Brown v. Pillow

• Decision Date: 07 December 1909
• Docket Number: 61.
• Citation: 174 F. 967
• Parties: BROWN v. PILLOW (BACON et al., Garnishees).
• Court: U.S. Court of Appeals — Second Circuit

174 F. 967

BROWN v. PILLOW (BACON et al., Garnishees).

No. 61.

United States Court of Appeals, Second Circuit.

December 7, 1909

Appeal from the District Court of the United States for the Southern District of New York.

Suit in admiralty by Isaac T. Brown against Robert L. Pillow. Decree for respondent, and libelant appeals. Affirmed.

The following is the report of the commissioner:

A citation and an alias citation were issued in this action with a clause of foreign attachment, and the marshal made return that he was unable to find the respondent, Pillow, in the district, but had attached moneys of his in the hands of Alexander S. Bacon and the Trust Company of America garnishees. Respondent, Pillow, having made default in appearing, an interlocutory decree was entered July 3, 1908 whereby it was decreed that Pillow pay libelant's demands out of the property attached, and it was ordered that it be referred to me, as commissioner, to ascertain the damages and whether in fact and in law Bacon and the Trust Company of America, or either of them, had any property of Pillow in their possession or under their control at the time of the service of the citations on them, respectively.

I hereby report that before me appeared Mr. Walter H. Thacher proctor for libelant, and Mr. D. Roger Englar, of counsel for libelant, Mr. Alexander S. Bacon, garnishee, on his own behalf, Mr. Morton Stein, also on behalf of Mr. Bacon, and Mr. H. W. Clark, representing Messrs. O'Brien, Boardman Platt & Littleton, proctors for the Trust Company of America; and I also report that testimony was offered on behalf of libelant and of the garnishee Bacon, which testimony, with the exhibits, is filed herewith; and I further report as follows:

Libelant is a contractor, residing in New York, and respondent, Pillow, is a resident of Texas. From August 29, 1902, until June, 1903, libelant was performing a contract with the Kansas City Southern Railroad Company to deepen a ship canal at Port Arthur, Tex., and in doing the work used a hydraulic dredge, with pontoons, piping and other adjuncts. Libelant testifies that the dredge had a 12-inch hydraulic discharge, was about 80 feet long, was capable of discharging 35,000 cubic yards of material a month, and had a captain, a mate, an engineer, a fireman, a leverman, four deck hands, a cook, and a watchman. The dredge belonged to Auchincloss Bros. of New York, and libelant testifies that he was using it under an agreement with them that they should have one-half the compensation received for the work over and above the running expenses, which were paid by Auchincloss Bros.

The libel alleges: That on or about September 1, 1902, Pillow wrongfully boarded the dredge, took forcible possession of it under a claim of absolute ownership, notified the crew that they were not entitled to hold it for libelant, induced members of the crew to leave it and libelant's employment 'by various false claims and threats,' and issued orders to the other members of the crew to prevent libelant from resuming possession, 'which orders were obeyed for a considerable length of time, until the libelant finally resumed possession of the said dredge by force'; that thereafter Pillow libeled the dredge in the United States District Court for the Eastern District of Texas, and under the process of that court the marshal seized the dredge and held possession until libelant bonded some 24 hours later; that subsequently Pillow withdrew his suit without going to trial, and abandoned all attempts to establish his claim to the dredge; that by reason of Pillow's 'interference with and demoralization of the crew of the said dredge, and the total destruction of all discipline among the crew thereof, and particularly by reason of the loss of the master thereof, who was an expert dredge operator, obtained by libelant with great difficulty and at great expense and who had been driven from the said dredge and induced to leave the libelant's employ by the threats and other wrongful conduct of the respondent above mentioned, the libelant was unable to operate the said dredge for over a month after the abandonment by the respondent of his alleged claim as aforesaid'; and that because of all these matters the dredge 'necessarily remained idle for a period of six weeks,' exclusive of the period the marshal remained in possession, whereby libelant and Auchincloss Bros. suffered damage in the sum of $3,500.

The libel also alleges, and it was proved, that prior to the commencement of the action, Auchincloss Bros. assigned to libelant all their interest in the claim and cause of action against Pillow.

1. Libelant was the only witness who testified as to Pillow's alleged seizure of the dredge. He testifies that on September 1, 1902, both Pillow and the dredge captain came to him and told him that, under a bill of sale of the dredge from the Morris & Cumings Dredging Company of New York to Pillow, Pillow had gone aboard at 3 or 4 o'clock in the afternoon, dismissed the crew, put one of them in charge as his representative, and then left, and that the captain reproached libelant with not telling him of the sale of the dredge.

The circumstances under which the bill of sale was made are not explained, but there is nothing to show that Pillow did not act in good faith, believing that he had obtained proper title. Libelant testifies that he said to Pillow, 'You have bought a gold brick. ' Libelant also states that after Pillow had taken this action, and on the same day, libelant himself, after consulting counsel, procured two Texans with warlike records, both 'armed to the teeth,' as he expresses it, put them aboard, and instructed them to 'bear out' their records, and repel Pillow at all hazards. According to libelant, he paid one of these men $150 a month and the other $115, and one remained aboard one month, and the other two months. Apparently there was no necessity for such drastic measures. It does not appear that Pillow had used any violence, intimidation, or threats, and his custodian seems to have done nothing to assert his principal's rights, real or supposed, and left the next day, according to libelant. Pillow never went aboard again, and this was the beginning and the end of his disturbance of libelant's possession, except that towards the end of the month the United States marshal arrested the dredge in an admiralty action brought by him, and libelant bonded within 24 hours. Libelant himself went aboard the dredge in the evening of the same day Pillow boarded it, he says, and told the man Pillow had put in charge that Pillow had no right to the dredge. Libelant states that the captain was 'in a very sad state' when he reported Pillow's action, and the same night libelant paid him off, and the next day paid off such of the crew as had left. Libelant says that the mate, engineer, fireman, leverman, and deck hands deserted him, in addition to the captain. Although libelant explained to them all that Pillow had no right to the dredge, and no right to discharge them, he states that they said they had seen the bill of sale, and this appeared to them to be decisive. Libelant also testifies that because he had surrendered the plant, instead of defending it, he did not ask the captain to stay, and he did not ask the other men either, because he 'could not argue with them, could not reason with them. They did not consider I had anything to do with the dredge.'

He also says that, when the marshal came aboard, it 'upset everything and made it worse than ever,' that 'things looked tougher than ever.' But it is clear that no such damages as libelant claims can be recovered for the marshal's seizure, since the recovery would be limited to the taxable costs and disbursements in that suit (Henderson v. 300 Tons of Iron Ore (C.C.) 38 F. 36). He says that work with the dredge stopped, because he was 'down and out' by reason of the loss of his captain and principal men, its operation was not resumed until the 5th or 10th of October, that it was idle about 30 days, during which time he received nothing under his contract, and that then the railroad company, which had built a dredge that was not a success, turned over its captain and crew to him. He testifies that in the interval he made all reasonable efforts to obtain a crew, but without success. He admits that he had continuous possession of the dredge, and states that his inability to work it arose solely from his inability to get men familiar with the operation of a hydraulic dredge. He says that the affair was 'the talk of the town and the newspapers,' and competent men would tell him he did not own the dredge, that Pillow owned it, 'and any argument on my part was just waste of time, because I could not work them around. ' He also says that, being unable to get men at Port Arthur, he wrote and telegraphed to Tampa for them went to New Orleans, and put advertisements in the New York Herald and the Engineering News, calling for men of the class required; but elsewhere he says that he did not go to New Orleans, although he 'was moving all the time, used to go to Beaumont and hunt up men anywhere I could land some. At that time levermen were a very scarce article. ' He was called upon to produce the advertisements, but at a subsequent...