Pacific SS Co. v. Sutton

• Decision Date: 12 October 1925
• Docket Number: No. 4483.,4483.
• Citation: 7 F.2d 579
• Parties: PACIFIC S. S. CO. v. SUTTON.
• Court: U.S. Court of Appeals — Ninth Circuit

7 F.2d 579 (1925)

PACIFIC S. S. CO. v. SUTTON.

No. 4483.

Circuit Court of Appeals, Ninth Circuit.

August 24, 1925.

Rehearing Denied October 12, 1925.

Grosscup & Morrow, of Tacoma, Wash., and Chas. A. Wallace and John Ambler, both of Seattle, Wash., for plaintiff in error.

Egan & Moriarty and Poe, Falknor, Falknor & Emory, all of Seattle, Wash., for defendant in error.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

HUNT, Circuit Judge.

This action for damages for an assault committed by employees of the steamship company was instituted in behalf of Margaret Sutton in the state court, but, upon the ground of diversity of citizenship, on petition of the steamship company, the cause was removed to the federal court.

Plaintiff is an Indian girl 15 years old. She was going to an Indian school in Chemawa, Or. For her benefit and use a ticket was purchased from defendant, entitling her to transportation as a passenger on the ship Admiral Evans from Petersberg, Alaska, to Seattle, Wash. Her complaint alleged that pursuant to the contract of carriage she became a passenger, and that, while the ship was en route between Petersberg and Seattle, while in her stateroom, she was assaulted and ravished and injured by two negroes then engaged in the service of the ship. Defendant answered with general denials and a plea that, if plaintiff had relations with the employees as alleged, it was at her own solicitation. Trial resulted in verdict and judgment for plaintiff, and the steamship company asks reversal.

The steamship company contends that the court should have regarded the action as in tort, and should have allowed an amendment to the answer offered upon the trial, pleading that, if the alleged assault was committed, it was when the ship was in British Columbia waters, and that under the laws of Canada defendant was not liable. Decision upon the merits of the point might well be passed, for the reason that, as the answer filed before the trial did not present the issue of the location of the vessel at the time of the alleged assault, and did not plead the British law, the refusal of the court to allow the belated proposed amendment was not an abuse of discretion.

However, in our view, by the sale of the ticket there arose a contractual relationship between the company and the passenger, to which relationship the law by its own force annexed certain implied obligations and duties to be observed and performed by the parties, respectively, toward each other. The contract of carriage made it the duty of the carrier to carry safely and to protect its passenger from violence and insult committed by its own servants.

In Chamberlain v. Chandler, Fed. Cas. No. 2,575, Judge Story said: "In respect to passengers, the case of the master is one of peculiar responsibility and delicacy. Their contract with him is not for mere ship room and personal existence on board, but for reasonable food, comforts, necessaries, and kindness. It is a stipulation, not for toleration merely, but for respectful treatment. * * * In respect to females, it proceeds yet farther; it includes an implied stipulation against general obscenity, that immodesty of approach, which borders on lasciviousness, and against that wanton disregard of the feelings, which aggravates every evil, and endeavers by the excitement of terror, and cool malignancy of conduct, to inflict torture upon susceptible minds. * * * In each case the contract of the passengers for the voyage is in substance violated; and the wrong is to be redressed as a cause of damage."

In Nieto v. Clark, Fed. Cas. No. 10,262, Judge Clifford, approving Chamberlain v. Chandler, supra, held that the contract covered protection against personal rudeness from all those in charge of the vessel, and every wanton interference with the passenger's person. A similar view was taken by the court in Gillespie v. Brooklyn Heights R. Co., 178 N. Y. 347, 70 N. E. 857, 66 L. R. A. 618, 102 Am. St. Rep. 503.

The law of contract was also held controlling in Marks v. Alaska Steamship Co., 71 Wash. 167, 127 P. 1101, where, in an action for assault committed by a steerage steward upon a passenger on a ship, the court, through Judge Chadwick, said that it was the duty of the servant upon the ship at all times to treat the passengers with respect. "Appellant by the act of employment vouched for his deportment during the voyage. A carrier owes a duty to every passenger to protect him from insult and assault. It is a part of the contract of carriage. * * * As long as respondent was a passenger on appellant's ship, appellant owed him a duty of absolute protection from the assaults and aggressions of its servants, and the rule is well nigh universal that the carrier cannot plead as a defense that the servant acted outside the scope of his employment." New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7 S. Ct. 1039, 30 L. Ed. 1049; Hutchinson on Carriers, § 1093; Hines v. Dry Dock Co., 75 App. Div. 391, 78 N. Y. S. 170; Nevin v. Pullman Palace Car Co., 106 Ill. 222, 46 Am. Rep. 688; Moore on Carriers, pp. 948, 1177; Sherley v. Billings, 8 Bush (Ky.) 147, 8 Am. Rep. 451; Knoxville T. Co. v. Lane, 103 Tenn. 376, 53 S. W. 557, 46 L. R. A. 549; Pelot v. Atl. Coast L. R. Co., 60 Fla. 159, 53 So. 937; Busch v. Interborough R. Co., 187 N. Y. 388, 80 N. E. 197, 10 Ann. Cas. 460. It therefore follows that the court was right in treating the...