Kountz v. Brown, &C.
| Decision Date | 25 January 1855 |
| Court | Kentucky Court of Appeals |
| Parties | Kountz <I>vs.</I> Brown, &c. |
APPEAL FROM MEADE CIRCUIT.
Riley & Muir and G. A. & I. Caldwell for appellants —
Walker & Stuart for appellees — Judge CRENSHAW delivered the opinion of the Court.
This is an action in ordinary, brought by Brown and Powell against Kountz, to recover damages for injuries done to their wharfboat, whilst lying in the Ohio river, at the wharf at Brandenburg, by the steamer Crystal Palace.
It appears that in March 1854, the steamer was descending the river, with a passenger on board whose destination was Brandenburg; that the commander was unwilling to land the passenger on the Kentucky shore, because the wind was then blowing hard from the north-west, rendering it difficult to land at Brandenburg; but the passenger insisting that he should be landed at the place to which he had taken his passage, and not be left on the Indiana shore, and it being the duty of the commander (Kountz,) to land him at Brandenburg, he accordingly did so. In doing this, the commander, as the testimony conduces to show, came up to the wharfboat as carefully as he could. Nevertheless, in coming up to the wharfboat, the steamer broke one of the knees, or fenders of the boat; and for this injury, the plaintiffs claim $75 in damages.
In the month of May next after this injury, the steamer Crystal Palace had occasion again to land at Brandenburg, for the purpose of putting off a carpet-sack. Tbe testimony is, that upon this occasion she landed between seventy-five and one hundred yards above the wharfboat, and that when backing out from the bank of the river, in order again to proceed on her voyage, she backed down opposite the wharfboat, and in turning her bow into the stream, her stern swung around and struck the wharfboat with considerable force, and broke and sunk her.
The petition was demurred to, and the demurrer was over-ruled; and it is still insisted that the petition shows no cause of action, and that the demurrer was improperly overruled. We concur in opinion with the circuit court.
Although the facts averred in the different paragraphs or counts of the petition are not very aptly stated, we think each paragraph or count contains a substantial cause of action, alledging an immediate and not a consequential injury, committed with force and violence, and the action under the old forms of pleadings would be denominated an action of trespass. And in this form of action, brought against the servant or agent, who caused the injury, it is not necessary to aver that the injury was willful, or was the result of carelessness or negligence, or want of skill. Upon common law principles, if the action in this case could be regarded as having been brought against the owners of the boat, as well as against their agent, who was the commander thereof, it ought to appear in the petition that the injury was caused by negligence or want of skill; as at common law the owners would not be held responsible for the willful acts of their agents forcibly committed. But this action cannot be properly considered as an action against the owners of the steamer, nor is it necessary since the adoption of the Revised Statutes to aver that the injury was committed thro' negligence or want of skill, even where the owners are sued.
By the 2nd section of chapter 7, page 143, of the Revised Statutes, the owners of a steamboat or other vessel are made liable for the willful, as well as the negligent conduct of her officers and crew, and hence an action for a forcible and willful injury can now be maintained against the owners as well as against the commander of the vessel, without any allegations of carelessness or unskillfulness on his part. Before the Revised Statutes were adopted, as we have above intimated, no recovery could be had against the owners of a vessel for the trespasses and willful acts of the commander, but only for his acts committed through his want of skill, negligence, or carelessness. And the form of action against the owners, under our former system of pleading, would have been in case, and not in trespass, and it would have been proper and necessary to aver the injury to have been the result of the negligence or want of skill of their agent, the commander of the vessel. Averments of unskillfulness, or negligence, were necessary and usual in actions upon the case against the owners, but not in actions of trespass against their agent and commander of their vessel, because they were not responsible for his trespasses, but only for those injuries which resulted from his carelessness, or want of skill.
The author of an injury, forcibly committed by him, has ever been held responsible therefor, whether perpetrated in guiding a vessel which he is commanding or otherwise, and whether it were the result of willfulness, negligence, or accident, unless the injury may have been induced by the conduct of the party injured, or be in some way attributable to him as well as to the defendant. The injury which was committed in March, although done with...
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Foster v. Clerk of Lyon Circuit Court
...No person is named respondent. It is not sufficient to designated a party merely as the holder of a certain office. See Kountz v. Brown, 55 Ky. 577, 16 B.Mon. 577. The original jurisdiction of this court, Sec. 110, Constitution, does not extend to issuing a mandamus against a circuit clerk ......
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Connor v. Leaverette
...against those served will not be reversed on that account. * * *" ¶3 In the opinion it is said: "In the case of Kountz v. S. Brown et al., 55 Ky. 577, 16 B. Mon. 577, suit was brought against the owners of a steamboat for damage done to a wharf boat. Service was had on but one of the owners......