197 Mass. 561 | Mass. | 1908
The defendant’s requests for rulings were properly refused. By the shipping articles the plaintiff engaged to perform the voyage from port to port and return, and his wages were not payable until the expiration of his term of service, unless he was wrongfully discharged before the completion of the agreement. Taber v. Nye, 12 Pick. 105. The William Jarvis, 1 Sprague, 485. O’Neil v. Armstrong, [1895] 2 Q. B. 70. But while he served as “ mess boy ” on the outward passage, he returned on the vessel as a passenger, and under either count of the declaration his right of recovery rests upon the ground, that having been ready and willing to perform the contract, performance became impossible because the master, who was the defendant’s agent, unjustifiably discharged him before the voyage ended. Croucher v. Oakman, 3 Allen, 185. Baxter v. Doe, 142 Mass. 558, 561. Hoyt v. Wildfire, 3 Johns. 518. The master deposed that the plaintiff received his discharge for violation of the shipping articles in being absent from the ship without permission. Upon this question the evidence was conflicting. The plaintiff, while admitting his absence, gave evidence that during the passage out he had been assaulted by the ship’s firemen, and applied to the mate for permission to go ashore, not only for the purpose of receiving medical treatment, but to make a complaint to the commissioner for the assault. This officer, whose authority was not questioned, issued the usual certificate for sick or disabled seamen, under which he had the right to be temporarily absent, but while the issuance of the certificate was admitted,- the mate in his deposition asserted that the plaintiff made no reference to his desire to consult the commissioner. If, however, the jury believed the plaintiff, the permission included both, and he had
It is insisted that the plaintiff consented, but his consent could have been found conditional upon receiving a full month’s wages, which were not paid, and this defence fails. See Rosenberg v. Doe, 146 Mass. 191, 193. If the contract remained in force, the order,
Nor can it be said, either under the general maritime law or at common law, that the verdict was in excess of the measure of liability, because the plaintiff was permitted to recover the amount paid for his return passage. The damages suffered by a wrongful discharge, ordinarily, are the loss of time until in the exercise of reasonable diligence further employment can be obtained. But, in the present ease, the plaintiff, having been deprived of the benefit of the contract under which the defend
Exceptions overruled.
This was an order signed by the master, directing the treasurer of the defendant to pay to the plaintiff $2.50 for services as mess boy on the steamship City of Augusta “ during the month of February 6 to 10,1906, five days at $15 per month.”