Houston & Galveston Navigation Co. v. Dwyer

• Citation: 29 Tex. 376
• Parties: THE HOUSTON AND GALVESTON NAVIGATION COMPANY v. FRANK DWYER.
• Decision Date: 31 January 1867
• Court: Texas Supreme Court

29 Tex. 376

THE HOUSTON AND GALVESTON NAVIGATION COMPANY

v.FRANK DWYER.

Supreme Court of Texas.

January, 1867.

The principle that persons engaged in the general transportation of goods for hire are responsible for all damages done them while in their charge, unless such injury be caused by the act of God or the public enemy, applies as well to common carriers by water as by land. Pas. Dig. art. 452, note 329.

And the doctrine applies as well to external as internal navigation; to those who transport from port to port, as well as from foreign countries, except so far as the perils of the sea may be excepted by special clauses in the bill of lading.

An injury by an explosion of a steamboat boiler is not chargeable to the act of God or the public enemy.

Clause four, section eight, of article I, of the constitution of the United States, declares that congress shall have power “to regulate commerce with foreign nations and among the several states.” Pas. Annot. Const. p. 105, notes 85-89. This commerce among the states includes all the means by which it may be carried on, whether by free navigation of the waters, or passage over land through the states, when either becomes necessary for commercial intercourse between the states.

Whether this clause of the constitution authorizes congress to pass laws regulating the right and liabilities of common carriers by water, confined in their operations alone to the limits of one state, and thereby in effect to repeal the state laws upon the subject, may be well questioned; and the court intimated that congress had no such power.

Whatever may be the power, congress has not attempted to regulate the rights and liabilities of the proprietors of steamboats engaged in the business of common carriers.

The act of congress was not intended to relieve the carriers from any of the duties or liabilities imposed on them by the common law, but only to give persons and property an additional security against injury and loss.

The 52d section of the act of congress relied on reads as follows: “In all suits and actions against proprietors of steamboats, for injuries arising to persons or property from the bursting of the boiler of any steamboat, or the collapse of a flue, or other injurious escape of steam, the fact of such bursting, collapse, or injurious escape of steam shall be taken as full prima facie evidence, sufficient to charge the defendant, or those in his employment, with negligence, until he shall show that no negligence has been committed by him.” Bright. Dig. p. 857. In a suit for damages by explosion of a boiler, it is not necessary to make all the owners of the boat parties. And if there be improper joinder, the plaintiff may have judgment against those who are properly joined.

ERROR from Galveston. The case was tried before Hon. E. A. PALMER, one of the district judges.

The suit was against the defendants, as members of the “Houston and Galveston Navigation Company.” The record is voluminous, but the following facts are believed to present the points decided and necessary to a decision of the case:

The appellants were sued in the court below, with others, as partners and common carriers, for loss and damage to certain goods shipped by and for account of appellee at Galveston, on board the steamer Bayou City, and to be delivered to appellee at Houston.

The appellants and their co-defendants plead, among other things, specially, that the goods were shipped on their boat, called the Bayou City, a passenger as well as freight-vessel, propelled by steam; that under an act of congress entitled “An act to amend an act entitled an act to provide for the better securing the lives of passengers on board of vessels propelled in whole or in part by steam, and for other purposes,” made and passed August 20, 1852, the said steamboat Bayou City had been duly examined and inspected in her hull, machinery, boilers, equipment, apparatus, and furniture, by the inspectors appointed under said act, and found sufficient and proper for service; and that said steamboat was duly and properly provided and manned, with the usual and necessary officers--captain, mates, engineers, pilots, firemen, deck hands, and other necessary crew of vessels in such service; that the engineers employed upon the said boat, and in charge of the machinery and boilers thereof, and the propelling thereof by the steam-power aforesaid, were duly licensed by the board of inspectors, under said act of congress, as such engineers, for the respective positions and rank which they held, and the duties whereof they respectively discharged; that the said appellants were compelled, under a penalty provided in and by said act of congress, to employ and take into their service upon their boats propelled by steam, and upon the said boat Bayou City, such engineers so licensed as aforesaid, and none others; that the loss, damage, and injury to the said goods, set forth and complained of in the petition, if any such were in fact sustained, were caused and produced by the means and through the explosion of one of the boilers of the said steamboat, which was, in truth and in fact, the result of the carelessness, negligence, or want of sufficient professional skill and capacity of the engineers employed upon the said boat, who were all duly licensed as aforesaid; absque hoc, that the said appellants, through the carelessness of themselves, their officers and agents, suffered the said goods to be damaged and broken, and part thereof entirely to be lost, so that only a part thereof was delivered, and the residue badly broken and injured, as is in the said petition alleged and set forth, etc.

The facts stated in this special plea were fully admitted, and the plea itself read as evidence to the jury, and also the further facts, that since the blowing up of the boat the license of the engineer had been revoked for his conduct on this occasion, and that he had been discharged by the navigation company.

The judge charged the jury against the defense made by the plea, stating that if, on account of the carelessness, negligence, or want of sufficient professional skill and capacity of any of the officers or engineers employed on said steamboat, an explosion took place on said steamboat, whereby the goods, etc., so shipped were damaged and injured, and a portion of them entirely lost, they (the jury) will find for the plaintiff the value of the goods so lost,” etc.; “that the fact of the engineers upon the boat being licensed, and that defendants are prohibited by an act of congress from employing any other than licensed engineers, does not hold them harmless against the carelessness, or negligence, or want of skill on the part of an engineer in their employ.”

The jury having found for the plaintiff below, and assessed his damages at $580, appellants moved for a new trial, on the ground of misdirection of the judge below in respect to the special plea of defendants, contained in their answer filed; which motion was overruled.

L. A. Thompson, for plaintiff in error. The position assumed in this special plea is founded on the general principle of reason and justice, that no one should be chargeable with the acts of another who is not an agent of his own choice and election. The engineers were not in fact the servants of the appellants, and the maxim qui facit per alium, facit per se, does not apply. It was not optional with appellants who they should or should not employ as engineer; but they were bound to employ such, and such only, as had been licensed by the board of inspectors under the act of congress referred to. No discretion is left by that act to the owners of vessels propelled, in whole or in part, by steam-power; but the congress of the United States has undertaken to take care of the interests of the public in this particular. The steamer Bayou City, as alleged in the plea, was a passenger-boat, as well as one of burden, which brought her within the provisions of the act of congress. This fact, it is alleged in the plea and admitted, was well known to the defendant in error.

Such is the rule as to pilots. In a case of collision, it being compulsory upon the master and owners to take the pilot by whose fault the injury was done, the owners held not to be responsible. This, says Dr. Lushington, is a great principle of justice and equity. The Maria, 1 W. Rob. Adm. 95-111; The Agricola, 2 W. Rob. Adm. 10-21; Caruthers v. Sydebotham, 4 Maule & S. 77.

The same principle is recognized in the courts of the United States. The Carolus, 2 Curt. 69.

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