6 Rob. 255 | La. | 1843
This action is brought to recover the sum of $1247 75, which the plaintiff alleges is due to him, for his wages and services as the master of a steam tow-boat called the Hudson, which belonged to the defendants, and was engaged in towing ships, and other vessels, to and from sea, and the mouths of the Mississippi, to the city of New Orleans and other places. The services commenced on the 20th of October, in the year 1839, and terminated on the 10th of July, 1840; and the compensation claimed is at the rate of $166 66 per month.
The defendants, J. & G. Heaton, after a general denial, admit that they were interested in the boat in different proportions, but deny that they were commercial partners with Houren and Clark, their co-owners, and say, if they are at all liable to the plaintiff, it is only jointly, and not in solido. They specially deny that Houren was their agent, or partner, on the 1st February, 1841, as they had previously sold their interests in the boat; and they plead the prescription of one year against the demand. They then set up^aMemand in reconvention against the plaintiff, for a sum larger than he claims, because they say that, in the month of May, 1839, he, being then the master of their aforesaid boat, and having in tow six vessels of different classes, bound to sea, negligently and imprudently ran the boat ashore, whereby a Spanish
To the petition was annexed an account as follows
“New Orleans, February 1st, 1841.
“ Steam Boat Hudson and Owners
To Cicero Davis, Dr.
“ For services rendered on board of said boat $1247 75
“ Approved.
“Nimrod Houren.”
George and James Heaton and Houren continued to be the owners of the boat, until the month of December, 1840, when George Heaton sold his-jnterest to the latter, and the Hudson was afterwards owned by Houren and James Heaton, and was so, at the time the above approval of the account was made. That the plaintiff was the master of the boat during the time mentioned, and that his wages were at the rate claimed, is sufficiently shown. It is in fact-not seriously contested. The citations were served on the defendants, March 11th, 1841. Houren has not filed any 'answer, and the final judgment against him is not appealed from. In support of the plea in reconvention, the defendants produce the records and judgments in the cases of the owners of the Merced and Creole against them, which were settled by Houren paying one hundred dollars in cash, and giving his notes for the remainder. Neither of the Heatons shows that they ever paid any part of these judgments, nor that they have accounted for their portions in settlement with Houren. He makes no claim in recon-' vention, nor is he before us. The plaintiff was no party to the
The court below rejected the demand in reconvention, and gave a judgment in solido against George and James Heaton for $666 66 and the costs, and a separate judgment against Houren for $581 09; and from the former, this appeal is taken. Both parties insisLthat the judgment- is wrong, and ask us to correct it. The plaintiff says that he should have had a judgment for the whole amount of his claim ; the defendants say that he is not entitled to any thing, and that they ought to recover the sum claimed in reconvention.
We are of opinion that the court below did not err in rejecting the demand in reconvention. It is not sustained by sufficient evidence given in this suit. We do not consider Davis as bound by evidence given in suits to which he was no party, and of the existence of which it is not shown that he was informed. Even if he were bound by the evidence, it is questionable whether it would make him responsible in damages to the defendants. The statement is, that the Hudson left the city with a very heavy tow — a ship on each side, and three schooners and the brig astern; The hour of departure was about half-past nine, P. M.: the night was clear, and all the witnesses say, a good one for going down the river. At a late hour the plaintiff went to bed. Between twelve and one o’clock a fog suddenly rose, and soon became so dense, that the shore, and objects at a little distance, could not be seen. The master of the Creole says, that he could scarcely see the vessel along side of him. The pilot, who is not shown to be incompetent, testifies, that he and the inferior officers, at the time, had charge of the deck, and that as soon as he found he could not navigate safely, he ordered the fires of the boat to be wet down, and hailed the vessels to put their helms a-po.rt, and gbt their an
We think it not improbable, that the judgments in the cases against the defendants, for injuring the brig and schooner were correctly rendered, in conformity with the principles upon which the case of Smith etal. v. Peirce et al., (1 La. 350,) was decided by this court. It was there held, that the proprietors of tow-boats were common carriers, and subject to all responsibilities as such ; but it does not follow, that, because the proprietors are responsible to others for the negligence or misconduct of all their agents and servants, that all these are responsible to the proprietors for each other. It was not the watch of the plaintiff when the alleged injuries were inflicted, but of another. I't is physically impossible that the master of a vessel can always be on deck ; and it is not right that he should be responsible to his owner for every act or omission of the other officers. His liability is very great, but we are not disposed to carry it to the extent claimed.
The defendants contend that, the owners of tow-boats are not commercial partners, as we have often held that the owners of other steamboats are. We think otherwise. Although employed for hire in a manner somewhat different from boats navigating the
It is further said, that because this court have, held, in 17 La. 162, that tow-boats have no privilege for their hire, therefore, their owners are not responsible in the same manner as owners of boats differently employed. We do not think this a logical conclusion. Privileges are arbitrary provisions of law, granted to secure the execution of certain kinds of contracts ; but the character of the personal responsibility is not affected. A privilege is an accessory right, and although an obligor may not be entitled to it, he is not discharged from his liability.
The plaintiff complains that the court erred, in maintaining the defendants’ plea of prescription for all the wages which were owing for one year previous to the institution of the suit. The defendants rely upon that portion of article 3499 of the Civil Code, which says, that the action for the payment of the wages of the officers, sailors, and others of the crew, of ships and other vessels, is prescribed by one year. The plaintiff says, that he is taken out of this clause, as Houren, one of the owners of the boat, had acknowledged and approved his account; and that he comes within the second clause of article 3500. To this, the defendants, reply, that at the time this account was approved, the partnership between them and Houren had been dissolved, by his purchase,
We are, therefore, of opinion, that the prescription only applies to the wages owing anterior to the 1st of February, 1840, instead of those previous to the 11th of March, of that year; which will entitle the plaintiff to recover, two hundred and twenty-six dollars
It is, therefore, ordered and decreed, that the judgment appealed from be amended, and that the plaintiff recover of George and James Heaton, in solido, the sum of eight hundred and ninety-three dollars and forty-seven cents, with costs in both courts ; but upon this judgment, and that rendered against Houren in the court below, the plaintiff shall only receive the sum of $1247 75, for which sum Houren is bound in the approved account.
Bullard, J., took no part in the decision of this case, not having been on the bench at the time of the argument. Simon, J., was absent both then, and at the time of the decision.