Howard v. Brown, 2 E.D. Smith 247

By the Court. Woodruff, J. Without considering whether the defendant has made a case for a new trial upon the merits, or has sufficiently excused his default, it seems to me that the judgment must be reversed, for want of evidence to support it.

The plaintiff was bound to prove his case, whether the defendant appeared or not. (Code, § 64, subdivision 8 and § 68.) The evidence on behalf of the plaintiff showed that the plaintiff was on board the steamship America, apparently performing the duties of shipkeeper, from about the 28th March to the 1st day of May, and that he was on board about twenty nights, and that shipkeeper’s wages are $3 for night and day.

Who employed the plaintiff; who owned the ship, for whose benefit the services were rendered; that the defendant had any interest in the services or in the vessel; or that he was even aware that such services were rendered—are in no wise proved. On the contrary, the only testimony which connects the defendant with the matter at all, is the evidence of one of the plaintiff’s witnesses, (Balcom,) in which he says, that he was present “when Mr. Brown told the plaintiff to leave the ship.” His telling the plaintiff to leave, will hardly warrant the inference that he requested him to remain.

In the absence of proof of employment by the defendant, and of all proof that the defendant had any interest in the ship, or in the services rendered, or any benefit therefrom, I can discover no ground upon which he can be held liable to the plaintiff for watching the vessel. I think the judgment should be reversed. Judgment reversed.