Power v. Munger, 93.
| Citation | 52 F. 705 |
| Decision Date | 20 September 1892 |
| Docket Number | 93. |
| Parties | POWER v. MUNGER. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Henry L. Williams, for plaintiff in error.
W. P Warner and C. G. Lawrence, (Warner, Richardson & Lawrence on the brief,) for defendant in error.
Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District judge.
In November, 1879, Roger S. Munger and Charles S. Weaver partners under the firm name of C. S. Weaver & Co., were engaged in the business of repairing steamboats, at Bismarck Dak. On the 17th of November, 1879, they entered into a written contract with the owners of the steamer Butte, whereby they agreed to haul the steamer out of the Missouri river upon the marine ways operated by them, and to replace the boat in the river in the following spring. At the same time they made an oral agreement of the same tenor with the owners of the steamer McLeod. In carrying out these contracts, the steamer Butte was hauled upon the ways by C. S. Weaver & Co., and the McLeod was placed at the foot of the ways, preparatory to being hauled thereon. Through the alleged negligence of C.S. Weaver & Co. in not properly blocking the Butte upon the ways, this steamer slid back into the river, and, coming into collision with the McLeod, injured that vessel to such an extent that it sank, and became a total loss. The owners of the McLeod thereupon filed in the United States district court for Minnesota a libel in admiralty [1] against the owners of the steamer Butte to recover the damages caused them by the destruction of the McLeod, and upon appeal to the United States circuit court, on the 15th of October, 1883, a decree and judgment in favor of libelants was entered, awarding them one half the damages, being the sum of $9,572.82. Of the pendency of these proceedings due notice was given to C. S. Weaver & Co. by the owners of the Butte, with the request that they disprove the charge of negligence in the handling of the Butte when placed upon the ways as above stated. Upon appeal to the supreme court of the United States, the decree awarding damages against the owners of the Butte was affirmed (127 U.S. 789) [2] on the 1st day of June, 1888, and on the 29th day of that month, Thomas C. Power, one of the owners of said steamer Butte, and a respondent in the proceedings in admiralty, was compelled to pay, and did pay, upon said judgment therein, the sum of $8,574.74. On the 8th of January, 1892, he brought the present action at law in the United States circuit court for the district of Minnesota against Roger S. Munger and Charles S. Weaver to recover the damages thus caused him, service of notice being had upon Munger only. Among other defenses, it was pleaded by said Munger that the cause of action did not accrue after November 17, 1879; that more than 10 years had elapsed, during all of which time said defendant had resided in the state of Minnesota, and therefore the action was barred under the provisions of the statute of the state of Minnesota. The case was heard before the court and jury, and after the close of the testimony the court directed the jury to return a verdict for the defendant, on the ground that the action was barred by the statute of limitations. Judgment for the defendant having been entered upon the verdict rendered in obedience to the instructions of the court, the plaintiff, Thomas C. Power, brings the case to this court upon writ of error, the sole question at issue being that presented by the ruling made in the court below upon the plea of the statute of limitations.
This ruling of the trial court was based upon the assumption that the suit was for a breach of the written contract between C. S. Weaver & Co. and the owners of the steamer Butte; that the contract created an implied obligation on part of Weaver & Co. to properly handle the Butte; that the injury to the McLeod resulted from a breach of this implied obligation; that a cause of action for breach of this implied obligation arose in favor of the owner of the Butte at the time of the injury to the McLeod, and therefore the period of limitation must be dated from that time.
In the petition herein filed the facts already stated are set forth in their proper order, and, as we construe the petition, it does not declare upon a breach of the contract between Weaver & Co. and the owners of the Butte, but it sets forth all the facts, and bases the right of recovery thereon. Thus it is therein stated that the plaintiff was compelled to pay a given sum of money by reason of a judgment rendered against him and others, as the owners of the steamer Butte, as compensation for one half the damages caused to the owners of the steamer McLeod by a collision occurring between the two steamers, it being further expressly averred 'that the collision and damage aforesaid occurred solely by reason of the carelessness, negligence, and unskillfulness of the defendants in propping up said steamboat Butte, and placing said steamboat McLeod at the foot of the said marine ways while the steamboat Butte was so improperly stayed;' thus charging negligence against Weaver & Co. in the handling of the McLeod as well as of the Butte.
The fact of the execution of the written contract between C. S Weaver & Co. and the owners of the Butte, and the general tenor of this contract, as well as of the oral contract with the owners of the McLeod, are set forth in the petition, but it is not averred that by the terms thereof C. S. Weaver & Co. had bound themselves to the owners of the Butte not to cause injury to the McLeod. The contract does declare the character of the liability assumed by Weaver & Co. touching the Butte, and, if this action was to recover for damages caused to the Butte, then this contract would be the measure of the parties' rights, and would be the basis of the action. The suit, however, is not to recover for injuries caused to the property of the owners of the Butte through the failure of C. S. Weaver & Co. to properly perform their contract obligations, nor is it for the protection or maintenance of any personal or property right of the plaintiff, but, in effect, is based upon the allegations that, through the negligence of Weaver & Co. in handling the steamer Butte when intrusted to their care, injury was caused to the McLeod; that for the damages to the McLeod a judgment was obtained in the admiralty proceedings against the plaintiff and other owners of the Butte, which the plaintiff was compelled to pay. The recital of the contracts in the declaration is in accord with the code system of pleading in force in Minnesota, under which it is the practice to set forth in some detail the facts constituting the history of the given case. The allegations in the declaration are entirely consistent with the view that the plaintiff bases the action on the charge of negligence. The setting forth the two contracts under which C. S. Weaver & Co. had charge of the steamers is matter of inducement, and the question at issue is not other nor different from what it would have been simply stated that C. S. Weaver & Co. had possession of and control over the steamers at the time of the accident. In other words, the question when the statute of limitations began to run is not dependent upon the mere form of the petition, but arises upon the entire facts...
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