Murphy v. New York & Cuba Mail S.S. Co.

• Decision Date: 04 April 1921
• Docket Number: 3386,3387.
• Citation: 273 F. 305
• Parties: MURPHY v. NEW YORK & CUBA MAIL S.S. CO. LALLY v. SAME.
• Court: U.S. Court of Appeals — District of Columbia Circuit

273 F. 305

MURPHY v. NEW YORK & CUBA MAIL S.S. CO.

LALLY v. SAME.

Nos. 3386, 3387.

United States Court of Appeals, District of Columbia.

April 4, 1921

Submitted January 4, 1921.

Appeal from the Supreme Court of the District of Columbia.

F. J Hogan and Leo P. Harlow, both of Washington, D.C., for appellants.

F. D McKenney, J. S. Flannery and G. B. Craighill, all of Washington, D.C., for appellee.

HITZ Acting Associate Justice.

These are appeals from judgments of the Supreme Court of the District of Columbia upon verdicts for the defendant directed by the court at the close of all the evidence. The two cases were consolidated for trial by order of the trial court, and are presented together here by stipulation of counsel.

The plaintiffs below-- appellants here-- are American citizens and residents of the District of Columbia, who were passengers for hire of the defendant company upon a voyage from New York to Havana, beginning on October 25 and ending on October 29, 1913. The defendant is a corporation of the state of Maine, and a common carrier of passengers between New York and Havana.

On October 25, 1913, the plaintiffs, accompanied by a third lady and unaccompanied by any male escort, sailed from New York on the defendant's steamship Havana, together with some 137 other first-class passengers, consisting of men, women, and children of various nationalities, and including one Smith, general agent of the defendant company in Havana. The crew of the ship numbered about 130 men, including operators for the wireless telegraph instruments, with which the ship was equipped; the vessel making no stop and entering no port between New York and Havana. This party of three ladies occupied all of stateroom numbered 1 and a portion of stateroom numbered 2.

On the night of October 27, while the ship was off the American coast or on the high seas, a Cuban woman passenger complained to officers of the ship concerning the alleged loss or larceny of certain jewelry. On the morning of October 28, while the ship was off the coast of Florida, the steward mentioned to the plaintiff, Miss Lally, an alleged theft of jewelry aboard the ship; while later on the same day a Cuban woman passenger spoke to both plaintiffs regarding the same occurrence.

In the afternoon of October 28, the Cuban woman passenger complained to the captain of the loss or theft of her jewelry from the lavatory of the ship, requesting him to have all the passengers searched for her jewelry. This the captain refused to do. Then the Cuban woman asked the captain to have the American women in stateroom numbered 1 searched, as she suspected them in connection with the disappearance of her jewels, because one of them was in the lavatory at the time they disappeared. This the captain also refused to do.

Thereupon the Cuban woman told the captain that, if he did not have the plaintiffs searched, she would send a wireless message requesting the Cuban police to meet the steamer in Havana, which the captain stated he could not prevent her from doing. Thereafter a wireless message was sent by two Cuban women to the secret police of Havana, concerning an alleged theft aboard the ship, the text of which message is not in the record.

The wireless operator testified that he had signed the ship's articles, considered himself a member of the crew, and subject to the captain's orders regarding the dispatch and receipt of messages, but that he did not call the captain's attention to the message in question, which was in the Spanish language and not clearly understood by him.

On the morning of October 29 the ship reached Havana, and while anchored in the harbor, before docking, was boarded by the port police, armed and in uniform, who requested permission of the captain to search certain staterooms in connection with an alleged larceny of jewelry. The captain refused permission for this search, he being then on the bridge and engaged in docking the ship.

The police officers thereupon left the bridge, went into the saloon, where the plaintiffs were pointed out to them by the Cuban woman, and shortly thereafter the police obtained access to the plaintiffs' stateroom, which the plaintiffs had left locked and unoccupied, placing the key on a ledge outside the door. The police then searched this room, together with the hand luggage of the plaintiffs therein.

The plaintiffs being informed by a steward that police officers were in their room, they returned there, found the key missing from the ledge, the door locked, and the Cuban police in the room. The plaintiffs protested to the police against the search and invasion of their room, and, when asked by the police where they intended stopping in Havana, declined to tell saying they had been sufficiently insulted already, and did not want their friends ashore insulted.

Plaintiffs then appealed to the captain for protection, going to him on the bridge, and telling him of the search of their room, and that they considered themselves to be under arrest. The captain replied that he could do nothing for them, but would meet them at the office of the American consul at noon. Thereupon the plaintiffs left the ship, apparently accompanied by the police officers, and found their Cuban friends on the dock, who protested vigorously against the action of the police.

Plaintiffs were then taken to a small building on the dock, where they were separately searched by a matron of the custom house; the custom house and the port police having offices on the same dock as the defendant company. After being so searched, an examination of a quasi judicial character was conducted by the police officers on the dock; plaintiffs being questioned as to any knowledge of the missing jewelry.

At the conclusion of this examination, and after being detained several hours, the plaintiffs were released and went to the American consulate at noon, where they were met by the captain of the ship, and where they made complaint against the Cuban police. On October 30, the captain of the ship sent to the captain of the port a written protest against the action of the officers, while a day or two later the plaintiffs were summoned to appear in a court of the city of Havana, where they were questioned concerning the missing jewelry, after which they were finally dismissed from the matter; nothing in the investigation having developed any guilt in the plaintiffs or their companion.

The plaintiffs complained to the American consul general and to the American minister of their treatment in the matter, which was called to the attention of the Cuban government, and which produced a letter of apology from the President of Cuba to the American minister, stating that the police officers had acted inadvisedly.

The various occurrences above related took place in the presence of sundry persons on the ship and on the dock. These cases are based on the alleged negligence of the defendant company in respect of its contract of carriage with the plaintiffs.

The carrier's duty to its passengers, of course, extends equally to all its passengers, as well to the Cuban woman, alleging theft of her jewels, as to the American women, suspected of stealing them, and to the larger body of passengers not involved in the controversy, but who might have been endangered or delayed, if the officers of the ship had undertaken to resist or obstruct the investigation of the occurrence by the Cuban police at the instance of a Cuban citizen.

The appellants first contend that the captain was guilty of negligence in not preventing the Cuban woman from sending the radiogram to the Cuban police, after putting him on notice that she intended doing so. Laying aside the fact that the captain had no knowledge of the actual sending of such a message, or of the contents thereof, we are of opinion that he had neither the right nor the duty to prevent its transmission in the circumstances.

The alleged theft was complained of to him by one of his passengers, who stated her suspicions of another passenger. He was asked to investigate the occurrence and make search for the goods, and when he declined to do so he could not, consistently with his duty to both these passengers, undertake to prohibit the Cuban woman from informing the Cuban police authorities at the first port which the ship should reach of the alleged crime and any grounds of suspicion which she entertained concerning it. Nor was it the duty of the captain to ascertain that such a message had been sent, and to inform the suspected persons thereof, which would only have enabled them, if guilty, to destroy the evidence of guilt and defeat the ends of justice.

While the text of the radiogram is not in evidence, it is clear from the record that a message was sent by the Cuban woman to the Cuban police, informing them of the alleged loss, requesting them to meet the ship in the harbor of Havana to investigate the occurrence, and that when they did so she pointed out to them the plaintiffs as the persons she suspected, and whose stateroom she knew. For any mistake of fact or abuse of power on the part of the Cuban woman or the Cuban police, they, or the Cuban government, might well be responsible; but the endeavor to hold the carrier liable in this proceeding is a very different matter.

The appellants next contend that the appellee was guilty of negligence in respect of the search of the appellants' stateroom and their subsequent arrest by the Cuban officers the second assignment of error being the refusal of the trial court to submit to the jury the issues of fact presented by the testimony. But the only resemblance to an issue of fact that we perceive in the record concerns the request of the Cuban police to the captain of the ship for...