Eaton v. Calhoun.

The grounds of demurrer are fully stated in the opinion of the court.

Lucien B. Eaton, in propria persona, for plaintiff.

Jos. M. Gregory, for defendant.

BAXTER, J.-The defendant, by demurrer, denies the jurisdiction of this court, on the ground that both the plaintiff and himself are citizens of Tennessee; and this is the only question presented for our determination.

The framers of the Constitution seem to have been agreed upon three fundamental ideas: First, that a national judiciary was essential to the maintenance of the national authority; second, that its powers should be co-extensive with those of the legislative department; and, third, that it ought to be so organized and endowed as to insure all the purposes of its establishment. And in furtherance of these principles they made the Constitution declare that the judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made or which shall be made under their authority." But this Constitution needed legislation to make it effective. Hence the 25th section of the Judiciary Act of 1789, prescribed a mode whereby parties claiming rights under the Constitution or laws of the United States, could, after unsuccessfully litigating the same through the State Courts, have the judgments or decrees of the State Courts against them re-examined and reversed or affirmed by the Supreme Court of the United States.

But this remedy was found to be circuitous, dilatory and expensive. To obviate which, Congress passed the act of March 3, 1875, entitled, "An Act to Determine the Jurisdiction of the Circuit Court," etc. This act, in explicit terms, confers original jurisdiction concurrent with the courts of the several States "on the Circuit Courts of the

Eaton v. Calhoun.

United States of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States." Parties, therefore, claiming rights under the Federal Constitution or laws, may, since the act of 1875, pursue the remedy given by the aforesaid 25th section, or in lieu thereof, bring their suit, in the first instance, in the Federal tribunals. But they must, in either case, show by proper and apt averments, enough to maintain the Federal jurisdiction. Does the plaintiff do this in this case? If he does we are bound to retain and try the cause.

Upon this point the plaintiff, after alleging title, etc., to the premises sued for, says that he acquired his title "through a deed of the United States executed by the Commissioner of Internal Revenue with the approval of the Secretary of the Treasury, by virtue of the authority conferred by the act of the 8th of June, 1872, and acts amendatory thereof," and that his "claim of title arises under the aforesaid acts of Congress," and that "the validity of said acts of Congress and his title thereunder, are the only questions in controversy" in this case.

These averinents, admitted by the demurrer, bring the case within the purview of the act of 1875, and clothes the court with jurisdiction in the premises. The demurrer will therefore be disallowed and defendant will be permitted to plead in bar. The district judge concurs.

This case was first tried by HAMMOND, J., before whom counsel insisted that the jurisdiction could not be maintained under the act of 1833, referring to that alone. Not being satisfied as to how the law was, his honor ordered a re-argument, but, before the time fixed, came to the conclusion that the act in question was not broad enough for such a case, and prepared an opinion, (MS.) On the day assigned for re-argument he consulted with BAXTER, J., who coincided in that view, but suggested, as he did afterwards to counsel, that perhaps the. act of 1875 covered the case, on which question the re-argument proceeded. The result was the foregoing decision [Reporter.

The Guiding Star.

THE GUIDING STAR.

DISTRICT COURT-DISTRICT OF KENTUCKY-MARCH 4, 1880.

ACTION IN REM BY SEAMAN AGAINST OFFICER OF BOAT.

A seaman cannot, by a proceeding in rem, join a claim for wages with a claim for an assault and battery by an officer of a vessel.

The libellant claimed for services as seaman on voyage to New Orleans and return. On the voyage back, he alleged, when near Caseyville, Ky., he was stricken by the mate, with the knowledge and consent of the captain-badly used and then put off without his consent. He further claimed wages, rations and fare back home, in addition to a large sum for damages by reason of the assault, which, he alleged, resulted in sickness, lameness, and a total unfitness for work. The exception to the libel was, that the claims, being for tort and contract, cannot be joined.

I. H. Trabue and L. N. Dembitz, for libellant.

Barr, Goodloe & Humphrey, for claimant.

BROWN, J.-The only question raised by the exception is whether a seaman, in an action in rem, can join a claim for wages with a claim for an assault and battery by an officer of the vessel. Doubtless a court of admiralty may entertain jurisdiction in personam of suits for assaults, and I see no reason to doubt that a seaman may join in an action for wages a claim against the vessel for injuries received by such acts of negligence as the ship is liable for in a proceeding

The Guiding Star:

in rem; but, by general admiralty Rule 16, "in all suits for an assault or beating on the high seas, or elsewhere within the admiralty and maritime jurisdiction, the suit shall be in personam only."

It seems to be the opinion of Mr. Benedict, however, (Benedict's Admiralty, sec. 309,) that this rule is confined to cases technically for assault and battery as mere torts, and that if the action be brought on a contract, as for not carrying a passenger safely, or without injury, or for not treating with kindness a passenger or seaman, an assault or beating being the gravamen of the breach, that the suit may be in rem against the vessel. No authorities, however, are cited to this proposition, and upon a careful examination I have been unable to find any which lends it support. It is true there are certain cases in rem in which the libellant may join any number of demands, and in cases in personam claims ex delicto and ex contractu are not infrequently joined in the same libel. Dunlap's Admiralty, 89.

The question here involved is discussed in but a single case, viz., Pratt v. Thomas, 1 Ware's Rep. 427, in which the learned judge for the district of Maine considers the subject with his usual thoroughness, and comes to a conclusion that a claim for damages for a personal wrong is an entirely independent claim, and perfectly unconnected with that for wages. This case is a much stronger one against a joinder than the one at the bar, as it was a libel in personam against the master.

If it had been supposed that the court could entertain jurisdiction in rem of a suit for an assault, it is incredible. that precedents for such suits should not be found in the books, for cases of aggravated assaults upon seamen are of the commonest occurrence. Upon the contrary, in all reported cases of this kind the actions are in personam only. The Agincourt, 1 Hagg. 271; The Lowther Castle Id. 384;

The Guiding Star.

The Enchantress, Id. 395; The Ruckers, 4 Rob. 73; Chamberlain v. Chandler, 3 Mass. 242; Peterson v. Watson, Blatch. & How. 487; Thomas v. Gray, Id. 493; Treadwell v. Joseph, 1 Sumn. 390; Williams & Bruce's Adm. Pr. 61; Butler v. McLellan, 1 Ware, 219; Forbes v. Parsons, Crabbe, 283; Fuller v. Colby, 3 W. & M. 1; Anderson v. Ross, 2 Saw. 91.

Doubtless a seamen is entitled to be cured of his wounds at the expense of the ship, and to his wages during his sickness; and I know of no reason why libellant might not have joined a claim of this kind with one for wages. 2 Pars. on Ship. 80-85; The Lillie Hopkins, 1 Wood, 170; The Bradish Johnson, Id. 301; The D. S. Cage, Id. 401; The Ben Flint, 1 Biss. 567. His claim for damages, however, is rather for the pain and suffering endured than the expense of cure; in other words, it is a claim for an assault and battery, and not for wages and medical attendance.

An act of Congress, making the damages occasioned by assault of officers upon seamen a lien upon the ship, may be the only effectual means of checking the brutality and inhumanity so frequently seen on shipboard, but I am satisfied that the law at present warrants no such method of procedure.

The exceptions must therefore be sustained.