author: Watkins, J.

text:
    No. 11,611.
    John Whitcomb vs. Louisville & Nashville Railroad Company.
    Tlie.proof disclosing that a small boy had approached a train, just at the moment it was about to come to a halt, and was standing so close to one of the steps of the car that a forward movement of the train brought it in contact with a basket on his arm, pulled him down, and caused his leg to be run over and broken, a case of negligence is not made out against the railroad company.
    There being no contractual, or even tpiasi-contraetual relations between the parties, and the operatives and employes of the company being unaware of the presence of the boy, the occurrence must be regarded as an unfortunate accident for which the defendant is not liable in damages.
    APPEAL from the Civil District Court, Parish of Orleans. Rightor, J.

      Morris Marks and A. H. Leonard for Plaintiff, Appellant, cite 51 Mich. 601; 47 Am. Rep. 596; 13 Am. and Eng. R. R. Cases, 29; 64 Texas, 251; 53 Am. Rep. 756.

      Denegre & Denegre for Defendant, Appellee.
   The opinion of the court was delivered by

Watkins, J.

This action is for thirty-five thousand dollars damages sustained by the ten-year-old son of the petitioner, by reason of serious injuries inflicted upon him by the defendant, through the gross carelessness and neglect of its officers, agents and employés.

The case was submitted to and tried by the judge of the court below, and decided in favor of the defendant, and the plaintiff has appealed.

The plaintiff’s averments are, substantially, that on the 6th of September, 1892, one of the trains of the defendant, which was used and employed in operating what is commonly known as the Pontchartrain Railroad, between Milneburg and the city of New Orleans, “ stopped near the depot or station of said road, on Elysian Fields street of said city, near the river, (where) it was usual and customary, when the train was so stopped, to detach the locomotive from the cars, to run the locomotive some distance from there, and to leave (them) stationary for some time.” That John Whitcomb, Jr., who was crossing Elysian Fields street, on his way to his father’s place of residence, at or nearly about the time when the train was so-stopped — who knew the locomotive would, in the usual course of things, be detached from said cars, leaving them stationary, and who, therefore, did not and could not reasonably anticipate any danger to himself from so doing, stopped, as he was crossing said street on his way home, and stood near to one of the cars of said train. That the engineer, conductor and other officers and employés of said company intended and attempted to detach the said locomotive from said (train), and to leave the cars standing; but, through gross carelessness and neglect, failed to detach the locomotive from the cars, and, without whistling, ringing the bell, or giving any signal, put the locomotive in motion, which, moving off, carried with it, unexpectedly to the said John Whitcomb, Jr., the cars of said train, which (by) moving, struck him, the said John Whitcomb, Jr., and threw him to the ground, he falling so (that) the wheel of one of the cars ran over his leg, or struck same so as to break the bone thereof.”

The ' follows the general averment, that the injury thus inflicted occasioned the plaintiff’s son great pain and suffering, necessitated the employment of skilful physicians in order to save his life, and resulted in his being sent to the Charity Hospital, where his broken leg was first amputated just below the knee, and subsequently just above the knee — requiring constant and prolonged nursing, attention and care for a period of several months.

That, as the result of the injury inflicted, John Whitcomb, Jr., is permanently disabled, thus engendering great expense in his maintenance, and subsequent deprivation of his services to his parents, and on that account claim is made for five thousand dollars.

That John Whitcomb, Jr.’s mother — petitioner’s wife — was, as the result of said injuries to her son, subjected to great trouble, anxiety and mental suffering, and was thereby damaged in the sum of five thousand dollars.

That said John Whitcomb, Jr., has personally suffered damages to the extent of twenty-five thousand dollars.

This is the plaintiff’s case.

The defendant first excepted on the ground that the plaintiff’s petition disclosed no cause of action, but same having been overruled it filed an answer.

The answer is a general denial, coupled with an averment that <l if plaintiff’s (son) was injured, his injuries were the result of his own negligence and carelessness,” and that judgment should go against him.

We subjoin the “ statement of the case ” that is furnished to the court in plaintiff's brief, viz.:

“It is and always has been the custom of defendant company to run its trains from the lake to a point on Elysian Fields street, near the station or depot between Chartres and Royal streets, and them stop. The locomotive is immediately detached from the train of cars and moves off, leaving the cars stationary. This custom was well known to the child of plaintiff, who lived for some time near and in sight of the place where the train so stopped. On the 6th day of September, 1892, about 12:30 P. M., John Whitcomb, Jr., was sent by his mother to a grocery store, on the down town side of Elysian Fields street, to get some ham and some claret for his father’s lunch. The boy carrying a basket went to the grocery, got some ham, which he put in the basket, and a bottle of claret, and started back home carrying the basket on his right arm and the bottle in his. left hand. On his way back, after crossing Elysian Fields street he noticed that a train was coming in from the lake. His father had’ some days before told the boy that he would take him (the boy) to the lake fishing, and told the boy to find out from a fisherman named Manuel whether the fish were biting at the lake. As this was a matter in which Johnny, like all boys, felt a deep interest, he determined to see if Manuel was on that train, so he sat on a float standing in the street in front of a blacksmith’s shop and opposite the point where the train usually stopped, and about six feet from that pointy until the train arrived.

“ The train, composed of a locomotive and three cars, arrived and stopped. The boy, still carrying the basket on his right arm and the bottle of wine in his left hand, went from the float to the train,’'a distance of only six feet, and stood near the front platform of the last car, looking to see if Manuel was on the train, when suddenly and without any warning the car, with a sudden jerk, was put in motion, the step caught the basket on the boy’s arm and threw him do wn, so that the wheel of the last car ran over his leg, breaking and crushing the bone, and almost severing his foot from his leg.”

On this hypothesis counsel for plaintiff claim that “when the train stopped, the brakeman erroneously supposed that he had de-taehed the locomotive from the train and gave the signal to the engineer, who started the, locomotive, which, not being detached from the train, gave a sudden jerk to the cars, and pulled them along the track a distance of more than ten feet, when the locomo - tive was stopped again.”

This statement is, substantially, sworn to by the wounded boy, and his testimony is corroborated by three other of the plaintiff’s witnesses.

One of them says: “I was standing at the corner of Royal and Elysian Fields streets, and Johnny Whitcomb was standing right by the car, and the car made a start and knocked him down. Then after he fell I went over there to see what was the matter, and when they took him from under the ears he had his leg broken, and they took him across the street to the steps, and I went over there to look at him. This is all I know about it.”

John Whitcomb’s statement is as follows:

“ I was standing on Elysian Fields street. When the train had stopped I went there to look for Mr. Manuel, but the train started off and knocked me down.”

Again:

‘•I had been sitting on a float, and had just got down in front of the train after it stopped between Royal and Ohartres streets, and I was looking for a man named Manuel, because my father had told me to ask him if the fish were biting at the lake. The train had stopped then, but it started off again without giving any warning and knocked me down.”

Again:

I was sitting on a float and got off the float after the train had stopped. * * * It was right in front of the wheelwright’s shop on Elysian Fields street, between Ohartres and Royal streets. * * * About six feet from the train. * * * I was standing by the train after it had stopped, and when it started the step caught my basket and threw me down. * * * I was looking at the train; looking to see if Mr. Manuel was getting off the train. * * * lb was the first step of the last coach.”

Accepting this plain, intelligent statement of the injured boy, and it is evident to our minds that a case for damages is not made out against the defendant..

There were no contractual or even quasi-contractual relations between the injured boy and the defendant. Nor do we think it can be said that he was a trespasser on defendant’s track.

He had evidently awaited the arrival of the train for the purpose of seeing his friend, and when the train had arrived and temporarily halted, he dismounted from the float where he had been sitting and walked toward it for the purpose of seeing if he had come in from the Lake. In doing so he ventured too near the step, and by the sudden and unexpected forward movement of the train he was knocked down and his leg run over and crushed by one of the car wheels, the step having come in contact with his basket and pulled him down.

Under these circumstances the defendant was guilty of no fault, as the boy’s presence in the close vicinity of the ears was unknown to any of its employés.

The contention of the defendant’s counsel and the tendency of its proof is to the effect that in fact the train had not completely come to a halt at the time of the accident; and the declaration of the engineer operating the train is that the locomotive was clearly and completely uncoupled from the train after it came to a halt, and that there was no hitch or after-movement of the train for the cause assigned. ,

We regard the occurrence as an unfortunate accident, for which the defendant is not responsible.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11,722.
    State ex rel. Mrs. F. E. Noble et al. vs. Fred. D. King, Judge.
    Defendants presenting, in executory proceedings, a sworn answer, alleging a previous settlement of tbe mortgage indebtedness, and demanding an injunction restraining sale proceedings without bond, will not be entitled to that relief if there are exhibits accompanying same which make an exactly contrary showing.
    ^^PPLIOATION for a Writ of Certiorari.

      Thomas F. Maher for Relatrices.

      Charles J. Theard for Respondent.
   Application por Certiorari.

'The opinion of the court was delivered by

Watkins, J.

The relatrices are defendants in executory proceedings in the respondent’s court — Division “B” of the Civil District Court, parish of Orleans—entitled Southern Building and Loan Association vs. Mrs. F. E. Noble and Mrs. C. S. Garbanatti, wherein plaintiff is seeking the foreclosure of a vendor’s mortgage on defendant’s property.

The petitioners aver that they appeared and filed an answer in ¡said executory proceedings, in keeping with the terms and provisions of Code of Practice 739, and in compliance with the requirements of Code of Practice 738 applied to the. respondent for an injunction, without bond, to suspend further sale proceedings, but he ■disregarded the aforesaid answer, refused the injunction and allowed the proceedings to proceed to sale, and adjudication of the property to the plaintiff in the writ, in ’plain and manifest disregard of the petitioners’ legal rights in the premises.

Alleging that plaintiffs’ domicile is in Knoxville, Tenn., and without any domicile in the State of Louisiana at which the corporation ' can be sued, and that, consequently, petitioners are without an effective remedy by appeal, they allege that certiorari is their only available and effective remedy for a review of the alleged arbitrary exercise of authority on the part of the respondent.

Their prayer is for the production in this court of a certified copy of the original record, in the seizure and sale proceedings, for examination and review by this court, and that when examined and considered, we shall decree all proceeding had therein after the date of filing answer and request for an injunction absolutely null and void, and for further relief according to law.

The respondent returns that when first applied to in his chambers, by counsel for the defendants in the executory proceedings for an injunction, he readily consented to grant them the requisite order upon their furnishing bond, but he refused to give bond, demanding same without bond.

That immediately afterward he “ took up all the papers in the case and examined the entire record with the utmost care.” That he “sent for the plaintiffs’ attorney and heard his statement of facts.” That “ after the most careful examination of the papers,” he refused to grant an order of injunction without bond.

Instead of certified copies, the respondent has sent the original rrecords along with his return and they are now before us.

Even conceding that, under the facts thus furnished, certiorari is petitioners’ only remedy, they are without any claim to relief.

While it is true that petitioners, as defendants in the aforesaid ex-■ecutory proceedings, did comply with the requirements of Oode of Practice 738 and 739, by filing a sworn answer thereto to the effect that, in the months of February and April, 1894, they had “settled all claims of the Southern Loan and Building Association,” yet, in •confirmation of that statement, they annex to and make parts of their answer certain exhibits, which make an exactly contrary showing.

One of the exhibits is an agreement entered into between the loan -company and petitioners on the 15th of February, 1894, to the effect that, whereas the former holds a lien on the property of the latter •securing a debt of two thousand five hundred dollars with interest, fines, premiums, etc.; and that the petitioners were at the time in ¿arrears for more than six months in the payment of dues, interest -and premiums, etc.; and that, on that account, the property was • subject to be sold by said association; the company consented and agreed to extend the time of payment until the 20th of March, 1894.

The other exhibit is an act of sale at auction and an adjudication •of the property to the loan company.

If these exhibits prove settlement they also prove the indebtedness of petitioners, and a sale in default of their making paymetat at ■ end of the delay.

By the same instruments whereby proof is made of settlement, it is also made of the alienation of their property.

In either event their answer is altogether unavailing, and their aright to an order of injunction without bond is negatived.

The respondent, in our opinion, correctly refused to grant the preliminary order requested at his hands, and petitioners have not made good their claim to relief.

It is therefore ordered and decreed that the preliminary order be ¿set aside, and the petitioners’ demand be refused at their cost.

' Rehearing refused.


author: Nicholls, C. J. Miller, J.

text:
    No. 11,604.
    Mrs. Mary Corinne Warren Fleitas, Wife of Francois B. Fleitas, vs. Jules Meraux.
    The final judgment of a court of competent jurisdiction is res judicata between the parties, their privies, assigns or ayants causes.

    A mortgage containing the pact de non aliencmdo may be foreclosed against the mortgaged property without making a subsequent purchaser of the mortgaged property a party defendant.
    In a petitory action where the plaintiff’s title rests on a judgment, the defendant can attack the same. After a final judgment has been rendered, it is too late, in subsequent litigation between the parties to the original suit, to supply omissions of evidence and pleas which should [have been urged in the first instance.
    When a case is transferred to the United States courts from the State courts on the ground of non-residence in the State, it is accepted as it' stood on the docket of the court from which it was removed, and the Federal Court has jurisdiction to pass upon the issues raised in the pleadings.
    APPEAL from the Twenty-second District Court, Parish of St. Bernard. Livaudais, J.

    Statement of Facts.
    This is a petitory action in which plaintiff claims to be declared the owner of certain property described in her petition.
    The facts are:
    The plaintiff, when she married her husband, received from her parents the sum of twenty thousand dollars, by virtue of the marriage contract. Her legal mortgage was placed on record in the parish of St. Bernard. The husband went into bankruptcy in 1876, but did not place the wife’s debt on his schedule. On the 25th April, 1877, the husband obtained his discharge from the bankrupt court for the Eastern District of Louisiana. On the same day the legal mortgage of the wife was canceled on the records of the mortgage office in St. Bernard parish by virtue of a judgment of the United States Circuit Court. Two days after his discharge in bankruptcy F. B. Fleitas, the husband, purchased the Corinne plantation, situated in the parish of St. Bernard, and some five years after this purchase he acquired the Myrtle Grove plantation in the same parish. These two plantations were mortgaged by the husband to Gilbert M. Richardson for sixty-three thousand dollars, and the mortgage was duly recorded in the parish of St. Bernard on the 29th day of May, 1884.

      After the execution of this mortgage the plaintiff’s wife instituted, suit against her husband for separation of property, and a dissolution of the community. In this suit there was judgment in her favor on the 10th September, 1887, and also the recognition of her claim and legal mortgage for twenty thousand dollars. Under her judgment ■ the two plantations were seized and sold, and the wife became the purchaser. On the 30th December following, the plaintiff instituted a petitory action against W. F. Mellen, Gilbert M. Richardson et als. for the plantations, and this suit was accompanied by an injunction restraining Richardson ftom executing his mortgage on the plantations. This suit was removed by defendants to the United States Circuit Oourt for the Eastern District of Louisiana. In that suit, the wife bases her demand upon the judgment in her favor, in the suit against her husband for separation of property, and reiterates the allegations therein made. The validity of her legal mortgage is asserted, and the discharge of the bankrupt husband from his indebtedness to her denied on the grounds that she was not separate in property from her husband at the time the assignment in bankruptcy was made; that the recordation of her mortgage operated not in prsesenti but in futuro, and that said mortgaged debt was fiduciary in character, and not provable in bankruptcy. That she had never given her consent to the erasure and cancellation of her legal mortgage. The prayer of her petition was to have full and complete title to the two plantations purchased by her in satisfaction of,her legal mortgage, and for the perpetuation of the injunction.
    The defendant’s answer denied the existence of the claim and legal mortgage of the wife, averring their cancellation by the discharge in bankruptcy, charged the judgment of separation with being fraudulent and collusive, and alleged the mortgage of Gilbert M. Richardson to be the first mortgage on the property, unaffected by the sheriff’s sale to the plaintiff.
    The decree of the United States Court rendered June 12, 1889, dismissed the suit of the plaintiff, Mrs. Fleitas, and on appeal to the United States Supreme Oourt this decree was affirmed. • 147 United States Reports, 550.
    On the 29th June, 1888, Gilbert M. Richardson obtained from the United States Oourt executory process on his mortgage on the two plantations. This proceeding was delayed by a suspensive appeal from the order of seizure and sale by the husband, F. B. Fleitas, and Mrs. Fleitas’ injunction. After the dismissal of the appeal of F. B. Fleitas and Mrs. Fleitas’ suit and injunction, the executory proceeding of Gilbert M. Richardson was enforced and Albert L. Richardson ■became the purchaser of the two plantations. Albert L. Richardson sold a part of one the plantations, the Myrtle Grove, to the defendant herein. It is against this defendant that the present suit is ■directed. Mrs. Fleitas alleges that the tract of land conveyed to him was a part of the Myrtle Grove plantation, to which she acquired title by virtue of her purchase under the judgment recognizing her legal mortgage. The defences urged are substantially the same as in the suit of Mrs. Fleitas vs. W. F. Mellen, Gilbert M. Richardson «ef als., and a demand in reconvention for the quieting of defendant’s title, the annulling of plaintiff’s deed and the erasure from the records of said deed. On the day of trial defendant filed his plea of res adjudicata.

    The defendant acquired title to the property after decree was rendered in the suit of Mrs. Fleitas vs. Gilbert M. Richardson et als. in the United States Circuit and Supreme Courts.

      Hewry J. Rhodes for Plaintiff and Appellee; Harry L. Edwards of Counsel:
    The bankrupt act of 1867 held as sacred all liens and mortgages. It never attempted to discharge them, but recognized that their effect and operation were controlled entirely by the State or local law.
    The mortgage of Mrs. Fleitas could only be enforced at the dissolution of the marriage, or by a suit for a separation of property in accordance with Arts. C. C. 2367 (2346), 2368 (2347) and 2426 (2399).
    Bo long fis it remains wholly uncertain whether a contract or engagement, or mortgage, will ever give rise to an actual duty or liability, and there is no means of removing the uncertainty by calculation, such contract or engagement, or mortgage, is not provable under the act. Riggin vs. Magwire, 15 Wall. 549.

      Thomas J. Semmes and Sambola & Ducros for Defendant and Appellant:

      A mortgage with the pact de non alienando may be foreclosed against the debtor and mortgaged property, without making any subsequent purchaser of the mortgagor a party defendant to the ex-ecutory process, especially when this purchaser’s title has been judicially declared a nullity, 15 La. 269; 10 R. 54; 4 An. 325; 23 An. 340; 26 An. 618; 42 An. 123.
    A discharge in bankruptcy, under the late act of Congress, released the bankrupt from his wife’s paraphernal claim and legal mortgage existing at the time of his adjudication in bankruptcy. U. S. R. S., Secs. 5114, 5115, 5117, 5119; R. C. C. 2384, 2387, 2391, 2425; C. P. 105; 8 N. S. 230; 10 La. 139; 20 An. 302; 35 An. 809; 39 An. 384; R. C. C. 2446; 30 An. 750; 33 An. 534; 34 An. 995; 25 An. 289; 11 R. 244, 55; R. C. 0. 3466; 1 An. 331; 2 An. 928; 23 An. 456; 147 U. S. 550.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant had the unquestionable right to avail himself of the plea of res judicata as the successor of the parties to the original suit; he is to be considered as being a party to said suit. Delabigarre vs. Second Municipality of New Orleans, 3 An. 230.

In the present suit, the plaintiff bases her title to the property on the judgment in her favor in her suit for separation of property. In that suit the validity of her claim depended upon the existence of her legal mortgage and claim against her husband. In her suit against Gilbert M. Richardson et als., which was removed to the Federal Court, the issues are identical as in the present one.

The plaintiff is the same; there is the same defendant as the successor of the party defendant; the matter in dispute or the thing claimed is the same, a part of the plantation, the title to which was at issue in that suit, and the cause of action is identical, the title to the property resting upon the judgment of Mrs. Fleitas against her husband, rendered by the District Court of St. Bernard-parish. The court which rendered the decree in the suit of Mrs. Fleitas vs. Richardson et als. was one of competent jurisdiction. There is every essential present to warrant the sustaining of the plea of res judicata.

With great earnestness, the plaintiff’s counsel contends that the plea of res judicata can not be sustained, because the United States Oourt had no jurisdiction to annul or pass upon the judgment rendered by the District Court of St. Bernard parish. But it must be understood that Mrs. Fleitas went into the District Oourt in a petitory action, and her title to the property was based upon a decree under which she purchased the property in controversy. The sole issue, in fact, tendered by her was the validity of that judgment. The defendant had no other course to pursue than to attack it, and preserve both possession and title to the property. The fact that this judgment was, on removal to the United States Oourt, subject to be attacked, was no bar to the removal of the cause and a divestiture of Federal jurisdiction. In the suit she openedtheinvestigationastothe validity of the judgment, as she distinctly averred that her claim against her husband and her legal mortgage had not been destroyed by her husband’s discharge in bankruptcy. Whether it had been placed on the schedule or not, makes no difference in this controversy. The validity of the claim was tendered as an important and vital issue in her suit, and the decree of the United States Oourt was that it had no existence after the husband’s discharge. In her petition urging the validity of the claim, no reference was made to its absence from the schedule surrendered by the husband in bankruptcy. After a final judgment has been rendered on issues tendered by the parties, it is too late in subsequent litigation to supply omissions of evidence and-pleas which should have been urged in the first instance.

When the case was transferred to the United States Oourt it accepted it as it stood on the docket of the court from which it was transferred, and it had jurisdiction to pass upon all the issues raised in the pleadings. The District Oourt of St. Bernard undoubtedly had the right to pass upon the validity of the judgment upon which the plaintiff rested her title, and the Federal Court had the same jurisdiction. Consolidated Wyoming Gold Mining Company vs. Champion Mining Company, 62 Fed. Rep. 945.

The State court having previously passed upon the same issues will not divest the jurisdiction of the Federal Court. State of South Carolina vs. Port Royal & A. Railway Company, 56 Fed. Rep. 333.

The mortgage of Gilbert M. Richardson stipulated the pact de non alienando. It was not required therefore that Mrs. Fleitas should have been made a party to the executory proceedings against her . husband. Succession of Adam Thomson, 42 An. 118.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that plaintiff’s suit be dismissed. It is further ordered amd decreed that there be judgment in favor of the defendant, quieting his possession to the property in controversy, and that there be erased and canceled from the books of the office of the clerk and ex-officio Recorder of Mortgages, the sheriff’s deed to plaintiff of the two plantations referred to herein, so far as they affect defendant’s title, plaintiff to pay all costs.

On Rehearing.

Miller, J.

The earnestness of the argument for the rehearing has prompted us to re-examine this case, with the result of confirming our previous conclusions. The judgments of the Oireuit Court and of the Supreme Court of the United States, in the suit of the present plaintiff against Gilbert M. Richardson, is, we think, decisive of the controversy, and, irrespective of these decisions, in our view the plaintiff could not sustain her suit.

Mrs. Fleitas was a creditor of her husband for funds received by him. Subsequent to the creation of the debt he obtained a discharge in bankruptcy under the act of Congress. Her debt was secured by mortgage. But the discharge in bankruptcy discharged debt and mortgage. The discharge extinguished the debt, and the mortgage disappeared with it. We think this conclusion must be accepted or fixed jurisprudence denied. Revised Statutes U. S., See. 5067. As opposed to this view the plaintiff relies on the decision in 27 An 542, in the case of Heard vs. Patton, which holds that though the personal liability of the debtor is discharged by the bankruptcy, the mortgage subsists, and will attach to the property subsequently acquired by the debtor. This decision supports the contention that the mortgage, the mere accessory, survives the principal debt, an impossibility under the text of the Code, Art. 3285. Of course if the debt is not certain, the discharge will not affect it, because the act refers only to the debts provable. Riggin vs. Magwire, 15 Wall. 549. Mrs. Fleilas’ debt was fixed when the discharge was granted. Nor is the discharge less effective because not put on the debtor’s schedule. It is enough it was provable, and not fiduciary in its character or due to the United States. See notes of decisions in Bump on Bankruptcy, under Sec. 5119, originally Sec. 5097. United States vs. Herron, 20 Wall. 251; Rogers vs. Insurance Company, 1 An. 161; Fleitas vs. Richardson, 147 U. S. 550.

•After the discharge the debtor acquired the property involved in this suit and mortgaged it to Richardson. The mortgage was given and accepted on the theory that the mortgage of Mrs. Fleitas was extinguished, and that theory, in our view, was manifestly correct. Thereafter Mrs. Fleitas recovered a judgment in the State court against her husband for the debt and mortgage, in her favor existing when the discharge was granted. Her proposition is that her debt and mortgage, notwithstanding the bankruptcy proceedingand discharge, was paramount to the mortgage of Richardson. Under' her judgment she seized, sold and bought at the sheriff’s sale the property mortgaged to Richardson, his mortgage then confronting her on the record. She then brought suit against him, averring her title under her mortgage, treating his mortgage as a cloud, alleging it did not affect the property. She prayed relief accordingly, and that Richardson be enjoined from asserting any right under his. mortgage. The suit was removed to the Circuit Court, and Richardson also issued a writ of seizure and sale from that court. The decision of the Circuit Court was against Mrs. Fleitas in her suit, and on her appeal from that decision, as well as from the order of seizure and sale, the decision of the Supreme Court of the United States was adverse to her. Thereupon Richardson seized and sold the property under his writ maintained by the Circuit and Supreme Court. Richardson, buying under his writ, sold part of the property to Meraux, the present defendant. This suit is against him by Mrs. Fleitas for the property he holds under the process and sale thereunder of the Circuit Court.

It often happens in the petitory action that both parties claim under judicial sales. Plaintiff claims under the judgment and execution sale of the State court, and defendant under the decision and writ of the Federal Court based on his mortgage. Richardson is no' party to plaintiff’s judgment, and it is beyond dispute that judgment does not bind him. As to debt and mortgage it is at best prima facie evidence against Richardson. 1 Hennen’s Digest, 588, No. 2. On the other hand plaintiff is a party to Richardson’s judgment and bound by it. But even if Richardson’s judgment was not conclusive on the plaintiff, the court, to determine the effect of conflicting judgments when each party relies on judgments against the common, debtor, must look to the basis on which each rests. That on Mrs. Fleitas we find is on a debt and mortgage extinguished by the discharge in bankruptcy. True, the debtor could revive the debt by waiver of his discharge. Bump on Bankruptcy, Sec. 5067. But no waiver or promise would revive the mortgage, least of all to the prejudice of the mortgage given by the debtor subsequent to the discharge. The creditor taking that mortgage acquired his rights under the faith of the extinction declared by law, of all debts and mortgages against the debtor surrendering his property under the bankrupt act. No waiver or promise of the bankrupt to a creditor whose debt was canceled by the surrender could destroy or affect the right of the subsequent mortgage creditor holding under the protection the law confers on those who, subsequent to the discharge in bankruptcy, acquire mortgages on his property. That protection is the extinguishment by law of all debts and mortgages against the debtor at the date of his discharge. Looking then to the basis of Mrs. Fleitas’ judgment, on which she asserts title in her petitory suit against defendant, we reach the conclusion it is of no avail against Richardson’s title, under which defendant holds, and the protection of which extends to him. Code of Practice, 711, 712, 713; Justice vs. Kerr, 8 An. 462; Delabigarre vs. Municipality, 3 An. 230; Pothier on Sale, 62; 1 Pothier on Obligations, Evans’ Edition, p. 588.

We think, too, the exception of res judicata should have been sustained. The suit of Mrs. Fleitas against Richardson presented the issue of the effect of her mortgage and judgment in sustaining the title assailed by her under the execution sale. Her allegations were the validity of her debt and mortgage against her husband, and of her title based on that judgment; that the Richardson mortgage had no effect against her and should be erased from the record. The relief she asked was commensurate with these allegations. She specifically prayed that Richardson be forever enjoined from asserting any rights under his mortgage. If the suit had been decided by the State court against her on these issues, there can be no doubt she would have been concluded from assailing the Richardson mortgage and title based on it. On his application the suit was remanded to' the Circuit Court, it involved the question of the effect of the Federal Bankrupt Act in respect to the Fleitas debt and mortgage. If extinguished by that act, neither debt or mortgage could affect Richardson, claiming a right under that act. On that ground the suit was removable. He was a citizen of another State; that furnished another ground for removal. Acts of Congress, 3d of March, 1875; of 3d of March, 1887; of 13th August, 1888; 18 Statutes at Large, 470; 24 Statutes at Large, 552; 25 Statutes, 434; Starin vs. New York, 115 U. S. 248; Germania Company vs. Wisconsin, 119 U. S. 473. There was also the writ of seizure and sale obtained by Richardson from the United States Circuit Court. Thus that court was clothed by the removed suit, and the seizure and sale it decreed, with jurisdiction of the controversy with respect to Mrs. Fleitas’ rights under her mortgage judgment and title, and as to Richardson’s rights under his mortgage. The jurisdiction was complete as to subject matter and as to the parties. It is supposed the Federal courts could not pass-on any right of Mrs. Fleitas against her husband and his property for restitution of her funds, conferred by the laws of Louisiana. The answer is: The Federal courts are authorized to determine questions of that nature; that is, to determine the question as to any right claimed under the laws of the United States, even where that right is supposed to conflict with State legislation. Next, it is supposed the Federal courts could exert no jurisdiction with respect to Mrs. Fleitas’ judgment, because that of a State court. It is claimed her judgment has been annulled, not within the competency of any court, except that which, pronounced the judgment. Code of Practice, Art. 608; 1 Hennen’s Digest, 746. The judgment has not been annulled. Its effect as to Richardson has been determined. Besides, the jurisdiction to annul judgments conferred by the Oode of Practice has no kind of application to the Federal courts deriving their jurisdiction from the Constitution of the United States. Dupuy vs. Bemiss, 2 An. 509; Stockton vs. Stanbrough, 3 An. 390. The mere fact that Mrs. Fleitas’ judgment was rendered by the State court, therefore, had no influence on the question of jurisdiction. If the judgment was binding on Richardson the Circuit Oould would undoubtedly have so held. But Richardson was no party to it. It was binding on him neither in the Federal or-State court, or in any form of controversy. So, too, the Circuit Court had the power to issue the writ of seizure and sale under the Richardson mortgage, he being a citizen of another State, and from that order, as stated, Mrs. Fleitas appealed to the United States Supreme Court. The decision of the Circuit Court in the removed suit being adverse to Mrs. Fleitas, and carried by appeal to the Supreme Court, that court was clothed with jurisdiction to determine the entire controversy between these parties. That adjudication is: That Mrs. Fleitas has no debt or mortgage and that plaintiff’s mortgage exists in full force with the right to enforce it. Fleitas vs. Richardson, 147 U. S. 550-564. The contention that this adjudication is not expressed by the decree dismissing the bill is a mistake. Dismissing the bill is a determination -of the merits unless made “without prejudice.” Story’s Eq. Plead., See. —; Durant vs. Essex Company, 7 Wall. 107; Case vs. Beauregard, 101 U. S. 688; City Bank vs. Walden, 1 An. 47. The defendant in this case, holding under the sale under Richardson’s mortgage and writ, is entitled to invoke this final adjudication adverse to the plaintiff in this case, also plaintiff in the suits in the Federal Court, asserting here in effect the same right she failed to uphold in the Federal Court. There is the identity of the parties and the identity ■of the cause of action the essentials of the res judicata. We hold the .judgment in Fleitas vs. Richardson concludes plaintiff from asserting the demand in this suit. C. C., Art. 2286; 1 Pothier on Obligations, 537, 538; C. P. 711; Judice vs. Kerr, 8 An. 462; Williams vs. Close, 12 An. 873.

The contention that defendant acquired title under writ directed against her husband without notice to Mrs. Fleitas has no merit. The mortgage contained the pact de non alienando. As to Richardson, no conveyance by Fleitas or alienation under execution against him could affect the mortgage creditor with the non-alienation clause in his act. 1 Hennen’s Digest, 955, No. 1.

The rehearing is refused.


author: McEnery, J.

text:
    No. 11,561.
    City of New Orleans vs. Board of Control New Basin Canal.
    The city of New Orleans having, during the existence of the New Basin and Shell Boad Corporation, drained from the Melpomene Canal into the New Basin, at a designated point, and this drainage having been continued by the Legislature on the State’s acquiring said canal, the Board of Control of said canal has no authority to close the culvert through which the drainage entered the canal. Having closed the culvert the Board of Control must offer equal facilities for drainage into the canal. The State has the power to prevent any drainage into the canal, and the Board of Control can restore the old culvert. Until it does so, it can not interfere ■with the tUainage into the canal through other practical channels, particularly ■where the board has, to a certain extent, designated: this other practical channel.
    PPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      E. A. O’ Sullivan, City Attorney, for Plaintiff and Appellant.

      M. J. Cunningham, Attorney General (Richard Lyons, of Counsel),. for Defendant, Appellee.
   The opinion of the court was delivered by

McEnery, J.

This is a proceeding by injunction by the plaintiff to prevent the defendant from closing an outlet for drainage waters from the Melpomene Canal into the New Basin Canal.

The defendant board pleads a general denial, and especially “avers that the cut, the closing of which is sought to be enjoined, was made during the year 1890 by'Oharles Louque with permission of the board, of Control of the New Basin and Shell Road in order that said Louque could perform a contract that he had with the city of New Orleans to dredge the Melpomene tail-race, by transporting the dredgeboat of the said Louque from the New Basin Canal into the tail-race; that said Louque agreed at the time this permission was granted to close the gap or cut at the termination of his contract. It is further alleged that the storm waters and drainage through said cut deposits a sediment in the canal, making the navigation of the same difficult and dangerous without continuous dredging, and that the drainage into the canal creates noxious gases and vapors, dangerous to persons employed in business on the canal, and to the residents in this vicinity. Assuming the character of plaintiff in reconvention, the defendant alleges that on the 10th day of May, 1893, the night before the issuance of the injunction, and within a few days thereafter, the city of New Orleans, through its officers, maliciously destroyed the work of the defendant board which closed the gap and they ask for a dissolution of the injunction and one hundred and twenty dollars damages, the value of said work. There was judgment in favor of defendant, from which the city of New Orleans appealed.

By Act No. 18 of 1831 there was created a company for the purpose of constructing the New Basin Canal. By Sec. 26 of the act it was provided that after the expiration of thirty-five years after the passage of the act the property in the said canal and road, which was also to be constructed, with all the land on either side, which it had a right to acquire, and which it had acquired by forced sale to the extent of one hundred twenty-five feet, on each side of the canal, together with the machines, utensils, toll houses, etc., should belong to the State of Louisiana. The canal, with all its property, at the expiration of said thirty years was to-absolutely vest in the State.

Almost contemporaneously with the construction of the canal the city of New Orleans constructed the Melpomene drainage wheel at the junction of Melpomene and Claiborne streets. The object of this drainage machine was to lift the water over the levee on the banks of the canal into a tail-race, from which the water entered the canal through a culvert built by the city.

On the 5th March, 1866, in pursuance of the act of incorporation of March 5, 1831, the canal and its property reverted to the State.

In anticipation of this reversion the General Assembly enacted a law ordering the canal to be leased. In this act it was provided that in the lease there should' be a condition inserted that the less e shall permit the culverts now receiving the waters of the Second Drainage District to remain open. It is needless to say that the city of New Orleans during the existence of the corporation could acquire by prescription no 'rights adverse to the State to which the property was to revert. The State is paramount in its authority over the canal, and no drainage could be permitted in the canal against its will. But the Act No. 12 of 1866 gave permission to the city to drain into the canal at the point where the culvert was first placed. Since the passage of that act there has been no withdrawal of its consent. Therefore the city has the undoubted right to drain into the canal at the point designated until the State shall, by legislative enactment, withhold its permission.

In 1890 the Board of Control gave permission to Ohas. Louque to make an opening some six hundred feet from the original culvert built by and used by the city. From this opening Louque dug a short canal to the tail-race, and the drainage of the city passed into the canal through the opening made by Louque.

In 1892 the. Board of Control granted permission to McEween & Co., or their representatives, to cut a channel from the New Basin, beginning on the west side of Dublin street and New Basin, in the Seventh District, and running through the Shell Road into blocks 643 and 620; said channel to be at least thirty-five feet wide and as deep as the New Basin, if said McEween so desires; also unto said Mc-Eween, his heirs or representatives, the privilege to dredge, widen and deepen to a width of sixty-five feet, and as deep as the New Basin, beginning at Dublin street and running west to Madison street, being about thirty-five feet on New Basin property, near the old tail-race, and about thirty feet in block 643, now used by said McEween the old tail-race being unfit for use in present condition. The distance of this ditch is about three hundred and fifty-eight feet long. Said McEween & Co., or their heirs or assigns, agree to build a good bridge, full width of Shell Road, across said ditch or channel which they cut, and to maintain and keep in perfect order so long as the said McEween & Co., or their representatives, desire the privileges above granted, which are made to continue so long as said parties or their heirs may desire.

There shall not be any charges for the privileges granted other than the regular toll charged on logs turned into the canal. The old tail-race must be filled up on Dublin street, so that the crossing on Dublin street can be used for a shell road, making a good street, one hundred feet wide, thus taking in fifty feet for Dublin street drainage canal and fifty feet for Dublin street proper.

We have copied this grant in full. The object of the grant was for the purpose of making a log pond in which to place the logs for McEween & Co., who are or were saw-mill men.

Under this grant or privilege to McEween & Co., the original outlet into the canal was closed. It seems that it was the intention of the Board of Control, in making this grant, to offer the drainage through the Louque cut in lieu of that through the old culvert. But whether this was the intention or not, it is certain the board, in the face of Art. 12 of 1866, Sec. 2, had no right to close the culverts permitted to be continued by said act. And having closed this outlet the board was bound to offer equal facilities to the city to reach the canal. The drainage through the Louque gap was the only practical drainage, and, as stated, we are inclined to thq opinion that the board, in the McEween grant, intended to offer this instead of the old culvert. We do not intend to convey the idea that the present drainage through the Louque gap is permanent. It is within legislative discretion to stop all drainage into the canal. It is within the power of the defendant board to restore the drainage to its old and original channel; until this is done the city can not be restrained from using the present outlet through the Louque gap.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the injunction herein be perpetuated until the Board of Control restores the original outlet into the canal, as fixed and established prior to the opening of the Louque gap; and it is further ordered that the reconventional demand of defendant be rejected, defendant to pay costs.

On Application for Rehearing.

We have attentively considered the application for a rehearing in this case. The only question presented which we think requires attention is whether Act 51 of 1894 repealed the permission granted to the city to drain into the canal by Act 12 of 1866. A careful perusal of the former act does not impress us with the belief that it repealed the latter act. There is no mention made of the withdrawal of the permission granted by Act 12 of 1866. Nor do we think there is any repeal by implication.

The two acts can stand together, and we are of the opinion that Act 51 of 1894 intended only to forbid the city from any further drainage into the canal. We are disposed to treat the matter conservatively, as the Legislature did not speak in positive terms as to the withdrawal of the privilege previously granted to the city. It is, as stated in the opinion, within the power of the State to withdraw the privilege at any time, and we presume that if the State intended to withdraw it would have said so in more positive language than is found in the statute. It may be unnecessary to state it, but to avoid any misunderstanding as to the issues involved and the points decided, we will say that the city of New Orleans must confine itself to the amount of drainage permitted by Act 12 of 1866. She has no right to increase it, and must confine the drainage to the point originally granted so soon as the Board of Control affords the necessary facilities.

Rehearing refused.


text:
    No. 11,681.
    J. C. Wimbish vs. W. E. Hamilton.
    An amended answer which sets out the facts relied upon as justification is allowable in an action for libel.
    When the judge is requested to charge the jury in a series of instructions, tendered in globo, as one charge, and he declines to give the instructions, the party tendering them should designate the particular instruction rejected to which he excepts. When the charges so tendered are mere abstract propositions of law, without any particular bearing on the case, and some more specifically direct the attention of the jury to particular facts, and others embrace matters fully covered in the general charge, the trial judge ruled properly in rejecting the entire charge so requested.
    When the occasion exists, and the allegations are pertinent to the issues presented, no libel is charged. But if the occasion does not exist, and the allegations constituting the alleged libel are gratuitous defamation of plaintiff’s character, responsibility ensues. Belief from information excuses no one for libeling another.
    When the facts furnished by a client to his attorney are misleading and defamatory of character, and their incorporation into the petition are foreign to the object and purposes of the suit, the client is responsible in damages.
    When it appears that the libel complained of was not committed with evil intent, malice may be inferred from the nature of the charge made.
    Members of a city council are not subject to suit in their official or individual eapacity, because they voted to repeal an ordinance conferring certain rights upon a corporation, when the repealing ordinance is based upon the fact that the corporation had failed to comply with the conditions imposed upon it.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Alexander & Blanchard and Leonard & Thatcher for Plaintiff and Appellant.

      Wise & Herndon for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

This case comes before us a second time on appeal. The first appeal was taken by the plaintiff from the dismissal of the suit by the District Court on sustaining an exception filed by the defendant that the petition disclosed no cause of action. At our session in Shreveport in 1893 we reversed the judgment, and remanded the case for further proceedings. It is no w on an appeal by the plaiDtiff from a judgment adverse to him, based on the verdict of a jury. The pleadings of the plaintiff are similar to those of Randall, in Randall vs. Hamilton, 45 An. 1184. It will suffice for explanation here to say, that the plaintiff sues the defendant for damages for libel and slander, and for a vexatious suit brought against him. The libel is alleged to have been contained in the allegations of the petition in the suit of “ The Shreveport Electric Railway and Motive Power Company vs. The City of Shreveport et als.,” on the docket of the District Court of Caddo, in which petition the company was declared to be a corporation of the State of Louisiana, and Hamilton as appearing for it, as its president, charging Wimbish, who was made a party to the suit, with acts of fraud and wrong-doing, as a member of the Common Council of the city of Shreveport, in assisting in bringing about the enactment of a certain ordinance prejudicial to what was claimed to be the rights of the company. The slander is ' laid upon the alleged oral repetitions of these same charges. The plaintiff alleges that the suit was not only vexatious and malicious, but that it was a sham and fictitious one, as the company had really no corporate existence, and Hamilton could not be and was not its president, and therefore there was no party plaintiff. That the averments made in the petition were malicious, false and without probable cause, and so known to be by Hamilton. That Wimbish, as a member of the Common Council, was not liable to any action, such as was brought against him; that the suit against him was wantonly brought, was an outrage upon his rights, and instituted in bad faith in order to coerce and control the subsequent action of the Common Council.

The pleadings of plaintiff in the present case, and that of the plaintiff in the suit of the Shreveport Electric Railway and Motive Power Company against Wimbish, can be more fully seen by reference to our opinion in Randall vs. Hamilton, 45 An. 1184, already alluded to.

Upon the remanding of the cause to the District Court, defendant filed an answer in which, after pleading the general issue, he averred that the suit of the Shreveport Electric and Motive Power Company vs. The City of Shreveport et al. was brought by him upon the advice of experienced counsel after fully placing before his counsel all the facts as they existe'd, or were believed to exist by -respondent.

That all the allegations made in said suit were made in good faith, believing them to be true, and without any malice against plaintiff.

That as president of said company he had the right to bring said suit to protect the rights and interest of said company; that plaintiff and his co-defendants in said suit were properly made parties defendant therein, and the allegations in said suit respecting plaintiff and his co-defendants were respectful, proper and pertinent, and are substantially true.

That if in any respect not true-he had reasonable grounds to believe them true, and did so believe at the time they were made and sworn to.

That such allegations were made to protect his legal rights and not to injure or annoy plaintiff.

That the said allegations being pertinent and relevant to the suit in which they were made, they are in the nature of privileged communications to the court, made in the course of judicial proceedings in the prosecution of legal rights, and respondent is therefore exempt from prosecution, either civilly or criminally therefor.

Plaintiff averring that the answer was evasive, equivocal, inconsistent, sets up four defences: the general issue, justification, confession under mitigating circumstances and privileged communications, and that defendant should be confined to one of three de-fences, viz.: the general issue, justification or confession under mitigating circumstances, moved the court to order him to elect one of the three, and that all other defences be stricken from the answer. This motion being sustained, defendant filed a second answer, in which he admitted making the allegations complained of in the suit of the Shreveport Electric Railway and Motive Power Company against the City of Shreveport et al., but averred that said suit was brought by him as president of the company, upon the advice of experienced counsel, after fully placing before such counsel the facts as he understood them at the time. That all the allegations in the petition were made in good faith and without malice. That as president of said company he had a legal right to bring said suit (No. 4001) to protect the rights of said company; that plaintiff and his co-defendants in said suit were properly made parties defendant therein; that the allegations respecting plaintiff and his co-defeDd-ants were respectful, proper and pertinent, and he had reasonable and probable grounds for making them, believing them to be true.

That said allegations being relevant and pertinent to the issues involved in said suit are privileged communications to the court, made in the course of judicial proceedings in the prosecution of a legal right, and respondent is protected from prosecution, either civilly or criminally therefor.

He denies that he has verbally reiterated, made and published the charges made in said allegations at various times after the institution of said suit with design to injure plaintiff; avers that on several occasions, and to several persons in response to questions from them, he made a statement and explanation of the way the suit No. 4001 came to be brought, but that such statements were made without malice and without intent or design to injure plaintiff or his co-defendants.

He denies that in said suit No. 4001 he made*'plaintiff and his associates parties defendant, wantonly, maliciously or for the purpose of thereby influencing their official action in his interest and that of the Shreveport Railway and Land Improvement Company.

Finally he denies that suit No. 4001 was brought for the purpose and with the intention of destroying the value of the Shreveport. City Railroad and forcing its sale to the Shreveport Railway and Land Improvement Company.

This answer was permitted by the court to be filed over the objection of the plaintiff “thatunder the order of the court directing an election, defendant had no right to do anything more than indicate the defence which he elected to stand on, and that the paper presented on behalf of the defendant was an amended answer, and came too late, the cause having been previously set for trial.” To the action of the court overruling his objections plaintiff reserved a bill of exceptions.

In effect, the amended answer was a plea in justification, and the averments complained of were only the facts upon which this plea was founded. This is allowed; otherwise the defendant might be precluded from introducing any evidence as to the facts which would justify the plea.

The case was tried by a jury, which rendered a verdict in favor of the defendant. Judgment having been rendered in conformity to the verdict, plaintiff appealed.

The District Judge having stated to the jury the pleadings in the case, instructed them as follows:

“The issues are thus made up between these parties, and those issues are:

“ 1. Was the libel published in a judicial proceeding?

“ The defendant admits that it was, but avers that it was pertinent to the occasion, and made without malice and with probable cause.

“Upon the first cause of inquiry, the court instructs you that the allegations were pertinent and relevant to the issues involved in suit No. 4001. In this class of privileged communications, the occasion is an absolute privilege, and the only question is whether the oceasicm exists, and whether the matter complained of was pertinent to the-.occasion.

•“ 2. Was the alleged' libel published without malice and with probable cause?

“ This is a question of fact which you alone are to- decide- upon the-evidence in the record, and upon this point the-court can-not express an opinion. Probable cause does not depend' upon the- actual .state of the case, but upon the honest belief of the party making the-^allegations or accusations. He may be mistaken,, but did he have-reasonable grounds for believing the allegations or accusations, were-‘true? If you find, therefore, the defendant made these communica■tions with an honest but mistaken belief that they were true, and -free from malice or ill will, then your verdict must be- for defendant..

“3. Privileged communications generally protect the party who-makes them, but they do not do so where the proof satisfies you that defendant was actuated by motives of personal spite and ill will,, independent of the occasion in which the communications were- made-If therefore you find that the defendant was actuated by motives of spite and ill will, independent of the occasion on which the libelous communication was made, then he is not protected by the privileged character of the communication, and your verdict, must be against him.

“ This is the point to which I wish to direct your special attention, for it is not every species of privileged communication whieh protects him who makes it. It must be based upon a probable- cause and be freed from malice or spite outside of the occasion on, which it is made. Wherever these things are shown, then the publication is protected by its privileged character and the verdict of the jux-y must be in favor of defendant.

“4. In conclusion I have only to say that in regard to the damages claimed for libel and slander, there is no rule of law which controls the jury in awarding them. Upon this point is it sufficient to say the whole matter is left to the discretion of the jury, who may allow damages, though none have been proved.”

Plaintiff unsuccessfully excepted to the first three of the charges given to the jury, and reserved bills in support of his objections.

Plaintiff presented to the judge thirty-four special charges, with the request that they be given to the jury. The bill of exceptions reserved to the action of the court, upon this request, after reciting all the charges asked, states: “ which charges the court refused to give, and refused to give any one of them, to which plaintiff, by his counsel, in due time excepted, and reserved and tendered his bill.”

The special charges seem to have been presented altogether, and though counsel states that the judge refused to give all and any of them, we do not understand that there was any special distinct offer ■of each separate charge, nor a separate distinct refusal to give any particular one of the number, nor any separate bill, reserved to such a special refusal. The refusal seems to have been given to the charges as a whole, and the bill to be reserved to that action. As a matter of course the refusal to charge all of the instructions carried with it a refusal to charge any one of them, but if plaintiff had reason to complain of the refusal to give one of the special charges asked, he should have made such special charge the subject of a special tender of it, and reserved a separate bill.

This should be done in order to escape what we understand to be •a rule of practice where instructions are asked in globo and are refused in globo; that a correct refusal by the court of any one of the requested special charges carries with it the failure of the bill reserved to the court’s action. We can not be expected to take up ■successively these thirty-four special charges, and from among them declare which were correctly asked and which were correctly refused.

Among the numerous instructions^asked, tendered to the court as •one continuous charge, there are some which are mere abstract propositions of law, true and correct in themselves, without special reference to any particular bearing on the case; others were intended to more specially direct the jury’s attention to particular facts, and ■those which were unobjectionable were covered by the general .charge, to which exception was taken.

On this general charge the court instructed the jury that the per-tinency of the allegations to the issues presented were matters of' law for the consideration of the court. In this ruling he was correct, and basing his charge on the legal question which he had decided, the-charge was in all respects rnsre favorable to the plaintiff than he could have expected. Por if the occasion existed — that is, if a bona-fide suit was pending against proper defendants, and the allegations were pertinent to the issues presented, they were privileged communications, and afforded no ground for an action against the defendant. Terry vs. Fellows, 21 An. 375; Dunsee & Co. vs. Norden, 36 An. 78; Burke vs. Ryan, 36 An. 951; Gardemal vs. McWilliams, 43 An. 454.

The plaintiff complains that the District Judge persisted in his ruling made in the cases of Randall vs. Hamilton, 45 An. 1184, and Wimbish vs. Hamilton, 45 An. 1191, when these cases were dismissed by him on the exception of no cause of action. His rulings in these cases were reversed by this court on the ground that the plaintiff had the right, in an action for damages for libel, to prove the non-existence of the conditions upon which would be dependent a right of exemption from liability on account of the character of the libel. The evidence in these matters was before the judge, and he exercised a legal right in instructing the jury that the allegations made were pertinent to the pending issues in the pleadings in the case from which the action for damages sprung.

There is no disputing the fact that the allegations made by the defendant in the petition in the suit 4001, District Court of Caddo, of “ Shreveport Electric Railway and Motive Power Company vs. City of Shreveport et als., are of a libelous character, and the law is well settled that if the occasion did not exist for the institution of said suit the defendant can not be protected, on the ground that the libel was used in a proceeding classed as privileged. The facts, recited by the District Judge in the opinion in that case satisfy us-that no such corporation as the Shreveport Electric Railway and Power Company ever had any existence. The suit was not a bona fide one for the assertion of a legal right. But waiving this point, we are convinced that the allegations, conceding the suit to have been an honest effort for the enforcement of aright, were not pertinent to the issue. They were foreign to it, and gratuitous in assailing the motives of plaintiff as a member of the city council of Shreveport.. By ordinance of the city council of Shreveport certain privileges were granted to the Shreveport Electric Railway and Rower Company. On June 9, 1892, these privileges so granted were repealed by the city council on the grounds that the corporati. n, if it had an existence, totally failed to comply with the conditions imposed upon it. No matter what motives controlled the members of the council, if the facts existed to warrant the repeal of the ordinance, its repeal would be valid and legal. The corrupt motives of the eouncilmen could not avoid a valid ordinance which they had enacted. The individual intention of the eouncilmen could not have the effect of rendering that valid which had become invalid and give to the plaintiff corporation rights which it had not acquired. We are of the opinion that the matter complained of in the petition, in the suit above mentioned, the Shreveport Electric Railway and Power Company vs. City of Shreveport ef als., was not pertinent to the issue, and the defendant used the occasion to inflict an unnecessary injury upon the defendant. In Randall vs. Hamilton, 45 An. 1184, in commenting upon the Gardemal case, 43 An. 454, we said, nothing in the former, case conflicted with the doctrine announced in the latter. Conceding that the occasion existed, there is no such thing as an absolute exemption from pursuit for a libel in a judicial proceeding. If the suit is used as a means of inflicting an injury upon the defendant by the incorporation into it of matters foreign to it, there can be no good reason urged why the plaintiff should not be held liable. Weil vs. Israel, 42 An. 955; Randall vs. Hamilton, 45 An. 1184.

The repealing of the ordinance granting certain franchises to the Shreveport Electric Railway and Power Company had reference to the use of the streets, and fell directly under the police power of the city. It was the duty of the council, if the corporation had failed to comply with the conditions imposed upon it, to withdraw its assent to them. There was discretion for this purpose vested in the council, and the act of repeal was purely legislative. Being legislative in its character and scope, the motives of the members of the council who voted for it are not subject to judicial inquiry as a means of invalidating the contract. The plaintiff was not, therefore, properly made a defendant in his individual capacity in the suit brought by the defendant Hamilton against the city of Shreveport et als. for the purpose of assailing his motives in voting for the repeal of the ordinance, granting to the alleged corporation certain street privileges.

In reviewing the facts we conclude Chat neither the occasion existed for the defamation of plaintiff ’s character, nor was the motive complained, of pertinent to the issue. There was then no probable cause existing for the use of the language in the petition of the defendant Hamilton, as the occasion did not exist, and they were not pertinent to the issue, and the testimony does not show that the plaintiff, as councilman, voted corruptly, as alleged, for the repeal of the ordinance. The defendant urges that he believed that the matters complained of were true. Plis testimony shows that he had based his conclusions from what he had observed at the meeting at the council, when the repealing ordinance was passed, and what was told to him b.y others. In the council meeting, from what is contained in the record, there were no facts which justified him in his assertions against the plaintiff. Acting upon what was told him, he assumes the responsibility of the truth or falsity of the accusations. Belief from information excuses no one for libeling another. The advice of able and distinguished counsel was sought, and this also is urged as a matter of defence. If this could justify false allegations, in a petition not pertinent to the issue, and the occasion could be made the means of attacking a party, the reports would be without cases, informing us upon the law in such a case as is before us. In all' judicial proceedings the advice and assistance of counsel is had. He prepares the pleadings from the facts gathered from his client,, and if these facts are of such a nature as are misleading, the client must bear the responsibility. Decoux vs. Lieux, 33 An. 392. If they are such as are necessary to allege in the preparation of his suit, and are defamatory, no action will lie for their utterance; but if not necessary, and are gratuitous defamation of character, responsibility ensues. Although the libel complained of does not seem to have been committed with express motive, yet the motive may be inferred from the nature of the charge made. Savoie vs. Scanlan, 43 An. 973.

Damages are necessarily due for libel and slander. The law presumes damage to follow from the injurious words spoken or uttered against the plaintiff. Weil vs. Israel, 42 An. 962; Williams vs. McManus, 38 An. 162; Savoie vs. Scanlan, 43 An. 973.

The plaintiff has suffered no special damage to character or reputation, and no pecuniary loss has followed the libel. There must have been mortification and some mental anguish to plaintiff when his character as a public official was assailed. It has often been said that in estimating damages, in cases arising ex delicto, it is difficult, in fact it is impossible, to precisely adjust the amount due. But they are recognized as a legitimate basis for the recovery of reasonable indemnity. Williams vs. McManus, 38 An. 162.

From the facts in this case we think five hundred dollars will indemnify the plaintiff for injury to his feelings, and expenses in asserting his rights in this suit.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that there be judgment in favor of the plaintiff against the defendant for the sum of five hundred dollars and all costs of suit-

On Application for Rehearing.

Without granting a rehear.ng in this case, we will amend our former decree. On reconsideration of the facts, we conclude the amount allowed as damage was excessive. We will, therefore, amend our decree and reduce the amount to three hundred dollars. As thus amended, the former decree is to. remain undisturbed.

Rehearing refused.


text:
    No. 11,594.
    Enzeide Judice vs. Southern Pacific Company.
    In an action, ex contractu, for the violation of a contract no punitory damages can be assessed in the absence of bad faith. When there has been no proof of actual damages, but loss of time and inconvenience has been shown for the technical violation of the contract, compensatory damages of a nominal amount will be allowed.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Benjamin Bice Forman and Edward Simon for Plaintiff and Ap-pellee.

      Leovy & Blair for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff brought this suit to recover the sum of five thousand dollars damages from the defendant company for a failure to stop and put her off at á station on defendant’s railroad, to which point she had bought a ticket. There was judgment for plaintiff for the sum of fifty dollars. The defendant company appealed. The act complained of occurred March 21, 1891. Thisjsuit was instituted February 15, 1894. The facts are that the plaintiff bought a ticket for Burke Station, at New Iberia. The distance between Cade Station, where plaintiff left defendant’s ¡cars, and Burke Station is two and one-tenth miles. The conductor failed to call for plaintiff’s ticket, and did not stop at Burke Station, His excuse for not going through the train after leaving New Iberia is that two drunken negroes were on the train, and his attention was engaged by them, so that he did not have the opportunity of taking up the tickets. At Cade Station the plaintiff left the cars. There is a train running from Cade Station to St. Martinsville, a distance of six and one-half miles. This train was put at plaintiff's service to take her back to Burke Station, on its return from St. Martins-ville. The delay would have been probably an hour. The plaintiff refused to accept this offer, and insisted that the St. Mar-tinsville train should at once take her back to Burke Station. The train, which was about ready to go to St. Martinsville, had passengers and the mail for St. Martinsville, and_ it was unreasonable for plaintiff, to demand that the train should delay the mail and inconvenience the passengers for St. Martinsville.1- She had previously requested that the train of the defendant company shoifid return to Burke Station and put her off. This demand was likewise unreasonable, as it was a through passenger train, behind time, and was followed by a special of whose location on the road the conductor, when he arrived at Cade Station, had no information. It would have been rashness on his part to jeopardize his train for the sole convenience of plaintiff. ¿There was a hand-car at Cade Station. On the refusal of plaintiff to go on the St. Martinsville train, this hand-car was placed at her service. The man in charge of it commenced to arrange a seat for plaintiff, but she declined to go on it, for the reason: “I would not go on that hand-car among those brutes.” There was no objection to the accommodation, but to the crew. It is in evidence that the car was manned by both white and colored men. The plaintiff is a colored woman, but we are not informed as to whether her objections were to the white or the colored crewmen. The man in charge of the hand-car says his men were respectable. Accommodations by a storekeeper were offered the plaintiff while arrangements could be made to send her to Burke Station. Having refused these several offers, the plaintiff, in company with her sister, walked over the road-bed and trestle-work to Burke Station, arriving there about dark. There was no necessity for her to follow the track, as there is a public road to Burke Station from Cade. In the testimony for the plaintiff there is no proof whatever of any damage to plaintiff in consequence of the failure of the conductor to put her off at Burke Station. There is no complaint even that she was fatigued by the walk from Cade to Burke. She was not made sick by exposure. The only basis upon which she could claim damages under the testimony is that she was frightened. And on this point the only testimony is that of plaintiff, who, in answer to cross-interrogatory No. 9, says: “I was not sick but frightened.” Mere fright, unaccompanied by physical ailment, is no ground for the assessment of damages.

It was the duty of plaintiff to protect herself against the wrongful act of the defendant. The opportunity was offered her to protect herself against the consequences of a walk to Burke Station, without expense to herself. She declined the proffered assistance, and she can not recover from the defendant, conceding that she was injured by the walk to Burke Station. Tardos vs. Railroad Co., 35 An. 15.

In Beers vs. Board of Health, 35 An. 1132, it was said: “The authorities agree that after a wrong has been committed the damaged party shall not increase it, and that if he does he shall have no right to complain for loss or injury sustained in consequence of his wilful acts, of commission or omission.”

The walk from Cade to Burke was not necessary for protection after the breach of contract in not putting her off at Burke Station. In Warren vs. Stoddart, 105 U. S. 229, the law applicable to the facts in this case is thus stated: “The rule is that where a party is entitled to the benefit of a contract, and can save himself from a loss arising from a breach of it at a trifling expense, or with reasonable exertions, it is his duty to do it, and he can charge the delinquent with such damages only as with reasonable endeavors and expense he could not prevent.” Wicker vs. Hoppock, 6 Wallace, 94; Miller vs. Mariner’s Church, 7 Me. 51; Russell vs. Butterfield, 21 Wendell, 300; United States vs. Burnham, 1 Mason, 57; Taylor vs. Read, 4 Paige N. Y. 561.

The damages for the breach of the contract in not putting the plaintiff off at Burke Station must be controlled by Art. 1934, Civil Code. There was no designed breach of the contract from motives of interest or ill will. The plaintiff can, therefore, recover only the actual pecuniary loss she has sustained, unless the facts bring this case within paragraph three of said article, which says that “the general rule is that damages are the amount of the loss the creditor has sustained or the gain of which he has been deprived, yet there are cases in which the damages may be assessed without calculating altogether on the pecuniary loss or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage or an engagement for a work of some of the fine arts, are objects and examples of this rule.”

This article manifestly applies to contracts entered into between the parties in reference to some religious or charitable object, promise of marriage, or some work of art. In plaintiff’s brief it is stated, “ It may properly be said that when plaintiff bought her ticket and entered the defendant’s car to be carried safely to Burke Station, pleasure of visits to friends necessarily entered into the contemplation of the parties.” It would be an unreasonable construction of the contract of carrying passengers that the defendant company should know the objects and purposes of each passenger boarding the train, and an implied contract should spring from such imputed knowledge. The contract was to carry the plaintiff safely to Burke Station, and there put her off with safety to her person and effects she was allowed to carry as baggage.

The defendant company \iolated this contract. Under the laws of this State no damages, appreciable in amount, can be assessed for a violation of a contract without some pecuniary loss.

The plaintiff has failed to show definitely the amount of pecuniary loss she has sustained.

There was, however, a violation of the contract, to the extent that she was put to some inconvenience, and there was a loss of time. The road had failed to put her off at the station to which she had purchased a ticket, and in this respect there was a total failure of the consideration of the contract, and it was optional with her to call on the road to carry her back to her destination, or to take her back to the point where she had purchased the ticket.

While the article of the Code says, in contracts other than for the payment of money the damages shall be such as were contemplated by the parties, when there is no bad faith, this does not require the plaintiff, in order to obtain judgment for the violation of the contract, to prove actual pecuniary damage. If inconvenience to the plaintiff and loss of time have been proved, and there has been no inquiry as to actual damage, or none appears on inquiry-, there is still some practical expression as to technical injury required of the court for compensatory damages. In default of proof of actual damages, damages by implication remains for the technical violation of the contract, when facts have been shown which would authorize the assessment of an appreciable amount in damages if proved. In such cases the amount is inappreciable, and is given to save costs to plaintiff.

We know of no authority here that would justify us in assessing punitory damages in the absence of bad faith in actions arising ex ■contractu.

The judgment appealed from is excessive. Judgment for nominal -damages will be allowed, which are fixed at three dollars.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to give the plaintiff three dollars damages. In other respects it is affirmed, plaintiff to pay costs of .appeal.

Rehearing refused.