
    PANAMA MAIL S. S. CO. v. VARGAS.
    Circuit Court of Appeals, Ninth Circuit.
    July 15, 1929.
    No. 5738.
    Thomas A. Thaeher, Harrison A. Jones, W. Kevin Casey, and Thaeher & Wright, all of San Francisco, Cal., for appellant.
    H. W. Hutton, of San Francisco, Cal., for appellee.
    Before BUDKIN, DIETRICH, and WILBUR, Circuit Judges.
   RUDKIN, Circuit Judge.

This was a libel by a passenger to recover damages for a criminal assault by one of the officers of the ship. October 10, 1927, the libelant became a passenger on the steamship Ecuador, bound from La Libertad for San Francisco, arriving in the latter port October 21, 1927. The libel alleged that about 6 o’clock on the morning of October 12, 1927, the second steward of the vessel entered the stateroom of the libelant, when she was seasick and nauseated, and violently assaulted her, and against her will and consent and against her resistance forcibly had sexual intercourse with her, by reason whereof she became pregnant with child. From a deeree in the sum of $10,000 in favor of the libelant, the respondent has appealed.

The utmost that can be claimed by the appellant is that the adverse deeree is based on conflicting testimony taken largely in open court. Only two witnesses, the appellee and the steward, gave direct testimony concerning the alleged assault. The testimony of the appellee fully supported the charge, and that of the steward denied it in totó. The appellant contends, however, that the testimony of the appellee should be rejected because she made no outcry at the time and did not complain of the outrage committed against her for a period of some five months, or until she discovered that she was pregnant. A number of criminal cases have been cited in support of this view, but, whatever the rule may be in such eases, we think it is well settled that in civil eases no such strict rule obtains, and that the credibility of the complaining party is for the court or jury, in view of all the surrounding circumstances. Dean v. Raplee, 145 N. Y. 319, 39 N. E. 952 ; Linville v. Green, 125 Mo. App. 289, 102 S. W. 67; Schenk v. Dunkelow, 70 Mich. 89, 37 N. W. 886; Kramer v. Weigand, 91 Neb. 47, 135 N. W. 230; Jensen v. Lawrence, 94 Wash. 148, 162 P. 40, Ann. Cas. 1917E, 133.

The court below, after hearing the testimony of the appellee, together with her reasons for not making an outcry and for not sooner complaining of the outrage, gave credence to her story, and it is not for us to say that the court erred in so' doing; for, if the case made by the appellee was not entirely free from suspicion, the defense itself was weak. The brief of the appellant practically concedes that the steward had sexual intercourse with this passenger, claiming that it‘was voluntary, but, if no such concession was made, the overwhelming weight of the testimony clearly establishes the fact. And from that fact, two conclusions follow: First, that the chief witness for the appellant was guilty of false swearing; and, second, that the girl who occupied the stateroom with the appellee during the greater part of the voyage was not present when the outrage was committed. Without attempting to further review the details of the testimony, from which no good can result, we deem it sufficient to say that this case belongs to that class where appellate courts refuse to review decisions of trial courts based on conflicting testimony taken before them, unless tbe record discloses some plain error of fact, or unless there is a misapplication of some rule of law.

The appellee contends that the decree was less than it should have been, but we find no abuse of discretion in that regard.

The decree is affirmed, with interest from its date, and for costs in this .court.  