Am. Towtng & Lightering Co. v. Bakerwhiteley Coal Co.

• Decision Date: 19 November 1909
• Citation: 111 Md. 504,75 A. 341
• Court: Maryland Court of Appeals
• Parties: AMERICAN TOWTNG & LIGHTERING CO. v. BAKERWHITELEY COAL CO.

75 A. 341

111 Md. 504

AMERICAN TOWTNG & LIGHTERING CO.

v. BAKERWHITELEY COAL CO.

Court of Appeals of Maryland.

Nov. 19, 1909.

Appeal from Court of Common Pleas of Baltimore City; Thos. Ireland Elliott, Judge.

Action by the Baker-Whiteley Coal Company against the American Towing & Lightering Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, and BURKE, JJ.

Vernon Cook, for appellant.

J. Craig McLanahan, and Robert H. Smith, for appellee.

SCHMUCKER, J. This is an appeal from a judgment recovered by the appellee against the appellant in the court of common pleas of Baltimore for the towing of certain scows. The suit was brought in assumpsit on the common counts and also a special count for money due for services rendered by the plaintiff's tug Britannia in towing mud scows at the request of the defendant. An account was filed with the narr. charging the defendant with 10 days' services of the tug at $125 per day. The defendant pleaded two general issue pleas, a third plea of payment, and a fourth and fifth plea, each setting up a special defense. The fourth plea averred, in substance, that the towing for which the suit was brought was negligently and carelessly done, in that the Britannia was not properly equipped for the towing and had used a defective hawser therefor, whereby the scows were wrecked and lost, causing a damage to the defendant greatly exceeding the plaintiffs claim. The fifth plea averred that in an admiralty suit in the District Court of the United States for the Eastern District of Virginia the Standard Dredging Company, which was the owner of the scows, had libeled the plaintiff for the loss of the scows, and had procured a decree for a large amount against it, and that in fixing the amount of the decree the admiralty court had allowed as a credit to the present plaintiff, who was the defendant in that case, the amount of the towage for which this suit was brought, and that thereby the plaintiff's claim had been satisfied. The case was tried before a jury upon the issues thus presented and resulted in the judgment for the plaintiff, from which the appeal was taken.

There is evidence in the record tending to prove the following facts: The Standard Dredging Company, desiring to have four of its mud scows then lying in the harbor of Mobile, Ala., taken to Baltimore, made a contract with the American Towing & Lightering Company to tow them from the former to the latter city for a compensation of $150 per clay of the time that might be consumed in the trip. The towing company started the four scows from Mobile in tow of its tug Buccaneer, which took them in safety as far as Charleston, where they arrived in August, 1905. Apprehending that the Buccaneer might not be able to tow all four of the scows along the dangerous coast of the Carolinas and around Cape Hatteras, the towing company sent her forward with two of the scows, and entered into an engagement with the appellee to have its tug Britannia tow the other two scows to Baltimore at a compensation of $125 per day. The Buccaneer towed her two scows in safety to Baltimore. The Britannia started from Charleston, towing the other two scows by a nine-inch hawser of her own, on August 22d. The hawser broke twice on the first day out, although the wind was light and the sea smooth. When the second break occurred Capt. Muir, who was on the Britannia as the representative of the dredging company, the owner of the scows, tendered to the tug's officers the use of two new six-inch hawsers, which were upon one of the scows, for the purposes of the tow, but his offer was declined, and the trip was resumed with the old hawser, which had been mended. A few days later, when near Cape Hatteras, the hawser parted again in a storm, and, the tug being unable to pick up the broken hawser or recover the scows, they were driven ashore by the storm, and completely lost, and the tug proceeded to Baltimore by itself. There was also evidence tending to show that the appearance of the broken ends of the hawser where it parted indicated that it was a defective one. After the loss of the two scows, their owner, the dredging company, libeled the tug Brittania in the United States District Court for the Eastern District of Virginia for their loss, alleging that it had been caused by the negligence of the tug. Copies of the commissioner's report and the court's decree in the libel suit were put in evidence in the present case. Prom those documents it appears that the tug was charged with one-half of the libelant's loss, and that in estimating that loss the court took into consideration the cost of the towage of the four scows from Mobile to Charleston by the Buccaneer, but not the cost of the towage of the two scows by the plaintiff's tug Britannia from Charleston for the recovery of which this suit was brought. The contract between the plaintiff and defendant for the towage of the two scows from Charleston to Baltimore was an oral one, made over the telephone, and not reduced to writing, and there is some conflict of testimony as to its precise terms. The evidence of the plaintiff's witnesses tends to show that it was merely a chartering of the tug to the defendant at $125 per day to be used by it for the purpose of the towage, while the evidence of the defendant's witnesses tends to prove that the contract was an entire one by which the plaintiff undertook to tow the two scows from Charleston to Baltimore for a compensation of $125 per day of the voyage. At the close of the case in the court below the plaintiff offered four prayers and the defendant offered eight. The court rejected all of the prayers of both sides, and gave to the jury an instruction of his own, which will receive further notice hereafter.

The plaintiff's first prayer was predicated upon the theory that the plaintiff had merely chartered the tug Britannia to the defendant for so long time as the latter might require its services at a price of $125 per day, and it instructed the jury that if they found such to have been the contract between the parties, and that the defendant had used the tug for 10 days and not paid for it, their verdict should be for the plaintiff, unless the jury found that the defendant had lost by the negligence or fault of the plaintiff a greater sum than they found to be due to the plaintiff under the charter of the tug.

The plaintiff's second prayer, which was upon the measure of damages, was entirely consistent with the theory of the first prayer.

The plaintiff's third prayer was founded upon the finding by the jury that the terms of the contract between the parties were that the plaintiff hired the tug to the defendant at $125 per day to bring the scows from Charleston to Baltimore, and that the Britannia went to Charleston for them, and started with them in tow for Baltimore, and that they were lost without any negligence on the part of the tug, her master or crew, and that the defendant had not paid for the service of the tug, and it instructed the jury that, if they found those facts, the plaintiff was entitled to recover.

The plaintiff's fourth prayer asserted that, if the jury found for the plaintiff under its third prayer, they should allow the plaintiff what they thought the services of the tug were reasonably worth up to the time of the loss of the scows. The second and fourth prayers allowed the interest in the discretion of the jury.

The rejection by the court of these prayers does not come directly before us for review, as the plaintiff did not appeal, but we see no reason for their rejection, as they fairly stated the law of the case from the plaintiff's standpoint if the jury found the facts to have been as stated in the prayers.

The defendant's first prayer was properly rejected because it asserted that the uncontradicted evidence showed that, by the oral agreement between the parties to the case, the plaintiff had contracted to tow the two scows from Charleston to Baltimore. The testimony to that effect was not uncontradicted. The plaintiff's secretary, Edward H. Ray, who made the contract for it, testified that he refused to agree on its behalf to tow the scows from Charleston to Baltimore. Even the defendant's secretary, Robert J. Bradford, who made the contract on its behalf, testified that "he had a conversation over the telephone, and hired from Mr. Ray the...