author: Todd, J. Nicholas A.

text:
    No. 8778.
    Succession of N. A. Baumgarden.
    Aman dies intestate, leaving an estate consisting of property held in community with his wife, who survives him. The wife soon after dies, leaving a last will. The major heirs of the husband obtain an order putting them in possession of his estate, consisting of his interest in the community, Iteld, that the testamentary executors of the wife’s will, and the tutor of a minor heir of the two deceased spouses had an interest in said order sufficient to entitle them to an appeal therefrom.
    A husband dies intestate, leaving three heirs of age and one minor, the issue of his marriage with the wife who survives him, to au estate held ia community with the surviving wife. The wife shortly after dies, leaving a last will and appointing a tutor to the minor child of herself and deceased husband. The executors of the wife and the tutor of the minor child, there being no debts except tbe debt of tbe husband’s succession to tbe succession of the wife, have no right to oppose the putting into possession of the heirs of age to the extent of their interest iu the succession of their father. If any inconvenience or confusion is caused thereby, it can be promptly adjusted by a partition among tbe heirs. The minor heir cannot be prejudiced by such proceeding, and his tutor is without interest to oppose.
    APPEAL from the Civil District Coart for the Parish of Orleans. Tissot, J.

      W. B. Koontg and T. Gilmore <& Sons for the Appellants:
    1. "When one of the heir3 is a minor, the heirs of age cannot be put in possession, unconditionally, of their shares or portion of the estate, until a partition is effected. C. C. 1047; 30 An. 389; 30 An. 807; 3 An. 502; Succession Therese Baumgarden, 35 An., K. R.
    S. A succession is a unity. It cannot exist as to one heir, and be extinct as to another heir. To terminate tbe existence of a succession the heirs must all be sui juris, and have the capacity to render themselves liable for the succession debts. This a minor cannot do. C.0.1047; 30 An. 389, 807.
    3. "When the succession consists of the community which existed between the deceased husband and wife, and is in possession of tbe testamentary executors of one of the deceased spouses, the heirs claiming such succession cannot, where there are debts and legacies, be put in possession on an ex parte order or judgment, but must proceed by petition aod citation to the executors. O. P. 1000, 1001,1002, 1003, 1004; 4 R. 283; 6 R. 9; 11 An. Gli; 18 An. 156. *

      J. Ad. Hosier, V. J. Rosier and I. It. levy, contra.

   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

Three of the major heirs of N. A. Baumgarden obtained an order from tbe Civil District of New Orleans putting them in possession of the succession of the deceased.

The executors of the last will of Mrs. Therese Baumgarden, the wife of said decedent, and who died after him, and the tutor of the minor child of said decedents, have appealed from this order or judgment.

There is a motion to dismiss their appeal on substantially tbe following grounds:

1. That the parties have no appealable interest.

2. That the appellees have not been cited, and that the appellants, as third parties, could not appeal by motion, but only by petition.

3. That the bond of appeal was insufficient in amount for a suspensive appeal.

First. C. P. Art. 571 provides: The right of appeal is’ given not only to those who were parties to the cause in which á judgment has been rendered against them, but also to third persons not parties to such suit, when such third persons allege that they have been aggrieved by the judgment.”

These appellants allege that they have been so aggrieved, and among the grounds of their appeal set forth in their petition therefor are, that the administration of the succession of Therese Baumgarden, of whose last will they are executors, involves that also1 of N. A. Baum-garden, the property comjn'ising the successions being community property and undivided ,• that an administration is necessary, and that a succession cannot exist in part and be terminated-in part at the same time.

The tutor of the minor heir complains of the major heirs being put in possession, and denies that the minor heir can be put in possession until there is an administration.

Some of these facts are shown by the allegations and admissions of the appellees in their petition to be put in possession of the estate. We think the appealable interest is sufficiently shown.

Second. There was no need of a citation, since the appeal was taken by motion in open court, and there is no provision of law limiting third parties to appeal by petition alone. The cases cited to support such a proposition, 21 An. 755, 33 An. 484, were cases where the appeals had been taken by petition and no citations had issued, but they do not negative the right of such parties to appeal by motion.

Third. The bond was fixed by the Judge, and properly so. It was not a suspensive appeal from a moneyed judgment nor from a judgment concerning the title to property yielding a revenue, but one where the amount of the bond was a matter for the discretion of the Judge.

Some of the reasons urged by the appellees7 counsel for the dismissal would require an investigation of the facts on the merits, and where such is the case the appeal will not be dismissed. Baker vs. Frellsen, 32 An. 882.

The motion to dismiss is, therefore, denied.

On the Merits.

Nicholas A.

Baumgarden died in New Orleans on the 23d of April, intestate, leaving four children and heirs, three of Whom were majors and one minor.

On the 18th of January, 1883, a judgment was rendered on the petition of the major heirs, recognizing them, together with the minor, as the sole heirs of their deceased father, and putting the said major heirs, to the extent of their interest, in possession of his estate.

From this judgment the executors of Mrs. Therese Baumgarden, wife of said decedent, who died subsequently to her husband, and the tutor of the minor heir, have appealed.

They make the following complaint of said judgment:

1. That it was rendered exgarte and without citation to them.

2. That one of the heirs being a minor, the heirs of age could not take possession until there was an administration and partition.

3. That there are debts due by said succession, and the minor cannot be made liable in this manner for her virile share.

4. That an administration is necessary; that the said succession cannot exist in part and bo terminated in part at the same time.

5. That the succession of Mrs. Therese Baumgarden is a creditor of the succession of her husband, and the minor opposes the heirs of age going into possession until the said debt has been paid.

6. That the administration of one succession involves both.

We do not deem it necessary to go over and discuss seriatim these several grounds on which the appeal is based, but will consider them in globo.

There is no creditor or heir of age before us demanding an administration of the succession of N. A. Baumgarden, nor is such demand made on the part of the tutor of the minor heir; and in the absence of such demand, as a general rule, the heirs of age are entitled to be put in possession.

Nor can we recognize the right of these appellants to oppose such claim on the part of the heirs of age, for the reason that the property, of which they seek to be put in possession, belongs in part and indivision-to the succession of their deceased mother, represented by the executors of her last will, the appellants herein; the said property being community property, having been acquired during the marriage the deceased spouses.

The executors of the wife cannot claim rights over this joint property, as to its possession and administration, superior to the heirs and legal representatives of the husband.

When N. A. Baumgarden, the husband, died, the title to one-half of the community property became vested in his heirs, and the other half in his wife who survived him, subject to the payment of the community debts. Tudgwell vs. Tugwell, 32 An. 848; Succession of Clark, 33 An. 584.

The testamentary executors of Mrs. Baumgarden cannot demand more than could Mrs. Baumgarden herself, were she living. They cannot claim exclusive possession, administration and control of the property, by right of representing her, and refuse all right thereto on the part of the husband’s heirs.

There is no evidence before us of the existence of any community debts. We have to decide the case on the face of the papers. The heirs aver that there are no debts. The executors allege that there are debts, but we gather from the pleadings and argument that the only indebtedness (if any) is what is owing by the succession of the husband to that of the wife. Such a debt' would not of itself necessitate 'an administration of either succession, inasmuch as the four children of the deceased are the heirs to both successions, and all matters pertaining thereto, both as to debts and legacies, could be adjusted in a final partition.

If the effect of our decree should establish a joint possession of the undivided property in the heirs of the husband and the executors of the wife, the confusion that might result therefrom could be speedily ended by a partition, to the making of which we can discover no legal obstacle.

We do not perceive that the right of these heirs to be put in possession of their father’s estate, in proportion to their interest therein, is affected by the fact that there is a minor heir, whose tutor makes opposition thereto. Such a step on the part of the heirs of age, whether the minor or his tutor joins with them in that possession or not, cannot affect the liability of the minor for the debts of the succession, if such debts exist, as suggested, since a minor can only accept a succession with the benefit of inventory, and can in no event incur a liability beyond his interest or share in the succession.

The case falls largely within the principles determined in Soye vs. Price, 30 An. 93.

We do not understand that there is any claim made on the part of the tutor of the minor heir for the appointment of an administrator to the succession of N. A. Baumgarden.

For these reasons, we cannot conclude that the appellants are in any manner aggrieved by the judgment appealed from, and said judgment is, therefore, affirmed with costs.

Behearing refused.


source: Caselaw Access Project

author: Bermudez, C. J. ■ Fenner,' J. Manning, J.

license: Public Domain

text:
    No. 7554.
    The City of New Orleans vs. The New Orleans and Carrollton Railroad Company.
    Act No. 9 of 1878, (Secs. 18 and 19) authorizing the assessment of taxable property omitted from rolls for previous years, is not in conflict with Article 130 of the Constitution of 1868, then in force, which prohibits retroactive legislation.
    Such laws only as impair the obligation of contracts, or divest vested rights previously existing, or which create new rights or impose new obligations, not in esse before the passage of the law, partaking of the nature of ex post facto laws* fall under the ban of the constitutional inhibition.
    The insertion of the words in tbo Constitution, forbidding retroactive legislation* has.placed no greater restriction on the legislative power than had been put upon it by the Constitutions of 1845 and 1852*
    Such constitutional restraint does not prevent the passage of remedial* healing or curative laws, designed to carry out a previously existing right, or to enforce an anterior obligation* otherwise barren of advantage. Particularly is such tho case in matters of public concern, when the object in view is to have the burden of taxation equally shared by. all upon whom it is imposed. • . , -
    The Sections assailed are not retroactive, though retrospective. They refer to the, past, but provide for a future remedy. Even were it otherwise, they are remedial or curativo laws, not reached by the prohibition against retroactive legislation.
    it is no valid objection to the levy and collection of a tax on the capital stock of a corporation omitted from an assessment roll, that it has since changed hands. Property liable to taxation cannot for such reason escape contribution.
    The Act of 1882, No. 96, p. 128, which directs the assessment of stock to the shareholders is intended on its face to operate prospectively* It has no reference to assessments made prior to its adoption, is not curative, and can receive no application to tho present case.
    APPEAL from the Third District Court for the Pariáh .Of Orleans. Monroe, J.

      J. Ward Gurley, Jr., Assistant City Attorney, for Plaintiff and Appellant:
    Sec. 8 of Act No. 73, of 1872; Sec. 17 of Act No. 96, Extra Session 1877, and Sec. 18 of Act No. 9, Extra Session 1878, are full and ample authority for the assessment and recovery of the tax for the City of New Orleans for 1878, on the capital stock of the defendant Company, which was omitted from the assessment rolls of 1877.
    Defendant Company cannot he allowed to escape a tax paid by all other like companies, merely because its property was overlooked when the original asssessment rolls were prepared.
    The objects and purposes of the laws are to prevent loss to the State and City, and injustice to other taxpayers, by any “irregularity, informality or omission.”
    The general provisions of the revenue laws of the State apply to the Parish of Orleans, as well as to the other parishes of the State, except in so far as they may be in conflict with the provisions specially concerning tho Parish of Orleans.
    The assessment in question is not retroactive in its effect.
    The assessment is legal and proper in terms. 32 An. 19 and 34 An. 618.

      L. JS. Simonds for Defendant and Appellee;
    1. Sec. 8 of Act 73 of 1872, and Sec. 17 of Act 96 of 1877, do not apply to this case, hut only to property discovered, or the existence of which was unknown. The assessors could not be so ignorant as not to know that shares of stock of defendant were sold on the street every day. It was only the aggregate market value which they failed to ascertain, as being above that of the property “otherwise assessed.”
    2. See. 18 of Act 9 of 1878, could have no retroactive effect, even if the omission of the assessors to ascertain its market value can be considered as an omission of property, (Const. 1868, Art. 110.) The back assessment, as made, was merely of the difference in value between the aggregate value of the shares and that of the property actually assessed. It was too late to correct valuations.

      Z. All provisions in conflict with Sec. 18 of Act 9 of 1878, were expressly as well as impliedly repealed. There remained no other mode of correcting assessment rolls than provided in said Sec. 18.

      4. The authority to make back assessments, in any case, refers to tangible property, and not to capital, which is ever changing in amount; it applies to visible property and not to fleeting values.
    5. Seo. 17 of Act 96 of 1877, is in the portion of the Act relating to country parishes. It specifies “State and Parish taxes.” At Sec. 82 of that Act begin the provisions for “Mode of Assessment in the Parish of Orleans." There is no authority to assess by “Resolution " to assessors.
    6. A back assessment, based on the value of shares of stock, operates practically as a tax on new holders to cover the delinquency of former holders or assessors. It is not intended, by -the law, to apply in cases of sales of land or movables, nor should it bo construed to apply to shares of stock. The very omission to assess, in any year, increases the dividends to the true debtor, aud raises the price to the next owner.
    7. If, prior to 1878, the law had declared or fixed the shares in a railroad company, as objects of taxation at all, it contemplated that they should be assessed to the owner, i. e., the shareholder who could buy and sell the same. But by Sec. 3 of A.cb 9 of 1878, corporations other than railroads were required to pay for the shareholders. See also par. 12, Sec. 1, Act 8 of 1878.
    8. In order to be a legal basis of taxation, property must be so described and pointed out so as to identify it.
   The opinion of the Court was delivered by

Bermudez, C. J.

The City sues to recover from the defendant Company $8,328.75, with ten per cent, interest for the taxes of 1878 assessed on its capital or capital stock according to the supplemental roll of 1877.

The defense is a denial of the legality of the assessment and of the existence of any capital in said year.

From a judgment for the defendant, the City has appealed.

It appears that the assessors having failed to place the capital of the Company with its other property on the roll of 1877, and the omission having been discovered, the City adopted, in Oct., 1878, an ordinance directing the assessment and placing of the capital on that roll, which was accordingly done.

As her authority for thus acting, the City points to several Acts, among which that of 1878, p. 234, the 18th and 19th Sections of which clearly authorize the course pursued.

In justification of the validity of such proceeding, the City relies upon several decisions of this Court, reported iu 10 An. 745; 13 An. 268; 14 An. 853, 854; 15 An. 89; 21 An. 79; and also upon the ruling of the U. S. Supreme Court, affirming the decision in the Locke case, 4 Wall. 173.

- The applicability of those authorities, which are not in themselves, questioned, to the present case, is denied on the. ground that they merely recognize the legality of a tax imposed according to a previous assessment. It is further urged, that the Sections invoked of the Act of 1878 are unconstitutional and void, as violative of Article 110 of the Constitution of 1868, which was in force, at their adoption.

. It is claimed that the instant case is differentiated .from those to, which reference is' made by the circumstance that the assessment, of the capital of the defendant was not made in 1877, but in 1878, after, the law and the ordinance had been adopted.

It is difficult to conceive why a tax can be legally levied and collected on property placed on a roll of assessment prepared and approved before the tax had any existence, and why a tax legally levied] generally on a species of taxable property in existence at the time, but] not then listed, should not be likewise collected, where such omitted property is subsequently placed on an assessment roll made, nunc pro 1 time, to cure the deficiency under the express sanction of special legislation. - y

Article 110 invoked is in the words following : No ex post facto, or retroactive law, nor any law impairing the obligation of contracts shall be passed, nor vested rights be divested, unless for purposes of public utility and for adequate compensation made.”

This Article, totidem verbis, is to be found in the Constitutions of 1852 and 1845 as Articles 104 of the former and 109 of the latter, with the only difference, that the words “ or retroactive law ” were inserted after the words “ ex post facto." ...

The injection has added to the provision no inhibition which, did not previously exist, for it is well settled by reason and weighty authorities that no law is retroactive, unless it impairs the obligation of antecedent contracts, or divests pre-existing vested rights.

The insertion of those words was not and could not be intended to prove an absolute inhibition of all legislation loolcing or acting backwards, for itis apparent that if such were the case, the law-making power would, consequently be impotent to repeal anterior legislation, inasmuch as a repealing law is essentially retrospective, and necessarily operates upon an object previously in existence.

A survey of the authorities conclusively establishes that those laws only can be considered as retroactive, and therefore unconstitutional,, which impair the obligation of contracts or affect vested rights, or are in the nature of ex post facto laws. 36 Barb. N. Y. 447; 10 N. Y. 374; 26 Cal. 46; 63 Barb. N. Y. 85; 37 Md. 180; 26 Iowa, 340; 6 Conn. 197; 21 Conn. 71; 36 Penn. St. 857; 61 Penn. St. 320; 79 Penn. St. 407; 67 Penn. St. 479; 16 Mass. 290; 22 Ind. 204; 20 Miss. 347; 24 How. 287, 295; 4 Wall. 173; 17 How. 456; 3 Dallas, 386, 391; 13 Wall. 68; 10 How. 395; 11 Pet. 539; 2 Pet. 413; 8 Pet. 110; 1 How. Miss. R. 183. In addition, see Louisiana authorities already cited.

Such a construction has been placed upon them by the highest courts of States, the Constitution of which prohibited the passage of retroactive laws. 32 N. H. 305; 39 N. H. 505; 3 N. H. 481; 10 N. H. 386; 2 Ohio St. 152; 2 Gall. 105, 139; 5 Yerg. Tenn. 320; 1 Yerg. Tenn. 360; 56 N. H. 466; 22 Ohio, 152; 4 Texas, 470; 11 Ohio, N. S. 641; 6 Yerg. Tenn. 119; 20 Ohio, N. S. 369; 7 Johnson, 477; 2 Pet. 413; 8 Pet. 110; 11 Pet. 539.

Hence, writers of recognized eminence on constitutional limitations agree, that a retroactive statute is that which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, or gives some different legal effect to some previous transaction to that which it had under the law'when it took place. Sedgwick, p. 160, Ed. 1874; Cooley, 461; Wade on Retroactive Laws, 55 1, 194, 253; Also: Bouvier and Abbott, L. D., Yo. Retroactive; Story Com. Const., 266.

It will be remarked, that the prohibitive language in the Constitutions of this State for the years.named, particularly that of 1868, is not merely. “No ex post facto or retroactive law * * shall be passed.” Those words are followed by these : “ nor any law impairing the obligation of contracts shall be passed; nor vested rights be divested, unless for purposes of public utility and for adequate compensation made.”

It cannot therefore be inferred, that the inhibition is peremptory or mandatory, and that no law whatever whicli looks to the past, or acts in the past, can be adopted without violating the limitation.

More than half a century ago the Supreme Court of Tennessee was called upon to expound the meaning of such words and emphatically said:

“We have viewed with earnest attention the bill of rights, Sec. 20, and have considered the inconveniences which any one interpretation will produce, and finally settled down in this opinion, that the word retrospective, as in the North Carolina and-Maryland Constitutions, is followed by explanatory words, so here it is explained by the words which immediately follow: ‘or law impairing the obligation of contracts,’ and that the whole clause and both sentences taken together mean, that no retrospective law which impairs their obligation shall be made; the latter words relating equally to both the preceding substantives, and, therefore, that the term retrospective alone, without the explanatory words, can have no influence in this discussion.”

In the course of our investigation we have found no criticism or reflection whatever on this opinion, and have seen it referred to with approbation. We think it is a correct rule of interpretation.

It is an admitted rule that Constitutions like statutes are subject to the same canons of interpretation. It is thus correct to say, that in construing any portions of the same, the whole clause or sentence should be considered together.

It is no doubt true, that some object was intended to be accomplished by the insertion in the Constitution of 1868 of the words prohibitory of retroactive legislation, which are not to be found in the Constitutions of 1845 and 1852. It is assuredly the duty of courts, when that object is known, to place such construction on the law as will carry out the purpose of the amendment. We have labored in vain, in the present base, to ascertain what the object could have been, and have not discovered it. Whatever it was, it cannot be said that by the insertion the words were given a meaning different or more extensive than they possessed previously. They were not designed to forbid all retroactive legislation, for if they did, the words which follow them would merely repeat the prohibition with restrictions, or be meaningless. Tautology or absurdity.

They are technical terms, which have .often received a judicial interpretation, to which it is wise to adhere. It is significant that those words were left out from the Constitution now in force, and that Article 155 thereof reads as it did in the Constitutions of 1845 and 1852.

Hence, wé say, that the words “ no retroactive law,” found in the Constitution of 1868, should be taken and construed in connection with the words which follow them. They would then mean, that no retroactive law which impairs the obligation of contracts, or which divests vested rights, unless for purposes of public utility and for adequate compensation made, shall be passed. Meaning thus, it is logically inferrable that the legislative power remains unshackled, as to the adoption of laws which do not impair the obligations of contracts, or divest vested rights.

It may be interesting to state here, that the Supreme Court of New Hampshire, in ,1859, while considering and determining the meaning of the word “ retrospective,'1'1 found in the Constitution of that State, -Part 1, 5 23, took Occasion to notice and commeut upón Article 105 of our Constitution of 1852. They there said :

‘ “In Louisiana, the Constitution, after prohibiting ex post facto laws •and such as impair the obligation of contracts, adds : nor shall vested fights be divested, unless for purposes of public utility and for an adequate compensation previously made, which is merely substituting for the technical term, retrospective laws, the well established and common definition and interpretation of that word.” See Rich vs. Flanders, 32 N. H. p. 384 (334-5).

f The opinion in that case is elaborate and exhaustive. It refers to a large number of authorities which-support the meaning and purport which we attach to the word retroactive, found in the Constitution of 1868, in force when the Act of 1868 under consideration was adopted.

Applying those principles -to the matter before us, let us inquire whether the Sections invoked of that Act are retroactive within the 'meaning of that Constitution.

■ Do they impair the obligation of any antecedent contract; do they divest any pre-existing vested right?

1 There is but one possible way to answer those questions correctly, 'and that is in the negative, without the possibility of the shadow of A doubt. :

Far from impairing the obligation of a contract, or divesting a vested right, they enforce the obligations of a tacit contract and of an indisputably vested right. Far from being retroactive, they are prospective! They are retrospective without being retroactive, and from the most unfavorable standpoint, would only be remedial or curative legislation, which has, at all times and everywhere, been considered as perfectly legitimate, particularly in order to safeguard and subserve the publio interest.

Such legislation, says Kent, “ may be of a retrospective nature, provided it do not impair contracts, or disturb absolute vested rights, and only go to confirm rights already existing and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations. Such statutes have been held valid when clearly just and reasonable, and conducive to the general welfare, etc.” Vol. I, p. 493, ($ 455) and authorities in note.

Sedgwick defines remedial statutes to be those made from time to time to supply defects in the existing law, whether arising from the inevitable imperfection of human legislation, from change of circumstances, from mistake, or any. other causé. P. 32.

Dwarris says, that there can be no question that the words of a remedial statute are to be construed largely and beneficially, so as to suppress tlie mischief and advance the remedy; p. 632; Sedgwick, pp. 308 et 'seq., 312.

" Wade says, that laws may operate retrospectively upon existing remedies by changing or abolishing them, or by creating new remedies, without contravening constitutional provisions, where such legislation does not substantially impair the right which the remedy is intended to enforce. $$ 198, 253.

Since the insertion of the words, “ no retroactive law," in tlie Constitution of 1868 has imposed no new restriction upon the legislative power, it clearly results that, as Article 109 and Article 105 of the Constitutions of 1845 and 1852 are identical with it in form and sub'stauce, the rulings in the Wheeler and subsequent cases,' from the 10th to the 15th Annual, above cited, were made under Constitutions in that respect similar to that of 1868, like it reprobating and prohibiting retroactive legislation.

Hence, as those precedents justified as constitutional a legislation which levied a tax on previous assessments, they can be invoked and applied to sanction legal provisions authorizing the assessment nunc pro tunc of taxable property accidentally omitted from the proper roll, with a view to subject it to the payment of the tax regularly levied on all the listed property.

It is to be noted that the able jurist who was the organ of the'Court in the Wheeler case, 10 An. 745, was the counsel who represented the plaintiff in the Frellsen ease, reported in 21 An. 79.

' The object of that suit was to have declared unconstitutional, as violating Article 110 of the Constitution of 1868, Act No. 114 of 1868, passed after that Constitution had gone into operation, and which levied a tax on all taxable property-in the State, according to the rolls of 1867. Every argument which could be made, and every authority which could be invoked, were urged to accomplish the contemplated object, as appears from the brief presented on the occasion, and which precedes the reported opinion, but the Court organized and acting under that Constitution (1868) held the law not retroactive. It tersely said: “ It has no retrospective effect; it does not operate upon any contract or right or subject in the past, but it provides simply that a tax for the payment of existing debts shall be levied upon the cash assessed value of the immovable and movable property of the State, according to the rolls of the year 1867, the last assessment which at that time had been made.”

The Court then proceeded to consider the rulings from the Í0th to the 15th Annual, and affirmed them as containing a sound doctrine applicable to the ease before it, citing 4 Wall. 173, and other authorities.

The Act of 1878,'under the provisions of which the capital of the defendant was assessed on a roll made to supplement that of 1877, to pay the tax levied, did not create any right which the City did not possess, or any obligation which the defendant had not incurred previously. Its object was to heal an otherwise fatal omission, by providing for a remedy to carry out an anterior right, by the enforcement of a pre-existing obligation. It is what is known as healing, curative legislation which is sometimes-a .matter of necessity,i and which has uniformly been recognized as just and' proper, and such as courts should countenance and put into operation.

The control of remedies exercised by the enactment of laws to cure defects, or to supply omissions and legalize past acts, is one of the most essential of legislative powers. Wade, §§ 250, 198. Very many are the cases in which the validity of such laws was formally recognized, particularly when the object in view was one one of public concern. •

On the subject of taxation, assessment of property and levy of taxes» it has often been judicially declared that statutes passed to remedy the omission of property from the rolls, are not obnoxious on the ground that they divest vested rights or impair the obligation of contracts.

The courts have expressly declared that the State has the same power to authorize the assessment of property for a former as for a current' year. 19 Wis. 535; 17 Wis. 71; 17 How. 456. They have even gone to the length of saying that where property was not taxable for a particular year, the legislature in a subsequent year might authorize its assessment for the year in which it was not assessed. 22 Ind. 204; 33 Wis. 93; 29 Wis. 400.

It has also been held that a statute authorizing the reassessment of property for street improvements, where the original assessment had been judicially declared void, though limited by construction to cases of irregularity for non-feasance, was, when applied to cases falling within its legitimate scope, regarded as a valid act. 27 Wis. 522; 42 Barb. 288.

Hays Burroughs on Taxation, p. 198 :

“ In levying a tax, the legislature sometimes imposes it on the basis of a past assessment or evaluation. Such laws have been questioned, on the ground that they are retroactive in their operations, but this view has not been sustained, the courts regarding such law as authorizing the future imposition and collection of a tax regulated according to a past assessment and as being prospective in their character and not retrospective. And this is true whether the tax is imposed by ths legislature for State purposes, or by local authorities to whom the authority has been- delegated.

Property is often omitted from the roll by the assessors for one or a number of years, and most of the States have statutes authorizing the assessors, when they ascertain omissions, to place the property on the roll with the tax extended not only for the current year, but for' the past years. The legislative authority to tax the property for the omitted years is not exhausted by the failure of the party or the assessor to place it on the roll, and such assessments are valid.” 15 Ind. 109; 43 N. Y. 290, 294.

Says the Supreme Court of Wisconsin in an analagous case, subsequently affirmed:

This power of correcting defective assessment rolls, on the part of the public authorities, is a salutary and highly beneficial feature of our system of taxation. It is not to be abandoned because, in some instances, it produces individual hardship. Every taxpayer is interested in having the property list as perfect as possible, and, therefore, power to correct omissions and inequalities in the rolls is entrusted to some of the taxing officers. * * The expediency of passing such laws must be left to the taxing power of the government. The courts can only interfere when the assessment falls within some prohibition of the Constitution.” 17 Wis. 77, 78; 19 Wis. 543; 23 Wis. 93; 24 Mich. 322; 4 N. Y. 579, 590; 34 N. J. 236; 56 N. Y. 261; Cooley on Taxation, p. 232 (6), Reassessments ; also, p. 225 (3) Special Curative Acts.

There can be no doubt that the capital or capital stock of the defendant Company was taxable, (32 An. 19; 34 An. 618; 23 An. 18) and that the legislature had the power to authorize the City to have it assessed and subjected to the tax levied, as was done. It would be gross injustice to the tax paying community to permit taxable property to escape taxation, simply because intentionally or ^inadvertently omitted from the assessment roll, when there .exists a remedy preventive of the injury. The legislature could have validly passed the law it did, prior to the occurrence of the facts of this case, to provide for the amendment of property thus omitted; The law, besides, covers similar cases in futuro. What the legislature eould have done before, it could do and has done validly afterwards. Cooley Const. Lim. 371; Wade on Retr. Laws $§ 251, 266, and authorities in notes.

The assessment was made in 1878, after the passage of the law and of the ordinance for the tax of 1878, at the same rate as the property was listed in 1877.

No costs, no penalties were inflicted, which the law did not previoualy impose. The very interest claimed is not to attach until after, the assessment made.

The Sections invoked, 18 and 19 of Act 9 of 1878, we conclude, do not all under the constitutional ban.

The next objection is, that the Company did not own the capital, or capital stock assessed, and if it did, that it has changed hands.

All the presumptions are against the denial of ownership. It was-incumbent, therefore, on the defendant to have rebutted them • and. established clearly its special defense. There is not a particle of.evidence that the property has changed hands ; but even if there were, it would not relieve the Company, for it is the corporation which was taxed and not its stockholders. The property intended to be reached, whoever now owns it, is represented by the Company, and can no more escape taxation, because of a' change of hands, than could real-estate or other tangible property susceptible of identification and reach.

We have considered Sec. 28 of the Acts of 1882, No. 96, p. 128, to which our attention has been called. It provides, that thereafter “ actual shares shall be assessed to■ the shareholders who appear as; as such ou the books,” and that “all property owned by the bank,, company, etc., shall be assessed directly ” to the corporation.

It is evident that this law wa.s not designed to apply to assessments made previous to its passage. It is not curative, and cannot affect the, right of the City to recover from the Company in this case.. It is, on its face, intended to operate prospectively.

. We fail to discover any force in what other defenses may exist,,if any.

There was error in the finding of the lower court for the defendant.

It is, therefore, ordered and decreed that the judgment appealed, from be reversed.

It is now ordered, adjudged and decreed that the City of. New Orleans recover of the defendant, the New Orleans and Carrollton Railroad Company, the sum of eight thousand three hundred and, twenty eight 75-100 dollars, with ten per cent, interest per annum, from December 1st, 1878, till paid, with the lien and privilege claimed, and: costs of suit in both Courts.'

Manning, J., dissents.

Concurring Opinion.

■ Fenner,' J.

Without expressing any positive dissent, I prefer not unnecessarily to bind myself by present concurrence in all the broad, and'general interpretations placed upon the Article of the Constitution-relative to retroactive laws. ■ . ' . ,.;.

I find a sufficient reason for concurrence in the decree, in the uuiversal consensus of authority, holding that remedial and curative statutes of the character presented in this case do not violate any general or special prohibition of retroactive legislation.

Dissenting Opinion.

Manning, J.

The plaintiff alleges that the assessors of property for taxation in 1877 omitted to list and assess in that year a certain part of the capital or capital stock of the defendant Company, and that pursuant to authority given by several Acts of the legislature, the Common Council of the City on October 31, 1878, adopted an ordinance directing the assessment of this omitted capital or capital stock for taxes of 1878, and to place it on the rolls of 1877, which was done at a valuation of five hundred and fifty-five thousand two hundred and fifty dollars, and the tax thereon being $8,328.75, the City prays judgment for that sum with ten per centum per annum interest from Dec. 1, 1878.

The defendant denies the legality of the assessment, and avers that the Company had no money capital in 1877, and nothing that is comprehended in the term capital,” either in its legal or popular meaning j and that all its property which was liable to taxation that year, i. e., its real estate, track, cars, and draft animals,' wras assessed and the tax thereon has been paid.

There was judgment below for the defendant and the City appealed.

The assessment of 1877 was controlled by the Act of that year, which directs that it shall be completed by the first day of July, and the rolls shall be exposed until September, during which time any person may complain of over-assessment, and provides his remedy. Sess. Acts 1877, p. 136.

The 17th Section is relied on to justify the supplemental assessment of the omitted property, but that manifestly relates to property outside of New Orleans, and by its terms has reference to State and parish taxes alone. Secs. 82 et seq. provide the mode of assessment for the" City. The 87th Sec. contains the same provisions for- the completion, exposition, and correction of the rolls that are made for the country parishes by the 17th Section. There is not anywhere in this elaborate law of 105 Sections any provision for other correction or amendment of the rolls than that allowed in the manner, and at the time prescribed by the 17th and 87th Sections, and neither of those direct or authorize such amendment of the rolls as was made by the City against the defendant Company.

Another Act upon which the City relies is that of 1872, which directs if the assessment made by its authority shall be declared, or shall become void and without effect, by reason of non-compliance with any ■formality, then the Council shall have authority to make a new assessment and collect the taxes thereon, it being the true intent and meaning of this law that the City shall not lose the right to collect annual taxes by reason of any legal informality. Sess. Acts 1872, p. 125, Sec. 8.

The intention of this law is expressed, and its meaning is emphasised by the words of the Act. Its evident purpose was to provide for the contingency of the entire assessment roll being declared null for informality, in which event a new assessment roll is authorized in express terms, so as to preserve the City’s right to realize her annual revenues.

In the case at bar there is not an entire assessment void for non.complianee with form, but an omission of a particular assessment. The defect is not of form but of substance.

The absence of provision for the case of an omission to assess in the Act of 1877 attracted attention, and this defect was corrected by the legislation of the following year. Sess. Acts 1878, p. 234. The 18th Section of the law of that year supplies the omission, and Sec. 19 attempts to apply this mode of repairing defects to the assessment of ■1877 by legislative instructions to the City assessors to revise and correct the roll of that year to make it conform to the law of 1878.

Under this law of 1878 the assessors listed for taxes of. 1877 the property of the defendant Company not then assessed—or rather property alleged to belong to the Company—and the collection of the taxes thereon is resisted on the ground inter alios that the law of 1878, quoad this provision, is retroactive and as such is prohibited by the Constitution of 1868.

The leading case on the question is Municipality vs. Wheeler, 10 Ann. ,745, wherein the defendants contended that the Act of 1850, empowering each of municipalities of New Orleans to lery taxes on capital on the assessment rolls of 1848 and 1849, and aD ordinance of one of the municipalities in pursuance thereof, approved in 1850, were unconstitutional and void because retroactive in operation. The Court say: The statute is not an ex post facto law, as it has no relation to crimes and penalties. However repugnant to logic and sound policy they may be, retrospective laws in civil matters do not violate the Constitution unless they tend to divest vested rights or to impair the obligation of contracts, neither of which can be predicated of the Act in question. * * * But the law under consideration does not seem to be obnoxious to severe censure. It is not strictly speaking a retrospective law. It authorizes the future imposition and collection of a tax according to a past assessment. This was within the legislative power.

There was a dissent, but the decision was followed by New Orleans vs. Cordeville, 13 Ann. 268; New Orleans vs. Poutz, 14 Ann. 853; New Orleans vs. Locke, Idem, 854, in all of which discussion was pretermitted, and Wheeler’s case cited as conclusive. The case of Locke was appealed to the U. S. Supreme Court, where it was said in affirming the judgment, “ the Act was not subject to the imputation of being retrospective. It did not operate upon the past, or deprive the party of any vested rights. It simply authorized the imposition of a tax according to a previous assessment,” repeating the language of this Court in deciding the case appealed. N. O. vs. Locke, 4 Wall. 173.

In New Orleans vs. Southern Bank, 15 Ann. 89, the same objection to a supplemental, assessment was made as in the case at bar, and the Court said the authorities cited are not applicable because the law, under which the assessment was made, provided that if any property be omitted in the assessment of one or more years, the same when discovered shall be-assessed for the years during which it was omitted. It is inferrible that but for such provision, the supplemental assessment would have been held illegal.

It is then manifest that Wheeler’s case and those that follow it held the Act then under construction not retrospective, because the tax was imposed upon an assessment already made, and the Southern Bank case justified a supplemental assessment under a law expressly authorizing it, passed antecedent to making such assessment. But the vital point is that the Constitutions in force at the date of each, of these decisions did not prohibit retroactive legislation. The Constitutions of 1845 and 1852 read :

No ex post facto law, nor any law impairing the obligation of contracts, shall be passed; nor vested rights be divested, unless for purposes of public utility, and for adequate compensation previously made.

The significant change in that Article made by the Constitution of 1868 was directed to the prevention of legislation, not included in the term ex post facto, and not covered by such retrospective laws as do not impair the obligation of contracts nor divest vested rights. Its language is: .

No ex post facto, or retroactive Imo, nor any law impairing the obligation of contracts, shall be passed; nor vested rights be divested, unless for purposes of public utility and for adequate compensation made.Art. 110.

■ The Act of 1878, which alone authorizes the amendment of the assessment of 1877, was passed under the domination of that inhibition.

The earlier Constitutions of the different States, following the Constitution of the United States, confined their prohibitions to two kinds of laws only, viz., ex post facto laws, and those impairing the obligation of contracts; and the decisions of their courts and of the federal court are based upon these restricted prohibitions, the term ex post facto having a settled technical meaning, which includes only such laws as relate to crimes and their penalties. As an illustration, it was held in California, whose Constitution has not any prohibition' of retroactive laws, “ as a general rule of statutory interpretation it is undoubtedly true that a statute should be construed to operate on the future and not on the past, but with the exception of those cases which come within the purview of prohibitory clauses in State Constitutions, or in the Constitution of the United States, we know of no case in which it is not competent for a State legislature to give a statute a retroactive effect.” Von Schmidt vs. Huntington; 1 Cal. 65.

Even this constructive enlargement of legislative power has been deplored, and one of the wisest of our Courts has said: all ex post facto laws are arbitrary, and it is to be regretted that constitutional prohibition of them has been restricted to laws for penalties and punishments. In a moral or political aspect an invasion of the right of property is as unjust as an invasion of the right of personal security. But retroactive legislation began and has been continued, because the judiciary has thought itself too weak, because it has- neither the patronage nor the prestige necessary to sustain it against the antagonism of the legislature and the bar. Yet had it taken its stand on the rampart of the Constitution at the outset, there is some reason to think it might have held its ground. Greenough vs. Greenough, 11 Penn. 495.

No doubt the inclusion in our constitutional prohibition of retroactive laws by designation had for its object the stemming of this current of legislation and judicial construction thus feelingly deplored.

Frellsen vs. Mahan, 21 Ann. 79, arose under the enlarged prohibition, and was an injunction to restrain the collection of taxes levied under an Act of September, 1868, on the assessment of 1867, the Court holding the law not retroactive and therefore not prohibited, saying: It has no retrospective effect. It does not operate upon any contract, or right, or subject in the past, but provides simply that a tax shall be levied upon the cash assessed value of the immovable property in the State according to the assessment rolls for 1867, the last assessment which at that time had been made, p. 103.

Here again the pivot of the decision is the existence of the assessment before- the legislative imposition of the tax, but even with this feature in the case likening it in some sort to the ease of Wheeler and its successors, it may be well questioned if the ruling does not betray that succumbing to legislative encroachment which the Pennsylvania Court stigmatised as too prevalent. It is worthy of remark that the Justice who read the opinion of the Court in the Wheeler case was one of the counsel in Erellsen’s case, and in his brief for the plaintiff, commenting on the innovation, made by the Constitution of 1868 upon those anterior to it, in the enumeration of prohibited laws, he said: the change was obviously made to prevent the possibility of any more such decisions as the Court was compelled to make in Wheeler’s case. If this provision had existed in the Constitution of 1845, that case would certainly have been decided the other way.

However this may be, the present case is distinguished from all the others by the circumstance that the assessment was not in existence— had not been made—and the law attempted to order that one should be made mi ne pro tune, thus retroaeting upon the subject matter of the legislation.

A local tax differs from the general or State tax in this, that the latter may be said to be levied when the tax roll is completed, while the former depends upon an annual municipal or parochial ordinance for its existence. It is the ordinance that levies the tax, and hence it was held that a person who had removed with his property out of the State, after the assessment of the State tax, but before any local tax 'was assessed, was not indebted for such local tax. Templeton vs. Board Lev. Com., 16 Ann. 118. In the case at bar the ordinance of the City was not adopted until after the year for which these taxes are demanded, and after the stock of the defendant Company had presumably gone in part into other hands.

• I think the case is clearly with the defendant. I know of no instance of a court sustaining an assessment, made as was this, unless an express Statutory provision for the case of omitted property existed, and to that effect is the quotation from Burroughs in the opinion of the Court.

All our revenue laws, except that of 1877, contain an express provision for putting on the rolls property, the assessment of which has been omitted. The Act of 1878 prevents the loss of revenue in the future from that cause, but cannot, in my judgment, cure the defect of the casus omissus in the law of the previous year. The Constitution of 1879 omits the words, or retroactive law,” inserted in that of 1868, and is identical in this respect with those of 1845 and 1852.

Rehearing refused.


author: Poohé, J. Manning, J.

text:
    No. 8809.
    Mrs. Sallie C. Day and Husband vs. The New Orleans Pacific Railway Company.
    The plaintiff in a suit cannot be allowed, after issue joined, to amend his original petition, if the amendment alters the substance of his demand. Hence, in a suit against a railroad company for cattle killing, plaintiff cannot amend his petition for the purpose of alleging that the Company had no right of way over his lands. A railroad’s responsibility, running trains under legal righfs, is different from that of a trespasser.
    A railroad company is responsible for cattle killed by its trains, through the negligence and carelessness of its employees. Stevenson vs. H. O. Pacific JR JR., affirmed.
    The failure of a railroad company to introduce the testimony of its employees, who were on the train at the time of the accident, raises a presumption of negligence against the company.
    Attorney’s fees incurred in the prosecution of a suit for damages cannot he allowed in the ' same suit.
    APPEAL from tlie Twelfth District Court, Parish of Rapides. Blaelcman, J.

      White & Thornton for Plaintiff and Appellant:
    1. It is admitted that the defendant killed all the stock mentioned in the petition.
    2. Title to real estate cannot be established by parol testimony, neither can the right of way to a railway company be proved by that species of evidence. Right of way passes the fee in the soil, not merely its use.
    3. The license of the owner of the soil permitting a railway company to grade the track, cannot he construed as a permission to run its engines and trains. One is a harmless act unattended with loss, while the other is dangerous and injurious to the property and stock of the land owner. The abuse of a license revokes the license. Dumont vs. Smith, 4 Denio, 319. Even when it is coupled with an interest, the formalities essential to confer and retain such interest must he observed. 6East,R.602j 8 East, 310, note,* 39 Eng. 0. It. R. 19 ¡ Bouvier’s L. D. 2, Title License.
    4« In this case, the defendant never asked, and plaintiff never gave it license or permission to run and operate its cars and locomotives over her land. Ho compensation has been made, secured or tendered her for the land taken. And the Company was upon her land, and within her enclosures, as a trespasser, at the time it killed and injured all her stock. Gray vs. The Hirst Division of the St. Paul & Pacific R. R. Co., 13 Minnesota, 315.
    5. Where, as in this case, a railway company has no right of way, it is ■prima facie liable for all injuries to stock belonging to the owner of the soil, and injured while it is within his pastures and enclosures, and not “running on the range.” And in such a case, the owner of the stock is not required to mind or keep them off the track; they are rightfully in his enclosures, and if they go upon the railroad track, they are not wrongfully there, and if the company injure them under such circumstances, it is, prima facie, liable for the injury. And under such a state of facts, it is entirely immaterial whether the id jury could have been avoided or not, after the stock was seen by the engineer. Mathews vs. The St. Panl & Sioux City Railroad Co., 18 Minnesota, 439.
    6. Even if the defendant were running and operating its cars and locomotives over plaintiff’s land, by virtue of a license from her, yet the railroad, having divided her pasture lands into two parts, making it necessary for her cattle to cross the railroad track, it would still be liable for cattle killed in crossing the track, for such right to cross is not inconsistent with the right of the defendant, even when compensation has been fully paid. "Waterbury vs. Housatonic Railroad Company, 23 Conn. 101; Abbott’s Digest Corporations, p. 623, No. 210.
    7. "Where a railroad fails to fence its track, it is held to a higher degree of care. This, even where the law does not require it to fence. Thompson on Negligence, Vol- 1, pp. 503 and 504, Section 7, and authorities there cited. In* Mississippi the want of the fence will increase the care to prevent injury, and will be weighed in measuring the question of negligence. Vicksburg, etc., R R. Co. vs. Patton, 31 Miss. 157.
    8. Where there was an express or implied contract, between the Railroad Company and the owner of the soil, that the Company should fence its track through the land owner’s field, and it fails to do so, it is prima facie liable for all injury to his stock. Thompson on Negligence, Vol. 1, p. 504.
    9. Where the plaintiff shows a state of facts indicating lack of care on the part of the Railroad Company {where it is sued for killing stock) then the burden of proof shifts, and the defendant Company must excuse itself, if it would avoid paying damages.
    10. Where parties are operating powerful and dangerous machinery they are held to extra care. Kerwhacker vs. C. C & C. R. R. Co., 3 Ohio State, p. 172, and reported in full in Thompson on Negligence, Vol. 1, p. 472.
    11. Absence from the trial of the employees of the Railroad Company, who were on the train at time of injury, raises a strong presumption of negligence against the Company. Thompson on Negligence, Vol. 1, p. 514, Section 6, and authorities there cited.
    12 Must have competent, trusty and skilful men. Appliances and machinery of train must be of good and sufficient character. Must exercise diligence and care to prevent injury to live stock. Thompson on Negligence, Vol. 1, p. 495. Must slacken speed, when cattle are on track, and ring bell and sound whistle. Ibid, pp. 506, 507.
    13. Where there is nothing to prevent the person in charge of the train from seeing obstructions on the track, it is presumed that the duty to keep a lookout ahead of the train was fulfilled, and that the obstacles were seen. Thompson on Negligence, Vol. 1, p.513, Section 2 and authorities cited. Hearn vs. St. Charles R. R. Co., 34 An. 162.
    14. Held by recent decision of Supreme Court of Alabama, that it is negligence to run a train at night at such a high rate of speed as will prevent the train being stopped within the distance at which the engineer can perceive an obstruction on the track by aid of the “headlight.” Memphis & Charleston R. R. Co. vs. Lyon, 62 Alabama Reports, 71.
    15. Plaintiff was not guilty of “contributory negligence.” Remote negligence does not bar recovery. Pierce on Railroads, p. 327, note 1, and authorities cited thereunder. See also p. 27, note 3, and authorities cited.
    16. In all Louisiana cases, where it has been held that “ contributory neglect ” of plaintiffs barred recovery, the negligence was proximate and occurred contemporaneously with the accident—aliter in the present case.
    17. Where the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Green-leaf on Evidence, 8th- Edition, Vol. 1, § 79. Therefore, when plaintiff alleges that defendant was not granted right of way by her ancestor and shows that no such right of way has been recorded, the onus is on the defendant to show that right of way had been granted; and if defendant fails to show this, the negative averment should be considered as proved.
    18. Plaintiff has the right to amend petition after issue joined, provided the amendment does not alter the substance of demand. Code of Practice, Art. 419.
    19. Where a party made certain statements to another, and those statements may have a material bearing on the point at issue, the party making the statement having since died, it is admissible to prove the statements by the party to whom they were made. It is the best evidence of which the nature of the case admits. Greenleaf on Evidence, 8th Edition, Vol. 1, p. 129, § 100, et seq.

    20. Where stock is killed outfight, or 'rendered entirely valueless, the measure of the damages which the plaintiff is entitled to recover is the value of the stock at the time of the injury. Thompson on Negligence, p. 538, Section 31.
    21. Where the railroad company refuse and decline to pay, and make a test case with the plaintiff, the fees of the latter’s attorney should bo estimated as a part of the damages.
    22. In a suit on a quantu/m meruit, the lowest sum that the evidence will justify does not necessarily mean the lowest that has been mentioned by any witnesses. It is the evidence, taken as a whole, which is submitted to the consideration of the Judge. Holley vs. Borland, 16 An. 186.

      Kennard, Rowe <& Prentiss and Andrews & Foster for Defendant and Appellee:
    1. Plaintiff must make his case certain.*
    2. The burden of proof is on plaintiff to show the Company’s negligence whenever' its liability for an injury to stock depends on its negligence, as when the cattle entered on the track at the place where the Company is required to fence the track.
    3. Proof that the injury was inflicted by the Company is not “prima, facie evidence of its neglect.”
    4. The rate of speed not being fixed by law, no rate is of itself evidence of negligence.
    6.The negligence complained of must have been the immediate cause of the injury sustained by the plaintiff.
    6. Negligence is a failure to do what a reasonable and prudent person would ordinarily have done, under the circumstances, or doing what such person, under the existing circumstances, would not have done. 95 TJ. S. 441, R. R. Co. vs. Jones.
    7. The degree of care which the law exacts and the omission of which is negligence or “ culpa,” is that degree which men of ordinary prudence would exercise in a given situation.
    8. The Company is not bound to fence its track in Louisiana. 15 An. 105, Knight vs. Opelousas R. R. j 23 Ari. 154.
    9. Where the circumstances point just as much to negligence on the part of ,orie party as to its absence, or point in neither direction, a recovery cannot be had. 31 An. 490, Murray ' vs. Pontchartrain R. R. Co.
    10. Under the evidence in the instant case, no damages can be recovered by plaintiff.
   The opinion of the Court was delivered by

Poohé, J.

This is a suit for the value of cattle alleged to have been killed by the defendant’s train, through the fault, negligence and carelessness of its employees.

Plaintiff charges that:

On the 19th of September, 1882, eight of her mules were thus killed and one badly injured.

On the 26th of the same month, two mules were killed.

On the 11th of October same year, one mule was killed.

And on November 11th same year, one mule and a jack, a valuable animal, estimated at one thousand dollars, were killed.

She also claimed attorney’s fees, valued at $250, incurred in the prosecution of this suit.

The defense is a general denial.

The judgment appealed from by both parties, allowed to plaintiff $ 1,225'for the damage caused on the 19th of September, and rejected her demand as to all other items in her petition.

Before examining the case on its merits, we must direct our attention to a bill of exception taken by the defendant to the ruling of the court, in allowing plaintiff to file a supplemental'petition, on the second day of the trial, charging that defendant had no right of way over her property, on which the mules were killed or otherwise injured.

Under such an allegation, the defendant could be shown to be a trespasser on plaintiff’s property, and as such held to greater responsibilty, for the destruction of property, than in a suit against a railroad company under ordinary circumstances.

Under the allegations of plaintiff’s original petition, the responsibility of the defendant Company, for injury done to property by the running of its trains, was to be tested under the general rules applicable in such cases to all railroad companies running their trains under legal rights; but under the allegations of the supplemental petition, the liability of the defendant to damages would be governed by the rules applicable to trespassers. And hence, the supplemental petition must be construed as presenting a different issue, and as altering the substance of the demand embodied in the original petition. C. P. Art. 419.

We therefore hold, that the supplemental petition should have been excluded, and that all the testimony offered in support of its allegation should have been rejected.

We shall adopt as our guide, in applying the evidence in the record to the test of defendant’s responsibility, the rule of law which imposes on the plaintiff in such suits the burden of proving negligence and carelessness on the part of defendant or of its employees.

In the recent case of Stevenson vs. Railway, this same defendant, we had occasion to review our jurisprudence and that of our sister States on this question, and to have firmly established that rule for the guidance of courts in this State.

The evidence shows, as our brother of the District Court correctly held, that plaintiff has utterly failed to prove such negligence as to the accidents of September 26th, October 11th and of November 11th, 1882.

It appears that at that time two trains of the defendant went through plaintiff’s land every nightj one a freight train at about 9:40, and the other a passenger train at about 1:37, and that none of plaintiff’s witnesses saw the accident on either of the occasions.

In fact, plaintiff has failed to show conclusively by which of the two trains her cattle were injured. Hence,, we are not informed of any negligence or carelessness on the part of defendant’s employees on those occasions. But as to the accident of September 19th preceding, the case is materially different.

The record shows the following facts to our entire satisfaction :

That plaintiff’s mules were injured by the freight train, which was about on time that night; that the mules were in an enclosed field, used as a pasture since the first of that month, to the knowledge of defendant’s employees; that the track lays in a flat country with level grade without interruption to the sight or vision, and that the night of September 19tb, up to ten o’clock, was a bright night.

The crippled and injured mules were found next morning laying on the side of the track, a distance of more than eight hundred feet intervening between the spot where lay the first mule to the spot where the last one was found.

It also appeared that the mules ran on the track in advance of the train, which, under orders of the Company, ran at the rate of only ten or twelve miles an hour. These and several other circumstances show, beyond a doubt, that the locomotive struck the mules one by one, and that no efforts were made to stop the train, and no chance allowed to the mules to jump off the track.

Under such circumstances it is safe to conclude, that the failure of the engineer to stop his train, at least after striking, the first mule, was gross carelessness and culpable negligence, which were the immediate causes of the destruction of so much property, and which were calculated to endanger the lives of other employees on the train.

This conclusion is strongly fortified by the failure of the defendant to introduce the testimony of any of its employees on that train. Thompson on Negligence, Vol. 1, p. 514.

We must, therefore, hold the defendant responsible for the mules killed and injured on that night, and we shall adopt the District Judge’s estimate of their value.

Plaintiff’s demand for attorney’s fees in this very suit cannot be entertained.

In the case of Campbell vs. Short, (8369), recently .decided, we held, that a party is not entitled to recover expenses incurred for fees of. counsel in a' suit for past damages.

Judgment affirmed.

Dissenting Opinion.

Manning, J.

I think the plaintiff should have judgment for the value of all the stock killed,, and refer to my dissenting opinion in Stevenson vs. the same defendant, for my reasons therefor.


author: Bermudez, C. J.

text:
    No. 8612.
    Maria A. Poirier, Widow and Tutrix vs. D. R. Carroll.
    A master is responsible to his employee for damages caused to him by an incompetent fellow*servant.
    Notioe to the employer of such incompetence, and promise on his part to remove the incompetent fellow*8ervaut, are not indispensable on the part of the injured employee, whose services are hired for a limited time, and who has a right to perform his contract and require his pay.
    Laborers, who hire themselves out to serve on plantations, have not the right of leaving the person who has hired them, nor can they be sent away by the proprietor, until the term of their engagement has expired, unless for good and just cause.
    The responsibility attaches, undoubtedly, where there is shown a formal notice and an express promise to change, and when a failure to remove and consequent injury resulting therefrom are established. The promise need not be explicit.
    Where the verdict of a jury allows disproportionate damages, the allowance will be reduced by the appellate court.
    APPEAL from tlie Civil District Court for the Parish of Orleans. Monroe, J.
    jBT. W. Ogden and A. B. Philips for Plaintiff and Appellee:
    Every act, whatever, of man that causes damage to another obliges him, by whose fault it happened, to repair it 5 the right of this action shall survive, in case of death, in favor of the minor children and widow of the deceased, or either of them, and in default of these in favor of the surviving father and mother, or either of them. R. C. 0., Article 2315. “ Every person is responsible for the damage he occasions, not merely by his act, but by his negligenoe, his imprudence or his want of skill.” Article 2316, R. C. 0.
    Where the object of the contract is anything but the payment of money, and “in cases of offenses, quasi offenses and quasi contracts, mnch discretion must he left to the Judge or jury.” R. C. 0., Art. 1934, Sec. 3d.
    “The damages in such cases, not being susceptible of exact computation, are nevertheless assessed according to the sound discretion of the Judge or jury, and if there are circumstances of aggravation in cases of offenses, or of gross negligence in oases of quasi offenses, it is quite proper in assessing damages to adopt the rule laid down in Sedgwick, of blend - ing together the interests of society and of the aggrieved individual, and allowing such damages as would serve to prevent the repetition of such conduct. This wholesome rule is one of the most important safeguards of society, and it would be dangerous to abandon it.” See concurring opinion in Black vs. Carrollton Railroad Company, 10 An. p. 40.
    The rule or maxim, respondeat superior, which forms part of the Roman Law, makes the master responsible for the negligence of his servants.
    The limitation of “ common employment,” as it is called, is undergoing severe critioism, both upon grounds of justice and policy, and the question of its abolishment is presented in leading journals. See article in January and February numbers of Central Law Journal.
    But the limitation, as recognized in England and America, had always been subject to many exceptions.
    Knowledge, upon the part of the common master, of the incompetence of the servant, by whose fault the injury has taken place, destroys the defense of common employment. The master's primary duty being to secure the servants from all risk arising either from imperfect or inadequate machinery, or unskilful or incompetent fellow-servants of any grade. See case of Laning vs. the New York Central Railroad Company, p. 939, 2 vol. of Thompson on Negligence.

      The question as to whether the injured servant has, by remaining in the servioe, after discovery of the want of skill or incompetence of his fellow-servant, waived his objection upon that score and released the master from responsibility, is always a question to be determined by the jury, after consideration of the fact of remaining with knowledge, and all the other facts and circumstances proved in the case. See same authority and also “ Shearman & Redfield’s Commentaries on Negligence,” p. 112.
    “ The doctrine, itself, is but a branch of the general law of waiver and the real question to be determined in each case is whether, under all the circumstances, the master had a right to believe and did believe that the servant intended to waive his objections to the unfitness of his fellow-servant.”
    Knowledge upon the part of the servant injured is not of itself, in point of law, an answer to the action. See Laning vs. The New York Central Railroad Company, p. 942 of Thompson on Negligence.
    A servant, by continuing in the service, after knowledge of defects in the machinery he is obliged to use, does not assume the risks dependent upon the use of such machinery, unless he so continues without objection or protest or without being induced by his master to believe that a change will be made. Thompson on Negligence, p. 1009, and authorities there quoted. The question is always one for the jury.
    There is no case, said Mr. Justice Willes, deciding, that where the employer and servant are both aware that the machinery is in an unsafe state, and the servant goes on using it under a reasonable belief that it will be set right by the employer, and it is not set right, and he suffers an injury, he cannot sustain an action. Ibid, p. 1010, vol. 2d.
    If the machinery or appliances, though dangerous, are not of such a character that they may not be reasonably used by the exercise of skill and diligence, the servant does not assume the risk. The question of contributory negligence is always one of fact to the jury. Ibid, p. 1011.
    “ The principle laid down in Priestly vs. Fowler, and all the examples there given of their application, relate to the conveniencies and casualities of ordinary or domestic life, and ought not to be strained so as to regulate the rights and liabilities arising from the use of dangerous machinery.” See opinion of Byles, J. in Holmes vs. Clarke. Thompson on Negligence, 2d vol. p. 967.
    The jurisprudence of Louisiana has never gone to the result sought to be maintained by defendant in this case. In the case of Clement Camp vs. The Church Wardens of the Church of St. Louis and J. P. Kirwin, the learned Chief Justice Eustis, denied both the justice and policy of the rule laid down in Priestly vs. Fowler, adhering to a decision of the Court of Cassation, which refused recognition to the limitation of common employment. See 7 An. p. 321.
    The limitation has certainly never been sufficiently ingrafted in our system to warrant this Court in going to the extreme claimed for it in the case at bar.
    There are but two decisions of this Court in which the doctrine of common employment is considered. Cases of “Hubgh vs. Carrollton R. R. Co.,” reported at p. 496 of 6th An., and “Camp vs. The Church Wardens of Church of St. Louis and J. P. Kirwin,” 7 An. p. 321.
    In the first of these decisions the principal discussion was upon “the right to an action for damages caused by the homicide of a free human being.” This question evidently received the special attention of the Court, and its decision, adversely to the right of action, really decided that case. The decision of other questions cannot be said to have been necessary after the right of action had been denied. What is said by the Court in reference to these questions may therefore be regarded as in some sense obiter. In refusing the rehearing in the Hubgh case, it will be observed that Chief Justice Eustis confines himself almost entirely to the question of the right of action. The important question of the liability of the master to a servant for injury received from thenegligence or incompetence of a fellow-servant cannot be said to •have received that careful consideration which it did in the subsequent case of Camp vs. The Wardens of the Church of St. Louis and J. P. Kirwin. . .
    In the Camp case the decision in the Hubgh case was before the very court, the identical lTudges, who decided it—it was indeed still under advisement. The court upon this doqtrine of common employment was divided. The Chief Justice opposing its application while he admits that the Hubgh case recognized it. He declares that the Court of Cassation “recognizes no such exception from the general rule, of the responsibility for acts of servants in the business of their employment.” This case of Camp vs. The Wardens, having divided the Supreme Court, rested finally on the decision ofthe lower court, whicli was against the doctrine of common employment. The question cannot, therefore, with any propriety, be said to have been settled in Louisiana by decisions, as it was elsewhere, and we do not require legislation, as in England and in some States of the Union, to get rid of it. Its impolicy and injustice are becoming evident among all the people where it has prevailed and they are endeavoring to undo the mischief by legislative action. See “Employers’ Liability Act,” passed by English Parliament and entitled “An act to extend and regulate the liability of employers to make compensation for personal injuries suffered by workmen in their service.” This Act went into operation January 1st, 1881,' and so far as railroads are concerned has abolished the distinction.
    The question to this Court is whether or not it will adopt a rule, which, after fifty years trial, England is abolishing as unjust. Every day’s experience makes it more manifest, that the doctrine ought not to be allowed. No more striking illustration of its impropriety could be presented than the case at bar. Some dozen persons, all employees, were either killed or maimed by a species of carelessness, the most revolting imaginable. Lord Abinger and Chief Justice Shaw did not well forecast the future and see to what an extent dangerous machinery would come into employment, or they could never have sanctioned a principle so full of peril to honest and faithful employees.
    Byles, J., in the case of Holmes vs. Clark, given above, restricts the doctrine “to the conveniences and casualties of ordinary life.” He will not allow it as to dangerous machinery# He saw the peril that must follow to honest workmen from an unrestricted application of a rule by which immunity is not only given, hut a premium actually set upon the carelessness of selfish employers.

      JE. D. White and J?. D. Saunders for Defendant and Appellant:
    1. Where a servant is injured by the negligence of a fellow-servant, the general principle is that the injured servant cannot hold the master liable in damages. Thompson on Negligence, Yol. II, pp. 917, 969; Cooley on Torts, p. 542; Hubgh vs. Railway Co., 6 La. An. 495.
    2. This rule governs in all cases, unless it be shown that the master negligently employed, or negligently retained an incompetent servant. Cooley on Tortq, p. 558; Thompson on Negligence, Yol. II, p. 974.
    3. But the above exception does not protect the servant who either entered upon or remained in the employment, with full knowledge of the incompetency of the fellow-servant, and of the danger resulting therefiom.
    The servant is. in such case, presumed to have assumed the risk from such incompetency, whether the master did or did not know thereof, unless it he shown that the master promised to discharge the incompetent servant. Thompson on Negligence, Yol.' H, p. 1009, and cases there cited. Hough vs. Railway Co., 100 U. S. 214; Dillon vs. Railway Co., 3 Dill. 328; Laning vs. Railway Co., 49 N. Y. 534; Hayden vs. Manf. Co., 29 Conn. 558-9.
    4. The burden of proof is on the servant in a suit of this sort, to establish affirmatively:

      a. The incompetence of the fellow-servant.
    b. The master’s negligence in employing or retaining him.

      c. The making by the master of the alleged promise to discharge. Woods on Master and Servant, §419, p. 802; §408, p.783; Cooley on Torts, p.564; Shearm. &Redf. on Negl. §99, p. 128 5 Pierce on tlie Law of Bailroads, p. 382 ; Underhill on Torts, p. 329 5 Hicks vs. Martin, 9 M. (La.) 48; Eansom vs. Labranche, 16 La. An. 121; Kirk vs. Polsom, 23 La. An. 584; Thompson on Hegl., Yol. II, p. 1053, §48.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action in damages by a widow and tutrix. The damages claimed are said to have been occasioned a husband and father by the incompetence and negligence of a fellow-servant in defendant’s employ, and to have consisted in the endurance of excruciating pains which lasted some twenty-four hours, ending with loss of life.

The answer contains a general denial and, in exoneration of liability, a charge of contributory negligence.

Prom the judgment based on the verdict of the jury, the defendant has appealed.

The action is brought under the provisions of Articles 2315, et seq. pf the E. C. C., which are to the effect, that every act whatever of man which causes damage to another, obliges him by whose fault it happened to repair it j the right of such action surviving, in case of death, in favor of the minor children and widow of the deceased, or either of them, and the responsibility being fixed on the person occasioning the damage, not only for his. own deed, but also for that of persons for whom he is answerable, and for the injury caused by things in his custody. It is specially founded on Article 2320, which declares, that masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed, the responsibility attaching when the master might have prevented the act which caused the damage and has not done it.

We do not propose to take up and analyze the conflicting testimony of the twenty odd witnesses heard in this case, to ascertain and declare what facts were proved. We will remain satisfied with announcing our conclusions, which are the result of attentive examination and study.

Alfred Poirier was a skilled engineer. In November, 1879, he was employed by the defendant to take off his sugar crop from his planta- . tion, and was given one Eolf as his assistant.

In the course of time, apprehending that Eolf was incompetent and negligent, Poirier made it his duty to apprise J. E. Carroll, the plantation manager, of his deficiencies and shortcomings, accompanying the information with a request for a change of that assistant. The answer to this was, that if another assistant could be got as cheap, the change -would be made. The testimony of Chaperon, a disinterested witness, is entitled to more weight on this subject than that of J. R. Carroll, with which it conflicts, for the reason that the latter had an interest in screening himself from responsibility towards the owner of the plantation, in case of dereliction of duty on his part and consequent injury inflicted on his principal.

On the 20th of January, 1880, between two and three o’clock in the morning, Poirier, then off duty, was asleep in a bunk which he usually occupied over the boilers. His assistant Rolf was at the time in charge of the engine.

All of a sudden an explosion took place, by which Poirier was so severely injured, that he died from the effects of it after suffering pains, the intensity of which, though somewhat established, may be better imagined than expressed.

It is proved that the explosion is attributable, not to any defect in. the machinery, but to the fact that cold water was used and pumped by Rolf into a boiler, when the water in it had sunk below the last guage cock, and that the accident could have been prevented by his pulling the fire out.

Under such a state of facts, the defendant substantially charges that, as Poirier had full knowledge of the incompetency of Rolf, his fellow-servant, and of the possibility of danger and accident resulting therefrom, and yet remained in his master’s employ, he is presumed to have assumed voluntarily the risks attending and waived all right to personal security and to indemnity for injury to his person.

It is further urged that, in any contingency, he was guilty of contributory negligence, and from no standpoint can he recover.

It is finally insisted that the District Judge erred in refusing to give to the jury charges asked, and that the verdict was erroneous.

Hence, we consider that the question presented by both litigants can be well stated mainly to be: ,

Whether, where a servant, who is aware of the ineompetency of his fellow-servant, notifies his master of the same, but continues in his service, and sustains injury in consequence of the deficiency or negligence of such fellow-servant, whether notice was or not given to, or a promise made or not by the master—recovery can be had from him for damages suffered by the servant.

The general principles governing a case like that presented are unambiguous. The common and civil law are alike on the subject.

It is conceded by the defendant to the extent that, where a servant is injured by the incompetence and negligence of a fellow-servant, the injured servant cannot hold the master liable in damages, unless it be shown that the master negligently employed or retained an incompetent' or careless servant. The concession is not a liberal one. See Thompson on Negligence, Yol. II, p. 917, 969, 974; Wharton on Neg. § 324; Cooley on Torts, pp. 542, 558; Pierce on R. R. p. 379.

But it is claimed further, that the servant, in the excepted cases, is not protected, 1st, unless it is shown that the master was notified and promised to discharge the incompetent servant; 2d, unless the,injured servant was not guilty of contributory negligence.

The proposition might be yielded, except so far, however, as it implies,as an essential element for recovery, the pre-existence of a promise or some engagement on the part of the master to discharge the incompetent servant.

No doubt cases have arisen in which proof of an express promise, or of an inducement having been adduced, recovery was allowed, but it must not be inferred from such incidents that a promise eo nomine, whether formal or virtual, was declared' to be an indispensable condition sine ■qua non. 6 Hul. N. 349; 7 Ib. 937; 3 Dillon, C. C. Rep. 328; 49 N. Y. 534.

In the Hough case, 100 U. S. 225, the Court said:

There can be no doubt, that when a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby, within such a period of time after the promise as it would be reasonable to allow for its performance.”

But the Court does not assume to go to the length of saying, that unless the'promise was explicit, recovery could not be had. It has left it to be determined whether any promise is necessary, and whether an implied promise, if one be indispensable, from which the complaining servant may deduce and entertain a hope, however weak or slim, is not sufficient even in the absence of a contract for the hire of labor for a limited time. In the case of Laning vs. Central R. R. Co., 49 N. Y. 534, in which the limitations and exceptions put to the rule were considered, the Court said, Polger, J.:

“ The duty of the master, as it is sometimes put, or his implied contract with his servant, as it is differently intimated, leads to another conclusion. That duty or contract is to the result, that the servant shall be under no risks from imperfect or inadequate machinery, or other material means and appliances, or from unskilful or incompetent fellow-servants of any grade. It is a duty or contract to be affirmatively and positively fulfilled and performed. And there is not a performance of it until there has been placed for the servant’s use perfect and adequate physical means, and for his helpmeets fit and competent fellow-servants, or due care used to that end. That some general agent, clothed with the power to make performance for the master, has not done his duty at all, or has not done it well, neither shows a performance by the master, nor excuses the master’s non-performance. When it is done, and notuntilthen, his duty is met or his contract kept. * * * If a master’s personal knowledge of defects be necessary to his liability, the more he neglects his business and abandons it to others, the less will he be liable.” We therefore hold, continues the Court, that a master is liable to his servant for an injury caused by the incompetency or want of skill of a fellow-servant, whether it existed when the fellow-servant was hired, or has come upon him since the hiring, the fellow-servant having been in the first instance hired or afterward continued in service, with notice or knowledge, or the means of knowledge of this lack. The duty of the master to his servants is to use reasonable care to provide and employ none but competent and skilful servants, and to discharge from his service, on notice thereof, any one who fails to continue such.

• Applying the rule to the case before them, the Court concluded, saying that they are of opinion that the defendant was negligent towards the plaintiff in retaining the fellow-servant in its service, after his habit of drinking to drunkenness was known to the general agent.

In the present case, however little, Rolf’s negligence may have to be considered, it is indubitable that he was incompetent and was previously known to be so; that Poirier notified Carroll, and that some sort of a statement or answer was made to him, the purport of which was to give him.some hope that a change would be accomplished. The word if, testified to by Chaperon, the witness, can be well understood as meaning when.

On principle, justice and law, Carroll was bound to give to Poirier a competent assistant. When he was notified by Poirier of Rolf’s incompetence, his duty was to have discharged him. He admitted that incompetence by promising a change when he would get as cheap an assistant.

. Had he discharged Rolf and replaced him by a competent man, the explosion directly caused by Rolf would not have occurred, and Poirier would not have been the victim of it.

His omission to make the change, after notification and knowledge of the incompetence, was negligence on his part, and on that account was enough to fix a liability on the defendant, his employer, for damage sustained in consequence. *

The fact that Poirier continued in the service of the defendant canr not be considered as a waiver or as contributory negligence, barring a recovery of damages.

Eminent text writers have said on this subject:

“ The mere continuance of a servant in his work has been treated as conclusive evidence of his having waived objections to defects in his associates or his materials. Such rulings are unjust, because a servant has the same right to complete his contract, in reliance upon its original terms, that anyone else has. * * * The real question to be determined in each case is : whether, under all the circumstances, the master had a right to believe and did believe, that the servant intended to waive his objection to the unfitness of his fellow-servant, or the defect in the materials provided for the work.” See Shearman and Redfield on Neg., p. 112.

Poirier had a contract with Carroll for the hire of his services, which was for the limited time required to take off the crop, that is, several months at a monthly salary, under which he was bound to serve for the grinding season.

The Code provides, in this respect, that: laborers who hire themselves out to serve on plantations have not the right of leaving the person who has hired them, nor can they be sent away by the proprietor until the term of their engagement has expired, unless good and just causes can be assigned.

Had Poirier thrown up his engagement and left his employment, owing to his fears and apprehensions of danger and injury which might have resulted from his conception of Rolf’s incompetence, and had he afterwards brought an action for payment, and been unable to establish with legal certainty the existence of a just and good cause, to the satisfaction of a court, with a burden of proof upon him, the consequence would have been to him the loss of not only his pay Tor time to come, but also the return to his employer of that already received. R. C. C. 2748, 2750.

Poirier was not bound to undertake that risk. He had a right to remain, notwithstanding his fears of danger. By remaining and doing his duty, he would be entitled to pay and thus meet his responsibilities.

Prom the fact of his thus continuing, we are averse to infer that he waived his right to a fitness of his fellow-servants, and to a life which he could not in conscience rashly expose, as it was not only useful to himself, but precious to his wife and minor children, who depended on him for support and maintenance.

We do not understand the doctrine of common employment announced in Priestly vs. Fowler, 3 Mer. and W. 1, often criticised, possibly overruled, and in Hubgh vs. R. R. Co., 6 An. 490, as having a direct bearing upon this case.

In the case of Laning, to which we have already referred, and which was decided by the N. Y. Court of Appeals in 1872, the Court said, speaking of the fellow-servant:

“ If he remains without promise of a change, or other like inducement, it is for the jury to say whether or not he voluntarily assumed the risks of defective machinery or of incompetent servants, whereof he had full and equal knowledge.” 49 N. Y. R., pp. 941-2.

But it is claimed that, be all this as it may, Poirier contributed to his own death by sleeping over the boilers.

It is established that the spot was designated as the corner which had been fixed for the engineer by the master; thatitwas customary for him to sleep there. Sleeping over the boilers of an engine is not in itself an acknowledged act of imprudence. It shows no want of ordinary care, and has not a proximate connection with the injury complained of. There to sleep is comfortable in the winter, and is a fact of frequent occurrence with persons who travel by water, whether navigating rivers or seas. We attach little importance, if any, to the conflicting statements made by witnesses, whom the jury did not believe, that Carroll notified Poirier not to sleep there.

No doubt, precisely because of his suspicions of Rolf’s want of skill or negligence, and of his uneasiness on thesubject, Poirier, as an overcautious and conscientious servant, had made it his duty to remain close by, in order, at the least notice or noise, to be on hand and ready to protect both life and property.

To blame him and to visit want and misery on his helpless widow and orphans, on account of his devotion for his master’s interest, is a defense which comes with exceptional ill grace from his thankless employer, and to which we think it our duty to turn a deaf ear.

The District Judge was asked to instruct the jury, that if the servant remained after discovering the danger, and without promise of removal by the master, he did so at his peril and has no claim for damages, if afterwards injured by the known danger.

The Court charged the jury, that if they found that Poirier had been employed under a contract for a specified time, and was discharging his duties under such contract, then and in that case, it was immaterial whether the defendant, upon being informed of the incompetency of the assistant engineer, promised to discharge him or refused to do so.

The charge asked required explanation and qualification. The Judge was not bound to give it as put. That which he gave accords with our views, and is justified by law.

We have read with interest the ably guarded written charge given by our learned brother to the jury, and which contains instructions on nine different points, covering nearly six pages of the transcript, and remain satisfied that it was well calculated to enlighten, the jury, and that it informed them correctly of all material points of fact and law to which their attention should have been directed. We notice no bill to such written charge.

The verdict of the' jury was for $12,000. We think it is excessive,' and should be reducéd. The suit is not, nor could it be brought for-damages sustained in consequence of the death of Poirier, but for the suffering and pains which he endured from the time of the explosion-' to that of his death, a period of some eighteen hours, during part of which he was apparently insensible or unconscious. Whatever the endurance was, his widow and minors cannot recover heavier damages than he would have been entitled to demand and receive had he sur-; vived, fully recovering at the very moment when he actually died.

■ In the case of Vredenburg, in which the unfortunate victim had been, sprung upon by a ferocious bear which lacerated his flesh, and suffered torture ending after twenty-eight days, the jury had allowed $15,000, but their verdict was reduced to half.

We do not think that, under the circumstances of this case, from which it appears that the suffering endured by the deceased did not last twenty-four hours, the plaintiff should be permitted to recover more than twenty-five hundred dollars.

It is, therefore, ordered and decreed that the verdict and judgment thereon and appealed from be amended, by striking therefrom the words twelve thousand dollars,” and inserting in place thereof-' the words “twenty-five hundred dollars,” ($2,500) and that thus amended the same be affirmed; the cost's of appeal to be paid by, plaintiff, and those of the lower, court by the defendant.