SOUTHERN DISTRICT OF GEORGIA.

NOVEMBER TERM, 1876.

CHARLES E. TAYLOR V. BRIGHAM & KELLY ET AL.

1. Since the passage of the act of June 1, 1872 (17 Stat., 196), the federal' courts will follow the decisions of the state Supreme Court on questions of pleading.

2. The part owners of a steamboat are liab'e for the tor's of the master, who is also a part owner, done in the execution of the business in which the boat is engaged.

Heard on motion for new trial.

On February 4, 1856, the steamer Charles Hartridge, when passing up the Ocmulgee river, found a lot of cotton, the property of plaintiff, at Nest-Egg landing, which had been left there for transportation down the river to Savannah. The captain took the cotton aboard, with the purpose of carrying it to Savannah, and proceeded up the river on his trip. His object in not waiting until he came back to NestEgg landing from his trip up the river, and then taking the cotton aboard, was to forestall any other boat, and make sure of the freight. He gave no bill of lading at the time, and took the cotton without authority of the owner. While proceeding up the river, the boat was snagged and took fire. The boat and cargo, including 42 bales of the cotton of the the plaintiff, were consumed.

The plaintiff sued in trover the owners of the boat, among whom was the captain, for the value of his cotton so lost. The jury found for the plaintiff, and the defendants here moved for a new trial, which they base on two grounds.

First. Because the court erred in not awarding a nonsuit

Taylor v. Brigham & Kelly.

on the motion of defendants, based on the ground that the suit should have been in case and not in trover; and,

Second. Because the court erred in charging the jury, that if Taylor, as captain of the boat, and one of its part owners, did, while in the prosecution of the business in which the boat was engaged, convert the cotton, all of the defendants, as part owners of the boat, are liable for his act.

Mr. Richard F. Lyon, for the motion.

Mr. W. B. Hill, contra.

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., 196).

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 et al. v. Brigham, Kelly & Co. et al., 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

Taylor v. Brigham & Kelly.

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 on Agency, secs. 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: Parsons on Partnership, 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, 3 W. and M., 303; Dias v. The Revenge, 3 Wash., 262; Ralston v. The State Rights, Crabbe, 22; Sunday v. Gordon, Blatch. and H., 569; McGuire v. The Golden Gate, McAll., 104; L'Invincible, 1 Wheat., 237; The Anna Maria, 2 Wheat., 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 F. & M. Ins. Co., 3 Mason, 6; Coffin v. Newburyport Mar. Ins. Co., 9 Mass., 436; Hazard v. Israel, 1 Binn., 240; Lyons v. Martin, 8 Adol. & E., 512; McManus v. Crickett, 1 East, 106; Jones v. Hart, 2 Salk., 441; Middleton v. Fowler, 1 Salk., 282; Quarman v. Burnett, 6 Mees. & W., 499; Boucher 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.

Hussey v. The Saragossa.

GEORGE W. HUSSEY V. THE SARAGOSSA.

1. A shipper seeking to recover damages of a common carrier for an injury to the thing shipped, must show some injury which cannot be the result of its inherent nature or defects, or some carelessness or negligence on the part of the carrier likely to cause the injury, before the burden is cast on the carrier to show that he is not in fault.

2. So where a horse, in apparent good health and condition, was shipped on board a steamer, and was delivered at the end of the voyage in a sick and dying condition, but without any fractures, wounds, or any external or visible injury: Held, that some negligence or carelessness on the part of the carrier, which would account for the condition in which the horse was delivered, must be shown by the shipper before he could put the carrier in fault, and recover damages for injury to the horse.

ADMIRALTY APPEAL. On October 25, 1873, the libelant shipped on board the steamship Saragossa, at Baltimore, to be carried to Savannah, a gray gelding, a trotting horse, known as Nick King. The horse was delivered to the stevedore, on the wharf, and slung on board by means of the sling and rope and tackle usually employed for such purpose. The horse was delivered to the libelant at Savannah, on October 29, without any apparent external injury, and on the next day he died.

The libelant claims that the horse was sound and in good health and condition when he was delivered to the stevedore and officers of the Saragossa; that he was injured by the careless and negligent manner in which he was slung on board; that immediately after he was placed on board he showed signs of injury; that he grew worse from day to day, and when he was delivered to libelant, on the 29th, he was in a dying condition, and died the next day, and his death, as above stated, was in consequence of the injury received at the hands of the officers and crew of the Saragossa, in slinging him on board. The libelant claims that the horse was worth three thousand dollars, and asks a decree against the respondent for his value.

The claimants, the owners of the Saragossa, deny that the