80
MORTON V.THlll RO'1'HEMAy.
'(lJi6triot Oourt, 8. lJ. New York. FebJ;ull.rY6, 1888.) . SSAlfEN-OLAIM: FOR WAGES-DESERTION-CRUEL Tl\E:ATMENT.
As .for wages, the defe.nse set up was desertion. Libelant claimed that he left the vessel on account of cruel treatment by the master. As the cruelty alleged by libelant rested solely on his own evidence, was denied by the master, mllte, and steward, their,evidence not being reputted by libelant, and none ofhisshipmattls being called to corroborate him, held. that his claim, resting on such testimony., was 'too uncertain,andtoo much open to suspicion as to his good faithi to be allowed, and th!ilibel sh.ould . '. . ".. . . " . be dismissed.
Willis' '11:' DiYwd, for libelatlt. J. R.Wdlker,' for !':. J ·
.Lihelfor *liges. .1:
'/
BioWN,J;" :'1'lie'lihellintsues for a balance of wages due ish on. h6ard ofwhich he shipped lQr three years. On aqivalat ,New York, aftar oeingtwo months abroad, he left the ship, iindmosibf'the ... Hiswrtgesbythe articles were £2 lOs., perD}Qnth: The current itt NewYdrkwas $30. The is ·. The.1ibeJa·lit 'vas ,not regularly disr,hargad. The excuse for leavingisaP.eged 'cruel'trelitment, viz., that he was triced up by the ,masterJor II: c,6mparat1fely trifling, offense, his 'liands being handcuffed behind '8 toparove and carried over some skids, and then lifted ul;>, sot?at he rested only his toes, causing great suffering. . If the 'extent 'alleged by the seaman Were proved, .1 should hesiUttli to regard the Case as ohe bf desertion. The captain, mate"andste",ard, hO",ever,ttll testify that thldiMlantwas not at all llfted up; b?t feet. The stew/trd testified that part ()ithe .tjrpecl1e W'asdancing ll. . TIle libelant, Was present when this had opportunity to'deny'orrebutit,but did dQ ,aha his story is notconfirmedbyaiiy other witnesses among hismanyt;ompanl0ns,whonlnst have ofthElfacts. A&r two weeks ashorene,shipped higher wages;','l'bere is too trltidb: uncertainty a,s to the resting':UponsuchundortQbo-. libellwt'e claim 'of rated statements of his own, at1d.too·much roonHot stispicioo'astdh1's good faith, in the tJ:1e case'I,towarrallt,a dE1cree in his favor, and the libel must, tnerefore, be dismissed.' .' 1
Reported by Edward 0.. Benediot, Esq., of the New York bar.
BANK OF WINONA V. AVERY.
81 ale
BANK OF WINONA V. AVERY et
3.1887. Where the jurisdiction is founded only on the fact that the action is between citizeos of different states, suit may be brought in the district of the residence of either the plaintiff or defendant.
(Byllabu 8 b1/ the Oourt.)
On Motlon to Dismiss. W. V. Sullivan, for plaintiff. CalJwun & Green, for defendants. HILL, J. The question now presented for decision arises upon dejurisdiction, as profendant's motion to dismiss the snit, for want vided in the first section of the act of congress, approved March, 3, 1887, amending:the .act of 1875, in relation. to the jurisdiction of the circuit and district courts of the United States as to the district in which suits shall be brought,which section reads as follows as towhei'e suits shall ba'ot-ought:' "No person shall be arrested in one district for trial in another,inany civil .action before a circuit or district court, and no civil suit shall be brought before eithefof said conrts,against any persl'>n, by any original process or proceeding, in any other district, than that whereof, he· is an inhabitant;· ,but where the jurisdiction is founded only on the fact that the action is between citizens of different states, ;suits shall be only in the district of the residence of the plaintiff or defendant. ,) ,The plaintiff in this action is a citizen and resident of this district, and the, defendants are citizens and residents of the state of Lo\1isiana, but sued in this district. This provision of this section has not yet been construed by the supreme court of the United States, which, when done, will settle the question for all the courts. I am not aware 'of but two decisions of the circuit courts of the United States. so far undertaking to construe this provision, of this section,-the first of which is, the case of Yuba Cb. v. Minitng Cb., 32 Fed. Rep. 183. The opinion in this case waS delivered by Judge SAWYER, circuit judge, and concurred in by Justice FIELD, of the supreme court, and Judge SABIN, district judge of California, holding that under this provision of this section of the act of March 3, 1887, suit can only be lJrought in the district of the residence (jf the defendant. The other case is that of Fale.s v. Railway Co., 32 Fed. Rep. 673) decided by Judge SHIRAS, district judge of Iowa, in the circuit court of the Northern district of Iowa. The high .,Iegard 1 entertain for the judicial opinions of the judges who decided the ,case in California, would cause me to hesitate long before coming tor a conclusion (jiffering fromthem, were it not that I am satisfied they over.looked the last clause of this portion of this section, which, it appears to me,co.ntains an exqeption, or modification, of the first clause, where founded. upon the fact that parties are citizens v.34F.no.2-6
