Taylor v. Brigham

WOODS, Circuit Judge. The first ground of the motion is not well taken. By express act of congress, the practice, pleadings and forms and modes of proceeding in civil causes other than equity and admiralty causes, in the circuit and district courts shall conform, as near as may be, to the practice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record in the state within which such circuit or district courts are held. 17 Stat. 190. In a suit brought in trover by other parties against these same defendants to recover for cotton lost in the same disaster, and under precisely similar circumstances, the supreme court of Georgia held trover and not case was the proper form of action: Phillips v. Brigham, 26 Ga. 617. In that case the court said, that if there was a conversion of the cotton, trover was the proper remedy, and that both the taking of the cotton without authority and the deviation from the ordinary route, constituted a conversion. This decision, upon a question of pleading in the state courts, is under the act of congress just quoted, binding upon this court. Second. Were the defendants, as part owners of the boat, all liable for the act of the captain in converting the cotton while in the prosecution of the business in which the boat was engaged? The law treats the,captain of a boat as in some sort a subrogated principal, or qualified owner of the ship, possessing authority in the nature of exercitorial power for the time being. And his liability, founded upon this consideration, extends not merely to his contracts, but to his own negligences, malfeasances and misfeasances, as well as to those of his officers and crew. Hence it is that the master of a general or carrier-ship, as well as the owner, is treated as a common carrier. Story, Ag. §§ 314, 315. All owners of a vessel are liable for the consequences of a wrongful act of a person employed by them, or of one part owner, so far as he is acting as the agent and representative of the others, if the tort be committed in obedience to positive direction, or while in the actual discharge of a duty committed to him, or as a part of a service committed to him, and this rule extends to all cases of mere negligence, however gross. Pars. Partn. 572. The owners of a ship are liable for the misconduct of the master to third persons, and for the conduct of the master and crew in the execution of the business in which they are engaged. Joy v. Allen [Case.No. 7,552]; Dias v. The Revenge [Id. 3.877]; Ralston v. The State Rights [Id. 11,540]; Sunday v. Gordon [Id. 13,616]; McGuire v. The Golden Gate [Id. 8,815]; L’Invincible, 1 Wheat. [14 U. S.] 237; The Anna Maria, 2 Wheat. [15 D. S.] 327. The owners are even liable for the willful and malicious acts of the master, done in the course and scope of his employment. Andrews v. Essex Fire & Marine Ins. Co. [Case No. 374]; Coffin v. Newburyport Ins. Co., 9 Mass. 436; Hazard v. Israel, 1 Bin. 240; Lyons v. Martin, 8 Adol. & E. 512; M’Manus v. Crickett, 1 East, 106; Jones v. Hart. 2 Salk. 441; Middleton v. Fowler, 1 Salk. 282; Quarman v. Burnett, 6 Mees. & W. 499; Bowcher v. Noidstrom, 1 Taunt. 568. The authorities cited fully sustain the charge of the court, which is complained of. Neither of the grounds on which the motion for a new trial is asked is well taken. The motion must, therefore,-be overruled.