usually given to one person. The Instance Court is governed by the civil law, the laws of Oleron, and the customs of the Admiralty modified by statute. The Prize Court is to bear ,and determine according to the course of the Admiralty, and the law of nations ; (“2 Brown’s Civil & A dm. Law. 29.) and it cannot be doubted, that when we find it asserted in the books, that for a marine tort merely., redress can be sought in the admiralty, it is always meant in the Instance Court.

It is not to be denied, that the defendant, as the commander of a vessel of war belonging to his Britannic majesty,' hada right, war then existing between England and France, of visiting and searching neutral merchant ships upon the high seas. This, by the laws of nations, is an incontestible right of the lawfully commissioned cruisers of a belligerent nation. A mere attempt, on the part of the neutral merchant vessel, lo escape before any possession is taken by the cruiser, is not unlawful, nor does it draw after it the consequences of a condemnation. {Chilly’s Laws of JVa-lions, 192. 194, 195.) In the present case, therefore, the pursuit of the Mary by the Atalanta, for the purpose of a search, was a lawful act. But it has been insisted, that the defendant, and those on board the cruising ships, believed the Mary to he a French vessel ; that she was pursued as such, with intention to capture her as prize of war ; and although it turned out that she was not a French vessel, but an American, and a neutral, yet the acts oí the defendant were done with intention to capture her, and that, therefore, the question is one of prize or no prize, and of admiralty jurisdiction. I cannot assent to this conclusion. The imention to capture the Mary, as a prize, depended altogether on the supposition, that she was a French vessel. It did not exist, if she was, in fact, an American vessel. It was, therefore, a conditional intention, depending on the event. As the character of the Mary, during the chace, was uncertain, the defendant was bound to conduct himself in such a manner, that his acts should be justified by the event. The intention, in a given event, to make her a prize, did not conslitute the actual pursuit of a prize. There is nothing in the whole course of the transaction to show that in point of fact, the defendant treated the Mary as a prize, or that when her national character was discovered, he would have detained her as prize, or for any violation of neutrality. I cannot, therefore, consider the injury received by the Mary, in any other light, than as a marine trespass.

The cases of Le Caux v. Eden, (Doug. 526) Lindo v. Rodney, (Doug. 591. note 1.) Smart v. Wolff, (3 Term Rep. 323.) and many other cases which might be cited, recognize the principle, that for seizing, stopping, and taking a ship on the high seas, not as prize, an action lies at the common law; that a thing being done on the high seas, does not exclude the jurisdiction of the common law; but that for taking as prize no action will lie at the common law, and that the nature of the question did not exclude the locality of the fact. A marine trespass, free from the circumstance, that the vessel was taken as prize, is cognizable, concurrently, in, the courts of common law, and in the Instance Court of the Admiralty. The latter Court has no more jurisdiction of the question of prize or no prize, than a Court of common law. It has been supposed, that the defendant’s conduct can only be inquired into in the Admiralty, as it may involve questions of state, the discussion and decision of which may compromit the peace of the nation. Those are considerations to which this Court cannot listen, if they have jurisdiction of the cause. We are not at liberty to assume or decline jurisdiction, upon speculative grounds, or for reasons of public policy.

It has been thrown out, that for aught we know, British cruisers, at the time this injury was committed, having a right to overhaul neutrals, to search for contraband goods, and to carry them in for adjudication, may, also,- have had instructions, in case of any attempt on the part of neuT trals to escape, to run them down ; and that therefore the trespass, in this case, may have been committed in the exercise of a belligerent right, and, consequently, a Court of common law has not jurisdiction. The facts show that the Mary had submitted, and was in the act of coming under the Atalantaos stern, when the injury took place. The pursuit then was over, and it cannot be tolerated, nor will the Court infer, that the running foul of the Mary was in obedience to any orders given by the*Commissioners of the Admiralty. I again say, that I perceive nothing in the case giving rise to the question of prize or'noprize — nothing involving the laws of nations, or the jvp belli. I perceive nothing but a maritime tort; and, until instructed to the contrary, of such torts, whether committed by a belligerent cruiser upon a neutral, under such circumstances, or by a merchant ship, I cannot but think we have jurisdiction. I am therefore of opinion, that the motion for a new trial ought to be denied.

Yates, J. and Woodworth, J. concurred.

Van Ness, J. and Platt, J.

were of opinion that the verdict ought to be set aside, and a new trial granted.

Motion denied.