The opinion
SMYTH, Chief Justice
(dissenting). Certain propositions are admitted or established in this case: (a) That it was .the duty of the company, being a common carrier, to protect the appellants as passengers as far as practicable (New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 645 , 7 Sup. Ct. 1039, 30 L. Ed. 1049 ; Washington Railway Co. v. Perry, 47 App. D. C. 90, 97); (b) that the appel *313 lants, being highly respected persons, were inconvenienced, insulted, humiliated, and their stateroom and luggage searched against their will by Cuban police officers, while they were on board the appellee’s ship, on the false assumption that they had committed larceny; (c) that the Cuban officers had no right to search the stateroom of the appellants without the permission of the American consul or of the captain of the vessel; and (d) that the consul had not given permission.
The law of the Republic of Cuba, found in the record, governing the right of a Cuban officer to search any of the places mentioned therein, says, in section 561:
‘•Nor can lie enter and search foreign merchant vessels without the authority of the captain, or, if the latter should refuse it, without that of the consul of Ms nation.”
The statute makes it clear that the Cuban officers had no right to search the company’s vessel without the permission of the captain or consul. This also accounts for the officer’s request for permission to make the search. There is no claim that the American consul gave his permission, or was asked to do so.
Did the captain give permission? The opinion asserts that he did not. Ret us see what the record says. The captain died some time after the occurrence, and this perhaps explains why his testimony was not taken. One of the ship’s officers testified that the captain positively refused to grant the Cuban officials permission to search ihe stateroom, and he is the only one who says so; but there is testimony in conflict with this. The two appellants said that, when they called upon the captain for protection after their stateroom had been searched, he received them in his shirt sleeves, in his quarters on the bridge, remained seated during the interview, displayed much indifference, and stated that, if it had been his own wife, “he would have had to permit it.” Does this not tend to show that he did permit it in the case of the appellants? His attitude was that of a person who was not much concerned in extending to them the protection to which all passengers are entitled at the hands of their common carrier.
Is it not unlikely that the Cuban officers, knowing as they must have the law of their own nation, would, if the captain had refused permission, go directly to the stateroom in the presence of the many who stood about, open the door, and enter on a vigorous search of the appellants’ effects? The stateroom steward was nearby and saw what took place, for he informed the appellants of it. The Cuban officers gained entrance to the stateroom by means of a key which they had found on a ledge above the door, where the appellants were accustomed to place it. This was known to the steward. How did the Cuban officers learn of its location, unless he informed them? Is it likely that he would have done so, unless he had assurance that the captain had given the officers permission to make the search ? Finally, both appellants testified that, when they entered the stateroom and found the Cubans at work, the captain of the Cuban force said in answer to their protests: “This is by the captain’s permission.” Nei *314 ther the steward, the Cuban police captain, nor any one else was called to contradict this. It is said the testimony is secondary. Granted. But no objection was made to it on that ground or on any other. If the appellee was satisfied with it tire court should be. Had timely objection been made, the Cuban officers could have been called. They were competent to testify to what the captain had said to them. But we are told that it was assumed in the argument that the captain did not give his permission. There is no admission of that character in appellants’ brief, and the record clearly presents the question, as it does all other questions affecting the sufficiency of the evidence to carry the case to the jury. I submit that the testimony and the circumstances made it a clear question for the jury as to whether or not the captain had given permission for the search.
Assume that it had been left to the jury, and that they had found that the search was made with permission of the captain, could there be any doubt that the company which the captain represented is liable for all the consequences of the permission? Certainly it could not be said with any show of reason that, in giving permission to do the thing which caused the injury, the carrier was doing all that was practicable for the protection of its passengers.
Even if it was established that the captain had refused permission, but did nothing more, it would be, it seems to me, for the jury to decide whether he had thereby performed his full duty in the circumstances. He knew the accusations that had been made against the appellants, and knew what the officers were on board for. Might not the j ury have said with reason that, knowing these things, he personally, or by some proper person deputed for the purpose, if his duties kept him on the bridge, should have observed the Cuhan officers while on board, and taken every step reasonably available to persuade them that they had no authority to make the search, and that, if they attempted it, they would be held to strict accountability for their act? If he had done this, the jury would be justified in saying, considering all the circumstances, that the officers would not have made the search, abused the appellants, and otherwise disobeyed the law. The question of the proximate cause of an injury is ordinarily not one of science or of legal knowledge, but a fact for the jury to determine, in view of all the accompanying circumstances. Milwaukee & St. Paul Railway Co. v. Kellogg, 94 U. S. 469, 474 , 24 L. Ed. 256 ; In Washington Railway & Electric Co. v. Perry, 47 App. D. C. 90, this court said that the trial court made no error in leaving to the jury the question as to whether or not the conductor’s failure to take any steps to quiet the boys who were misbehaving on his car was the proximate cause of the injury of one of their fellow passengers. See, also, in this respect, Anania v. Norfolk & Washington Railway Co., 77 W. Va. 105 , 87 S. E. 167 , L. R. A. 1916C, 439; Hutchinson Carriers, 3rd Ed., sec. 1162; Mary A. Smith v. Wilson, 31 How. Prac. (N. Y.) 272 Fed. Cas. No. 13,128; Parsons on Shipping and Admiralty, 636; Louisville & Nashville Railroad Co. v. Byrley, 152 Ky. 35 , 153 S. W. 36 , Ann. Cas. 1915B, 240; Southern Railway Co. v. Hanby, 183 Ala. 255, 260 , 62 South. 871 .
*315 Moreover, there is nothing whatever in the evidence indicating that the police officers would have persisted in making the search if the captain had shown any opposition. They apparently were proceeding under the assumption that they had his authority and were acting entirely within the law.
There is no analogy between this case and cases like Burton v. N. Y. C. & H. R. R. Co., 147 App. Div. 557 , 132 C. C. A. 628 , and Thompkins v. Railway Co., 211 Fed. 391 , 128 C. C. A. 1 , 52 L. R. A. (N. S.) 791, where an officer, clothed with apparent authority makes an arrest or a search. It is no part of the carrier’s duty, so say most of the authorities, to oppose such an officer. Here there was no question of apparent authority. The Cuban statute makes it indisputable that the officers had no authority without permission of the captain or the consul; and the captain knew this. Stress is laid on the Wildenhus Case, 120 U. S. 1, 8 , 7 Sup. Ct. 385, 30 L. Ed. 565 , but it is not in point. There the court decided what the law of nations was with respect to the facts before it. Here we have no such question. The matter is governed by a Cuban statute which fixed the authority of the Cuban officers.
We have nothing whatever to do with the question as to whether or not larceny is an ambulatory offense, although I may say in passing that this court in a well-considered and exhaustive opinion held that it was not. Brown v. United States, 35 App. D. C. 548, Ann. Cas. 1912A, 388. No note is made of that decision in the opinion. How are the bench and bar to regard it in the future — as overruled or as still the law of the District? Be that as it may, even if the alleged larceny was committed on the ship in the harbor, the Cuban officer could not have searched the stateroom’ without permission. No exception is made by the Cuban statute.
It is hardly necessary to add that, in determining whether or not this case should have been withdrawn from the jury, we must construe the evidence in the light most favorable to the appellants. Thos. R. Riley Lumber Co. v. McHarg, 47 App. D. C. 389, 399, and cases there cited. Applying that rule, I am convinced that the court erred in peremptorily instructing the jury, and that a new trial should be ordered.
Hence I dissent.