Davidson S. S. Co. v. United States

• Decision Date: 07 November 1905
• Docket Number: 2,149.
• Citation: 142 F. 315
• Parties: DAVIDSON S.S. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

142 F. 315

DAVIDSON S.S. CO. v. UNITED STATES.

No. 2,149.

United States Court of Appeals, Eighth Circuit.

November 7, 1905

C. E Kremer (H. R. Spencer, on the brief), for plaintiff in error.

Charles C. Houpt, for defendant in error.

This was an action by the United States against the Davidson Steamship Company for damages to a breakwater at Agate Bay Two Harbors, Minn., alleged to have been caused by the negligent management of a vessel of that company. At the mouth of the bay and as breakwaters for the harbor two piers extend towards each other from the opposite shores. Between the ends of these breakwaters is the entrance to the harbor. Prior to the year 1900 the one from the east shore ran westward into the lake for a distance of about 750 feet. At the time of the accident the government was engaged in extending it about 300 feet from the end of the old structure and at an angle of about 45 degrees. The work was but partially completed. In some places the superstructure was barely above the level of the water. For years the government had maintained as a warning at night a large red light near the outer end of the old structure. During the work on the extension it had for a similar purpose also maintained at the extreme end thereof a white light, attached to a mast about 14 feet above the water level. Between these two lights, a distance of 300 feet or more, was the unfinished work upon which the government was engaged. In the night of July 24 1901, defendant's steamer Shenandoah, John McAvoy master, approached the harbor to gain admittance. The weather was somewhat boisterous, with a heavy sea and a northeast wind blowing towards the shore. The master and crew of the vessel, being ignorant of the extension of the east breakwater, mistook the outer white signal for the light of a vessel at anchor and the red light for the signal at the end of the entire structure. The error was discovered too late to prevent a collision. The vessel struck against the cribs of the extension about 75 feet from the sea end of the old breakwater and inflicted the damage complained of. The government claimed that the master of the vessel was negligent in not availing himself of the usual source of information of government works in navigable waters, which would have been sufficient in this case, and in disobeying the signals which were maintained. The defendant contended that the master's ignorance of the new work was excusable and that the signals were insufficient and not such as should have been given. The trial, which was to a jury, resulted in a verdict for the government, upon which judgment was rendered.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge, after stating the case as above, .

The government called McAvoy, the master of the vessel, for cross-examination as an adverse witness, claiming authority to do so under a Minnesota statute which provides that a party to the record in a civil action may so call and cross-examine an adverse party, or if such adverse party is a corporation then its 'directors, officers, superintendent, or managing agents' and that the party calling for such examination shall not be concluded thereby but may rebut it by counter testimony. Gen. St. 1894, Sec. 5659. Counsel for the defendant merely said: 'We object to that.' The objection was clearly insufficient. It has been held by this court many times that a trial court is justified in overruling an objection to a question, or to the evidence sought to be elicited thereby, when no ground is specified, or when the ground mentioned is so general in form as to be insufficient to direct attention to the particular defect or objectionable feature relied on. Eli Mining & Land Co. v. Carleton, 108 F. 24, 47 C.C.A. 166; Rhodes v. United States, 79 F. 740, 25 C.C.A. 186; Minchen v. Hart, 72 F. 294, 18 C.C.A. 570; Missouri Pacific Ry. Co. v. Hall, 66 F. 868, 14 C.C.A. 153;

Tabor v. Bank, 62 F. 383, 10 C.C.A. 429; Burlington Ins. Co. v. Miller, 60 F. 254, 8 C.C.A. 612; Railway Co. v. Hensen, 58 F. 531, 7 C.C.A. 349; Ward v. Mfg. Co., 56 F. 437, 5 C.C.A. 538; U.S. v. Shapleigh, 54 F. 126, 4 C.C.A. 237.

But, had the objection now urged been properly presented to the trial court, its action in overruling it would not have been erroneous. It is now contended that the master of the vessel was not a 'superintendent or managing agent' of the steamship company within the meaning of the Minnesota statute. This question, being one of the construction of a local statute, has been set at rest by the decision of the Supreme Court of that state. Bennett v. Lumber Company, 77 Minn. 198, 79 N.W. 682. It was there said:

'The statute is a remedial one, and must be construed with reasonable liberality. To limit it, by construction, to the general officers of the corporation, as claimed by the defendant, would defeat the purpose of the statute; for, as a rule, such general officers have no personal knowledge as to what occurs in the actual work of the corporation. The statute includes any officer, superintendent, or agent having supervision or control of the work or act of the corporation involved in the case, whether his rank be that of a general officer or not.'

It is true that in the case cited the witness called for cross-examination under the statute was the superintendent of a sawmill, while here the witness was a master of a vessel upon the waters. But, in applying a decision of the highest judicial tribunal of a state construing a local statute to cases involving rights or liabilities which have subsequently accrued, we should not halt at the strict letter of the decision for the purpose of indulging in technical distinctions, and then depart from the true logic and spirit thereof. It cannot be doubted that within the above construction of the statute a master in command of a vessel, with authority to control and direct its movements between ports, is, in respect of the performance of his duties, the managing agent of the corporation which employs him.

There were received in evidence, over defendant's objection, two marine notices sent from Washington, D.C., for distribution. One of them, dated July 29, 1899, related to the breakwater in question, and contained this information:

'The breakwater at the east side of the harbor is built to the length of 750 feet. The proposed extension of 250 feet in the same direction has been abandoned, and in its stead an extension at an angle of 45 degrees southward, 300 feet in length is proposed, making the entire length of this eastern breakwater 1,050 feet. This is also to be finished in the year 190

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