THE NEW YORK WEEKLY DIGEST. VOLUME X. BILL OF LADING. BARRA- each of which there were $5,000; TRY. N. Y. COURT OF APPEALS. that he received a bill of lading, which exempted defendant from liability for any loss or detention of, Spinetti, respt. v. The Atlas Steam-or damage or injury to the goods, or ship Co., applt. Decided Feb. 24, 1880. A bill of lading for a box containing two bags of coin exempted the defendant company from liability for any loss, &c., occasioned by "theft on land or water;" "Barratry of master or mariners," &c. One of the bags of coin was stolen, and in an action to recover the value thereof, evidence was given tending to show that the theft was committed by the purser of the vessel. Held, That defendant was not liable. the consequences thereof, occasioned by "theft on land or afloat;" The purser of a vessel is a mariner, and a stracted by defendant's purser. The theft by him is barratry. Reversing S. C., 6 W. Dig., 556. court charged that theft by the purser was not barratry, and if lost by This action was brought to re- such means defendant was liable; cover $5,000 in coin, which was also, that if the gold was lost by the shipped on board of a ship belong-purser's theft, defendant was liable. ing to defendant. It appeared that There was nothing to show that deplaintiff's agent delivered to the fendant was guilty of fault in empurser of defendant's ship, a box ploying the purser. It was shown containg two bags of gold coin, in that he had been in its employ three Vol. 10.-No. 1. years, and had come well recom- CORPORATIONS. TRUSTEES. mended, and defendant had had no fault to find with him, and knew nothing against him. Everett P. Wilder, for applt. Joseph H. Choate, for respt. Held, That the Judge's charge was erroneous; that the bill of lading protected defendant from the consequences of any wrongful act or neglect of its servants, including barratry of the crew and theft committed by any person afloat or on land, 5 Paige, 285; 1 Hill, 25; 26 Wend., 563; that the loss in question was clearly one by theft within the clause in the bill of lading, unless the purser was a mariner, in which case it falls within the exception of loss by barratry. The purser was a "mariner" as that word is used in the bill of lading, and embezzlement by him was barratry. 2 Curtis, 338; McLacklan on Shipping, 146, 148; 36 Rob., 240, 257; 1 Hagg. Adm., 187, 190; Gilpin, 505; 2 M. & S., 172. De Rothschild v. Royal Mail S S. Co., 7 Exch., 734; Taylor v. Liv. &c. S. S. Co., L. R., 9 Q. B., 546, distinguished and disapproved. Simmons v. Law, 3 Keys, 217, distinguished. Judgment of General Term, affirming judgment upon verdict in plaintiff's favor, reversed, and new trial ordered. Opinion by Rapallo, J.; Andrews, Miller and Earl, JJ., concur; Church, Ch. J., concurs as to barratry; Danforth, J., dissents; Folger, J., absent. N. Y. COURT OF APPEALS. Bonnell, respt., v. Griswold et al., impl'd, applts. Decided Feb. 24, 1880. The statutory liability imposed by § 12 of the act of 1848 does not attach if a report is made in terms complying with the statute, although some of the representations in the report are untrue. Only such trustees as sign a false report knowing it to be false are liable therefor. The whole stock of the corporation was issued for property, but in the report made and published, it was not so reported as required by 2 of the act of 1853. Held, That the report was false. Plaintiff, a creditor of a corporation organized under the general manufacturing act of 1848 (chap. 40), brought this action against defendants, who were trustees of said corporation, claiming that they were liable to pay the debt due him, 1st. : Because of an omission on the part of the company to make and publish a report as required by said act (§ 12), 2d: The making and publishing a false report, 3d: That the trustees conspired together and organized the company for fraudulent purposes, and "to deceive the public and plaintiff" made the report in question, and that he was deceived thereby and induced to give credit to the company. The defendants' answer put in issue all the allegations of the complaint. A judgment was rendered in favor of plaintiff upon the first ground. The trial judge found as a fact, that on January 13, 1870, the company made, filed, and published a report, which was in form in compliance with the requirements of the statute, and which was made within the time required, and duly filed and published, and which stated that the stock had been "paid up in full.” Wm. C. Holbrook, for applts. A. Pond, for respt. Held, That the statutory liability imposed by section 12 does not attach if a report is made in terms complying with the statute, although some of the representations in the report be untrue; that it cannot be held that a false report is no report, 68 N. Y., 35; that only such trustees who sign a false report knowing it to be false are liable therefor. Chapter 333 Laws of 1853, is entitled an act amending chapter 40, Laws of 1848. No especial section of 1848 is amended by it. Section 2 of the act of 1853 provides, that the trustees of such a company may purchase mines and other property necesssary for their business, and issue stock for the value thereof, but that such stock shall not be stated or reported as issued for cash paid in, but according to the fact. The whole stock of the corporation was issued for property. It was not so reported. Held, That the report was false; but that the penalty provided by 12 of the act of 1848 cannot be imposed for a disobedience of section 2 of the act of 1853; that an omission to perform the duty imposed by said section would render the report-false, and those making it liable to the penalty imposed by section 15 of the act of 1848. Judgment of General Term, affirming judgment of Special Term for plaintiff, reversed and new trial granted. Opinion by Danforth, J.; Church, Ch. J. and Miller, J., concur; Rapallo and Andrews, JJ, concur on first ground; Folger and Earl, JJ. dis sent. NEGLIGENCE. EVIDENCE. PRACTICE. N. Y. COURT OF APPEALS. Doyle, applt., v. The N. Y. Eye and Ear Infirmary et al., respts. Decided Feb. 24, 1880. In an action for damages for the loss of plaintiff's sight, alleged to have been caused by the negligence of defendant's surgeon in putting some poisonous infection into plaintiff's eyes with a brush while attempting to cure him, plaintiff was asked, on cross-examination, whether he had published articles complaining of his treatment, and whether he stated in the articles that the poison was communicated with a brush, Held, competent on the question of plaintiff's credibility. Experts were asked whether, within their experience, they had ever known a case where gonorrheal ophthalmia was communicated by the use of the brush, Held, competent. In such an action it is competent for defendant to show that plaintiff's treatment after leaving the infirmary was improper, and to prove the professional standing of the physicians employed by it. Where a witness has a clear recollection of a fact, it does no harm to allow him to strengthen it by reference to memoranda or otherwise. Testimony of a physician, that in the treatment of a patient he used the best ability and skill he possessed, is competent. The physician who attended plaintiff after leaving the infirmary, on cross-examination, denied that he told defendant's surgeon that plaintiff had no reason to complain of his treatment there. Held, That evidence contradicting the denial was competent by way of impeachment. Where a portion of a charge excepted to is admitted to be correct the exception will not be sustained. This action was brought to re cover damages for an injury to at the diagnosis of plaintiff, made at the time, as it did not appear but that he had a clear recollection without looking at the memorandum. Held, That this objection was D. was asked, "Did you, in your treatment of young Doyle, use the best ability and skill you possessed?" This was objected to, and the objection overruled. plaintiff's eyes, producing blindness, by the alleged negligence and unskillfulness of the defendant D., an assistant surgeon appointed by the Infirmary. The particular without merit; that if the witness charge made in the complaint was had a clear recollection before, it that the defendant corporation by would do no harm to strengthen it its surgeons and servants and the by any means. defendant D. "put some poisonous infection or improper substance or matter into the eye or eyes of the said plaintiff while so attempting to cure and heal and doctor him by means of a brush or other cause,' whereby they became inflamed and matterated, by reason whereof he lost the sight of both eyes. A verSeveral experts were asked this dict was rendered for the defend- question: "Within your experience, ants. Numerous exceptions were have you ever known a case where taken to the admission and rejection contagion of this kind was comof evidence. Upon plaintiff's cross- municated-of gonorrheal opthalexamination, he was asked as to mia-by the use of the brush." whether he had written and pub- Held, Competent upon the queslished in the newspapers several tion of the difficulty of such an acciarticles complaining of the treat- dent, and the impossibility of its ment of his eyes by defendants, and occurrence; that the fact that this whether he stated in those articles poison might be communicated by that the poison or foreign substance a brush did not render it incompewas communicated with the brush. tent. Held, no error; that the fact being within his knowledge, was, as such, competent. He had testified, and it was claimed H., a physician who attended on the trial, that purulent matter plaintiff after he left the infirmary, had been communicated with a had given evidence tending to prove brush which had been used on improper practice there, and was other patients without proper cleansing. T. C. Campbell, for applt. Albert Stickney, for respts. Held, That the inquiry was competent upon the question of plaintiff's credibility as to the manner of the alleged injury. asked whether he had told defendant D. that plaintiff had no reason to complain of the treatment he had at the infirmary. He denied having told D. this. Evidence was given contradicting the witness's denial. Held, Competent, by way of impeachment. It was objected that the defend- Also held, That it was competent ant D. was allowed to testify after to show that H.'s treatment was imrefreshing his memory by looking proper, for the reason that if plain tiff's blindness was produced by his order denying a motion for a new bad practice, it would seem to follow trial. that it was not produced by the in- The action was commenced in a firmary practice, and even if both justice's court. On appeal to the contributed to the injury, it was county court, it was tried by the competent upon the question of county judge and a jury. The jury damages. rendered a verdict, in favor of the Also held, That it was competent plaintiff, for $36. The complaint alfor the corporation defendant to leged an agreement made by the deprove the professional standing of fendants, as common carriers, by the physicians employed by it, and which, at Poughkeepsie, they rehence, that it had discharged its ceived two coils of rope, to carry and duty in respect to employing com- deliver the same, on demand, to the petent and skilful men. plaintiff at Rondout. That the plaintiff demanded the rope, and the defendants refused, and still refuse, to deliver the rope to the plaintiff. That the value of the rope was $35. The answer was a general denial. On the trial the defendants ad When a portion of a charge excepted to is admitted to be correct an exception will not be sustained. Judgment of General Term, affirming judgment on verdict for defendants, affirmed. Opinion by Church, Ch. J. All mitted that they were partners and concur. COMMON CARRIERS AND N. Y. SUPREME COURT. GENERAL Decided April 8, 1880. common carriers. It appeared, from the evidence, that on the 1st of August, 1872, W. A. Fanning, at Poughkeepsie, delivered two coils of rope to the defendants' boat, directed to the plaintiff at Rondout, and took a receipt therefor. The boat arrived at Rondout the same day, and the rope was received by the defendants' freight agent there. It was A complaint alleged that defendants, as com- the custom at Rondout for the demon carriers, received certain goods at P. to fendants to deliver goods to consigncarry and deliver the same to plaintiff on demand at R.; that plaintiff demanded said ees at the dock, on the arrival of the goods, but defendants refused and still refuse boat. No notice was given to conto deliver the same to him. Held, sufficient signees of the arrival of goods. If to uphold a recovery against defendants parties were not there to receive either as common carriers or warehousemen. them, they were placed in the defendants' store-house on the dock, and left there till called for, without any charge for storage. There was no proof of any inquiry for the rope Appeal from a judgment of the until the 3d of August. On that county court of Ulster County, en- day the plaintiff's son came and intered upon a verdict, and from an quired for the rope, and was told by A warehouseman is only bound to use ordin ary diligence in caring for and protecting the property, but if, when demanded, it is gone, he is bound to show that it has disappeared without his fault. |