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The substance of the decision was that the underwriters' liability was one which must be imputed to them because they were the owners, yet that this liability was subject to limitation because of the fact that it did not arise upon any personal contract made with them. The case is therefore in harmony with the other cases we have referred to.
In the First Circuit the question arose in Quinlan v. Pew, 56 Fed. 111, 5 C. C. A. 438, where it was held by the Circuit Court of Appeals that the owner was entitled to the relief where the liability arose from the neglect of the master to inform the owner of a defect in the fittings of a pennant of which defect the owner had no knowledge, but the whole course of the discussion by Judge Putnam shows that actual knowledge by the owner would have led to a different result. And, inasmuch as the accident happened some years after the enactment of 1884, it niust be assumed that the court held that in this respect the qualification of the right to a limitation of liability contained in the act of 1851 was intended by the act of 1884.
These statutes have since been several times referred to in opinions by the Supreme Court, but in none of them has the question now before us been considered. We have the impression that the absence of any such question in the Supreme Court is due to the fact that counsel have generally regarded the rule as settled upon the suggestion of Mr. Justice Bradley in Butler v. Steamship Co., supra, by the general concurrence of the courts. The only discordant note is a passage in the third edition of Benedict's Admiralty, published soon after the enactment of the statute of 1884, wherein it is said in section 565 that the language of the act of 1884 would seem on its face to have removed the necessity of averring in the petition for limiting liability that the liability had been incurred without the knowledge or privity of the owner; that is, of the petitioner. And it is said that at the least the obvious construction of the act is that such privity or knowledge is not material. “But,” it is said, “it has been decided in the lower courts that these words do not include the liability of the owner on his personal contract,” referring to the cases of the Amos D. Carver, McPhail v. Williams, and The Loring, supra. Perhaps if other legislation upon the same subject, the history of the maritime law, the doctrines of the common law of contracts and the inconvenience to the public from so broad and unlimited an interpretation of the statute were all to be ignored, the construction contended for by the author would be legitimate, but that would be to disregard some of the most fundamental rules for interpreting the meaning of statutes.
Counsel for appellee invokes another rule of construction, and points to the language contained in the proviso at the end of section 18 of the act of 1884, which is :
"Nor, shall the same apply to wages due to persons employed by said ship-owners.”
And says that the primary and usual office of a proviso is to except something out of a statute which would otherwise be within it. Undoubtedly this is a general rule of construction. But it is not universal,
and a proviso or an exception may be used for another purpose. The case of Baggaley v. Pittsburg Iron Co., 90 Fed. 636, 33 c. C. A. 202, decided by this court, is an illustration, where it was pointed out that an exception might be used from an excess of caution. And see what was said by Mr. Justice Story in Minis v. United States, 15 Pet. 445, 10 L. Ed. 1791. No doubt the principal object of this exception was to protect the crews of vessels in respect of their wages, which has always been a matter of solicitude in legislation and of the courts. It is well known that they are hired sometimes by the owner of the vessel or his managing agent, and sometimes (and more generally in former times) by the master. Section 18 without this proviso would include wages due to seamen employed by him on his ship whether the contract of hiring was made by him, his manager, or the master. And we think it was intended by this exception to guard against an interpretation of the act which would affect the wages of employés by whomsoever hired. By "employed” is not meant those only who were hired by him personally. Of course, there would be no reason in such discrimination. If this was the intention of the exception, it throws no light upon the particular question of construction we are considering.
It is contended, however, that the liability in this case did not arise from any personal contract of the Mills Transportation Company. The principal ground on which this contention is urged is that the contract does not mention the company, that on its face it is the contract of Henry McMorran and the towing company. That it was made by him in a representative capacity for some one is clear. In respect of the Newago he was managing agent for the Mills Transportation Company which owned that vessel. And when these facts appear it is evident that he was making the contract for the company.
Story on Agency, § 160a; Mechem on Agency, $$ 769, 772; Higgins v. Senior, 8 Mees. & W. 844; Ford v. Williams, 21 How. 287, 16 L. Ed. 36; Higgins v. McCrea, 116 U. S. 671, 680, 6 Sup. Ct. 557, 29 L. Ed. 764; Barrell v. Newby, 127 Fed. 656, 62 C. C. A. 382, and the numerous authorities cited by Mechem in the notes to section 769, supra. It is not material that he also contracted for other parties. It was not by that circumstance any the less the contract of the Mills Transportation Company. The maxim, “Reddendo singula singulis," applies. That he had authority to make such a contract for that conpany cannot be doubted. In 25 A. & Eng. Encl. of L. 886, it is said:
"The owners of a ship generally appoint some person usually one of their number to be her manager. This person is called the ‘ship's agent or 'husband. He is the general agent of the owners in relation to the ship, and may be appointed orally or in writing.”
The third paragraph of the petition, after setting out the proposition and acceptance of July 9, 1903, alleges that they "constituted an agreement binding upon the Great Lakes Towing Company to render such towing and wrecking services as might be required by said vessels.”
But it is unnecessary to determine whether the contract would bind that company in the absence of any proof that it had adopted it as its own. It was admitted by counsel that the services of the appellant
were requested and performed upon the footing of this contract. And, indeed, it is alleged in the appellee's petition:
"That in compliance with said request and under the agreement contained in said Exhibit A (which is the contract) hereto annexed the said Great Lakes Towing Company did send the tug Favorite with certain steam pumps aboard for the purpose of assisting said steamer.”
If a principal not disclosed by a contract made by and in the name of his agent subsequently claims the benefit of it, it thereby becomes his own to the same extent as if his name had originally appeared as a contracting party.
The Mills Transportation Company, being a corporation, could act only through some agency. McMorran was the manager, and was vested with authority to make such contracts as this in behalf of the owner of the vessel, and the contract was the personal contract of the corporation, not in consequence of any principle peculiar to the maritime law, but by virtue of the common-law rules of agency.
But it is then said that the contract was made in behalf of the ship, and so was not the contract of the owner. This, however, rests upon an untenable theory. The contracts of the manager are the actual contracts of the owner, and are not of the same character as the contracts of the master made on a voyage or in foreign ports and which are imputed to the owner from the necessities of commerce. The acts of the managing agent within the sphere of his authority are as much the acts of the owner as if done by the owner himself. Only upon this theory could a corporation make what, for the purpose of making a distinction, is called a personal contract, that is to say, one which the owner himself or itself has made. Most of the cases which have been referred to were cases of negligence or some other tort of the owners, but, if as we suppose we should hold liabilities arising from contracts are included by the 18th section of the act of 1884, it must, we think, be admitted that, as the statute ranks them together and makes no distinction as regards the ground of liability, if negligence on the part of the owner deprives him of the right to a limitation, surely his voluntary creation of the liability ought with greater reason to bar his right to the limitation.
If it were an original question, we should have much doubt whether the act of 1884 was really intended to accomplish more than to make the provision for limitation by the act of 1851 applicable to cases of owners of the title of shares of the whole property in ships. But a further purpose in Congress has been recognized by other courts of co-ordinate jurisdiction, and we have deferred to that view.
The petition for the limitation of liability in this case misconceived the nature of the liability which the petitioner had incurred and which the towing company was seeking to enforce. · The petition, after stating the rendering of the services under the contract and the loss of the vessel, proceeds to state as a ground for limitation that the stranding and loss of the vessel "were not done, occasioned, or incurred with the privity or knowledge of your petitioner or of any of its corporate officers, and your petitioner claims the benefit of the limitation of liability provided by the statute. And the decree finds that this allegation was true, and evidently makes it the basis for according the limitation. But the liability which this towing company was pursuing was not for any fault in the management of the Newago, but for services rendered under a contract with her owner in an endeavor to rescue her from peril and the question whether she was stranded and lost without the privity or knowledge of her owner was wholly immaterial. But the case has been argued as if the case were properly presented, and we have accordingly so dealt with it.
The decree of the court below which limits the liability of the appellee in respect of the claim of the appellant must to that extent be reversed, with costs. The amount due thereon will be ascertained, and such further proceedings had as the rules and practice of the court require.
RUSSELL V. OREGON SHORT LINE R. CO.
(Circuit Court of Appeals, Ninth Circuit. May 6, 1907.)
1. TRIAL-DIRECTION OF VERDICT-QUESTIONS OF NEGLIGENCE.
While questions of negligence are ordinarily for the jury in federal courts, a case may be withdrawn from the jury and a verdict directed for plaintiff or defendant, as may be proper, where there is no conflict in the evidence, or where it is so conclusive in its character that the court, in the exercise of its sound judicial discretion, would be obliged to set aside a verdict rendered in opposition to such evidence.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, $$ 376-395;
vol. 37, Negligence, 88 277–286.] 2. MASTER AND SERVANT-TEMPORARY SUSPENSION OF RELATION-DEPARTURE
BY SERVANT FROM SERVICE OF MASTER.
Plaintiff's intestate, who was a bridge foreman on defendant's railroad, living at the time in an outfit car on a siding, went with his family on a velocipede car one afternoon to a spur track some 212 miles distant, near which his father-in-law resided. The car was returned, and in the evening about 7 o'clock some of the men by his direction came after him with a hand car. He was then at his father-in-law's house, where he had been visiting since 5 o'clock, by which time his business for the defendant at the spur, if any, had been finished. About 8:30 he started back with the men, having no light on the car, and while on the way was killed in a collision with a meeting special train. Held, that at the time he was engaged on his own private affairs, and no relation of master and servant existed between him and defendant which brought him within the terms of a state statute making railroad companies liable for injuries to their employés caused by negligence of their fellow servants.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 34, Master and Servant, $$ 144-156.
Injuries to servant while not on duty, see notes to Ellsworth v. Metheney,
44 C. C. A. 489.] 3. RAILROADS-INJURY TO PERSON ON TRACK-CONTRIBUTORY NEGLIGENCE.
A bridge foreman on a railroad, familiar with the operation of trains thereon, and knowing that special trains were liable to run at any time, who, while not in the performance of any duty for the company, but in the pursuit of his own affairs, went upon the track at night on a hand car showing no light and was killed in a collision with a special train at a distance from any crossing, was guilty of contributory negligence, and there can be no recovery from the company for his death, even conceding that the train was negligently operated, where such negligence was not willful
nor wanton, and the presence of the hand car approaching on the track was not known to the engineer until the collision occurred.
In Error to the Circuit Court of the United States for the District of Idaho.
Will R. King, for plaintiff in error.
Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge.
HUNT, District Judge. The plaintiff, Frances B. Russell, as administratrix of the estate of P. J. Russell, deceased, brought this action against the Oregon Short Line Railroad Company, defendant, to recover a judgment for damages for the death of her husband, which occurred on the evening of December 3, 1903. Defendant denied negligence, set up contributory negligence, and that deceased was engaged on his own private business when he was killed. The evidence showed substantially these facts: The deceased, P. J. Russell, was and had been for seven years a bridge foreman of the defendant railroad company. About the time of his death, the bridge gang of which he was foreman was engaged in work upon a bridge that was about two miles or more east of the town of Ontario, a place of 1,100 or 1,200 people. The bridge gang lived in what are called “outfit cars,” which were moved from place to place as convenience required. These cars were kept on a side track at the stockyards, half a mile east of the town of Ontario, The deceased and his family lived in one of the outfit cars. Russell had been working in that vicinity about a month. Two miles west of Ontario, at a place spoken of as “Washoe Siding,” there was a spur. On the afternoon of December 3, 1903, the deceased did not go to work where the bridge gang was employed; but at noon of that day, at the outfit cars, he told one of the men that he was going to Washoe, and requested him (Stroup by name) to come over after him after the work of the day was finished. The custom of the bridge gang was to stop work at 6 o'clock, and then to eat supper. Prior to the date of the accident Russell had tendered his resignation to the defendant company, but was not to leave the service of the road for a few days. Russell had bought a ranch near the Washoe Spur, and his intention was to give up railroading, and to live upon his farm. Mrs. Russell's father and family also lived at Washoe next to Mr. Russell's place, about a quarter of a mile from the spur. About 3 o'clock on the afternoon of December 3d, the deceased took his wife and children on a railroad velocipede from the outfit cars to the Washoe Spur. Upon their arrival at the spur, the velocipede was left near the track, but was afterwards taken back by a railroad employé who had been at Russell's place that day. After leaving the spur, the Russells went over to the place owned by the deceased, and stayed there about half an hour. Mr. and Mrs. Russell were getting ready to move in a few days to the ranch. They spent the afternoon, principally, at Mrs. Russell's father's house. Mrs. Russell testified that while they were on the way to Washoe, or just before they started, her husband told her that he was going down there "to see about getting men to work, and to see about