Amis v. Steamboat Louisa

McBride, J., delivered the opinion of the court. This was a proceeding under the Statute, R. C. 1835, p. 102, and the supplemental act of 1539; Sess. acts 1838-9, p. 13. To the original complaint filed in the cause, the defendant demurred, assigning as special causes, that it appeared by the complaint that the sum claimed by the plaintiff accrued on account of work done, in the caulking and repairing of two keel-boats, used in navigating the waters of this State, and not for work done on the said steamboat Louisa; and that it was not alleged, and did not appear, that the keel-boats belonged to, and were appurtenances of the said steamboat Louisa. The court of common pleas sustained the demurrer, and the plaintiff asked and obtained leave to file an amended complaint. ■ The amended complaint stated [623] the cause of action to be for work and labor on certain barges, connected with and appurtenant to the said steamboat Louisa. To the amended complaint the defendant pleaded, 1st nil debit. 2d, That the said plaintiff did not perform work, &c., on the said steamboat Louisa, or any part or parcel thereof. 3d, That the said keel-boats or barges, at the time the work was done, were not, nor was either of them, appurtenances of the said steamboat Louisa, as stated in said complaint. On the trial, the plaintiff offered evidence conducing to prove the work done on the barges and its value, and that the clerk of the said steamboat gave a note in the name of said boat, by order of the captain, for the work, as stated in the complaint — that these barges wore originally built by the dry dock company for another purpose, and were subsequently bought by the owners, and repaired for the use of the steamboat Louisa. That they had distinct names, the one called the “Wave,” and the other the “Ripple;” and their capacity was about 125 tons each'. That it was customary to register such barges — those had been used by the steamboat Louisa on several occasions, in caryyji|^ freight on the Mississippi river, and that tide freight bills were given in the name of the Louisa and barges. That barges are used by steamboats in times of low water. Some boats have no barges. That a yawl is an essential part of the appurtenances of a steamboat, but that a barge is not. Some boats have no yawl. That barges, when used, are as much under the care and control of the officers, as the boat itself. The defendant offered no evidence. Thereupon the court instructed' the jury, that from the evidence before them, they were bound by law to find for the defendant, and the jury having so found, the court entered judgment, when the plaintiff filed his motion for a new trial, assigning, among other reasons, because the court misdirected the jury, which being overruled, he appealed. The instruction of the court is the error complained of. What is or is not “appurtenances” of a steamboat, is, we think, a question of fact, to be established by evidence, and the fit subject of enquiry for a jury. The statute no where defines what is meant by the term; it must then be referred to the intention of the defendant, and the general understanding of the community who are conversant with the business of steamboating. It does not necessarily follow, that because the keel-boats were originally built for another and an entire different purpose, that they may not afterwards become so identified with the steamboat, as to be said to be appurtenant thereto. So of a yawl, which may have originally been built for a pleasure or market craft, or used by the dry [624] dock company, to facilitate their business, and is afterwards purchased by a steamboat for the purpose of accompanying and being used by her in navigating the rivers. And the same may be said of all the tackle of a steamboat, none of which was originally made for the boat which acquired it. We are of opinion, moreover, that there was some evidence conducing to show, that the keel-boats repaired at the instance of the captain of the steamboat, and used in the employment of the boat, when occasion required their use, come within the term “appurtenances” of said steamboat. This then being the tendency of the evidence to establish a fact relevant to the issue before the jury, the court erred in the instruction given, which took the whole case from the jury. I Mo. R. 483; lb. 619; 5 lb. 110; 6 lb. 73; 8 lb. 268. The other judges concurring herein, the judgment of the court of common pleas is reversed, and the cause remanded for a new trial to be had in that court.