Cushman v. Ryan. the main rigging, and while so seized up, the said Cushman ordered the trowsers of the libellant to be stripped down, and his naked person exposed, and with a weapon called a cat, inflicted fifteen severe blows upon the naked body of the libellant, so as to wound him severely; and, after causing the libellant to be cut down, the said Cushman continued to beat the libellant with said cat, and cut him across the legs and arms so that the flesh and limbs of the libellant were bruised and lacerated, and thereupon immediately, while the libellant was suffering great bodily pain and distress from the severe flagellation he had received, the said Cushman ordered the libellant to go to the mast-head, where he was kept during the space of nearly four hours, in the cold and rain, until he was so benumbed with cold, that he could with difficulty keep himself from falling. That the said libellant by means of the said assault, suffered severe pain in his head, and to this day his hearing is injured by the said blow, and that he has suffered damage to the amount of one thousand dollars. The answer admitted the hiring of the libellant, and his shipping on board the Arab; and goes on, in substance, to state, that the crew shipped under a contract not to use ardent spirits on the said voyage, and with notice that spirits would not be furnished by the owners, or allowed to the crew, except for medical purposes, for which last purposes a small quantity of spirit was put on board. That the vessel sailed from Desolation Island to Delago Bay, and that on the voyage, and while she was lying at Delago Bay, the said Ryan neglected his duty as steward, and was frequently in liquor himself, and embezzled the ship's stores by giving liquor and wines to others of the ship's crew, contrary to his duty and the express orders of the respondent and his officers. Cushman v. Ryan. That on or about the 28th of August last, the said ship still lying at Delago Bay, the respondent being on shore, a signal was made to him, from the said ship, to come on board; that on repairing on board, he was told by Charles F. Cushman, one of the officers, that the said Ryan was in liquor, had been giving liquor to others of the crew, and had been doing damage and making disturbance in the ship. That the respondent called the said Ryan to him, and while charging the said Ryan with some of his conduct, was insolently answered by the said Ryan, and finally told by him, that he (the respondent) lied; whereupon the said respondent knocked the said Ryan down instantly with his fist, and that while the said Ryan was down, this respondent further corrected him, kicking him and striking him with a piece of launch warp, a quarter of an inch in thickness, two or three times; but denies that any permanent injury was done, or that the punishment was malicious or unduly severe; and especially denies, that the respondent struck the libellant on the ear, or on his head after he fell, and avers, that he struck him but once in the face. That after this last mentioned occurrence, the said Ryan was repeatedly in liquor, and embezzled the spirits of the said ship, and removed for that purpose a lock on the scuttle of the run to protect the spirits, and that the respondent told the libellant, that unless he desisted he would flog him. But the libellant disregarded the warning, and on the 4th day of February last, on the passage home, the libellant having been in liquor, and having been insolent to the first officer of the ship, the respondent ordered him on deck and had him seized up, and flogged him with a cat made of eight strands, of a line of the size of a log line, after distinctly stating the reason for the punishment. And after the flogging, this respondent ordered the libellant to go to the foretop for two hours, Cushman v. Ryan. after previously ordering him to go below and change his clothes, and denies, that the punishment was more than the exigencies of the case required. The answer goes on to state, that this suit is set on foot by a person to whom the said Ryan is indebted, and for the purpose of extorting money from this respondent. From The cause was tried before the district judge, who decreed to the libellant one hundred and fifty dollars and costs. that decree the present appeal was taken, and argued at this term, by George T. Curtis, for the appellant, and by T. G. Coffin, of New Bedford, for the appellee. The facts of the case sufficiently appear in the opinion of the Court. STORY J. This is the case of an appeal from the District Court, in a cause technically called a cause of damage. The libel charges two assaults and batteries as having been committed on the high seas, and within the Admiralty jurisdiction of the District Court, by the respondent, Cushman, master of the whaling ship Arab, upon the libellant, Ryan, the steward of the ship; and the particulars are set forth articulately in the libel. The answer does not deny the assaults and batteries charged in the libel; but it does deny many of the circumstances of aggravation, and insists, that the same were inflicted upon the libellant for drunkenness and other gross misconduct, by way of correction and punishment, and in enforcement of the proper discipline of the ship. The learned Judge of the District Court, at the hearing, pronounced a decree in favor of the libellant, for one hundred and fifty dollars damages, and costs; and from that decree an appeal has been taken to this Court. In cases of this nature, where the damages are necessarily uncertain, and are incapable of being ascertained by any pre Cushman v. Ryan. cise rule, and, therefore, unavoidably rest, in a great measure, in the exercise of a sound discretion by the Court, upon all the circumstances in evidence at the hearing, it is with extreme reluctance, that the appellate Court entertains any appeal; and it expects the appellant to show, beyond any reasonable doubt, that there has been some clear mistake or error of the Court below, either in promulgating an incorrect rule of law, or in awarding excessive damages; or that new evidence is now offered, which materially changes the original aspect of the case. If new evidence is offered, which might fairly have been introduced in the Court below, by the exercise of reasonable diligence, it is treated as being of far less value, than it would have been under other circumstances, especially if it goes to the very gist of the matters put in controversy by the libel and answer, since it may be justly imputed to the laches of the party, and is open to the suspicion of being framed to meet the new exigencies of the case. Indeed, it may well be doubted, whether the introduction of such new evidence, going in contradiction to the proofs of the points in issue by the libel and answer in the Court below, ought, according to the true principles, which regulate the practice in Courts of Admiralty in instance causes, ever to have been admitted. It is true, that Courts of Admiralty, upon appeals in instance causes, may permit new allegations to be filed, and new evidence to be admitted; but the proofs are strictly confined to the support of the new allegations, and are not allowed to contradict the original testimony upon points in contestation in the Court below. The rule is, that, under certain restrictions, the appellant may be permitted non allegata allegare, et non probata probare. But then it is a part of the rule, that it shall not contradict the former evidence, (modo non obstet publicatio testium) or that it shall solely go to the proof of the new Cushman v. Ryan. allegations (novis articulis ex veteribus pendentibus, et ex illis orientibus, et ad causam pertinentibus). So the rule is laid down on many occasions; and Doctor Brown has affirmed its general adoption by Courts of Admiralty.1 But, as to the other point, where the damages or amount must necessarily rest in the sound discretion of the Court, as it does in salvage causes and causes of damage, the constant policy of the Courts of the United States, in the exercise of their appellate jurisdiction, and especially of the Supreme Court, has been, to discourage appeals upon slight or trivial grounds, and never to reverse the original decree, unless there is a plain mistake of law, or a gross excess in the amount or damage awarded. Indeed, under other circumstances, there would be no safety to any parties; and new motives to litigation would be perpetually presented, to stimulate the parties to take the chances of an appeal, in the hope that, in a mere exercise of discretion, the different Courts might not arrive exactly at the same amount either of salvage or of damage, although the decree in each case was founded upon the same principles. In the few cases of appeals of this sort, which have come before me, I have constantly been governed by this consideration; and I have never asked myself the question, whether originally I should have awarded exactly the same sum; but only, whether I could discern a clear and unequivocal mistake or error in the Court below, either of law or of fact. And in every such case, I have always held the onus probandi to be on the appellant to demonstrate beyond reasonable doubt the mistake or error of law or of fact. It is under this view of my duty, sitting as an appellate tribunal, that I have examined the allegations and proofs in the 1 See 1 Brown's Civil and Admiralty Law, 500. 2 Brown's Civil and Admiralty Law, 436, 437. |