text:
    No. 13,463.
    Moritz Gretzner vs. New Orleans and Carrollton Railroad Company.
    Syllabus.
    In this action, brought by plaintiff to recover damages for injuries received from a fall while disembarking, it appears that -the car was brought to a stop when plaintiff stepped to the rear platform and from it sought to step down to the pavement by stepping with his two feet on the step and then attempting to descend to the pavement with his right foot, while the left was still resting on the step. It was then he fell. He ascribes the cause of, his fall to a shock or sudden and unexpected movement forward of the car. The preponderance of the evidence proves that the car did not move at all at the time. There Is want of sufficient evidence to establish the truth of the averment of the complainant.
    The car and its appurtenances were in good order and nothing shows that the employes by whom it was manned were unskillful or negligent.
    There was nothing extraordinary in the stop as made to discharge the plaintiff as a passenger, and no act was shown for which defendant can be held liable in damages.
    APPEAL from the.Civil District Court, Parish of Orleans — Ellis, J.

      William 8. Parherson and Bernard Bruenn for Plaintiff, Appellee.

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

Breaux, J.

The appeal presents for review the finding of a jury and the judgment thereon, on testimony relating to plaintiff’s fall to the ground and consequent injury, for which he was allowed as damages the sum of four thousand dollars with interest.

The pleadings set forth that the ear of the defendant company in which plaintiff was riding as a passenger stopped on the lower side of the intersection of Julia street with Baronne street; that after it had stopped, plaintiff stepped to the back platform and to the step of the car and that as he was about to step down to the street pavement with his right foot, the car was put in motion and started ahead; that he was thereby violently thrown to the pavement and received severe and permanent injuries, the neck of the left femur being fractured and his left shoulder joint, chest and left arm being severely contused.

The defendant controverts the facts, to the extent, at least, that it is sought to prove its liability, and it also avers that the injury complained of was owing to plaintiff’s negligence.

The questions involved are chiefly of fact and require for their decision a close analysis of the testimony of each witness.

Plaintiff, as a witness in his own behalf, informs us, in the course of his testimony, that he was in his sixty-ninth year at the date he testified, last January, and that his weight was about 165 pounds. Regarding the accident, he testified that when the car stopped, he having stepped to the rear platform, as before stated, moved from the platform to the step and from the step he attempted to descend by putting his right foot forward, at the same time holding on to the grab-handle of the car with his left hand. The ear, at that time, jostled him and caused him to fall. He was rendered unconscious by the fall. The conductor came to his assistance and lifted him from the pavement and helped to carry .him to his home, which Was near the place of the accident. This witness stated that he did not get out of the car until it came to a full stop. We quote from the testimony of plaintiff:

“Q. — Are you positive the car stopped to let you get out?
“A. — I got up when the car stopped, from my seat.
“Q. — Are you equally positive that the car went forward and threw you off?
“A. — Yes, sir.”

The young daughter of plaintiff who came out to meet him did not see her father fall, but saw him immediately after, supported by some one who was conducting him toward his home. In answer to her inquiry as'to the accident, when she came to where her father was, she said that the conductor said that he had been too hasty in ringing the bell to start. This is denied by the conductor, who .testified that, on the contrary, he pointed to the car as still standing at the place where the accident happened.

The third witness for the plaintiff, a well esteemed and prominent physician, gave an account of the condition of plaintiff after the fall. He was still under the treatment of this physician at the date of the trial in the district court, which was a considerable time after the accident. It appears that though the hip-bone, which was fractured, has healed, none the less considerable pain is felt from it. He also feels pain in the left shoulder, which was contused, and suffers with paralysis on the left side of his body, owing, it is thought, to some injury of the brain caused by the blow received in the accident. The witness gives it as his opinion that it is not possible for one slipping on a smooth pavement and falling to hurt himself to the extent that plaintiff was injured; that he judges from the character of the wounds that the dashboard of the car platform struck plaintiff on the back, throwing' him against the body of the car and that, after this last blow, threw him to the ground on his left side, breaking his hip and causing other injuries.

We take it that no one seriously attempts to controvert the fact that the car had come tó a full stop when the plainiff left his seat and walked to the rear platform to step therefrom to the pavement of the street.

Among the witnesses present only one, the plaintiff, testifies that the car moved as he was stepping out to the pavement. All the other witnesses, who testify upon the subject say that the car had come to an absolute standstill at that moment and that no attempt was made to move it on at that time. No attempt had been made to start forward when the accident happened. This is the testimony of the motorman, which, of itself, under the circumstances, would not be entitled to weight, were it not that he is corroborated by other witnesses who are entirely disinterested.

Klein, the first witness for the defendant, did not feel the least “jerk” of the car, nor did he feel that any attempt was made to move the car immediately after it had stopped to allow plaintiff to descend.

Korel, another witness for the defendant, the book-keeper of a firm named by him, stated that the car made “a clean, smooth stop,” and that no effort was made to go on before the plaintiff got out; that there was no movement of the car; that it was only after the accident that the ear moved on; that it was the unanimous opinion of all then^on board of the ear that it had not moved or jerked prior to plaintiff’s fall.

We quote from the testimony of this witness:

“Q. — There has something been said about a bell having been given to signal to the motorman to go on after the car had come to a full stop; what do you say about that; on the lower crossing, after it came to a full stop?
“A. — No; positively no.
“Q. — The car didn’t go after it came to this clean stop?
“A. — No; most positively.”

The weight of the testimony shows, as we think, that there was no “jerking” or starting of the car on the night and at the time in question. The res ipsa loguiius is not of a character to render it reasonably certain that the force which brought on the fall came from some movement of the car, especially in the presence of the pronounced preponderance of evidence that the car did not move at the time. It does not absolutely follow as a fact that the asserted jerking of the ear was the cause, when it may well be that other causes contributed to the accident.

The weight of this passenger, the plaintiff, was on the step of the car, as he was stepping out to the pavement. It had rained that day and the presumption is that the asphalt pavement at that place was slippery. A slip of the foot as it touched the pavement may have caused the fall against the ear and afterwards to the pavement. In any event, the weight of the evidence does not trace the cause directly to the ear. It is not for us to find as a fact that which witnesses, whose want of veracity we have no reason to suspect, testify is not as plaintiff alleges.

The car was in good order, there being nothing about it out of place or repair. The conductor was on the platform) and it was at a full stop. Under these circumstances, a passenger who meets with an accident cannot, as we think, recover damages.

The movement of the car was in the usual manner. We have not found, after carefully considering the testimony, that there was any sudden movement such as alleged. There is a want of proof establishing the complaint urged. It does not appear that there was unskillfulness or negligence on the part of the motorman or conductor.

We do not think that we should give to the utterances of an employee the meaning which the daughter, naturally much concerned, and, doubtless, in a state of excitement at the time, understood or inferred. The conductor denies the statement she accredits him with, and he, the conductor, asserted, as a witness, that he, on the contrary, when he was charged with having too hastily given the signal to start, said to the young lady that, not only 'had the ear not moved, but it was still standing at the place where the accident occurred.

We quote, as illustrative, a case such as the one before us, from Black vs. Third St. Co., N. Y. Supreme Court, 1896, 37 N. Y. 831: “It was sought to establish that by reason of plaintiff’s fall there must have been something unusual or excessive in applying the motive power, and, hence, negligence. There is nothing whatever to show what was the fault of any one of the defendant’s employes in operating the car.”

There being no proof establishing negligence, as we read the testimony, and as we view its preponderance, we are constrained to arrive at a different conclusion from that arrived at by nine of the jurors. Three of.the jurors did not agree to the verdict.

One sometimes falls, break bones, and contuses parts of his body by slipping or stumbling under his own weight. It is evident, that in any case, plaintiff began to fall from the step of the ear. It was possible to fall from that distance and receive very serious injuries, and that without having been thrown down by any shock or movement of the car. It sometimes happens that one falls owing to his inattention or lack of prudence, and yet he will sincerely persist in charging it to something other than the real cause. Be this as it may, the testimony utterly fails to trace the cause, with any degree of certainty, to the sudden and unexpected movement of the ,car, and, in consequence, it behooves us to set aside the judgment appealed from and reject plaintiff’s demand.

It is ordered, adjudged, and decreed that the judgment appealed from is annulled, reversed, and avoided, and plaintiff’s demand is rejected at his costs in both courts.

Rehearing refused.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,557.
    Eugene Aucoin vs. City of New Orleans.
    Syllabus.
    Where the duty to keep the sidewalks of streets in safe condition rests upon a municipal corporation, and this obligation is not met, is long neglected, and injuries resulting directly from the unsafe condition of the walk occur to a pedestrian, himself exercising ordinary care and caution, the corporation is answerable in damages .
    ^ PPEAL from the Oivil District Court, Parish of Orleans — Ellis, J.

      William J. Hennessey for Paintiff, Appellee.

      Samuel L. Gilmore, City Attorney, and Frank B. Thomas, Assistant City Attorney, for Defendant, Appellant.

      Charles H, Brownlee for Warrantor, Appellee.
   The opinion of the court was delivered by

Blanchard, J.

This action seeks td recover against defendant the sum of ten thousand dollars for personal injuries sustained by plaintiff in consequence of a defective sidewalk on one of the streets of the city.

The accident occurred on a night in December 1898. It was dark, cold and wet. Plaintiff was on his way home from a neighboring store.

The sidewalk he was traversing was formed of planks. The evidence shows this walk was in a very bad condition. The planks were decayed, loose and out of place. Other persons had fallen there, in consequence, both before and after the accident which overtook the plaintiff.

It appears that this bad condition of the sidewalk had existed for a long time prior to the accident. A year previous the City Council had passed an ordinance looking to the paving of the same and due publication thereof, as the charter directs, had been made; but there the matter seems to have stopped. The paving was not laid; neither was the'walk repaired.

The plaintiff was tripped up by one of the loose planks and fell into the gutter along side. He sustained severe injuries. His ankle was broken — a compound, complicated fracture. The bone protruded through his shoe. He was in a helpless condition; unable to proceed; remained there until a passer-by discovered his plight, and, summoning assistance, carried him to his home.

A physician was called in, who treated him for several weeks, when, under his advice, the patient was transferred to the Charity Hospital, where two operations were performed,: and where he remained for months under treatment. He suffered much and his injuries are shown to be of a permanent character.

It is not made clear whether or not a street light was burning at the comer near by. But if one was so burning, it was dim and flickering and gave insufficient light to guide this pedestrian on his way.

We find nothing in the record going to show that the plaintiff was not using ordinary care and circumspection.

The answer of the city does not even charge him with negligence. It is merely a general denial of the averments of the petition, and the allegation that if the complainant was injured it was by reason of the neglect and refusal of John Michell, the owner of the property in front of which the accident occurred, to keep in good order and repair the banquette abutting on his premises, as was his duty to do.

This John Michell is cited in warranty, with the prayer for such judgment in favor of the city over against him as may be rendered (if any) against the city in favor of the plaintiff.

The warrantor pleaded the general issue and denied responsibility.

There was judgment below in favor of the plaintiff for two thousand dollars, with interest from judicial demand, and dismissing the call in warranty at the city’s costs.

The latter appeals.

In this court the appellee moves for an increase of the amount of the judgment in his favor.

Ruling — The conclusion reached is that on both the facts' and the law of the ease the plaintiff is entitled to recover.

The city of New Orleans is given by its charter full power and control of the streets and sidewalks. Under Section 32 of the charter (Act 45 of 1896) the street commissioner has general charge of all matters relating to the streets, sidewalks and pavements ,and of the construction and repair of the same; and by Section 15, the power is vested in the Council to compel the owners of property to keep and maintain in good order and repair the sidewalks in front of their property.

For the omission of its duty to keep this sidewalk in good and safe condition, or to compel the abutting owner to do so, the municipality rendered itself liable for resulting injuries under the circumstances as in this case shown.

Turner vs. City of Newburg, 109 N. Y. 301,307;

O’Neil vs. City of New Orleans, 30 La. Ann. 220;

Cline vs. Ry. Co. and City of New Orleans, 41 La. Ann. 1031;

Blume vs. New Orleans, 104 La. 345; 29 So. Rep. 106.

The argument of defendant’s counsel that plaintiff might have avoided the accident by taking another route to his home, and that if he had done so he probably would have escaped injury, etc., is, as to the ease we are dealing with, well answered in O’Neil vs. City, cited supra.

The street was open for public travel and it does not appear that plaintiff knew of its dangerous condition. Without such knowledge or notice he had a right to assume it offered a safe passage. He was not in the habit of passing along that way. He used that walk only at infrequent periods. A person using a public highway is not bound to anticipate danger, without some notice of a condition of things suggesting a peril of travel. 109 N. Y. 307.

With regard to the quantum of damages we will not disturb the amount as fixed by the district judge.

With regard to the call in warranty, if there be legal liability to the city on the part of defendant cited in warranty, there is not a sufficiency of evidence in the record, on this branch of the case, to warrant passing upon the issue thus raised. But the city’s' rights as against John Mitchell, whatever they may be, are reversed.

Blume vs. City, supra.

For the reasons given, the judgment appealed from is affirmed.


author: Monroe, J.

text:
    No. 13,925.
    State ex rel. William D. Alverson vs. Hon. Walter B. Sommerville, Judge. (At Chambers).
    Syllabus.
    1. Where a litigant is charged with contempt, for disregard or violation of an order of court, to justify his conviction and sentence, it should be shown that the order was served upon him personally, or that he had actual knowledge of it.
    2. Until a court has acquired jurisdiction of the subject-matter and parties Utigant by the filing of a suit for separation from bed and board, or for divorce, the husband cannot be in contempt of an order made upon a petition, thereafter filed, awarding the custody of a minor child to the wife. Nor does the information, imparted to him by the legal adviser of his wife, that such a suit would be brought impose any obligation upon him with respect either to the custody of the child or to his own personal movements. He should not, therefore, be punished for contempt for taking possession of his child before the filing of-the suit, nor upon the charge that he concealed himself to avoid an order upon that subject, unless it be shown that he knew that such an order had been made.
    3. Where, however, the husband, in such a case, is brought into court on a rule to show cause why he should not surrender the custody of the child or be punished for contempt, and it appears that the order awarding such custody is then served on him, the matter is entirely within the jurisdiction of the district court, and if the defendant makes no complaint in his pleadings that he has been denied a fair hearing, and the proceedings appear to be regular, this court will not interfere, by prohibition or certiorari, with the findings of the district court.
    APPLICATION for Writs of Certiorari and Prohibition.

      Bernard B. Howard and Arthur B. Leopold for Relator.

      Frank B. Thomas for Respondent.
   Statement op the Case..

The opinion of the court was delivered by

Monroe, J.

The relator having been adjudged guilty of contempt of the District Court, and committed to prison for ten days, applies for relief by means of writs of certiorari and prohibition. An order was made directing the defendant to show cause why the writ of prohibition should not issue, as prayed for, and to forward a copy of the proceedings in which the judgment complained of had been rendered; and the order so made has been complied with.

The petition, return, record and proceedings present the followiug ease for our consideration.

Upon' March 18th, relator, having called at the office of his wife’s legal adviser, was informed that an action for divorce would be brought-against him on behalf of his wife. On March 20th, following, he called at the residence of his wife’s sister, where his wife was staying, and, in her absence, carried away their minor child, a little boy about two and a half years old. Later, upon the same day, a petition for divorce was filed on behalf of the wife, and the respondent judge made an order thereon authorizing the petitioner to prosecute the suit, assigning her a domicile, and awarding her the custody of said minor child.

TwoMays thereafter, upon March 22nd, a supplemental petition was filed which reads, in part, as follows, to-wit:

“Petitioner further shows that her said; husband, W. D. Alverson, was fully aware of her intention to bring this suit, and that, at a time when she had left her residence, he forcibly took and carried off the child, W. D. Alverson, Jr., knowing that this suit would be brought within a few hours, and that petitioner would be given the custody of her said child. That her said husband, for the purpose of avoiding citation and copy of petition and other process which may issue herein, has been hiding and has concealed himself and the said child, W. D. Alverson, Jr., so as to prevent the petitioner from having the custody of said child. Tjhat petitioner verily believes, and so charges,' that her said husband, W. D. Alverson, will refuse to give her the said child, notwithstanding this Honorable Court has ordered that petitioner should be given the custody of said child.
“Petitioner further represents that the said W. D. Alverson’s conduct, in hiding and keeping from petitioner the said child, is in contempt of the order of this Honorable Court. Petitioner alleges that she has been informed, and she so charges, that her said husband has removed the said child from the jurisdiction of .this Honorable Court, and will, himself, leave the jurisdiction of the court to prevent the service of the process against him, regarding the custody of said child, and thus avoid the orders of this court. That it is necessary that the said W. D. Alverson should be attached and held by the sheriff of this court. Wherefore petitioner prays that the said W. D. Alverson be served with a copy of this supplemental and amended petition, and that he be ordered to show cause, on Friday, March 22nd, 1901, at 11 A. M., if any he has, why he should not deliver into the custody of the petitioner the said child, W. D. Alverson, Jr., or be punished for contempt of this Honorable Court; and, to insure his attendance before this court, that the sheriff of this court do attach his body and produce him before this court at the time above named.”

This petition is verified by the affidavit of the counsel for the petitioner, who swears to the best of his knowledge and belief; and the following order is endorsed thereon, to-wit:

“Let this supplemental petition be filed, and a copy thereof be served upon W. D. Alverson, who is ordered to show cause on Tuesday, March 22, 1901, at 11 o’clock A. M., why he should not deliver to petitioner the child, W. D. Alverson, Jr., or be punished for contempt of court, and let the sheriff of this court attach the body of said W. D. Alverson and produce him in this court at the hour above named. New Orleans, March 22, 1901.
(Signed) W. B. Sommerville,
“Judge.”

This supplemental petition and order were served on the relator and he was “attached,” and brought into court, practically, instanter. He, thereupon, excepted, that the rule for contempt disclosed no cause of action, and the exception having been overruled, he answered, denying that he was in contempt, or ihat he had been hiding to avoid service, and averring that he was absent from the State when the suit was filed, and had returned of his own volition. Thereupon certain testimony was taken showing the facts which have been stated, and showing that relator had removed the child from the State before any process had been served upon him. And the counsel upon both sides then announced that the rule was submitted. Thereafter, however, the counsel for the plaintiff stated: “I want to ask Mr. Alverson whether or not he declines to return the child to the custody of the plaintiff ?”, to which it was objected, that the rule had been submitted, but the objection was overruled, and the court, then, interrogated the witness, as follows, to-wit:

“Q. — Mr. Alverson, where is that child now?
“A. I don’t know.
“Q. Who'does know?
“A. I don’t know.
“Q. Do you intend to comply with the order of the court, and give thé child to the custody of the mother ?
“A. I don’t know.
“Q. You don’t know?
“A. No.
(By the Court).
“I will give you ten days in the parish prison to reflect.”

And the relator was, thereupon, committed to the parish prison by virtue of an order couched in the following language, to-wit:

“To the Civil Sheriff of the Parish of Orleans—
“Whereas, after due hearing, William David Alverson has been adjudged guilty of contempt of the orders of this court for refusing to obey same and has therefor been condemned to be incarcerated in the parish prison for the period of ten days.
“You are commanded in the name of the State of Louisiana and of the Civil District Court for the Parish of Orleans to take in your custody the body of the said William David Alverson and to deliver him to the criminal sheriff of the Parish of Orleans to be incarcerated in said parish prison for the period of ten days.”

The complaint which the relator makes of these proceedings is, substantially, as follows, to-wit:

That the rule for contempt was served upon him before the order which he was charged with disregarding was served, and that it is alleged that the acts complained of were committed before the filing of the suit.

That he was not in contempt for having removed his child, as there were no proceedings at that time, and no process had been served upon him.

That the court a qua exceeded its powers when it compelled him to take the stand and testify against himself, and that the course pursued was in violation of his constitutional and legal rights.

That the judgment and commitment are null for the reason that the same do not conform to the law. “That the commitment is nothing but a judgment on the'rule, and the certified copy thereof is all that the criminal sheriff has for. his authority in the retention of relator. That the civil sheriff of the Parish of Orleans is ordered to take relator into custody and to deliver him into the charge of the criminal sheriff of the Parish of- Orleans, and there is no law or warrant for any judge to commit him into the custody of one officer to be by him turned over to the custody of another official.”

To this, the respondent for answer and return, says, in substance:

That relator was served with a copy of the original petition for divorce, with the order thereon awarding the custody of the child to his wife, on March 22nd, 1901, whilst he was in the custody of the sheriff, and before the contempt proceeding was taken up; that he, in open court, refused to deliver said child to its mother! in accordance with said order, and was regularly and properly adjudged to be in contempt of the court over which respondent presides.

Respondent then recites the pleadings and facts of the case as they have been stated, and avers that no other objection to the contempt proceedings was made by the relator save as contained in the exception and answer filed by him.

Respondent further avers, that it was shown that the relator was informed that a suit for divorce would shortly be filed against him by his wife, and that he knew that the law would give her the custody of the child, but that, nevertheless, he forcibly removed said child, about anf.hour before the filing of said suit, and before the making of the order awarding such custody and that “it is presumed that he knew said order had been granted and, in so carrying away said child and retaining the custody thereof, after such custody had been given to the mother, he was in contempt of court.”

Respondent further avers that relator was not ordered to testify, but took the stand at the request of the plaintiff’s counsel, to whose interrogatories he offered no objection or protest, and that he was not compelled to answer any question, the answering of which would have made him liable for a criminal prosecution.

That the judges of the Supreme and District Courts have power to punish all contempt of their authority, by fine, not exceeding fifty dollars, and imprisonment, not exceeding ten days, and may order the arrest and imprisonment of parties, and that relator, being legally before the court over which respondent presides, and in contempt of its orders, was properly subject to punishment which was imposed in strict accordance with law.

Opinion.

It will be seen that the supplemental petition alleges that the relator knew that the petitioner was about to file a suit against him for divorce; that he also knew that she would be given the custody of the child; and that, in order to defeat that result, he concealed himself to avoid service of process, and( forcibly carried the child away; and, as petitioner believes, will refuse to surrender it, notwithstanding the order of court awarding its custody to her. And this conduct, she alleges, constitutes a contempt of court.

If the sentence complained of had no other basis than the conduct with which the relator is thus charged it could not be sustained. Ordinarily, knowledge of the order of court alleged to have been violated must be shown by proof of a personal service of such order upon the party charged. (Enc. of Pl. and Pr., Vol. 4, pp. 777, 792). Though, no doubt, actual knowledge of such order may render such service unnecessary. (Ib. 777). We know of no case, however, in which a party has been found guilty of contempt for disregarding an order not issued, nor yet, for disregarding an order of which it is not shown that he had knowledge.

In the matter of the obligation of a particular individual to obey a particular order of a particular court, such court is not seized of jurisdiction either ratione personae or ratione materiae until a suit of some sort is instituted by virtue of which it acquires the right to make the order. Unless, therefore, and until, the relator’s wife had actually instituted her suit against him for divorce, the order made by the respondent with respect to the custody of the child would have been mere brutem fulmén. From which it follows, that, up to the moment of the filing of such suit, and of action by the court, in the exercise of jurisdiction, which, it, thus for the first time, acquired, the relator was at liberty to assume that no such order existed, and to govern himself accordingly. And, having done that which he had the legal right to do, he was not put in the wrong by the subsequent making of the order, to which no ex post facto application or effect can be given. •

It follows, likewise, that, as the information imparted by his wife’s legal adviser imposed no obligation upon the relator with respect to the. control of the child, so it imposed none with respect to his own personal movements, and hence, that, upon the face of the papers, he was not in contempt of the authority of the District Court with respect to either matter, up to the moment of his arrest and of the service upon him of the supplemental petition, charging him with such contempt.

But the supplemental petition contains something more than a charge of contempt, previously committed. It recites the fact that an order had been made awarding the petitioner the custody of the child, and alleges that the relator had concealed himself to avoid being served therewith and to prevent said order from being carried into effect. Moreover, a copy of the original petition, with the order thereon, was served on the relator, and he was required to show cause “why he should not deliver into the custody of the petitioner the said child, W. D. Alverson, Jr., or be punished for contempt,” etc.

It is true that the notice was somewhat short, and it may be said that the relator was placed at some disadvantage by reason of his arrest, but .he makes uo complaint of that in his pleadings, which are directed entirely to the charge of contempt, previously committed, and which, as to that charge, are well grounded. To the demand made upon him to deliver the child into the custody of the person to whom the court had awarded that custody, he made no answer in his pleadings, but, otherwise, he gave the court to understand that he would not comply. Here, then, is a case in which a suit had been filed; in which the defendant had been served; in which the jurisdiction of the court over the persons and the subject matter is unquestionable; and in which a competent order was made, and the defendant was ruled to show cause whether he would obey it or not, and his only pleadings are, an exception of no' cause of action, and an answer denying that he had previously committed a contempt of court.

We find in the record an affidavit by the counsel for relator in which he states that the return of the judge a quo is incomplete in this “that upon the sentence of the defendant in the lower court to ten days imprisonment for contempt, counsel for defendant requested the court, then and there, to know if the court was imposing the imprisonment for the refusal to answer satisfactorily the question of the court, “Do you intend to comply with the (order of) court and give the child to the custody of the mother,” and the court thereupon replied “The rule is made absolute,” but that the court declines to make this interchange of remarks a part of the return.”

We do not perceive in what way the case would be altered if the request of the counsel had! been complied with. It is fair to assume that the judge attached some importance to the answer of the relator or he, probably, would not have asked the question to which it purported to be a reply.

The punishment inflicted in this case is remedial, rather than punitive, in character, and is intended, by securing obedience to an order of the court, to secure a civil right to one of the litigants in a pending civil suit. If the relator questions the correctness of the order, and could show that he, or his child, would sustain irreparable injury thereby, the case would be one for an appeal, but, as the court is acting clearly within its jurisdiction, the relief here sought can not be granted.

State ex rel. Brown vs. Judge, 35 Ann. 1194; State ex rel. O’Malley vs. Judge, 35 Ann. 1195; State ex rel. Barthet vs. Judge, 40 Ann. 434; State ex rel. Kiernan & Walters vs. Judge, 41 Ann. 315; State ex rel. Wells vs. Judge, 42 Ann. 1079; State ex rel. Phelps & Baker vs. Judge, 45 Ann. 1265. There is no merit in the complaint that .the relator was compelled to testify, or in the criticism upon the form of the commitment. The preliminary orders herein made are rescinded, and the relator’s application is denied at his cost.


author: Breaux, J.

text:
    No. 13,475.
    Succession of Mrs. Mary E. Royer.
    Syllabus.
    On an appeal from an interlocutory judgment dissolving and setting aside a writ of sequestration, plaintiffs and appellants charge that defendants and appellees sought and are seeding illegally to remove property away, forming the assets of a succession on which they claim rights.
    Plaintiffs made the usual allegations for-a writ of sequestration, and the main demand was sufficiently set forth to show a necessity for issuing that writ.
    APPEAL from the Civil District Court, Parish of Orleans St. Paul, J.

      Jam’es B. Rosser, Jr., for Mrs. Charlotte Miller, Wife of James D. O’Brien, Plaintiff, Appellant.

      Buck, FFalshe & Buck for Dr. George Huhner, Testamentary Executor, and Dr. C. Louis Eoyer, Heir and Legatee; Defendants, Appellees.
   The opinion of the court was delivered by

Breaux, J.

This is an appeal from an interlocutory judgment dissolving and setting aside a writ 'of sequestration.

The late Mary Elizabeth Eoyer died in New Orleans on the 4th 'day of August-, 1893, leaving a last will and testament in thd form of'a nuncupative will by private act, dated the 12th day of October, 1892. This will was probated at the instance of Franz T. Eoyer on the 17th day of June, 1898. The universal legatee under the will was Franz Theodore Eoyer, the husband of the testator. He was recognized as universal legatee, and went into possession of the property of the succession on the 24th day of January, 1898, and plaintiffs and appellants charge, that after he went into possession of the property of the succession of the testator, he attempted to perfect the title to a piece of community property which he had sold without right to sell it, after the •death of his wife, but before the will in question had been probated.

On the 15th day of December, 1899, Franz Theodore Royer, husband of, and universal legatee named in the will of, Mary E. Royer, died testate. Dr. Huhner is his testatmentary executor; and his brother, Dr. Louis O. Royer, his residuary legatee. In January, 1900, the heirs at law of Mary Elizabeth Margloff, predeceased wife of Theodore Eranz, instituted a suit seeking to annul the judgment probating the will and to have the will declared null and void, foil the reason that none of the essential formalities required by Articles 1581 and 1582 of the Civil Code have been complied with; that the execution of the will was attempted while she was in her last illness and under “marital duress” of her husband and in fraud of petitioners’ rights. Plaintiff in this suit further alleges that the husband did not have the will probated, but kept it in his possession for four years before it was filed for probate and probated and this without making its existence known prior to its probate; that to the day of his death, Franz T. Royer was in possession of all the property which formerly belonged to the community existing between the late husband and his predeceased wife, and that he, alone, knew of what it consisted, as no inventory was taken of the property which belonged to his predeceased wife, and he never mentioned to anyone that he had possession of community property; that he fraudulently concealed the money, funds, and securities and other valuable assets belonging to her estate.

Plaintiffs and appellants charge that although Dr. George Huhner, testamentary executor of the last will and testament of the late Eranz T. Royer, knew of their rights as co-heirs of the late Mrs. Royer, he, none the less, delivered to Dr. O. Louis Royer, brother and heir of Franz T. Royer, all the property and assets belonging to Mrs. Elizabeth' Royer, which is still in his possession.

Defendant and appellee pleaded and caused to be filed an exception that plaintiffs’ and appellants’ position disclosed no cause of action, and that the executor, Dr. Huhner, no longer had any interest; that he became fundus officio' when judgment was rendered putting Dr. Louis Royer in possession. The legatee, Dr. Louis Royer, also interposed an exception on the same ground.

Pending'these exceptions, prior to their trial, a supplemental petition was filed, substantially on the same ground, and containing averments for a writ of sequestration, which writ was issued in accordance.with plaintiffs’1 petition. Dr. C. Louis Royer filed a rule to set aside the writ of sequestration on the ground that the allegations and the affidavit upon which the order of sequestration is based, axe insufficient in form and substance to warrant the issuance of the writ, and,, in point of fact, untrue; that in any event, the particular property mentioned in the petition for, and in the writ of, sequestration, as having been sequestered, was the separate property of the late Franz T. Royer, acquired with his funds. While passing upon the rule in question, the judge of the district court sustained plaintiffs’ application to amend their petition and file a supplemental petition on the ground that the amendment was not directed to the substance of the demand, but to the form of the petition, and that, in consequence, the application to amend had not come too late, although filed after thei exception had been maintained. The-judge a quo further held, that as to the sequestration, the amendment and supplement could .not be considered, for the reason that the writ must stand or fall upon the petition as filed and sworn to for the sequestration; and, moreover, that plaintiffs had no right of ownership except in a gas deposit certificate of fifteen dollars and an old iron safe of little value. The plea of prescription was referred to the merits.

The judgment of the district court sustained the exception of no cause of action, and dissolved the writ of sequestration, and granted to plaintiffs leave to amend their petition. Plaintiffs' appealed from the judgment dismissing their supplemental petition and dissolving the writ of sequestration.

On appeal, plaintiffs and appellants filed a motion setting forth that since the rendition of the judgment herein appealed from, the case has been tried on its merits, and the last will and testament of Mrs. Mary E. Royer declared null and! void upon pláintiffs’ allegations of fraud, and for that reason they ask that further consideration of this appeal be continued to-be heard upon the trial on the main issue on the merits, whenever the appeal shall be brought up to this court. ■

The appeal is from the judgment dissolving the sequestratioii. We copy the following from the order of appeal: “A suspensive appeal be and the same is hereby granted (to plaintiffs) from the judgment dismissing plaintiffs’ supplemental petition and dissolving 'the writ of sequestration obtained on their supplemental petition.”. Wé refer paxticularly to this .order .of appeal for the reason that the rule to dissolve and the. exception to. the main action, although separately presented and filed, became a somewhat blended one during the trial in the district court.... One judgment covers both the rule and the exception, but on appeal only that part of the judgment which relates to the sequestration is before us. Under the pleadings, we are called upon to determine only whether the writ of sequestration should be sustained or dissolved. The writ must stand or fall upon the petition as filed for its issuance.

. But at this point the. question arises, have not the plaintiffs averred cause sufficient to sustain a writ of sequestration in their petition, to which we have just referred? Plaintiffs charge in their petition that •the late Franz T. Royer illegally went into possession of the property of his predeceased wife and merged it into and with his own property; that the present executor, Dr. Huhner, after having been served with a copy of their original petition and citation, in disregard of their demand, and of their right, and of the court’s order which issued on their petition, delivered to Dr. Louis Royer, brother and heir of Franz T. Royer, property with which plaintiffs became vested on the death of Mrs. Elizabeth Royer, from whom they inherited it, and property, also, of the late Franz T. Royer, to which they laid claim as his creditors, growing out of their inheritance of the estate of Elizabeth Royer. This petition is an amendment to an original petition in which plaintiffs charged that Mrs. Elizabeth Royer had made a will which was null and void, because made under duress, as before stated by us.

Defendants are charged with attempting to conceal the property, books, accounts, and papers, with the view of taking advantage of plaintiffs, and of defrauding them. In addition to the several charges of fraud, the petition contains the usual averments for a sequestration. The affidavit is in the usual form. This court decided in Adams vs. Lewis, 1 N. S. 400, possibly an extreme case, that a writ of sequestration, though it issued improvidently, will not be set aside if there are grounds sufficient for immediately reinstating it. Under the authority of that decision, the sequestration here can well be sustained on the face'of the papers, for, if it be true as charged, that an heir residing abroad is attempting to remove the property of, said succession to his domicile to the detriment of the rights of heirs residing here, that, in itself, would be cause sufficient to reinstate the sequestration in order to prevent the perpetration of a wrong.

Again, the affidavit is prima facie evidence of the facts authorizing the writ. This presumption, it is true, the defendant may rebut by evidence. There are facts alleged and sworn to that are not rebutted by evidence, and are sufficient in themselves, until rebutted, to sustain the writ.

We are informed by the opinion, that the sequestration was dissolved by the district court on the ground that the writ had issued upon plaintiffs’ claim of ownership of property. The district court found that they had no right of ownership save as to a gas deposit and an iron safe of small value, and applied the rule de minimis non curat lex. Even from the point of view laid down by our brother of the district court, we think it proper to sustain the writ instead of dissolving it. In our view, the amount, or rather the value of the property before mentioned, though not large, is large enough to restrain at least enough of the succession assets as may be needful for its satisfaction. True, the original demand was all dismissed with reservation to plaintiffs to amend. This dismissal of the whole ease necessarily carried with it the writ of sequestration; that was the unavoidable result from the premises laid down by our worthy brother of the district court. But we have taken a different view of plaintiffs’ rights, as relates to the sequestration. The right vel non to a sequestration is the only issue with which we are dealing at this time, as the case is not before us on the merits. We are of the opinion that the demand was specific enough to serve as a basis for a sequestration, and that the sequestration itself, for that reason, should not have been dissolved. Although the main demand may not have been broad enough to embrace all the rights plaintiffs claimed, it was broad enough as to some of the rights claimed by them, and to that extent, at least, the sequestration should have been sustained, at any rate until defendant proves that plaintiffs are not entitled to the rights claimed.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment of the district court dissolving the writ of sequestration issued in this case, be annulled, avoided, and reversed.

It is further ordered, adjudged, and decreed that the writ of sequestration be reinstated, and that the case be proceeded with as relates 1o the sequestration as if no judgment annulling it 'had been rendered by the district court.

Eehearing refused


text:
    No. 13,750.
    Constant, Benjamin & Co. et al. vs. The Parish of East Carroll et als.
    Syllabus.
    1. It Is now the settled juisprndence that the provision of R. S. 2745, requiring police juries, before they shall levy a tax, either ad valorem or license, for a given year, to prepare, adopt and publish a budget or estimate of expenditures for such year at least thirty days in advance of the levy, is mandatory, and failure of substantial compliance therewith strikes the ordinance levying the tax with. nullity.
    2. A parish license tax levied and exacted for the whole of the calendar year 1899 (the ordinance prescribing that no half-year license should be issued) predicated on an estimate of expenditures covering only the first half of 1899, is not a compliance with the statute and the exaction is illegal.
    APPEAL from the Ninth Judicial District, Parish of East Carroll —Kennedy, J., ad hoc.

      Charles 8. Wyly for Plaintiffs, Appellees.

      Joseph E. Bansdell and Clifton F. Davis for Defendants, Appellants.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiffs are retail liquor dealers in the Parish of East Carroll. The collector of parish taxes demanded of each the payment of- a license of $250 for carrying on business as such for the calendar year 1899.

Theyi resisted this demand as being illegal, but paid under protest to avoid the penalties denounced by the statutes against those selling liquors without license.

Thereupon they instituted the present suit for reimbursement of the amounts so paid.-

Various grounds of illegality are presented as issues arising in the case. One suffices, and without passing on the others, we hold with the District Judge that the failure of the Police Jury -to adopt a budget or estimate of parish expenditures for the year 1899 and to cause the same to be published as the statute requires (R. S. 2745) prior to the enactment of the ordinance levying the tax, is fatal to the validity of the ordinance and to the right of collecting licenses under it.

The ordinance in question was adopted by the jury on December 20, 1898. That part of it with which this case is concerned reads as follows :—

“Be it further ordained, That the parish license for the retailing of spirituous or malt liquors be and-is hereby fixed at two hundred arid fifty dollars for the year 1899.”
“Be it further ordained, That no half-year license for the retailing of spirituous or malt liquors shall he issued.”

It will be observed that this was a levying of a license tax for the calendar year 1899, and a prohibition of the issuance of any half-year license for the selling of liquors. That is to say, the tax collector, under the ordinance, could not issue a license for the first half of the year 1899.

In point of fact the license tax exacted of the plaintiffs was for the full amount and for the whole of the calendar year.

No budget for the calendar year 1899 was ever adopted. But in June 1898 a budget had been adopted for the year beginning June 30, 1898, and ending June 30, 1899, and it is disclosed by the record that from June 30th of one year to June 30th of the next is the fiscal year o'f the Parish of East Carroll. That is the custom there.

So, in June 1898 a budget was adopted for the fiscal year ending June 30th, 1899, and if this had been followed by levying this parish license tax, based on this budget, for the year beginning June 30, 1898, and ending June 30, 1899, it might well be that a sufficient compliance with the law had been had and the tax sustained.

But when in December 1898 — some six months following the adoption and publication of the budget — the jury proceeded to levy the tax for a different year, and a year with reference to which there had been no budget prepared, adopted and published, they did a vain thing.

True, the budget adopted in June 1898, for the fiscal year beginning the 30th of that month, covered the first half of the calendar year 1899, and if the ordinance of the jury levying the license tax, in dispute, had confined the exaction of the tax to the first half of 1899 its legality might well be sustained.

But they not only did not confine it to that period, but expressly forbade the tax collector from issuing a license for the half-year and insisted on exaction of the tax for the whole year, and it was paid in advance for the whole year.

So that, the way the tax ordinance was drawn and adopted the budget which covered the first half of 1899 was rendered unavailing, and as to the second half of the year there was no budget at all.

In view of the mandatory requirements of Section 2745 of the Revised Statutes, and of the decisions of this court construing and applying the same, found in Wilson vs. Tax Collector, 28 La. Ann. 261; Parish of Lincoln vs. Huey, 30 La. Ann. 1244; Police Jury of Point Coupee Parish vs. Bouanchaud, 51 La. Ann. 866; and State ex rel. Hutchinson vs. Lockett, Sheriff, 52 La. Ann. 1620, we are constrained to hold that the judge a quo has correctly determined the issue submitted to him and the judgment appealed from is therefore affirmed.

Provosty, J., takes no part — this case having been submitted prior to his taking his seat on the bench.


text:
    No. 13,547.
    City of New Orleans vs. Clement Camp.
    Syllabus.
    By a contract of rent of lands, one of the parties conveyed and ceded to the other a piece of land which the latter was to hold as owner and pay to the transferror an annual rental of a certain sum of money.
    By the terms of the deed, at the end of twenty-nine years after the date of the conveyance of this property, the party of the second part, the alienee, Camp, reserved the right to buy, i. e., an option, for a price stipulated in the deed.
    For more than ten years the successors, as owners, of the party of the second part, Camp, failed to pay the rent due and did not seek to avail themselves of the option.
    It was stipulated that in case the ground lessee failed to pay two instalments of the rental, then he was to lose all rights, and he consented to be ousted on a sworn demand of the plaintiff and an order of court thereon, and that his improvements on the land would not stand in the way of the execution of the order expelling him.

      Held:

    1st. That under the terms of the contract, placing defendant in mora is not a condition precedent to his dispossession.
    2nd. That plaintiff could not be held by the fact that she collected taxes from the defendant, to have recognized defendant as owner of the property.
    3rd. That the right of the alienor to the property is not extinguished by the failure of the alienee to pay rent for ten years. Plaintiff’s rights to renta! followed the land. If part of the claim be prescribed, the rental for three years preceding the filing of the suit is not prescribed and plaintiff, both as transferror of a ground rent, and creditor of at least part of a claim not prescribed, had a right to enter into possession of the property.

      APPEAL from the Civil District Court, Parish of Orleans— Theard, J.

      Samuel L. Gilmore, City Attorney, (Bolla A. Tichenor and Theodore Coionio of counsel) for Plaintiff, Appellee.

      Jerome Meunier, Armand Filie and Charles F. Claiborne for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued for land of which defendant has the possession, and to which he lays claim to title. It appears that, in 1810, the property was conveyed by plaintiff to Isaac Camp (and defendant claims title by mesne conveyance from the original vendee, Isaac Camp) for the sum of eight hundred dollars, net, not to be paid before twenty-nine years, and then payment to be made by the purchaser if he desired to pay. In other words, the payment of the price was left to his pleasure at the end of the time before mentioned. He was bound by a stipulation of the contract to pay forty-eight dollars quarterly as rental, i. e., six per cent, per annum on the $800, which was the purchase price.

The original contract also contained the stipulation, that in ease he failed to pay two instalments of the rental, then he would lose all the rights he had acquired on the lot sold, and consented to be expelled therefrom on an order of court obtained on the sworn demand of vendor.

It was further made one of the stipulations, that any improvements which might be made on the property would not be in the way to the ouster of the vendee.

Plaintiff rests its right on defendant’s obligation to surrender, the property in case of failure in payment of the' rent, which the record informs us has not been paid since the year 1880.

The defendant seeks to meet plaintiff’s demand 'by pleading in his answer, filed after the usual default had been entered, that no demand of payment has ever been made of him, and no rent since 1880 has been paid on the property; that default was a condition precedent to his dispossession; that plaintiff has, by collecting taxes from him, recognized him as owner; that ground rent is extinguished by the non-payment of arrearages of rent for more than ten years; and that it follows that he is owner, free from all encumbrances on the property; and in this court defendant has supplemented this ground by pleading the prescription of ten years in its support.

It was admitted that, as alleged, no ground rents had been paid on the lot since January 24th, 1880, and that defendant, prior to this suit, was not called upon by plaintiff to pay rent, and that defendant had paid taxes to the city up to the trial of the case.

The contention on the part of the defendant is, that he should have been placed in mora before the suit against him was filed. As relates to the amicable demand preceding the suit, nothing is better settled than that it is not a condition precedent, except in certain cases, to which we will refer in a moment, to instituting the suit.

An exception grounded on the want of amicable demand, only serves to save costs when it is timely filed, and is not ground for dismissing the suit. But defendant’s contention is that this rule is without application to his cause by the reason that plaintiff is bound by the rule governiug when one seeks to exercise the resolutory condition. In other words, that the articles of the Code relating to the exercise of the resolutory condition, include as falling with their terms, just such .contracts as the one under which plaintiff claims.

True, prior to the suit of the creditor who has the right to the exercise of the resolutory condition, he must offer to restore his debtor to the situation in which he was before the contract.

But, in our view, the defendant is not entitled to the exercise of that right. He is not a vendee who has claims against his vendor arising out of the dissolution of a sale, nor is he a party to a contract requiring that the debtor be placed in mora before suing.

There are no reciprocal obligations which render it necessary to put him in default.

The contract under which plaintiff sues, partakes of both the sale and the lease. It has something of each. The right plaintiff is claiming grows out of the features of the contract which are similar to the lease. The plaintiff, as it is with the lessor in an ordinary lease, asks, in view of the fact that he has not been paid the rental due, that he be recognized as owner and placed in possession.

The right to be placed in mora is not absolute, as 'we take it. If it be manifest that a debtor, by a contract, who is called upon to submit to its recission, has no claim whatever against his creditor, that placing him in mora would be a matter of the merest form, entirely useless by the reason that the debtor has nothing whatever to claim; the court would, in that case, have the authority to sustain an action, although the defendant was not put in default.

Of course, where the debtor has the least right, he should be reinstated in it, or an order should be made to that end.

In the case before us for decision, not only the defendant has no right rendering it necessary in justice to him to place him in default, but the contract appears to have been drawn so as to obviate the necessity.

When plaintiff will resume possession, defendant will have no right which he can possibly set up at this time.

Moreover, under the stipulations of the contract, the .ancestor of defendant in title consented in case he failed to pay two consecutive instalments of the rent, to lose all the rights acquired in the property to him sold by plaintiff, and to be ousted by an order of court obtained on the sworn demand of the plaintiff. The present action fully covers all the steps which the defendant stipulated should be followed in case plaintiff determined to exercise her rights under the terms and conditions of the contract.

Defendant sets forth that he has improvements upon the property,, and that, in consequence, he should not have been proceeded against without first indemnifying, or offering to indemnify, him. This is met, we think, by the contract itself, in which it is stipulated that the improvements were not to stand in the way of plaintiff re-entering into possession of the land in case defendant failed to pay the consecutive instalments of the rent.

The rule is that, after the expiration of the lease, the lessee should restore the thing leased to the lessor. No law requires a default when the purpose of the suit is to compel the lessee to do that which he should do. The failure to pay, as agreed upon, put an end to the contract. A tenant may be turned out without the formality of previously placing him in default, particularly if he has acquired no right on the property which can stand in the way of the proceedings to recover possession of the leased premises.

This court has decided that the claim is as in case of lease, and that on failure of payment, by which the transferree loses all his rights, he may be expelled on the simple order of the judge.

Clark’s Heirs vs. Christ’s Church, 4 L. 286.

And, in another case, the court decided, when the creditor’s right to go into possession became absolute by failure of the debtor to pay rent, tbe alienee becomes tenant at will.

Poultney’s Heirs vs. Barret et al., 8 La. 441.

In the first case cited, the reasons logically led to the conclusions announced. It was not foreign to the issues raised, and is entitled to. the weight due to every well considered opinion.

While it is true in the cited case, as set forth by plaintiff, that it does not appear that the defendant was put in default, yet the court held, that by failure to pay two instalments, he lost all his rights to the land. For similar reasons the defendant, in the ease here, had lost all his rights to the land in question, and, in consequence, has only the most attenuated grounds upon which to claim the right to be placed in mora.

In the Poultney-Barret case, the court held that they had the right to enter at any time, and the reasoning of the decision affords no ground to infer that placing defendant in default was one of the essential preliminaries of the suit.

Under the circumstances of the case, this suit is of itself a putting in default. Defendant has no cause of complaint against its -being ■thus considered. Gonventio facit legem.

We pass from the issue of default, to a consideration of the proposition that the city, by levying taxes on the property, recognized defendant as the owner. In at least two decisions, as relates to taxes, the court held that the assessment of the property in the name of the owner was a recognition by the State not to be ignored when the State claimed the property of the delinquent. The rule has never been extended to include property owned by the State under another than a tax title.

A different rule is upheld in repeated decisions in matter of license tax. Its payment was not held as affording an additional right in pleading against the State. The issue raised was decided without reference to the asserted admission by the State, by accepting the amount of the license. A similar view was expressed in State vs. Telephone & Telegraph Co., 52 Ann. 1416.

This brings us to the question of prescription. Personal actions are prescribed by ten years. In support of the position pressed upon our attention, that this case falls within that prescription, defendant cites Mayer vs. Duplessis, 5 M. 309, decided in 1818, Judge Martin, as the organ of the court, held that the new obligation of a purchaser of a lease (ground rent) did not have the effect of destroying the personal liability of the vendor for the rent. The court held, further, that the arrearages claimed were those of annuity or rente constituee. The date of the decision must be borne in mind; also the fact that under the Code of 1808 (the old Louisiana Digest) the law relating to rent charge was scant enough, as will be seen by referring to page 408 of that Code. The articles of that Code were not taken from the French Civil Code. Its compilers did not have a copy of the Code Hapoleon; although this Code was promulgated in 1804, no copy had yet reached Louisiana when her old Code was compiled. The compilers only had a projet of the Code. In 1825, the compilers of the Code of that year, for the first time, incorporated large portions of the French Civil Law relating to ground rent. The law was no longer limited under that Code to a mere reference to annuities and rente constituee as it was in the Code of 1808, and Judge Martin, in interpreting the articles of the Code in 1825 upon the subject, expressed views consistent with • its articles (i. e., of the Civil Code of 1825), but different from the rules laid down in the prior Code. Clark’s Heirs vs. Christ Church, 4 La. 286. In the light of the Code, except that of 1808, this court decided that the rent charge is a real obligation, it follows the property in whatever hands it may be found. Succession of Oanonge, 1st Ann. 211.

It follows that the obligation being real and not personal on which plaintiff sues, the right is subject 'to the prescription of thirty years, and not to the ten years prescription pleaded.

In that case, the plea of prescription of three years was rejected in so far as related to three years’ rent prior to demand. The same reason applied here, as found in that decision, would take the three years’ rent, due prior to the date of suit, out of the bar of prescription. We, therefore, hold that that prescription does not operate as a bar to plaintiff’s action. This leaves plaintiff with a right of action for the land.

We can find no good ground upon which to base a decree for defendant.

The judgment is, therefore, affirmed.

Eehearing refused.


author: Nioholls, C. J.

text:
    No. 13,550.
    George W. Pierce vs. D. C. Hedden.
    Syllabus.
    1. Two leases of the same property were made between the same parties, the first for the single month of February, the second for seven months. A right was granted in the second lease to the lessee to make the repairs needed to place the premises in proper condition. The lessee, to the knowledge of the lessor, made repairs during the first lease. Before the expiration of the first lease, the building was condemned by the city authorities and demolished; both leases being thereby dissolved. Held: The lessor is liable to the lessee for the expenditures made by the latter for repairs and other necessary purposes. The prematurity quoad the commencement of the second lease in the making of the repairs is no bar to the recovery for the outlays made for that purpose.
    2. Parties in an act of lease can legally broaden or restrict the rights and obligations in respect to warranty. A non-warranty clause covering apparent defects or those communicated -by the lessor to the lessee is valid; such a clause can be made to extend to hidden defects, the seriousness and consequences of which the lessee could not then have well measured, provided the lessor was ignorant of them and it was thoroughly understood that the lessee took the premises such as they were and expressly at his risk and peril! The clause could be set aside for fraud if the lessor knew of them or could have foreseen them at the moment of the contract. In case of doubt as to the scope of the clause, the doubt should be resolved against the lessor.
    3. It is not to be presumed that the lessee assumed the risk and consequences of defects so radical as to call for the condemnation of the premises as dangerous to the public safety, thereby dissolving the lease.
    APPEAL from the Civil District Court, Parish of Orleans — EUisj J.

      Boatner, Dodds & Boatner for Plaintiff, Appellee.

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

Nioholls, C. J.

Statement of the Case.

Nioholls, C. J. Plaintiff alleged that on the 6th of February, 1899, he entered into a contract of lease with D. C. Hedden, acting for himself and as agent of H. H. Hedden, of certain described premises known as. No. 700 Poydras street; the said lease to extend for a term of seven (7) months, commencing on the 1st day of March, 1899, and ending on the 30th day of September, 1899; the rental of said premises, stipulated in'said lease, being the sum of fifty ($50) dollars per month, for which petitioner executed his seven (7) promissory notes, each for the sum aforesaid; one due on the 1st of April, 1899, and the remainder monthly thereafter; that said premises were leased for the purpose of conducting a saloon business therein, and that, in order to prepare the same for occupation to commence the business at once, he leased the same premises from said Hedden for the month of February, commencing on the day the lease was signed, and paying the rent therefor; that he was immediately thereupon placed in possession of said premises, and made the repair thereon necessary to put the building in'suitable condition for the business to be conducted therein; that he set up his bar fixtures therein and commenced the business for which he had leased the property; that at the time of the execution of the lease, the building had been condemned by the authorities of the city of New Orleans as dangerous, and the said D. C. Hedden had been served with notice to demolish the same, of which fact petitioner was entirely ignorant; that Hedden leased the premises to petitioner with a full knowledge that the same had been condemned as dangerous by the authorities, and that it would be demolished;' but concealed the same from petitioner.

That the action of Hodden in concealing said facts and in leasing petitioner the property was fraudulent and in bad faith; that, shortly after petitioner took possession of said leased premises, and after he had made the repairs aforesaid, and commenced business therein, he was notified by the city engineer to remove therefrom, in order that the same might be demolished; that he immediately notified D. C. Hedden of the notice aforesaid, and called upon him to protect petitioner in the occupation of the leased premises; that Hedden failed and neglected to do so, and' petitioner was compelled to abandon and surrender the same, and said building was thereafter demolished by the city authorities; that he had been damaged in the sum of $2481.50 by the failure of D. O. Hedden to protect him in the possession and enjoyment of said leased premises; that he had expended the sum of $111.50 in making necessary repairs, fixing the roof, banquette or sidewalk, papering the premises, etc., and the profits of the business to be conducted therein would have amounted to the sum of ten ($10) dollars per day, on an average, from the commencement of the lease on the 1st of March to the termination thereof, on the 30th of September, 1899; that in addition to the above damages petitioner was at an expense of one hundred ($100) dollars in the removing of bar fixtures, setting the same up in the premises and removing the same afterwards, under the order of the city engineer, making the total damages suffered by petitioner $2481.50, upon which he was entitled to recover legal interest from judicial demand.

In view of the premises he prayed for judgment against him for the aforesaid sum, with legal interest from judicial demand.

Defendant answered, pleading first the general issue. Further answering, he admitted the execution of the lease as set out in the petition on 6th of February, 1899, and averred that said lease contained the following clauses:

“The saloon and premises are taken as they are in their present condition for his own use and service at his own expense”; and the lessors will not be responsible for damage caused by leaks in the roof, or by any vices or defects of the leased propeity.

He specially denied that the building was condemned. He alleged that plaintiff took possession of the premises and proceeded to make alterations and repairs without obtaining a necessary permit therefor from the city engineer; that he was notified by the authorities to desist, but in spite of such notification he persisted in the work, and was arrested and fined by the recorder; that, had the plaintiff occupied the said premises lawfully and complied with the city ordinances he would not have been disturbed during the term of the lease; that by reasons of his own unlawful acts and doings he not only was deprived of the use of the premises himself, but caused loss and damage to defendant in the rental of this and other properties.

The district court rendered judgment in favor of the plaintiff for the sum of three hundred and eleven dollars, with legal interest from judicial demand. Defendant appealed.

Plaintiff prayed in the Supreme Court that the judgment be amended by increasing the same to the sum of two thousand four hundred and fifty-one dollars and fifty cents.

Opinion.

The evidence shows that upon the 6th of February, 1899, a written contract of lease was entered into between D. C. and H. H. Hedden and G. W. Pierce of the saloon and appurtenances No. 700 Poydras street, for the terra of seven months, commencing on the 1st day of March, 1899, to the 30th of September, 1899.

'The lease declared “the saloon and premises are taken as they are, in their present condition, and the lessee agrees to keep them in good condition for his use and service at his own expense. The roof and floor are to be repaired or renewed at lessee’s expense * * *. .The said premises and appurtenances, including the locks, keys and other fastenings, are delivered in good order, and the lessee obligates himself to keep the same in like good order during the term of the lease; to keep the chimneys and privies clean, and to comply with all the city ordinances at his own expense. The lessee binds himself to make no alterations * * * without the written consent of the lessors * * *. The lessors will not be responsible for damage caused by leaks in the roof or by any vices or defects of the leased property.”

On the 31st of January, 1899, G. W. Fierce had written to D. O. Hedden: “I will rent from you for the month of February, 1899, the saloon No. 700 Poydras street, and allow you to enter the saloon and premises on any day with your attorney and auctioneer, to hold at said saloon a public sale of the fixtures and furnishings of said saloon, i. e., the contents of said house will be subject at any time to be offered by you at public auction by the sherifE.

“If the fixtures and furnishings are removed from the premises, then the rent for the unexpired part of the month is not to be exacted from me. The rental is fifty dollars per month. The lessee is not liable in any way or manner for damages on account of the auction sale.”

At the time this letter was written, the fixtures and contents of the saloon were under provisional seizure, the lessee at that time, one Guillotte, being in arrears for his rent. We do not find any written acceptance of said offer, but the evidence shows that it was, in fact, accepted and Pierce went into possession under it on or about the 6th of February. Plaintiff says in his pleadings that the (second) lease “was for the purpose of conducting a saloon business on the premises, and that in order to prepare the same for occupation to commence said business at once, he had leased the same premises from Hedden for the month of February, commencing on the said day the lease was signed and paying the rent therefor in . advance.”

A sale of the fixtures in the premises was made some time in February (10th of February), we should judge from the testimony, about ten days after the lessee took possession, under the first lease, and at said sale Pierce himself bought them in, but sent them away.

On February 10th, 1899, W. L. McGary, Commissioner of Public Works, wrote to D. O. Iledden that these premises (the one story building on the upper swamp corner of St. Charles and Poydras streets) had been examined by the city engineer and found to be in a dangerous and dilapidated condition, and had therefore been condemned, and that as this property belonged to him he notified him to cause this property to be demolished within three days from the notice.

On the 21st of February, 1899, he wrote to him again, saying that notwithstanding the notice given him and his promise to comply with same, he had but partially demolished the building and he notified him that should he fail to remove the balance of the unsafe building within twenty-four hours from service of his letter, he would proceed to demolish it and take necessary steps to recover costs.

We presume that the building was taken down, but the record does not show it. This action of the city authorities seems to have been brought about by Pierce’s making some repairs upon the building without having obtained prior to doing so a permit from thie city authorities. P. J. Flanagan, a building inspector of the city, some days before the 14th of February, 1899, noticed repairs being made upon the building by a carpenter named Green, who had been employed by Pierce to make them, and was told by the latter that he did not know whether they were being made under a permit or not. He reported the fact to his superior officer and was directed by him to enquire into the matter. Hedden, on being told of the conversation between Green and Flanagan, applied to the city authorities for a permit to continue the repairs, but the permit was refused and the orders to demolish the building were given as stated. Flanagan stated that at the time he spoke of, a large section of the corner of the building at both streets had been cut away. “It seemed the corner 'of the house was being cut away, and besides that all the old canvas was nearly on.”

Flanagan said that Pierce or his workmen continued to work in the night time and to stop him he (Pierce) was arrested and. fined five dollars; that the only work done, that he knew, after notice was nailing canvas on the roof and putting in bar fixtures.

Pierce testified in one place that he occupied the premises until three days after Mardi Gras (Mardi Gras was the 14th of February, 1899); that he occupied them about eighteen or twenty days, but he was not sure. In another place he testified he thought he first went upon the premises on the 1st of February; that he commenced making the repairs as soon as he went in, three or four days after he got in, and he was interrupted in making the repairs on the 14th of February; that he did not get a permit to make the repairs — he did not think it was necessary.

It will be seen from this that all the repairs which were made were made in the month of February, during the continuance of the first lease, and before the second lease hád commenced, and that the fixtures were placed in the building at night after the repairs on the building had been ordered to be stopped. The first lease (that for the month of February) was dissolved by the destruction of the building, prior to the time fixed for its expiration, and by reason! of the destruction of the building before the date for the commencement of the second lease had been reached, the latter never went into operation.

Plaintiff insists that the building was subject- to condemnation at the time it was in fact condemned as an unsafe building and ordered to be demolished in June of 1897; that Iledden had knowledge of that fact and had concealed it. He offered 'in evidence a letter of date June 22, 1897, from the city engineer to the Commissioner of Public Works, informing him that this building had been examined and found to be in a dangerous and dilapidated condition, and had therefore been condemned. That the building was beyond repair; that the owner should be ordered to demolish it at once. He placed John Chaffe, messenger for the Department of Public Works, on the stand, who testified that he had, on the 23rd of June, 1897, served a copy of this letter on Mr. Hedden, by leaving the same at the latter’s office. That there were two gentlemen in the office at the time whom he did not know, but that he had been told on enquiry that Mr. Iledden was in his office. . Iledden testified that he was not in New Orleans at that time; that his office was then closed and locked. He said that shortly after the date of this letter (about the 4th of July, 18971, he met Mr. Pilie, City Building Inspector, by chance on the street, who asked him whether he was the owner of the property, and on his saying he was, he told him he would have to repair it; that he subsequently obtained a permit and had the repairs made; that he was told the only part condemned was a shed upon' the front, and that this was repaired. He offered in evidence a copy of the permit referred to. He testified that he had no knowledge that the house was condemned and concealed nothing from Pierce, who made a personal inspection of the premises. Tn respect to the lessee’s repairing the house he testified that he was not present when Pierce made the repairs ; that he did not know much about the repairs; that so far as they were concerned, Pierce was to do the repairing; all he was to do, according to what he told him, was to repaper the place and repair the roof; that was all. That three or four days after this Pierce went to witness’ office about the flooring and asked him to recommend a carpenter ; that he (Hedden) said that Green, a neighbor of his, could do it, and he would get him to do it; that Pierce said that Green would charge him but forty-five dollars, and he asked “was that a reasonable charge ?”; that he replied, “that he thought it was”; that as he left the office he said, “Mr. Hedden, I am going to paint the place,” and witness replied, “All right,” and that was the last he heard.

He testified further that the lease he made to Pierce was identical with leases he made of his property in the same neighborhood to other parties, and that it was upon a printed form. He did not controvert the rightfulness of the order of condemnation of the building, made in February, 1899, nor did he attempt to show that the condition of the building which gave rise to that order was due to the work done upon the same by Pierce. The latter testified that his daily profits during the time he was on the premises was about twenty-two dollars; that at the lowest estimate they would have been ordinarily about ten dollars; that he had kept an account of his sales and profits during that period, but that he had moved about so much he had lost his books. His claim for profits rests upon this vague statement, which is supported by data of no kind. Referring to the expenditures he had made for repairs, he first stated in a general way “about four hundred dollars,” but when pressed for particulars, stated he had receipts for the flooring and roof —ninety-eight dollars for the flooring and eighteen dollars for the roof; that in addition to this “there was the hauling and moving around and such like.” Later on, he testified that the hauling of the fixtures to the pavement had cost him about eighteen dollars, and removing them about twelve, and the carpenter’s bill for putting them up and then taking them down was about forty dollars; that he sent away those he bought at the auction and replaced them by others.

Plaintiff’s counsel in their brief say: “He took possession under the lease and proceeded to make the repairs, for which it provided, to-wit:

‘Ninety-eight dollars for the floor and eighteen dollars for the roof.
‘Moving out of old fixtures and putting up of the new, seventy dollars.
‘Eevenue license, twenty-five dollars.
‘Paper-hanging, twenty-five dollars.
‘Electric lighting, fourteen dollars.
‘Making in all for actual expenses incurred in moving in and moving out the gum of two hundred and fifty-two dollars.’ ”

We think plaintiff’s demand for profits is not supported by the evidence; we need not discuss therefore what the law applicable to the situation would have been had the evidence justified the claim. Granting that plaintiff’s daily profits, during the short period he occupied the premises, was about twenty-two dollars a day; the profits of that particular period would have formed no basis for profits generally, for it was just at and about the time when the city was crowded with strangers visiting it for the Carnival. The proof of profits should rest upon something more than a mere general estimate.

Defendant insists in argument that the demolishing of the leased building was due to the fact that plaintiff was making repairs upon it. It is possible that the fact of the making of the repairs and of their being made without a prior permit, was the reason attention was attracted to it, which might have been otherwise overlooked, but there is nothing in the evidence going to show that the condition of the building was at all injured by the work caused to-be done upon it by the plaintiff.

The building inspector, Elanagan, says of this work: “The improvements were remodelling an old shack to a respectable coffee house,” but it would seem that, notwithstanding the making of these improvements, the building would still be in a dangerous condition and had to be torn down. Defendant claims that this work was not made under the provisions of the second lease, as it had not yet commenced, and he had no right to do it during the first lease

The two leases do not on their face refer to each other. On their face they are separate and distinct, having no relation oné to the other. We think it exceedingly probable, however, that the first lease was, to the knowledge of both parties, made in contemplation of the second and for the purpose of placing the premises in better condition for plaintiff’s business. The repairs were made, as the defendant said, “prematurely,” so far as the existence of the second lease was concerned, but defendant was informed by Pierce that they were about to be made and he not only raised no objection, but when informed that they had been commenced without a permit he unsuccessfully sought to have them continued, under a permit still to be obtained.

He made no complaint of the prematurity of the repairs at that time; we think it may be fairly presumed that if their making had been postponed until after the 1st of March, the parties would have been confronted by the same situation that they were when they had been made prior thereto.

We think the building would have “been ordered to be demolished just after the first of March, while plaintiff would have been in possession under the second lease instead of being ordered} to be demolishe4 the latter part of February. The bad condition of the building unquestionably put an end to both leases. Defendant urges upon the court the clauses in the act of lease, reciting that the premises were delivered in good order; that the lessee took the premises as they were and agreed to keep them in good condition, for his use and service, at his own expense; that he bound himself to malee no alteration in the premises and to the non-warranty clause by which it was stipulated that the lessors would “not be responsible for damage caused by leaks in the roof or by any vice or defects of the leased property.”

The evidence shows that the premises were not, in fact, in good condition on the 6th of February, even though they may have had the appearance of being in good condition. That the repairing, renewal of the flooring and the roofing by the lessee was contemplated by both parties is obvious, for the contract declares expressly that he is to make them at his own expense. The clause as to making no alteration in the premises does not, therefore, cover a repair or a renewal of the roof or flooring. The lessee had the right to place the premises in good condition for his use and service, provided the same was done at his own expense. The demand for the expenditures made on this score would not have been advanced, we assume, had the lease gone to its full execution; the obligation and right to make the repairs was in view of the consequential benefits to be received by the lessee during the whole lease. The claim is not presented now as for a benefit received therefrom by the lessor, but by way, substantially, of damages to the lessee.

We do not give to the non-warranty clause the wide scope which the defendant does.

Article 2695 of the Civil Code declares that “the lessor guarantees the lessee against all the vices and defects of the thing which may prevent its being used, even in case it should appear he knew nothing of the existence of such vices and defects at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee, and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”

The parties to a lease have the right, as have the parties to a sale, to broaden or restrict their respective rights and obligations as to warranty by a clause in their contract.

“Une telle clause n’a rien d’illicite lorsqu’elle a pour objet des vices apparents ou des vices dont le bailleur a donne connaissance au locataire. La clause de non garantie peut aussi eomprendre les vices caches, eeux dont le locatire en signant le bail n’a pu mesurer le gravité, et les consequences, mais c’est a la double condition que le bailleur en aura ignorer l’existence et qu’il aura été bien entendu que le locataire prenait le chose louée, telle quelle est a sés risques et perils. Le doute sur l’entendu de la clause de non garantie et l’intention des parties doit s’enterpreter contre le baileur. Ainsi quand les reparations faites a l’immeuble ont consistés en des reconstructions necessités par un vice caché encore bien qu’une clause particuliere du bail, 1’oblige a soufñr toutes les grosses et menúes, reparations quelles que soient leur nature et leur durée sans pretendre a aucune indemnité, ni diminution de loyer. Si au moment du contract le bailleur connasait les vices de la chose ou pouvait les preévoir la clause de non garantie serait mulle eomme entachée de dol.” (Dalloz & Vergé, under Art. 1721 C. N., Nos. 28-29 et seq.)

We do not think the parties to this contract contemplated under its non-warranty claim that the lessees should have assumed' the risk and consequences of defects in the premises so radical as to warrant and justify its being demolished, as being dangerous to the public safety, a vice so radical as to carry with it as a direct consequence the dissolution of the lease. We do not think the nesessities of this case require for holding the lessor to responsibility for damages on the ground that he knew at the time he made the lease of the existence of that defect and vice.

The lessor attributes the whole trouble in this case to the fact that the lessee, Pierce, undertook to make repairs without having first obtained a permit; that his making the repairs was a violation of the city ordinances, which he directly bound himself to observe, and,' therefore, a “fault,” and that this fault led up, as a consequence, to a condemnation of the building, as the building had been permitted to stand, without opposition, from 1897 to 1899, even if it had been in a dilapidated and dangerous condition, which was not admitted.

While the violation of the city ordinances was a “fault” on the part of the lessor, it was not a fault so directly bearing upon the contract as to cause the lessee to lose his recourse against the lessor; it may have occasioned the directing of the attention of the city authorities to the condition of the lessor’s building, but it was not the cause of the condemnation; the house was demolished by reason of its bad condition; it only indirectly affected the result. If the building was dangerous it should have been demolished.

We are of the opinion that the judgment of the District Court in favor of the plaintiff was for too large an amount, and that it should be amended.

The plaintiff is not entitled to recover anything for taking down and removing the fixtures which he purchased in the building, nor for bringing in new ones; the latter were brought in after he was aware that the building would be demolished, and besides he would have had to remove them, at his own expense, at the termination of the lease. The period for their removal was simply advanced.

Eor the reasons herein assigned, it is ordered, adjudged and decreed that the judgment appealed from be and is hereby amended by reducing the amount thereof to the sum of one hundred and eighty dollars, and as so amended it is hereby affirmed.