Finch v. Brown

13 Wend. 601 | N.Y. Sup. Ct. | 1835

By the Court,

Savage, Ch. J.

The action in this case is debt on bond in point of form, but in substance it is an action for damages for wilfully or negligently running down the plaintiff’s sloop. The case was very fairly submitted by the judge to the jury, and if either party has reason to be dissatisfied with the charge, it is the plaintiff; not the defendants.

The cause seems to have been tried, and was argued in this court, upon the assumpsit that the plaintiff had no right to recover, unless he had lights in the rigging of his vessel, as prescribed by statute, at the time of the collision. Whether such lights were indispensable to a recovery is not a material question in this case; no opinion will therefore be given upon it. The true question is, did the collision take place by reason of the negligence of those who navigated the steam-boat? The jury have answered in the-affirmative.

The damages are said to be excessive. On that point there was no misdirection. The judge directed the jury to find a verdict for the actual loss; by which Iú nderstand himto mean the actual damages done to the vessel—notthedamages which the plaintiff may have sustained by the loss of the earnings of the vessel, or any other contingent damages. The rule of damages in this mode of proceeding should be the amount necessary to repair the vessel—to put her in as good condition as when the accident happened. This necessarily results from the provisions of the statute. The remedy is given for the damagedoneto thevessel; not the damage which the owner may possibly sustain as consequent upon the collision. If the owner wishes to recover-such damages, he should bring his action on the case, as he might before the statute was passed. Again; this proceeding must be commenced within twenty clays, and the amount of damages must be ascertained and shown to the officer issuing the attachment, and the penalty of the bond must be in double the amount of the damage; but if the amount depended upon such vindictive damages as a jury might give, those might exceed the penalty of the bond. But the facts that the legislature consider the damages capable of liquidation within twenty days, and that no other damage is mentioned but the damage sustained by the vessel, and conclusive to my mind that none but actual damages to the vessel xvere intended to be recovered in this form of proceeding. It is considered in the nature of a debt, like, an account by a mechanic for work done, or materials found for the building or repairing a vessel, or provisions or stores furnished; and, like them, these damages, when liquidated before the officer by ex parte affidavits, become a lien upon the vessel doing the damage, until a bond is given ; then the proceeding is upon the bond, but there is no reason why any other rule of damages should be adopted. The obj'ect of giving the bond is to discharge the vessel from the lien, and substitute personal security for the damages ; not to vary the rule of ascertaining those damages. The obligors in the bond are substituted in place of the vessel, to be responsible for the amount recovered.

The witnesses all speak of actual damages, but they vary in their estimates from $300 to $1500. The two who estimated the damages at $300, evidently estimated only part of the damage ; they were of opinion that part of the trunnels had been started before the collision, and they did not estimate the injury to the rails and rigging. Three others estimated the cost of repairs at $1000, and one, the captain of the sloop, at $1500. I should have been better satisfied,if the verdict had been less, Those who estimate $300 as the cost of repairs, say the sloop, before the injury, was worth only from $800 to $1000. The liquidation of damages and the credibility of the witnesses are peculiarly the province of the jury. Their verdict, on either ground, ought not lightly to be interfered with, unless there has manifestly been a mistake, or there is reason to suppose that the jury have been in-financed bv passion or prejudice. The damages appear to be y c . > , ,, ri. excessive, and therefore a new trial should, be granted to retry that question only, upon payment of costs.