This is an action to recover damages, alleged to have been sustained by the plaintiff in consequence of the tortious acts of the defendant, Bannerman, as master of the ship Imperial, on board of which the plaintiff embarked at Liverpool as a cabin passenger for Mobile, on the 16th October, 1854.
The plaintiff alleges in his petition, that during the voyage, Bannerman wantonly and unlawfully, broke open his portmanteau and his other baggage, *2whereby they became wholly lost to him ; that he allowed the plaintiff’s person to be stripped of his ordinary apparel and clothing, and during the voyage repeatedly allowed the plaintiff to bo outrageously assaulted, maltreated and insulted by persons on board of said vessel; that these robberies and assaults were committed with the connivance and by the authority of Bannerman; that Bannerman, -without any justifiable cause, unlawful^ and maliciously committed a brutal assault and battery upon him; that the goods and clothing thus taken away from him, were worth $300 ; and that, from the other causes, he has sustained damages to the extent of $2,500. He further alleges that the other defendant, James Bead, is part owner of the Imperial, and for the aforesaid causes is indebted to him in solido with Bannerman, in th.e said sum of $2,800; and that the defendants are about to leave the State permanently, without leaving in it property sufficient to satisfy his demand. Wherefore he prayed for a writ of arrest, and that judgment be rendered in his favor against both of the defendants in solido for the sum claimed in his petition.
In the affidavit accompanying the petition, it is sworn by the plaintiff, that the debt and damages claimed in his petition arc really due him ; “and that he verily believes that the said defendants arc about to depart from the State permanently, without leaving in it sufficient property to satisfy his demand,”
The arrest was accordingly granted and the defendants held to bail.
A rule was taken by the defendants, at an early stage of the proceedings, to set aside the arrest on the following grounds, viz :
1st. Because no writ of arrest is allowed in such a case.
2d. That the affidavit was insufficient, as it was not made to appear that the defendants had absconded from the place of their residences.
3d. That it was not true in stating that defendants were about to depart permanently.
4th. Because plaintiff could not swear positively to the amount of damages.
5th. That the defendants not being citizens or residents of Louisiana, cannot be arrested under the affidavit made in this case, they being residents of Scotland and citizens of Groat Britain.
Oth. That the damages laid are excessive.
The District Court considered these grounds insufficient and discharged the rule.
The case was then submitted to a jury who found a verdict in favor of the plaintiff; and from the judgment thereon rendered the defendants have appealed.
The first questions presented for consideration relate to the sufficiency of the affidavit on which the arrest was founded. The two principal grounds upon which the appellants relied to maintain the rule, were, first, that the affidavit was informal in this particular, that it did not appear by the oath of the affiant that the defendants had absconded from their residences; and secondly, that the defendants were exempted from being arrested, under the laws of Louisiana, upon a demand arising ex delicto. We consider the principles involved in both of these questions as having already been settled in the cases of the Canal Bank v. Scroeder, 7 Ann. 615, and Wilder v. Bush, 7 Ann. 657. See C. P. 214. The other grounds urged, involving the merits, were equally untenable.
The record shows that Bloch's demeanor toward the passengers, the captain and his crew, was uniformly courteous and polite during the entire voyage. *3That about three weeks after the vessel had sailed captain Bannerman broke open his trunk in presence of the passengers, repeatedly called him a confounded thief, assaulted and kicked him out of the cabin, and compelled him to remain in the steerage during the remainder of the voyage. Some of the German passengers stripped him of all his wearing apparel, except his shirt, in presence of the cabin passengers and of the officers of the vessel, and also took away from him all his other effects; so that, during the remainder of the voyage, he was compelled to wear, without ever changing, a course suit of clothes, which he procured on board. One of the witnesses deposed that he was as badly treated by the sailors as he had been by the captain; that they drenched him with water one evening whilst asleep on deck, disturbing no one nor violating any order of the ship; and, upon starting up from his sleep and running, they continued to pursue him and drench him with the hose and only ceased after he had descended the gangway leading to the cabin; that this was done either by the order of the captain or of his mate. There is no proof in the record of any just or legal cause to justify the conduct of the captain. It is, however, the opinion of some of the members of this court, that the record discloses circumstances relating to the.conduct of Blooh, which are entitled to our favorable consideration in mitigation of damages. After the most careful examination, I regret that I have been enable to concur with them in this view. It has been held “ that the contract of a passenger with the master is not for more ship room and personal existence on 'board, but for reasonable food, comforts, necessaries, and kindness.” 3 Mason 242. The violation of such a contract by the master necessarily implies his liability to respond in damages commensurate not only to the extent of the actual loss sustained, but to the excessive bodily suffering- and mental anguish to which ho has exposed the passenger. The rules which must be adopted as our guide in the assessment of - damages in cases of this kind, are to be found in Article 1927 et seq. of the Civil Code, and also in the numerous decisions of this court on that subject. Considering all the circumstances of the case, I do not think that the jury exceeded the discretion reposed in them by law in the assessment of the damages; consequently I should have desired that their verdict should not be disturbed. But the opinion of two of the members of the court is, that the damages are excessive and should be reduced to the sum of one thousand dollars and to this I have reluctantly assented.
The principle of law that the owner of a vessel is liable for the tortious acts of the master committed whilst in his service and within the scope of the employment of the latter, may be considered as well settled, and no longer an open question. See 4 L. R. 243. 5 ibid 433. 6 ibid 319. 1 ibid 537. 7 Ann. 337. 1 Dallas 184.
It is therefore ordered and decreed, that the judgment of the District Court be avoided and reversed, and that the plaintiff recover of the defendants in solido said siim of one thousand dollars with legal interest from judicial demand, and costs of the inferior court, the costs of appeal to be paid by the plaintiff and appellee.
Buchanan, J. and Ogden, J., concurring in this opinion.