Noack v. Zellerbach

GRAY, J., pro tem.

Plaintiff sued the three members of the Fish and Game Commission and three deputy fish and

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game commissioners to recover the value of salmon illegally confiscated and earnings lost because threats of arrest and further confiscations prevented him from following his occupation of deep-sea fishing. I. Zellerbach, one of the commissioners, and the three deputies answered. Plaintiff recovered judgment against I. Zellerbach for the value of the salmon, but was denied anything for loss of earnings. I. Zellerbach appeals from the first part of the judgment, and plaintiff appeals from its second part.

The primary question to be decided is whether or not the fish and game commissioner was liable for the acts of the deputy fish and game commissioners. Since a determination that he was not so liable will be decisive of both appeals, only those facts which bear upon this question need be stated. Neither appellant disputes that those facts, as found by the court, are supported by the unconflicting evidence. Hence the question resolves itself into a determination of the sufficiency of the findings to support the judgment.

The following facts appear from the findings: Plaintiff caught a cargo of salmon in the Pacific Ocean more than three miles from the California coast and delivered it at Point Beyes, within state territorial waters, to a captain of a boat for transportation to San Francisco. On its arrival at San Francisco two deputy fish and game commissioners, not named as defendants, seized the cargo of salmon, sold it, and paid the proceeds into the fish and game preservation fund of the state. At the time of its seizure, the cargo of salmon aggregated 2,091 pounds and had a market value of twenty-three cents a pound, or a total value of $480.70. Subsequently the three deputies named as defendants notified plaintiff that they would arrest him if he transported or possessed within any fish and game district during the closed season any fresh salmon,

wheresoever

caught. Plaintiff was intimidated by such threats and induced solely thereby refrained from deep-sea fishing for salmon during the four winter months. The value of the salmon that he would have caught based upon his previous experience, priced at the then market value, amounted to $5,520.