
    The Steamboat Ocean v. Seth Marshall.
    1. A plaintiff who sues a steamboat, under the watercraft law, for an act of personal violence inflicted on him, at a place out of the territorial limits of the State, by a person at the time an officer of the boat, should show that for such act of violence the owners of the boat would have been personally liable.
    2. The case of Steamboat Ohio ®. Stunt, 10 Ohio St. Rep. 582, approved and followed.
    Error to the district court of Cuyahoga county.
    This was an action brought under the watercraft law, by Seth Marshall, against the steamboat Ocean. The declaration stated that the steamboat Ocean was a watercraft, navigating the waters bordering on the State of Ohio, of and upon which one G. L. Heaton was an officer, to wit, the clerk thereof, and upon which steamboat the plaintiff was a passenger; “ and also for that the said G. L. Heaton, so then being clerk of said steamboat, then and there, to wit, on said 6th day of- September, 1854, upon said boat, with force and arms, in and upon the said plaintiff made an assault, and him, the said plaintiff, the said G. L. Heaton then and there beat, pushed, dragged and pulled about, and illtreated, and othei enormities to the said plaintiff, the said G. L. Heaton then and there did, against the peace and to the damage of the said plaintiff of one thousand dollars.”
    The defendant pleaded not guilty.
    Upon an appeal, after verdict and judgment for the plaintiff in the common pleas, the case was again tried before a jury in the district court, and a verdict and judgment again rendered for the plaintiff.
    During the progress of the trial in the district court, a bill of exceptions was allowed, from which it appeared that “ the plaintiff, to maintain the issue on his part, offered evidence to the jury tending to prove the trespass complained of in the declaration, and thereupon rested his case. And thereupon the defendant, to maintain the issue on its pai-t, offered to the jury testimony tending to prove that at the time of the injury, if any there was, the defendant, the steamboat Ocean, was a watercraft of over ten hundred tuns burden, owned, registered and enrolled in Detroit, in the State of Michigan, and running in a line between Detroit and Cleveland, in the State of Ohio. That at the identical time of the alleged injury, said boat was on its way from Detroit to Cleveland, in the territorial limits of Canada, and not elsewhere. That for the last eight miles before that navigated by said boat, she had been in the Detroit River, entirely within the limits of Canada, a British province, and that for the next eight miles her route in the same river was entirely within the British province of Canada; that said river was bounded on one side by the State of Michigan, and on the other by Canada, and no part of said river within, or bordering on, the State of Ohio.”
    The defendant asked the court to charge the jury, “ that if the testimony satisfied them that at the time the injury complained of in the declaration was committed, the defendant was owned, registered and enrolled in the State of Michigan, and at the time in and navigating waters entirely out of and not bordering on the State of Ohio, the plaintiff could not recover.”
    This charge the court refused, and among other things charged the jury, that “ for any assault and battery committed against the person of the plaintiff by the clerk of the boat, and for which an action .might be maintained personally against the clerk, the law permits suit to be brought directly against the boat itself, which, for the purposes of such action, is treated as a person, and held responsible for the tortious or wrongful acts of its officers.”
    To the refusal of the instruction asked, and to the instruction given, an exception was taken.
    A petition in error to reverse the judgment was filed in this court.
    
      John C. Grannis and Robert F. Paine for plaintiff in error.
    
      Reuben Hitchcock and S. B. Axtell for defendant in error.
   Gholson, J.

It has been held in the case of the Steamboat Ohio v. Stunt (10 Ohio St. 582), “that a'steamboat is not liable to seizure under the watercraft law of this state, for a willful assault and battery committed by the engineer of the boat on a passenger, while the boat was on its passage in the-Ohio river beyond the territorial limits of the State, with which trespass the owners of the boat were in no wise connected.” And, “ that it was not within the competency of the legislative power, upon grounds of public policy, to create-personal liabilities, and impose them on persons and property out of the jurisdiction of Ohio, and on account of transactions occurring beyond the territorial limits of the State.”' We are satisfied to abide by the principle decided in that case, and proceed to inquire as to its application to the present; a point contested by the defendant in error.

It is not intimated in that case, but the inference is excluded, that the principle of the case applies to the tortious acts of the officers and agents of the owners of boats, in matters within the scope of their employment or agency. It may be, notwithstanding anything decided in that case, that if the officer of a boat, in the conduct of the business of the boat, inflicts an injury upon the person of a passenger, the boat-may be sued in this State, though, at the time the injury was inflicted, out of the territorial limits of the State.

The difficulty with the defendant in error is, that the record does not present the point which he asks us to decide.

The declaration charges an assault and battery by a named person, who is alleged at the time to have been clerk of the boat, but it is not charged or stated that the assault and battery was in any manner connected with the discharge of any of the duties of a clerk. The bill o"f exceptions states, that the evidence tended to prove the assault and battery fhus generally alleged. Now, assuming the law to be that the owners of a boat are not liable generally for assaults and batteries which are committed by a person who happens to be in their employment as clerk, but for those only which occur in the conduct of some matter within the scope of the employment, we think it more reasonable, that the allegation and proof of an assault and battery, for which the owners would be liable should come from the plaintiff. It is difficult to escape the conviction that the case was tried and disposed of without reference to any such distinction as to liability. In this view, the plaintiff in error was prejudiced by the refusal to charge, and by the charge given.

The evidence offered by the defendant in the action was competent, under the general issue of not guilty, as showing no liability.

The judgment must be reversed, and the case remanded for another trial, previous to which, if so advised, the plaintiff may properly have leave granted to amend his declaration.

Judgment reversed.

Scott, O.J., and Peck and Bbinkebhopp, JJ., concurred.

Sutliff, J.,

dissenting. I am unable to perceive, that the trespass complained of is not sufficiently stated to sustain the judgment. After verdict and judgment, every intendment in law is in favor of the verity of the record, and the validity of the judgment. No objection in this case can be 'egally urged for the reversal of the judgment for want of sufficiency in the statement of the cause of action in the declaration, which would not have been available to the plaintiff, .after verdict, in arrest of judgment. It is not sufficient to show that the statement of the cause of action in the declaration is so defective that the declaration would have been held _>ad even on general demurrer. Nothing but a defective cause of action, a statement omitting essential facts necessary to ■constitute a cause of action, is ground for arrest of judgment after verdict. Where only the statement of the cause of action in the declaration is inaccurate or defective from the manner in which stated, after verdict such defects are always regarded as thereby cured. The legal intendment, then, is that the verdict, so presumed in law to be true, is in accordance with the proof upon which found. Acting upon this legal intendment, the court often, in a case where the proof may have been doubtful, withholds the exercise of its discretion to set aside the verdict on motion, and gives judgment on the verdict. After verdict and judgment, it is an absolute legal presumption that all circumstances necessary in such defective statements of the cause of action, were proved on the trial to have existed in the case. The title thus imperfectly stated in the declaration, after verdict and judgment, in all such cases becomes, by intendment, complete and perfect in law. And this familiar distinction between a defective cause of action, and a defective statement of a sufficient cause of action, was recognized by this court in the case of C. & P. R. R. Company v. Stackhouse, the present term. See 10 Ohio St. Rep. 567.

What, then, is the result of the application of this rule of law to the record before us ? The action below, for the purpose of this question, is to be.regarded, as it was substantially, an action by a passenger against a common carrier of persons. For any act of malfeasance or nonfeasance on the uart of any officer or operative of the boat toward a passenger, the liability of the boat, I take it for granted, would be precisely the same as that of a railroad company for the misfeasance or nonfeasance of an officer or operative of a passenger train toward a passenger on the train. And to this extent we give effect to the provisions of the statute relating to this case, and hold the action may be maintained against the boat.

The, declaration states that on the 6th day of September, 1854, the steamboat Ocean then was, and still is, a watercraft navigating the waters within and bordering on the State of Ohio, and that the plaintiff was on that day a passenger upon said boat, and that one G. L. Heaton was an officer on the said steamboat, and the clerk thereof; and complains of said boat “ for that the said G. L. Heaton, so then and there being clerk of said steamboat, then and there, to wit, on said 6th day of September, 1854, upon said boat, with force and arms, made an assault, and him, the said plaintiff, the said G. L. Heaton then and there beat, pushed, dragged and pulled about and ill treated,” etc., to the damage,” etc.

To this declaration the defendant pleaded the general issue.

The court before which the cause was tried, in their instruction to the jury, upon the point in controversy, say: The defendant does not deny that the party who is said to liave committed the assault and battery was, at the time, on board of the boat, acting as its cleric, nor is it disputed but that the plaintiff was at the time upon the boat as a passenger. At the time of the alleged injury, the defendant was engaged in carrying passengers from Detroit, in the neighboring State of Michigan, to this city. Under these circumstances, for any assault and battery committed against the person of the plaintiff by the clerk of the boat, and for which an action might be maintained personally against the clerk, the law permits suit to be brought against the boat.”

This charge of the court is strictly applicable to the cause of action stated in the declaration, and must be presumed to be to the evidence given upon the trial; and I hold it to be clearly in accordance with the law applicable to the case.

It is not necessary to express an opinion whether the declaration would or would not have been good upon special demurrer. The counsel of defendant did not deem it advisable to make that question, but pleaded the general issue.

The only question here is whether the conduct of which the defendant has, upon the verdict, been adjudged guilty, constitutes in law a cause of action against a common carrier of passengers by water.

The duties of common carriers by water are in some respects peculiar, but are the same, in principles of law, as carriers by land conveyance. It. is their duty, as a general rule of law, to receive all persons who apply for passage. The master and officers of the boat or ship are bound in law, by the implied contract arising between the carrier and passenger, not only to forbear committing an assault and battery upon him in the execution of the contract between the parties, but the officers of the boat or ship are bound to be vigilant for his safety, provident for his comfort, and respectful in their treatment and demeanor toward him. Such I hold to be the duty of a common carrier by ships and steamboats, and as clearly incumbent upon such carriers as are the same duties upon carriers of passengers by railroads; and, in each case alike, the carrier is to be held accountable for the- acts and delinquencies violative of his duty toward the passenger, on the part of the officers, agents and operatives by him employed in the execution of his duty.

It is objected by my brethren that it is not stated in this declaration that the assault and battery committed by the clerk upon the passenger was connected with the discharge of his duties as elerk. I imagine very few assaults and batteries committed by clerks upon passengers are so connected. His duty as clerk, I hold, was to forbear even disrespect, much more all rudeness and violence toward the passenger. The clerk could not then, in the discharge of his duty as cleric, have committed the assault and battery upon the plaintiff.

But the declaration does explicitly charge that the assault and battery was committed upon the plaintiff as a passenger, during the execution of the contract of the carrier, and by the clerk of the boat, “so then and there being cleric.” It does not, it is true, say the clerk was, at the time, acting as clerk — writing or making entries, at the precise time of committing the offense — and I am sure such facts, if they existed, can not be held indispensable after verdict and judgment, to constitute a cause of action.

If tbe rule of law applied to this case be correct, its application must be the same to a master of a boat, to the conductor of a railroad train, the driver of a hack, and all similar acting agents of the carrier of passengers, in the execution of the contract and duties of the carrier.

The importance of the rule, in its extensive practical application, induces me to here express, thus briefly, the views which I entertain upon the subject, and which have led me to dissent from the opinion entertained by my brethren, and expressed in the case.  