Barrow S.S. Co. v. Kane, 98.

• Decision Date: 24 June 1898
• Docket Number: 98.
• Citation: 88 F. 197
• Parties: BARROW S.S. CO., Limited, v. KANE.
• Court: U.S. Court of Appeals — Second Circuit

88 F. 197

BARROW S.S. CO., Limited, v. KANE.

No. 98.

United States Court of Appeals, Second Circuit.

June 24, 1898

Esek Cowen, for plaintiff in error.

F. K Pendleton, for defendant in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

The questions presented by the defense of want of jurisdiction of the court below having been certified to the supreme court and answered adversely to the contention of the plaintiff in error, the questions upon the merits remain to be considered. 18 Sup.Ct. 526.

Error is assigned that the trial judge instructed the jury, in substance, that the defendant was responsible for the acts of Hamilton and Sweeney, one or both. The evidence upon the trial authorized the jury to find that the plaintiff, while being transported from Londonderry to New York as a passenger, pursuant to a contract made by him with the defendant, a common carrier of passengers, was assaulted and maltreated by Hamilton and Sweeney. These persons were in the employ of Henderson Bros., agents for the defendant; Hamilton being a manager for that firm, and Sweeney a porter. Among the duties of Henderson Bros. was that of carrying the passengers of the defendant and their baggage from the city of Londonderry, by tugs or tenders, and putting them on board the defendant's steamships at the mouth of the river. For this purpose they employed the steam tender Osprey. They received a commission, and paid the expenses of the service themselves, and they employed and paid Hamilton and Sweeney. According to the evidence for the plaintiff, while he was on the Osprey, being carried to the defendant's steamship Devonia, he was, without cause, forcibly removed from the part of the vessel occupied by the other passengers assaulted, dragged into a room, and kept there by Hamilton and Sweeney until the tender reached the Devonia. It was insisted upon the trial that Henderson Bros. were independent contractors for performing that part of the transportation which consisted in transferring passengers from the city to the steamship, and that, because Hamilton and Sweeney were the employees of Henderson Bros., the relation of master and servant did not exist between the defendant and those by whose misconduct the plaintiff was injured.

The rule respondeat superior rests on the power which the responsible party has a right to exercise over the acts of his subordinates, and which, for the...