Chicago, D. & G.B. Transit Co. v. Moore

• Decision Date: 30 June 1919
• Docket Number: 3258.
• Citation: 259 F. 490
• Parties: CHICAGO, D. & G.B. TRANSIT CO. v. MOORE et al. [1]
• Court: U.S. Court of Appeals — Sixth Circuit

259 F. 490

CHICAGO, D. & G.B. TRANSIT CO. v. MOORE et al. ^[1]

No. 3258.

United States Court of Appeals, Sixth Circuit.

June 30, 1919

Chas E. Kremer, of Chicago, Ill., for appellant.

Geo. E Brand and Arthur Kilpatrick, both of Detroit, Mich., for appellees.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

Appellees 11 in number, filed libels in rem for recovery of damages by reason of illnesses alleged to have been caused by tainted food and contaminated water asserted to have been served to libelants while passengers on the steamer South American on an excursion in July, 1915, from Detroit to Houghton, Mich., except that in Campbell's libel injuries to his daughter Elizabeth were alone involved, and that Ballard's was filed solely on account of injuries to his daughter Dorothy. Each of the 11 passengers in question was ill on the boat, and each on returning home developed a serious illness. The District Judge found that a comparatively small quantity of tainted duck and meat was negligently served to the passengers, and that contaminated water was also negligently provided for them; but, while expressing a suspicion that some of the illnesses on the boat may have been aggravated by eating the tainted food or drinking the contaminated water, was of opinion that libelants had not sustained the burden of proving that such illnesses were caused thereby, and accordingly denied recovery for illnesses on shipboard. It was, however, found as a fact that each of the libelants received from the contaminated water the disease germs which caused their illnesses after the return of the boat to Detroit; the illness of nine of the libelants being found to have been typhoid fever, and in the case of each of the other two an illness closely allied to typhoid. There was interlocutory decree, with reference to a master commissioner to take testimony and report the nature of the respective illnesses and the respective damages there from; the steamer being declared liable for all illnesses 'which might reasonably be traceable to impure drinking water partaken of on the trip. ' In Moore's case the steamer was expressly declared liable for the typhoid fever as also for a gallstone trouble, provided that trouble was found to be due to drinking the impure water. The commissioner found and reported that Moore's gallstones were so caused, and that the illness of each of the other libelants might reasonably have been caused by the furnishing of the impure drinking water on the trip; the illness of seven of the libelants being found to have been typhoid fever, those of Lawrence and Hudson 'typhoid or paratyphoid,' that of Town an 'intestinal affection,' and that of Mallotte arthritis. There was an award of damages to each libelant. The claimant and five of the libelants excepted to the report, and each party moved for a reopening of proofs. All exceptions and both motions were overruled, and final decree entered in accordance with the master's report.

1. We have no difficulty in affirming the conclusion that contaminated water was, during several hours at least, and through the steamer's negligence, provided for the passengers on the South American.

The boat was provided with a sterilizer and a filter, and normally only sterilized and filtered water was served to passengers. However, between 10:30 and 11 p.m. on Sunday, June 6th, the boat ran aground in Hay Lake (which is a broadening out of St. Mary's river), about 12 miles below the Soo; her sea cocks, from which water is supplied to the boat, being imbedded in the mud. She was not released until between 4 and 5 a.m. of the following day, which was Monday, June 7th. Meanwhile the water in both ballast and fresh-water tanks had been exhausted for power purposes. When the boat was released water was pumped directly from the river into the fresh-water system, without being sterilized or even filtered, and without any attempt to get rid of the mud in the sea cocks except by blowing out with steam. This fresh-water system supplied all the faucets in the staterooms as well as the drinking fountains in the saloon. The ship's officers recognized the river water taken on as unfit to drink and did not themselves drink it. The crew were not allowed to drink it, and the faucet ordinarily available to them was wired up. The steward would not serve it on the table, and so no water was served at either breakfast or luncheon on the seventh. But neither the faucets in the staterooms nor the fountains in the saloon were sealed, nor was any notice given to passengers that the water obtainable therefrom was not wholesome. In this the steamer was clearly negligent; for, as the District Judge well said, it could not be assumed that passengers would refuse to drink the water merely because it was roily. That it was drunk by many of the passengers is well established. Indeed, the nonservice at table and the lack of ice water would naturally tend to increase the consumption of the available water.

The record indicates that the water of the St. Mary's river at the point from which the water in question was taken was unfit for human consumption. The published report of the International Boundary Commission, investigating the pollution of boundary waters, found in 1913 that the water of that river was polluted by sewage not only from boats, but (below the American and Canadian Soos) by the passage directly into the river of the sewage not only of both those towns, but of Steelton, practically a suburb of the Canadian Soo. In the neighborhood where the water in question was taken the colon bacillus was found in as small a quantity as one-tenth of a cubic centimeter of water. This conclusively proved the water dangerous to drink, not because the colon bacillus causes fevers such as typhoid, for it does not, but because it is an intestinal germ, and its presence, to the extent stated, shows the presence of excreta from feces and urine; and because the bacillus typhosus, or typhoid germ, which is said not to be capable of direct isolation in water (although there is seemingly evidence to the contrary), and which expelled in the feces and urine of a patient (and thus where it exists accompanies the colon bacillus) furnishes, in the form of drinking water, the most potent source of typhoid infection, in the general acceptance of the medical profession.

The commission's report referred to states that 'acute outbreaks of typhoid (at the Canadian Soo) must always be expected' from the use there of the polluted water. It also refers to the 'continued excessive typhoid rate' of the American Soo, especially during the 'navigation season'; although it would appear from the appendix that conditions at the American Soo have been so much improved that there is practically no typhoid during the winter. The report of the Michigan State Board of Health shows what appears to be an excessively high death rate at the American Soo from 1900 to 1913. These public reports should have been known to the steamer's management. In 1915 eight cases of typhoid at the American Soo were reported, one on June 4th. As opposed to these considerations are the facts that the water in question is not shown by actual analysis to have contained the typhoid germ, that other methods of infection (as by flies, milk, and otherwise) are possible, and that the possibility of infection by other means than the water in question is not conclusively negatived. It must be conceded that the existence of the typhoid germ in the water taken from the river, and served on board the ship, is not proven beyond all possible doubt. But such degree of proof is not necessary. A preponderance of the evidence, a showing of greater probability, is all that is required (Marbury v. Railroad Co. (C.C.A. 6) 176 F. 9, 99 C.C.A. 483); and in our opinion the evidence preponderates in favor of the final conclusion of the court below, which, indeed, we should accept, unless at least the evidence clearly preponderates against it. Monongahela Co. v. Schinnerer (C.C.A. 6) 196 F. 375, 379, 117 C.C.A. 193; Cleveland v. Chisholm (C.C.A. 6) 90 F. 431, 434. ^[2] Indeed, there are several features which, taken together, persuasively point to that conclusion, including (a) the fact that so large a number of typhoid cases was shown to have developed on the South American; and (b) that, so far as appears, there were no typhoid cases among the passengers on the North American (a sister ship of the South American), which passed over the course at approximately the same time, but which did not take water from the Soo river-- a consideration which we think not nullified by the fact that the North American's passengers were largely from Western Michigan ports, while libelants in large part took the steamer at Detroit, where typhoid is generally more or less endemic, as is usually the case in large cities

We think the otherwise reasonable probability that the water in question contained typhoid germs in dangerous quantities is not overcome by the facts that the American Soo has had no epidemic of typhoid in recent years, and that the typhoid case of June 4, 1915, is not shown to have caused the infection here in question. A conclusion based on such facts would overlook not only the continuing deposit of sewage from the Canadian Soo, the danger from lake boats during the navigation season, the fact that a considerable number of typhoid patients remain 'typhoid carriers' (and thus not improbably there were several at the American Soo, which continued to discharge its sewage into the river) for a long period of time after apparent recovery from the disease (and so no longer reported as having it), meanwhile expelling the typhoid germs through the excreta; it being assumed by...