[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 381 The question how far a master of a vessel is answerable for damages arising by reason of the negligence of those employed under him, lies at the foundation of this action.
The testimony upon the trial establishes that the steamship of which the defendant was in command was fumigated under the directions of the deputy health officer of the port of New York, who, by statute, has full authority for that purpose. By his order it devolved upon the chief steward to clear the *Page 383 passengers from the steerage and keep them away from the effect of the dangerous substance employed. The utensils, which consisted of pans and pannikins in which to pour the poisonous materials, were also furnished by the steward. After closing the steerages and leaving instructions as to the length of time they should be kept closed and as to the removal of the vessels containing the poison, the steamship was left by the deputy health officer and his men, the chief steward having been cautioned in regard to the poison. In about one hour afterwards the steward ordered the plaintiff's wife and children down in the cabin, and in about half an hour after this the poison was taken, by the deceased, from a pannikin, which had not been removed with the other utensils, which was seen by the child's mother on a seat by the dining table in the steerage, where the child was playing, and from the effects of the poison, the child, soon after it was taken, died. Although the health officer has power, under the laws of the State, to take charge of the vessel for the purposes indicated in the statute, and the master and other employes are subject to his control and direction in reference to the subject, so far as the object to be accomplished is concerned, that officer occupies no such position as confers upon him superior authority, so as to render the officers and employes on the vessel his servants and agents after he had left the same. The duties of the health officer are but temporary and specific, being confined entirely to the cleansing of the vessel. In carrying out this purpose he may direct the master and other officers as to details and secure their aid; but it surely is not required of him to remain and see that the utensils employed are cared for and the cabin placed in proper condition for the accommodation, comfort and safety of the passengers. When the deputy health officer and his men had furnished the proper materials, distributed the pans and pannikins around the steerage and given the proper instructions their business was at an end, and it devolved upon the captain or such officer as might be assigned by him for that purpose, to attend to the removal of the vessels used and to the restoration *Page 384 of the ship to a suitable condition. After the fumigation was completed, it was his right, and clearly within the line of his duty, to see that the materials employed were not left in an exposed position, where they might be productive of injury or serious and fatal results to any of the passengers. The chief steward having furnished the utensils which contained the poison used in the fumigation, given directions to the passengers to leave the steerage, received instructions in regard to the same and directed the mother and child when to return, it would seem to follow, unless other orders were given, that it was also a part of his business to free the cabin from all dangerous materials. In this respect he was in no sense the agent of the deputy health officer, and was not delegated to perform any part of his duty. So far as he attended to the removal of the poison and the reinstatement of the steerage, he was apparently acting within the general scope of his duties. Although not directly proved that this duty especially belonged to him, it may be assumed from the fact that he did perform it in the absence of any other directions from the master, that it was his work, and that it was performed with the approval of his superior officer. He was, then, to all intents and purposes, the servant of the master, acting for him and on his behalf. That officer was in command of the vessel, and it was under his control and subject to his general management and direction — at least until the completion of the voyage, and it was safely in port. By a rule peculiar to the mercantile law, the master is liable for the negligent acts of an employe, while engaged under his authority, to the same extent as if he were the ultimate principal, who is ordinarily bound to respond in damages for such negligence. (Shear. Redfield on Neg., § 113.)
In Denison v. Seymour (9 Wend., 1) an action was brought for an injury occasioned by the negligence of an employe, acting as the pilot of a vessel, and it was held that the master was liable. And this rule applies without any distinction whether the officers and men were appointed by the owners or himself. (Story on Agency, § 316; see also, Schieffelin v. *Page 385 Harvey, 6 J.R., 169; Foot v. Wiswall, 14 id., 306;Watkinson v. Laughton, 8 id., 213.) From the authorities cited it is manifest that the ground upon which the rule ofrespondeat superior is based, viz., the right which the employer has to select his servants and to discharge them, has no application to a case which involves the relations between a master of a vessel and the employes upon the same. It follows that the defendant was liable if the chief steward was negligent in not removing the pannikin which was the cause of the death of the intestate. It appears that he left the pannikin, which was an ordinary drinking cup, which might well attract the attention of a child of tender years, and which might very naturally be taken up to drink from; and being well acquainted with the nature of the poison it was the plain duty of the steward to guard with extreme care against the danger of such an accident. The evidence establishes that he knew that pannikins had been used in the fumigation, and it is but reasonable to require that he should have taken pains to find and remove them. Having failed to exercise the vigilance and care which was essential for that purpose, it was a fair question for the jury to determine whether his omission was negligence.
There is no valid ground for claiming that the child or its mother was chargeable with negligence which contributed to produce the injury. The mother was present in the cabin with the child within her sight and hearing, and appears to have given him all the care and attention which was required for his protection and well-being. She had no knowledge of the existence of the cup containing the poison, and no reason to apprehend that any danger was at hand in consequence of the fumigation. As she had been directed to go into the cabin she had a right to infer that every thing was safe there, and that no extraordinary degree of vigilance was required for the protection of her child. Under the circumstances, there is no valid ground for claiming, that contributory negligence was established.
It is insisted by the defendant's counsel, that the plaintiff *Page 386 cannot maintain this action in a representative capacity, for the reason that the surrogate of New York had no power to issue letters of administration. Assuming that this point can be raised collaterally in this action, the soundness of the objection urged depends upon the question whether the plaintiff's intestate was an inhabitant of the city and county of New York. At the time of the death of the child and for seven months prior thereto, his father, the plaintiff, was living there. He had previously resided in England, and his wife and the child came to join him and to live with him in New York. He testified that he came there for the purpose of making a home and a living. This evidence was erroneously stricken out, and as it was material upon the question of residence, and as the action can be maintained as already shown, this error would entitle the plaintiff to a new trial. But without regard to this testimony, and independent of it, the evidence upon the trial tends to show, that his domicile was in New York. He had left or emigrated from his own country, located, and was at work in New York, thus showing an intention to establish a residence there, and so far as the evidence goes, evinced no intention or determination to reside anywhere else. Here was a prima facie evidence that he was domiciled there, and it was for those who claim otherwise to rebut this evidence. (Marsh v. Hutchinson, 2 B. P., 231, note; Heidenbach v.Schland, 10 How. Pr. Rep., 477.)
If he had not a domicile in New York, it would be difficult to say how a domicile could be proved where a person who had left his own country had thus settled. Generally speaking domicile and residence mean the same thing. And an inhabitant is defined to be one who has his domicile in a place or a fixed residence there. (Crawford v. Wilson, 4 Barb., 520.) The domicile of an infant necessarily is the same as that of his father (Story on Conflict of Laws, § 46.) The intestate was under the control of his parents, traveling with his mother to join his father at the home of the latter and of the family, and in law was actually residing in the city of *Page 387 New York. Both the father and son were inhabitants of that city, and the residence of the deceased being there the surrogate had ample authority to issue letters of administration which authorized the plaintiff to institute this action.
The General Term were right in their decision, and the order must be affirmed, and judgment absolute ordered for the plaintiff.
All concur except RAPALLO and EARL, JJ., not voting.
Order affirmed and judgment accordingly.