(DiBfhiet Court; E; D.· Michigan. February 18, 1884.) .. . A.n14IrtALTy-JlrnY TRIArr-.-REv. ST. § .566-VERDfCT.
The verdict of a jury, in an admiJ;altycause arising upon the and tried by jury pursuant to Rev. St. § 566, is merely advisory, and may be disregarded by the court, if, in the opinion of the judge, it fails to do substantial Justice. The practice of calling nautical assessors approved. . . .
In Admiralty. Onlllotio,n for a new trial. This was a libel for damages suffered by the barge James F. Joy, while in towof the steam-barge Empire, and by reason of her alleged negligence. The caSe was tried by a jury, pursuant to Rev. St. 566, and. a. verdictreturned £ortbe libelant in tbe sum of $200. Motion was made for a new trial, upon. the ground that there was no evidence to justify the jury in rendering a verdict for .so small an amount. H. II. Swan, for James.T. A,tkinson, contra. ..' . . BROWN, J. .By Rev. St. §566, "in causes of admiralty and mariti:me jurisdiction relating to any matter of contract or tort arising upon or concerning any vessel of 20 tons burdeu and upwards, enrolled arid licensed for the coasting trade, and at ,the time employed in the business of oommerce and navigation between places in difand navigable waters conferent states and territ9ries upon the necting the lakes, the tria.1- oUssues of fact shall be by jury when either party requires it." .' This sOlllewhat unfortunate clause was introduced by therevisofs into the, i:!tatutes from a hasty dictum of Mr. Justice NELSON in the case of The Eagle, 8 Wall. 25. In delivering the. opinion of the court be remarked "that we must there·fare regard it (the act of 1845) obs()lete and of no effect, with the exception of the clause which gives to either partytbe right of trial by 8,. jury when requeeted, which is rather a mode C!f exercising jurisdiction than any substantial. part of it." The history of the incorpor.a.tio,n Q,f this. dictum into the Revised Statutes is fully given in the .clllseof 'Gillett \T. Pierce, 1 Brown, Adm. 553. But, whatever be the· ,origin of the clause in question, there is no doubt that it is the law of the land and must be respected as such. There has been great ,difliculty, however, in determining;in what cases and in what manner <it is· to he given effect. Itcreates what appears to be a very unjust ,Wse.rimina.tion in favor of the paTtiqula;r classes 'of vessels and causes .!Of.a,ctiOtl eUllmerated in the act. Why it should, be. given in actions .of contract and tort, and denied in those of salvage, general average, and prize, an.d why it should pe limited to Am,erican ve.ssels plying between domestic ports, and denied to ",UJoreign, vessels, and to A.merican vessels ·engaged.in fo:reign trade, it is impossible to con,ceive. T!le Eagle, 8upra. '
·'
THE EMPIRE. ,':'
559
A still more serious objection tothec.1,auseas'it from the 'fact that no provision is made fOl'the reView of cases ;sOt tried. If the same weight is tobs given to the verdict of a jury paneled under· this act, that is given boa'verdict in a common-law' case, then it clearly falls within the inhibition contained in th.e seven-tIl' amendment to the constitution, that "nofactitried by a jury shall be otherwise re-examined in any court of the United States' than cording to the rules of the common law. As there is rio provision; for a writ of error in this class of cases, the defeated' party w{)uld :be: This questiollwas, however; passed upon in the ,case of Boyd v. C14rk, 13 FED. REP. 908, in which ,the defeated patty took both an appeal and writ of error to the circuit court. .Mr.7 Justice MATTHEWS, before whom the case was argued, dismissed the. writ of error and allowed the appeal, holding that the fact that the case was tried by a jury made' no difference in determining the remedy: to, which the defeated party was entitled. He further observed.tbat the provisions regarding trials by jury, in the seventh amendment,applies only to juries, and that, upon appeal, admiralty cases tried by a jury in the district court ,stand for trial in the circuit com precisely as if they had beeu tried by the district judge io , .These objections to the act as· it now stands, and the further ome that there is probably no class of cases which a jury, as ordinarliy constituted. ill so unfitted to deal 'with as actions fortorts upOo na'vigable waters, have been'deemed so serious that the practice 0ftrying admiralty causes by a jury has not obtained inthsdistrictcourtto any extent. This case, and that Qf Boydv.Clark,8upra,'a:re'iso fal' as I am informed, the only actions of by jttryin this dis.. trict during the almost 40 years:in which the act has been ioforoe, In lieu of this method of procedure, we have for several years past,' in analogy to the trinity master system obtaining in the English court of admiralty, adop,ted the praotice 'of calling to the assistallceof the court, in an difficult oases involving negligence, two experienced shipmasters, who sit with the judge during the argl!looent and give their advice upon the questions of seamanship or the weight of testimony. I believe a somewhat similar practice has obtained in some of the other district courts. The Emily, Olcott, 132. Tlie Riltal,l Spr. 128. The practi{le appears also to have. received the sanction of the supreme court. ,!,he IIypodame, 6 Wall. 216-224; The GityojWash. ington, 92 U. S. 31-38. I have frequently derived great:assistance from the advice of nautical assessors myself,and have ,found this a , most satisfactory and expeditious method of trying these The question still rem8Jins to be de{lided, however, wliat!weight we shall' give to the verdict ofa jury impaneled 'under section 566. The question has never been direotly deoided; but"in view of the opinion in Boyd v. Clark, Bupra, that their verdict is not binding upon the circuit court' upon appeal, it seems to ,be a logical inference that it ought to be regarded in this court only as';advi§ory. There iano rea-
560
FEDERAL REFORTER.
son for giving it greater weight in one court than in the other. In chancery cases the province of the jury is said to be to "enlighten the conscience of the court," and as the court of admiralty is but the chancery of the seas, I see no reason why we should not give it the same effect here. In the case of Lee v. Thompson, 3 Woods, 167, a supplemental libel was filed in the district court, upon which there arose a question as the validity of a certain assignment. The court made an order that the matter be tried bya jury, and it was tried accordingly. Upon appeal to the circuit court, Mr. Justice BRA.DLEY held that,although there was no power in the court of admiralty to try causes by jury, it was nevertheless proper to submit a question of fact to them for their opinion and advice; but that their decision was, after all, not conclusive, and the matter. must be finally submitied to tbe judge of the court; citing Dunphey v. Kleinsmith, 11 Wall. 610. In Basey v. Gallagher, 20 Wall. 670, a provision in a statute of Montana, declaring that an issue of fact "shall be tried by a jury, unless a jury trial is waived," was held not to require the court in equity cases to regard the findings of the jury as conclusive, though no application to vacate the findings be made by the parties, if, in the judgment of the court, such findings are not supported by the evidence. In delivering the opinion of the court Mr. Justice FIELD observed that "if the remedy sought be a. legal one, a jury is essential, unless waived by the stipUlation of the parties; but if the remedy sought be equitable, the court is not bound to call a jury; and if it . does call one, it is only for the purpose of enlightening its conscience, and not to control its .judgment. · · · Ordinarily, where there has been an examination before a jury of a disputed fact, and a spe. cial finding made, the court will follow it. But whether it does so or not must depend upon the question whether it is satisfied with the verdict. Its discretion to disregard the findings of the jury may undoubtedly be qualified by statute; but we do not find anything in the statute of Montana, regulating proceedings in civil cases, which affects this discretion." While the language of the section (566) is peremptory, that either party ia entitled to a jury trial, it is no more so than was the statute of Montana; and yet, notwithstanding the absolute right to a jury trial given by this statute, it was held that the jury was merely advisory. See, also, Dunn v. Dunn, 11 Mich. 284. In. the case under consideration the verdict of the jury was not consonant with any theory upon which the case was tried. If the jury had found there was no negligence, it was their duty to have returned a verdict for the defendant. If they found the tug was in fault. they should have returned a verdict for the damages suffered by the libelants, which the testimony showed were not less than $800 j and if demurrage were included, were nearly $1,500. There was no evidence in the case to justify a verdict of $200; and it must be set aside.
WESTERN UNION TEL. CO.
o.
NATIONAL TEL. CO.
561
WESTERN UNION TEL.
Co. v.
NATIONAL TEL. Vo.
and others.
(Circuit Oourt, S. D. New
March 6, 1884.)
2.
SAME-SEPARATE CONTROVEUSY BEtwEEN CITIZENS OF DIFFERENT STATES. Boyd v.Gill, 19 FED. HEP. 145, followed:
Motion to Bemand. Dillon cf Swayne,. for Western Union Tel. Co. Dorsheimer, Bacon et Steele, for Nat. Tel. Co. and B. & O. Tel. Co. P. B. McLennan, for N. Y., W. S. & B. By. Co. . WALLACE, J. Whether the complainant acquired any exclusive right as against the telegraph companies, the defendants, to build or maintain its lines upon the lands of the railway company; whether. it acquired any easement not subject to a co-extensive easement in favor of the other telegraph companies; and whether any easement it may have acquired is of such character-as would entitle it to compensation before the other telegraph companies can occupy the lands of the railway company with their lines, are all qnestions which may depend upon the force and effect of ·the act of congress of July 24, 1866, and arise under the il:!sues presented by the pleadings. The au t was therefore properly removed from the state court as a controvers.) arising under the laws of the United States. Cases arising under the laws of the United States, within the meaning of the removal act, are 'uch as grow out of the IElgislation of congress, whether they constitute the right, claim, protection, or defense, in whole or in P&l·t, of the party by whom they are asserted. If a federal law is to any extent an i4gredient of the controversy by'way of claim or defense, the condition exists upon which the right of removal depends, and the right is not impaired because other questions 'tre involved which are not of a federal character. Oruikshank v. Fourth Nat. Bank, 16 FED. BEP. 888; Mayor v. Cooper, 6 Wall. 241-252; Railroad 00. v. Mississippi, 102"U. S. 135. The motion to remand is denied. . Too defendant the Baltimore & Ohio Telegraph Company, has also removed the suit upon its separate petition, alleging that there is a controversy which is wholly between it and the complainant citizens of different states. Within the recent deoision of this court in Boyd v. Gill, 19 FED. BEP.145, such a separate controversy is not diselosed by the pleadings. See also Peterson v. Ohapman, 13 Blatchf. 395. So far as the removal has been effected upon this petition the suit should be remanded. v.19,no.8-36