FEDERAb 1 Ri!:IiORTER ,'vol.
"fjound, ,it'Woutd; rlOt3
ttr,Ment or proper' to take the raft . ".,Ii. ' ·· or " PhirteenWt.Tberatf,'wa(l6Slttlitougb the perils 'and the inherI ent without any fault' or' !negligenee or omis''8iO'n 'OWithe'pilrt'Of the libelant f1')' tpeperformance of its duties. "On' the I find'tM follOWing conclusion. df law: ..' I' First'. Tlie libelapt. baving performed its contract, is entitled to payment, 'under the terms: of the charter, for twelve days. at $300 per day· .. Second. The libelant is imtltltldto a decree of 'for $3.600, with !lnterest thi!'reon 'from the 27th of' December, 1887, and for its costs in the dis· taxed 8t$98.10, andfbr its costs in this court, 'to be taxed." John Berry, fOJ; James D. Butler, Stillman Hubba'lrd, for New York, N. F. & H.S. S. Co.
I concur entirely with the views exjlidge, in b.is opinion in .these reporte¢l In 40 Fed. Rep. and decrees ",lUbe entered m ao,with the thave signed,
THE' FRANK GILYORD.
(.v£8t'Iict OQUrt, W. D. Pennsylvania. July 19, 1890.)
OWNER-INJURY TO EMPLOYB. The libelailt, a deck-hand, 'while at work on a steam-boat, accidentally fell· and injured hill. ).eg.. ,The examined the limb, and thought the hurt was not ., Berioue, and applied simple remec:1iefl. All tbe officere of the boat Bup,poeed it was a eprain. Two days afterw'ards the boat reached Cincinnati. 'Xhe libelant did not aBk to be Bent to tbe marine hospital there, nor for On tbe up-trip, by orders, 'he did Bome light work" but wIthout compulsion. Eleven days after the accident he entered the mariDll at Pittsburgh, and it turned out thatlle had s.uetained partial lateral dislocation of the knee-joint, and he is likely to be permanently disabled. There wall eVi.dence that he did not receive proper attention at the hospital. Held, that he had no cauee of action agaiuat the OWlierI of the boat. ".
covery in tbis suit could be rightfully based? I think not. Undoubtedly, very soon after fact came to the knowledge of the master and mate of the boat, although, under all the evidence, it is by no means clear that thelibela.nt himself gave ,them the information, or made any special complaint to either of them as to his condition. It however, that the steward of the boat looked after the libelant, and I think iUs satisfactorily shown that he gave the libelant reasonable attenti6n.. The,s¥ward examined the injured and his judgment was thatthe.injurywas not at all serious;, and simple remedies were applied with beneficial results. All the officers believed that the hurt'was nothing but a simple sprain. True, when the marine surgeon at burgh <fS:l.me to efCamine the libelant's leg, he fo,und that he had sustai.ned a. partial' lateraldil!ilocatidn of the knee-joint,-but this was not apparent to unpro'fussidnal 'persons, nnd the officers of the'b()at had no reason to stispect'thlit' was so serious. The libehlDt's own conduct at the tiII)lHndicated that he did no.t regard the injury as a serious affair.' In ,aboi1t'tWb days: after thea'cciderit the boat reached Cincinnati,where there was a mantie which the libelant could have entered for treatment free of charge,yet he did not ask to be serit there, nor 'did he request the services of a surgeon. The only thing he askedf()f at Cincinnati was a bottle of arnica to apply to his leg, and this the steward procured. Now,the libelant was a man of mature age, of considerable experIence, and 'of at leasf average intelligence, and, if he did n()tunderstand the sEinous'nature of his injury, how can fault fairly be imputed to the offioorsf6Ttheir want of knowledge as to the gravity of thecase? As to whether the 1ibelant was relieved altogether from work during the reniainder'of the trip to Cincinnati, after he was hurt, the testimony is conflicting, but I think the weight of the evidence upon this point is With the respondents. It is conceded that for two days on the return tripfrom Cincinnati the libelant was wholly off duty. During the rest of the trip up he did some work, but it was light work, at least in the main. Fam not convinced that he was constrained to do any work. When the trip to Pittsburgh was completed the libblant left the boat without requestitlgto be sent to the marine hospital. Hewas in liquor the next day when he applied to Mr. Jenkins, and the latter did not know him. .,' I thitik· the respondents were· not to blame for the delay in the libelant's entrance into the hospital after his arrival at Pittsburgh. And' upon the Whole I am Of the opinion that the libelant has 'failed to establish any good ¢ause of action against the tow-boat Or her own'ers, and therefore the libel'mtist be dismissed.
;r i '
vol. 43.'} . RUSSELLet al. v. THE TWliLICHT
; I", : (DiBW£ct
Coutt, W. D. PennB1/wania. JuI, 19, 1800.)
OF WAGES. ". . ' "
Libelants, deck-hands on a,il Ohio l;\ver tow-boat, were ot-deted by the dur109 a voyage, to draw ashes froni, llhefurnace. They refused, on the grouna that it WBoB a work. Persis:ting in the, refusal, theY were put ashore at the next port. Bela, that the master of the boat was justified in discharging them, but that the libelants had not incurred a forfeitul'e of their wages for past services rendered on the trip. , ' , ' ,
In Admiralty. '" ' "" , ' Suit for wages,etc. deck-hands pn 0. tow-boat on the O};1io river, when ordered by the mate·to draw ashes from the fijrnace alleging it was a. fireman's work. After warning, they were put ashore th El next port. There was evidencEl that ,on that boat it was work to be done by deck-hau9.s,hut when hired nothing was'said to the libelants on the subject. There was evidence also that this wa/il not the work of deck7handl'lon tow-boats generll,lly. '' Barton & jJq,rton, for libelants., Knox & Reed,'for respon4eJ;lts; ,
ACHF..f:lON, J ,,!. In any that can be taken of the case under the proofs, thtl, master of the TwiHght was justified in discharging the libelants uP<ilD their ref-qsal to "pull ashes" from the furnace when to do so .by their superior officer. The service was pot an onerous on.e, and, if usually, on this class of vessels, it is the. work ofthl:lWemen, ailddoes,I;1ot come strictly within the scope of a deck-hand's employmeht, still the under the circumstances, was well warr,anted in dismissing the libelants. ", , ' 2. But I am.:Jt0t prepared to say that thEllibelants forfeited their wages for past ()n thetrip. .This was not a case, of insubordination pure and simple, .but the refusal of the libelants to perform this particular work-was basec!,avowEidly, upon theirsupposed rights under contract?t' hiring., MOl'eov,er, Twilight sustained no \oss or,dellconduct of the li1:)elants, and to enforce a.forfeiture of wages:l;\1ready earned would be, harsh. 3. I am, Gowever, of the opinion that thedec,ree in favor of tQe libelan allo"",ance of any costs to them. Their beants should be haviurin this matter was not commendable, and, b,esides, they have sued for more than they are justly entitled to. As the respondents never offered to pay anything, they ought to be charged with the fees of the marshal and clerk. No other costs will be allowed. Let a decree be drawn in accordance with these views.
. 41fDERSON , BOWERS. .,. .
et al. v.
(Circuit. Court, N. D.
REMOVAL OJ!' CAUSES-LoCAL PREJUDICE.
W. D. August 29, 1890.)
Under Act Congo Aug. 13, 1888, amending Act March 3, 1887, § 2, 01. 4, providing that in actions "in .which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, n may remove the action on the ground of local prejudice the right of removal does not exist where the controversy is between a citizan of the state wherein t,he SUIt is pending onthe one side, and a citizen of the same state and a citizen of another state on the other side.
Motion to Remand to State Court. Van Wagenen & McMillan and Kauffman & Guernsey, for complainants. Hender8on, Daniel8, Httrd & Keisel, for Orient Fire Insurance Company. SHIRAS,J. The motion to remand in this case presents the question whether, under the local prejudice clause of the act of congress of 1888,1 the right of removal is confined to cases wherein all the defendants are citizens of a state other than that in which the suit is pending. The complainants in the cause are citizens of Iowa. The Orient Fire Insurance Company, a corporation created under the la.ws of the state of Connecticut, and George Provost, are defendants, the latter being a citizen of Iowa. The insurance company filed its petition for a·removalof the case on the ground of local prejudice, and the petition wasgranted,following the ruling made by Judge JACKSON in Whelan v. Railroad Co., 35 Fed. Rep. 863. The motion to remand was filed for the purpose of re-presenting the question of the true construction of the statute in this particular. The original local prejudice act of 1867 provided "that where a suit is now pending, or may be hereafter brought, in any state court,.in which there is a controversy between a citizen of the state in which the suit is brought and· a citizen of another state, whether he be plaintiffor defendant, if he will file an affidavit," etc. The clause deals with two subjects: (1) It defines the class of controversies that are removable under its provisions; (2) it declares by whom the right of removal may be exercised. To, be removable,there must be iIi the suit a controversy between a citizen of the state whereiuthe suit is brought and a citizen of another state. Such a controversy existing, then, upon the showing of the existence of local influeoce or prejudice, the citizen of another state, whether plaintiff or defendant, could remove the case. In cases wherein there was more than one plaintiff or defendant, it was held by the supreme court that all interested in one side of the controversy must be citizens of the state in which the suit was brought, and all interested adversely must be citizens of other states, and furthermore that all the citizens of the state or states, other than that in which the suit was pending, must unite in the application for removal. Sewing-Mach. Ca8e, 18 Wall. 553 j
Act of August 18, 1888, amending act of Maroh 8, 1887, S 2, cL "