said Smith at the time of the accident amounted to only $10, which it is averred was tendered to libelants, and is put in deposit as a tender in this suit." On hearing, the district court decreed that "the libelants, Johanna Smith, widow of John Smith, deceased, and J. H. Smith, do have and recover of and from the Red River Line, respondent, the sum of three thousand dollars, and all costs of suit." After vainly endeavoring to obtain a new trial, the respondent sued out this appeal.

W. S. Benedict, for appellant.

J. Ward Gurley, for appellees.

Before PARDEE and SHELBY, Circuit Judges.

PARDEE, Circuit Judge (after stating the facts as above). It is assigned as error that neither under the law of Louisiana nor in admiralty is there any survivorship to, or right of action in, the libelants, or either of them, under the circumstances set forth in the libel and proofs. There is a very grave doubt whether the libelant J. H. Smith, brother of the deceased, John Smith, can maintain an action for damages for the unlawful death of the said John Smith. The libel pretends to be for the recovery of wages due the said John Smith, and for certain damages accruing to the said John Smith personally, by reason of his sufferings while drowning; and it is contended that, as these damages accrue to the estate of John Smith, his heirs can maintain an action. So far as the action is for wages, the sum due was tendered in court, but no specific action was taken in relation thereto. The decree rendered below does not show that any part thereof was for wages due the said John Smith, or for damages due his estate. The right of the libelants, as heirs, to recover either wages or debts due the estate of John Smith, would have been adversely settled upon an exception. However, the objection now assigned was not made in the court below, and, from the view we take of the case on the merits, it is unnecessary to pass upon the said assignment, and we decide nothing in regard thereto.

The evidence submitted on the hearing establishes that John Smith, deceased, was regularly shipped and employed as a roustabout on the stern-wheel steamboat Electra, then navigating the Mississippi river and tributaries; and at 7 o'clock p. m. of the 12th of December, 1897, when the Electra, with a barge load of cotton in tow, was descending the Red river, the said John Smith lost his life by falling overboard and drowning. The night was dark. It was known that there were many and dangerous bends in the river. The electric lights with which the steamboat was provided were broken down and could not be used, and in lieu thereof, and to furnish light for the transfer of the cotton from the barge to the boat, lard-oil hand lanterns were supplied and used, which, while inferior to, and a poor substitute for, the electric lights, were the best lights that could be furnished under the circumstances, and the same kind of lights as were used on all steamboats carrying cotton prior to the introduction of electric lights. In fact, the use of coal oil was prohibited to boats carrying cotton, by the underwriters. On account of the low state of water in the river, the

method of bringing the cotton out of Red river was to load the same on barges, which were towed by the steamboat to deeper water, and then the cotton was transferred from the barge, and regularly loaded on the boat. On this occasion the steamboat had two barges in tow, one on each side, each nearly as long as the steamboat. They were as closely and securely lashed to the steamboat as the nature of the case permitted,—with head line, breast line, stern line, and tow line. Although as securely lashed as the case would permit, on account of the stretching of lines whenever the boat entered the bend or rounded the same, the barges would swing out, first at the bow, and afterwards at the stern, the distance of 18 inches to 2 feet. At the time in question the steamboat was rounding a bend, but she was under no headway,-merely keeping straight in the stream and floating. In transferring cotton from the barge to the boat, no stage planks were used. Although the business carried on as above is of long standing, there is no proof in the record of any custom to use stage planks on such occasions. What proof there is is to the contrary of such usage, and the reasons given for not using stage planks appear to be satisfactory. The customary method of unloading cotton from barges was, as shown by the evidence of the master of the Electra, as follows:

"Q. Did you have, or is it customary to have, in unloading from barges onto the boat, staging between the two? A. No, sir. Q. Why? A. Because it is always one or the other: The cotton on the barge will be higher than the cotton on the boat, or the boat's cotton will be higher than the cotton on the barge. Therefore we can't use them. Q. What is the method pursued in taking the cotton from the barge onto the boat? A. We roll it as long as- Dump it off onto the boat as long as we can. Or, if it is on a level, we roll it from the barge to the boat; and, after it gets too low below the boat to roll or dump it on there, why, we ship it with the capstan. Q. Have you any employés at the same time on board the boat, and for what purpose, in connection with the cotton, at the same time that men are rolling the cotton off the barge to the boat? A. Yes, sir; we have from four to six men stowing the cotton. Q. How long have you been steamboating? A. I have been steamboating ever since I was 13 years old, and I am 44 years old."

And this evidence is not contradicted.

John Smith fell overboard and was drowned while cotton was being transferred from the barge to the steamboat, but exactly how he fell overboard is uncertain. The libel charges that he was rolling cotton from the barge to the steamboat, and, owing to the darkness, want of light,-he, the said John Smith, in endeavoring to step from said barge onto said boat, as he and the rest of the crew had been doing, and not being able to see the space which then existed between the said barge and the said steamboat, fell overboard into the river and was drowned. Edward Ross, roustabout, for the libelants, testifies that, "In jumping down from the barge to the boat, Smith did not jump far enough, and went into the river." Jeff Henry Smith, one of the libelants in this case, says that "the barge swung out from the boat as John Smith was rolling a bale of cotton from the barge to the boat; and, by way of being rushed, and no light at all, he goes in this hole between the boat and the barge." Charlie Hughes, roustabout, for libelants, says that "the barge swung out, and Smith tumbled and went

overboard." Heywood Stephens, another witness for libelants, says that "the night was dark. The mate was rushing them, and Smith could not see. He stepped backwards overboard." James W. Doubleau, porter of boat, for libelants, says that "the barge swung out, and, in stepping from one bale to another, John Smith missed the bale, and went in between the barge and the boat, and fell into the river." George Hawkins, roustabout, for the respondent, says that "Smith was careless,-stepping and not looking, and fell in between the barge and the boat." George McCutcheon, roustabout, for respondent, says: "John Smith rolled a bale of cotton off the barge to me, and I put my hook in the bale,-took it away from him; and, as he turned it loose, he turned around, turned away from me, and then stepped down between the boat and the barge. He was actually crossing over from the barge onto the boat. He had one foot on the barge and one foot on the boat, and when he fell he was returning to the barge." When Smith fell in the river, it appears, he went with the current, ahead of the boat. As soon as the alarm was given, which was immediate, his cries being heard ahead of the boat, attempts were made to throw him a head line; and as soon as it could be done, under the circumstances, a yawl was lowered, and search made for him, but without avail. It is not disputed that the steamboat Electra, when she started on the voyage in question, was staunch and strong, fully manned and equipped, and fully supplied with all the appliances required by law, or usual to boats engaged in her trade. The negligence assigned as resulting in the death of John Smith is that the work of unloading the barge was carried on after dark, and while the boat was moving down the river; that the lights furnished were insufficient; that the mate was hurrying up the work; and that no stage planks were used between the barge and the boat. It is not only the common practice, but it is the duty, of the masters and crews of boats engaged in the river trade, to push their employment, and, when called for, to receive, deliver, and stow freight at night as well as in the daytime. The risks attendant upon such service are well known to the people employed, and are assumed by all hands composing the crew. The failure of the electric lights is not shown to have been the fault of the owners, or even of the master, but was an incident common to the employment of such lights. The lights furnished as a substitute were the best that could be obtained,-formerly were considered as fully sufficient for the purpose; and we think no negligence, particularly on the part of the owners, can be deduced from using them. We have already shown that the use of staging in transferring cotton from barge to boat is neither customary nor practical. Under the circumstances, we are unable to hold that the owners of the Electra were guilty of any fault resulting in the death of John Smith. No negligence on their part for which they were responsible is shown, but the case does show that all the matters complained of were customary perils of navigation, which John Smith necessarily assumed when he shipped on the steamboat. Howes v. The Red Chief, 15 La. Ann. 321, is not applicable here. That suit was to recover the value of a hired slave,

and was ruled on the law of bailment, instead of on maritime law. The decree of the district court is reversed, and the cause is remanded, with instructions to dismiss the libel.

HALSEY v. BIRD et al.

(Circuit Court of Appeals, Fourth Circuit. February 6, 1900.)

1. FACTORS-POWER TO PLEDGE.

No. 286.

A factor cannot pledge the goods consigned to him, as his own, for his individual debt, though he has an interest in the goods by reason of advances made thereon by him.

2. SAME-CONVERSION.

The hypothecation by a factor of the goods of his consignor, for his individual debt, which is in excess of his advances to and charges against the consignor, makes him bound to account to the consignor for the whole amount received on such hypothecation.

3. SAME.

A factor, who hypothecates the goods of his consignor for his own individual debt, thereby disposing not only of his own special interest therein, but also of the whole property, by use of the symbols of title, so that any surplus which might arise from the sale of the goods in excess of the amount necessary to recompense the factor for his advance, and to satisfy all charges against them, would go to others than the consignor, and not be available for remittance to the consignor in due course of business, is liable to the consignor for the value of the goods at the time he so disposed of them, free from charges made against the goods subsequent to the hypothecation, including commissions and charges on subsequent sales.

Brawley, District Judge, dissenting.

In Error to the Circuit Court of the United States for the Western District of Virginia.

J. D. Horsley and John W. Daniel, for plaintiff in error.
F. S. Kirkpatrick, for defendant in error.

Before GOFF, Circuit, Judge, and MORRIS and BRAWLEY, District Judges.

GOFF, Circuit Judge. The facts which we deem it necessary to state, bearing on the questions raised by the pleadings and discussed by counsel, are as follows: Stephen P. Halsey, a tobacconist of Lynchburg, Va., shipped to Walter Bird, a commission merchant doing business in London, England, under the style of Walter Bird & Co., 1,148 tierces of Virginia leaf tobacco, the first shipment of the consignment being made on April 4, 1891, and the last on April 9, 1892. There had been other dealings between the parties, relating to certain shipments of tobacco in preceding years, and Halsey claimed that Bird was indebted to him in a considerable sum of money at the time the first shipment of the last consignment was made. Upon the new shipments, as on those previously made, Halsey drew drafts on Bird for such advances as were considered proper, and when the tobaccos had all been sold a controversy arose as to the final settlements, which resulted in the institution

of this suit by Bird against Halsey in the circuit court of the United States for the Western district of Virginia. This action is trespass on the case, in assumpsit. The defendant below, in addition to the general issue, pleaded specially, in substance, that the plaintiff below did not faithfully and diligently endeavor to sell the tobacco consigned to him, and did not sell the same for the best prices that could have been obtained, and did not honestly account for the proceeds of sales actually made, and that he wrongfully appropriated the tobacco to his own use, by hypothecating the same for his own debts. The defendant in his said pleas also set up a counterclaim against Bird for damages on account of the injuries complained of. On these pleas issue was joined, and the case was tried to a jury, which found for the plaintiff, on which finding the court below entered judgment against Halsey for $20,000, with interest thereon, and costs of suit. During the trial many exceptions were noted to the rulings of the court, and to the instructions as given and refused; but we do not find it necessary to consider all of them, as the disposition we make of the main questions involved will doubtless eliminate the others from the further proceedings herein that we find it our duty to direct.

The plaintiff in error claims that the court below erred in refusing to give to the jury the three following instructions asked for by his counsel:

"The court instructs the jury that if they believe from the evidence that Halsey consigned to Bird, for sale by him as a commission merchant, the tobacco in controversy, and that said Bird hypothecated the tobaccos of said Halsey to secure money borrowed by said Bird, without said Halsey's consent, such hypothecation was a conversion by Bird of Halsey's tobacco to his own use, and he was immediately upon such conversion liable to said Halsey for the value of said tobacco at the time of the conversion; and, further, that the right of a commission merchant to assign a debt due to him by his principal is different in law from the hypothecation of his principal's goods to secure the commission merchant's debts, and the court is now dealing with hypothecation by a commission merchant without transferring the debt due him for advances."

"If the jury believe from the evidence that the plaintiff Walter Bird wrongfully hypothecated the tobaccos of S. P. Halsey for a debt of his own, and that such debt was in excess of his advances and charges to Halsey, he is bound to account for the whole amount received upon such hypothecation, and must be taken to have sold the tobaccos for such amounts; and he cannot recover in this action without first accounting to Halsey respecting such hypothecation, and accounting for the whole amount received thereon."

"If the jury believe from the evidence that Walter Bird, in hypothecating the tobaccos of Halsey, disposed not only of his own special interest therein, but disposed also of the entire property therein, by use of the symbols of title, and that any surplus which might arise from the sales of said tobaccos over and above the amount necessary to discharge in full the advances made thereon by Bird, and all charges made against it, would go to others than the consignor, and not be available for remittance to Halsey in due course of business, then and in that event the jury should regard the transaction as the conversion of said tobacco to his own use by Bird, and treat it as then fairly disposed of, as between Halsey and himself; and, if the jury so believe from the evidence, Bird is liable to Halsey for the value of said tobaccos at the time he so disposed of them. All charges made against the tobaccos subsequent to the times of hypothecation must be stricken from the account against Halsey, including commissions and charges upon the subsequent sales of tobacco by either Bird or the bank or its agents."