Griswold v. Sharpe

| Cal. | Jan 15, 1852

Justice Heydenfelt

delivered the opinion of the Court. This case was tried by the judge below without a jury. The main point on which the appellants rely for reversing the judgment, is based upon the ground that the judgment of the Court is not Warranted by the evidence. It has been heretofore decided, that where there was any conflict in the evidence, the appellate Court would not review the facts of a case. Hoppe v. Robb. We not only affirm that decision, but will also decline to review the facts of a case unless the assignment of errors shews that the Court below refused an application for a new trial, made on the ground that the verdict was contrary to the evidence;—and that only because the statute gives an appeal from the refusal of a new trial. In all cases where the judge below tries the facts of a case, the proper mode of reserving the questions of law arising upon the facts, is to ask the Court to decide the law as counsel may desire; and upon a refusal, to have it noted in the bill of exceptions.

In this case, even if the facts as shewn by the record were properly before us for revision, we could not disturb the judgment. We affirm the principle insisted on by the ■ appellant, that in a case of collision, the plaintiff must be faultless. We also concede that the regulations instituted by the harbour master under the authority of the statute, are of binding efficacy, and form part of the law of the state. But, nevertheless, we think it sufficiently appears from the evidence, that the neglect of the plaintiffs to observe the rule which required his jib and flying jib booms to be rigged in, was not the cause of the collision. It may have increased the injury; and we must presume that it was so considered by the Court below in assessing the damages, especially as the record does not shew the contrary.

When a vessel is properly in charge of a licensed pilot, the owner is not liable for damages which may ensue from the negligence or misconduct of the pilot. Under our statute, however, the responsibility of taking a position, or berth, for a vessel in port, rests upon the master of the vessel, or upon the harbour master; and therefore the owner is not exempt from liability for injuries committed by taking an improper berth, although such berth may have been selected by the pilot who brought the vessel into port.

There remains but one other point to consider. It seems that,' pending the proceedings in this cause, an attachment was sued out by the plaintiffs below, which was levied on the property of the defendants. A motion was made to dissolve the attachment, which was refused by the Court below; and this refusal is assigned as error. The process of attachment is the creature of statute. It is a remedy only given in cases of indebtedness arising upon contract; and in this case, the resort to it was a gross abuse of that process, and this court must extend to it the remedy which the District Court refused.

The order refusing to dissolve the attachment is reversed, and judgment is here rendered dissolving the attachment. The final judgment of the Court below is affirmed.