5 F. 75 | D. Or. | 1880
This suit is brought to recover the sum of §4,900, on account of the death of William A. Perkins, the libellant’s intestate, alleged to have been caused by the negligence of the defendant on November 16, 1868, while transporting said Perkins across the Wallamet river, at Portland, on the defendant’s duly enrolled steam ferry-boat Number One.
Substantially, the libel alleges that on September 17,1879, by the order of the county court of Jackson county, Oregon, the libellant was duly appointed administrator of the estate
The defendant has taken 62 exceptions to the libel for “surplusage, irrelevance, and impertinence,” which appear to include the whole of it; and also an exception, for the same .causes and for repetitions therein, to the libel as a whole. According to rule 36 of the admiralty rules, “exceptions may be taken to any libel, allegation, or answer for surplusage, irrelevancy, impertinence, or scandal; and if, upon reference to a master, the exception shall be reported to be so objectionable, and allowed by the court, the matter shall be expunged at the cost and expense of the party in whose libel or answer the same is found.” On the argument no specific portion of the libel was pointed out as impertinent, except a brief allegation concerning the danger incurred by other passengers on the same occasion, but it was insisted generally that the case of the libellant was stated with unnecessary particularity and repetition.
In admiralty, particularity in pleading is not generally considered a fault, but the reverse. The rule is that the pleader must state all the essential particulars of the alleged tort or misconduct with the circumstances of time and place. Ben. Ad. 486-7; 2 Pars on Ship. & Ad. 381; Ad. Rule 23; The Clement, 2 Curt. 366; Mocomber v. Thompson, 1 Sum. 385; The Quickstep, 9 Wall. 670; The Syracuse, 12 Wall. 173. I do not think this libel is objectionable for impertinence,
Exceptions are also taken to the libel that it is informal and insufficient, because it does not appear—First, that the libellant has capacity to institute or prosecute this case; second, that he is the duly qualified administrator of said Perkins; third, that he has sustained any damage, or that the defendant is indebted to him; and, fourth, that the subject-matter of the suit is not within the jurisdiction of the court. These exceptions in admiralty are in the nature of special demurrers at common law. The first and second exceptions are substantially the same, and only make the objection that, upon the face of the libel, the libellant is not the qualified administrator of the deceased, and therefore not entitled, as such, to maintain this suit. Now, the libel not only states expressly that the libellant is the duly qualified administrator of the deceased, but sets forth every particular fact neccessary to make him so. These exceptions are disallowed also. In support of the third exception it is contended that the death was not caused by a marine tort because it took place in the course of the performance of a contract mainly to be performed on land. This argument assumes what does not appear upon the face of the libel, but it is well understood that Perkins was not only a passenger on the defendant’s boat on the trip across the Wallamet river when the death occurred, but also on its railway from some point north of Roseburg, and that the transportation across the river was merely incidental to or an insignificant part of the contract to convey the deceased to Portland. Admitting, however, that such was the fact, it does not affect the result.
The jurisdiction of courts of admiralty in cases of torts depends wholly upon locality. Where a tort is committed upon a pirblic navigable water of the United States, it is a marine tort, within the jurisdiction of the proper admiralty court. The term “torts” includes wrongs suffered in consequence of the negligence or malfeasance of others, when the remedy at common law was by an action on the case. Waring v. Clarke, 5 How. 451; The Gennessee Chief, 12 How. 450;
This voyage, upon which this death occurred, being made upon a public, navigable water of the United States, it matters not whether the boat was running in connection with a railway or otherwise, or whether it was plying,up or down the stream, or across it. The length or direction of the voyage, or its relation to other means or modes of transportation, in no way affect the fact stated in the libel, and upon which the jurisdiction of the court of admiralty alone depends, that the tort was committed upon the public navigable water of the United States. . ”
; Upon this and the remaining exception two other points are made by counsel for the defendant, namely: (1) That in admiralty, as at common law, no action is maintainable for the wrongful death of another; and (2) that the damages given by section 367 of the Oregon Civil Code, for the death of a person “caused by the wrongful act or omission of another,” cannot be recovered by a suit in admiralty or otherwise than by an action at law in the state court; and upon these the contention mainly turns.
It is admitted that it came to be the rule at common law that an action will not lie to recover damages for the death of a human being. The maxim, “Actio personalis moritwr cumpersona,” was-held to apply. It is also admitted that the weight of authority in this country is with the English rule. But it is not admitted that the rule is founded in reason or is consonant with justice.
The earliest English case is Higgins v. Butcher, Yelv. 89, :in which it was held that a master could not maintain an action for the death of his servant, feloniously caused, for the reason that the private injury was merged in the felony. But this would not apply to a case where the death was caused by negligence, not criminal, and at this day w^uld not be held sufficient to defeat the private remedy, when it otherwise existed.
Afterwards (1808) Lord Ellenborough, in Baker v. Bolton,
The right to maintain the action has been denied in several of the state courts, among others in Massachussetts in Carey v. Berkshire Ry. Co. 1 Cush. 477, and in New York in Green v. Hudson Ry. Co. 2 Keys, 294; but it has been maintained in the latter state in Ford v. Monroe, 20 Wend. 210, and in U. S. C. C. for Nebraska in Sullivan v. Union Pacific Ry. Co. 3 Dil. 341. It has also been denied in Insurance Co. v. Brame, 95 U. S. 756.
In Sullivan v. Union Pacific Ry. Co., Mr. Justice Dillon disapproves of the common-law rule, and, speaking of the decision in Baker v. Bolton, says: “Considering that it is not reasoned and cites no authorities, and the time when it was made, and that the rule it declares is without any reason to support it, my opinion is that it ought not to he followed in a state where the subject is entirely open for settlement.”
But in 1846 parliament interfered, and by the act of 9 and 10 Vict. c. 93, commonly called Lord Campbell's act, gave an action to the administrator for the benefit of the family on account of the death of a person caused by the “wrongful act, neglect, or default” of another; and most of the states of the Union, including Oregon, have since followed this illustrious example.
But the civil law permitted the action, and it is not admitted that in a court of admiralty, which is not governed by the rules of the common law, a suit for damages on account of the death of a person may not be maintained. In The Charles Morgan, 4 P. C. Law Jour. 151, the district court for the southern district of Ohio, in a suit in admiralty brought by the widow to recover damages for the death of her husband, sustained the jurisdiction, upon the ground_that a majority of
In the Steamboat Co. v. Chase, 16 Wall. 532, Mr. Justice Clifford incidentally considers the question and says: “Diffi- . culties, it must be conceded, will attend the solution of the question, but it is not necessary to decide it in this case.”
' In The Sea Gull, Chase’s Dec. 146, Chief Justice Chase sustained a libel by a husband for damages for the death of his wife, caused by a collision between the Sea Gull and the Leary on the Chesapeake. • In the course of his opinion he cites, with approval, the observation of Mr. Justice Sprague in Cutting v. Seabury, 1 Sprague, 522, that “the weight of authority in common-law courts seems to be against the action,”—for damages on account of the death of a person,— “but natural equity and the general principles of law are in favor of it;” and adds: “Certainly, it better becomes the humane and liberal proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.” And in The Highland Light, Chase’s Dec. 151, which was a libel in rem by the widow and son of an employe on the vessel who lost his life by the collapse of a steam-chimney, the chief justice affirmed his ruling in The Sea Gull, and said: “The jurisdiction for marine torts in admiralty may be said to be co-extensive with the subject. It depends on the locality of the wrong, not upon its extent, character, or the relations of the person injured.”
But it is unnecessary to consider this point further, as the libellant claims to recover under the statute of this state, (section 367, Or. Civ. Code,) which provides: “When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law therefor against the latter, if the’ former might have maintained an action, had he lived, against the latter, for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and the damages therein shall not
But the point is made by counsel for the defendant that the Oregon statute provides that the damages for the death shall bo recovered by an action at law, and therefore they cannot otherwise be obtained, as by a suit in admiralty. But the right conferred by the statute, in whatever form of words, is essentially separate and distinct from the remedy; and it may be enforced in the proper national court according to the procedure of that forum.
In The Highland Light, supra, 154, it was held that the widow and son could maintain a suit in admiralty to enforce a right to damages given by a similar statute of Maryland for the death of the husband and father, caused by a tort committed upon the navigable waters of that state. In speaking of the statute the chief justice says: “The right is quite separate from the remedy. The right, like that of a statute lien upon a vessel for repairs in home ports, may be enforced in admiralty by its own processes. It is not necessary to pursue the statutory remedy in order to enforce the statutory right. It is clear, therefore, that, for an injury such as that proved in this .case, the wife and son of the man killed may have redress in admiralty.”
In Steamboat Co. v. Chase, supra, 531, Mr. Justice Clifford, in discussing the question, said: “Doubts, however, may arise whether the action survives in the admiralty, and, if not, whether a state statute can be regarded as applicable in such a case to authorize the representatives of the deceased to maintain such an action for the benefit of the widow and children of the deceased. Undoubtedly the general rule is that state laws cannot extend or restrict the jurisdiction of the admiralty eouits, but it is suggested that the action may be maintained in this case without any departure from principle, as the only practical effect allowed to the state statute is to take the case out of the operation of the common-law maxim that personal actions die with the person.”
Assuming that the right of action dies with the person in admiralty, as at common law, then, in my judgment, the case is in all respects analogous to those arising under state statutes giving a lien upon a domestic ship for repairs; giv? ing half pilotage for an offer of pilotage services, or a right to a party in possession of land to maintain a suit against any one setting up an adverse claim thereto for the purpose of having such adverse claim determined. In all these cases the local law gives the right, which, like other rights, may be enforced in the proper national court, depending upon its nature or the citizenship of the parties.
If a state gives an alien a right in lands which the common law does not give him, such alien may assert such right
The question of whether the state or national tribunals have jurisdiction does not depend upon the state or national origin of the right or title in question. If the plaintiff’s citizenship is different from that of the defendant he has a right to sue in the circuit court of the United States, whether the right he asserts is of state or national origin. For the same reason, if a right is of admiralty jurisdiction, it is cognizable in the district courts without reference to the residence of the parties or the origin of the right. The maxim that the-state cannot enlarge the jurisdiction or control the process of the national courts is admitted. But, certainly, it may increase the cases in such courts by enlarging the class of persons or things included in their jurisdiction.
For instance: By the general maritime law of the United States material-men have no lien upon a vessel for supplies furnished her in the home port; but, in the absence of legislation by congress, the state may give a lien in such cases, and, the contract and service being a maritime one, the right thus acquired may be enforced in the district court. The Planter, 7 Pet. 324; The Lottawana, 21 Wall. 579. Congress, by virtue of its power to regulate commerce, may pass laws governing pilots and pilotage; but until it does so the state may make regulations on the subject. Suits for pilotage are of admiralty jurisdiction; but by the general marine law compensation cannot be recovered upon a mere tender and refusal of pilot services. 'Yet many of the states having found it necessary, in maintaining a body of skilful and daring pilots upon the pilot grounds within their limits, to provide that the pilot first tendering his services to a vessel thereon should receive, if refused, half pilotage, there was thus created in favor of the pilot so tendering his services a
Owing to the anomalous state of the titles to land in Kentucky, a statute of that state, passed in 1796, gave to the person in possession of real property and having a title thereto the right to maintain a suit in equity against any person setting up a claim thereto for the purpose of determining such claim, without being compelled to wait for such person to assert such a claim at law.
This statute enlarged the class of cases in which a party was entitled to relief in a court of equity by obtaining a decree to quiet the title to lands. Proving beneficial, the substance of it has since been adopted in many of the states and now constitutes section 500 of the Oregon Civil Code. It gave a new right, which from its nature was and is properly enforceable in.a court of equity, as well of the nation as of the state, wherever the citizenship of the parties gives the former jurisdiction. Curtis v. Sutter, 15 Cal. 262. In Clark v. Smith, 14 Pet. 200, the supreme court held that the right conferred by this statute could be asserted in the courts of the United States as well as in those of the state. In Lorman v. Clark, 2 McLean, 569, the court held that a statute of Michigan,
It is also objected that it is not explicitly stated in the libel that the death was caused without the fault of the deceased. The libel states that the death was caused by the negligence of the defendant, and details the facts and circumstances of the transaction, from which it reasonably appears that it must have occurred wholly from such neglgence. My impression is that the libel is sufficient in this respect, and that if the defendant wants to raise the question of contributory negli
The only case cited upon this point is Murphy v. The C., R. I. & P. R. Co. 44 Iowa, 661. In this case the contributory negligence of the deceased appears to have been pleaded as a defence, but upon the close of the plaintiff’s evidence the court below, upon the motion of the defendant, directed the jury to find for it, because it appeared from such evidence that the deceased was “guilty of such negligence as contributed proximately to the accident; ” and this instruction was affirmed on appeal. The case is not in point. In the judgment of the court the plaintiff’s evidence anticipated and established the defendant’s defence.
In conclusion, the tort which caused the death of Perkins, having occurred upon a navigable water of the United States, is a marine one; and, even if the maritime law does not give a remedy for the wrong, the law of the state having given the right to the administrator to recover damages therefor, this court, as a court of admiralty, has jurisdiction of a suit to enforce such right.
These exceptions are also disallowed.