text:
    No. 11,593.
    Francois Rouge vs. The Larfargue Bros. Co., Limited.
    A creditor of the Lafargue Bros. Co., Limited, recognized as such by judgment of the Circuit Court of the United States, having caused a writ of ft. fa. to issue, under which a seizure was made, certain parties alleging that they were qualified liquidators of the corporation under an appointment from the Civil District Court for the parish of Orleans, in the suit of liougc vs, The Lafargue Bros., that they were in possession of the property, rights and credits of the corporation, and that the seizure made was an illegal interference with their administration in the State court, ruled in the Circuit Court, the seizing creditor to show cause why an injunction should not issue restraining him from further proceeding. On the trial of this rule the Circuit Court ordered the seizure to he quashed unless within a time fixed the seizing creditor should file a suit in the Civil District Court, attacking the validity of the order appointing the liquidators, hut holding matters in the meantime in abeyance. The seizing creditor, within the time fixed, obtained a rule in the suit in which the liquidators were appointed on the plaintiff, the defendant corporation and the liquidators to show cause why the order appointing liquidators should not be annulled, urging among grounds that the court was without power or authority to make the appointment. Defendants excepted to the rule on the ground that the plaintiff in his rule disclosedno cause of action; that the proceeding by rule was unauthorized and not in conformity to the orders of the Circuit Court, and that the plaintiff should have resorted to a direct action. The District Court maintained the exception reserving to plaintiff in rule the right to bring a direct action to annul. Held:

    The Circuit Court was obviously not concerned as to the manner in which the seizing creditor should proceed in the State court; that it was the attack itself, not its mode, which the court had in view.
    The liquidators having themselves, in the rule in the Circuit Court, ruled the seizing creditors to show cause why an injunction should not issue against them, could not object to their doing so by way of answer, and the United States Court having, instead of passing upon the issue, relegated the parties to a trial of the same by the court which granted the order, the rule taken in the Civil District Court was substantially nothing more than cause assigned by the seizing creditors in answer to the rule of the liquidators, though it might not be so in appearance. All parties in interest were before the court which made the order of appointment on equally advantageous ground, and it would be subordinating substance to form to require new proceedings by direct action.

      APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Frank N. Butler for Russmann & Galland, Plaintiffs in Rule, Ap - pellants.

      J. Numa Augustin and W. J..Waguespaek for Liquidators, Defendants, Appellees.
    Argued and submitted November 5, 1895.
    Opinion handed down November 18, 1895.
    Rehearing refused December 16, 1895.
    Russmann & Galland, creditors of the Lafargue Bros. Co., Limited, obtained a judgment against that corporation in the Circuit Court of the United States, upon which they caused execution to issue, and under this execution seizures by garnishment were made. When matters were in that situation a rule was served upon them in the Circuit Court, calling on them to summarily show cause why an injunction should not issue prohibiting them from proceeding further in the matter of the seizures. The rule was issued at the instance of Ludovic Lafargue, Adolphe Schreiber and Paul Capdeville, who, in their application therefor, alleged that they had been appointed liquidators of the defendant corporation in the suit of Francois Rouge vs. the Lafargue Bros. Co., Limited, in the Civil District Court for the parish of Orleans, and had qualified as such; that they had been in the full possession of all the assets of the corporation under the orders of the said court, and had been actively engaged in the liquidation of the corporation, and had presented a provisional account of administration, on which Russmann & Galland had been placed as judgment creditors when that firm took out the garnishment proceedings referred to; that all the rights, property and credits of the corporation were at that time legally in the possession and under the control of the liquidators, as officers actiug under the authority and orders of the Civil District Court, a court of competent jurisdiction, under a judgment of that court which had never been attacked directly or appealed from, but was in full force and effect, and that the rights and credits which the plaintiffs, Russman & Galland, were seeking to realize and control were in the hands of the liquidators for distribution according to law, and that the seizure of Russman & Galland was an attempt to illegally wrest the control of those assets and credits from their hands, which would work irreparable injury to the proper and legal adminstration of the corporation.
    Upon the trial of this rule the court ordered that the garnishment be quashed, unless the judgment creditors, within five days, filed a suit in the Civil District Court attacking the validity of the appointment of the liquidators, and directing that in the meantime matters in the Circuit Court stand in abeyance.
    Acting upon the directions of the Circuit Court Russmann & Gal-land caused a rule to issue in the suit of Francois Rouge vs. The Lafargue Bros. Co., Limited, to show cause why the appointment of the liquidators should not be set aside as having been illegally and improvidently issued. The three liquidators, the Lafargue Bros. Co., Limited, and Francois Rouge (the plaintiff in the suit) were made defendant in the rule.
    Defendants in rule excepted that the nullity of the judgment appointing the commissioners could be sued for only by direct action; that the proceeding taken did not conform to the orders of the Circuit Court, which required that a suit not a rule be taken, and that the allegations of the rule did not disclose a cause of action in Russman & Galland to ask for the nullity of the judgment. The District Court sustained the exception and dismissed the suit, reserving to plaintiff the right to bring a direct action.
    Plaintiffs in rule appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

In the rule taken by Russmann & Galland, they maintained that the liquidators had never been legally appointed, confirmed or qualified as such, for various assigned reasons, one of the reasons assigned being, that the court was without jurisdiction in the premises, and could not legally take action in the matter of the appointment.

On the argument of this case, counsel of appellants declared that the action taken by the District Court was nothing more than substantially the approval and homologation of proceedings of a meeting of stockholders of the defendant corporation, at which the stockholders selected the three persons named as liquidators of the corporation, the order of homologation being followed by an order converting these liquidators so extra-judicially selected into jucicial liquidators, with all the rights and powers of judicial receivers authorized to stop judicial proceedings and otherwise interfere with creditors in the enforcement of their legal rights; that the order complained of was a mere confirmation, at the instance of Rouge, of those proceedings. The record in the case of Rouge is not in the transcript. Counsel should remember that while the judge of the lower court may take judicial notice of his own proceedings, this court has no knowledge of what occurred below, except through the record as brought up. Steps should have been taken in the lower court to have the proceedings in the suit of Rouge brought before us. We see enough of the situation, however, to warrant us in our opinion, in coming to a legal conclusion. The situation of these parties is a peculiar one. The plaintiffs in rule were proceeding regularly in the execution of the judgment obtained by them, when they were met by a rule to show cause why further proceedings should not be stayed by injunction, by reason of plaintiffs in rule having been appointed liquidators of the defendant corporation in an order of the Civil District Court, the effect of which, it was claimed, was legally to tie the hands of creditors, and prevent their proceeding against the property of the corporation.by way of execution. The liquidators made the order of court the sole basis of their demand. If the defendants in that rule were of the opinion that the court which issued the order was without jurisdiction or power to grant the order which was made the basis of the demand, the defendant, we think, had the legal right, by way of defence and cause shown, to set up that contention. Whether or not they would succeed in that contention is a different matter. We do not think that the plaintiffs in that particular rule, having themselves invoked Russmann & Gailand to show cause, could object as to the mere form of their doing so by way of answer. Paxton vs. Cobb, 2 La. 139; Quine vs. Mayes, 2 Rob. 510; Surgi vs. Colmer, 22 An. 22; Stevenson & Co. vs. Riser, 23 An. 421; Succession of Coco, 32 An. 329; Borde vs. Erskine, 33 An. 879; Beltran vs. Gauthreaux, 38 An. 106; Succession of Mercier, 42 An. 1138; Baker vs. Michinard, 17 An. 251; Pasteur vs. Lewis, 39 An. 5; Windom vs. McVeigh, 93 U. S. 283.

The Circuit Court, instead of attempting to pass finally upon the issues, conservatively relegated the parties to the Civil District Court for a decision upon them. The present proceeding, though not so in appearance, is substantially nothing more than cause assigned by Russmann & Galland (responsively to the rule of the liquidators upon them to show cause) why an injunction should not issue in the Circuit Court restraining them from further proceeding with their seizure in the Circuit Court. In dealing with the question whether a rule was the proper remedy or not to be resorted to by Russmann & Galland, we think the peculiar circumstances under which it was resorted to can fairly be considered, and added as a feature in the determination of the general question of remedy.

We do not conceive that the Circuit Court in directing that in the absence of the filing within five days by Russman & Galland of a suit attacking the validity of the appointment of the liquidators the garnishments should be quashed, attached any particular significance to the manner in which the plaintiffs should proceed in the District Court by way of attack. It was the attack itself, not its mode, which the court had in view. It was (as we have said) substantially a transfer of the rule to the District Court. Plaintiffs’ right of attack was, however, independent of any order of the Circuit Court.

We are of the opinion that plaintiffs in rule were authorized to proceed as they did. If the District Court was without power, authority and jurisdiction to grant the order it did, and it was an absolute nullity, the sooner that fact be ascertained and announced the better for all parties.

It is to the interest of all that litigation by which the common property of the debtor is being eaten up by costs should terminate, and that the rights of parties should be determined as speedily as possible, consistently with justice. We see no good reason for forcing plaintiffs to a direct action; all persons in interest are now confronting each other on equally advantageous ground, and it wonld be subordinating substance to form, to require new proceedings; we see nothing to be gained by it. Jeffries vs. Bellville Iron Works, 15 An. 20; Letchford vs. Dannequin, 16 An. 150; Hackett vs. His Creditors, 43 An. 124; State ex rel. Brittin et al. vs. City, 43 An. 833; State ex rel. Brewing Co. vs. Judge, 46 An. 100; State ex rel. Gaiser vs. Judge, 46 An. 110; State ex rel. Fox & Searles vs. Judge, 46 An. 114; State ex rel. Feldner vs. Judge, 46 An. 116.

The judgment appealed from is hereby annulled, avoided and reversed, and the case is remanded for further proceedings according to law.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 11,867.
    Erman & Cahn vs. Theo. Lehman.
    The privilege resulting from a seizure or attachment is subordinate to privileges legally existing upon, the articles seized at the time of their seizure.
    Where a party claiming to act as the authorized agent of an Ohio firm undertakes in Louisiana to enter into, and does enter into an absolute present contract of sale for a certain number of goods of a particular kind and description fora fix* d price on credit, and there being no goods of the firm of that kind in Louisiana at that time the party acting for ti»e firhi notifies it of the sale and instructs it to ship and deliver the goods to the purchaser under the contract, and the same has been done accordingly, the firm is entitled to a vendor’s privilege to secure the payment of the unpaid price as resulting from a Louisiana contract.
    The fact that the firm, in order to execute the contract, has in Ohio to select out of a larger number of the designated articles, certain special articles to bring them directly under the operation of the contract, or that it could have repudiated the contract, does not affect the question The firm having affirmed the contract made on its behalf, the affirmance would give to the contract all the force of an origin «1 authority in the agent to have so.ld at the time, in the place, and in the manner he did. The affirmance being of a sale made by an agent as in presentí and as an absolute sale it would stand affirmed as made with its character so fixed by the parties to it. There would be either no sale at all, or one as made. Omnis ratihabitio retrohcefoir et mandato cequi paratur.

    The decision in McLane vs. His Creditors, 47 An. 135, reaffirmed.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Ellis, J.

      Lazarus, Moore & Luce for Plaintiffs, Appellants.

      W. S. Benedict for Elias Block & Sons; Bernard Titche for Lachman & Jacobi; Buck, Walshe & Buck for Mehaloviteh, Fletcher & Co., and Old 76 Distilling Company; Frank L. Richardson for Heitman Bros, and R. Monie & Bro., for Opponents in Rule, Appellees.
    Argued and submitted November 21, 1895.
    Opinion handed down December 2, 1895.

      Various attachments were taken against the defendant, Theodore Lehman, under which his stock of merchandise, liquor, etc., were seized by the civil sheriff. The attachments of Erman & Oahn and A. Erman were prosecuted to judgment and the privilege resulting from their attachment was recognized. The stock was sold, and out of the proceeds the first attaching creditor was paid the amount of his judgment. The present contest is over the remainder of the proceeds, plaintiffs, Erman et als., as attaching creditors, claiming to be paid by reason of their privilege, while other parties claim to be paid by preference over them out of the proceeds of sale of different articles upon which they claim vendors’ privilege.
    Each of these last named parties pointed out the property on which they claimed a privilege before the sale was made. Separate appraisements and sales were made, and the sheriff kept the proceeds of the different lots, thus pointed out, separate and distinct.
    After the sale the sheriff filed in court an account in which, after presenting the disbursements claimed to have been made and the costs, and pro-rating them among the various parties, he prepared a proposed distribution of the funds according to the rights of parties as he understood them to be, and ruled all parties into court to show cause why the distribution should not be made in accordance therewith. The parties to this rule were the plaintiffs, Erman & Oahn, Mehalovieh, Fletcher & Co., The Old 76 Distilling Company, Lachman & Jacobi Company, Elias Block & Son, Heitman Bros., and Monie Bros.
    By the sheriff’s tableau he proposed to pay over to each of the parties claiming vendor’s privilege the net proceeds arising from the sale of the article on which the privilege was asserted.
    Erman & Oahn, plaintiffs in. the original suit, opposed the sheriff’s tableau of distribution and the payment he proposed to make to the parties mentioned above for the reason:
    1. That none of the said parties have any valid claim of indebtedness against the defendant.
    2. That if they have any valid claim, they have no lien, privilege or rights whatever on the proceeds of the sales accounted for by the sheriff, the contracts for the sale of the merchandise sold by them to defendant not being Louisiana contracts but having been made, entered into and consummated out of the State of Louisiana in States where the common law prevails.

      3. That the goods sold, the proceeds of which were accounted for by the sheriff, have not been identified by the parties as being the goods alleged to have been sold by them to defendant, and are, in truth and fact, not the goods so sold and unpaid for as claimed.
    4. That in any and all events, opponents being domestic and attaching creditors, with attachments priming all the sequestrations which the said parties obtained against defendant, and by virtue also of their writ of fl. fa., under which the proceeds were held by thp sheriff, and of their lien and privilege resulting from the seizures under attachment and fl. fa., are entitled to be paid by privilege, preference and priority over and before any of the said parties, or any other creditors of the defendant out of the proceeds.
    On the trial of the rule the District Oourt dismissed the opposition of Erman & Oahn, approved and homologated the sheriff’s account and tableau, and ordered the funds to be distributed in conformity therewith.
    Erman & Oahn appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

We find in the record the following admission:

“ It is admitted, and in which admission all parties interested join, that the sheriff’s statement annexed to the rule herein, is correct as to his charges as to the sum total of sales, and as to the proceeds, as specified of the property pointed out by the various parties, as subject to their respective rights of sequestration under which they assert their privilege; the question of rank and privilege to be determined by the evidence now to be taken.”

The first proposition which we will notice is that last advanced in plaintiff’s brief: “that, in any and all events, they have a priority and preference of payment out of the proceeds of the property sold by the sheriff in this case, by reason of the privilege which they obtained under their attachment and their fi. fa.”

The parties whose claims to privileges superior to that of the plaintiffs, have been recognized, by the District Oourt, do not rest their right upon their, sequestrations, but upon the fact that they are unpaid vendors of the various lots of articles which have been sold, and upon the proceeds of which they claim a privilege. It has been repeatedly decided that the. privilege resulting from an attachment or seizure is subordinated to privileges legally existing upon the property seized at tbe time of the attachment or seizure.

The real contention of the appellant (one common to the case of all the appellees) is that the court erred in applying the rule of law announced in McLane vs. His Creditors, 47 An. 135, to the contracts which are involved in this litigation. They maintain that the facts bearing upon them bring them relatively to the existence of a privilege under the decision in Claflin vs. Mayer, 41 An. 1048, “ that the contracts were not Louisiana contracts, but were made, entered into and consummated in States where the common law prevails.”

The syllabus in the Claflin case reads as follows:

“Where an agent in New Orleans for non-resident dealers has authority only to exhibit samples and receive orders, which he communicates to his principal for acceptance or rejection; held, that an order so transmitted was similar in every respect to an order to purchase sent direct by the buyer to the seller, and when accepted and filled and the goods delivered to the carrier and insured by the buyer, that it was a contract where said order was accepted and filled and the goods delivered.”

In the body of the opinion the court, referring to the parties who represented the vendors in Louisiana, said: “The agent’s authority here was limited and restricted. He could not bind his principal, and his sole duty was to exhibit the samples, receive and forward orders for goods.”

We find in the cases at bar an entirely different state of facts. The authority of the parties who represented the vendors here was not limited and restricted to exhibiting samples and receiving and forwarding orders for goods for acceptance. On the contrary, when the interviews between Theo. Lehman and these various parties erminated, the situation was not that of parties waiting to see whether or not propositions for purchases, which were to be sent forward, would be accepted or not by principals residing in other States and depending upon the action of those persons in order to determine whether contracts would be made or not, but of parties who had then and there made completed contracts of sale, the one as a purchaser, the other claiming to be authorized by their principals to make presently concluded sales, and so making them.

There was no misunderstanding between the parties as to the attiude in which they respectively stood. Lehman did not deal with the representatives of the foreign houses as solicitors for those houses forwarding orders for acceptance or rejection, but as agents of those houses, making present sales for them and forwarding orders not for acceptance or rejection, but in execution of concluded sales. The orders sent forward were sent forward solely because the articles which were the object of the sales were in other States and required shipment. Had they been in New Orleans at the time of the interviews, delivery could have been called for there at once by Lehman. Under the evidence in the record there would have been no necessity for any communication between the different agents and their principals to justify the former in making a delivery.

In the McLane case the organ of the court in referring to the authority of Ruffin, who represented the Curtis & Co. Manufacturing Company in Louisiana, said: ‘‘It is admitted that Ruffin, who represented the Curtis Co., had full authority to bind it by any contract of sale which he might make, without referring his action to Missouri for its approval or ratification;” but the language used by him did not have the significance which opponent’s counsel attach to it, as evidenced by the character of their cross-examination of witnesses in this case in relation to the powers of the different agents. Ruffin’s powers were merely incidentally mentioned, as they were not the subject of contest or discussion, and allusions to them were more loosely worded than they should have been. In the case now before the court, the different agents did not assume the position of “ drummers” or “ solicitors;” they took upon themselves the position of agents of the vendors, with full, present authority to sell absolutely and at once, and they were so dealt with by Lehman. We think they had ample authority to act as they did in making the sales; but were we to assume that they had transcended their authority or disobeyed secret instructions in so doing, it would by no means follow, when their principals (called on to take action in respect to their New Orleans dealings) should affirm them, that the contracts are to be taken as contracts of the place of residence of the principals. On the contrary, the act of affirmance being of a sale made by the agent as one in presentí, the act would stand affirmed as made with its character as fixed by the parties to it when made.

The ratification would give to the act all the force of an origina authority ifi the agents to have sold at the time and id the manner and afc the place they did. Omnis ratihabitio retrotrahitur et mandato ¡equipar atur.%

The contracts made by the Louisiana representatives of the houses were not submitted to their respective houses for “acceptance,’ but for “ execution,” as we have already stated, and the authority exercised by the agents in Louisiana to sell absolutely in that State was ratified (if ratification were needed) and acted upon before Erman & Cahn had acquired any rights in the premises.

We think the contracts were Louisiana contracts, and the rights and obligations of parties controlled by the decision in 47 An., p. 135, of McLane vs. His Creditors.

We are of opinion that appellees have identified, with reasonable certainty, the property sold by them, and shown that it was struck by the privilege which they claimed thereon.

We are of opinion that the judgment appealed from is c rrect, and it is hereby affirmed.


author: Miller, J.

text:
      No. 11,837.
    Peter Graham vs. St. Charles Street Railroad Company.
    The law, protecting the lawful business by which a man gains a livelihood, gives him an action of damages for improper language and conduct of another tend - ing to the injury of that business, the language and conduct being directed and-designed so as to affect persons disposed to deal with the injured party, and deter them from buying from him. Oivil Code, Art. 2315; 16 La. 206; 8 Robinson, 84; 5 Rob. 115; 10 An. 699.
    For such cause of action punitory damages maybe given. Civil Code, Art. 1928; 18 La. 535; 2 La. 76; 8 An. 30.
    A railroad company is not liable for the language and conduct of one of its foremen, to the prejudice and injury to the business of a grocer, of whom the employees of the company are disposed to buy, the functions of the foreman under his employment being to employ and discharge when necessary, laborers in the service of the company, and his acts and language alleged to have injured the grocer not being within the scope of such functions. Oivil Code, Arts. 2317, 2320; 15 La. 169; 18 La. 492; 5 Rob. 113.
    Nor in cases where the employer is responsible by reason merely of his relation to the wrongdoer, are vindictive damages allowed. 8 La. 33.

    A PPEAL from the Oivil District Court for the Parish of Orleans. Rightor, J.

    W. H, Rogers and W. B. Lancaster for Plaintiff, Appellee.

      Harry H. Hall for Defendant, Appellant.
    Argued and submitted December 4, 1895.
    Opinion handed down December 16, 1895.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, the proprietor of a grocery near the station house of the defendant company, sues for damages, alleging that the foreman of the company, also a defendant, has injured plaintiff in his business by dissuading the employees of the company under defendant’s charge from dealing with the plaintiff, threatening them with discharge from the company’s employment if they did so, and carrying the threats into effect. The petition charges that this conduct of the foreman has been persistent, prompted by ill will against the defendant, the desire to injure him, and has resulted in divert - ing the business of the employees from plaintiff. It is further charged that plaintiff, by this course of conduct on the part of the foreman, has been annoyed and humiliated by the notoriety of the persecution and the ridicule thereby engendered, to use the language of the petition, for which punitory damages are claimed; and the liability of the company is put on the ground (hat the acts and conduct of the foreman were in the course of the employment of the foreman entrusted by the company with the power to employ and discharge those in its service placed under his control. The case was before this court on a previous appeal (ante, page 2(14) from the decision against plaintiff on the exception of no cause of action, and was remanded for trial on the merits. The defence on the merits is the general issue, and from the verdict and judgment thereunder this appeal is prosecuted by them. Plaintiff, answering the appeal, asks that the damages awarded, one hundred, and seventy-five dollars, be increased.

The responsibility of a corporation for the conduct of its employees is for such acts as are within the scope of the business of the corporation entrusted to them; as the'Oode puts it, masters and-employers are answerable for the damage occasioned by their servants in the exercise of their functions, and this responsibility, the Oode declares, attaches when the master could have prevented the acts causing the damage. C. C., Arts. 2315, 2317, 2320. Thus the obligation is put upon the master to select competent and careful servants and holds him liable for their negligence or negligence in the exercise of their duties. The principle has received application in a variety of cases in our reports, where the act of the servant complained of was incident to the discharge of the servant’s duty, or rather his mode of performance. In this case the functions of the foreman was the selection of the labor of the company, carrying with it the power to discharge the employees. The damage alleged arises from the motives which it is charged actuated the foreman in his selection and dismissal of the employees. No wrong to plaintiff could have arisen from the engagement or discharge of the employees, but the alleged injury is supposed to have arisen from the discrimination of the foreman against those friendly to plaintiff, who dealt with him or were disposed to buy at his grocery. With that discrimination the company had neither knowledge or connection, and we do not perceive any basis for its supposed liability. The conduct of the foreman was in no sense within the line of his employment. Gaillardet vs. Damaris, 18 La. 492; Ware vs. Barataria and Lafourche Central Company, 15 La. 169; Hart vs. New Orleans & Carrollton Railroad Company, 1 Rob. 181; Winston vs. Foster and others, 5 Rob. 113.

With refeaence to the foreman we think the case is different. The ground of his liability is that from motives of ill will, by words and conduct, he injured plaintiff’s business, by preventing the employees from buying at his store. Our review of the testimony satisfies us that, the foreman urged a number of the employees not to deal with plaintiff, threatened them with discharge if they did so; raised the rent of premises he leased to one of the employees who dealt with Graham, assigning that as the cause for the increase; for the same reason, it is our conclusion from the testimony, he gave another tenant of his notice to quit, and as to two instances of discharge, the testimony strongly points for the cause to the fact that the discharged men' bought of plaintiff. There is also testimooy that the foreman, inhis efforts to dissuade one of the m n from buy-dag of plaintiff, used language in respect to him not at all flattering. The testimony comes from number of witnesses, testifying to distinct acts, and to the conduct of the foreman on different occasions. .It would serve no useful purpose to. give the testimony in.detail. W® have given .attention to that of. the foreman, that he never gave orders to the men not to deal with plaintiff, and that his motive was to prevent drinking by the men during the hours of i ervice. We have considered the testimony of the employees, produced by the defendant, that they dealt with plaintiff and were not discharged; that there were posted in the station stringent rules against drinking by the employees, but a careful consideration of the testimony impresses us, as we must conclude it did the jury, that the defendant did use efforts to divert employees from dealing with the plaintiff, and that his motive was not to enforce the rules or discipline of the company.

The right of protection to the citizen in the pursuit of the avocations by which he gains his livehood is as important as the security of his person and property. No man is privileged to injure another in his business. If the defendant, Newman, by his conduct and language sought to create a prejudice or feeling again t plaintiff, deterring those from buying from him inclined to do so, we think reparation is due the plaintiff. Nor is that reparation to be measured by proof of actual damage. Every act of man that causes damage to another obliges the wrongdoer to restitution, is the language of the Code, requiring the obvious qualification that the act must be wrongful, and in the assessment of the damages the exercise of the-discretion of the jury or court is admitted. Civil Code, Articles. 2315, 1933; Chataigne vs. Bergeron, 10 An. 699; Edwards vs. Turner and another, 6 Robinson 382; Fenner vs. Watkins, 16 La. 206; Wardens of the Church of St. Louis vs. Blanc, Bishop, 8 Rob. 84; McGary vs. City of Lafayette, 4 An. 440. The fact that the defendant’s tenant had a grocery in the neighborhood, apt to be benefited by a diversion of plaintiff’s customers, supplies the motive of interest, but does not, in our view, at all mitigate his conduct. With all reasonable allowance for the competitions of trade and the means by which the shopkeeper or merchant obtains business, words and actionsto discredit it and injure a rival in business can not be tolerated. The circum - stance that the defendant as the foreman of the company had the power to discharge those designed to be influenced by his communications or statements with respect to the plaintiff, and that defendanthad the selection of the labor of the company, tended to make more effective his efforts to injure plaintiff in his business. We recognize the principle urged by the defence, that the employer has the right to employ those he chooses, and the same liberty is allowed as to their discharge. The authority cited by defendant is entitled to full recognition, that one may do business with those he chooses to deal with, and decline, if he pleases, the business of others. Orr vs. Insurance Co., 12 An. 255. It is not the exercise of defendant’s choice in selecting or discharging laborers for the company that makes him liable, but he is responsible, because, in exercising that right, he indulges in language, uses threats, and pursues a line of conduct all directed at the plaintiff, and of a character to injure him in his lawful business.

The jury gave a verdict for one hundred and seventy-five dollars. We do not find the basis to increase it against the defendant, and the amount is sufficient to answer the purpose for which, irrespective of actual loss, the law gives damages in this class of cases. Smart money is not given against those liable, if it all, by reason of their relation to the wrongdoer, and in no respect can we appreciate that the company is responsible.

It is therefore ordered, adjudged and decreed that the judgment of the lower court against the company be avoided ana reversed, and that the judgment against Thomas Newman be affirmed, and that he pay costs.


author: Breaux, J.

text:
    No. 11,920.
    State vs. Malcolm Morris.
    Act lá of the Extra Session of 1877 and the amendments, do not affect the Section 7 of Act 20 of 1882; the charter of the city of New Orleans.
    An ordinance to the extent it may transcend the power vested in the body which passed it, is null and may be taken advantage of by plea or answer to an action to recover the penalty.
    'The municipal council has the authority,in public interest, to make extensive and varied regulations as to the time, mode and circumstances one shall exercise his right to private property; but without showing cause sufficient an owner «can not be divested of his property. State vs. Payssan, <mte, p. 1029, reaffirmed
    APPEAL from the Sixth Recorder’s Court for the Parish of Orleans. Laresche, Acting J.

      Branch K. Miller for Plaintiff, Appellee.

      B. B. Howard and Frank O. Zacharie for Defendant, Appellant.

      Argued and submitted December 3, 1895.
    Opinion handed down December 16, 1895.
   The opinion of the court was delivered by

Breaux, J.

The defendant appeals from the sentence and judgment of the Recorder’s Court, condemning him to pay a fine of ten dollars, or in default of payment, to suffer imprisonment during thirty days. The ordinance, he is charged with having violated relates' to the removal from any public or private place, of any garbage or dead animal, and makes it unlawful for any other person than the contractor under the city ordinance to remove and dispose of dead animals'.

He was engaged, on the day of the asserted violation of the ordinance, by the proprietor of a factory where the bodies of dead animals are reduced to tallow, oil or other products, in collecting dead anirnals. They were killed by a passing train, and from the ground where the dead bodies were, they were being removed in a closed cart, to the rendering establishment of his employer in the parish of St. Bernard. The employer of the defendant testified, that they were on his dray, and that they were presumably his, as he always pays the owner for the dead animals carted to his factory. The claim is indirectly by the owner of the rendering plant, who, with the defendant, his servant, urges that the enforcement of the ordinance is an interference with the right to follow a lawful occupation.

The first ground of complaint pleaded by way of demurrer to the affidavit is that the ordinance known as the garbage ordinance is in conflict with prior statutes and illegal, viz.: Act 14 of the Extra Session of 1877; Act 42 of 1882, and Act 94 of 1888, relative to the disposition of offal, garbage, night soil and dead animals.

The Legislature delegated to the municipality the power to pass ordinances to protect the health and maintain the cleanliness of the city. It follows as a natural and unavoidable inference, if it be necessary to that end, to remove offensive carcasses, that the city, through' its Municipal Council, has the authority to ordain that they shall be removed. It is a necessary incident to the powers expressly granted. > While it is true that municipal corporations possess no power not conferred upon them, (either expressly or by fair implication), no principle of interpretation, in our view, would justify the conclusion that the authority to protect health does not include the power to adopt ordinances in terms reasonable, looking to the removal of nuisances. If the ordinance is within the power granted, it must be given the force and effect of a statute.

The question is one of intention. The Legislature having in 1882 adopted an act of incorporation of the city of New Orleans, in which full power is delegated in regard to health, cleanliness, drainage and needful inspection and regulation, it necessarily restricts the effect of any general act that is in conflict with the delegated authority, or that would render inoperative and void an ordinance adopted within the power.

Moreover, the statute of 1877 and the amendments thereto, invoked by the defendant as applying, are not exclusive of other modes. They impose duties upon those engaged in removing dead animals, and prohibits them from dropping in the river dead bodies, save at certain wharves and landings, and orders that they shall tow them in boats from these designated places.

There was a special reason for mentioning how and where to dump dead animals into the river, none for mentioning other means of disposing of these dead bodies on land. In the “ absence of prohibition, express or implied, the terms of the statute will not operate as an exclusion under the maxim, expressio unius.” Sedgwick, p. 31.

As we read the statute, the purpose was to prevent the dumping of garbage and carcasses on the entire river front, thereby polluting the water and infecting the air, and none of the provisions of the statute manifest the intention of adopting exclusive measures requiring all the garbage from all the different points to be dumped into the river and towed away from the places named.

In addition, the act invoked by the defendant applies to the three parishes, Jefferson, Orleans and St. Bernard, and to that extent it is general in its scope.

The special grant of power was not, in our view, repealed by the general law. Qeneralia speeialibus non derogant It cannot fairly be implied that it was the intention to make subordinate the special laws of the municipality to the general laws covering a larger area and other political divisions. Nothing in the reading of the act shows that it was the legislative intention to curtail and limit the grant of power of the city as to any system best adapted to carry ont some reasonable scheme for the removal of garbage and dead animals. The recall by implication of a power granted is not favored.

The defendant pleads and argues in ways that he had no thought of acting. He was not carting the dead animals to the river to be there disposed of as the statute would require if in full force within the corporate limits of the city. These dead animals have value at rendering plants, and no one is now anxious that they be carried away and dumped into the river.

But the defendant is not concluded by not complying with the statute he invokes. If controlling in the case and operative, its effect may yet be urged by him in his defence.

This brings us to the second contention of the defendant-: that sections of the. ordinance are in conflict with and in contravention of Art. 156 of the Oonstitution, which provides that private property shall not be taken for public purposes without just and adequate compensation.

At this point the question of defendant’s want of interest was propounded at the bar, as he was not the owner of the animals, and was only the driver in charge of the cart. If the company, prosecuting in the name of the State, has no right to the dead animals, it might be regarded as a hardship to compel this driver to pay a fine or suffer imprisonment. He had the right to prove that his occupation was legitimate and not in contravention of any law. Dillon on Municipal Corporations, Vol. 1, p. 441.

These animals were neither offensive or dangerous to public health. They were private property, not abandoned, and had value of which the owner could not be divested, save by the exercise of police power for the public good.

The necessity for the exercise of that power was not shown. One of the purposes of the contract was to' invest the Chemical and Fertilizer Company with the absolute right to take possession of and appropriate all dead animals not slain for human food in certain limits of the city. To sustain that portion of the contract we would have to decide that a dead animal is per se a nuisance; that the ownership terminates at death. There is no question here of the exercise of eminent domain for the public good requiring compensation. The only question is the> right to exercise the police power vel non. If the property is not a nuisance the owner should not be prevented from obtaining its value and should not be denied the right to make any disposition of it (however innocent and useful). It is not possible under police regulation to take property from one man and give it to another. The city might, as a sanitary measure, after having given the owner the opportunity to dispose of his dead animals, authorize a contractor to cart them away and appropriate them to his own use. In warm climates the police of cities requires regulations that should be enforced with great vigilance to prevent nuisances injurious to health. The necessity of such ordinances would not justify the council in declaring that all dead animals found in the city not killed for human food are nuisances immediately after death.

This is the effect of the ordinance.

We rest the case entirely on the ground that the owner is entitled to reasonable time after the death of the animal to dispose of it or cart it away under the requirements of existing ordinances. The situation and the climate may render it necessary to permit very little time and opportunity for removal. In adopting ordinances which necessarily must be general the owner may be allowed but little time (if public safety requires) for the removal of his dead animals. The authorities agree that the removal must be made as ordained, and that the courts can not contest the manner in which it shall be done and under what sanitary condition, if reasonable.

However limited may be the right of removal it can not be denied entirely without conflicting with the laws regulating the police power.

The laws do not justify an absolute denial of all the owner’s right from the moment of death without the possibility of its becoming a nuisance before a disposition can be made in the owner’s interest. The city invested with the power claimed by the plaintiff as plenary in regard to health and cleanliness can, under proper police regulation, permit the owner during a brief period of time to realize any value his dead animal may have, and at the same time carry out a scheme ample in every respect to protect public health and secure required cleanliness.

After re-examination we affirm our decision in State vs. Payssan, ante, p. 1029.

The argument at the bar has lead us to re-examine the decision and the result is as just expressed. In that case we declined to enterfcain jurisdiction of one of the issues, being one of fact exclusively. Here we pass upon the illegality of an ordinance only in so far as relates to the removal of dead animals.

It is therefore ordered adjudged and decreed that the judgment of the court a qua be annulled, reversed and avoided, and the defendant discharged.


text:
    No. 11,918.
    Succession of Henry Leverich.
    A tutrix administering a succession will be permitted to sell the realty to pay debts upon the recommendation of a family meeting, duly approved, when there is no money or other personal property which may be utilized.
    The erasure of the mortgage upon property thus sold to pay the mortgage debt is valid.
    APPEAL from the Oivil District Court for the Parish of Orleans. Bightor, J.

      Benjamin Bice Forman for Plaintiffs in Rule, Appellees.

      Felix J. Dreyfous and Solomon Wolff for U. Koen, Defendant in Rule, Appellant.
    Argued and submitted December 4, 1895.
    Opinion handed down December 16, 1895.
   The opinion of the court was delivered by

Breaux, J.

The defendant, adjudicatee of property, appeals from a judgment in favor of the vendor, who is the plaintiff in rule, issued to compel him to accept title.

The property was sold by public auction. It had been appraised at six thousand dollars. The object of the sale was the payment of the debts of the succession.

The mortgage debt affecting it, with interest, was seven thousand seven hundred and ninety dollars, although the natural tutrix, at whose instance it was sold, alleged that the amount was four thousand five hundred dollars. .

In addition to the property mortgaged, as already stated, the inventory shows that the succession had household furniture appraised at two hundred and thirty-one and 25-100 dollars and life insurance policies appraised at ten thousand dollars, and the defendant in rule urges that at the date of application to sell the property mortgaged, to pay the purchase price due thereon, there was more than ten thousand dollars available to pay the debts of the succession.

The facts, as relate to these ten thousand dollars, are, that after having obtained the order for the sale of the property, the widow of Henry Leverich, plaintiff in rule, petitioned the court to decree that three life insurance policies mentioned in the inventory and on their face made payable to the insured, his executor, administrators and assigns, were her property and contradictorily with the heir of age and the under-tutor of the minors, judgment was rendered as follows:

“ Margaret P. Leverich do have judgment correcting the inventory herein by striking out the three policies of life insurance as assets of this succession, and decreeing that said policies in the Mutual Life Insurance Company of New York,

No. 640,782 ............................................................................................ $2,500 00

No. 640,784........................................................................................... 2,500 00

No. 640,786....................................................................................... 5,000 00

Total................................................................-.....................$10,000 00

to be the sole and exclusive property of Mrs. Margaret P. Leverich.”

The family meeting recommended the sale of the property adjudicated to the defendant in rule. The recommendations were duly approved. Subsequently, an account was filed by the tutrix, liquidating the succession. That account also was approved by the judge of the District Court and probated.

Although the minors, when they will be of age, may show that they have been aggrieved, and have the judgments in question rescinded, for they are not finalities, it does not follow that a creditor is bound to wait for the collection of his claim until policies of insurance have been collected.

We must conclude, in view of the proceedings and of the declarations of record, that there were no funds with which to pay the deots, and that the action of the tutrix administering the estate was in the interest of the minors.

We are referred to the case Succession of Dumestre, 40 An. 571, 575.

The case here is within a rule announced in that case, as the purpose was in good faith to realize funds for the payment of the debts of the succession of Henry Leverich.

It is, in addition, urged by the defendant in rule that there can be no valid erasure of a mortgage upon a tutrix’ property, resulting from the inscription of an inventory of an estate in which minors are interested, until the minors become of age and discharge their tutor, or until a special mortgage is given in accordance with law.

The rule invoked is not universal in its application. It is subject to exceptions. Notably here, the property was sold to pay the purchase price, dating anterior to the minor’s mortgage. It follows that the mortgage upon that property must be canceled, and that the adjudicatee can insist upon its cancellation prior to payment of the price, and that the cancellation in this case will be binding upon the minor children of the late Henry Leverich, who can have no interest to sue, to annul and set aside a sale, even if their mother and tutrix has delayed more than she should in collecting the policies of insurance of their late father, or has in error changed the name of the beneficiary under these policies. The question, if it be one, can not fix infirmity upon a title to realty sold under the circumstances here. '

The proceedings are regular as to form.

Moreover, it is manifest that the tutrix, as survivor in community, has an interest in the total of the mortgage (as shown by the certificate of mortgage), that as against third persons would considerably lessen the minor’s mortgage, and finally, granted that as to an amount, it will be decreed on their suit, at their majority, that they have an actionable interest against their tutrix, it can not affect a title based upon the vendor’s privilege duly recognized (for the payment of which the property was sold).

The judgment appealed from is therefore affirmed.


author: McEnery, J.

text:
    No. 11,903.
    Succession of Widow Patrick Farrelly.
    The appointment of a testamentary tutor by the father, acquiesced in by the surviving widow, will not prevent her, when the tutor so appointed fails to qualify, from nominating a tutor by will to the minor children.

      If she has nominated a tutor and the tutor appointed and nominated in the will .qualifies after her death and the probation of the will, the appointment and qualification are null, and the last appointed tutor will be maintained in the tutorship.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      W. 8. Parlcerson for Executor, Appellee.

      Frank MeGloin for Tutor, Appellant.
    Argued and submitted December 3, 1895.
    Opinion handed down December 16, 1895.
   The opinion of the court was delivered by

McEnery, J.

Patrick Farrelly died May 26, 1894. In his will he named and appointed his son, Peter Joseph Farrelly, tutor to his minor children. The surviving widow acquiesced in this dative tutorship, and joined with the son in praying for his confirmation as tutor. On September 14, 1894, the inventory taken in the succession of the deceased was filed, and the usual order was issued, confirming the appointment of Peter Joseph Farrelly as tuto-, upon his giving bond and complying with all the requirements of the law. No letters of tutorship were issued to him, and he did not qualify by taking the oath and giving bond during the life of Widow Farrelly. On May 8, 1895, the widow died, leaving a will in which she appointed Bernard J. Reilly testamentary tutor to the minors. Her will was admitted to probate, and ordered executed. Reilly was also made executor without bond. On May 14, 1895, Peter J. Farrelly, by virtue of his petition to be appointed and confirmed as tutor, and the order issued thereon September 14, 1894, took the oath as tutor and received the letters of tutorship.

After his appointment as stated, Peter J. Farrelly, claiming to be the legal tutor, brought this suit against the tutor appointed by the Widow Farrelly, demanding the surrender of the estate of the Widow Farrelly to him as the tutor of the minors, and also to obtain possession of the minor children. This petition was answered by the tutor, who had not yet qualified, appointed under the widow’s will, and all the averments of the plaintiff denied. The issue as to which person the tutorship belongs was thus presented by Peter J. Farrelly and accepted by the defendant.

We recognize the principle urged as the preliminary issue by plaintiff, that a direct action is necessary and specific grounds must be alleged in order to annul a judgment affecting a tutor. But here there have been two tutors appointed, and the one brings a suit against the other in possession of the property, and the persons of the minors to get possession of the same. To this suit the answer is made by defendant that he is the testamentary tutor of said children, and as such is anxious and willing to qualify, and he prays that he be quieted in his possession as executor, and declaring him as tutor to be entitled to retain the control of the persons of said minors.

The issue as to who is entitled to the tutorshi p is squarely presented so that we can determine who is the legal tutor, and we are not disposed, in exceptional cases like the present, to sacrifice substance for form, as expressed by the lower judge, and dismiss the case in order that a direct action may be brought by the respondent to set aside and annul the appointment of Peter J. Farrelly, the plaintiff.

It seems that the letters of tutorship to Peter J. Farreily had been inadvertently issued after the death of Mrs. Farrelly and the probate of her will. All these matters were before the same judge, who, in tutorships, must often exercise a wise discretion in the management of the affairs of minors. It seems that in this case, to save the estate of the minors from protracted and useless litigation, he has exercised a sound judgment in deciding that the issues presented can be solved in this proceeding.

Peter J. Farrelly failed to qualify as tutor during the life of Mrs. Farrelly. Her consent to his confirmation as tutor was based on the presumption that he would qualify. She knew that her children must have a tutor, and was she to presume that this plaintiff would qualify as tutor of the children after her death? Peter J. Farrelly having failed to qualify within a reasonable time, it was within the power of Mrs. Farrelly to resume her light as natural tutrix. At her death Peter J. Farrelly’s right to act as tutor ended by the assertion of the right she had to appoint a tutor to her children by testament. In the face of the declaration of the will of Mrs. Farrelly appointing the defendant testamentary tutor, the letters issued to plaintiff and his qualification were absolute nullities.

Article 271 of the Civil Oode provides that whenever it shall occur that no one will take upon himself the tutorship of the minors, and comply with the existing laws by giving the required security, it shall be the duty of the judge to summon a family meeting, and, with its advice, to nominate a discreet and responsible person in the parish to be tutor and another to be under-tutor.

The plaintiff having failed to qualify within a reasonable time, it was the duty of the judge, in pursuance of said article, to convoke a family meeting, and, with their advice, to appoint a tutor to the minors. The plaintiff neglected to qualify before the death of Mrs. Farrelly, upon whose consent alone he was entitled to the tutorship. In her testament she appointed, in consequence of the default of the plaintiff, a tutor. As the surviving spouse she had the right to appoint the tutor, and having done so, this relieves the judge from the necessity of calling a family meeting, and he was therefore right in. his ruling when he ignored the letters issued to the plaintiff after the death of Mrs. Farrelly, and confirmed the tutor nominated by her.

It is urged, and French authority is quoted (Fuzier-Herman Oode Annoté, Vol. 1, Art. 397, note 4) that it is essential that the last dying father or mother should be invested with the tutorship, and that if either has not accepted the tutorship, or has ceased to discharge its functions, because of the resignation or other reasons, the right is forfeited to designate a testamentary tutor. It is unnecessary to determine whether or not such a principle has been incorporated into our law by the adoption of the present Oode, mainly taken from the Oode Napoleon. It is not found in the Oode, and we have no adjudications on this point. In the instant case, if such a principle were adopted, we do not think it would apply to the facts in this case. The mother, dying last, never neglected the tutorship. In obedience to the wishes of her deceased husband, she joined in the application to have the tutor nominated by him appointed. In thus acting, she did not refuse the tutorship, nor was she appointed tutrix and resigned the trust. We do not think her act was such as to forfeit the nomination of tutor by testament.

It is a right to appoint a tutor by will that is accorded to the husband or wife dying last, and in order to forfeit this right, there must be a clear renunciation of the right, equivalent to an absolute abandonment of interest in the minors’ welfare, or a failure to be maintained in the tutorship of the children, on a second marriage, of children by the first marriage.

This view of the case, the maintaining of the appointment of the testamentary tutor by the widow Farrelly dispenses with the question raised as to the seizin of the executor. The tutor is also executor, and as tutor he has a right to the administration of the minor’s property.

Judgment affirmed.


text:
    No. 11,857.
    Samuel H. Bemiss vs. New Orleans City & Lake Railroad Company.
    It is negligence to go from one ear to another while the train is in motion. If a passenger on a train in motion attempts to go from one car to another, and Is thrown from the platform by the sudden jerk of the train, the defendant corporation is not responsible. In such a case the defective coupling of the train will not justify a verdict in favor of plaintiff, as the passing from one car to another is the proximate cause of the injury.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Ellis, J.

      Carroll & Carroll for Plaintiff, Appellee.

      Denegre & Denegre for Defendant, Appellant.
    Argued and submitted December 5, 1895.
    Opinion handed down December 16, 1895.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff brought this suit to recover damages for personal injuries inflicted upon him by the defendant corporation.

The defence is a general denial, and negligence on the part of •plaintiff. There was judgment in favor of the plaintiff in the sum of seven thousand four hundred dollars. The defendant appealed.

There is some conflict of testimony as to whether the plaintiff re•ceived the injury while stepping or jumping from the car when in motion, or whether he fell from the platform of the car while in motion, by a sudden jerk in accelerating the speed of the train. We are inclined to the opinion that the weight of testimony is to the effect that plaintiff jumped from the car while the train was in motion, and fell in [such a position that his foot was caught by the wheels. But there is no difference in principle, so far as plaintiff’s negligence is concerned, whether he met with the accident in jumping from the platform, or whether he was injured by stepping from one car platform to another.

The plaintiff’s testimony is as follows:

“ I was out to the base-ball game on Saturday, the 21st, and was coming in on the train, which was well crowded. I was sitting on the last seat on the platform; and as the train got in between Dryades and Baronne streets, coming almost to a stop, a considerable number of people getting off, I said to a party sitting next to me: 1 Let us walk up in front so that we can be near the electric cars.’ The crowd was running through the cars. We crossed through two cars, and came to the last platform. * * * I stepped across, and just as I got over my balance the train gave a jerk and threw me between the cars.”

Q. “That is, while the train was coming in you walked forward? ”

A. “ When the train got almost to Baronne, between Baronne and Dryades, I got up from my seat and crossed between the cars, and came to the platform of the second car. The train was barely moving ; and as I came there and made a step I got over my balance, and the train gave a jerk just at that time and threw me over. It (the train) went up so far that the first truck of the second car struck me.” .

Q. “Did you fall on the side toward the up-town side or the down-town side of the car? ”

A. “On the Baronne street side of the car, on Oanal street, with my head toward the cemeteries.”

Q,. “Who got on the car — most of the passengers; how do they get on those cars? ”

A. “On the side.”

Q. “So that it is one continuous platform, is it not, all around? ”

A. “Yes, sir.”

Q. “ Had you ever seen those (open) cars before that day? ”

A. “Yes, sir.”

Q,. “ Been in them frequently?”

A. “Yes, sir.”

Q,. “You had been to and from the lake on them prior to this accident?”

A. “ Twice to the lake.”

Q. “And to the base-ball park a number of times? ”

A. “Yes, sir.”

Q. “ From the place where you were sitting, if you had waited until the car stopped, couldn’t you have alighted with ease? ”

A. “Yes, sir.”

Q. “You had simply to step from the seat where you were seated out on the side, and on the ground? ”

A. 44 If I had waited for the car to stop? ”

Q,. “Yes, sir.”

A. “Yes, sir.”

Q, 4 4 Instead of waiting for the car to stop, and getting off from your seat, you preferred that day to go on through two cars on to another platform, from which you say you were injured. This is a fact, is it not? ”

A. “Yes, sir.”

Q,. “What exactly was your position? Were you trying to step off the car? ”

A. 44 No, sir; I was stepping from one platform to the other.”-

Q,. “When you were stepping from one platform to the other, why is it you did not hold on to the railing? ”

A. 441 just had my hands lying lightly on the rails, when I got over my balance, when the jerk came and threw me off my balance entirely. ’ ’

Q,. “So that while this car was in motion you went from one car to the other, and simply placed your hand on the top of the rail wi hout holding it?”

A. “Yes, sir.”

Q. “ Well, if you were in no particular hurry, why didn’t you stay in your seat until the car came to a standstill, and those people on the outside platform would have gotten off?”

A. 44 Well, it would have taken considerable time, and those cars stopped on the other side of Baronne street and I would have had to walk it anyhow.”

Q.. “What do you mean, Mr. Bemiss, by a sudden jerk?”

A. A sudden pull.”

Q. “ Forward?”

A. “Yes, sir.”

Q. “To pull the cars over a little further toward Oanal and cross Baronne street?”

A. “A little further toward the river.”

Q. “So that was a pull forward of the cars that bad not yet come to a standstill, in order that they might get further away from Baronne street?”

A. Yes, sir.”

From the testimony of plaintiff it is shown that when the train nearly reached Baronne str et it was barely moving. We presume this slow motion of the train was dictated by prudential motives in crossing Baronne street. At any rate, the train had not reached its destination, and there was no invitation, express or implied, for the passengers on the train to leave their seats for the purpose of getting off the train. The station is on Oanal street and in the full view of every one, and is generally known to the citizens of New Orleans. The plaintiff had been a frequent passenger on the train and must have known the place where the train permanently stopped.

The cars were equipped with a platform or step on each side, were open cars, and the passengers had only to step on this platform and then to the ground in order to leave the train with safety.

While the train was moving so slowly the plaintiff might have left it with comparative safety had he employed the means which the defendant had placed at his disposal.

It is certain, from plaintiff’s testimony, had he left his seat while the train was in motion and gone on the platform and attempted to step from one car to another, the accident would not have happened.

If the plaintiff had exercised reasonable care the injury would have been avoided. It would be useless to argue and cite authorities to this effect, that the stepping from one car to another without inducement or invitation or on a necessary errand while the train is in motion is dangerous and negligent.

In such a case the rule expressed in White vs. V., S. & P. R. R., 42 An. 990, applies:

“ In a suit for damages for injuries caused by alleged negligence of defendant, recovery requires that the record should establish (first) that the defendant was guilty of no contributory negligence, but for which, notwithstanding defendant’s negligence, the injury would have been avoided.” This doctrine has been uniformly adhered to in the jurisprudence of this State. Damont vs. Carrollton R. R. Co., 9 An. 441; Hanson vs. Mansfield Railway and Transportation Co., 38 An. 111; Woods vs. Jones et al., 34 An. 1087; Deikman vs. R. R. & S. S. Co., 40 An. 787; Weeks vs. R. R. Co., 40 An. 800; Curley vs. R. R. Co., 40 An. 810; Caldwell vs. R. R. Co., 41 An. 624; Walker vs. R. R. Co., 41 An. 796; Moore vs. Edison Illuminating Co., 43 An. 792; Byrd vs. City R. R. Co., 43 An. 822; Herlisch vs. R. R. Co., 44 An. 280; Schulte vs. R. R. Co., 44 An. 509; Clements vs. Electric Light Co., 44 An. 692; Ryan vs. Railway Co., 44 An. 806; Blackwell et al., vs. R. R. Co., 47 An. 268; Smith vs. Crescent City R. R. Co., 47 An. 833.

In Moore vs. Edison Illuminating Company, 43 An. 792, the suit for damages was founded on the injury a passenger in a street railway car received by putting his head out of the car window, which came in contact with a post. This court said, “ plaintiff’s negligence consists in putting his limbs where they ought not to be and exposing them to be broken without his ability to know whether there is or not danger approaching.” In the instant ease, the plaintiff voluntarily placed himself in a dangerous position, without his ability to know whether the car would be given a sudden jerk or not, or whether its equipments were in proper order. He was in a place where he ought not to have been, and where he voluntarily placed himself.

“ In actions for injuries through negligence it is a general principle that a person is answerable for the consequences of his negligence only so far as they are the natural and proximate result of the injury, as might have been anticipated by the ordinary forecast, and not for those consequences arising from a conjunction of his faults with circumstances of an extraordinary nature.” Weeks on Damnum absque injuria, Sec. 115, p. 230, which is quoted approvingly in the above ease.

In this case it is no justification to say that the plaintiff was going to a car on the train from which he could alight and be in closer connection with the Baronne street cars. It was no excuse for his movement from one car to another. Certainly the defendant corporation had no reason to anticipate such a movement on his part, and there was then no obligation on its part to provide against an unforeseen occurrence by having its equipments in order to meet such an improbable contingency. If the plaintiff had been in his seat or even stand - ing in his car and the injury had been inflicted upon him by the defective equipments in the car coupling, which it is alleged caused the sudden jerk, he would have just cause for subjecting the defendant to damages. The evidence does not sustain the charge that the equipments in coupling were defective or the cause of the injury the quick accelerated movement of the car. This movement was natural and to be expected. The train had, in crossing Baronne street, reduced its speed. To reach its designation, in the language of plaintiff, there was a sudden pull forward of the cars, which had not yet come to a standstill, in order that they might get further away from Baronne street. In this movement we can not appreciate the negligence o defendant.

In Woods vs. Jones, 34 An. 1086, it was held that a railroad company is not liable to a passenger for an accident which the passenger might have prevented by ordinary attention to his safety, even though the agents in charge of the train are also remiss in their duty. And this was in accordance with the doctrine now universally received that, although the defendant’s negligence may have been the primary cause of the injury, an action for such injury can not be maintained, if the proximate and immediate cause can be traced to the want of ordinary care and caution of the person injured. Grand Trunk Railway vs. Ives, 144 U. S. 429; Inland and Seaboard Coasting Co. vs. Tolson, 139 U. S. 551; Thompson on Negligence, 115, 117; 2 Thompson on Negligence, 1178; Parkerson’s Railway Accident Law; Cooley on Torts; American and English Encyclopedia of Law, Contributory Negligence; Damont vs. N. O. & Carr. R. R. Co., 9 An. 441; 83 Ill. 354; 5 Bradw. 242; 19 Conn. 566; 63 Conn. 26; 78 N. Y. 480; 101 Mass. 455; 104 Mass. 237; 56 N. W. 512; 57 Fed. 921; 34 Fed. 300; 26 S. W. 509; 33 P., 283; 25 N. Y. S. 1009; 34 N. Y. S. 978; 23 S. W. 42; 61 N. W. 514; 17 So. R. 253; 21 S. E. 571; 34 P. 124; 31 S. W. 185; 32 N. E. 356; 16 S. E. 813.

In the case of Brashear vs. Railroad Co., 47 An. 735, confidently relied upon by plaintiff, it was ascertained as a fact that the plaintiff was invited by the train signal to go to the platform.

We And no applicability of the other authorities cited by plaintiff to the facts of the case under consideration. The proximate cause of the accident was not the sudden jerk of the train in moving; but plaintiff’s contributory negl gence involuntarily placing himself in a dangerous position. Foster vs. Mo. Pac. Ry. Co., 21 S. W. 916.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that plaintiff’s demand be rejected at his costs.


text:
    No. 12,011.
    The State of Louisiana ex rel. Paul Milliet vs. A. M. Aucoin, Recorder of the Second Recorder’s Court.
    It is an imperative requirement that the examination by a committing magistrate must be taken as soon as the circumstances of the case will permit. But in the exercise of a sound discretion he may postpone the examination, if the witnesses, important and material for the State, are in no physical condition to attend the examination.
    If the bail exacted by the Recorder is excessive, the accused can appear by simple motion before the Criminal Court and have the same reduced.
    We will not entertain an application for reduction of bail until all remedies have been exhausted below.
    ^PPLICATION for a Writ of Mandamus.

      Sambola & Dueros and S. N. Gautier for Relator,
    Submitted on briefs December 7, 1895.
    Opinion handed down December 16, 1895.
   The opinion of the court was delivered by

McEnery, J.

The relator was charged before the Second Recorder’s Court of tbe city of New Orleans with having wounded two parties with intent to murder.

It is alleged in the application for relief that the relator has been in custody since the 10th of November, 1895, on commitments of the recorder, without benefit of bail. The relief prayed for is a mandamus compelling the recorder to examine the case and admit the relator to bail.

The answer of the recorder is as follows:

“And now comes A. M. Aucoin, recorder of the Second Recorder’s Court, and in answer to the order of this honorable court, to show cause why the writ of mandamus should not issue herein, says: That he is now and has ever been willing and ready to examine and investigate the accusations and complaints mentioned in relator’s petition against Paul Milliet, and that he has, up to this time, been unable to do so, because the evidence of one Thomas Kenny is important and material, and without whose evidence respondent verily believes the State can not safely proceed to examine and investigate said accusations and complaints against the said Paul Milliet; that it is alleged, in one of said complaints against said Paul Milliet, that he (Milliet) shot and wounded Thomas Kenny with intent to murder; that in the other of said complaints, it is alleged that at the same time and place Milliet shot and wounded Thomas Monday with intent to murder; that Thomas Kenny is now confined and is dangerously ill in the Charity Hospital, suffering from the effects of a gunshot wound alleged to have been inflicted by Milliet; that Thomas Kenny is now physically unable to give his evidence in the said cases against Paul Milliet, on account of said wounds, and the said Kenny is not yet in such a condition of mind as to make his declarations (dying declarations). And respondent, further answering, says that hej has fixed the amount of bail in the cases against Milliet as follows: In case of shooting and wounding Thos. Kenny with intent to murder, twenty thousand dollars; in the case of shooting and wounding Thomas Monday with intent to murder, five thousand dollars.”

It appears from the statement of the respondent that the wounded parties, who are the most important and material witnesses on behalf of the State, are in no physical condition to appear in court and give their evidence on the examination.

It is an imperative requirement that the examination must be taken as soon as the circumstances of the case will permit.

In the case of State ex rel. Matranga vs. Recorder, 42 An. 1091, we said: “That although the recorder be bound to proceed with the case before him, we are not to be understood as saying that he shall have no authority, after the case shall have been fixed for examination, on a proper showing, in the exercise of a sound legal discretion, to allow a continuance for any other valid cause.”

In the instant case, the physical inability of the most important and material witnesses on behalf of the State to appear and testify is an ample justification for a postponement of the examination to such a time as they may be able to attend the examination.

The object of giving bond for one’s appearance to answer an accusation is for the purpose of securing his attendance, and it should be in such an amount as to exact the utmost vigilance on the part of the sureties for the appearance to prevent a forfeiture of the bonds. The amount of the bond should bear a proportion to the gravity of the offence and to the ability of the accused to give it. What might be excessive bail in one case would not be in another. The amount exacted by the recorder would be large, probably excessive, if the relator is without means. For a man of wealth it would probably be reasonable. At any rate, we are not informed as to the ability of the relator to furnish the bond, and are not disposed to arbitrarily fix the amount, even were we inclined," in a proceeding of this kind, to assume jurisdiction. We have often held that where relief is sought here for some ruling in the lower court, in the exercise of supervisory jurisdiction, we will not entertain the application unless all remedies have been exhausted below.

For excessive bail the injured party has a speedy remedy by simple motion before the Criminal Court which has jurisdiction of the case. It is in a position to hear testimony and to examine into the conditions which would entitle the party to a reduction of the amount fixed by the committing magistrate. Bunting vs. Brown, 13 Johns. 425; Cormelines vs. Beldens, 1 Wend. 107; 17 Mass. 116.

The relief prayed for is denied and the alternative writ herein granted set aside.