Union Steamboat Co. v. Chaffin's Adm'rs

204 F. 412 | 7th Cir. | 1913

KOHLSAAT, Circuit Judge

(after stating the facts as above). [1} The defense of laches is not sustained by the evidence. The cause was at all times under the control of the libelant, and could have been expedited if desired by it.

There is nothing in this record to show that the court, by orders of May 26, 1893, and May 12, 1902, required the claims to be presented in this proceeding within three months from date of either of said orders. If any such were entered, they do not appear in the record.

Libelant delayed the filing of its petition to limit its liability to the value of the steamer for almost three years, and began to take its evidence on July 7, 1902, or more than nine years after filing the petition, and then under order of court. Libelant is in no position to complain of delay on the part of respondents. If authority for this position be necessary, it is found in London Bank v. Horton, 126 Fed. 593, 61 C. C. A. 515, and The Martino Cilento. (D. C.) 22 Fed. 859. Nor can the defense of failure to bring suit within two years from the. death in accordance with the Illinois statute of limitation in such case provided, prevail. Suit for each of the claims allowed by the commissioner was duly institued before the expiration of two years from death, and before the filing of the petition to limit liability. By the order of the court entered herein on January 9, 1894, respondents are enjoined from further prosecuting any suit for or on account of injuries suffered by reason of said explosion. At that time said suits were pending. Thus the two-year limitation of the statute had been complied with.

Sworn answers were filed herein by all the respondents prior to July 7, 1894. These set up the claim of the respective respondents, giving the facts on which they were based. Later formal claims were filed. The present proceeding ousted the jurisdiction of the several courts in which the suits had been instituted (Butler v. Boston Steamship Co., 130 U. S. 552, 9 Sup. Ct. 612, 32 L. Ed. 1017; Providence & New York S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 3 Sup. Ct. 379, 617, 27 L. Ed. 1038) and suspended the running of the statute (Richmond v. Irons, 121 U. S. 27, 7 Sup. Ct. 788, 30 L. Ed. 864; Union M. L. I. Co. v. Dice (C. C.) 14 Fed. 523; Newgass v. Atlantic & D. Ry. Co. (C. C.) 72 Fed. 716; Fidelity Ins. Co. v. Roanoke Iron Co. (C. C.) 81 Fed. 439). The dismissal of these suits for want of prosecution after the entry of the restraining order by the several courts in which they were pending worked no prejudice to respondents.

| Í j Without having our attention called to any specific authority to that effect:, we are of the opinion that in analogy to proceedings had in cases of removal from the state court to the federal court, and upon principle, the several suits of respondents were by the order granting the prayer for limited liability and restraining respondents from further action in the said suits, removed to this court; and that, for all purposes of limitation of time under the several statutes herein invoked, the said several rights of action set up in the several answers and claims of respondents herein must be treated as a continuation of their said several suits pending in the state and other courts; and that the defense of the statute of limitation interposed by libelant cannot prevail.

[ 31 We do not deem the fellow-servant doctrine, as claimed by libelant, pertinent to the facts set out. Respondents’ decedents and Holliday, save one, were stevedores, and concerned merely with the unloading of the ship. So far as disclosed, they neither knew nor were chargeable with knowledge of the conditions existing on the steamer. Nor does it appear by any direct evidence that those in charge of the steamer had actual knowledge of the presence of volatile and dangerous substances in the cai'go. The Commissioner found that none of the general officers or agents of libelant had such knowledge prior to the explosion, and we are thus brought to a consideration of the question whether the facts disclosed are such as to charge libelant with such knowledge and with such negligence as to make it liable for the damages caused by the explosion within the limited liability aforesaid. The Commissioner further found that on the facts herein libelant was so liable, and thereupon recommended the allowance of the several claims set out in the statement of facts. The District Court confirmed the report and allowed the claims as reported by the Commissioner. In this we concur.

[4 | It is libelant’s contention that at the date of the allowance of the said claims by the Commissioner, in several instances, the beneficiaries had deceased, and that, in view of that fact, the amount of those claims should have been reduced. It does not appear but that the Commissioner took such facts into consideration in making, the allowance. The right of action arises immediately upon the death. In Pitkin v. N. Y. C. & H. R. Ry. Co., 94 App. Div. 31, 87 N. Y. Supp. 906, cited by libelant on another point, it is said:

‘"The right to .such damages which liras accrues became an asset of the estate of Hie beneficiary designated by the statute, and the death of such beneficiary does not prevent or termina fe a right of action to recover damages which have thus been by him suffered” — citing Matter of Meekin v. Brooklyn H. R. R. Co., 164 N. X. 145, 58 N. E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635.

Respondents were entitled to recover as of the date of the deaths of their several decedents. The amount of damage sustained by the widow or other beneficiary or dependent is necessarily incapable of exact computation, and in the cases at bar no deductions can be drawn from the evidence as to what elements of damages formed the basis of the allowance. The amounts allowed in the cases to which the objection is raised, were well within the statutory provision, and are not shown to be excessive.

[5] From the record it appears that the Commissioner’s report was finished on December 1, 1906; that notice to that effect was given on that day and the parties given until January 7, 1907, to file objections; that no objections were filed before the Commissioner. For some reason not explained in the record, the report was not filed in the clerk’s office until December 15, 1910. On the hearing upon the exceptions filed to the report before the District Court on August 1, 1911, the court adjudged the several claimants to be entitled to interest on their several judgments from the date when the report was finished, December 1, 1906. Dibelant contends that interest should not have been allowed prior to the date of filing the report, December 15, 1910, or almost four years after the Commissioner had completed his report. The following authorities are discussed in the briefs: Burrows v. Lownsdale, 133 Fed. 250, 66 C. C. A. 650; Hurd’s Rev. Stat. Ill. 1911, c. 74, § 3; Ruddy v. McDonald, 149 Ill. App. 111, 117; Tilghman v. Proctor, 125 U. S. 136, 8 Sup. Ct. 894, 31 L. Ed. 664; Great Lakes Towing Co. v. Kelley Island L. & T. Co., 176 Fed. 492, 100 C. C. A. 108.

In the case of Burrows v. Lownsdale, supra, it was sought to secure allowance of interest from the date of filing the libel. The court held that:

“A personal injury never creates a debt, nor becomes one until it is judicially ascertained and determined, nor until that time can it draw interest.”

To the same effect is L. & N. R. Co. v. W. L. Wallace, 91 Tenn. 35, 17 S. W. 882, 14 L. R. A. 548.

Section 3 of chapter 74, Hurd’s Rev. St. Ill. 1911, provides that:

“When judgment is entered upon any award, report, or verdict, interest shall be computed * * * from the time when made or rendered to the time of rendering judgment upon the same.”

We are unable to see in what respect the case cited from 149 Ill. App. bears upon the present case. The court allowed interest on the amount found due by the master from the date of the filing of his report to the date of the entry of the decree. The case does not show the .facts in detail, nor does it appear that anything more was asked for. Presumably, the report was filed as soon as completed. In Tilgh-man v. Proctor, interest was allowed from the date of the filing of the master’s report in a patent suit, and complainant sought to set aside the master’s report for failure to allow interest on profits before the date of his report. It does not appear that any time elapsed between the making and filing of the report. Manifestly, had the master included interest among the items allowed as damages, he would have been allowing it upon an unliquidated claim. Parks v. Booth, 102 U. S. 96, 26 L. Ed. 54. The court there held that interest could be allowed only after judicial ascertainment of the amount due on accounting. That, however, was not intended to be laid down as a general rule, but as one. that was equitable in that case.

In Great Rakes Towing Co. v. Kelley Island L. & T. Co. et al., it appears that the latter’s steam barge, the Ohio, was, on June 25, 1901, sunk by reason of injuries caused by the towing company’s tug, the Rutz, and certain obstructions placed by the city of Cleveland. On the hearing upon the libel filed by the owners of the steam barge, the District Court held that the Rutz alone was liable and, instead of making an allowance as and for profits, allowed interest on the value of the Ohio, whose owners had replaced her by another boat pending her restoration to a serviceable condition. The interest was figured from the date of the interlocutory decree, which was entered about a year previous to the filing of the Commissioner’s report, up to the date of the entry of the final decree. The Court of Appeals found that both the Rutz and the city were liable, and reversed the case with direction to the District Court to enter a decree in accordance with its opinion, but sustained the allowance of interest in lieu of damages as fixed by the District Court.

In other cases, as in Mowry v. Whitney, 14 Wall. 620, 20 L. Ed. 860, and Littlefield v. Perry, 21 Wall. 205, 22 L. Ed. 577, much is left to the discretion of the court under the circumstances of each particular case. In The Albert Dumois, 177 U. S. 240-255, 20 Sup. Ct. 595, 601 (44 L. Ed. 751), it is said:

•‘The allowance of interest in admiralty cases is discretionary and not reviewable in this eouri except in a verv clear case”—citing The Scotland, 118 U. S. 507-518, 6 Sup. Ct. 1174, 30 L. Ed. 153.

To the same effect is Hemmenway v. Fisher, 20 How. 255, 15 L. Ed. 799.

The facts in the present case are unique. The interest on the claims, covering the period between the time when the Commissioner’s report was completed and when it was filed, amounts to about 24 per cent., aggregating more than $12,000. Thus the question presented becomes a very important one.

Considering briefly a number of the cases bearing upon the subject, we find a grave indefiniteuess as to the precise poiut here involved. Most of the authorities quoted are taken from patent cases in which the subject of interest on unliquidated damages lias often arisen.

In Crosby Valve Co. v. Safety Valve Co., 141 U. S. 441, 12 Sup. Ct. 49, 35 L. Ed. 809, interest was allowed from date of filing the master’s report. In Parks v. Booth, 102 U. S. 96-107, 26 L. Ed. 54, the Circuit Court allowed the amount found due by master’s amended report and allowed interest on that amount from time of filing report to time of entering decree. (November 24, 1875, to December 15, 1876). The decree was modified in the Supreme Court by eliminating items of $627.20 aud the interest on the authority of Silsby v. Foote, 20 How. 378-386, with the statement that profits being in the nature of un-liquidated damages do not bear interest without the special order of the court.

In Silsby v. Foote, 20 Flow. 378-386, 15 L. Ed. 953, the verdict of a jury and the master’s report were ignored by the Circuit Court, and the court took an accounting and allowed $5,663.82 interest. Allowance of interest was held to be error and deducted. It does not appear how interest was figured, though from the amount it would seem to have been figured as an item of the damages.

In Keep v. Fuller (C. C.) 42 Fed. 897-899 (Coxe, J.), interest was allowed from date of filing report after reducing the amount awarded on authority of Tilghman v. Proctor, and R. R. Co. v. Turrill.

In Rose v. Hirsh (C. C. A. 3d Cir.) 94 Fed. 178, 36 C. C. A. 132, interest was allowed from the date of dling master’s report, on authority of Tilghman v. Proctor. The master and Ciixuit Court found no damages. The upper court reversed with directions to enter decree for $1,649.23 and interest as above. It will be seen that the damages were not liquidated until the order of the Court of Appeals was entered.

In Railroad Co. v. Turrill, 110 U. S. 301-303, 4 Sup. Ct. 5, 28 L. Ed. 154, the case had gone to the Supreme Court and had been reversed with directions. In entering its decree, the Circuit Court allowed interest on the amount found due by the master, to whom the cause had been referred,' from the date of his report. This was assigned for error. The decree was affirmed by the Supreme Court. What was meant by the phrase, “the date of the master’s report,” does not appear. The Supreme Court states its reasons for affirming and bases its conclusions on the fact that the allowance of interest was equitable.

From the cases examined, we are of the opinion that, under the circumstances of this case, the trial judge did not abuse the discretion vested in him in allowing interest from the time when the report was completed. By the decision of the District Court the finding of the Commissioner as to the amount of the several claims was approved. It thus appeared that the amounts found by the Commissioner were correct and were liquidated for all purposes of the present inquiry. Moreover, the District Court was charged with duty to adjust the claims equitably. We will not assume that either of the parties was responsible for the delay. Dibelant could have paid when the Commissioner fixed the several amounts due and have saved interest. As it is, it withheld respondents’ money and had the benefit of it for almost four years, and should not now complain if it is required to pay interest.

We find no merit in the other matters assigned as errors, and the decree of trial court is affirmed.