A commission from this Court to take testimony refused on an
appeal in a collision case in admiralty where the party moving had
in the district court the same witnesses whom he proposed to
examine here, and did not examine them only because he had agreed
with a co-defendant who was apparently as between themselves alone
liable -- he, the co-defendant, having led the other defendant into
the fault for which the libel had been filed -- that he, the
co-defendant, would manage the whole case and pay the sums awarded
by any decree (the purpose of this agreement having apparently been
to keep from the court below a full knowledge of the case), and
where especially the party now moving did not appeal from the
decree of the district court.
The owners of the
Chapman had libeled in the district
court at New York the steam tug
Mabey and the sailing
vessel
Cooper, which the tug had been towing out to sea,
for injuries caused to the
Chapman by collision on the way
out. The owners of both the tug and sailing vessel appeared in the
district court with their witnesses, but the owners of the tug soon
withdrew from court, and gave no evidence in defense of the tug.
This course, it appeared, had been done upon a written agreement
between the owners of the tug and sailing vessel, that the owner of
the tug should take no active part in the conduct of the suit; that
no evidence should be offered in behalf of the tug, and that the
owners of the sailing vessel would assume the whole defense for
both, and would pay whatever damages should be awarded against
either or both, for the performance of
Page 80 U. S. 739
which agreement the owners of the sailing vessel entered into
bond of $10,000 to the owners of the tug, with two sureties, whose
solvency was then unquestioned. The district court decreed heavy
damages against both tug and sailing vessel, and an appeal was
taken to the circuit court, where the decree was affirmed.
The case was now brought here.
Being here, Mr. W. W. Goodrich in behalf of the owners of the
tug, moved that a commission issue to take the testimony of certain
witnesses named. The grounds of the motion were the fact of the
agreement above set forth; that the sureties in the bond had now
become insolvent, and that four witnesses whose names were given,
and whom it was proposed to examine, were "material witnesses in
behalf of the appellants, without whose testimony they could not
safely proceed." There was no statement of what facts it was that
the persons proposed to be examined could probably prove.
A counteraffidavit stated that the answer of the owners of the
tug alleged that before taking the sailing vessel in tow, the
master of the tug informed the agents of the sailing vessel that it
was not safe to proceed to sea in the then condition of the weather
and tide, and that the agents told the master to proceed and that
their owners would assume all risks and pay all damages. It
represented further that the witnesses in behalf of the tug had
been brought into the district court and had abundant opportunity
to testify, and had been sent away on the agreement and because the
owners of the tug and sailing vessel
"combined to keep from the knowledge of the court evidence which
would have tended more clearly to establish the right of the
libellants to recover, and in the hope, by doing so, to throw upon
the libellants the whole of the damage;"
that the witnesses now proposed to be examined were entirely
within the control of the owners of the tug at the hearing in the
district court, and that the testimony proposed to be taken was no
more important now than it had been then, and that the owners of
the tug had not appealed from the decree of the district court.
Page 80 U. S. 740
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
[
Footnote 1]
Damages were claimed by the owners of the ship
Isaac F.
Chapman for injuries which the ship received in a collision
that occurred between the ship while she was lying at a dock in the
port of New York, and the steam tug
R. S. Mabey and the
ship
Helen R. Cooper, which, at the time of the collision,
was in tow of the steam tug, as more fully set forth in the libel
filed in the district court. Serious injury resulted to the ship of
the libellants, and they alleged that the steam tug and the ship
Helen R. Cooper were both in fault. Separate answers were
filed by the claimants of the tug and tow, and both, it seems, made
preparation for defense, but before the day for the hearing
arrived, they entered into the following stipulation, which is an
exhibit in the motion before the court. Omitting the names of the
parties to the suit and the signatures of the proctors, the
stipulation reads as follows:
"It is hereby stipulated by and between the parties representing
the claimants of the vessels respondent in the above action that
said ship,
Helen R. Cooper, shall and does hereby assume
the conduct of the defense and that all and any judgment ordered
against the said vessels or either of them shall be assumed and
paid by said ship
Helen R. Cooper."
Application for the same purpose as that described in the motion
was made to this Court by the appellants on a prior occasion during
the present term of the Court, but it was refused, as no excuse was
shown in the petition or accompanying papers why the witnesses were
not examined either in the district of circuit courts, and the
Court said some excuse
Page 80 U. S. 741
should be shown satisfactory to this Court for the failure to
examine them in the courts below -- such as that the evidence was
discovered when it was too late to procure such examination, or
that the witnesses had been subpoenaed and failed to appear and
could not be reached by attachment, and the like.
Commissions for such a purpose cannot be allowed as of course
under the twelfth rule, as it would afford an inducement to parties
to keep back their testimony in the subordinate courts, and the
effect would be to convert this Court into a court of original
jurisdiction. Admonished to that effect by the prior decision of
this Court, the parties have filed with the present application an
affidavit as a compliance with that requirement. Unsettled as the
practice was prior to that decision, the parties are right in
supposing that this Court would entertain a second application in
the same case.
Governed by these views, the Court has examined the affidavit
and the reasons given why the testimony was not taken prior to the
hearings in one of the subordinate courts, but the Court is
constrained to say that the reasons given are not satisfactory, as
they show that the witnesses were in court, and that they were not
examined because the party now asking for the commission agreed
that they would not introduce any testimony in the case, and the
affidavit shows that they did not introduce any in the district
court and did not appeal from the decree, and of course they did
not and could not introduce any in the circuit court, as it is well
settled law that the losing party in the subordinate court cannot
be heard in the appellate court in opposition to the decree in the
subordinate court unless he himself also appealed from the decree.
[
Footnote 2] Instead of being
satisfactory, the reasons set forth in the affidavit why the
testimony was not introduced in the trials below are persuasive and
convincing that the motion ought not to be granted. Having accepted
the bond
Page 80 U. S. 742
of indemnity and failed to make any defense, the risk as to the
sufficiency of the sureties was upon the present appellants, and
the fact that they misjudged or are disappointed in that behalf
furnishes no reason for the motion before the court.
Motion denied.
[
Footnote 1]
This case was decided at the last term.
[
Footnote 2]
The William
Bagaley, 5 Wall. 412;
The Maria
Martin, 12 Wall. 31.
