Anthanissen v. Dart

| Ga. | Apr 30, 1894

Action was brought on a quantum, meruit by Horace Dart, W. It. Dart, Frank M. Dart and D. B. Stallings, against N. M. Anthanissen as master and part owner of the Norwegian bark Svalen, for services rendered by plaintiffs with their tug-boat H. Dart in rescuing the bark from its perilous position on the breakers of the ■outer bar of Brunswick on February 4,1891. The jury found for the plaintiffs $475, May 10,1893; and defendant’s motion for a new trial was overruled. The declaration alleges, that on February 4,1891, the bark having grounded and being in peril, plaintiffs went with said tug-boat and endeavored to pull the bark off upon the high tide of that day; that the weather was rough and threatening, and the adventure of plaintiffs was hazardous and dangerous to them and their property; that subsequently the master of the hark abandoned and partly dismantled it and left it to its fate; that plaintiffs sent out said tug-boat, which, together with other tug-boats in the harbor of Brunswick, succeeded upon another high tide in towing the bark from its perilous position to a place of safety, and but for the service so rendered the bark would have gone to pieces upon the bar where it lay grounded; that the bark was worth $9,000 and its cargo of lumber worth $3,500; and that the weather was rough, high and threatening at the time the service was rendered, and the same was done at imminent peril and risk to plaintiff’s tug-boat and to the officers and employees thereon, and was worth the sum of $1,800.

The motion for new trial assigns error upon the admission of testimony showing the risk and peril of the service in question; and upon instructions in the charge to the jury, that if the bark was grounded as claimed, and plaintiffs by their tug-boat IT. Dart and their employees thereon undertook to rescue the bark, and the undertaking was attended with great or extra peril and risk and danger, and the effort was successful, the compensation to be allowed plaintiffs would not be measured alone by the actual value of the services performed by them, at so much per day for the time they were so engaged, but that they would be entitled to such reasonable, just and proper sum as the jury saw fit to allow them as a reward or bounty for the peril, risk and danger to the tug-boat and employees thereon while engaged in the service, which amount should be determined from all the facts and circumstances, including the value of the tug-boat and the number of employees on it. Also, that the jury should consider the admitted fact that three tug-boats were engaged in the service, and after determining the proper amount to be paid by the owner of the bark, decide what proportion thereof should be given to the owners of the tug-boat U. Dart.

The defendant offered in evidence a copy of the record ■of a former suit in the same court, “which showed that 'the plaintiff in the present suit had previously joined as a coplaintiff with two other plaintiffs suing as copartners, and who, for the services in and about the rescue of the bark for which this action was brought, had in said suit based their right to recover upon a written agreement” dated at Brunswick, Ga., February 4,1891, “between owners of tug-boats Inca and B. Dart, and N. M. Anthanissen, master of Nor. bark Svalen, now on south breakers of outer bar of Brunswick.” The agreement further states, “ that said boats Inca and B. Dart shall render said vessel all assistance possible in relieving her from her perilous position; and should they succeed in pulling her off' and towing her into place of safety, that the said Captain N. M. Anthanissen, as agent of vessel and cargo, shall pay to said tug-boats Inca and B. Dart the sum of two thousand dollars.” This is signed by “N. M. Anthanissen, master of bark Svalen,” and by “Coney & Parker, agts. tugs Inca and B. Dart.” This record was offered “for the purpose of showing that the same was a joint cause of action and could not be severally maintained by this plaintiff',” and “ that the debt due for the service for which this suit was brought was a pai’tnership claim and not the individual claim of this plaintiff.” Defendant “offered to prove, by the statements of fact in said record, as well as by the witness "W. B. Dart, that the said steamboats Inca, B. Dart, and Angie and Nellie composed a partnership engaged in the tow-boat business under the firm name of the Brunswick Tow-boat Combination, and as such partnership had rendered the alleged service for which this suit was brought.” Defendant further offered to prove that no separate contract was made with the owners of the steam tug D. Dart for towing said vessel off' the breakers, but the only contract made was a joint contract as above set forth. All of the foregoing evidence so offered was rejected as irrelevant; and the court denied defendant’s request to charge the jury, that if “ there was a joint undertaking between the owners of the steamboats Angie and Nellie, IT. Dart, and Inca, and the service was performed jointly, the plaintiff' could not so apportion the service performed as to recover on a quantum meruit, without joining in the action with the owners of the steam tugs Inca, and Angie and Nellie.”

H. F. Dunwody and Crovatt & Whitfield, for plaintiff in error. Goodyear & Kay and Harris & Sparks, contra.