424; Hutchinson, Carr. 2d ed. §§ 548, 549, | sengers were drowned, among them, Louis G. 551, 552. The question of contributory negligence is to be submitted to the jury, not only where there is sufficient testimony as to the actual facts to leave a reasonable doubt, but also where the inferences which might be fairly drawn from the facts are not certain and invariable, and might lead to different conclusions in different minds. Where there is any evidence from which the inference of contributory negligence might reasonably be drawn, the court must instruct the jury that the plaintiff cannot recover if his negligence contributed to produce the injury. 1 Shearm. & Redf. Neg. 5th ed. § 114. The doctrine of the "last clear chance" by its very terms excludes concurrent negligence. Gilbert v. Erie R. Co. 38 C. C. A. 408, 97 Fed. 752; Holmes v. Southern Pacific Coast R. Co. 97 Cal. 161, 31 Pac. 834. Rights of action arising in admiralty under Lord Campbell's act and similar acts are to be enforced according to the principles of the common law; and contributory negligence is a complete bar to a recovery. Robinson v. Detroit & C. Steam Nav. Co. 20 C. C. A. 86, 43 U. S. App. 190, 73 Fed. 894. Both parties were contemporaneously and actively in fault. The liability of the company was conditioned upon the exercise of reasonable and proper care and caution on the part of decedent. Without the latter, the former could not arise. Weisshaar. Of his estate Ella M. Weisshaar was afterwards appointed administratrix, and as such administratrix she commenced an action at law in the superior court of the city and county of San Francisco, state of California, against the appellee, for the recovery of damages in the sum of $40,000 for the death of her husband. That action had not been tried, but was at issue, when the appellee filed in the court below its petition, by virtue of §§ 4283-4285 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, pp. 2943, 2944), for the purpose of contesting its liability for any damage or injury growing out of the accident, and for the purpose of limiting its liability in the event of being held responsible. In its petition the petitioner alleged that the overturning of the boat-"was in no way caused by fault or negligence on the part of the master or the crew of said steamer Albion, or any of them, and that the loss, damage, and injury, if any, thereby done, occasioned, or incurred, were without fault on the part of your petitioner, and without its privity or knowledge, but that the fault of the said swamping and overturning was due entirely to the acts and conduct of the passengers in said boat, in standing upon their seats in said boat and causing her to overturn, combined with inevitable accident occurring by reason of the condition of the wind and wave at the time of said swamping and overturning; that nevertheless certain persons have made claims against petitioner for losses arising out of said swamping and overturning, which said claims are for alleged loss of life of some of such passengers, and alleged loss of baggage so being transported as aforesaid; that among said claims is the claim of Ella M. Weisshaar, as administratrix of the estate of Louis G. Weisshaar, deceased, which said Louis G. Weisshaar is claimed by said claimant to have been one of the passengers so carried on said boat, and so drowned by reason of said swamping Baltimore & P. R. Co. v. Jones, 95 U. S. and overturning; that other claims have 439, 24 L. ed. 506. been asserted against your petitioner, and that other claimants have threatened to file Ross, Circuit Judge, delivered the opin- libels against said steamer or to bring acion of the court: In September, 1900, the steamer Albion, owned by the appellee, Kimball Steamship Company, was anchored in Golovin bay, Alaska, about 11⁄2 miles from the beach; and, being ready to proceed on a voyage from that place to San Francisco, one of her small boats was sent, in charge of her second officer and two sailors, to the shore, to bring to the steamer such persons as intended to take passage on her. In return ing, the boat capsized, and some of the pas tions against your petitioner; and that your petitioner apprehends and is in fear that other claims in addition to those set forth will be presented against it, or said steamer Albion, by other parties who may have sustained loss, damage, or injury by reason of the matters and things hereinbefore set forth." It is further averred in the petition that there was freight pending by reason of the trip on which the steamer was engaged at the time of the accident amounting to $2, 265; that the value of the steamer at the | Weisshaar, and entered a decree to the efclose of the voyage did not exceed $15,000, fect that the petitioner is not liable for and that the amount of the claims already damages growing out of the overturning of presented, and as apprehended and threat- the boat. ened, far exceeds the value of the steamer and the pending freight; that there is no lien on the steamer prior or paramount to any lien that may have attached by reason of the matters alleged. The value of the steamer and the freight pending were duly appraised, and the administratrix of the estate of the deceased, Weisshaar, answered the petition, putting in issue its material averments, and presenting a claim for damages for the drowning of her husband. In its opinion, the court below said: "It sufficiently appears from the evidence that Louis D. Weisshaar was one of the persons drowned. It also appears that the boat upon the occasion referred to carried a greater number of persons than allowed by law, and also some baggage; it was down by the head, and so much overloaded that it had but little freeboard, and, in consequence thereof, as soon as the rough water of the bay was encountered, filled with water and capsized. Before it left the beach, the second mate of the Albion, who was in command of the boat, notified those who were in it that it was overcrowded, and requested that some of them get out and wait until the boat should return for them. Some of them did go ashore, but, upon being assured by one of the passengers that there was room in the boat for more, most of them came back again, the officer still protesting that it was overcrowded. Such, in substance, is his testimony, and in this he is, to some extent, corroborated by Carvelle and De Lay, two witnesses whose depositions were offered in evidence by the claimant. The deceased had not actually engaged passage upon the steamer, but was going abroad for that purpose." 123 Fed. 838. The court below very properly held that the petitioner, having undertaken to convey the deceased to the steamer for passage thereon, was under the same obligation to use proper care in transporting him as if he had paid for or engaged his passage in advance. The court below, however, further held that the deceased was guilty of contributory negligence in remaining in the boat after he and the other passengers therein were notified by the officer in command; that, “in so remaining, the deceased, as well as the other passengers in the boat, assumed the risk resulting from its overcrowded condition, and voluntarily encountered a danger which a prudent man with notice would have avoided." The court accordingly dismissed the claim of the administratrix of the estate of the deceased, The evidence shows that the capacity of the boat was fourteen persons, without baggage. At the time of the accident in question it contained eighteen persons, a trunk, two tool chests, and three or four sailors' bags. The boat was in charge of the second officer of the ship, who had under him two sailors, and, when ready to receive its passengers, was stranded, with its bow well up on the sands of the beach. The evidence shows that the deceased, Weisshaar, was the fifth man to enter the boat, and took his seat about amidship. He had been preceded by a Capt. Tyson, and by the president of the appellee steamship company, Mr. Marsden. In his direct examination the ship's officer in command of the boat was questioned and answered as follows: Q. State what happened at the shore before you left there, with respect to the passengers getting in, and your protesting, and whatever else happened. A. The passengers crowded into the boat, and I told them that "this boat only holds fourteen passengers." After some talk, five or six passengers went out of the boat, and went on the beach again. I was just going to leave, when Mr. Tyson sang out: "There is lots of room. Come on, boys." He mentioned a few names. Joe Corbell was among them. He says, "There is lots of room." Those passengers had left the boat, and I heard them say, "I don't think we\ will lose our fresh-meat supper," and they rushed into the boat the second time. Q. What did you do? A. I told them it was risky. The boat was overloaded, and there were three men left on the beach. I said: "I have to go back to the beach and make another load. You might as well wait." They laughed at me and told me I was a coward; that I was scared. I said: "Well, boys, it is smooth water alongside the beach, but it will not be outside 20 or 30 yards. It will be rough. You had better do as I tell you." They just laughed at me, and said I was afraid, and pushed the boat out, and out they went. At the end of his direct examination this witness was asked, "Did you have any means or power to prevent them?" to which question he answered: "I had no power whatever. I was powerless. They took the command away from me, and took control of the boat, and I could not do nothing." A careful perusal of the entire testimony of this witness, of itself, shows that there was no justification whatever for his state- | ercise of reasonable care and prudence, have ment that the boat was started on its per- avoided the consequences of the injured parilous journey against his protest, or that ty's negligence. Grand Trunk R. Co. v. the control of it was taken from him by the Ives, 144 U. S. 408, 36 L. ed. 485, 12 Sup. passengers. If powerless in the premises, Ct. Rep. 679; Louisville & N. R. Co. v. East it was only because he did not have the Tennessee, V. & G. R. Co. 9 C. C. A. 314, stamina to assert and exercise the authority 22 U. S. App. 102, 60 Fed. 993; Harrington with which he was clothed, and which the v. Los Angeles R. Co. 140 Cal. 514, 63 L. R. law and good seamanship made it his im- A. 238, 98 Am. St. Rep. 85, 74 Pac. 15. perative duty to enforce. The evidence is overwhelming, not only that he made no objection to starting the boat with its overload, but that, according to his own testimony, one, at least, of his own sailors took an active part in shoving it off the sand and into a floating condition, which appears without conflict to have been a matter of considerable difficulty; so much so that several of the passengers had to assist the sailors in accomplishing it,-some by means of oars, and others, having high boots, by getting into the water and pushing the boat. This doctrine, which is well established, fits the present case exactly. The case of Lynn v. Southern P. Co. 103 Cal. 7, 24 L. R. A. 710, 36 Pac. 1018, is, in principle, also precisely in point. In that case the plaintiff passenger was unable to find room inside a car, and therefore stood upon the platform, from which he was thrown and injured; the evidence tending to show that the train was going at excessive speed. In affirming a judgment for the plaintiff, the supreme court of California said: "The defendant should not have allowed so many passengers to have gone upon its cars, and, if it was unable to prevent them from so doing, it had the right to refuse to move the train under such circumstances; but, if it did not pursue that course, and undertook to transport all passengers. that were on board, whether within the cars or upon the platforms, it was under obligations to exercise the additional care commensurate with the perils and dangers surrounding the pas sengers by reason of the overcrowded condition of the cars." So, here, as has already been said, if the officer in command of the boat had been unable to prevent its overloading (of which, however, there was no evidence), it was still his right and imperative duty to refuse to start the boat until enough of the passengers had gotten out to make it safe to do so. There is nothing in the record to justify the contention that such action on his part would not have been acquiesced in and conformed to. But speculation on that point is no answer to the gross neglect of duty on the part of the officer of the ship. Let it be assumed that, when the officer announced that the boat was overloaded and that it was "risky," it became the duty of all the passengers to get out,— -as well those who had entered when there was ample room as those who had caused the overloading,and that everyone who remained thereupon became guilty of contributory negligence; such fact becomes immaterial, in the face of the further fact that the officer, with full knowledge of the overloading and consequent dangerous condition of the boat, subsequently not only started it on its perilous trip, but, after starting, and while it was yet in smooth water, and after observing that it was down by the head, and with but little freeboard, made no effort whatever to return to the shore to make the boat safe by dischargiing some of the passengers. It was the clear duty of the officer, in the first place, to have stopped the entry of more than the boat's complement of men. According to his own testimony, he made nothing more than a milk and water protest against the entry of anyone; and even if there had been on the part of the passengers an effort to overpower the officer and force their way into the boat, of which there is not the slightest evidence, it still remained the imperative duty of the officer in com-dent of the appellee corporation, who, so far mand to refuse to start the boat until enough of the people had gotten out to make it safe. Not the slightest attempt appears to have been made by this officer to perform his duty in that regard, and for his gross negligence in that respect, as well as in failing to return to shore while he yet had sufficient opportunity, the ship is clearly liable, for, even where an injured party is guilty of contributory negligence, such negligence will not defeat the action when it is shown that the defendant might, by the ex Moreover, the evidence shows that the negligence of the officer in command of the boat was committed in the personal presence and within the actual knowledge of the presi from seeking to enforce the performance of his duty by that officer, acquiesced in his neglect of duty, as affirmatively appears from the president's own testimony. The limitation of liability provided for by the statute under which the present proceedings were had is, according to its express terms, to be allowed only when the loss, damage, or injury occurs "without the privity or knowledge" of the owner. In the case of The Republic, 9 C. C. A. 386, 20 U. S. App. 561, 61 Fed. 109, the privity or knowledge of the corporation consisted in the negligence of its president, who, by his omission of proper care in his examination of the vessel, failed to discover her defective condition; and the circuit court of appeals for the second circuit there held that the injuries and death occasioned to the excursionist in that case could not be said to have occurred "without the privity or knowledge" of the owner. We think that decision directly in point here. "Privity and knowledge," said Judge Brown in The Colima, 82 Fed. 665, "are chargeable upon a corporation, when brought home to its principal officers or the superintendent, who is its representative." See also Quinlan v. Pew, 5 C. C. A. 438, 5 U. S. App. 382, 56 Fed. 111; Lord v. Goodall, N. & P. S. S. Co. 4 Sawy. 292, Fed. Cas. No. 8,506. The judgment is reversed and cause remanded, with directions to the court below to dismiss the petition at petitioner's cost, leaving the administratrix of the estate of the deceased, Weisshaar, at liberty to pursue her action for damages in the state court. Petition for certiorari denied by Supreme Court of United States May 31, 1904. CALIFORNIA SUPREME COURT. A (April 2, 1904.) PPEAL by defendant from a judgment of the Superior Court for Los Angeles County in plaintiff's favor in an action brought to recover damages for an assault alleged to have been committed upon him by defendant's servant. Reversed. The facts are stated in the opinion. Mr. Charles H. Mattingly, for appellant: The master is liable for injuries inflicted by his servant only when the act is done in the prosecution of the business which the servant was employed by the master to do. Stephenson v. Southern P. Co. 93 Cal. 558, 15 L. R. A. 475, 27 Am. St. Rep. 223, 29 Pac. 234; Little Miami R. Co. v. Wetmore, 19 Ohio St. 110, 2 Am. Rep. 373. For wanton and malicious assault com NOTE. As to liability of eating-house keeper for waiter's refusal to serve negroes, see. in this series, Bryan v. Adler, 41 L. R. A. 658. As to liability of master for servant's tortious injury to third person in the absence of any contractual relation, see Lynch v. Florida C. & P. R. Co. 54 L. R. A. 810, and footnote thereto. As to master's liability for assaults by servant on person having a contractual relation with the master, see Davis v. Houghtelin, 14 L. mitted upon the person of a guest during his stay, an innkeepr is not necessarily responsible in damages, though the act be done by one about the inn; for his strict charge as innkeeper concerns only bailment and the guest's chattels. Schouler, Bailments, § 323. An innkeeper is not an insurer of a guest against injury, but is merely bound to exercise reasonable care that there be no injury through his neglect. Weeks v. McNulty, 101 Tenn. 495, 43 L. R. A. 185, 70 Am. St. Rep. 693, 48 S. W. 810; 11 Am. & Eng. Enc. Law, p. 32. Mr. Warren E. Lloyd, with Mr. George L. Keefer, for respondent. Beatty, Ch. J., delivered the opinion of the court: This is an action by a guest against an innkeeper, to recover damages for an assault and battery by a servant of defendant. The cause was tried in the superior court without a jury, and plaintiff had judgment. Defendant appeals from the judgment, and from a subsequent order denying his motion for the entry of a different judgment on the findings. Respondent objects to any consideration of the appeal from the order upon the ground that it was not excepted to. But if it is an appealable order, it is deemed excepted to. Code Civ. Proc. § 647. And since it is a special order made after final judgment, it is appealable. Code Civ. Proc. § | R. A. 737, and note; Dickson v. Waldron, 24 L. R. A. 483; Baltimore & O. R. Co. v. Barger, 26 L. R. A. 220; Goodloe v. Memphis & C. R. Co. 29 L. R. A. 729; Krantz v. Rio Grande W. R. Co. 30 L. R. A. 297; St. Louis S. W. R. Co. v. Jones, 39 L. R. A. 784; Savannah, F. & W. R. Co. v. Quo, 40 L. R. A. 483; Haver v. Central R. Co. 43 L. R. A. 84; and Birmingham R. & Electric Co. v. Baird, 54 L. R. A. 752. 963. It is, however, of no consequence | second ground. The law seems to be pretty whether the order is reviewable or not, for the appeal from the judgment presents the same questions on the same record (the judgment roll); and we could on that appeal, if the facts found and admitted justified such an order, not only reverse the judgment, but remand the cause, with directions to the superior court to enter judgment for the defendant. Warder v. Enslen, 73 Cal. 291, 14 Pac. 874. well settled that a common carrier of passengers, whether a shipowner or a railway company, owes to a passenger while in transit the duty of protection, absolute as against its servants in charge of ship or train, and equally as against fellow passengers when, on account of intoxication or acts of violence, they should not have been admitted, or when they have been allowed to remain after such misbehavior as justifies their expulsion. But the industry of counsel and our own researches have not resulted in the discovery of more than a single case in which this rule of liability has been extended to innkeepers. In Rommel v. Schambacher [120 Pa. 579, 6 Am. St. Rep. 732, 11 Atl. 779] decided in 1887 by the court of common pleas of Philadelphia, it was said to be a plain matter of common law that, "where one enters a saloon or tavern opened for the entertain The facts found and admitted are few and simple: The plaintiff was a guest in the defendant's hotel, and while seated at the dinner table was assaulted and beaten by a dining-room waiter. Damage, $200. The question is whether, upon these facts, the defendant was liable for compensatory damages. The respondent's contention is that he was so liable, upon either of two grounds: First, under the general rule that a master is liable for the torts of his servant committed in the course of his employment of the public, the proprietor is bound ment, and within the real or supposed scope of his duties; and, second, upon the ground that an innkeeper is bound to protect his guests from acts of violence on the part of his servants, just as a common carrier is bound to protect his passengers, while in transit, from molestation by its servants. We think it clear that the defendant incurred no liability on the first ground. By the general law of master and servant, the master is not liable for the malicious torts of the servant committed outside the scope of his employment. The wrongful act must be one which the servant is empowered under some circumstances to do. It must be something which his employment contemplated,--as, for instance, the ejection of a passenger or intruder from a railroad car. Conductors and brakemen have authority to eject disorderly passengers, or persons who refuse to pay their fare, and it is left to their discretion when such authority shall be exercised. In a proper case they may eject a passenger without incurring any liability themselves or imposing any liability upon their employer; but, if they eject him wrongfully and maliciously, the carrier is liable upon the general ground that the act is one which, if lawfully done, could be done in the employer's name, and justified by his authorization. The law on this point is very clearly stated in Cooley on Torts, **535 et seq., and in none of the decisions of this court has a stricter rule been enforced than as above stated. Under that rule, the defendant cannot be held liable, because there is no finding and no reason to presume that defendant ever authorized his servants to assault his guests or any other person under any circumstances. Neither do we think he was liable on the to see that he is properly protected from the assaults or insults, as well of those who are in his employ, as of the drunken and vicious men whom he may choose to harbor." To sustain this conclusion but one case was cited in the opinion of the court, and that a case of carrier and passenger. So that in fact there was a complete begging of the question presented here, viz., whether there is a rule as to protection of guests of an innkeeper equally stringent with the rule affecting common carriers. The fact that no case was then cited, or can now be found, in which an English or American court has sustained the conclusion stated in the Philadelphia case warrants more than a doubt of the correctness of that conclusion. But in truth the language above quoted, when construed and qualified by reference to the facts of the case, does not mean all that it seems broadly to assert. The facts of that case were that the defendant, the proprietor of a saloon, had himself supplied two or three young men with drinks at his bar, by which they were made intoxicated. While in that condition one of them, in plain view of the defendant, pinned a paper to the clothes of another (the plaintiff), and set fire to it. The fire was communicated to plaintiff's clothes, and he was severely burned. The gist of the decision holding the defendant liable for the injury is contained in these words at the close of the opinion: "If, then, a railroad company is liable for the conduct of drunken men who may chance to board its cars, much more the tavern keeper, who not only permits drunken men about his premises, but furnishes liquor to make them drunk, and who is thus instrumental in fitting them |