steered for Yakutat. Before reaching Yakutat, and while off the coast of Alaska, the hawser parted. Instead of returning to the tow and rendering further assistance, the Bertha kept on her course, abandoning the Dora B., which was carried on the coast and wrecked, and the deceased lost his life. Held, that it is immaterial that the parting of the hawser happened over three miles off shore and out of the jurisdiction of the court, it appearing that the disaster which caused the decedent's death happened upon the shore within the three-mile limit and within the jurisdiction of the court.

14. SAME-DAMAGES

JURISDICTION-NEGLIGENCE.

A suit in admiralty cannot be maintained in a court of the United States, either under the general maritime law or any act of Congress, to recover damages for the death of a person caused by negligence on the high seas.

John R. Winn and Lewis P. Shackleford, for plaintiff. Arthur K. Delaney, for defendant.

BROWN, District Judge. This action was tried before a jury, and resulted in a verdict for plaintiff in the sum of $5,000. In due time the defendant filed its motion to set aside the verdict and grant a new trial herein, and for grounds thereof set forth each and all of the statutory reasons provided by the laws of Alaska, and states them as follows:

(1) Irregularity in the proceedings of the court, the jury, and the adverse party, and the orders of the court, and abusive discretion of the court, by which said defendant was prevented from having a fair trial.

(2) Misconduct of the jury and the prevailing party. (3) Accident and surprise which ordinary prudence could not have guarded against.

(4) Newly discovered evidence, material to this defendant, which it could not, with reasonable diligence, have discovered and produced at the trial.

(5) Excessive damages, appearing to have been given under the influence of passion or prejudice.

(6) Insufficiency of the evidence to justify the verdict or other decision, and that such verdict is against the law.

(7) Error in law occurring at the trial excepted to by the defendant herein.

A copy of section 226 of the Code of Civil Procedure, with the title of the cause added, would have subserved the same purpose as this motion.

Section 229 of the Code of Civil Procedure provides that for causes mentioned in subdivisions 1, 2, 3, and 4 of section 226 the motion shall be supported by affidavits. Inasmuch as no affidavits have been filed, and the time therefor has elapsed, it is presumed that those grounds for the motion have been abandoned.

The fifth ground for the motion is for "excessive damages," and will be first considered. The question arises, if the plaintiff had a right to recover, were the damages assessed by the jury at $5,000 excessive? That is the maximum limit as fixed by the law existing at the time of the disaster to the Dora B. Considering the facts in evidence-i. e. that Baldwin was about 21 years of age, was a young man of robust health and good habits, that his life expectancy was 4153/100 years, and that he was earning good wages at the time of his death-it would seem that the conclusion of the jury was just and reasonable, and that the productive powers of the deceased were far greater in value than the sum of $5,000, to which the jury was limited by law in their verdict. In view of the evidence, the amount of the verdict furnishes to the court no warrant for the conclusion that it was returned under the influence of prejudice or passion. Since counsel in his brief in support of the motion does not refer to the verdict as being excessive in amount, it is reasonable to conclude that this ground of the motion is also abandoned; surely it is without merit.

The next ground of the motion is insufficiency of the evidence to support the verdict.

There are cases that hold that a mere statement of the statutory ground of "insufficiency of evidence," without specifying in what particular the evidence is insufficient, does not present a ground for new trial that a court is bound to pass upon. Where this rule prevails, as in Idaho, Montana, and California, it seems to be predicated upon a statute requiring the statement or bill of exceptions to specify in what particular the evidence is insufficient; and if no such statement or specification is made, the matter may be disregarded on hearing of the motion. I do not refer to these statutes in extenso, but in part only, in order to illustrate my meaning as to the reasons of the rule in the particular jurisdiction referred to. Under our statute, neither a bill of exceptions nor statement is required before the motion for new trial is heard and decided, and we have no statute requiring the particular insufficiency of evidence to be pointed out to the court in the motion for new trial. Even the notice of motion for a new trial is not required. It would seem, therefore, that the motion must stand or fall upon its own merits and the matters stated therein. Section 229, Alaska Code Civ. Proc., reads as follows:

"In all cases of motion for a new trial, the grounds thereof shall be plainly specified, and no cause of new trial not so stated shall be considered or regarded by the court."

Under this statute, what specifications are necessary to be set forth in the sixth ground for a new trial, as to the insufficiency of the evidence to sustain the verdict, and the verdict being against the law?

It would seem not only just to the trial court, but necessary for the consideration of the case on error, that if the insufficiency of the evidence goes to some particular point or proposition involved in the trial, the motion, in order to

make it conformable to our statute, should call the attention of the court to the specific matter upon which a failure of evidence is claimed. If the motion is not thus specific, it does not conform to the statute; and, not being in accord with the statute in this respect, the court is not required to consider it. But in this case the motion is in the language of the statute. It fails to point out or specify any particular proposition involved in the case wherein the evidence is insufficient; so it must be deemed general, and as going to the whole case. Evidently, it is a demurrer to the evidence, and challenges its sufficiency generally.

A general demurrer to a complaint on the ground that the facts pleaded do not constitute a cause of action requires an inspection of the entire record before the court can, without other specification, pass upon the demurrer. The entire evidence in this case is before the court, and the verdict is challenged on the general ground of insufficiency of the evidence to sustain the same; so it seems to follow that the court is required, without other specification, to consider all the evidence before it, as it would consider all the facts stated in a complaint or general demurrer. Considering the evidence, then, as a whole, on the motion as presented, what do we find?

The contract of tow was in form of a receipt in writing, and this was before the court and jury. There was an attempt, at least, on the part of the defendant to perform, and the schooner Dora B. was towed from Juneau to Lituya Bay. The evidence of the plaintiff and defendant agrees as to the towing of the schooner from Juneau to Lituya Bay, and beyond to the point where the hawser parted, and that the steamer Bertha, the towing steamer, sailed away towards Yakutat, leaving the Dora B. where the line parted to make her own way thereafter. Up to this point all the witnesses agree. There are, of course, some minor matters of divergence, but upon the proposition of towing the Dora B. to this point all agree.

2 A.R-4

At this point there is a divergence, the evidence for the plaintiff fixing the locus of the point at which the hawser parted within three miles of the shore of Alaska, and defendant's witnesses stating the distance at a much greater figure—some as high as ten miles. On the defendant's theory of the case the distance from shore at the time the hawser parted was of vital importance. If the distance was more than three miles, according to defendant's theory there could be no recovery, because the statute giving the right to recover does not extend upon the high seas beyond the three-mile limit from shore. But this question was left fairly to the jury by the instructions of the court. Not only so, but the defendant requested a special verdict, and the jury answered upon this proposition as follows:

"Interrogatory.

*

* did the wrongful act Alaska, or within three miles of the shore thereof?

occur in Answer. Yes."

Several other questions were submitted in the special verdict, and were answered to the same effect by the jury. It is clear that the attention of the jury was specially called to this matter, and that the jury found under the evidence against the contention of the defendant. Does the evidence sustain the verdict? That there is evidence to support the special finding there is no doubt; but had the court been called upon to consider the evidence primarily, it might have considered its weight as against the special finding. The court might possibly have given greater weight to the "log book" than the jury did, and also to the expert testimony; but the log had inherent defects that perhaps the jury considered so important as to render it wholly valueless as evidence, or at least render it unreliable. Whatever the reasons of the jury for giving greater weight to the evidence of the plaintiff in this regard, the court, in the nature of things, cannot know; but the court will not undertake to usurp the functions of the jury. The jury are instructed that they are the exclusive judges of the credibility of wit