Pacific Packing & Nav. Co. v. Fielding

• Decision Date: 06 February 1905
• Docket Number: 1,050.
• Citation: 136 F. 577
• Parties: PACIFIC PACKING & NAVIGATION CO. v. FIELDING.
• Court: U.S. Court of Appeals — Ninth Circuit

136 F. 577

PACIFIC PACKING & NAVIGATION CO. v. FIELDING.

No. 1,050.

United States Court of Appeals, Ninth Circuit.

February 6, 1905

Gorham Brown & Gorham, for plaintiff in error.

McCafferty & Kane and O. Jacobs, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

This action was brought by the defendant in error to recover damages against the plaintiff in error, a corporation and owner of the steamship Valencia, on which the defendant in error was employed as purser, and of which ship one James McRae Lane was master, on a voyage from Nome, Alaska, to Seattle, Wash., in the fall of 1901. The complaint contained two counts, one of which was held insufficient by the court below, and is not now for consideration. The other charged that while the ship was at sea the defendant in error was imprisoned by the captain of the ship, who in so doing acted maliciously and without reasonable or probable cause, to the plaintiff's damage. The answer of the plaintiff in error defendant to the action, put in issue the averments of malice and want of reasonable or probable cause on the part of the master, and, among other things, alleged as a separate and affirmative defense that on the 18th day of October, 1901, the ship left Nome with cargo and passengers for Seattle, and that on or about the 21st day of October thereafter, while the ship was upon her voyage, and upon the high seas between Dutch Harbor, Alaska, and Seattle the plaintiff--

'Became and was ill, and incapacitated by such illness from attending to his duties as such purser, and at the same time became and was deranged and affected in his mind, and his brain was disordered to such an extent that, if said plaintiff had been permitted to be at large and have the liberty of said vessel during the remainder of the said voyage, there was great danger and probability that he, said plaintiff, by reason of said illness and his said deranged and disordered condition of mind, would inflict great harm and injury upon himself and take his own life; that the said Lane, master of the said vessel as aforesaid, to prevent the infliction upon himself by plaintiff of such injuries, and the taking of his life by himself while so ill and in such deranged and disordered condition of mind and brain, and for no other reason, confined said plaintiff to his room on said vessel and caused the same to be guarded; and that the said illness of said plaintiff, and his said deranged and disordered condition of mind, continued until the arrival of said vessel at Seattle, on or about the 30th day of October, 1902, whereupon plaintiff was released from his said restraint and left said vessel.'

There are but two questions presented on the present appeal that we deem it necessary to consider, one of which grows out of the fact that the court below instructed the jury that the burden of proving, by a fair preponderance of evidence, the justification for the imprisonment of the plaintiff, so affirmatively pleaded, rested upon the defendant, and that, unless such particular justification was so proved, the jury should find that specific defense 'against the defendant; in other words, find it not proven,' The court had already instructed the jury that the burden was on the plaintiff to show by a preponderance of the evidence:

'First, that he was restrained of his liberty by the defendant, or by its officers or agents acting by its authority; second, that such restraint was unlawful; third, that it was imposed upon him maliciously; and fourth, that it was without probable cause'--

and that, if the plaintiff failed to so prove any one of those facts, he could not recover, and the verdict should be for the defendant.

It is insisted on the part of the plaintiff in error that these instructions were inconsistent and misleading. It is conceded that the court below properly instructed the jury that the master of a vessel at sea has the power to imprison a member of the crew in the exercise of the authority he necessarily has, in order to provide for the safety of the vessel and the protection of those on board, but that such authority cannot be abused by exercising it with malice, or without reasonable or probable cause, without rendering both the master and the owner of the vessel liable in damages for such abuse. We are of the opinion that the inconsistency contended for on the part of the plaintiff in error does not exist, and that the instructions given by the court below in respect to the burden of proof were not misleading, and were correct.

But the court below instructed the jury that, if they should find in favor of the plaintiff, they had--

'The right, if the facts seemed to them to justify it, to award as damages something in addition to actual compensation, as smart money-- something to compensate him for the humiliation and annoyance of being imprisoned, and as a penalty upon the wrongdoer for having inflicted...