Cook County IL Archives Court.....Ward, V Salisbury 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 25, 2008, 8:01 am

Source: Records Of Cases Illinois
Written: 1850

Eber B. Ward et al., appellants, v. Oney Salisbury, appellee.

Appeal from Cook County Court of Common Pleas.

In an action of assumpsit, brought to recover wages due for sailing a vessel 
by a captain, it was held that the defendants in such an action, for the 
purpose of mitigating damages, might introduce the testimony of a harbor 
master, although he was not skilled as a navigator, to show any fact within 
his knowledge respecting the management of the vessel, and to give his opinion 
whether such management was skillful or unskillful.

This was an action of assumpsit on the common counts, for work and labor, 
brought by appellee against appellants, to recover wages due him for sailing 
the steamer Pacific, as captain. During the progress of the trial, the 
defendants in the court below, introduced the harbor master of the port of 
Chicago, as a witness to show that the plaintiff managed the vessel 
unskillfully, in order to reduce the amount claimed. The facts of the case, 
upon which the opinion is based, are sufficiently stated in it.

The cause was tried before Spring, Judge of the Cook County Court of Common 
Pleas, at the October special term, 1850, of that court.

Several questions were presented in argument, which, not being referred to in 
the opinion of the court, are not noticed here.

H. G. Shunnway, for appellants:

The interrogatory propounded to Durfee, the harbor master, calls for facts in 
reference to the management of the Pacific. A witness, not a professional man, 
may give his opinion in evidence, with the facts on which his opinion is 
founded: 17 Vermont, 499 ; 7 Ibid, 158.

J. H. Collins and I. N. Arnold, for appellee:

Treat, C. J. This was an action of assumpsit brought by Salisbury against the 
owners of the steamer Pacific, to recover compensation for services performed 
as master of the vessel. It appeared in evidence, that he commanded the boat 
during the year 1848. From May until October, she ran between Detroit and 
Buffalo; during the months of October and November, between Chicago, St. 
Joseph and Milwaukee. The defendants attempted to show in mitigation of 
damages, that the plaintiff exhibited a want of skill in conducting the 
vessel. A witness testified that, he did not manage the boat well, 
particularly in going in and out of harbors. The defendants called a witness, 
who testified that he was harbor master of the port of Chicago during the year 
1848; that he had a good deal of knowledge of vessels, and knew something of 
sailing them, but did not understand the science of navigation, and was not a 
practical sailor. They then asked him, "How did the plaintiff manage the 
Pacific, in coming in and going out of the Chicago harbor?" The plaintiff 
objected to the question, on the ground that the witness was incompetent from 
the want of knowledge of navigation. The court sustained the objection, and 
the defendants excepted. 

The mode in which the plaintiff managed the boat, was a material inquiry on 
the trial. The value of his services depended chiefly on the manner in which 
he discharged his duties as master. Any evidence, therefore, that tended to 
show negligence or unskillfulness on his part, was properly admissible in 
mitigation of damages. In this point of view, the court erred in excluding the 
testimony of the harbor master. The interrogatory did not necessarily call for 
the opinion of the witness. It was clearly competent for him to state any 
facts within his knowledge respecting the management of the vessel. And, we 
think, his opinion, in connection with such facts, was admissible. He was 
charged with the execution of the harbor regulations. In the exercise of his 
duties, he necessarily became familiar with the character and condition of the 
harbor, and the manner in which vessels were brought into and taken out of 
port. His position would enable him to detect any want of skill in the 
management of a particular vessel. If he witnessed the operations of the 
Pacific, while entering and departing from the harbor, his opinion might go as 
far to enlighten the jury, as that of a professional seaman founded upon facts 
detailed by witnesses. It might, indeed, from the circumstances in which he 
was placed, be entitled to greater weight, than the mere opinion of an 
experienced navigator having no personal knowledge of the facts. He should 
have been permitted to state the facts that came under his notice respecting 
the management of the vessel, and his opinion whether that management was 
skillful or unskillful. The question was relevant to a material issue in the 
case, and the answer might have had a controlling influence on the verdict. 
The ruling of the court was erroneous, and, as it may have operated to the 
prejudice of the defendants, the judgment will be reversed, and the cause 
remained.

Judgment reversed.

Dissentinq Opinion of Justice Trumbull. In my judgment, the question 
propounded to the witness was incompetent, for two reasons:

First. Because it assumed, that the witness had seen the Pacific coming in and 
going out of Chicago harbor, when there is no evidence in the record, that he 
ever saw the Pacific enter or leave that harbor. No proper foundation was laid 
for the question. The fact that the counsel objected to it for a wrong reason, 
would not prevent the court from excluding it for a right one. The judgment is 
not surely to be reversed, because the court below refused to permit an 
improper question to be asked, although the attorney may have urged a wrong 
reason for his objection.

Secondly. I am of opinion, that the question was improper for the reason 
assigned by the counsel. The object of the question clearly was, to draw out 
the opinion of the witness, as to how the plaintiff managed the boat.

The witness had shown by his previous testimony, that he did not understand 
the science of navigation; and I am not aware that it is any part of the duty 
of a harbor master, to take steamers in and out of port, or that he must 
necessarily have any knowledge upon that subject.

As a general rule, the opinions of witnesses are not admissible in evidence; 
and when they are admitted, it is upon the principle, that the witness from 
his profession or business, is supposed to possess some peculiar knowledge or 
skill in reference to the matter, about which his opinion is sought. The 
witness in this case, is not only not shown to have possessed any such 
knowledge, but it is negatively shown that he did not possess it.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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