I am of opinion there was no question for the jury in this case.
The learned counsel for the defendant asked to go to the jury on two questions: First. "Whether or not the defendant became insane solely in consequence of his effort to save the vessel during the storm."
It is true that Judge EARL, writing in this case for the court on the former appeal, stated that if the defendant had become insane solely in consequence of his efforts to save the vessel during the storm, we would have had a different case to deal with.
It is, however, undisputed that the record now before us is identical in all essential respects with the one then under examination, and it, therefore, follows that the determination of this court that the insanity of the defendant was no defense, is the law of this case, and was properly followed by the trial judge when he directed a verdict for the plaintiff.
Second. "Whether the defendant became insane solely in consequence of a sickness occasioned by his efforts to save the vessel during the storm, and the quinine which was taken therefor."
Judge EARL stated in his opinion upon the former appeal that if it were found upon a new trial that the defendant's mental condition was produced wholly by his efforts to save the vessel during the storm, and it should, therefore, be held *Page 550 that no fault could be attributed to him on account of what he personally did, or omitted to do, then the question would still remain whether the carelessness of his mates and crew, who were his servants, could not be attributed to him, and his liability be thus based upon their failure to act.
There is no conflict of evidence on this latter point, and only a question of law is presented to this court on undisputed facts, whether the captain was not liable for this loss, not only on account of his insanity, but for the reason that the mates and crew, having full knowledge of the captain's mental incapacity, and that the rudder was useless, failed to intervene and save the vessel, but allowed her to drift with the dead swell upon the beach, with all sail set and no anchors out, in a light wind blowing off shore, in the middle of a pleasant afternoon, with two steam tugs lying by and offering a tow to a port nine miles distant. There was no request to go to the jury as to the conduct of the crew.
The liability of the captain for the acts of his mates and crew is well settled.
Story on Agency (§ 314) states: "The policy of the maritime law has, therefore, indissolubly connected his (the master's) personal responsibility with that of all the other persons on board, who are under his command and are subjected to his authority."
With the same record before us as on the former appeal, I am unable to understand why the decision of this court should not be followed (143 N.Y. 442).
I vote for affirmance.
All concur, with HAIGHT, J., for reversal, except BARTLETT, J., who reads for affirmance.
Judgment reversed, etc. *Page 551