text:
    No. 12,210.
    Poitevent & Favre Lumber Company Vs. Standard Planing Mills and Manufacturing Company, Limited.
    It appearing from the evideuce that the president of a going corporation disposed of a portion, ©f his surplus stock of mules to a creditor, with the consent and approval of its board of directors, under the impression that the company was solvent, and with the object of tiding over a temporary financial embarrassment and without interrupting the operations of its plant, it is not liable to an attachment on the ground that the evident intent of the president and board of directors was to fraudulently dispose of the ¿property of the corporation, or to give to some of its creditors an unfair preference.
    APPEAL from the Civil District Court- for the Parish of Orleans. Rightor, J.

      Farrar, Jonas & Kruttsehnitt for Plaintiff, Appellant.

      Joseph Brewer and Ernest T. Florance for Defendant, Appellee.
    Argued and submitted November 16, 1896.
    Opinion handed down November 30, 1896.
    Rehearing refused January 18, 1897.
   The opinion of the court was delivered by

Watkins, J.

This is an ordinary action upon a matter of indebtedness of the corporation, coupled with a writ of attachment.

Defendant’s counsel took a rule upon the plaintiff for the dissolution of the writ on several grounds; and upon the trial thereof same was dissolved, and the seizure discharged. Thereupon the. case went to judgment on the debt — there being practically no dispute as to that — and therefrom the plaintiff has appealed, seeking the reinstatement of its writ and the restoration of its seizure.

Dealing with the judgment dissolving the writ of attachment, it will be only necessary for us to discuss one of the grounds enumerated, and that is the alleged untruthfulness of the affidavit to obtain the writ, in point of fact, as in our opinion that is fatal.

The affidavit is grounded upon Code of Practice, Art. 240, paragraph 4, and affirms that the defendant had parted with or disposed, of, or was about to part with or dispose of his property or some part thereof with intent to defraud his creditors, or give' an unfair preference to some of them.”

We make the subjoined extracts from the brief of plaintiff’s counsel as most completely expressing its views of the legal situation as it is presented upon the testimony taken at the trial, viz.:

“We do not claim that Mr. Gause, the president of this corporation, was guilty of a corrupt intent to perpetrate a dishonest and immoral act, but we do say that he was guilty of acts which the law denounces as a fraud in law, or as giving a right to a creditor to a writ of attachment, and that he is conclusively presumed to have, intended the consequences of his acts.
We say further, that it is not necessary that a debtor should have been guilty of fraud in a moral sense, or even in the legal sense, in. order to entitle a creditor to a writ of attachment. It suffices that proof should be made of an intent to give an unfair preference to a creditor, and that intent unquestionably existed in this cause.
“We say that the president of the company intended to make a dation en paiement to a stockholder at a time when the corporation was insolvent, and we say that that dation en paiement was necessarily a fraud at law, and therefore when he executed the dation en paiement he intended the fraudulent preference. Not only does the Code declare such a dation en paiement to be an absolute nullity (C. C. 2658), but the courts have over and over held that such a dation is a legal fraud and may be set aside. See Lovell vs. Payne, 30 An. 511, and an overwhelming mass of authorities cited in Hennen, verbo Obligations, 7, p. 1036, et seq.,” p. 14.

Again:

“The counsel for the receivers seems to attach great weight to the fact that there was no concealment of his acts by Mr. Gause; that he admitted all the facts of the case when complaint was made to him by Joseph A. Favre, the treasurer of the plaintiff corporation, and that he made certain offers to Mr. Favre similar to the offers which he had made to Jay and to others, and which offers had been accepted by Jay and others.
“We do not think that this frankness of Mr. Gause affects the legal rights of the parties at all. Even admitting the most that was claimed by counsel, or by any of the witnesses in the lower court, all that is shown by the evidence is that an offer was made to the plaintiffs to give them an illegal preference similar to the one given to other creditors of the defendant. Had the offer been áceepted, the plaintiffs would have obtained an utterly worthless preference, and that they chose to refuse it and to take out an attachment does not weaken their position in the least.
“ Counsel for the liquidators takes great pains to show that Mr. Gause was honest in all that he did.
“ Allow us here to repeat that we are not accusing him of any moral turpitude, and that it may be conceded that he did not intend to do anything morally wrong. He did, however, unquestionably give preferences which he thought that he had the right to give, but which are clearly illegal under the laws of the State of Louisiana, which were clearly void, and which clearly entitled other creditors to writs of attachment.
“All the evidence upon the subject of the interview between Mr. Favre and Mr. Gause is given by Mr. Gause himself, Mr. Favre and two other creditors who were present at the time, to-wit: Mr. Billington and Mr. Brownell.” Page 17.

Evidently the plaintiff’s counsel rests its case almost exclusively upon the proven insolvency of the defendant corporation, and its having given property thereafter in satisfaction of the claims of certain of its creditors; and adequate corroboration of this is found in this sentence, viz.:

“ We say further, that it is not necessary that a debtor should have been guilty of fraud in a moral sense, or even in a legal sense, in order to entitle a creditor to a writ of attachment. It suffices that proof should be made of an intent to give an- unfair preference to a creditor, and that intent unquestionably existed in this cause.
“ We say that the president of the company intended to make a dation en paiement to a stockholder at a time when the corporation was insolvent, and we say that that dation en paiement was necessarily a fraud in law,” etc.

But was the corporation insolvent as a matter of fact? What is the proof on this question?

As a witness the president of the defendant corporation makes answers to questions propounded as follows, viz.:

“ Q,. What was the amounts of the debts of the defendant say on the 1st of June, 1895?
“ A. With notes we had given, other people’s notes, it was about fifteen thousand or sixteen thousand dollars.
“ Q. That included all the mortgage notes on the real estate?
“ A. No.
“ Q,. How much did they amount to?
“ A. The mortgaged notes amounted to ten thousand eight hundred and fifty dollars.
“ Q. Then the total amount of the debts of the company approximated twenty-seven thousand dollars?
“ A. Yes.
“ Q,. Was a statement of this debt presented at the meeting of the creditors on the 28th of May?
$ :}: * * * }{;
“ A. I think so.
“ Q. Approximately?
“ A. Yes; including other people’s notes that had not been paid_
“ Q,. But those were liabilities of the concern?
“ A. Yes.”

The foregoing statements were elicited upon the cross-examination of the witness, and the following occurred in the course of his re-examination, viz.:

“ Q. You stated that the indebtedness of the company at the time was in the neighborhood of twenty-seven thousand dollars; now state what their assets consisted of?
“ A. Our real estate cost nearly fourteen thousand dollars, and we paid nearly three thousand five hundred dollars out of it. It is appraised at thirteen thousand dollars now. Our lumber was then considered worth six thousand dollars. Our machinery and sheds and teams cost twenty-two thousand dollars; and our bills collectible amounted to four thousand dollars or five thousand dollars.
Q. Out of this total of forty-six thousand dollars, what would you consider a fair estimate of the actual value of the assets of the concern?
“ A. Well, I consider the real estate worth fourteen thousand dollars; the machinery and sheds cost twenty-two thousand dollars, and as a running outfit it ought to be worth fifteen thousand dollars; the lumber ought to bring five thousand dollars; and the bills, perhaps, three thousand dollars or four thousand dollars.
“ Q. Then you estimate the value of (the assets) of this corporation at the time of taking out of the writ of attachment, in the neighborhood of thirty-nine thousand dollars?
“A. Yes; as a running plant,” etc.

This statement is not contradicted by any other witness, and is practically undenied.

In the course of the argument it was said that in the director’s answer to the petition of creditors of the corporation in the District Court praying for the appointment of a receiver, there is an admission of the insolvency of the defendants, and that those proceedings were commenced only a few days subsequent to plaintiff’s attachment; and plaintiff’s counsel urge this judicial admission as conclusive proof of the insolvency of the defendant at date its attachment issued.

But this answer having been filed by the directors subsequent to the attachment it can not have any retroactive effect in reference to the fraudulent intent of the defendant at the date of and antecedent to the making of the affidavit. An attachment is a harsh remedy, and must be strictly construed. It must depend upon the state of facts existing when it was applied for.

On the question of fraudulent intent, the president was interro - gated fully as to the details of all the transactions upon which the plaintiff founded its attachment, and thereupon the following occurred, viz.:

“ Q,. What was your intention in transferring these materials to creditors? I am asking you now in regard to the allegation of the petition that the transfers (of property) were made with the intent to defraud the creditors, or give an unfair preference to some of them, Now what was your intention in making those transfers?
“A. I offered some lumber to Mr. Favre. In the first place, in regard to the teams: one-half of our teams were on pasture for six months or more, and we did not have any use for them. I consulted the directors, and we came to the conclusion that we could run our business with one-half the teams. They were an expense to us, and with one-half we would still have enough to carry on business. So I advised with them, and they consented and agreed to transfer some of them at a good round figure. We sold those teams at a figure which would to-day be twice as much as they would sell for at auction, or sheriff’s sale.
“Now, in regard to the lumber that I sold; my idea in selling that was to get a better price, with the exception of the lumber I sold to Mr. Billington. And I was satisfied that if we could have sold our lumber and collected our debts, that it would have gone far toward paying the indebtedness of the corporation without touching the plant. And I wanted to cancel as many debts as possible in that way; by selling lumber at a better price.
“ I had no idea that any one would object to my making any such sales. But as soon as any one objected, I (did) not sell another dollar’s worth of goods to any creditor. As soon as objection was made I stopped immediately.”

Counsel for plaintiff insists in applying to this case the precepts of our jurisprudence applicable to the intent to defraud in matters of insolvency; but should we do so, the facts adduced and quoted in part herein would not, in our opinion, justify us in reversing the judgment of the District Court.

In Burdeau vs. His Creditors, 44 An. 11, we find quite a similar ease stated.

In that case certain of his creditors opposed the discharge of the insolvency on specifications of fraud, to the effect that he had given an undue preference to some of his creditors by giving them mules in partial payment of their claims notwithstanding his insolvency at the time.

The opinion says:

“ Whether the insolvent be guilty of fraud or not under this section, is, in the first place, dependent on a question of fact as to the insolvent’s commission of the reprobated act; and in the second place, on the fact of his having successfully rebutted the legal presumption of guilty intent raised on the proof of the act.”

Having examined the facts and applied them to the provisions of the insolvent law, the opinion proceeds thus;

These precepts of the insolvent law have often been examined and interpreted, and in so doing our predecessors have said that they are highly penal in character, and in their consequences on conviction of fraud, and must, be strictly pursued. The acts charged must not only be such as the law declares fraudulent, but done with fraudulent intent.”

Citing Campbell vs. His Creditors, 16 La. 348.

Our predecessors have frequently employed, in this connection, such emphatic language as this, viz.:

“To constitute fraud there must be an intention of defrauding, consilium fraudis, and an actual loss, eventus damni.”

Monthly vs. Creditors, 18 La. 383; Slocomb vs. Bank, 2 R. 92.

Upon this statement of the law as applied to the facts stated, the judgment of the lower court in favor of the insolvent rejecting the demands of the opponents, was affirmed.

Prom the evidence in this case it conclusively appears that the defendant corporation was, at the time of the transactions which are complained of, a going concern in full operation, and that the evident object sought to be attained thereby was to tide over a temporary embarrassment, by disposing upon favorable terms of a portion of the company’s surplus stock without, in any way, interfering with the operations of the plant.

We can not regard them in the light of fraudulent transactions or as having conferred unfair preferences, with an intention of injuring other creditors of the corporation, even in the light of the insolvent laws.

But, viewing them in the light of jurisprudence upon the subject of attachment, we think the judgment must be affirmed, for by along line of adjudications, commencing with those rendered by the court immediately subsequent to the amendment of the Code of-Practice in 1868, it has been uniformly and consistently held, that the intent to defraud is the essential ingredient, without proof of which an attachment under its provisions could not be sustained.

The language of the enactment is with intent to defraud his creditors, or give an unfair preference to some of them.” C. P. 240, No. 4.

In Hoy vs. Weiss, 24 An. 269, it was held that the evidence must show affirmatively that the defendant is about encumbering or disposing of his property with the intent of defrauding his creditors.”

To the same effect is Moulor vs. Rosengarden, 22 An. 531.

In Abney vs. Whitted, 28 An. 818, it was said that the intent is the essential ingredient, and we think neither the petition nor the evidence shows such intent in the defendant. The simple fact of giving a mortgage to secure a creditor’s claim does not of itself give a ground for the writ.”

In Hermann vs. Amedee, 30 An. 395, it was held that the fraudulent intent necessary to support an attachment is not shown by the mere fact that a merchant is selling property and paying off debts, including that of the plaintiff.

Very much the same opinion is expressed by the court in Hernsheim vs. Levy, 32 An. 340.

Later adjudications by the court as at present constituted are of exactly similar purport.

In Ferguson vs. Chastant, 35 An. 339, the court said:

“ The intent to defraud must justify the attachment. It does not suffice that appearances indicate it.”

In Lehman vs. McFarland, 35 An. 624, it was held that an attachr ment could not be sustained when the “ proposed disposition of their property by the defendants was in the interest of their creditors, whom they proposed to place on a footing of equality and fairness.”

In Bank vs. Moss, 41 An. 227, it was held that fraudulent intent existing at the time of the act complained of, controls.

In Seeligson vs. Rigmaiden, 37 An 722, it was held that fraudulent intent must exist; appearances are not sufficient.

In Chaffe vs. Mackenzie, 43 An. 1062, we said: “ In order to sustain art attachment there must be proof that at the time the writ issued the defendant had done, or was about to do the acts charged. The intent also must exist to defraud or to give an unfair preference. This intent, which rests in the bosom of the defendant, can only be shown by the acts and declarations of the defendant, and the conclusions to be drawn from them.”

And in the recent case of Winter vs. Davis, 48 An. 260, we affirmed and emphasized what had been so frequently said, and employed the following language in so doing, viz.:

“ An attachment based upon Nos. 4 and 5 of Art. 240, C. P., must be supported by proof of an act or acts showing the fraudulent intent of the defendant to place his property beyond the reach of his creditors, or to give an unfair preference to some of them.”

Again:

“It is not evident that the intention of the defendant was to place his property beyond the reach of his creditors, or to dispose of it so as to give an unfair preference. These are the essentials to sustain an attachment.” Vide also, Claflin & Co. vs. Davis, 48 An. 1223. See also John P. Baldwin, Receiver, vs. McDonald, 49 An., just decided.

The judge a quo entertained the opinion that the proof did not establish that defendant had disposed of its property with a fraudulent intent, and dissolved plaintiff’s attachment, and in our opinion he was right in so doing.

Judgment affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,191.
    Succession of R. L. Robertson, Jr.
    Whether an executrix is legally or illegally appointed, having qualified and entered upon the discharge of the duties of the office she must be treated as lawfully appointed until her appointment has been judicially revoked.
    Unless the appointment is absolutely null and void, acts done by an administration representative in such capacity are legal and binding. Mere illegality of appointment of an executor will not vitiate acts done under it.
    Having accepted the trust of an executrix, and qualified under it, and taken charge of the estate, she is powerless of her own motion to abandon that trust and assume the quality of heir. Judicial act is necessary for her discharge.

      The law fixes the commissions of an executor at two and one-half per centum on-the amount of the estimate in the inventory; but he is entitled to five per cent, on amount of rents and revenues which have come into his hands in the course of administration, provided same are not amounts which are covered by the inventory.
    A PPEAL from the Civil District Court for the Parish of Orleans. 1 ^ Rightor, J.

      W. S. Benedict for Executrix, Appellee.

      Buck, Walshe & Buck for Opponent, Appellant.
    Argued and submitted December 4, 1896.
    Opinion handed down December 14, 1896.
    Rehearing refused January 18, 1897.
   Opinion of the court was delivered by

Watkins, J.

This controversy arises upon an account of administration which was opposed by Mrs. Cuevas, a married daughter of the deceased by his first marriage — the opposition being chiefly directed at four items, viz.: (1) Mortgage of twenty-five hundred dollars on property on Baronne street; (2) amount of two thousand dollars, claimed to have been held in trust; (3) commissions of executrix, one thousand eight hundred and thirty-two dollars and sixty-five cents; (4) attorney’s fees, twenty-five hundred dollars.

The opponent also, as a part of her opposition, alleged the absolute nullity of the will of deceased for want of form; and on that account she averred that the accountant had no standing in court as executrix.

But it is a fact and conceded in the transcript, as well as in the argument at the bar, that the nullity of the will is involved in another suit which is the subject of another appeal; it is, therefore, evident that this part of the opposition can not now be considered or decided. For the determinination of that question opponent must be relegated to the other appeal.

It appears from the record and the argument as well, that the accountant, as the executrix therein named, propounded the will for probate, and same was duly and regularly admitted to probate, and that she was duly qualified and commissioned and took charge of the estate of the testator, and has since had its exclusive care and administration — collecting its revenues and discharging its expenses.

During that administration the property of the estate was sold— the heirs concurring in the sale, and actively promoting same.

This simple statement is sufficient to show exclusively that there was an administration actually in progress; and that the accountant was executrix defacto, if not de jure —notwithstanding, the will was subsequently attacked, and may be hereafter adjudged null and void in a different case.

It has been frequently decided that unless the appointment of a succession representative ' be absolutely void, his acts can not be successfully assailed or questioned.

In Succession of Dougart, 30 An. 268, we said:

“As to the illegality of the appointment of the executrix, it is only necessary to say, that the question can not be raised in this indirect and collateral way. Whether legally or illegally done she was appointed and qualified and must be treated as the lawful executrix until her appointment is revoked in a direct action.”

In the Succession of Altemus, 32 An. 364, it was said:

“It seems to be considered, and indeed, we do not think it can be denied, that unless the appointment of an administrator or curator is absolutely void, the acts done by them in such capacities are legal and binding, for it is now elementary that the mere illegality of the appointment will not vitiate the acts done under it. This is so true that the law will not allow a suspensive appeal from a decree appointing such official, but declares that such decree shall have immediate effect, and, therefore, regardless of the illegality of the appointment.”

In Cloutier vs. Lamee, 33 An. 305, it was said:

“Inquiries touching the legality of defendant’s appointment are irrelevant. While actually exercising the office he must perform its duties, and the illegality of his appointment will not vitiate his acts.”

Citizens Bank vs. Bry, 3 An. 633; Gradnigo vs. Moore, Curator, 10 An. 670; Dorsey vs. Vaughan, 5 An. 156; Beard vs. Gresham, 5 An. 160; Succession of Lehmann, 41 An. 987; Vinet, Executor, vs. Bres, 48 An. 1254.

Adhering to this line of authority we are of opinion that the acts of the qualified and acting executrix must be recognized as valid, and that the subsequent nullity of her appointment would not vitiate them.

She has a standing in court to file an account of her gestión. Having qualified as executrix and taken charge of the estate of the testator, she was powerless, of her own motion, to abandon that trust and assume the quality of heir. It was necessary for her to be relieved through the instrumentality of the law pursuant to a decree of court. Succession of Frazier, 33 An. 593.

On the trial there was judgment rejecting the demands of the opponent, homologating the account, and ordering the funds in the hands of the executrix distributed in accordance therewith; and from that judgment the opponent has appealed.

The proof shows that the principal property of the estate was the Marine Dry Dock, which was appraised in the inventory at twelve thousand dollars, and was subsequently sold for forty-one thousand dollars. It further shows that while under the administration of the executrix this dry dock yielded a little over six thousand dollars net returns within a period of about eight months. The property was exclusively community, and the executrix, as surviving widow, owned one-half in indivisión with the heirs.

In the brief of opponent’s counsel we find no discussion of the two items of indebtedness opposed, and, presumably, that part of the opposition has been abandoned.

In argument at the bar opponent’s counsel waived all objection' with regard to the amount of the fee claimed by the attorney for the executrix, and limited her opposition to his right to claim any fee. This contention is but the logical supplement of the prior contention that the accountant had no standing in court as executrix, and finding that as her appointment as executrix was not absolutely void, her acts are valid, and that contention must be rejected, it follows necessarily that she had the legal right to tax her attorney’s fees against the estate.

The remaining question is with regard to the amount of the executrix’ commissions — her right to claim commission resting upon the same foundation as that of her standing in court.

Her ease comes within the principle announced in Succession of Hopkins, 33 An. 1166.

The accountant claims commissions of two and one-half per centum on account of rents and revenues of succession property which she collected during her administration; the amount of cash in bank, and on account of the proceeds of property of the succession under her administration. But the contention of the opponent’s counsel is that her claim should, in any event, be restricted tO' the amount of the inventoried value of the property. R. O. O. 1069.

The appraisement in the inventory is about twenty-three thousand’ dollars, while the proceeds of sales was about forty-one thousand dollars.

The Code declares that “ an executor * * * shall be entitled,, for his trouble and care, to a commission of two and one-half per cent, on the whole amount of the estimate in the inventory,” etc. R. C. C. 1683.

The same rule applies to administrators. R. C. C. 1069.

In Succession of Linton, 31 An. 130, the court in discussing this provision of the Code in regard to an administrator’s commissions of two and one-half per cent, said:

“ The Code so expressly provides, and this court has thus invariably held. R. C. C. 1069, 1201; Baillio vs. Baillio, 5 N. S. 229; Succession of Milne, 1 Rob. 400; Succession of Day, 3 An. 624; Succession of Girod, 4 An. 386.”

But the court allowed the administrator a commission of five per cent, on the amount of rents collected, no mention of same being in the inventory, and this in addition to the two and one-half per ’cent, on the amount in the inventory.

This theory appears reasonable and correct, and it is in keeping with a subsequent decision. Succession of Rhoton, 34 An. 893.

Adopting this rule, the executrix is entitled only to commissions of two and one-half per cent, on the amount of the estimate in the inventory of twenty-three thousand dollars, which is five hundred and seventy-five dollars.

And to the amount of five per cent, on the amount of the net income of the property of the estate during her administration fixed approximately at sixty-five hundred dollars, equal to three hundred and sixteen and sixty-six and two-thirds dollars.

The total amounts to eight hundred and ninety-one and sixty-six two-thirds dollars, and to this sum her commission must be reduced.

It is therefore ordered and decreed that the amount of the exeeutrix’ commissions be reduced to the sum of eight hundred and ninety-one and sixty-six and two-third dollars, and that as thus amended the judgment be affirmed.

Application for Rehearing.

The Counsel for opponent submit their application upon the three following propositions, viz.:

“ 1. The court erred in holding that the executor could not by any act of his own, 'divest himself of his franchise and duty as executor; at least as between himself and the heirs entitled to the estate.
• “2. This Honorable Court especially erred in utterly passing by as •of no effect the private and personal agreement of the parties acting in their own rights and interests; whereby they jointly agreed to and did take possession of the estate of the deceased in their respective individual capacities, as owners and heirs, and thereby as to each other, at least, put an end to the administration of the executor as such.
“ 3. The pretended executrix is a legatee under the pretended will, .and is therefore not entitled to any commission as executrix. R. C. C. 1686; 13 An. 103.”

I.

Supposing the first one to have been so well settled as to be considered to be elementary, we cited in our opinion but one case in its support — Succession of Frazier, 33 An. 593 — but as its authoritativeness seems to be questioned, we have concluded to support it 'with the following references in addition.

In Succession of Townsend vs. Sykes, 38 An. 859, this court used this emphatic language, viz.:

“It is elementary in our law and jurisprudence that the duly qualified executor under a will becomes an officer of the court, for the administration of the property of the succession, and that he can perform no legal or binding act touching such property, without the sanction of the court having jurisdiction over the estate; and that an executor who has accepted the trust, and qualified as such, and who is at the same time universal legatee, can not, at will, and without the sanction and authorization of the court, shift his position, abandon his trust accepted at the hands of the court, and assume the character and exercise the rights of owner, as universal legatee. O. O. 3480; Bird vs. Suceession of Jones, 5 An. 643; Succession of Frazier, 35 An. 382; Succession of Townsend, 37 An. 505.”

The authorities certainly make the proposition clear.

II.

It is the sense of all the authorities that heirs of age and present should be joined by an executor in the judicial disposition of the property of a solvent estate, and the concurrence of the heirs and executrix in this instance amounts to that. Giddens vs. Mobley, 37 An. 417; Bird’s Executors vs. Generes, 34 An. 321; Executor of Hart vs. Boni, 6 La. 97; Cronan vs. Executors, 9 An. 302; Succession of Weigel, 18 An. 49; 6 An. 494; 14 An. 610; 12 An. 684, 759; Garland’s C. P. 123, and authorities cited.

III.

Whether the surviving widow of the deceased will, or will not, be recognized and adjudged as a legatee under the will, must remain an open question until the appeal, which involves the nullity of the same, has been disposed of; that question being yet undecided, we can not, in advance, say what effect same will have upon her right to demand and receive commissions. If it turns out, as counsel suppose it will, any amount of commissions she has been unduly awarded upon their supposition, can be readily deducted from the amount found due her as legacy. This right is reserved.

Rehearing refused.


text:
    No. 12,272.
    William Erslew and Wife vs. New Orleans & Northeastern Railroad Company, New Orleans City & Lake Railroad Company and New Orleans Traction Company.
    It is negligence on the part of an electric street car company in the construction and establishment of its plantío so place one of its guy wires over the track of a steam railway company as not to afford sufficient space for the latter’s trains to easily and conveniently pass without risk of danger and injury to its servants and employees.
    It is negligence on the part of the steam railway company to permit an electric street car company to so construct and maintain over its tracks a guy wire that will endanger the lives of its servants and employees.
    If an employee of the steam railway company knew or ought reasonably to have known the precise danger to him of the guy wire of the electric street car company in the course of his employment, and saw fit, notwithstanding, to continue in it, he might be held to have assumed the extraordinary risk as well as the ordinary risks of his service. But this consequence must rest upon positive knowledge, or reasonable means of positive knowledge of the precise danger assumed.
    PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Benjamin Rice Forman for Plaintiffs, Appellees.

      Harry H. Hall for N. O. & N. E. R. R. Co., Defendant, Appellant.

      Denègre, Blair & Denigre for N. O. Traction Co., Ltd., and N. O. O. & L. R. R. Co., Defendants, Appellants.
    Argued and submitted December 2, 1896.
    Opinion handed down December 14, 1896.
    Rehearing refused January 4, 1897.
   The opinion of the court was delivered by

Watkins, J.

This action is for the sum of twenty thousand dollars damages, brought by plaintiffs for the reparation of the injuries suffered and inherited by them in the death' of their son, through the fault, negligence and want of due care on the part of these defendants — their claims .being made against the three defendants in solido.

The cause haviag been submitted to and tried by the judge, there was a decree rendered in favor of the plaintiffs and against the defendants in solido for the sum of five thousand dollars, and the latter have appealed — the plaintiffs having answered the appeal, and prayed for the amount of the judgment to be raised to the full sum demanded in their petition.

For the purpose of being exact, and correctly stating the issues, we have extracted from the brief of counsel for New Orleans & Northeastern Railroad Company, the following summary of the pleadings (Brief, pp. 1 to 4), viz.:

“ The petition avers:
“‘Petitioners are informed, and believe, and so aver, that the New Orleans City & Lake Railroad Company owns the franchise, track and equipment of the electric line of street cars, usually known as the Levee and Barracks Line, running along Levee and Enghien streets, and other public streets and highways in New Orleans, and it and the Traction Company (aforesaid) have a common management and control, and jointly operate said line, and have a joint interest therein, and the Traction Company, with the consent and under the direction of the said New Orleans City & Lake Railroad Company negligently and unskilfully put up and erected a guy wire across the public street and public levee, and across the tracks of a steam railroad company, lawfully laid along the public levee and and along Levee street, a public street and highway at the foot or intersection of Enghien street, with the levee and Levee street, so close to the ground as to obstruct the free passage of cars and vehicles with high load, and so close to the ground as to be dangerous to the life of brakemen on freight cars passing under it. The said steam railroad track had been there on the public highway and was itself a public highway for a long number of years, and it was negligence to place a strong guy Wire across the said highway and track where large freight cars loaded with furniture and bulky articles were well known to be constantly passing, and so close to the ground as to be a constant source of danger to brakemen, who, in the discharge of their duties, are obliged to be on the top of the cars.
“ ‘ The New Orleans & Northeastern Railroad Company is liable, because it was its duty to its employees and all others in like situation to prevent the said wire being stretched in a dangerous position over its track, and to compel its immediate removal. The wire had been there a sufficient time for the said railroad company to compel its removal, and it was negligence in said company to run freight cars under said wire, with brakemen on top of said cars.
“ ‘ The said Traction Company is liable, because it placed the wire across the public highway in so dangerous a manner, and is interested and joins in the operation and use of the line of electric railway, of which the said guy wire is a part.
And the New Orleans City & Lake Railroad Company is liable, because it owns the said franchise and line aforesaid, procured the Traction Company to erect it, as its agent. The servants and agents of the defendant were warned of the dangers of the guy wire several weeks before it resulted in the death of petitioner’s son, who, on or about 18th February, 1896, was in the performance of his duties as brakeman on a freight car of the New Orleans & Northeastern Railroad Company, and in its service, which was being propelled rapidly along Levee street when, just as he arose from his brake, his head struck this guy wire above described and knocked him off the car, and he was horribly mangled; and after suffering great pain of body and mind, he died. He contributed, to the support of his parents, and they had a legal right to be supported by him. He was a steady, faithful, industrious boy, or young man. For his suffering, pain and agony of body and mind petitioners claim fourteen hundred ($1400) dollars; for funeral expenses, one hundred ($100) dollars; for their own loss of the comfort and support of their son, eighteen thousand five hundred ($18,500) dollars.’
The answer of the N. O. & N. E. Ry. Co. is as follows:
“ ‘And now into court comes, by its president, C. C. Harvey, the N. O. & N. E. R. R. Co., made one of the defendants herein, and for answer to the plaintiff’s petition, denies all and singular the allegations thereof, except in so far as may be hereinafter admitted.
“ ‘It admits that Ernest Erslew, on or about the time stated in plaintiff’s petition, lost his life by falling from a train of freight cars being operated by this respondent, and which cars passed over the said Erslew, thereby killing him.
“ ‘ But your respondent specially denies that said accident and resulting death was caused in any manner by its fault, unskilfulness or negligence, or that of its servants or employees.
“ ‘ And further specially answering, respondent avers that the guy wire referred to in plaintiff’s petition was perfectly visible, that said Ernest Lewis Erslew knew of its location and had been frequently warned in respect thereto.
“ ‘That he knew of the danger due to the location of said wire, both actually and presumptively, by reason of the patent and visible nature of the risk; that he had been frequently warned not only concerning the location of said wire, but of the danger to which said location exposed him and others.
“ ‘ That he had many times, both on the day that he lost his life and many days prior thereto, frequently passed under said wire; that said wire and its location came within the risk assumed by him in virtue of his employment, and that he contributed to the injuries resulting in his death by his own negligence and imprudence.’ ”

The following is a brief summary of the points made and relied upon by the Traction Company and the Oity & Lake Railroad Company, as the following extracts from their counsel’s printed argument will show, viz.:

1. — General State oe the Oase.
“ To justify a judgment for plaintiff in this case two things must occur: Negligence on the part of defendant causing the accident; absence of negligence on the part of the deceased contributing to the accident. No matter how gross the fault or negligence of defendants, plaintiff can not recover if the evidence shows that the accident could have been avoided by the exercise of ordinary care and attention by the deceased, or if the evidence shows that the accident was due, in any degree, to heedlessness or inattention on the part of the deceased.
“These defendants mainly rely upon the fact, established by the uncontradicted evidence, that the deplorable death of young Erslew was due, in part, to his inattention to a danger which was patent and visible; to his forgetfulness of a danger with which he was-familiar, and of which he knew and had been warned — a danger he could have easily escaped had he not been inattentive and forgetful. This defence is wholly independent of'the fault or the negligence charged against these defendants. It would suffice to defeat recovery, though we admitted, or the court found to have been established, every fault or negligence which plaintiff has charged us with.
“ The case is a very simple one. There is little or no conflict of’ evidence, and little or no room for controversy over the law applicable thereto.
“In September or October, 1895, the New Orleans Traction Company, Limited, one of the defendants, strung a guy wire across some railroad tracks on the levee. The height of this wire was such that a man standing on the top of certain kinds of freight cars, in frequent use on the Northeastern Railroad, would have to duck his-head in order to avoid being knocked off the car.
“This wire was a half inch in diameter, and was plainly visible for some distance. One of the plaintiff’s witnesses said that it could be plainly seen nearly a hundred yards off. All of his witnesses saw it plainly at the time of the accident while standing across the street a considerable distance off.
“The accident occurred in February, 1896. During the whole-period of the existence of the wire across the Northeastern track plaintiff’s son had been in the employ of the Northeastern Railroad.' Company. His duties required him to stand on the top of cars and to pass daily under the wire. He knew of the location of the wire and was familiar with the necessity and means of avoiding it by ducking his head, not only because it was patent and visible, but because he had been specially warned and cautioned in respect thereto. The uncontradicted testimony of two train crew foremen under whom the deceased had worked at different times, established that his attention had been called to the danger of the wire and that he had been warned in respect thereto. The danger was obvious; the means of avoiding were also obvious and easy to observe.”

Pages 1 and 2 of brief.

To epitomize, plaintiff’s theory is that the Traction Company and City & Lake Railroad Company, being under joint management and control in the construction and operation of the lines of street railway in the city of New Orleans known as the Levee & Barracks, amongst others, which extends along Levee and Enghien streets, and other public highways of said city, negligently and unskilfully put up and erected a guy wire across the tracks of the Northeastern Railroad Company which had been theretofore laid along the publie levee and adjacent to Levee street, at the foot of Enghien street, so close to the ground as to be dangerous to the lives of brakemen on freight cars passing under it.

That it was negligence to place such a guy wire across the said highway and track where large freight cars were well known to be constantly passing; and “ so close to the ground as to be a constant source of danger to brakemen, who in the discharge of their duties, are obliged to be on the top of the cars.”

That it was negligence on the part of the Northeastern Railroad Company, and it is liable because it did not prevent the construction of a guy wire so situated and in such a dangerous position over its track; and further, because it did not compel the Traction Company and the City & Lake Railroad Company to remove this dangerous obstruction.

That, knowing of. the construction and maintenance of this dangerous obstruction, it was negligence on the part of the Northeastern Railroad Company to run its freight trains under it constantly- and customarily, to the imminent danger and peril of the lives of its brakemen whose duties required them to remain upon the roofs of said cars.

That at the time of the accident which caused the death of their son he was engaged in the performance of his duties as brakeman on one of the freight cars of the Northeastern Railroad Company, and in its service while it was being propelled rapidly along the track, when his head coming in contact with the said guy wire, he was knocked off, felled to the ground and killed.

The common defence of all the defendants is want of fault and negligence on their part and contributory negligence on the part of plaintiff’s son, in that the guy wire was easily and plainly visible, and could have been readily seen and avoided by plaintiff’s son had he paid proper attention, and that he had been frequently advised of the danger and warned against it, and that he had frequently passed under this wire while engaged in the daily performance' of his duties as brakeman, and thus assumed the risk of danger therefrom as an incident of his employment.

In other words, that the plaintiff’s son was guilty of contributory negligence by reason of his inattention to or forgetfulness of a danger incident to his employment, and which he might have avoided by the exercise of due care and attention.

The facts are few and simple and in the main the witnesses agree.

A fair summary of them is as follows, viz.:

That the accident happened on the 18th of February, 1896, while young Erslew was standing on the roof of what is designated in the 'evidence as a California fruit car from the Southern Pacific Railroad, ••as it was attached to a train of freight cars which was passing on the ■track of the Northeastern Railroad Company, when he was struck by •an overhead wire of the New Orleans Traction Company and City & Lake Railroad Company, felled to the ground and killed almost '.instantly.

The accident was witnessed by two or three persons who were on the sidewalk near by at the time, and whose testimony is in the record. They agree in the statement, that it occurred in the morning at 7:25 o’clock, and that young Erslew “ partly turned his head, his back (being) toward the river, so the wire (caught) him, and (he) went down between the cars;” that is to say, between the first and second ears in the train.

His position was “on the rear end of the first car” when the accident happened, and his face was toward the woods, though slightly averted, and his back toward the levee, thus being in a station at right angles with the course of the train, which, at the time, was going south, the railroad track running, at this point, almost parallel with the levee on the Mississippi river, and between it and the Levee & Barracks street railway track.

The overhead wire “ struck him right above the shoulder, under the neck.”

At the time of the accident young Erslew was in the employment of the Northeastern Railroad Company as a switchman and brakeman, whose duty it was to couple ears; and, while thus engaged, to-work on the roof of cars as well as below.

A very clear statement is made by one of the Northeastern Railroad Company’s employees — the switch foreman, or foreman of the switch gang or crew. .

In substance he says:

That he was in charge of the train on which young Erslew was, on the day of the accident, as foreman of the crew.

That young Erslew’s duty was to obey signals given him by the engineer. He was the only man the engineer could see; and for that reason he was stationed on the head of the train. Erslew occupied such a position as would enable him to see the foreman in the rear, on the ground, at the same time.

It was Erslew’s business to watch both the engineer and foreman, and catch their signals, and to signal to each one of them in return.

The following excerpt from this witness’ interrogation gives a clear view of the situation:

“ Q,. What was he ” — young Erslew — “ doing on the day he was killed?
“ A. Obeying signals. I instructed him to get on the head car. He was working with engine 219; and the engineer on the lower end of the yard was working engine 201; and I told him to get on top of the fruit car so he could give us the signals from the rear end. We were pulling out from track 9 to go on track 10 to pick up a caboose.”

On being asked if he (witness) knew of the guy wire which caused Brslew’s death, he answered in the affirmative.

Same witness repeats this statement and says that the guy wire “would not clear a man standing on a high car, but if a man was standing on an ordinary freight car, it would clear him.”

On being asked what he would do when he passed under this guy wire, answered that he “ stooped sometimes; if he was standing on a high ear he would have to stoop.”

This witness says that young Erslew had been in this “ service of the company about five or six days before this accident happened, and that he notified him about the guy wire about that time. That he told him to “ look out for the wire at Enghien street and the levee; that it was too low and would not clear a man standing on the top of the car,” and that he told him that he (witness) “ had to stoop several times to keep from getting knocked off the cars.”

That after this notification young Erslew had occasion to pass under that wire frequently; sometimes as often as eight or ten times a day.

This witness states that the car young Erslew was on was “ a very high car — the highest that is used;” and other evidence in the record establishes the fact that it was a California fruit car of very large dimensions, and much higher than the ordinary freight car is.

That it measured thirteen (13) feet five (5) inches and one-fourth (¼) from the top to the railroad track.

This witness says: “ That is what is called an average height of the fruit car, but that the ordinary box car runs from eleven (11) feet six (6) inches up to this height.”

That “ taking box cars as they run (they are) about twelve feet,” that is to say eighteen (18) inches lower than California fruit cars are.

The guy wire was attached at one end to an iron post planted in the levee of six (6) feet in height, and it extended to a post on the levee side of Enghein street, which was twenty-one (21) feet in height, passing over the track of the Northeastern Railroad Company at a height of eighteen (18) feet three (3) inches.

It thus appears that from these estimates there was an intervening space of a little more than six feet between this guy wire and the ordinary box car; and between it and the average fruit car of only four (4) feet and ten (10) inches.

Manifestly, then, this wire was so constructed as to pass box cars of the average height of twelve feet, and leave a space between sufficiently great to clear a man standing on the roof of six feet in height, but not so as to clear a man of only five feet in height standing on the roof of a fruit car.

Applying these estimates — and they were made by an employee of the Northeastern Railroad Company and not disavowed by either of the other defendants making common cause — to the preceding statements of the witnesses, it seems clear that the blame is fairly placed upon the defendants, and that young Erslew in no manner contributed to the accident.

At the time of the occurrence he was standing on the roof of the forward car of a freight train while it was in motion, and at the rear end where the foreman of the switch crew had assigned him a position, so that he could give the signals to the engineer as well as to him.

At the time of the accident the witness occupied a position on the ground near by, and the train was being “ pulled out from track 9 to go on track 10 to pick up a caboose,” when the guy wire “ struck Erslew right above the shoulders under the neck.”

Evidently, the accident would not have happened if young Erslew had been upon an ordinary freight car, and there is no evidence that he had, during his brief period of employment of six days, ever been called upon to occupy a fruit car, or that he was advised or knew of the difference or the height of the cars.

Though many of the witnesses were interrogated on the point, there was no one who stated that Erslew had ever had occasion to stoop down in order to avoid the guy wire as the foreman had done.

From all the evidence it is evident that the Traction Company and the City & Lake Railroad Company, in the first instance, erected the guy wire at least eighteen inches lower than it should have been in order that fruit cars of average height could be passed beneath it with safety to the operators and employees of the Northeastern Railroad Company, and they were consequently negligent, and that, in permitting this guy wire to be thus erected over its track and subsequently maintained, to the great danger of its employees, was negligence on the part of the Northeastern Railroad Company.

The attention of the servants and agents of the Traction Company was attracted to the improper height of the guy wire at the time of its erection, and full knowledge of this defect and the danger it threatened to its employees was repeatedly brought home to the Northeastern Railroad Company through the subaltern officers of the corporation to whom the management of its trains are entrusted and by whom the employees and operatives are governed and directed.

This knowledge is fully disclosed by the testimony of the defendant’s witnesses and their employees.

Notwithstanding this guy wire may have been visible, and young Erslew had been warned of its existence and dangerous character, there is nothing to show that he had, on any occasion, to stoop down in order to avoid it, and for that reason was not aware of that necessity, but, on the contrary, having had occasion frequently to pass under the wire while engaged in his daily avocation on the roofs of ordinary box cars, without the necessity of stooping, the evident inference is that he did not deem it necessary.

It can not be said, in view of these facts, that the accident was due, in any part, to the forgetfulness of, or inattention to, a known danger, which might have been avoided by the exercise of due care and proper caution on the part of the deceased.

Having entered this service only a few days before the accident, is a circumstance strongly corroborative of this theory.

Forgetfulness of a known danger is treated by some authors and courts as contributory negligence, but it will be necessary to produce and analyze the authorities in order to sustain their applicability to the instant case.

The effect of voluntary exposure to danger is thus stated by Beach on Oontributory Negligence, Sec. 37:

“While .it is unquestionably true that one may voluntarily and unnecessarily expose himself or his property to danger without thereby becoming guilty of contributory negligence, as a matter of law, itgis, nevertheless, an established rule that where one does knowingly put himself or his property in danger there is presumption thatjhe, ipso facto, assumes all the risks reasonably to be apprehended from such a course of conduct, as where one goes voluntarily upon a railway track, without keeping watch, at a point where it is known to be especially dangerous, or ventures upon a bridge, track, or highway which he knows to be defective or unsafe; and where one knowing the danger temporarily forgets it, and in consequence suffers, his forgetfulness will not avail him as an excuse. What he knows he must remember at his peril, and not to remember is contributory negligence if it occasions injury.”

And, in affirmance of the principle announced by Mr. Beach, we have made the following selections from the brief of the counsel for the Traction Company and the City & Lake Railroad Company, viz.:

“ So, in the case of Walker vs. Town of Reedsville (N. C.), 2 S. E. Rep. 74, where plaintiff was suing to recover damages from falling into an open pit near a highway which had been negligently left without guard or rail, it was proved that plaintiff knew of the existence of the pit, but had forgotten it at the time. The court said:
“A reasonably prudent and careful man would not forget the presence of such a danger in his immediate neighborhood, one he had seen and observed every day for more than a fortnight, and but a few hours before he received the hurt. He was bound to act upon his information, and to use ordinary care and prudence in shielding and protecting himself from what he knew to be a menacing danger to every one who passed near it. He forgot and failed to be careful at his peril, and in his own wrong.”

In the conspicuous case of Butterfield vs. Forrester, 11 East 60. Lord Ellenborough said:

“A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary care to be in the right. * * * One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.”

Again:

“Applying the foregoing principles to overhead structures it is said in 3 Woods on Railroads, Sec. 379, p. 1747:
“But where the servant knows, or ought to know of the obstruction, he can not recover for an injury received therefrom, because by reason of his failure to guard against it, and neglecting to do so, he is treated as being guilty of contributory negligence.”

The following is the entire syllabus or head-note of the case of Williams vs. Edl. & W. R. Co.., New York Court of Appeals, 22 N. E. Rep. 1117. It correctly states the facts and conclusions of the court:

“ In an action by a brakeman against a railroad company for personal injuries received by being struck by a bridge while standing on the roof of a freight car while engaged in his work, it appears from the plaintiff’s evidence that the bridge was too low for him to pass under while standing upright; that he was familiar with the bridge and was standing with his back to the engine when he knew that the train was about to pass under the bridge. Held, that the plaintiff’s testimony showing contributory negligence, defendant’s motion for a non-suit should have been granted.”

In Brossman vs. Lehigh Valley Railroad Company, 18 Pa. St. 490, the conclusion of the court is thus stated, viz.:

“ Decisions, in accord with chose cited are multitudinous, and the able counsel for plaintiff has adduced none to the contrary. They are too well grounded to be overruled, save by legislative power. When the hazards incident to the duties of the employees are open before his eyes, meet him every day of his services, and would knock him down if he did not stoop to avoid them, and he continues in the service without promise of amendment, clearly he accepts the risks of the situation. It is no matter whether danger signals are on other roads, for he was not deceived as to the degree of danger he incurred. ’ ’

Again:

“In Rains vs. St. Louis, etc., Railroad Company, 71 Mo. 164, the head-notes correctly state the facts and the conclusion of the court, as follows:
“A railway company is not bound to see that a foot-bridge crossing the line is at a height sufficient to enable brakemen to pass under it safely while standing upright on the top of freight cars; and if a brakemanis thus killed while in this position, being familiar with the situation and the danger, his own negligence contributes to his death, and there can be no recovery.”

To the same effect is the case of B. & O. R. R. Co. vs. Stricker, 51 Maryland, 47, where it was held:

“A conductor of a railroad train, while standing on the top of a car in motion, in discharge of his duty, was injured by being brought in contact with a low bridge. He had been well acquainted with its position and character and accustomed to pass under it. Held, that the company were not liable in damages.”

In City of Vicksburg vs. Hennessey, 54 Miss. 491, the court declared :

“ The universal rule in this class of cases is that the injury must proceed wholly and solely from the defective highway; that the plaintiff must be entirely free from any negligence which contributed to the result, and that the burden of showing affirmatively that he exercised at least ordinary care and prudence is upon him. Unless he establishes this, he must fail, notwithstanding he has shown the greatest remissness on the part of the corporate authorities.”

In Wilson vs. Charleston, 8 Allen, 137, it was held that a person who voluntarily attempted to pass over a sidewalk which he knew to be very dangerous by reason of ice upon it, which he might easily have avoided, could not maintain an action against the town, which was bound to keep the way in repair, to recover judgment for injuries sustained by falling upon the ice. * . * * While the proper degree of care is required from the county, so on the other hand, at least ordinary care is required from the traveler. He can not shut his eyes against apparent dangers, and drive recklessly along the highway. He is bound to keep his eyes open, and maintain a proper degree of watchfulness against danger. Hubbard vs. Concord, 35 N. H. 52). * * * In an action against a town or county for injuries resulting from defects in the highway, it is generally a good defence to show that the plaintiff was himself guilty of contributory negligence.”

Giving to the foregoing opinions the widest scope and possible applicability, they proceed upon the principle that the injured party had knowledge of the obstacle or defect, and by the exercise of due care and caution he could have avoided it. Of course, that is true in a limited sense, and the rule applies to one who is “ familiar with the situation and the danger,” and negligently fails to avoid it; but it can not be assumed, under the facts of this case, that the deceased was possessed of sufficient knowledge of the danger as to justify the presumption that he undertook all the risks reasonably to be apprehended.

But the correctness of the doctrine announced in the foregoing authorities has been seriously questioned by courts of great ability.

In the recent case of Simonds vs. City of Baraboo, 67 Northwestern Reporter, 40, the Wisconsin Court said:

Beach lays down the rule (Section 12) in effect, that where one knows the danger, but temporarily forgets it, and in consequence suffers an injury, his forgetfulness will not avail him as an excuse; that what he knows he must remember at his peril; and that a failure to remember constitutes contributory negligence, if it occasion injury.
“But this opinion is not supported by reputable authorities anywhere, and has been expressly repudiated by this court. Wheeler vs. Town of Westport, 30 Wisconsin, 392.”

The doctrine announced by Mr. Beach is mainly grounded on an opinion of the Massachusetts court in Gilman vs. Inhabitants of Durfield, 13 Gray, 577, but the Wisconsin court said in Wheeler vs. Westport, supra, that that court had “ carried the doctrine of forgetfulness ” too far.

And the court proceeded to say in the Simonds case:

“ In fact the rule of Gilman vs. Inhabitants of Durfield has been so fenced in by subsequent decisions as to be practically overruled,” citing: Smith vs. Lowell, 6 Allen, 39; Whittaker vs. West Boylston, 97 Mass. 273; Blood vs. Tyngsborough, 103 Mass. 509; Bringham vs. Worcester Co., 147 Mass. 446; Weed vs. Village of Ballston Spa, 76 N. Y. 329; Bassett vs. Fish, 75 N. Y. 303; Driscoll vs. Mayor, etc., 11 Hun. 101; Dorsey vs. Construction Co., 42 Wis. 583 ; Cuthbert vs. Appleton, 24 Wis. 383.

To these cases may be added the following, viz.: Alcorn vs. Railroad, 108 Mo. 81; Snow vs. Railroad, 8 Allen, 441; Plant vs. Railroad, 6 N. Y. 607.

In Gardner vs. Railroad Company, 130 U. S. 349, the Supreme Court cited and approved the opinion expressed by the Massachusetts court in Snow vs. Housatonic Railroad, 8 Allen, 441, and said :

“ The Supreme Judicial Court of Massachusetts held that the defendant was not relieved of its liability to the plaintiff by reason of any relation which subsisted between him and it at the time of the accident arising out of the employment in which he was engaged; because, among other reasons, it did not appear that the defect in the road was the result of any such negligence in the servant as to excuse the defendant, but was caused by a want of repair in the superstructure between the tracks of the defendant’s road, which defendant was bound to keep in a suitable and safe condition, so that plaintiff could pass over it without incurring the risk of injury.”

And the court then said: “We regarded this doctrine as so well settled that in Texas & Pacific Railway Company vs. Cox, 145 U. S. 593, we contented ourselves, without discussion, with a reference to some of the cases in this court upon the subject.”

In Whittaker vs. Inhabitants of West Boylston, 97 Mass. 273, it was held that “ the fact that a person injured by reason of a defect in a highway had previous knowledge of the defect, is not conclusive evidence that he was wanting in due care at the time of the accient.”

In Wood vs. The Village of Ballston Spa, 76 N. Y. 329, the court said:

“ The defence that there was contributory negligence on the part of plaintiff rests mainly upon the fact that the plaintiff was familiar with the street, and on several occasions before the accident had seen the excavation, and the argument is that he ought to have avoided driving into it. But we think the question of the plaintiff’s negligence was one of fact, and the finding of the referee thereon can not be disturbed. In general, a person traveling upon a highway is justified in assuming that it is safe. The plaintiff, although he had known of the excavation, might not remember its exact location, or the fact may have been forgotten.”

And upon an examination and due consideration of the whole case the court held:

“ Under the circumstances the defendant was properly chargeable with notice of the existence of the excavation and with negligence in not abating the nuisance, or so guarding the excavation as to prevent the accident to persons using the street.”

But with regard to their obligation of due care and caution less strictness in the observance is imposed upon an employee than on a mere stranger sustaining no contract relations to the person or corporation inflicting an injury.

But the important question as to the amount and character of knowledge an employee of a corporation must possess of the existence of a dangerous structure to constitute contributory negligence, as a question of fact, was settled in Dorsey vs. The Phillips & Colby Construction Company, 42 Wisconsin, 583, in which the court say:

“ If he knew, or ought reasonably to have known, the precise danger to him, in the course of his employment, of the cattle chute in question, and saw fit, notwithstanding, to continue iu his employment, he might be held to have assumed the extraordinary risk as well as the ordinary risks of his service.
“ The authorities cited by learned counsel for the appellant all agree in the general proposition. But it appears to us that this consequence of acquiescence ought to rest upon positive knowledge, or reasonable means of positive knowledge of the precise danger assumed, not on vague surmises of the possibility of danger.”

Again:

“ And it appears to us very doubtful whether persons operating trains and passing adjacent objects in rapid motion, with their attention fixed upon their duties, ought, without express proof of knowledge, to be charged with notice of the precise relation of such subjects to the track. And even with actual notice of the dangerous proximity of adjacent objects, it may well be doubted whether it would be reasonable to expect them, while engaged in their' duties, to retain constantly in their minds an accurate profile of the route of their empioyment and of collateral places and things, so as to be always chargeable, as well by night as by day, with notice of the precise relation of the train to adjacent objects.
“In the case of objects so near the track as to be possibly dangerous, such a course might well divert their attention from their duty on the train, to their own safety in performing it.”

That was the case of an employee of the defendant being injured by being earried against a cattle-chute while, in the course of his employment, he “was ascending by a side ladder to the top of a freight ear in motion” — the charge being “ that the cattle-chute was negligently, unskilfully and improperly constructed so near the defendant’s track as to endanger the persons and lives of the defendant’s employees operating freight trains over its road at that place.”

The jury found a verdict in favor of the plaintiff for five thousand dollars for the personal injuries he received, and the Supreme Court affirmed it.

The foregoing principles have been fully and well stated by this court in Myhan vs. Electric Light Company, 41 An. 961, thus:

“ Based on sound reason and sheer justice, the law as expounded by jurisprudence is clear that it is not contributory negligence to engage in a dangerous occupation; * * * that the risk assumed by the servant is the ordinary hazard incident to the employment, and this is synonymous with unavoidable accident; * * * that unless the act is necessarily and inevitably dangerous, no negligence can be imputed; that the servant has a right to rely on tbe care and the superior knowledge, information and judgment of the employer, and to act upon the presumption that the latter would not expose him to unnecessary risk and has taken all necessary precaution; that the employee is not bound to inquire as to latent, but only patent defects, and that he has the right to presume that this inquiry has been made by tbe employer, upon whom the duty devolves, and although the servant may know of the defects, this will not defeat his claim unless it is shown that he knew that the defects were dangerous,” etc.

In Wilson vs. Telephone and Telegraph Company, 41 An. 1041, the plaintiff sued the defendant for damages “ for injuries sustained by a guy wire erected for the purpose of supporting the posts of the company,” and, in our opinion, we said: “The Telephone and Telegraph Company had an undoubted right to erect poles and secure them, but this permission did not authorize them to put them up and to secure them by wires so strung as to endanger human life.”

In our opinion both the law and the evidence support the plain - tiff’s claim, and, that as a question of fact, sufficient knowledge on the part of the deceased is not established to justify the assertion, that he had assumed the risk of danger from the guy wire, and was, consequently, guilty of contributory fault whereby the defendants are exonorated.

The proof shows that the deceased was a young man of nineteen or twenty years of age, strong and vigorous. That from his wages he contributed to the support of his parents. That by the accident he was not instantaneously killed, but, that after being knocked off the car, he fell between the one he was standing on and the next one thereto, and his limbs, passing under the car wheels, were badly mangled and he soon after died. That while living he must have suffered great pain of body and mind.

The plaintiffs being his father and mother his forced heirs.

Under the circumstances we are of opinion that the plaintiffs are entitled to recover, as the forced heirs of the deceased, the sum of two thousand five hundred dollars as damages for the pain and agony suffered by their son, and, also, in their own right, for the loss of his services, comfort and support. Perez vs. McMahon and Railroad Co., 47 An. 1391.

It is therefore ordered and decreed that the amount' awarded by the judge a quo be reduced to the sum of two thousand five hundred dollars, and that as thus amended same be affirmed, the costs of appeal being against the appellee.


author: McEnery, J.

text:
    No. 12,357.
    The State of Louisiana on the Relation of O. A. Taquino vs. Louis Arnauld, Recorder.
    The recorder’s court in the city of New Orleans, in enforcing Ordinance 12,755, can not impose a greater term of imprisonment than thirty days. The irapris onment for non-payment of the line imposed, added to for violation of the ordinance, can not exceed thirty days.
    Act 47 of 1890 limits imprisonment for the violation of each offence to thirty days.
    QN APPLICATION for a Writ of Certiorari.

      Chandler C. Luzenberg for Relator.
    Respondent in propria persona.

    Submitted on briefs December 19, 1896.
    Opinion handed down January 4, 1897.
   The opinion of the court was delivered by

McEnery, J.

The relabor was convicted before the respondent’s court for violating Ordinance No. 12,755. He complains that the respondent excéeded his authority in imposing the penalty upon him under Section 3 of the ordinance.

Section 3 is as follows:

“ That whoever shall violate the provisions of bhis ordinance shall, upon conviction before the recorder within whose jurisdiction the offence is committed, be condemned by said recorder to pay a fine not to exceed twenty-five ($25) dollars, or imprisonment in the parish prison for a term nob to exceed thirty (30) days, or both, or imprisonment in said parish prison for a term not to exceed thirty (30) days in default of the payment of said fine; provided, that the fine shall not exceed twenty-five ($25) dollars for each offence, nor the imprisonment more than thirty (30) days.” (Italics ours.)

The sentence imposed upon relator was to pay a fine of twenty - five dollars, and to be imprisoned for thirty days in the parish prison, and in default of the payment of thé fine, to be imprisoned an additional thirty days.

The relator applied for and obtained a writ of certiorari that the validity of the penalty might be inquired into. State ex rel. Joseph vs. Bringier, Recorder, 42 An. 1097.

The proviso in the ordinance limits the imprisonment in each offence to thirty days. Pine and imprisonment may both be imposed, but the length of the imprisonment can not exceed thirty days. The additional imprisonment for mom-payment of the fine added to that imposed for the violation of the ordinance can not exceed thirty days.

Act 41 of 1890 limits the term of imprisonment to be imposed by the ordinances of the city, for their violation, to thirty days.

The sentence and judgment are avoided and reversed and the case remanded in order that sentence may be imposed according to law.


author: Breaux, J.

text:
    No. 12,284.
    C. H. Parker, Tax Collector, etc., vs. Shareholders of Citizens Bank of Louisiana.
    The Citizens Bank was not in due form -made a party to the rule.
    In consequence the service made of a copy of the rule was not a legal service upon it to surrender the shares of its shareholders to he sold for taxes or pay the taxes.
    The judgment is annulled and the rule dismissed, as in case of non-suit.
    A PPEAL from the Civil District Court for the Parish of Orleans. J * Ellis, J.

      M. J. Cunningham, Attorney General, and Frank C. Zacharie for Plaintiff, Appellant.

      Henry Denis and Branch K. Miller for Citizens Bank, Defendant, Appellee.
    Argued and submitted December 5, 1896.
    Opinion handed down January 4, 1897.
    Rehearing refused January 18, 1897.
   The opinion of the court was delivered by

Breaux, J.

The tax collector, by way of rule, proceeded against the shareholders of the Citizens Bank to produce their shares in order that they may be sold for the payment of taxes claimed by the plaintiff as due thereon.

The bank was not made a party to the rule.

It is alleged in the rule that plaintiff can not make a seizure of the property for the taxes assessed against it because of the nature of the property assessed, and because it is in the possession of the shareholders who sold these shares in such a manner that the plaintiff can not seize them.

There is no mention made of the bank, as the one upon whom the duty devolved, of producing these shares or of paying the taxes.

The exception to the rule applying to this point was that the bank has not been cited or notified.

The service by the sheriff shows that a copy of the rule to produce property was served “on the shareholders Citizens Bank of Louisiana, defendant, by leaving the copy in the hands of the cashier,” the other officers being absent.

This was followed by another service (based upon the rule, presumably) on the bank, notifying it to deliver up to the State Tax Collector shares in the capital stock of the bank liable for State taxes. This notice was signed by the tax collector. The rule did not make the bank a party to the proceeding, nor the service of the copy of the rule by the sheriff; it follows that the service of the tax collector’s notice did not have the effect of calling the bank as a party.

This rule is silent as to the bank, and no service has been made upon it. In consequence we think that the judgment should be reversed.

A second point was argued which we consider equally as fatal to the appeal, that is, that the shares were not assessed to the shareholders as required by the statute.

We will not discuss the last proposition, for the reason that the first ground of exception pleaded in the alternative must, in our view, be sustained.

The judgment is null for the want of notice or citation, and because appellee was not a party to the proceedings.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is annulled, reversed and avoided.

The rule is dismissed in both courts, as in case of non-suit.

Plaintiff pays the costs.


text:
    No. 12,281.
    Succession of Caroline Vanhille.
    The amount of a legacy in an 'olographic testament being expressed in figures does not invalidate the donation.
    A PPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Perrault, J.

      Kenneth Baillio for Legatee, Appellee.

      Gilbert L. Dupré for Opponents, Appellants.
    Submitted on briefs December 14, 1898.
    Opinion handed down January 4, 1897.
   The opinion of the court was delivered by

Watkins, J.

The sole question in this case is whether a legacy in an olographic will expressed in figures is valid, and it is presented by an opposition on behalf of certain heirs by representation of the testator.

We make the subjoined extract from the brief of opponent’s counsel, viz.:

“ The deceased made an olographic will containing sundry legacies, among others, the following one, viz.: Je donne mon argenterie et three hundred dollars de plus que ce quil doit heritor de ma succession a mon dernier fils Lucius G. Dupre.’ (Italics ours.)
“The opponents contend that this donation is not made in conformity with law, and is, therefore, null and void.”

Our Code prescribes the following form for an olographic testament, viz.:

“ The olographic testament is that which is written by the testator himself.
“ In order to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form,” etc. R. C. C. 1588.

The language of the French Code is almost identical with that of our Code.

“ An olographic will shall not be valid unless it is written throughout, dated and signed by the testator,” eta.. C. N., Art. 970.

To be valid, this kind of a testament must be “ written throughout,” or “ entirely written by the hand of the testator.”

But this article is closely coupled with another found in the section which treats “ of the opening and proof of testaments, which declares that “ the olographic testament * * * mnst be acknowledged and proved £by the declaration of two credible persons, who must attest that they recognize the testament as being entirely written, dated and signed in the testator’s handwriting, as having often seen him write and sign during his lifetime.” R. C. C. 1655.

The latter article explains that the words of the former, “ entirely written by the hand of the testator, ” mean “ entirely written in the testator’s handwriting.”

The transcript shows that this provision of the law was complied with, and the fact established that the testament was entirely written in the handwriting of the testator.

This last article has been so amended as to require the judge a quo “ to interrogate witnesses under oath touching their knowledge of the testator’s handwriting and signature, and (to) satisfy himself that they are familiar therewith,” etc. Act 119 of 1896.

And these essentials having been complied with, the will should have been admitted to probate. The judge a quo did admit it to probate in so far as its probate was not opposed; and subsequently •overruled the opposition and probated it in its entirety, and opponents have appealed.

These articles were dealt with and interpreted in Fuentes vs. Gaines, 25 An. 85; and Succession of Roth, 31 An. 315.

We are not aware of any decision of this court in which this precise question has been decided; but the French authorities have put the question at rest.

“At the moment,” one author says, “that the testament is written in its ehtirety in the testator’s hand, it avails for the purpose, whatever the manner it is written, and whatever the substance on which it is written. Therefore, that it is found on paper, parchment, cartoon paper, or of linen; whether written with ink, blood or any other liquid, or written with a pencil; whether the will be expressed in abbreviations or quantities — i. e., amounts fully expressed, or in figures, etc., is of no importance, if, irrespective of this, the will can be read — all that is requisite.”

4 Marcade Explanation du Code Napoleon, p. 6; C. N., Art. 970; 3 Troplong Comms.

And in the annotations of another author on the Code Napoleon a number of commentators are quoted to the same effect as the foregoing extract from Marcade, viz.:

Pothier on Donations and Testaments, Ch. 1, Art. 2, Sec. 2; Merlin Rep., vo. Testara., Sec. 2, par. 4, Art. 3, N. J.; 1 Duranton, Tr. 9, n. 51; Coin Delisle, n. 16.

Vide Gilbert Codes Annotes, p. 427, No. 43 — interpreting Code Napoleon, Article 970.

We are of opinion that the legacy is valid.

Judgment affirmed.


text:
    No. 12,286.
    A. L. Johnson vs. A. O. Pessou.
    The wife borrowed art amount avowedly at the time for her use and benefit.
    She obtained a certificate from a competent judge, authorizing her to borrow the amount and executed a mortgage.
    Evidence that the sum was subsequently received from her by her ¿husband and used in his business will not invalidate the mortgage given to secure its payment.
    The plaintiff became the mortgagee’s transferee of the note secured by mortgage.
    Subsequently, the wife, to pay this mortgage and obtain an additional amount as a loan, sold the property mortgaged.
    The vendee executed notes in payment. They were taken by the plaintiff in exchange with this vendee for the notes he, the plaintiff, held.
    The vendee of this property afterward sold it to the husband.
    The plaintiff made a second exchange, viz.: the notes he held for those of the husband, secured by vendor’s privilege on the property.
    These sales and mortgages were made and executed in due course of business, without any intimation of marital influence or wrong of any kind.
    The action was to compel an adjudicatee to take title.
    'The wife called in the suit, in her answer pleads that she has no interest in the property.
    The plea is sustained by the proof.
    Third persons, in good faith, without notice who acquire rights in property thus transferred are entitled to recover the amount legitimately advanced.
    APPEAL from the Civil District; Court for the Parish of Orleans. ^ Ellis, J.

      Dinhelspiel & Hart for Plaintiff in Rule, Appellee.

      John Dymond, Jr., and Branch K. Miller for H. B. Stevens, Defendant in Rule, Appellant.
    Argued and submitted December 16, 1896.
    Opinion handed down January 4, 1897.
    Rehearing refused January 18, 1897.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff sued out a rule upon H. B. Stevens, adjudicatee, to compel him to show cause why he should not comply with his bid and take title to the property seized and adjudicated to him in the executory proceeding in the case of the defendant in rule against A. O. Pessou, mortgage debtor.

The defendant in rule admits to have purchased the properiy, but represents that the title is not such title as he can be made to accept.

The property was acquired by Mrs. Carrie C. Newsom, wife of A. O. Pessou, from John McGraw. In the act of purchase she declared that she was separate in property from her husband, A. O. Pessou, and that the purchase was made with her own separate funds.

Subsequently she mortgaged it (after having obtained an order of one of the judges of the District Court, sanctioning the mortgage) to the extent of thirty-five hundred dollars, to a Mr. McQuade.

This was followed, some time after, by a sale to E. F. Henderson, for the sum of nine thousand dollars. In the act it is declared that twenty-five hundred dollars of the purchase price was paid, cash, and that the balance of the purchase price was represented by four promissory notes.

A. L. Johnson, the defendant in rule, acquired these mortgage notes.

It is also a part of the history of the case that subsequently E. F. Henderson transferred the property to A. O. Pessou, husband, for one hundred dollars in cash and seven thousand five hundred dollars in notes, which A. L. Johnson received in exchange for the notes he held, executed under the act of sale to E. F. Henderson, and at the same time he became the owner of an additional note representing the purchase issued by Pessou.

The defence of the defendant in rule is that the sale by Mrs. Pessou to Henderson was a disguised mortgage for the purpose of binding the wife’s property for the payment of the debts of the husband and that the sale of the property by Henderson and Pessou was made for the purpose of transferring to the husband the property of the wife by the substitution and intervention of a third person contrary to a prohibitory law.

Further, that A. L. Johnson, holder of the mortgage notes, was well aware of all the acts and circumstances connected with each of the sales, and that he well knew from the first the purposes for which these sales were made and the notes executed.

In conformity with the prayer of the defendant in rule in the answer, Mr. and Mrs. Pessou were made parties to the proceeding.

No claim to the property is made in their answer.- On the contrary, they aver that the sale made by Mrs. Pessou to E. F. Henderson was a legitimate bona fide sale, and that by the sale she lost all interest in the property and has not acquired any since; that the net proceeds were paid to her and disposed of by her; that she had never heard of the plaintiff prior to the rule filed in this case and does not know him.

The judgment was rendered in favor of the plaintiff in rule. The defendant in rule prosecutes this appeal.

The first amount, viz.: three thousand five hundred dollars, borrowed by the wife, was borrowed, we have seen, from McQuade, and a mortgage was executed after the requisite certificates had been issued authorizing the loan. The amount was received by her at the time the mortgage was executed. There is nothing in the evidence to indicate that it was the wife’s intention, in borrowing the money, to apply it to the payment of the husband’s debts.

Judicial authority to the wife, to make the mortgage, having been previously obtained, it was incumbent upon her, or upon those who invoke her right, to prove that it was well known to the mortgagee that her purpose was, in borrowing the money, to borrow it for the use of the husband. The mortgage furnishes full proof against her. The evidence utterly fails to show that the money she admits she received was borrowed with the knowledge of the mortgagee for the use of the husband. It was not incumbent upon the plaintiff to prove that this loan enured to her benefit. Darling vs. Lehman, Abraham & Co., 85 An. 886, 889.

To this point there was no ground for argument. The testimony regarding this loan to the wife was clear and direct.

If the borrower, after the loan had been effected, changed her original intention as expressed at the time she obtained the certificate of the judge authorizing her to borrow, and handed the amount borrowed to her husband, to be applied to his use and benefit, in law and justice we think the lender’s right should remain unaffected.

The plaintiffs loaned an amount to pay this indebtedness. One who loans a sum to pay a claim legitimately due to the extent of the amount loaned for the purpose, it must be held that there was ample consideration.

With reference to the remainder due by the wife, it became merged with the amount of her indebtedness incurred in paying the McQuade mortgage, in this wise:

She sold the property for the purpose of creating a vendor’s lien, and to enable her to borrow the amount desired, and not with the intention, as alleged in the answer of the defendant in the rule (Stevens), of “ transferring title from the wife to the husband by the substitution and intervention of a third party.”

This sale was ,made for the avowed purpose of obtaining a loan. The notes representing the price were transferred to the plaintiff in due course of business. The evidence, in our appreciation, does not reveal that the plaintiff was guilty of negligence or that he had knowledge of the existence of irregularities warning him against the investment.

Paraphernal property is alienable. It results that the obligations validly contracted by the wife during marriage may be secured upon paraphernal property.

The amount for the notes representing the purchase was handed to her by the notary. We are informed by the testimony that it was for the wife’s benefit, and that as to the plaintiff, he did not know that the property belonged to Mrs. Pessou.

Stress is laid upon the fact that small amounts were paid by the husband, who was the debtor to the plaintiff, and at the date of the first sale a small amount was paid to Henderson, who became the purchaser, to enable the wife to borrow the amount she borrowed. The testimony does not prove that these small amounts were paid from the sums borrowed by the wife. There is no testimony before us of the husband’s insolvency. As between the husband and wife such payments may be made from the latter’s money without vitiating her contract, particularly when nothing indicates that the creditors knew that it was her money they were receiving.

The plaintiff, the statement of facts discloses, acquired the second set of notes, and surrendered therefor the first set; the second were executed by A. G. Pessou, who bought from Henderson.

They are the notes secured by the foreclosed mortgage, which resulted in the adjudication of the property to the defendant in rule.

Impressed by the argument of his counsel we paused at this point. It was only after careful attention we concluded that as to the third person in good faith the incumbrance on the property remains.

It must be conceded that the wife may sell her property.

Should it in the course of regular business transactions be acquired by the husband, third persons who have acquired rights on the property, in good faith without notice, should not be made' to suffer.

The evidence does not reveal that a name was interposed as vendee of the wife in order to enable the husband to divest her of her title. The evidence does disclose that a sale was made by the wife in order that she might borrow money, and to that end offer as security notes with vendor’s privilege.

The wife was called in this suit. In her answer she alleges that she has no interest in the property. The evidence sustains the verity of the answer.

The negligence of the plaintiff as charged by the adjudicatee, defendant (i. e., the defendant in rule, Stevens), and the warning it is urged was given by the paraph ne varietur on the notes are not as grave and serious as they appear at first blush.

The failure to examine the record under the circumstances was not of paramount importance.

In addition, confidence is not necessarily negligence.

Complicity of some sort, or- notice of some kind of an actual or constructive wrong is required in order that one may be thereby affected in his rights.

The sole remaining queston is whether nine hundred and sixty dollars paid to the sheriff should be credited in the judgment.

We think it should, and to that extent the judgment appealed from is amended.

It is therefore ordered, adjudged and decreed that the judgment appealed from is amended by allowing a credit of nine hundred and sixty dollars.

As amended the judgment is affirmed at appellee’s costs in this court.