author: Watkins, J. Niciiolls, C. J.

text:
    No. 13,089.
    Santo Russo vs. Morris Building and Land Improvement Association, Limited.
    Syllabus.
    It appearing from tlie evidence that no fault is attributable to the proprietor of a building in the construction oí a passenger elevator, or in the operation thereof, he must be released from the payment of damages to a passenger who has suffered injury, not having been guilty of either fault or negligence.
    On Rehearing.
    It is the duty of the party operating an elevator to see that the passengers are on, and to give them sufficient time to adjust themselves before starting it. If the elevator be started at once with full speed before a passenger has had time to place himself securely on his feet and he is thereby thrown off his balance and injured, the carrier is responsible for the injury.
    APPEAL from the Civil District Court, Parish of Oreans- — Monroe, J.

      L. L. Lababl and Benjamin Bice Forman for Plaintiff, Appellee.

      Clegg & Quintero for Defendant, Appellant.
    On the rehearing gj anted by Nicholls, C. J.
   The opinion of the court was delivered by

Watkins, J.

This is an action for the recovery of five thousand dollars damages for personal injuries that plaintiff alleges he sustained in 'one of the defendant’s elevaiors in the ITennen building, in the city of New Orleans, by reason of the fault and negligence of its servants and agents.

The cause was tried by a jury, who rendered a verdict in favor of the plaintiff, for one thousand dollars, by a majority of nine jurors in favor of the plaintiff, lo three in favor of the defendant; and a motion for a new trial, on the ground that the verdict of the jury is contrary to the law and evidence, having been overruled, the defendant prosecutes this appeal.

In this court, the plaintiff filed an answer to the appeal, and requested that the allowance in his favor be increased to five thousand dollars, the amount originally demanded.

The averment of the petition is, substantially, that the defendant owns and maintains a large office building in the city of New Orleans, known as the Hennen building, in which four elevators are operated, and which it holds out to the public as safe, and to which those having business in the building are invited as a safe means of conveyance from one floor thereof to another.

That on the 10th of November, 1897,- petitioner having business in one of the offices of said building, entered one of said elevators to be carried to one of the upper floors, when the servant, agent and vice-principal of the defendant operating same, “was guilty of gross negligence and carelessness in the operation of said elevator; his negligence consisting first, in starting the said elevator too quickly, and before he had time fo fully enter same; and second, in carelessly knocking against petitioner, whereby he lost his balance.”

In addition to the foregoing charge of fault and negligence, petitioner makes the further and additional charge, “that said elevator was carelessly and negligently constructed in not having an inside gate or door which would prevent any passenger from striking any one of the sills of the shaft of the building^ and that by reason of * * * the negligence of the defendant in having an unsafe construction into which he, as one of the public, was invited, he had his arm broken by being brought into violent contact with the sill of the floor of the building, as the elevator passed it, whereby he has been crippled for life, &c.”

lie alleges that he was altogether without fault or negligence, and did not cause or contribute to the. accident in any way.

The answer is a general denial, coupled with the specific averment, that the defendant was guilty of no negligence either in the construction or operation of its elevator; and, further, that its elevator “is of modern device and is reasonably safe, and lias daily carried hundreds of passengers safely and conveniently.”

It alleges that plaintiffs injury was inflicted by and through his own fault, and by his own awkwardness, or was the result of an unforeseen accident, for wjiich it is in no way responsible.

It is made quite evident from an examination of the evidence, that the plaintiff’s left arm was so 'seriously mutilated that same has been rendered comparatively useless for life; and, if the defendant is shown to have been at fault, either in the construction, or operation of its elevator, it should be held responsible in damages therefor.

Counsel for defendant attracts our attention to the fact that the first jury who tried the case found a verdict for the defendant, and the second one only found a verdict for one thousand dollars, by a majority of nine to three; and that, considering the nature and extent of plaintiff’s injuries, these circumstances necessarily imply a grave doubt as to the defendant being in fault, and that the bare existence of a doubt should have resulted in a verdict in defendant’s favor.

With regard to the alleged faultiness of the construction of the elevator, we find no evidence in the record, and we may safely assume that the charge of fault on that score was abandoned in the lower court, notwithstanding it was renewed in argument and in brief in this court.

The point made in the argument on this score, to the effect that the gate which closes the way for the entrance and exit of passengers was attached to the wall outside of the elevator, and not to the elevator, thereby leaving an open space between the elevator and the wall sufficiently great to admit an arm or leg, and, therefore, it was a constant menace to the safety of passengers, cannot be sustained in view of the fact that it had been successfully operated in that condition during a series of years, without other accidents than the one complained of, notwithstanding three or four thousand of passengers had been daily carried up and down thereupon.

It is claimed that the elevators in the defendant’s office building, which is several stories in height, are of the latest modern pattern, and of the most improved design of any in the country; and the evidence discloses nothing to the contrary.

We may, with perfect satisfaction, pass'from this branch of the case, to the examination of the charge of the defendant’s culpable fault and negligence in the manner in which its elevator was operated on the day the accident happened.

It will, in our opinion, be the better course to first examine the testimony with regard to the manner in which the accident happened, as it may prove the best method of enabling us to solve the question under investigation.

The testimony given by the messenger boy who was in the elevator at the time the accident happened is to the effect that “he came into the Hennen Building, and just as he got in the elevator, these two men came in behind (him)”- — referring to the plaintiff and his companion.

“I stood in the corner, opposite the elevator boy, and these two men stood in the middle. The elevator started off and went up fast; it went so fast that the man went just right off of his feet, and when it hit the second floor, the elevator boy slopped, and brought the man down, and I jumped out of the elevator.

“Q. — Where was his arm caught ?
“A. — Between the floor of the elevator and that gate there.
“Q.- — Between the floor of the elevator and what else ?
“A. — Between the railing — a fence like.
“Q. — Was the gate on the elevator, or shaft?
“A. — On the shaft.
“Q. — Do you know what it was that made Santo Eusso fall over?
“A.- — No, sir; it looked like the elevator went so fast that it made him fall over. It seemed so, because he went down so quick.
“Q. — Did it start slow and gentle, or fast and quick?
“A. — Fast and quick.
“Q. — How high had the elevator got up when this man’s arm was hurt?
“A. — To the second floor, and then it went right down again.
“Q. — You mean the floor above the ground?
“A. — Yes, sir.
* * * » -X -X- *
“Q. — How many people were in the elevator ?
“A. — Me and these two men, and the elevator man.
“Q- — Santo Eusso, and the man that came with him?
“A. — Yes, sir; and me and the elevator man.
* * * * «■ x- -x-
“Q. — Do you remember whether that elevator started any different on that day from what it usually does ?
“A. — No, sir; no difference; but it seems to me that that was the first time that this man was in the elevator. As soon as the elevator started he went down, like that, the elevator went so quick.
“Q. — You are sure he fell down ?
“A. — Yes, sir.
“Q. — You didn’t fall?
“A. — No, sir.
“Q. — Did the other man fall that was with him ?
“A. — No, sir.
, “Q. — Did this man throw up his hands?
“A. — No, sir.
“Q. — Where was he standing — about the middle of the elevator ?
“A. — Yes, sir.
“Q. — Where was the elevator boy standing?
“A. — Just like where he pulls the rope.
& & ■X’ "Sf •X’ iC*
“Q. — Show the judge and jury how he was standing. Take this door to be the elevator, and go like you did when you went in that day ?
“A. — I went in this way; and then these two men came in the elevator, and as the elevator started, he fell.”

The man who was the companion of the plaintiff, and went into the elevator with him, makes the statement that he and brother-in-law, the plaintiff, “went into the Hennen Building, and afler I went in — I first, went in, and then he followed; and a moment after we went into the elevator, the first I knew he had his arm caught.”

* * * * * -x- *
“CJ. — Describe how and in what manner Santo Russo got hurt?
“A. — Soon after I came in, I looked to see where he was, and I saw his arm caught, immediately after I went in.
“Q.- — -Where was he caught?
“A.- — Between the floor of the elevator and the top of the door.
“Q. — ITow did his arm get in between the left of the elevator and the top of the door ?
“A. — He was near the door, and I saw him with his arm caught be tween the elevator and the top of the door. I was very much afraid, when I saw him thus.
“Q.- — -How long after you and he got in was it before the elevator started ?
“A.- — Immediately..
-x * * * * * *
‘‘Q. — What was it that caused Santo Russo to get his arm caught?
“A. — He didn't get enough time to come into the elevator.
“Q. — Who didn’t give enough time?
“A. — The man who was working it.
*‘Q. — Working the elevator ?
“A. — Yes, sir.
*‘Q. — Did the car go up slow or quick?
“A. — As fast as possible; like lightning.
“Q. — Did Santo Russo keep standing up, or did he fall ?
,JA. — 1 had no time to see whether he was straight, or whether he fell. I saw his arm caught; that was the first thing I saw, and I told the man to descend — go down immediately. It' didn’t take one minute to go up to the first floor.
“Q. — Tell the jury exactly what it was that caught Santo Russo’s arm?
“A. — The reason was that he didn’t have time enough to go into the elevator, and immediately his arm was caught.
“Q. — Where was his arm ?
“A. — As he came in, near the door, I saw immediately his arm caught near the door- — I saw his arm caught immediately.
“Q. — Was the door that he is speaking about on the shaft or on the elevator car?
“A. — It is a door on the floor. It took place quick, suddenly — immediately. I saw him- — that was the time I saw him fall — and I told the man immediately to go down, because he was dead.
“Q. — In what part of the elevator ear was it that Santo Russo’s arm was caught?
“A. — On the right hand side.
“Q. — On the right hand side, facing which way ?
“A. — Looking towards Oarondelet street — on the side towards Carondelet street, as the man on the other side is where he was caught.
“Q. — Then it was on the right hand side as you go in?
“A. — Yes, sir. It took place suddenly. As soon as I saw him come in, he immediately fell, and the man immediately descended; came down in the elevator, but there was nothing to do; if took place so suddenly, I could not notice everything; and immediately a lot of people came around.
“Q. — What portions of the apparatus, including the car and the shaft, was it that crushed Santo Russo’s arm?
“A. — Near the door itself.”

The statement of the plaintiff is, that his brother-in-law, who accompanied him to the Ilennen Building, went into the elevator first, and that he followed him. That he didn’t have time to go in entirely, and had placed one foot inside, and as he was bringing the other foot in, the elevator started, and he was caught — his arm became caught between the door and the floor of the elevator.

“Q. — How could your arm get between the door of the elevator and the floor ?
“A. — As my second foot was in — in the elevator — and in the shock which happened as the elevator started, I fell back, and the arm became caught.
“Q. — Caught between what?
“A. — The gate of the second floor. I think it was in the door. I can’t say exactly, because I know my arm was caught. The way my head was, I could not exactly describe what portion it was caught in.
* * -X * -X -X *
“Q. — How came it that you got your arm in such a position that it caught- between the floor of the elevator and some part of the shaft ?
“A. — Because he did not give me time to come into — completely into the elevator.
-x -x -x -x * -x- -x
“Q. — (To the interpreter)- — The witness not speaking English, delivered his testimony through an interpreter. Ask him if he had both feet in the elevator when it started ?
“A. — I had one foot in, and the other was in the act of being planted down when the elevator went up. I was in the act of going in.
“Q. — Then his face was to the rear of the elevator — was that his position?
“A. — Yes, sir; my face was turned about towards where the employee was.
“Q. — Did you go into the elevator face foremost, or sideways ?
“A. — I was sought of sideways. My right foot wen+ in first, and my left followed. It was not exactly front, but in the act of walking in.
“Q.- — Then it is not true that he was standing in the middle of the elevator, and had turned around facing the door?
“A. — No, sir; I was turned towards the door. I stood near the door, at the front of the door.
“Q. — Then he was not entirely in this elevator when the boy started it?
“A. — I was in; but, at the same time, I was not steady; my right foot was down on the elevator (floor), but the left foot was not yet planted on the floor, and I was in the act of putting it down.
“Q. — Well, then, ask him if the elevator man gave him a chance to come into the elevator?
“A. — He gave me time to put in my right foot, but I was putting in my left foot when he started the elevator, and he didn’t give me a chance to turn.
“Q. — Then, he didn’t entirely enter the elevator when it started?
“A. — I would have gone in the elevator, but it was not steady.
“Q. — Ask him distinctly please, * * * whether he was inside the elevator when it started?
“A. — My body was inside the elevator, but I was not steady.
* * -x- * * * * ■
“Q. — Ask him if he is quite sure that he had both feet in the elevator when it started, yes or no ?
“A. — I had the first foot, the right foot, in'the elevator, and I was in the act of placing down the second foot.
“Q. — Then he was inside the elevator ?
“A. — The left foot was inside, but it was not placed down on the floor.”

It may be well, just here, to observe that the witnesses had been placed under rule at the first trial, and each one was separately interrogated ; but, at the second trial, the plaintiff was excepted from the operation of that rule, and counsel for defendant objected to his testimony being heard; but this exception being overruled by the judge, he retained a bill of exceptions thereto.

In this court, counsel refers to the circumstances without criticism of the ruling of the court — but on the contrary confessing its correctness' — but he argues therefrom, that the plaintiff made different statements of fact from those he made upon the former trial, and insists that same has the effect of impairing his credibility.

“Q. — Did you fall with your face down, or on your back?
“A. — I didn’t fall; I remained stuck — caught by the arm.
“Q. — Then you didn’t go down at all?
“A. — I didn’t fall; I remained caught.”

The foregoing is the substantial testimony in favor of the plaintiff.

The operator who had charge of the elevator on the day of the accident, was interrogated on the part of the defendant, and his statement is that he has been engaged in that employment for a little over three years. He says that his position in operating the elevator is on the right hand side.

The following is a portion of his interrogation—

“Can you close the door when a man is entering the elevator ?
“A. — No, sir.
“Q. — Is it possible? .
“A. — No, sir.
“Q. — Why?
“A.- — -Because he would be in the way of the door;
“Q. — Having got that well understood, now tell the court and jury 'about the accident that happened to Mr. Russo?
“A. — Well, I was standing in the elevator at my place, and two men and a boy came in the elevator; and the two men stood behind, and the boy opposite me, and I looked to see if it was time to start, and as it was time to start, I closed the door, and I started the elevator, and looked around to enquire where the passengers were going — what floors; and I saw the stout man fall, and I immediately stopped the elevator, and I saw the man with his arm crushed at the ceiling of the second floor, between the flooring of the elevator and the ceiling.
“Q. — Where was the boy, James Devine, standing?
“A. — He was standing alongside, on the left hand side of the elevator.
“Q. — In the corner ?
“A. — Yes, sir.
“Q. — Where was Santo Russo standing when you started the elevator ?
“A. — Santo Russo was standing about the center of the elevator, a little behind me.
•x- * * •» *• * *
“Q. — Which 'one got in first, the boy or those two Italians ?
. “A. — Well, if I am not mistaken — I am quite sure, that ’he Italians got in first.
* . * *. * * * *
“Q.- — -Where did you say the boy stood?
“A. — He stood almost alongside of me, opposite the end of me.
“Q. — Didn’t he stand behind you?
“A. — No, sir.
“Q. — Where did the men stand — those two Italians?
“A. — They stood behind. The stout man stood almost behind, and the other opposite me, almost beside me.”

The foregoing is the testimony on the part of the defendant.

An examination and careful consideration of all the evidence on both sides, has impressed us with the belief that the cause of the accident was the plaintiff’s unsteadiness after entering the car, or. his unpreparedness for the quick movement attending its rapid elevation.

The substance of the testimony of all of the witnesses is, that the plaintiff was standing in the car at the time it started, and that by its rapid motion, he was somewhat staggered, and evidently lost his balance and fell, or was in the act of falling when the car had reached the second floor; and by this means his arm was brought in contact therewith, and the injury resulted.

The statement of the plaintiff is somewhat confused, and he seems to have no definte recollection as to the circumstances under which the accident occurred.

The evidence clearly shows that he had completely entered the car and the door had been closed by the operator after him; and the testimony of the operator is to the effect, that it would have been impossible . for him to have closed the door, unless the plaintiff had gotten completely in the car.

The plaintiff’s theory, that he had not entirely entered the car at the time it was started, is contradicted by the operator in regard to the closing of the- door; and his testimony is undoubtedly true, for the plain reason that the door had to be closed before the car was started. For, had the door been left open at the time the car was set in motion, there would have been, undoubtedly, criminal negligence on his part; but that is not contended for by counsel for the plaintiff.

In regard to the sudden and rapid movement of the elevator, the complaint of the plaintiff is not supported by the evidence.

The engineer and machinist — a man of fifteen years experience — as a witness states that he has had charge of the Hennen Building powerhouse and engine for more than a year prior to the accident; and that the elevator was in first class order. That he understands the care and management of elevators professionally; that such is his business.

He says the speed of the elevator “is regulated by a centrifugal ball-governor, and so many turns of that ball-governor expands it and throws it against a belt, and throws out safety catches, and they can’t go over that speed. If,they do, out she goes.”

“Q. — Who fixes the speed?
■ “A.- — Between me and the inspector of the elevators.
“Q.- — Can the elevator boy or man regulate the speed of the elevator ?
“A. — Not past the excess, at full speed. That is the limit of the elevator man’s power. He might open it half way and crawl, but at full speed he can go no faster.
“Q.- — That speed is determined by whom ?
“A. — By the engineer in charge and the inspectors — three companies have inspectors.
“Q. — What was the maxim speed of November 9th, 1891 ?
“A. — It is — we always keep that at a standard of one hundred and fifty feet-
“Q‘. — A second?
“A. — No, sir; a minute.
“Q. — -That elevator cannot move faster than one hundred and fifty feet a minute ?
“A. — No, sir.
“Q. — The elevator boy cannot send it up any faster, no matter whar, he does?
“A. — No, sir. If he goes past that, he locks himself in the shaft, and stops instantly.'
“Q. — Is that a reasonable and safe rate of speed?
“A. — Yes, sir.
“Q. — Will the elevator start with that speed regulation — or that ■speed maximum, when it starts, will it start with a jerk, or start easily and safely?
“A. — From a standstill to that velocity, it is not an easy, gradual motion, but it starts right off at full speed.
“Q. — What has been your experience and observation with regard to that in the Hennen Building?
“A.- — We have had no complaints about that.
“Q.- — Is it perfectly safe and reasonable ?
“A. — Yes, sir.
*******
“Q. — Have you seen other elevators ?
• “A.- — -Yes, sir.
“Q. — Where??
“A.- — I have seen elevators in different cities; New York in the high buildings. I have seen Otis elevators in Chicago, St. Louis and New York, and I have seen the electric elevators.
“Q. — Were the elevators in use in the ILennen Building now, and on the 9th of November, the equal of any of the elevators you have seen 1
“A. — Yes, sir.
“Q. — Are they modern in their type and device, and tire best your scieneo knows?
“A. — At the time, yes. At the last date, they were the latest modern model.
“Q. — Can the elevator boy by manipulating the rope in the elevator, or by any other act of his, increase the speed of that elevator beyond that which has been determined by the inspector and the engineer ?
"A. — No, sir.
* * * * * * *
“Q. — There are four elevators in that building?
“A. — Yes, sir.
“Q. — Very large traffic?
“A. — Yes, sir.
“Q. — -Three or four thousand people every day?
“A. — Thirty-five hundred is about the average.
* * ■» -X- . -x •» * *
“Q. — What power is used in the ITennen Building?
“A. — Hydraulic pressure.”

On the foregoing testimony, and which is not contradicted, we feel safe in saying that no fault is attributable to the operator of the elevator. The movement of the elevator is necessarily sudden and rapid, and it must needs be so, in order to transport daily up and down between three and four thousand passengers.

There is nothing to show that the operator acted differently on that day of the accident, from what he had done before, and customarily during the entire period of his service.

The proof shows that since the elevator has been in operation in the defendant’s building, no other similar accident has ever occurred, or any complaint of its management or movement been made by any one.

We are prepared to concede that a most unfortunate accident happened to the plaintiff, and totally to his surprise, no doubt; and as a result thereof, he will be a cripple for life; but we do not find from the evidence that the defendant was in fault either in the construction or operation of its elevator.

This being the case, we feel bound to reverse the judgment appealed from.

It is therefore ordered and decreed that the verdict of the jury and the judgment thereon based, are annulled and set aside; and it is ordered and decreed that there be judgment in favor of the defendant, rejecting the plaintiff’s demands at his cost in both courts.

Breaux, J., recused.

On Rehearing.

Niciiolls, C. J.

In defendant’s brief counsel say:

“Can the obligation and duty of the defendant be better stated than has been done by Judge Cooley, in Cooley on Torts, Second Edition, page 768 ei seq.f Paraphrasing we say: “IUs duty and his undertaking to his passengers go to this extent that, as far as hum'an foresight and care can reasonably go, he will transport them safely. lie is not liable for injuries' happening from sheer accident or misfortune where there is no negligence or fault, or where no want of caution, foresight, or judgment would prevent the injury.”
“If it be kept in mind that ‘proof of a breach of duty is essential to a recovery ini an action for negligence,’ the doctrines stated by or inferred from the opinion 'of the court in Motchell vs. Marker, 62 Fed. Rep. 139, will serve for precedent here.”
“The plaintiff relies on that case. We take him at his word and we find that ease decides:”
“1. That elevators are not insurers of the safety of passengers.”
“2. That the highest degree of care is required of such owners.”
“3. That this care includes the control and management of the apparatus as well as the apparatus itself.”
“4. That it is the duty of the operative ‘to see that all his passen- “ gers are on and to give them sufficient time to adjust themselves.’ ” “These four propositions, it is clear, properly state the law. The three first are general rules, applying always, everywhere, to elevator owners as such. The fourth proposition attempted to be applied calls for facts. It raises the question, ‘did the one operating the elevator give the passengers reasonable 'opportunity to obtain balance upon entering the car, before beginning the flight upward ?’ ”
“If this question be answered in the affirmative, the plaintiff’s case falls. What other answer can possibly be given upon the facts established here ?” .
“It is indisputable that the plaintiff and his brother-in-law, two healthy and vigorous looking, stocky built, fellows, apparently about thirty-five years of age, enter the elevator in the usual way, take their places about the center of the car — the messenger boy is in one corner, the operator is between them and the door. The operator closes the shaft door, looks to see if he is due to start upward, pulls his power rope as usual, turns to take the instructions of his passengers and finds one of them fallen on the floor and the accident has happened. Neither of the other passengers is jarred or startled or loses his equilibrium.”
“Where is a breach of duty shown by these facts?”

The granting, by this court, of a rehearing evidenced the fact that we were not thoroughly satisfied as to the correctness of the conclusions reached by us and announced in the original opinion rendered. We have had the benefit, a second time, of argument, and the record has been submitted for re-examination after counsel of each side had called our attention to everything that could be said in favor of their respective clients.

Opinion.

There were four persons in the elevator at the time of the accident, John Bernard, the elevator operator, James Devine, a messenger boy, Santo Russo, the party injured, and Alexander Siacca, his brother-in-law.

The plaintiff is very consistent and positive in his statement as to how the accident occurred. -He testified that he entered the elevator with his right foot; that he then carried forward his left foot, hut before he could place it securely upon the floor, the operator pulled the rope and the elevator moved upward so suddenly and with such rapidity as to throw him off his balance and throw his arm and shoulder against the side of the wall; that the flooring of the second story extended beyond the wall itself so as to almost reach outwardly the floor of the elevator; that his shoulder and arm being carried swiftly upward along the wall finally reached the projecting floor above, and striking the same with great violence, were at once .crushed. It is true that he was not very precise in his description of the elevator and its surroundings or exact as to how he was injured, but it was not to be expected that he should be thoroughly informed on those points, under the circumstances.

Divine, the messenger boy, testified that the elevator started off and went up fast; it went so fast that the man went right off his feet, and when he hit the second floor> the elevator boy stopped and brought the man down; that he did not know what it was that made Russo fall over, but it looked like the elevator went so fast that it made him fall over; it started fast and quick. It started with a jerk and went fast.

On cross-examination he stated that the elevator did not start that day differently from what it did usually; that it seemed to him that this was the first time that this man was in an elevator. As soon as the elevator started, he went down “like that;” the elevator went so quick. He testified further that neither he himself, nor the operator, nor the other man, Siacca, who was with Russo, fell or staggered. He does not seem to have noticed or known whether Russo had or had not placed his feet to the floor of the elevator when it started.

Siacca, the brother-in-law of Russo, preceded him in the elevator, and was unable to-make any statement as to whether the latter had yet planted his left foot io the floor when the elevator started. He did state that, a moment after they got into the elevator, Russo’s arm was caught; “that the elevator started as fast as possible; almost as fast as lightning.”

Bernard, the elevator operator, stated that there were four elevators in the Iiennen Building, operated side by side facing Common street; that the elevator in which the accident occurred was elevator No. 4— that nearest Carondelet street. The rule for operating these elevators, with reference to each other, was that the doors should be closed before starting; that the elevators were not supposed to go up all at once, or go down all at once; they were supposed to be divided betweeti three or four floors. That the signal to start was sometimes given by a “starter;” that on this particular occasion the starter was not present; that he ascertained the time to start from the relative positions of the elevators; that he always looked up to see if the other elevators were at the right place; that he looked first, shut the door, and then pulled the rope. The witness referred to Russo’s position in the elevator as being behind him, but he does not pretend to deny Russo’s statement, that when the elevator started he had not yet planted his second foot upon the floor of the elevator; it is evident he had not noticed his'situation specially as to this.

ITis version of the starting of the elevator was that he looked up to see the elevators coming down; that he closed the door as usual and started to pull the rope; that as he pulled the rope he looked around to see where the passengers were going, and he saw the stout man (Russo) fall and he immediately stopped the elevator and saw the stout man with his arm crushed between the ceiling of the second floor and the floor of the elevator; that he started the elevator that day as he usually did, with ordinary passengers. In another portion of his testimony he stated that “he was standing in the elevator at his place and two men and a boy came in the elevator; the two men stood behind and the boy opposite to him (the elevator man); that he loolced to see if it ivas time to start and as it was time to stai-t he closed the door and started the elevator and looked around to enquire where the passengers were going, what floors, and he saw thé stout man fall and he immediately stopped the elevator, and he saw the man with his arm crushed at the ceiling of the second floor between the flooring of the elevator and the ceiling.”

A comparison of the testimony of the different witnesses, satisfies us that Russo’s statement that the elevator was started before he was permitted to place himself securely on his feet, is correct; that the elevator operator took as his guide, in starting it, the relative positions of the elevators themselves, rather than the situation and the condition of the passengers, who had entered his own elevator.

Defendant insists, however, that even if the elevator was started before Russo had both feet planted on the floor, it was impossible for the operator to have started it so suddenly, and with such swiftness, as to have thrown him off his balance. It says this matter is controlled by the engineer and is beyond that of the operator. That matters are so arranged that it is impossible for the elevator to be moved beyond a certain degree of swiftness, one hundred and fifty feet a minute, and an attempt to have it move faster would result in its being locked. That may be, and doubtless is true, but none the less the rate of speed at which the elevators are made to start, and ai’e made to run, after starting up, to and within this maxim speed, is at the will of the operator.

Florence, defendant’s engineer, being questioned on this subject, stated that the elevator boy could not regulate the speed, past the (maximum) excess, at full speed. That that was the limit 'of the elevator man’s power; he might open the valve half way and crawl, but at full speed he can go no faster. Being asked “will the elevator start with that speed regulation or that speed maximum when it starts, will it start with a jerk or start easily and safely?” lie replied: “From a standstill to that velocity, it is not an easy gradual motion, but it starts right off at full speed.” , ,

On cross-examination he was asked: “Supposing the rope was pulled so as to open the valve only partially, what is the slowest speed at which the boy might operate it ?” To this he answered: “lie might take all day to go to the eleventh story; the minimum might be brought down so that it would take him all day to go from the ground floor to the eleventh. If the elevator man opens the valve at starting, at full speed, it starts at the rate of one hundred and fifty feet a minute.”

The operator himself confirms the statement. In answer to a question by one of the jurors as to whether it was possible for him to regulate the speed of the elevator by the rope, that is, to make it go faster or slower, he replied: “Well, if I see any one in a dangerous condition, like old people or women, I could pull the rope slowly or easily and that would cause the elevator to go slow.” The regulation of the elevator is by pulling the rope and letting it go; he could control the speed of the elevator by the rope; if he pulled the elevator rope a certain distance lightly, it will go gradually; by giving one pull it would send it as fast as it would go; he could make the elevator go slower or faster by pulling easy, by not opening the valve to its full extent, but if he pulled the valve open to its full extent it goes as fast as it can. On this’ particular occasion, when he first started the elevator, he pulled the rope so as to open the valve to its full extent.

The case before us is that of a passenger in an elevator, who was unquestionably injured before reaching his destination, while being conveyed by a common carrier company. The plaintiff had a verdict in his favor in the lower court, which 'was approved by the district judge. Both sides produced their evidence. A thorough re-examination of the record satisfies us we would not be justified in saying that there was error in the verdict and in the judgment of the court, and unless we be able to so declare, we should not set aside the verdict and reverse the judgment.

We are of the opinion that the judgment heretofore rendered by us in this case should be, and it is hereby set aside, and it is -now ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.

Monroe, T., recuses himself having decided this case in the court of first instance.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 13,646.
    State of Louisiana vs. Oliver Washington.
    Syllabus.
    1. Whether a parent who inflicts corporal punishment on a child is acting in good faith, without passion, prompted by true parental love, is a matter which may be determined largely from the character of the injuries received by the child; and any instructions which would lead to the conclusion that it is incompetent for a jury to differ with the parent as to whether the latter has gone too far is misleading.
    2. The crime denounced by Act No. 17 of 1888 is the wilful and malicious infliction with a dangerous weapon, or with intent to kill, of a wound less than mayhem, and, although an indictment charging the infliction of such a wound with a dangerous weapon may specify the character of the weapon used, as for instance “a piece of iron,” it is not of the essence of the crime that it should have been committed with a weapon of that kind; hence, if it be proved without objection, that such a wound was wilfully and maliciously inflicted with a dangerous weapon of another kind, the defendant cannot thereafter insist upon the State proving that it was committed with the particular weapon specified in the indictment.
    3. The action of the trial court in refusing a new trial where no special error of law is pointed out, and where no bill of exceptions, with testimony attached, is taken to the overruling of the motion for new trial, will not be reviewed in this court.
    4. A complaint involving a matter of fact not patent on the face of the record, but which is made to appear only by the aid of testimony, cannot be the subject of a motion in arrest of judgment.
    APPEAL from the Fourth Judicial District, Parish of Lincoln— Dawkins, J.

      Walier Guion, Attorney General, and F. F. Preaus, District Attorney (Lewis Guion, of counsel,) for Plaintiff, Appellee.

      Barksdale & Barksdale for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

Defendant, indicted for inflicting a wound less than mayhem, was convicted of assault and sentenced to pay a fine of twenty dollars, or, in default of payment, to confinement in jail and work on the public roads. He has appealed and, through his counsel, presents for the consideration of this court, certain bills of exception and motions which will now be considered.

1. Bill of exception No. 1 is to the refusal of the court to charge that “if a parent acts in good faith, prompted by true parental love, without passion, inflicts no permanent injury on the child, he could not be punished merely because the jury, reviewing the case, do not think it was wise to proceed so far.” The reasons of the judge for refusing to give the charge as requested are stated as follows, to-wit: “The court had charged the jury already that a parent had a light to chastise his child, but that the chastisement should be done in moderation, and when the correction was considered reasonable, the parent was to be considered blameless. The facts in the case disclosed that the father had beat his ten year old child with a switch and a walking cane to the extent that many permanent sears were visible on the child’s body, and the court considered that the chastisement in the case was not from “(parental love), but from brutal instincts and malicious purposes.”

We are of opinion that the charge, as given by the judge, was better calculated to enlighten the jury as to the law applicable to the facts stated without the special charge requested than with it. Whether a parent, who inflicts corporal punishment on a child, is acting “in good faith, prompted by parental love without passion,” is a matter which may be determined largely from the character of the injuries received by the child, and any instructions which would lead to the conclusion that it would be incompetent for the jury to differ from the parent as to whether the latter had gone too far would be misleading.

2. Bill of exception No. 2. is to the refusal of the court to charge that “the State, in this case, must show, beyond a reasonable doubt, “ that the wound was inflicted with' the weapon named in the bill of “ indictment, viz: a piece of iron, and the piece of iron, when used as a “ weapon, was dangerous.” The bill recites that this charge was refused, and that the court charged “that it would be sufficient if the State had proved that a wound had been inflicted with any dangerous weapon.” The reasons given by the judge for the ruling complained of are, that “the defendant permitted the State to prove, without objection, that the wound had been made with a switch and a walking cane, and the court considered the evidence supplied pleading, and charged the jury as above stated.”

The statutes under which the indictment was found (Act No. 11 of 1888) reads: “Whoever shall wilfully and maliciously, with a dan“gerous weapon, or with intent to kill, inflict a wound less than “mayhem,” etc. The indictment went further and specified that theweapon used was a piece of iron. It is plain, however, that, in the" contemplation of the law, the crime could have been as well committed with a piece of brass, or a stick, or any other instrument or' thing capable of producing the same effect, which, either of itself,' or by reason of its use, should be held to be a dangerous weapon. It is true that objection might have been made, on the ground of “variance,” to the introduction of evidence tending to show the use of any other instrument than that specified in the indictment, but it is by no means clear that such an objection should have been sustained. “In all cases,” says Mr. Bishop, “it is simply required that the proof sustain so much of the allegations as constitutes the crime to be punished. It need not cover more, though alleged.” Bishop’s Cr. Pr., Vol. 1, Par. 127.

“ * * * In an indictment for murder, an allegation that the death was produced with a knife will be supported by proof that it was produced by a dagger, sword, staff or the like, or any instrument capable of the same effect.” Wharton’s Or. Ev., Par. 143.

Whether the weapon used by defendant was dangerous, within the meaning of the statute, was a question for the jury to determine, upon considering not only the character of such weapon, but by whom, upon whom, and in what manner, it was used. State vs. Scott, 39 Ann. 943; State vs. Brown, 41 Ann. 345.

Inasmuch, therefore, as the defendant had allowed it to be proved, without objection, that the wounds had been inflicted with something else than a piece of iron, there was no reason for giving the special charge requested by him, which was, in effect, that the jury should disregard the proof so made.

3. A motion for new trial was filed, upon the ground that the verdict was contrary to the law and evidence, but, as no particular error of law specified, and no bill of exceptions was taken, we do not feel called upon to consider it. State vs. Nelson, 32 Ann. 842; State vs. Wire, 38 Ann. 684; State vs. Walker, 37 Ann. 560; State vs. Miller, 36 Ann. 158; State vs. Chandler, 36 Ann. 178; State vs. Darrow, 39 Ann. 677; State vs. Pete, 39 Ann. 1096; State vs. McTier, 45 Ann. 440.

4. Defendant’s counsel also filed a motion in arrest of judgment, upon grounds which are stated, as follows, to-wit: “Under and by the evidence adduced at the trial of this cause, which is a necessary part of the record of this cause, and which was heard by the court, it was shown that this defendant was the father of the party alleged to have been injured, namely Julia "Washington, a child ten years old. Under the law, the father had the right to assault and whip his child, provided it be (in) a reasonable manner, and while the father might be guilty of assaulting and beating his child, or of assault with intent to commit a graver crime on his child, when the jury simply find the father guilty of an assault, it is finding him guilty of an act which is not illegal in him and for which he cannot be punished.”

Our attention has not been called to the law which makes all of the evidence adduced on the trial part of the record of appeal in a criminal case, and frequent rulings have been made by this court which are irreconcilable with that theory. State vs. Nash, 45 Ann. 974; State vs. Pomp Joseph, 45 Ann. 903. Beyond this, it has been held, more than once, that a “defect that appears only by the aid of testimony cannot be the subject of a motion in arrest.” State vs. Green, 36 Ann. 185; State vs. Chandler, 36 Ann. 177; State vs. Chevis, 48 Ann. 576; State vs. Pete, 45 Ann. 1095; State vs. Victor, 36 Ann. 978; State vs. White. 52 Ann. 206.

It does not appear from the indictment in the case at bar that the defendant was the father of the person injured; that fact could, therefore, have been arrived at only “by the aid of testimony,” and the point as presented, falls within the rule as stated above, in language quoted 'from the opinion in State vs. Green, 36 Ann. 185. See, also, Bishop’s Or. Pr., Vol. 1, Par. 1285.

The trial judge heard the evidence, and in that way learned the facts in regard to the relationship between the' defendant and the person injured, which he states in the' bills of exception signed by him, which bills, were, however, taken with reference to other matters than that now under consideration. And if it be true that a motion in arrest cannot be sustained on the basis of direct evidence introduced into the transcript, a fortiori can such motion not be sustained on the basis of statements of fact contained in bills of exception, incorporated in the transcript, but relating to other matters.

Judgment affirmed.


author: Nicholls, C. J.

text:
    No. 13,735.
    Succession of Ernest Jacobs.
    Syllabus.
    1. One cannot renounce the succession of an estate not yet devolved, nor can any stipulation be made with regard to such a succession, even with the consent of him whose succession is in question. The acceptance or rejection made by an heir before the succession is opened, is absolutely null, and can pro duce no effect. (C. C. 984-1887, 37th Annual, 236).
    2. An estoppel cannot be invoiced to impair the force and effect of a prohibitory law. (37th Annual, 236).
    3. Where a testator, after making a particular legacy to a brother, leaves the “residue” of his property to his wife, and the donations are in excess of two-thirds of his property, the property which is the subject of the particular legacy is not to be reduced by the action of reduction of a forced heir, if the value of the residuum does not fall short of the legal reservation. (C. C. 1312).
    4. Where a person who dies leaving no children, but leaving a brother and sisters,'has made donations inter vivos or mortis causa of his property exceeding two-thirds, the mother is a forced heir to the extent not of one-fourth, but of one-third. (C. C. 1494, 35th Annual, 995).
    5. Where a person, who, dying without descendants, has left a mother, has disposed of more than two-thirds of his property by donations mortis causa. the donations being of particular property in its entirety to a brother, and the residue to his wife, the effect of a judgment recognizing the mother as a forced heir for one-third is not to vacate ipso facto the title of the particular legatee to the extent of the one undivided third as a conveyance by the testator to that extent of the property of another, and, therefore, nuil and void. (C. C. 2452).

      ^ PPEAL from the First Judicial District, Parish of Caddo — Land,

      Wise & Herndon for Executor, Appellee.

      Alexander & Wilkinson for Mrs. P. L. Jacobs, praying to be recognized as a forced heir, Appellee.

      Holbert & Barret for Mrs. Lillie A. Jacobs, residuary legatee, praying to be put in possession, Appellant.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, C. J.

On November 30th, 1899, Ernest Jacobs executed his olographic will, which read as follows:

“Shreveport, La., Nov. 30, 1899.
“Being aware of the uncertainty of life, I make this my last will and testament.
“1st. I desire that all my just debts be paid in full at once.
“2nd. I give and bequeath to my beloved mother, Mrs. P. L. Jacobs, one-fourth of all the property of which I. may die possessed, real and personal, money, rights and credits.
“3rd. I give and bequeath to my brother, Walter B. Jacobs, all my interests and stock in the Shreveport Belt Railway Company and City Railway Company, and in the Shreveport Compress and Warehouse Company and in the Grand Opera House.
“4th. Whereas, I am engaged to marry, and expect to marry, Miss Lillie A. Ileald, the daughter of T. W. Ileald, a resident of the city of New York, in the State of New York, on the 12th day of December, 1899. Now, in the event that we are married, the said Lillie A. Ileald, becoming my wife, I give and bequeath to her all the remainder of the property of which I niay die possessed, real and personal, money, rights and credits.
“5th. I appoint my brother, Walter B. Jacobs, executor of this my last will'and testament, without bond.
“This is wholly written, dated and signed by me in my own handwriting, on this, the 30th day of November, 1899.
“Ernest Jacobs."

lie married the young lady referred to in the will shortly after its execution, and died on the 18th of January, 1900, leaving a mother, one brother and several sisters, a widow and no children, issue of his marriage, and considerable property, real and personal.

The will was probated on January 30th, 1900, and W. B. Jacobs, the brother, qualified as executor. An inventory was made of the property of the succession, showing the value of the whole estate to be $103,74S.

On the 28th of May, the executor filed a tableau of debts, praying that he be authorized to pay the same. This account showed an indebtedness of $23,842, and it was homologated on the 14th of April, 1900, and the debts ordered paid. This was done, leaving $97,985 as the net estate.

On the 5th of May, 1900, Mrs. P. L. Jacobs, widow of Edward Jacobs, and mother of Ernest Jacobs, filed a petition, in which, after reciting her relationship to the deceased — that he had died — leaving an olographic will, which had been admitted to probate, and under which Walter B. Jacobs had been confirmed and qualified as testamentary executor, she alleged that by the terms of said will, she had been bequeathed one-fourth of all the property of the deceased; that a special iegacy of certain property had been bequeathed to W. B. Jacobs, and the remainder was left to Lillie A. BTeald (Jacobs), the widow of the deceased.

That the deceased left no children, and that his only legal heirs consisted of herself (his mother) and his brother and four sisters. That- all of the property of which he died possessed was his separate estate and property.

That, under the law, she was the forced heir of her son, and as such, was entitled to one-third of his entire estate. That to the extent of the difference between the amount stated in said will — one-fourth—and that to which she was entitled under the law — one-third, the said will was null and void or reducible to the disposable portion provided by law.

In view of the premises, she prayed for citation upon the executor and upon Mrs. Lillie A. Heald (Jacobs) (born ITeald), widow of Ernest Jacobs, and residuary legatee under his last will and testament; that on the final hearing, she have judgment decreeing her to be entitled as a forced heir to one-third of the entire estate in succession of Ernest J acobs, and for all further orders and decrees necessary in the premises, and foi general relief.

Mrs. Lillie Jacobs answered this demand. After pleading the general issue she admitted that the petitioner was the mother of the deceased; that he had died testate leaving a will, under which she was willed one-fourth of his estate; that the deceased left no descendants but a mother and brother and sisters surviving him. She specially denied the right of Mrs. P. L. Jacobs to claim and recover one-third of the property left by the deceased. She averred that her interest or legitime in said estate, was one-fourth and not one-tliird as claimed by her. That the disposable portion was three-fourths of said estate. That Mrs. P. L. Jacobs was a legatee under the will for one-fourth of said estate, which was all she was entitled to, under the law. That Mrs. P. L. Jacobs was estopped by her acts and conduct from changing the provisions of the said will.

That she had often said before and since the death of Ernest Jacobs, that she did not want any of his property and that she did not need it, and often expressed herself as being fully satisfied with the provisions of the will, leaving her one-fourth. That she notified the testator before the will was written that she did not want any of his property, and would not accept it, and on being- ■ informed by the testator that the law forced him to leave her the fourth of his estate, said and informed said testator that she did not care for or want any of his estate, or property. That the mother was very old and wealthy, and in no wise needed said property. That this and other acts and conduct of the mother largely influenced and caused the testator to leave a large lega.cy to his brother, W. B. Jacobs, which, doubtless, would not have been done, had she notified the testator at the time, she was heir to one-third of his estate and would claim it.

She specially pleaded that the mother was estopped and could not now be heard to claim more than what was given her by the will; she prayed that her demand be rejected.

The executor answered the demand of Mrs. P. L. Jacobs, pleading the general issue.

The widow of Ernest Jacobs instituted a suit, in which she alleged that she was his universal legatee, under his will. That Walter B. Jacobs had administered the estate as executor and had filed his final account as such and prayed to be discharged of his trust.

That Mrs. P. L. Jacobs, the mother of the deceased, who died without issue, and surviving him, was owner under the law of one-fourth of said estate, after paying the debts of the deceased, the one-fourth being- her legitime in said estate. That the said Mrs. Jacobs was entitled to the possession of the said one-fourth of the said estate, and petitioner was entitled to the possession of the other three fourths of said estate, except a special legacy to W. B. Jacobs, being - fourths of certain stock mentioned in the will, his mother being owner of the other fourth.

That notwithstanding- Mrs. P. L. Jacobs was owner under the law as forced heir of one-fourth of said estate, and also by the terms of the will, she had brought suit for a third of said estate, which suit was still pending and could not be possibly fully disposed of before late in the fall or early next spring.

That petitioner was entitled to go in possession of the disputed interest, being the difference between a fourth and a third of said estate, on giving bond according to law, in an amount to be fixed, pending a settlement of said law suit between petitioner and the said Mrs. P. L. Jacobs.

That she was in need of the revenues of her property, and that the same should be accordingly-turned over to her to be managed by her as she thought best.

She prayed for citation upon the executor and Mrs. P. L. Jacobs (the mother of her husband) and for judgment in her favor putting her in possession of three-fourths of said estate and permitting her to give bond for the difference between one-fourth and one-third as claimed, in the suit of Mrs. P. L. Jacobs, to account for the same on a final termination of that suit, and for all other orders necessary, costs, and general relief.

Mrs. P. L. Jacobs answered this petition, pleading first, the general issue. She opposed and objected to the putting of said Mrs. L. A. Jacobs into possession, on the ground that there was now pending in court in this succession proceeding, a suit by respondent claiming her legitime of one-third of said estate, and asking a reduction of the amount left to petitioner under the will, from three-fourths to two-thirds, and that, until this proportion was fixed and determined by final judgment of court, the interest of petitioner could not be ascertained or delivered.

The executor answered the application, pleading first, the general issue. He then averred that there was pending in court, a suit brought by Mrs. P. L. Jacobs, to revoke the will of said Ernest Jacobs, in so far as it gave her one-fourth (%) of his estate, she claiming one-third (%) as her portion under the law, and until that suit was finally determined, he did not know how to divide the assets of said succession, or the interest of the said Mrs. Jacobs therein.

In view of the premises he prayed that the demand of plaintiff be rejected until the rights of all parties might be fully settled, and for all orders and decrees necessary, for costs and for general relief.

In the meantime the executor had filed his final account of administration, and asking that notice be given to parties, he prayed for his discharge.

In his petition accompanying the account he averred that there was error in the inventory, in this, that the shares of Parkview Land Company were appraised at $1600, and the money belonging- to said company was also appraised at $2405. Pie reserved the right in his individual capacity to contest the ownership of Parkview Land Company, and the money on hand.

Mrs. Ernest Jacobs answered. She denied every allegation in the executor’s petition, made in reference to error in the inventory as lo Parkview Land Company, and, also, his right to certain reservations as set forth therein.

She averred that the stock of the said company was appraised at its full value and that the money was earnings of the company which were still on hand undivided, also over which all rights and credits belonging to the said company should also be appraised, separately from stock. She prayed that the executor’s demand be rejected.

The District Court rendered judgment on the petition of Mrs. P. L. Jacobs relative to her legitime, “ordering, adjudging and decreeing that Mrs. P. L. Jacobs be recognized as the forced heir of Ernest Jacobs, deceased, and as such entitled to the undivided third of his entire succession, after the payment of debts and costs and expenses of administration, and that the succession pay the costs of that particular proceeding.”

In the matter of the application of the widow to be placed in possession of the estate of Ernest Jacobs, the court rendered judgment, “ordering, adjudging, and decreeing that Mrs. Lillie A. Jacobs be recognized as the residuary legatee of the succession of Ernest Jacobs, and as such entitled to the residuum of the property on hand, as shown by the final account of W. B. Jacobs, executor, less costs, after deducting therefrom the one undivided third interest of Mrs. P. L. Jacobs, as per her judgment rendered the same day and the particular legacy of W. B. Jacobs.”

It further ordered, that the widow be put in possession of said residuary interest according to law, and that the succession pay the costs of that particular proceeding.

The widow, Mrs. L. A. Jacobs, appealed from the judgment in favor of the mother. She also appealed from the judgment rendered by the court in the matter of her own application.

No other appeals were taken and no prayers for amendments of judgments were filed.

Opinion.

In the brief of counsel for Mrs. Ernest .Jacobs, appellant, they say this ease presents the following questions:

1st. Is the interest of Mrs. P. L. Jacobs as a forced heir a third or a fourth ?

2nd. Is she not estopped by her acts and conduct from now claiming any more than the fourth given her by the will?

3rd. Can she attack the will without renouncing the legacy?

4th. Does not the interest of Mrs. P. L. Jacobs, whatever it may be. cover a part of the stock willed to W. B. Jacobs, and if so, who is to make up the deficiency, if at all?

The legislative branch of government in this State, has exercised its recognized power of controlling the disposition of the property left by parties at their death, by the enactment of general statutes of descent and distribution. It has also enacted laws modifying, itself, the general laws in particular cases or classes of cases, or authorizing the modification of the same under certain circumstances and on terms and conditions, and with certain resulting effects, by the exercise of the will of the owner of the property.

Thus it has divided succession (Art. C. C. 875) into testamentary, legal and irregular successions; declaring in Article 876 that testamentary successions were those which result from the institution of heir contained in a testament, and that this sort of successions were treated of under the title of donations inter vivos and mortis causa; in Article 877 that legal succession was that which the law had established in favor of the nearest relation of the deceased; and in Articles 880 and 888 that he who was the nearest relative to the deceased capable of inheriting, was presumed to be, and was called to be, legal heir.

Having dealt wiih the subject of successions generally, the legislature took up the matter of successions in detail, providing for legal successions in the case of Successions falling to Descendants (Article 902 et seq.); Successions falling to Ascendants (Article 903 et seq.) and of the Succession o-f Collaterals (Article 911 et seq.); of Irregular Successions (Article 915 et seq.); of Testamentary Dispositions (Article 1570, et seq.', Article 1605, et seq.)

As affecting the subject matter it adopted the Articles of the Civil Code found in Article 1493 et seq. and Article 1502 et seq.

A comparison of these various provisions of the law will show that while the law-maker has provided by disposition of its own, of iho property left by deceased parties, in the absence of testamentary dispositions, it has authorized parties under certain limitations and conditions to vary or control the legal provisions by the exercise of their will, brought to bear upon the subject matter. We find in Article 1496 “that where there are no legitimate descendants and in case of the previous decease of the father and mother, donations inter vivos or mortis causa may be made of the whole amount of the property of the disposer, saving the reservations made thereafter”.

This Article withdraws brothers and sisters of the deceased and the descendants of the latter and the wife of the deceased from falling under the term “forced heirs” found in Article 1495. It confines “forced heirship” to the descendants of a person and to their surviving father or mother, or both.

We find in Article 1502 of the Code the recognition by the lawmaker of the general right of parties to dispose of their property by donations inter vivos and mortis causa, but coupled with the limitations and conditions affixed to the exercise of that right by Articles 1493 and 1494 of the Code.

The first of these Articles (Article 1493) declares “that donations inter vivos or mortis causa cannot exceed two-thirds of the property of the disposer, if he leaves at his decease a legitimate child; one-half if he leaves two children; and one-third if he leaves three or a greater number. Under the name of children are included descendants of whatever degree they be, it being understood that they are only counted for the child they represent.”

The second Article (Article 1494) declares that “donations inter vivos or mortis causa cannot exceed two-thirds of the property if the disposer, having no children, leave a father or mother, or both”.

Article 1495 declares that “in the cases provided by the two last preceding Articles, the heirs are called ‘forced heirs’ because the donor cannot deprive them of their portion of the estate reserved for them by law, except in cases where he has a just cause to disinherit them”.

Article 1502 declares “that any disposal of property, whether inter vivos or mortis causa, exceeding the quantum of which a person may legally dispose to the prejudice of the forced heirs, is not null but only reducible to that “quantum’’.

Article 1504 declares “that the reduction of the donations whether inter vivos or mortis causa can be sued for only by forced heirs or by their heirs or assigns.”

It is conceded in this ease that Ernest Jacobs died leaving no children and leaving a mother, and that the donations mortis causa exceeded two-thirds of the property of the deceased. The facts of the ease bring it directly under the terms of Article 1494 of the Code.

The mother of the deceased has called upon the courts, under Article 1502, as a forced heir, to have the provisions of Article 1494 enforced in her favor, and to have the donations made by the will reduced to the quantum allowed by law and to have herself recognized as a forced heir and to have the reduction enure to her benefit.

The court recognized the correctness of her demand and gave judgment in accordance with her prayer. The brothers and sisters of the deceased acquiesced in the judgment.

His widow, who by the terms of the will was constituted residuary legatee, alone complains.

She is not an heir at all in the succession, still less a forced heir, and is only entitled to insist upon recovering what her husband bequeathed to her and to the extent alone that he was legally authorized to bequeath the same to her. It is clear that so far as she is concerned that the bequest to her was subject to reduction, as being in excess of the quantum which the law authorized her husband to dispose of, he/ having np children and leaving a mother.

If that be true, it is a matter of no legal qoncern to her as to whose benefit the reduction will enure. The mother, as a forced heir, had an unquestionable right to sue for the reduction. Article 1494 of the Code is clear and unambiguous. The Legislature had the legal right to say “that donations inter vivos or mortis ccrnsa should, in cases of testamentary succession, not exceed two-thirds of the property, if the disposer having no children, leave a father or mother.”

We have no authority to refuse to obey the legislative will unless brought to bear upon matters beyond constitutional powers. Appellant contends, if we understand correctly, that there is no direct affirmative enactment of the law casting upon the mother a right of inheritance to the extent of one-third; that the only direct declaration as to her rights, when called as heir to a succession in a concurrence with brothers and sisters of a deceased person, is to declare her an heir to ■the extent of one-fourth. It may be true that there is no direct .affirmative declaration to that effect, but that the mother does become a forced heir to the extent of one-third in a testamentary succession under Article 1494 clearly results from the terms of that Article and those of Articles 1495 a.nd 1496.

The facts in the matter of the Succession of Marks, reported in 35 Ann. 998, were almost identical with those in the present case. The deceased, Marks, left no children, but did leave a mother, brothers and a surviving wife. The latter he constituted by his will his universal legatee. The only difference between that case and the present is that while Jacobs left no children but did leave a mother, sisters and a surviving wife, he made a bequest of one-fourth of his property to his mother, and a bequest of certain stocks, specific, personal property to his brother, and constituted his wife his residuary legatee.

In the contest which arose in the Marks succession as to the character and extent of the mother’s interest, she was adjudged to be a. forced heir to the extent of one-third, the court overruling Cole vs. Cole (7 N. S. 414), and adopting the views of Mr. Justice Buchanan in Barbet vs. Roth (14 Ann. 381), to the effect that “there was a very simple and obvious way of reconciling Articles 899 and 900 (now Articles 903 and 904) with Article 1481 (now Article 1494) of the Code, which was to consider the first a statute of distribution of Intestate, Succession — ■ the second a statute of distribution in Successions Testamentary. One is an allotment made of a man’s estate when he had not chosen to make any allotment himself. The other a restriction upon the disposing power of a man over his own property. The doctrine in the Cole case (7 N. S. 414) if adhered to would expunge Article 1481 (now Article 1494) from the Code. The doctrine (of that case) is substantially as follows

“Article 1491 (now Article 1494) is irreconcilable with Articles 899 and 900 (now Articles 903 and 904), therefore it must yield to those Articles and consequently the legitime of a father and mother of a descendant, who leaves a brother or brothers, is in no case more than one-fourth of the succession.”

“Now besides the fundamental error in the premises, the want of incompatibility of the Article, the conclusion is erroneous even if the premises were correct, for it is a rule of interpretation that when two Articles of the Code cannot be reconciled, the last in order and highest in number, prevails. (Johnson vs. Pilister, 4 Rob. 71).”

Counsel urge upon us to overrule the decision in the Succession of Marks and return to the doctrine announced in Cole vs. Cole, which they say was followed for near a century, but we do not feel justified in. doing so, not only because an uncertain and fluctuating jurisprudence is to be avoided, if possible, but because the conclusions reached in the Marks case were correct.

It is urged that these conclusions lead up to illogical and incongruous results. Granting that to be so, it is no part of the province of the judiciary to construe statutes which are perfectly unambiguous, in a manner different from their terms, in order to bring them in connection, with others, into forming a perfectly rounded and logical and consistent system. We have to enforce the law, consistent or inconsistent, logical or illogical, so long as it is constitutional.

It is useless for us to discuss what might have been the rights of parties, had the terms of the will been different from what they are; in other words, discuss a case where the disposition made of his property by the deceased would have been identical with the disposition made by the law itself, in the case of intestacy. We have to take the facts and the will as we find them.

Appellant contends that the mother is estopped from claiming more than one-fourth of the estate, by reason of having declared to her son, prior to his making his will, that she did not expect or desire him to leave her any of his property, and by reason of her having made declarations to the same effect to her daughter-in-law, after the death of the latter’s husband.

With respect to the latter declarations it is sufficient to say that they rest upon the testimony of the widow, which is flatly contradicted by that of the mother. The alleged declarations are not established. The mother’s testimony is supported by the presumption "nemo facile presumitur donare”. lie who rests a claim upon the renunciation by another of a right existing in his favor, is called upon to establish the renunciation by very clear and positive evidence.

We do not think it can be seriously urged that declarations such as appellant claims the mother to have made prior to her son’s death and prior to his making a will in respect to the testamentary disposition of his property, could estop her from claiming the legitime accorded to her by the law.

What the mother said, even if legally proved, was not said under circumstances and conditions such as would have legally bound her. Article 984 of the Civil Code declares “that the acceptance or renunciation of a succession before the succession is opened or left, is absolutely null and void,' and can produce no effect.”

Rot only is the absolute renunciation of a succession before a succession is opened, a nullity, but any contract or arrangement between the heir and the party from whom he is seeking to inherit to work a modification of the terms of his inheritance by anticipation, is without effect.

Article 1887 of the Civil Code declares that “one cannot renounce the succession of an estate not yet devolved, nor can any stipulation be made with regard to such a succession, even with the consent of him whose succession is in question.”

If the right of a party in a succession cannot be defeated by an express contract or stipulation made before the succession was opened, they cannot be by invoking the doctrine of estoppel. Estoppel cannot be set up to impair the force and effect of a prohibitory law. (Factors’ and Traders’ Insurance Company vs. New Harbor Protection Co., 37 Ann. 236.)

Appellant contends that the mother could not institute this action until she had renounced all benefits under the will; that 1his she did not do. The demand which she made was for one-third of the estate of her son as forced heir, under allegations showing the state of facts upon which the claim was based. She does not claim any other or greater right than her legitime.

It is true that she does not, in precise terms, ask that the bequest made to her in the will of one-fourth, should be set aside, but this is because she viewed the will as simply recognizing her rights in the succession to the extent mentioned. Her rights in the succession are not grounded upon the will, but upon her rights as forced heir. (Succession of Turnell, 32 Ann. 220.)

Appellant contends in general terms that if the mother’s right to one-third be recognized and the bequests made in the will should be reduced, that the reduction should be made pro rata between herself and W. B. Jacobs, the particular legatee. She cites in support of this proposition Article 1511 of the Code, and the decision of this court in Theall vs. Theall, 11 La. 429.

The rights of the parties in this case are governed by Article 1512 and not by Article 1511 of the Code.

It is true that the testator does not declare in ipsissimis verbis that “the particular legacy made to the brother should be paid in preference to that made to the widow”, but that intention and result follow forcedly from the nature and character of the latter bequest. The legacy to the brother and that to the widow are not each absolute legacies, standing inter se upon an equality, but the widow was constituted Ernest Jacobs’ “residuary legatee”. By the force of the will she was to take only after the other bequests had been satisfied.

The last contention is that the brother is called to contribute with her, notwithstanding the terms of the will, by force of the effect of the law governing the reserve or legitime upon the particular legacy made to the brother.

In respect to this contention, counsel say: “Does not the interest of Mrs. P. L. Jacobs, whatever that interest may be — a third or fourth— cover a part of the stocks willed to W. B. Jacobs; and if so, who is to make up the deficiency, if any one?” If forced heirship is ownership —and of this there can be no doubt — at the moment the testator expired, the interest of Mrs. P. L. Jacobs as forced heir attached to the extent of her interest to each and every piece of property of the succession. Her ownership and seizin of the- property resulted from operation of law, and this could not be affected, increased or restricted by any testamentary disposition of her son. If this be true, she took as owner the interest the law gives her in the stocks willed to W. B. Jacobs. Therefore, Jacobs’ legacy was reduced by the law to three-fourths, or to two-thirds of the stock willed to him. The question is shall his legacy be reduced in proportion to the interest his mother as forced heir, may have in said stock. The universal legatee contends that his legacy should be so reduced as this legacy is a special legacy of a particular piece of property. That Jacobs must suffer the loss, and has no right to call on the universal legatee to make up the amount of his legacy reduced by the forced heirship of his mother. That this being “a case of reduction” she is free from contributing even pro rata to the making up of this reduction to W. B. Jacobs.

Appellant’s proposition is that a person having children or a father or mother, cannot convey title to the entirety of any particular piece of property by donation inter vivos or mortis causa; that he can only convey title to an undivided third; an undivided half, or an undivided two-thirds of any specific property, according as there may be forced heirs entitled to a legitime of one-fourth, of one-third, of one-half, or two-thirds in the estate, at the time of his death; that if he should have conveyed more, he should be held to have conveyed (to the extent of this third, fourth, or half) the property of another and the title to that extent be ipso facto null. (O. C. 2452.)

It is error to suppose that when the owner of property who leaves children, or a father or mother at his death, disposes of particular property in its entirety by donation inter vivos or mortis causa, he disposes to the extent of the quantum of legitime which the children or father or mother may have in his succession of the property of another; on the contrary, he disposes of the whole property as his own, but his donee takes it, subject to the rights of the forced heirs to make good their legitime, in the order and in the manner fixed by the law to the extent it may be unsatisfied or trenched upon by the donations inter vivos or mortis causa of the father or son.

The dispositions made by the father or son are not null but only reducible. The amount coming to the forced heir from the succession may from the special facts of the particular case be very little, and that ascertainable as directed by Article 1305 of the Code and by examination of the entire situation of the succession, and the liquidation of the rights of the parties.

The successful reduction for a small amount of the dispositions of the ancestor or author would certainly not result to the failing or vacation ipso facto of the title of the donee by one-fourth, half or two-thirds (as the quantum of the forced heir might be) of the property donated, nor should the enforcement of the judgment of reduction be limited and confined to the special undivided third or fourth or two-thirds of that property.

The action of reduction if brought by one heir against another might give rise to an action of partition between the heirs, but this action of partition would not be the action between “joint owners”, or joint owners of a specific, undivided interest.

Whatever might be found due by reason of the legitime would, it is true, be in right of ownership (for it is only in right of heirship that the legitim,e is claimed, and a right of “heirship” whether the heir occupies towards the deceased the special relationship which gives rise to a right of legitime or not, is a right of ownership as contra-distinguished from a creditor’s right), but this right of heirship is not necessarily a right of joint ownership nor of joint ownership to the extent of one-fourth, one-half or two-thirds of specific property, nor of the succession as a whole. It is a qualified right of ownership — a right of ownership sub-modo. The heir takes the property subject to the legal acts of the ancestor and the legal rights of creditors.

Parties holding property by donations inter vivos or mortis causa from parties leaving forced heirs, own the property donated, but by a special tenure of imperfect ownership causing them to hold it subject to the enforcement of the rights of the forced heirs as a right inherent in it. (Succession of Canonge, 1 Ann. 211; Bank vs. David, 49 Ann. 142.)

While the judgment in the present case recognized the right of the mother as a forced heir in the Succession of Ernest Jacobs, and brought the particular property covered by the legacy to W. B. Jacobs, if necessary, within the grasp of the judgment in its enforcement— the title of W. B. Jacobs to the particular property bequeathed to him was not reduced ipso facto to two undivided thirds as contended for by appellant.

The title remains in W. B. Jacobs in its entirety — subject to the enforcement by Mrs. P. L. Jacobs of her right of legitima according to law. (Succession of Turnell, 32 Ann. 1220.)

We are of the opinion that the District Court took a correct view of the manner of this enforcement and of the rights of the parties. The judgments appealed from are hereby affirmed.


text:
    No. 13,662
    State of Louisiana vs. Charles Hayes.
    Syllabus.
    1. The sureties on an appearance bond have the right to move to set aside the judgment forfeiting such bond and condemning them for the amount thereof, and the objection that the motion comes too late, if well made, should be urged as a defense to such motion rather than as against the filing or hearing of the same.
    2. There is nothing in Act No. 17 of 1900 which precludes an application to set aside such judgment of forfeiture upon grounds other than those mentioned- in said act.
    S. Where the surety on a forfeited appearance bond presents to the District Court a rule to show cause why such forfeiture, and the judgment against him predicated thereon, should not be set aside, and he is refused permission to file such rule and appeals therefrom, the grounds set up in such motion, not having been considered or acted upon in the court a qua, will not be considered or acted upon on the appeal.
    APPEAL from the Twelfth Judicial District, Parish of'Sabine— Lae, J.

      Waller Guión, Attorney General, and Amos L. Ponder, District Attorney, (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      T. C. Armstrong for J. B. Brown and G. Brewster, Bondsmen, Plaintiffs in Buie, Appellants.
   The opinion of the court was delivered by

Monroe, J.

The record shows that in February, 1900, an information was filed in the District Court for the parish of Sabine, charging Charles Iiayes with having feloniously married Eliza Brewster, “Birdwell, his lawful wife, being then alive and undivorced”, and that a warrant was ordered to be issued for the arrest of the accused. It further appears that, upon the 19th of September, he appeared in court, assisted by counsel, waived arraignment, plead not guilty, and demanded a trial by jury, and that his case was fixed for September 25th. On September 24th, he gave bond for his appearance, with J. B. Brown and G. Brewster as sureties. On the following day, September 25th, he appeared in court assisted by his counsel, and having-announced that he was ready for trial, a jury was drawn and impaneled, and, pending the taking of testimony, the accused absconded. Thereupon a mistrial was ordered, and his bond forfeited. On September 29th, the minutes show the following entry, to-wit:

“Motions from the bar were called for, whereupon the following proceedings were had and ordered entered:
“No. 960. Slate of Louisiana vs. Oharles ITayes, .Charge, Bigamy.
“Application for rule to show cause offered to he filed and objected to by the State. Rule refused as coming too late. Bill of exceptions reserved. Appeal granted-”

Then follows a copy of a petition setting forth, in substance, as reasons. why the forfeiture of, and judgment on, the appearance bond should not he set aside.

1. That it was not legally executed by the defendant.

2. That, the defendant had appeared and answered.

3. That the bond was defective in that it referred to Act 93 of 1900. which Act is unconstitutional, for the reason that it fails to define the offense of bigamy.

■ 4. That the proposed action of the district attorney in proceeding to collect the bond, without affording the petitioner an opportunity to re-arrest the defendant, was inequitable.

And thereafter appears a rule on the district attorney to show cause why said forfeiture and judgment should not be set aside on the grounds stated in said petition. There was no bill of exceptions written out or presented to the district judge, nor do we find any assignment of errors. The error complained of in the brief of appellants’ counsel is, however, disclosed on the face of the record, and it is a settled doctrine that the court may take cognizance of matters of law so presented, without a bill of exceptions or formal assignment of errors. State vs. Bazile, 33 Aim. 545; State vs. Johnson, 51 Ann. 1648.

The learned counsel for the State, to quote the language of their brief, “discuss the case as if it were properly before this court”, and have considered, at some length, the various grounds set forth in the lower court as reasons for setting aside the forfeiture and judgment. But those grounds constitute the merits of the appellants’ case, and were never reached or acted on by the judge of the first instance, and, hence, are not before us on appeal. The judge a quo simply refused to entertain the application to set aside the forfeiture and judgment thereon without reference to the grounds upon which such application was based, for the reason, as appears from the minutes of the court, that he considered it came too late. The only issue brought up by the appeal, therefore, is, had the appellants the right to be heard, in the form in which they presented themselves, and contradictorily with the State, upon the question of the validity of the judgment which had been rendered against them? We think it clear that this question should be answered in the affirmative. If the prescription, which appears to have been invoked, is applicable, and the proceedings was filed too late (though upon this we express no opinion) it was a plea to be urged against the right of recovery rather than against the right to appear in court. The provisions of the Act Ro. 17 of 1900, to the effect that a judgment and appearance bond may be set aside within five days after ifs rendition, upon the appearance, trial, and conviction of the principal, etc., cannot be construed as precluding the sureties from moving to set aside such judgment upon other grounds, and, whether the grounds for such motion are well taken can only be properly determined after hearing the movers, contradictorily with those as against whom such a proceeding must be taken.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that this case be remanded, with instructions (hat the appellants be allowed to file the petition and motion to set aside the forfeiture and judgment complained of, and afforded an opportunity to he heard thereon.

Rehearing refused.


author: Breaux, J.

text:
    No. 13,741.
    State of Louisiana vs. Archie Smith et als.
    Syllabus.
    1. In a case in which the defendants were charged with burglary and larceny, the date the verdict is returned into court may be corrected by the jury in court (while they are present to make this return), the purpose being to correct an oversight on the jury’s part, and to insert the correct date ol the return. There was no necessity to date the verdict, but having been dated, it was proper to have it dated correctly.
    2. Under the rule idem sonans, a verdict returned for “burgurly” would justify a sentence and judgment for burglary.
    3. The error in spelling was corrected. The court directed the jury to return to their room of deliberation and reconsider their verdict. On their return, after having deliberated, they corrected the verdict from “burgurly’to “burglary”. When the jury returns a defective verdict, the judge may, after proper instructions, order them back for further,action.
    4. On a motion in arrest of judgment, only intrinsic causes appearing upon the face of the record will be considered and decided. The name of the corporation in which the property is laid suffices' without the necessity of naming one or more of its officers in the indictment.
    APPEAL from the Fifteenth J udicial District, Parish of Calcasieu--Milter, J.

      Waller Guian, Attorney General, (L. H. Moss, J. W. Bryan and Lewis Guión, of Counsel) for Plaintiff, Appellee.

      Paul A. Sompayrac for Defendants, Appellants.
   The opinion of the court was delivered by

Breaux, J.

Defendants appeal from a judgment condemning them to serve two years in the penitentiary. They were charged with burglary and larceny. They were placed on trial, and, during the trial, two bills of exception were reserved to the ruling of the trial judge. A motion for a new trial was filed in their behalf, and, also, a motion in arrest of judgment. They were both passed upon adversely to the defendants.

The defendants, as a ground of defense, set forth, in substance, in one of the bills of exceptions, that the jury’s verdict was of a date subsequent to that ou which it was returned into court. When the verdict was handed to the clerk of court it bore the date of November 15th, 1900. Immediately after the verdict had been handed to the clerk of the court by the jury, the court ordered the jury to be polled and the names of three jurymen called, when the court was made aware of the fact that the date was an error; that the 15th, as before stated, was not the correct date. Under the direction of the judge, the jury retired and inserted the correct date, which was November 14th, 1900, and returned with the verdict which it had before offered to have filed.

The date of the verdict has naught to do with the crime which the jury finds a defendant has committed. The court had the power, ex proprio motu, to have the proper correction of this dale made by the jury in order to have it conform with the date of the minutes and thereby obviate all question of inconsistency between the date stated by the jury and the date of the minutes. The jury having misdated their verdict, there was no possible legal objection to the court’s directing them to insert the proper date in lieu of the before mentioned incorrect date. In this change of date, there was nothing in the most remote degree prejudicial to the defendants.

Defendants’ next objection is that the jury offered to return the following verdict: “We, the jury, find the accused guilty of burgurlyIt appears, as relates to the facts upon which this objection is founded, that, after the jury had returned into court with the date corrected in accordance with the direction, as before stated, the court’s attention was called to the fact that the jury had rendered their vedict with the word “burglary” written “burgurly”, as just slated. Under the court’s direction, the clerk wrote down the verdict of the jury as returned, that is with the word “burgurly”, in order to have a correct record of the jury’s action. The court then said to the jury that the defendants were being prosecuted for burglary; that they must return to their room of deliberation, find a verdict and return it to the court.

In our view, there is very good refason for sustaining the verdict as at first hands to the court. It falls within the rule idem, sonans. In a criminal case, it is not necessary to return a verdict in writing and signed; it may be delivered orally. If the jury had returned their verdict orally and the foreman had pronounced the word in question a? it, was written, the clerk, properly, would have written it down as it was subsequently written by the jury, that is, “burglary”. The prouuneiation of the two words is very much the same. We think the variance in spelling from what it should have been, clearly falls within she rule idem sonans and that the verdict, as at first handed in by ihe jury, was absolutely legal.

In State vs. Smith, 33 Ann. 1114, this court said that a verdict written “mansluder” for “manslaughter” was none the less valid under the rule idem sonans. The error in spelling and in sound, in the case before us for decision, is not greater than it was in the cited case. As relates to sound when pronounced, it, at once, gives rise to a decided inference that manslaughter was the word intended to be used 'in the first ease and that burglary was intended in the other. But the error in the word as first written was not permitted to remain on the record as the verdict. We have seen that the jury, under the court’s direction, were sent to their room for deliberation, and, upon their return into court, they rendered the verdict as they had intended in the first place. It is well settled that when a jury returns a defective verdict, the judge may refuse to receive it, and may, after having given them proper instructions, order them back for further action. This was done. The verdict was made doubly legal, if that were possible. It must be borne in mind that the verdict first returned was not accepted by the court. The order was issued to make proper entry of the fact that the jury had offered a verdict that was defective in verbiage, and that after proper entry in the minutes, the court directed them to return and find a verdict.

This disposes of the points which arose during the time occupied in the examination of witnesses and before the jury.

In due time after the verdict, the defendants alleged that the verdict is contrary to the law and the evidence; that the verdict first returned by the jury and read and inscribed upon the minutes of the court being the only verdict legally returned by the jury, was not responsive to either of the charges contained in the indictment and named something unknown to the law of the land as a crime, and, because the second verdict rendered by the jury was rendered after they had performed their functions and by their former verdict rendered fundus officio, and, lastly, because after the jury had rendered a verdict and received instructions to retire and render another verdict, they were instructed that they had been charged upon a trial for burglary and larceny and were not then informed that they could find a verdict of not guilty.

The first ground presents no question for review on appeal. It has •been repeatedly decided that the broad allegations, “contrary to the law and the evidence” brings up no question on appeal. State of Louisiana vs. Joseph McFarlain, 42 Ann. 803; State of Louisiana vs. William Green, 43 Ann. 402; State of Louisiana vs. Bildstein, 44 Ann. 778.

As relates to the second ground, we can only say in answer that under the rule idem sonans, the first verdict was responsive to the charge and legal.

With reference to the objection that the second verdict was rendered by the jury after they had performed their functions and had become fundus officio, the court had the authority to direct the jury to retire and correct the defectiveness of the verdict by correcting a mistake in spelling. No suggestion' was made as to the verdict they should return. There was no impropriety in calling attention to the fact that the defendants were being prosecuted for burglary in order that the jury might discover their mistake in writing the word “burgurly”. Errors in verdict may be corrected by following the mode required. State of Louisiana vs. Disch, 34 Ann. 1134; State of Louisiana vs. Harris, 39 Ann. 1105; State of Louisiana vs. Keasley, 50 Ann. 761.

Regarding the objection that the jury were not instructed, when they retired to correct their verdict, that they could find a verdict of not guilty, the record does not disclose that they were not properly instrucied in the general charge. There was no necessity to go over the same ground and say to them again that they could find a verdict of not guilty. No exception was taken to the general charge. There is no necessity of its appearing affirmatively that this instruction was given. The onus was with the defendant to take a bill of exceptions and show wherein, as relates to the judge’s charge, the law had not been complied with.

This brings us to the motion in arrest of judgment. It contains all the objections heretofore considered and decided, save one, grounded on the averment that the officers of the corporation in whom the goods are laid are not named in the indictment, and that the domicile of the corporation is not alleged in the charge.

As relates.to burglary and.theft, the law which governs and protects individuals is the same which protects corporations. Their right to property is the same as that of individuals and exists independently of the individuals of whom they are composed. The name of the corporation suffices in the indictment without the necessity of setting forth the names of its officers or the domicile of the corporation. Besides, all those objections may have been cured by the evidence and it is, in eon-sequence, too late to urge them in motion in arrest.' They do not appear on tñie face of the papers and they do not raise those exclusive questions of law which are brought for review on that motion. Counsel for the defendants argued two of the points raised, stating at the time that he left all the others to the decision of the court. We have considered them all. They present no question which would justify us in disturbing the verdict.

For reasons assigned, the verdict, sentence, and judgment are affirmed.