Bennett v. Austro-Americana Steamship Co., 147 N.Y.S. 193

Bennett v. Austro-Americana Steamship Co.

147 N.Y.S. 193 | N.Y. App. Div. | 1914

Carr, J.:

On the trial of this action the complaint was dismissed by the trial court at the close of the defendant’s evidence, and judgment was entered accordingly, from which the plaintiff appeals. The only question involved in the case before us is whether, considering the plaintiff’s proofs in their most favorable aspect, he has made out a cause of action. He is a nonresident of the State, the defendant is a foreign corporation, and the facts set forth in the complaint happened and the action was brought before the recent amendment to section 1780 of the Code of Civil Procedure. (See Laws of 1913, chap. 60.) Hence this court had no jurisdiction of the plaintiff’s cause of action unless it arose within this State. (Payne v. N. Y., S. & W. R. R. Co., 157 App. Div. 302.) The facts appearing in the plaintiff’s proofs show that in August, 1908, he was a second cabin passenger on *754one of the defendant’s steamships journeying from a port in Greece to the port of New York. The vessel was crowded with emigrants and a large number of second cabin passengers. The latter, or a large number of them, became dissatisfied with the food furnished to them, and with other matters, and claimed improper attention to their needs and comfort on the part of the ship’s officers. A letter was framed for the purpose of complaint and publication on the arrival of the ship at the port of New York, and the plaintiff undertook to get signatures to it, even from first class passengers. He was told that a Mr. Allen, a first class passenger, would sign this letter. The ship was then on the high seas, nearing the port of New York. The plaintiff went to the first cabin music room, where he found Mr. Allen and tendered him the letter for signature. The latter took the letter and began to read it before signing it. Thereupon the ship’s captain entered the music room and took the letter from Mr. Allen and ordered the plaintiff from the room, on the ground that he, as a second class passenger, had no right to be in the first cabin quarters. The plaintiff answered that he would not leave the room until he got back his letter. The captain refused to return it, and again ordered the plaintiff to leave the room, and on his refusal to go, the captain struck him and ordered his removal forcibly by members of the crew. He was then confined in a stateroom and the imprisonment continued while the vessel entered the port and for several hours after it had docked in New York city. The respondent contends that if the plaintiff has any cause of action it “ arose ” upon the high seas and this court had no jurisdiction of it. The appellant contends that he has a cause of action for false imprisonment to the extent of such imprisonment while within the jurisdiction of this State, even though such imprisonment began outside the jurisdiction, for its continuance made a fresh cause of action in his favor as long as it lasted, and if it continued within this jurisdiction, a fresh cause of action arose within this jurisdiction to the extent of the continued imprisonment. In this contention we think the appellant is correct. (Hardy v. Ryle, 9 B. & C. 603, 608; Huggins v. Toler, 64 Ky. 192; Dusenbury v. Keiley, 8 Daly, 537; S. C., 85 N. Y. 383; Van Ingen v. Snyder, 24 Hun, 81.)

*755The further question arises, did the plaintiff, according to his proofs, make out a cause of action of false imprisonment at all ? It is on this theory of false imprisonment that the plaintiff appeals to this court. Doubtless the captain had a legal power to imprison the plaintiff. But did the circumstances then existing justify the attempted exercise of this power ? It is a long day since the belaying pin or marlinespike or knotted rope’s end were not only instruments but symbols of a ship-master’s authority. Considering the vast steamship traffic of the last half century, it is remarkable how few cases are to be found in the books affecting a ship captain’s right to enforce discipline on the passengers on his ship. This fact speaks in no uncertain way of the habitual patience of the shipmasters amid their grave responsibilities. Yet so far as the few cases are to be found it is well-settled law that a shipmaster, though sometimes described as a “ sovereign,” and by one text writer as a legal “ despot,” is yet answerable at law for the exercise of his authority of discipline on two points, viz.: “ Had there been any necessity for the exercise of the authority, and even if there had been such a necessity, had there been an excess beyond what was necessary,” and in a court of law these questions, if presented on conflicting proof, as was the case here, became questions for the jury. (Aldworth v. Stewart, 14 L. T. Rep. [N. S.] 862; Kay’s Law of Shipmasters & Seamen [2d ed.], §§ 585 et seq. ; Machlachlan’s Law of Merchant Shipping [5th ed.], 366 et seq.; Abbott’s Law of Merchant Ships & Seamen [14th ed.], 900; Ragland v. Norfolk & Washington [D. C.] Steamboat Co., 163 Fed. Rep. 376; Chamberlain v. Chandler, Fed. Cas. 2575; 3 Mason, 242; Steamboat Co. v. Brockett, 121 U. S. 637.)

The judgment must be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Burr, Rich and Stapleton, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.