text:
    No. 12,810.
    State of Louisiana vs. A. B. French.
    On motion to Dismiss the Appeal.
    The State is entitled to an appeal from a ruling of the trial judge on a motion in arrest of judgment, sustaining the motion and setting aside the verdict. The order 'annulling the verdict was in character final, and if erroneous, caused injury.
    On the Merits.
    The verdict was not responsive to the charge. It was a special verdict. If the jury chooses to designate the crime found by name, it should be defined by name having a meaning in criminal law, or defined in plain words covering all the essential ingredients of the crime.
    No judgment can be pronounced on a partial verdict which fails to find the criminal intent, where intent is an essential ingredient of the crime.

      In a special or partial verdict of the jury’s selection, all the facts necessary to constitute the crime must be clearly stated. 1'f the jury determines to leave out part of the language charged in the information, they should be particular not to omit essentials to constitute the crime.
    A verdict “ Guilty of wounding less than mayhem,” is not responsive to an information charging that the accused has “ feloniously, wilfully and maliciously inflicted a wound less than mayhem,” and is not legal.
    The court adheres to the decisions in State vs. Bellard, 50 An. —; and State vs, Hearsey, 50 An. —, overruling contrary views.
    A PPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      M. J. Cunningham, Attorney General, and B. H. Marr, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellant.

      Farrar & Lemle and H. N. Cautier for Defendant, Appellee.
    Argued and submitted April 23, 1898.
    Opinion handed down May 2, 1898.
   The opinion of the court was delivered by

Breaux, J.

The State in this case appealed from an order sustaining a motion in arrest of judgment.

The defendant was prosecuted upon an information containing two counts. In one count-he was charged with having stabbed with intent to murder. Iu the other count with having wilfully and maliciously with a dangerous weapon inflicted a wound less than mayhem.

The verdict found was Guilty of wounding less than mayhem."

In due time the defendant applied for the arrest of the judgment on the ground that the verdict was not responsive to any of the offences charged or counts contained in the information, which, as before stated, the trial court sustained.

Motion to Dismiss the Appeal.

The defendant.in this count moved to dismiss the appeal for the reason that the court’s ruling, sustaining defendant’s motion in arrest of judgment was not a final judgment.

The judgment or ruling in our judgment operated prejudicially to the State, if the position'of the prosecution be correct; and, in addition as related to the verdict returned by the jury, it finally disposed of the question involved.

There remained nothing save the sentence. If an error of law has been committed by the trial judge in a matter purely of law, it would, in our view, be prejudicial to the proper administration of justice to let it remain unreversed.

The question is not res nova. It received the attention of this court in the case of State vs. Brabston, 38 An. 144.

The defendant concedes that this decision is not favorable to his motion to dismiss the appeal. That decision does not, in our view, stand alone. The question was considered in State vs. Cason, 20 An. 48, in which it was held that the right of appeal on questions of law, in criminal cases, is not so restricted as to warrant the denial of an appeal to the State from a ruling sustaining a motion in arrest of judgment.

The same question arose in the ease of State vs. Robinson, 37 An. 675. The court in the last cited case reconsidered the decisions and reaffirmed the right, citing State vs. Ellis, 12 An. 390; State vs. Ross, 14 An. 364; State vs. Taylor, 34 An. 978.

There is no question here of an acquittal by the jury. It veas a matter in which the judge alone acted. This distinction has been observed in a number of cases holding that the province of the jury is not infringed upon by the orders and judgment of the court of the first instance, not connected with the facts showing the guilt or innocence of the accused.

The defectiveness vel non of the jury’s verdict, presents questions of law, and as such they are reviewable when they come up, as in this case, on a motion in arrest of judgment, setting aside the verdict of a jury.

The judge is without authority to annul a legal verdict by arresting the judgment.

The State, in ease it be attempted, is not without remedy on appeal.

The appeal is, therefore, not dismissed.

On the Merits.

The defendant avers that the verdict Guilty of Wounding less than Mayhem” is not responsive to the offences charged in the information.

In the first place, it is evident that the verdict was not a general verdict, but one that the jury found without special reference to the offence charged in either count of the information. It was a verdict of their own selection. They had been instructed by tne court regarding the form of the verdict, as follows:

Ycu may render one of five verdicts.

1. “ You may find the prisoner at the bar ‘ Guilty as charged in the first count of the information.'

2. “ You may find him ‘ Guilty of stabbing with a dangerous weapon with intent to kill,’ as charged in the first count.

3. “ You may find him ‘ Guilty, as charged in the second count.’

4. “ You may find him ‘Not guilty,’ or

5. “ You may find him ‘ Notguilty, on the ground of insanity.’

“ If you find the defendant was insane at the time of the commission of the act, you should qualify your verdict of ‘ Not guilty ’ by the addition of the phrase ‘ on the ground of insanity.’ ”

The jury did not follow the instruction. It was within their power to find a particular verdict in language of their own, and if it had covered an offence denounced by the statute, or an offence of a lower degree, included under the terms and conditions of the offence charged, it would have been a sufficient verdict.

Taking an example of the most ordinary sort, the charge being murder, the jury may find the defendant guilty of manslaughter; or, the charge being burglary, if larceny only be proven, the accused may be found guilty of larceny; so in all cases of offence of less degree of the same class.

But the finding of the jury in such cases must be of an offence complete in itself. The offence must be completely stated. No valid judgment can be pronounced upon the partial verdict which fails to find the ingredients essential to constitute the crime.

To illustrate by another example of a familiar kind: if a jury were to return in court that an accused was guilty of taking the goods of another without any intimation as to the asportation and appropriation of the goods, it is useless to state that the finding would be void. Not so, if they were to return that he is guilty of larceny, for that word embraces all the ingredients essential to constitute the crime of stealing. Larceny, _ manslaughter, and other words denoting crimes, have a well defined meaning. They are in themselves a definition; no one can be misled, or there need not be the least confusion when these names are made use of. If the jury undertakes to define the crime, it should be by a name in which there can arise no confusion or ambiguity, or if it is not identifiable by a well-known name, then the description should include the essentials to constitute the crime.

In one case in this State the court went to the extreme of holding that only a general verdict could, under the law, be found. State vs. Jurche, 17 An. 71.

That limit properly, has not always been observed. Special and particular verdicts may be found with the understanding that the name of the crime when it has a name, or the facts when it has not, necessary to constitute the crime, are fully and explicitly stated.

The court can not supply'the facts necessary to constitute the crime. 2 Hawkins, P. C. 622; State vs. Blue, 84 N. C. 809.

“ The omission of any fact necessary to constitute the offence is fatal.” 3 Wharton on Criminal Law, Sec. 3188. Where “intent” is one of the essential ingredients of the crime, it must be found in a special verdict in order to sustain a judgment. The crime denounced in the case before us for decision we have seen includes “ intent ” as an essential ingredient.

No one unless acting wilfully and maliciously with intent is guilty of inflicting a wound less than mayhem.

In our view the verdict was defective; it failed to find the criminal intent. It is defective whether construed as a special or a partial verdict. In a very recent case this court held that it was not permissible to go beyond the words used by the jury in matters essential to the finding that a crime has been committed by the accused. State vs. Bellard, ante, p. —, this volume.

In another, also a case recently decided, State vs. Hearsey, ante, p. —, this volume, the court extended the. rules of practice much further than there is any necessity of extending it in the case here.

The rule applying is sustained by a number of well-considered decisions, notably the cases of State vs. Buzzo, 18 Wallace, 125, and State vs. Burdon, 38 An. 357.

In the former the court said, in construing a special verdict, the intention is of the essence of the crime and is not found by the special verdict; no judgment can be entered on the verdict. And in the latter case cited, the court in substance, with reference to the finding of a jury, said: “What is not found is not supposed to exist.” Citing State vs. Ritchie, 3 An. 512. There are views not in accord with those we have here expressed. The prosecuting officers have directed our attention to them, and particularly, to the case of State vs. Mason, 42 An. 715.

For the reasons before stated we can not adhere to the decision in the Mason case. We are constrained to adhere to decisions we before, cited. We think they are correct in law.

It is therefore ordered and decreed that the judgment appealed from is affirmed.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 12,540.
    Milton McGraw vs. Texas & Pacific Railroad Company.
    1. The switching of cars in the night-time on the main tracks of a railroad, with no lights displayed, or other precautions used to warn approaching trains of the obstructed track, resulting in the collision with the obstructing cars of a freight train dispatched with no notice or warning of the obstruction, will be deemed negligence in the railroad company, subjecting it to dam ages caused by the collision.
    2. Nor is the liability of the company at all lessened because the main track obstructed is within what are termed yard limits, extending eight hundred feet and over which all trains must pass, and such obstructions menacing such trains unless proper precautions are employed.
    A PPEAL from the Civil Orleans. Monroe, J. Judicial District Court for the Parish of

      Joseph N. Wolfson (J. F. Pierson and T. M. Gill of Counsel) for Plaintiff, Appellant.

      Howe, Spencer & Cocke for Defendant, Appellee.
    Argued and submitted January 27, 1898.
    Opinion handed down March 7, 1898.
    Rehearing refused April 18, 1898.
   The opinion of the court was delivered by

Miller, J.

The plaintiff appeals from the judgment dismissing his suit for damages caused by bodily injuries he claims to have sustained from the collision of the locomotive engine of which he was a fireman pulling one of defendant’s freight trains, with a train of cars placed on the tracks by defendants’ agents. The petition alleges the collision was due entirely to the gross negligence for which defendants are responsible, and the answer is the general issue, and the averment that the negligence, if any, was that of defendant or his fellow-servant for which defendants are not liable. .

The train that collided with the cars placed on the tracks, as we understand the testimony, having the right of way except of passenger trains, was dispatched at a late hour of night from the depot or yard opposite the city to Boyce, Louisiana; proceeding on its route the train consisting of thirty-four cars, encountered the cars placed on the track by the switch engine engaged in transferring cars to defendants’ yard, and it is claimed the collision occurred in the yard limits; the engineer’s testimony is that his train was running about eight or ten miles an hour; that five of the eight cars with air brakes with which his trairi was provided had been cut out, of which he had no knowledge until the train had started, and there is no substantial variance in the testimony that the cars blocking the track were perceived but a few moments before the collision, and too late for its avoidance; the quick apprehension of that which must ¿lave occurred prompted the exclamation from the engineer: “We are in for it,” and he as well as the plaintiff jumped from the engine, he thereby receiving the injuries of which he complains, and the jump, under the testimony, was none too soon. It is claimed by the defendants that the collision occurring in what are termed yard limits, the rule of the company was for trains to stop at the bridge west of these limits, and go through at reduced speed, and the neglect of the engineer, the fellow-servant of plaintiff, it is insisted, caused the accident, but it admits of no dispute that the signal was displayed for the approaching train to cross, that the speed was reduced, and that when the train came on the blocking cars there was no preceding notice or light displayed, or flagman posted to make known the obstruction, and the current of the testimony is that the plaintiff’s jump was in the presence of the imminent danger, verified by the quickly following collision. As to the injuries to plaintiff, the testimony of his physician and others is, that his leg was injured; that he was bruised, confined for a few days, received medical attention; but on a careful consideration of all the testimony on this point we are not impressed with the tendency of the testimony to show permanent injury.

Our attention is directed to the testimony that after the suit was brought and plaintiff had testified, he sought defendants to obtain money, or a position on the road, and made statements he had sustained no injury and would withdraw his suit. We have his affidavit to the contrary, and the lower court was so impressed with the testimony that it declined to permit the plaintiff to go on the stand to testify to that which occurred. We have no power to dismiss the suit because of this episode. If plaintiff has any right to. recover it depends on facts connected with the accident resting on testimony of others, and in weighing that relating to his injuries we shall be careful to give his statements no weight greater than the force suggested by the testimony coming from the physicians and others cognizant of the actual facts.

It is contended on behalf of defendants that this accident, occurring within yard limits extending a distance of eight hundred feet, is to be considered in connection with the alleged rules of the company authorizing the switching on the tracks in yard limits and in the night-time, of cars detached from the engine, without lights, signals, or notice of any kind to approaching trains and without instructions to those who must run trains, or to those who place such obstructions on the tracks, of the coming of the trains, that must eventually come in contact with the cars in the way. The rule contended for in argument is, in effect, that no other protection to the life and limbs of railroad employees of trains moving in the night-time, through yard limits, is required, to guard against obstructions on the tracks placed there by other employees, than the reduced speed at which the trains must run, or as the witnesses express it, such trains must be under control. Any other or further protection under the rule as it is presented in argument, must be found in the quickness of vision to see in the dark an obstructed track, and in stopping the train in the interval, however short, between perceiving and actual contact with the obstruction. The rule thus contended for, known, it is claimed, to plaintiff and all employees of the company, it is insisted, placed on him the risk of the accident, under the principle that the servant takes all the risks incident to his employment. Thompson on Negligence, p. 927; Bailey, Master and Servant, p. 152. The testimony fails to impress us that the rules of the defendant carried the significanee to their employees, of the assumption by them of the risk of night obstructions of the tracks even in the yard limits, with no lights displayed, or notice of any kind of such obstructions so menacing to life and limbs of train men. That the trains should move at slackened speed .through yard limits, testified to as the rule of the company, could hardly be deemed to carry the notice that train men required to pass over the tracks in the night-time, must expect to encounter impediments in the way, of a character to endanger their lives, and with no notice of warning of the danger. Nor do we find the testimony supports the rule with the significance attached to it in the argument. As we read the testimony of the defendants’ witnesses we derive the impression that it was customary, when the main tracks in the yard limits were obstructed, to flag approaching trains, as we find it put by one of the witnesses “ to send flags each way.” As to night obstructions there can not be said to have been any custom, for as we find it in effect from another of .defendants’ witnesses, no such obstruction as cars left on the main track had occurred in the four years of his employment. If customary to flag in the daytime obstructed tracks, manifestly the train men of this extra freight dispatched at night to pass through the yard limits, though at reduced.speed, might well deem themselves entitled to notice of the cars blocking their way and menacing their lives. In our view the defence fails that presents the accident that resulted in plaintiff’s injuries as one of the risks he assumed incident to his employment.

Again, when the servant is deemed to have assumed the risk of the accident causing the injury, the law supposes the master has complied with the obligations resting on him to secure the safety of the servant in performing his duties. The failure of the master in this respect will leave him without defence on the gro.und of the servant’s assumption of usual risks. 2 Thompson on Negligence, pp. 970, 985. This obligation of the master in connection with the servant’s assumption of risks has had frequent illustration, and as respects railroads, may be well applied; we think, to reasonable precautions to guard against obstructed tracks. ' In this case we find as pertinent to the discussion that no notice is sent by the proper employees not fellow-servants of the plaintiff, to those in charge of the yard, of the coming of the extra freight that encountered the obstruction within an hour from the time it was dispatched at night, to pass over the tracks; nor was any nticeo given by those not fellow-servants of plaintiff to those who dispatched the night train, of the cars placed on the track. These notices were reasonable precautions not within the plaintiff’s duties, and which, it is to be presumed, would have averted the accident. Further, we have a freight train of thirty-four cars dispatched with but three air-brake cars, insufficient, it is our conclusion, to arrest in suitable time the train, if indeed the accident could have been avoided with a greater number of cars provided with air brakes. We think in these aspects the negligence of the defendant is also exhibited.

It is claimed that it was the negligence of the engineer with whom the plaintiff was associated in the duty of running the engine that caused the discussion. We pass over the authorities cited in the brief to show that the engineer was the fellow-servant of plaintiff, and in law the negligence of one was equally that of the other. Accepting the legal conclusion, the inquiry remains what was the asserted negligence. The canal bridge, crossed on entering the yard limits, it is claimed, called for a full stop. We find, however, it was not crossed until the appropriate signal was given. It is urged the movement of the cars through the yard should have been under the rules six or eight miles an hour. The testimony of the engineer and conductor, most reliable, we think, was, the cars were moving at reduced progress, eight or ten miles an hour. The difference between the asserted rule rate, and the actual movement, if any, in our opinion, based on the testimony, is not to be deemed a factor in causing the accident inevitable, we think, irrespective of the rate at which the cars were pulled. In every point of view, we think the negligence of defendants must be deemed the cause of the contact, to avoid which plaintiff jumped from the engine, and the jump, under the circumstances, does not lessen defendants’ responsibility more serious, it might well be, if plaintiff had awaited the actual contact that quickly followed.

This record affords no warrant for other than actual damages. Under the testimony it is our conclusion the plaintiff received no permanent injuries. The pain he suffered, the loss of time during the period of his confinement, the expenses of medicines and medical attention make up the basis for damages. In our opinion five hundred (§500) dollars is adequate compensation for his injuries.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiff do have and recover from the defendant five hundred dollars with legal interest and costs.


text:
    No. 12,506.
    Hugo H. Fredericks vs. C. H. Donaldson et als.
    The suit brought against a number of creditors claiming liens ou the building of the plaintiff is not within the jurisdiction of this court, when each creditor claims less than two .thousand dollars. Constitution, Art. 81 as amended, Acts 1882, p. —.
    The appellate jurisdiction of this court based on “the fund to be distributed” can be exerted only when the fund deposited subject to the. order of the court exceeds two thousand dollars. 1,bid.

    A PPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Charles Louque for Plaintiff and Appellant; Solomon Wolff for G. Villermin, Defendant and Appellee; Dart & Eernan for O. A. Mattes Central Manufacturing and Lumber Company, Limited, and R. K. Hackney, Surety, Defendants and Appellees; Frank MeOloin for A. H. Moise, Liquidating Partner of J. Fred. Randolph, Defendant and Appellee.
    Argued and submitted February 8, 1898.
    Opinion handed down April 4, 1898.
   On Motion to Dismiss.

The opinion of the court was delivered by

Miller, J.

The plaintiff appeals from the judgment on his petition against the defendant, the contractor for the erection of buildings for the plaintiff, and against the contractor’s sureties, and against the workmen and furnishers of materials, claiming liens on the buildings for work upon and materials furnished for the buildings.

The contractor abandoned the work, and the plaintiff completed the building for less than would have been due the contractor, if he had performed his contract. When the plaintiff finished the erection, there remained unexpended six hundred and eighty-eight dollars, the difference between the contract price that would have been paid the contractor if he had not defaulted, and the amount plaintiff expended to finish the erection. There were recorded liens against the buildings for the workmen and supply men to the amount of two thousand six hundred and sixty-eight dollars. The plaintiff deposited the six hundred and eighty-eight dollars, asked that amount be distributed to the lien creditors; their liens decreed to be erased; that plaintiff be discharged from all liability, and that he have judgment against the sureties in the event of any liability on his part in excess of the amount deposited.

The judgment of the lower court distributed the-amount deposited to the lien creditors, and they have acquiesced; the judgment decreed the plaintiff liable beyond the amount deposited for two small amounts, one of two hundred and ninety-eight dollars and another of sixty-five dollars, and dismissed the demand against the sureties. In this posture the plaintiff takes the appeal, and is met by the motion to dismiss.

It thus appears the plaintiff sued numerous parties asserting conflicting rights to the six hundred and fifty-eight dollars he deposited. The demand of each of these parties was less than two thousand dollars. The plaintiff’s demand of the surety of the contractor was contingent, i. e., in the event the plaintiff was made liable beyond the amount he deposited. This contingent demand was less than two thousand dollars.

In no aspect it seems to us can this appeal be maintained. The suit against a number of defendants each alleging a debt against plaintiff for amounts less than two thousand dollars can not be brought within our jurisdiction merely because the aggregated claims exceed two thousand dollars. On any appeal by these creditors the amount of each claim would be the test of our jurisdiction, nor is the test different because plaintiff sued them, and in this form seeks an adjudication on appeal .on claims all below the jurisdiction of this court. The United States and others vs. Cochrane and others, 5 Rob. 120; Boulden vs. Hughes, 8 N. S. 285. The demand against the sureties as stated in the brief is below our jurisdiction. The fund deposited is six hundred and fifty-eight dollars and the fund “to be distributed” must exceed two thousand dollars to give us jurisdiction when that distribution is the basis to sustain the appeal. Constitution, Article 81, as amended by the amendment of 1882; Acts, p.174; Insurance Company vs. Levi et al., 40 An. 135; Renshaw vs. Stafford, 34 An. 1140.

It is therefore ordered, adjudged and decreed that the appeal in th'is case be dismissed at appellant’s costs.


author: Breaux, J.

text:
    No. 12,588.
    Margaret Rombach, Tutrix, vs. Crescent City Railroad Company.
    In an action for damages received from a collision between a cart and a street car,moving side by side in the same course, with a short space between them (one can not strike the other if each remains in its direction). It being evident that the car did not turn, but that the cart was turned so that it struck the side of the car, the presumption of negligence was not against the street car.
    To recover it was incumbent- upon the plaintiff to prove that the collision was caused by the negligent acts of the defendant. On the contrary, ifappears that it proceeded from the incautious act of the driver in pulling his horse to the left.

      Held: That the injury was not caused by defendant’s negligence and that there is no ground for deciding that the unanimous verdict of the jury and the judgment of the court pronounced thereon were erroneous.
    A PPEAL from the Oivil District Court for the Parish of Orleans. Í1 Rightor, J.

      O. B. Sansum for Plaintiff, Appellant.

      Farrar, Jonas, Kruttschnitt & Gurley for Defendant, Appellee.
    Argued and submitted April 19, 1898.
    Opinion handed down May 2, 1898.
   The opinion of the court was delivered by

Breaux, J.

This was an an action for damages received from a collision. Plaintiff sued for damages as tutrix of her minor son, Jacob Rombach, aged about fourteen years, who was injured in an accident. It appears that his oldest brother was sick and unable to deliver ice to customers of the mother. The little fellow injured asked of his mother the permission, with another youth older than he was, to receive the ice from the factory and take it to those to whom the oldest brother usually dealt that article of merchandise. The boys were driving the horse and small ice cart upon defendant’s up-town rails on Tchoupitoulas street, at about half past eight o’clock in the morning. About midway of that street (Tchoupitoulas) , between Delaehaise and Aline streets, in this city, one of the defendant’s electric cars collided with the ice cart and tilted the cart over, breaking one of the shafts and throwing the ice down into the street and breaking the.left arm of plaintiff’s son. The rear end of the cart struck the side of the car on the left, in rear of the “ grab handle ” attached to the body of the car for the convenience of passengers in entering the car. The evidence discloses that the fender of the car projected two and one-half feet in front and extended on each side of the centre line of the car, as far as the platform in front of the dashboard. The front, or dashboard, was as wide as the body of the car, and the platform also was as wide as the car and projected about three feet from the body of the car. The cart measured two feet ten inches from the centre of the hub to the rear end of the tumbrel or the tailboard.

Previous to and at the time of the collision, the car was running at half speed and the horse was pulling the cart at half trot.

The plaintiff insisted that her cart had almost entirely passed from the track when the motorman turned on the power, increased the car’s speed, and thereby caused the collision and the injury; that the driver of the cart heard the gong and the advancing car and immediately turned the horse off the ear track, but not quickly enough to escape the injuries complained of.

The case was tried before a jury. The verdict was for defendant. The judge overruled the application for a new trial and gave judgment against the plaintiff. She appealed.

Beyond all question, if plaintiff’s cart and horse were being driven up the street and the car people'did not give it ample time to move out of the way, the defendant is responsible in damages for the injury, but this, so far as we can discover here, is not the case. If it had been, the front part of the car would have been the first to come in collision with the cart. We have seen it was not the front that struck the car; but the cart collided with the car some five and a half feet from the front of the car. The evidence shows that the car was of equal width from end to end, including the fender in front. It therefore becomes manifest the outer end of the car and the sides being parallel, after the cart had cleared the track it must have made a backward motion. Had it remained in place, after it cleared the five and a half feet on the side, the car being of equal width from one end to the other, it would have passed without touching the cart. The cart must have deviated. The car and the cart were going in the same direction. One of the wheels was, plaintiff states, on the railroad track. The horse was pulling toward the river. We gathered from the evidence, however, that the horse and wagon were not in front of the car as alleged by plaintiff, but on the side running in the same direction with the car, in a direction slightly oblique from the car; that when opposite to the car the horse turned in the direction of the river and thereby the cart was made to strike the car, as it did. Had the cart been in front of the car, as contended by plaintiff, with one wheel inside of the up-town car track and as witnesses for plaintiff have testified (if its direction was slightly oblique with the car’s course) the right hand wheel or the hub would have struck the car. (The wheel and its hub projected a number of inches from the side of the cart.) If, on the other hand, the direction had been more at right angle from the line of the track, the front of the car would have struck the cart.

Five and a half feet of the car had been passed without colliding. Had there been no veering of one or the other there would not have been an accident. The remaining length of the car would have been passed without collision.' Had they traveled toward each other the side of the cart would have come in collision with the side of the car. This Was not the situation; they were not inclining toward each other. The side of the ear was struck by the right hand end of the cart. In what way then did the end of the tumbrel strike the car? The course of the latter (the car) was not to the side, right or left, but straight. The blow must have come from the cart as it changed direction to the -left from' the car. That this actually happened was made evident, we think, by the print of the blow on the side of the car, and the broken end of the tumbrel of plaintiff’s cart. If the driver pulled to the left even a very small distance it would turn the cart diagonally to the car and bring the end in contact with the car. In that case the cart would be the offending force, and not the car, following a direct line.

This view, we think, is sustained by the weight of the testimony. The distance between the cart and the ear running in the same direction was very little. The limited space between the two at the moment of the accident does not change the principle which we think should govern. In all cases when the cartman deviates and departs from the track, and his cart and the ear are running advancing side by side, he is presumably negligent if he chooses to turn his cart so as to strike the car, and this whether the tumbrel of his cart be short or, long. After the cart is no longer in the car’s range a turn of its wheels gives rise to the unavoidable inference that the collision came from the cart’s change in direction. The plaintiff in support of her claim sought to prove that a dray coming toward the cart from an opposite direction at the moment of the accident so encumbered the street that it prevented the driver of the cart from getting away entirely from the car track. There was unquestionably a dray near at the moment of the accident. The witnesses disagree as to the obstruction by this dray. Several stated that it was not near enough to interfere with the cart in the least. The jury’s verdict sustains that evidence. It is particularly within the province of the jury to weigh the facts of the controversy. We have frequently heard it said that juries are in their findings very much inclined against corporations. We do not give great credence or importance to such utterances, but none the less we are of opinion that a jury would not hastily conclude in an action for damages to a boy in the service in which this boy was engaged, with his mother’s permission, that he was not obstructed or stopped in his course, if, in reality, he was in any way stopped. As plaintiff in suit and as appellant from the verdict of a jury to which the cause was left on her motion, she is bound to explain and prove to the court her right before she can be allowed to have the verdict reversed. While it is true that railroads have not a monopoly of their tracks, and that it is not in their absolute use to the exclusion of vehicles, yet in order to hold them for damages their negligence must be proved. It was not established to the satisfaction of the jury and of the judge of the District Court, nor to ours. In analyzing the facts and seeking to comprehend just how this accident occurred we found that the unexplained collision by the cart with the side of the ear, and not with the front of the car, was a complete bar to the conclusion that the injury arose from negligence on the part of those who were manning the car.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is hereby affirmed.


text:
    No. 12,747.
    August Huberwald et als. vs. Orleans Railroad Company.
    The right of action for damages ex delicto, under Art. 2315, C. C.. does not survive in favor of the children of age.
    The right survives in favor of the minor children, or widow of the deceased. The descriptive words of the article do not include the heirs of ages. The right is personal and limited to those indicated by the statute.
    The right given to the minor, in whose behalf it (the right to damages) is not claimed or exercised during minority, abates after her majority.
    The right is attached to the person and is not heritable. Affirming, Hermann vs. Railroad Company, 11 An, 5; Hubgli vs. Railroad Company, 6 An. 496; Walton vs. Booth, 34 An. 913; Ohivers vs Rogers, 50 An. —.
    APPEAL from the Oivil District Court for the Parish of Orleans. Bightor, J.

      W. 8. Benedict for Plaintiffs, Appellants.

      Frank D. Chrétien for Defendant, Appellee.
    Argued and submitted March 26, 1898.
    Opinion handed down April 4, 1898.
   The opinion of the court was delivered by

Breaux, J.

This was an action for the recovery of damages arising from the death of petitioner’s father, Rudolph Huberwald, January, 1896, caused, they aver, by the negligence of the defendant in its operation as a street railway.

Their mother, Malvina Huberwald, died on the third day of Feb - ruary, 1896.

On the 17th of November the children of Rudolph Huberwald, averring that the injury sustained by their father of which he died survived in their mother, brought this suit. They alleged that the rights of their mother descended to them by inheritance. All of the children were of age on the day of their father’s death except Malvina. The suit was not brought during her minority. Defendant answered pleading a general denial, and especially pleaded that the mother of petitioner having died a few days after her husband without- having sued, her right to damages was not inherited by the major heirs, and that Malvina Huberwald, who was a minor, and in whose behalf no suit was brought during her minority lost by her majority her right of action. The minor had become of age a few months prior to the institution of this suit. The court a qua sustained the grounds of exception, made part of the answer. From that judgment the plaintiff appeals.

The right of action arising from a qwasi-offence against one’s person has always been considered and treated by this court as a personal action not heritable without legislative sanction.

It is, unless there is provision made to the contrary, a right purely personal.

But to an extent at least the law upon the subject is pronounced. It prescribes that every quasi-offence giving rise to damages shall be repaired. As long as the article relating to offence and quasi-offence read: “ Every act whatever of man that causes damages to another, obliges him, by whose fault it happened to repair it” (O. 0. 2815), the personal right of the one injured to pecuniary reparation was recognized by the decisions of this court. It was understood that he who caused damage should make indemnification to the one dam - aged, whether it had been done by himself or through some fault of his. But the right under the article quoted terminated with the person injured; it was not heritable; in other words, the loss Sustained by the widow and children growing out of the death of the husband and father was not considered compensable from a pecuniary point of view. These wrongs went unredressed in the Civil Courts. Correction was sought only by criminal prosecution, in case the person injured did not survive his injuries.

In two cases, Hubgh vs. New Orleans & Carrollton R. R. Co., 6 An. 495; and Herman vs. New Orleans & Carrollton R. R. Co., 11 An. 5, the question received the close consideration of this court, prior to the amendment of the statute; and it was held that the killing of a human being was not to be regarded as a direct injury to his family, compensable in money. In the second of the two cases, Herman vs. New Orleans & Carrollton R. R. Co., 11 An. 5, the court said that the question had been argued with great ability in both cases. The elaborate briefs of counsel are copied in the report.

The opinion of eminent jurists were cited in these cases in support of a contrary view. The court, nevertheless, adhered to the ffrst decision, and said that the difficulties created by the learned argument of plaintiff’s counsel in the joint case did not justify them in disregarding the well considered decision previously rendered.

The court added “ and were the question res nova we should feel great difficulty in arriving at a satisfactory conclusion.”

The question was before the court again in Chivers against Rogers, 50 An. -.

The cited cases supra were affirmed. Three decisions rendered upon an important issue after elaborate argument of counsel, should we think, have the weight of authority of stare deoiois, more particularly as there is a decision expressing a contrary view in our books.

In 1885, the section before quoted of the Civil Code was-amended in order, to the extent expressed in the amendment, to enable those named in the amendment to bring suit. A limited order of succession was instituted. In case of death, the right of this action shall survive in favor of the minor heirs, or widow of the deceased.”

In the case last cited, and in Walton vs. Booth, 34 An. (914) , it was held that the right of action could be exercised only by those named in the act. As to those only, the amendment was damnum injuria datum. The major children of the deceased (not being named in the statute amending the law) are without right. This was in effect the interpretation of this court prior to the amendment, and it remained unchanged by the legislative action taken in the matter at the time.

This brings us to another question, different in some respects to the one we have just left. It arises from the fact that one of the children was a minor at the father’s death. She was, we have seen, of age when the suit was brought. The law appears to have for object the needs of the minor. This court said in one of the cases cited supra that those heirs not expressly included were excluded, and that the amendment should be strictly construed. Prom that point, we would not be justified in deciding that after majority a minor retains the right to sue (although no action was instituted “ prior to the majority ” ).

Blackstone, Vol. 4, p. 385, states: “That the only crime against one’s relations for which an appeal may be brought is that of killing him by either manslaughter or murder. But this can not be brought by every solution, but only by the wife for the death of her husband, or by the heir male, for the death of his ancestor. It is given to the wife on account of the loss of her husband; therefore, if she marries again before, or pending her appeal, it is lost and gone; or if she marry after judgment, she shall not demand execution.” The ruling growing out of the change of status applies here.

The minor after majority is no longer possessed of the quality required of the statute. Moreover the right would assume the nature of a property right and not one attached to the person if it remained after the change of status from her minority to her majority. It would become transmissible, or one over which creditors might exercise a right in nomine debitori.

Prom any point of view, in our judgment, the right to be of any avail must at least have been claimed judicially at the time of the change of status in order that the intended beneficiary may recover for the injury.

We feel for those who are left without a supporter and advisor owing to accident, and are not inclined to a conclusion debarring them from the right of ascertaining whether there was actionable negligence.

But we must interpret the law as it is written — jusdiscereet non jus dare is the part of the court.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed.

Mr. Justice Blanchard takes no part in this decision.


author: Watkins, J.

text:
    No. 12,795.
    State of Louisiana vs. Paul Albert et al.
    A confession obtained by a deputy sheriif, under duress, is altogether inadmissible as evidence against an accused person.
    APPEAL from the Eleventh Judicial District Oourt for the Parish of St. Landry. Dupré, J.

      M. J. Cunningham, Attorney General, and R. Lee Garland, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      E. P. Veazie and C. F. Garland for Defendants, Appellants.
    Submitted on briefs April 23, 1898.
    Opinion handed down May 2, 1898.
   The opinion of the court was delivered by

Watkins, J.

The two defendants, Paul Albert and Buddy Silvester, having been convicted of burglary and sentenced to five years’ imprisonment at hard labor in the State penitentiary, prosecute this appeal, relying on several bills of exception.

The first bill which was reserved by the accused relates to the ruling of the trial judge in admitting proof of a confession, whereas their contention is that said alleged confession was not a voluntary one, but obtained by means of threats and coercion on the part of officers of the law.

In the course of the reasons which he assigned for admitting the testimony relative to the alleged confession the trial judge said :

“ Because in the court’s opinion a confession was made, and it was a fair and voluntary one. Mark well, defendants denied having made any confession at all. The officers, on the contrary, prove that a confession was made, and that the same was fairly and voluntarily given, and the court accepts as true their-testimony and rejects as unworthy of belief the testimony of the accused parties. It is too monstrous for evidence. Too gross for credulity itself.”

The testimony is of following tenor :

Paul Albert stated that, at the time of his arrest, the officer, Millspough, accused him of having broken into the store of Mr. Herbert during the night previous, but that he denied the charge. That the officer insisted that he did break open the store, and told him that if he did not tell him the truth about it he would hang him at the jail; that there was a scaffold already made for him if he did not tell him about breaking open the store.

That, subsequent to his incarceration in jail, the officers took him out and carried him back to Port Barry, and carried him down in the woods, where they told him “ they would kill him if he did not tell them about more people who went in the store.” That they told him that if he would say he was there they would turn him loose.

He said the two officers were Mr. Millspough and Mr. Andrus. That they told him if he did not confess they would go to the jail at night and take him out and hang him. He said that the sheriff was present with them in the woods, and protested against their conduct.

But he emphatically denied having made any confession whatever to them. He said that he had another talk with those parties whilst he was in jail, in the presence of the sheriff and another party; and that in the course of their conversation, Millspough and Andrus showed him the scaffold and told him that they were going to hang him on it. He said that he was very much frightened.

It was admitted by the prosecuting attorney “that the scaffold alluded to in the testimony above written is still standing in the jail yard, and was there at the time (the) above took place.”

Buddy Sylvester states that after his arrest he was kept locked up in a cell, and when his trial came on Mr. Millspough told him just before he carried him down to the jailer’s room, “ Don’t let those lawyers fool you, but (go) up there and plead guilty.” That he told him to go into court and plead guilty, because if he did not “ they would send him up the road or hang him, as Paul Albert had already confessed.”

That on that day they brought him and Paul Albert into the sheriff’s office and wrote their statements down; and that he was very much frightened at the time. That he, at all times, denied having broken into the store; that they pointed out to him the scaffold, also.

The purport of Millspough’s testimony is to the effect that he did not threaten the accused with violence in order to obtain their alleged confessions; but he admits calling them into the jailer’s room for the purpose of taking their confessions in the presence of other persons, and that the sheriff continued therein during the time he was interrogating the prisoners so as to put him on his guard.

The following interrogation and answers then ensued, viz. :

“ Q. You say that Mr. Andrus had cautioned you not to obtain any confession from those parties on the promise of reward, or immunity or threats?
“ A. Yes, sir.
££ Q. When where those cautions made to you?
“ A. When we were talking to the prisoners.
Q,. The day that you obtained confessions from them in the jailer’s room?
“ A. I don’t think the sheriff was there at that time.
Q. Did he caution you on the occasion that you took the written confession?
“ A. Yes, sir.
Q. When was it that he was cautioning you?
A. When we were questioning the prisoners to tell us.
“ Q. Wherefore that caution?
“ A. Being an old deputy he thought we might forget about this, and so put me and Mr. Dosholite on our guard for that reason.
“ Q. Had you Said anything to excite his fears on that occasion?
A. No, sir; he was an old hand at the business.
* ij« }}: Sit í¡í sjs
“ Q. Is it not a matter of fact, Mr. Millspough, that you and those who assisted you would go to one of those parties and tell him that the other had confessed, when such was not the fact?
“ A. I can not answer as to other deputy sheriffs, but it was not my practice."
Again: '
“ Q. How many conversations had you with these parties in jail during the time they were locked up, separately?
“ A. Maybe three, four or five.
££ Q. Before they made their written statement?
“ A. No; including the written statement, etc.”

Again:

Q. Did you not say, that with a view of extorting a confession from Paul Albert, you had tightened the handcuffs on his wrist?
“A. I said I had put them on pretty tight.
Q. What was the purpose of putting them on tight?
A. I -thought maybe if I put handcuffs on him a little tight he would tell me the truth.
“ Q,. It was to make him-tell you something about the case, was it not?
A. Yes; to make him tell the truth.”
In the course of the interrogation of Andrus the following occurred, viz.:
Q. You heard the testimony of Paul Albert about the Poplar Grove Woods and about pointing out the scaffold, is there any truth about that?
“ A. I don’t think that there was a word spoken to Albert between here and Port Barry by either Sheriff Dosholite, Millspough, or myself, etc.”

There is more evidence of the same character as the foregoing, which we deem unnecessary to detail, and we must say that the whole of it, taken in connection with the declarations of the two defendants, has given us an impression quite different from that it gave the trial judge.

We are impressed with the idea that these several officers of the law — the sheriff and his deputies — were diligently and continuously engaged in the effort to obtain from the accused, by duress or surprise, some incriminating admission which would render their conviction sure; notwithstanding, it may be conceded that the threats of violence were figments of their imaginations, begotten, in great part, of fear.

Their arrest, and being heavily handcuffed and incarcerated in separate cells of the jail, where they were repeatedly interrogated and plied by their keepers with numerous questions, separate and apart from each other, with direct reference to the charges preferred against them, coupled with the injunction that it were better for them that they should tell the truth, is clearly indicative of an undue influence having been brought to bear upon them, for the purpose of eliciting proofs of their guilt. And it is a fact admitted by one of the deputy sheriffs, that one of the defendants was taken from the jail and carried some distance to the place of the supposed burglary, for the express purpose of confronting him with persons and facts which would serve to defeat his defence, same being an alibi.

The whole course of proceeding, as it is developed in the testimony, was altogether irregular, to phrase it as mildly as the circumstances will allow; and contrary to the usual course of justice. For the purpose'of ferreting out crime the law provides a grand jury with inquisitorial power; and for the purpose of bringing criminals to justice, it provides a district attorney whose duty it is to find the witnesses and produce the proof of guilt at the trial. But the law never contemplated that the sheriff should usurp the function of either, much less to obtain incriminating statements from persons in his custody, by the process of “ setting traps for the unwary,” or by persuasion, duress, or the power of his office.

Testimony thus obtained ought not to be admitted in evidence against an accused; and the admission of the alleged confessions, under the circumstances related, is and was reversible error, and the verdict and sentence must be reversed and set aside.

It is therefore ordered and decreed that the verdict of the jury and thes entence thereon based be annulled and reversed; and it is further ordered and decreed that the cause be remanded to the court below for trial according to law.


author: Blanchard, J.

text:
    No. 12,785.
    F. L. Fernandez vs. Mayor and Council of New Orleans.
    Plaintiff, holder of certain judgments against the city of New Orleans, attacks certain items of expenditure found on the city budget for 189S as being illegal, demands that' same be stricken therefrom and that his own judgment be placed thereon in their stead, to be paid by preference in full. Exception of no cause of action disclosed, filed to his petition, sustained.
    A PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Chas. Louque for Plaintiff, Appellant.

      James J. MeLoughlin, Assistant City Attorney, and a%muel L. Gil more, City Attorney, for Defendants, Appellees.
    Argued and submitted April 23, 1898.
    Opinion handed down May 2, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The plaintiff is a creditor of the city of New Orleans.

He sets forth that in the year 1889 he recovered 'á judgment against the city for eleven thousand four hundred and forty-eight dollars and seventeen cents, without interest, payable out of the city’s revenues for the years 1884 and 1886, which judgment was reduced by partial payments to the sum of five thousand four hundred and fifty-six dollars and fifty-nine cents.

That in 1891 he recovered a second judgment against the city for the sum of four thousand five hundred and forty-three dollars and eighty-six cents, with interest and costs, payable out of the city’s revenues for the years 1879, 1881, 1882 and 1884.

That both judgments were duly registered in the office of the comptroller of the city.

That he has a still further claim against the city for six thousand four hundred and twenty-seven dollars, which has been recognized and also registered in the comptroller’s office, upon which he has instituted suit in order to obtain an absolute judgment against the ■city for its payment.

He cites Act No. 80 of 1877 as authority for the contention that his judgments are payable out of the surplus revenues of subsequent years.

He complains that his judgments would have been paid out of the revenues of the years in which the indebtedness was contracted if the City Council had not illegally diverted the funds of such years by paying the running expenses of other years, and specifies certain •sums for various years which were, he alleges, so diverted.

He also complains that in addition to the sums so diverted, the city had illegally remitted, in various years mentioned, large amounts due it on interest account.

He avers that because of the diversion of funds aforesaid and because of the remitting of the sums due it for interest as set forth, it is contrary to law, equity and good conscience to restrict him to ■seeking payment of his judgments out of the funds of the years as decreed in the judgments.

Declaring that no provision has been made by the Council for three years for the payment of judgments, and that it is not the intention of the Council ever to pay the amounts due him, he asserts the right to now have his judgments considered absolute and unrestricted judgments against the city and placed on the city’s budget for this and subsequent years until his claims are satisfied.

Representing that on the budget for 1898 are two items (naming them), aggregating fifty thousand dollars, which are illegal because an attempt to use the revenues of 1898 to pay indebtedness incurred in 1897, he asks that the Council be enjoined from doing this; that the items objected to, aggregating the fifty thousand dollars aforesaid, be stricken from the budget of the current year; and that in lieu of the same, he be placed thereon for the full amount of his judgments, with costs.

This, then, is the object of his suit, the cause of the present action.

Defendants meet this with the peremptory exception of no cause of action, which was sustained by the court below and plaintiff prosecutes this appeal.

Appellant cites State ex rel, Fernandez vs. City, 45 An. 1390 (a former case of his own, being a mandamus proceeding, based on these same judgments, unsuccessfully prosecuted), as sustaining and justifying the relief sought in the present action.

But nothing said in the opinion of the court in that ease warrants the contention now made that he is entitled to have his judgments, expressly by their terms made payable out of the revenues of other and earlier years, placed .upon tbe budget of 1898 and paid in full from the revenues of that year to the exclusion of all other judgments and claims against the city. Wadsworth vs. City, 48 An. 888 (bottom of page); United States ex rel. Siegel vs. Thoman, 156 U. S. 353.

Conceding arguendo that the two items on the budget of 1898, aggregating fifty thousand dollars, objected to as illegally placed there, are there without warrant of right or of law and should be stricken therefrom, and conceding further arguendo that plaintiff may be entitled to have his judgments considered as not restricted to the revenues of the years mentioned in them, to the extent of being payable out of the surplus of the revenues of other years under the authorization of Sec. 3 of the Act 30 of 1877, where is the authority for holding that he is entitled to be placed by preference on the budget of 1898, and paid by preference out of the particular fifty thousand dollars appropriation which he attacks as illegal? If that much of the revenues of 1898 may be made by law and act of the City Council applicable to the payment of the judgment indebtedness of the city, is it not rather to be applied to the payment oj the judgments in the order in which they shall be filed and registered in the office of the Comptroller,” as directed by the concluding clause of Sec. 3 of Act No. 5 of 1870 — an act cited by plaintiff himself, and the one pursuant to whose direction his judgments were admitted to registry in the Comptroller’s office?

It seems to us so, and that when the only relief plaintiff seeks is to get somebody else off the budget of 1898, and to get himself on in their stead, he is well met by the exception that his petition discloses no cause of action.

Judgment affirmed.


text:
    No. 12,773.
    State of Louisiana vs. Placide Auguste et als.
    1. Tlie rule of law requires that the confession of an accused person, sought to be admitted to the jury, shall have been made voluntary without the appliances of hope, menace, or fear by any other person.
    2. And whether it was so made or not is to be determined upon consideration among other things, of the circumstances under which it was made.
    3. The rule is not that, in order to render a statement admissible, the proof must be adequate to establish that it was voluntarily made; but it is that it must be sufficient to establish that the malting of the statement was voluntary.
    APPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Dupré, J.

      M. J. Cunningham, Attorney General, and R. Lee Garland, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      John N. Ogden for Adam Melanpon, Defendant, Appellant.
    Argued and submitted April 23, 1898.
    Opinion handed down May 2, 1898.
   The opinion of the court was delivered by

Blanchard, J.

An information was filed charging Placide Auguste, B. Sylvestre and Adam Melangon with burglary and larceny.

When the ease was called for trial Melangon alone was put upon trial.

Why the other two were not then tried does not appeal

A verdict of guilty having been returned, from a judgment thereon sentencing the accused to five years in the penitentiary, this appeal is taken.

He complains of error to his prejudice'in the ruling of the trial judge permitting what the prosecution claimed to be a voluntary confession, to go to the jury.

Evidence of the confession being tendered by the State, in order to lay the basis therefor testimony as to its voluntary character was first offered, and to the end of bringing the matter properly before this tribunal this testimony was reduced to writing, and is annexed to the bill of exceptions.

The three parties hereinbefore mentioned were 'all arrested at or about the same time. Andrus, a deputy sheriff,* effected the arrest of Melangon, manacled him with handcuffs and brought him to the jail, where he was placed iú confinement. The other two accused parties were also confined in this jail.

A few days following the incarceration, Deputy Andrus, in company with Deputies Doucet and Millspaugh and the sheriff himself, repaired to the jail and entering the jail office sent for the prisoners. They were brought in and Andrus, acting as spokesman, says he told them he wanted them to tell him the truth in regard to the robbing of Mr. Hebert’s store, how they had robbed it, when they had robbed it, how often they had robbed it, and what they had taken from the store. “ It was then,” he continues, that he (meaning the accused, Melangon) told me how he, Plaeide and Buddy, got into the store.” He affirms that he did not offer the accused any inducement, or immunity from punishment; that he did not frighten or intimidate him, nor was he frightened or intimidated; and that the confession was voluntary. On cross-examination he admits the accused had not sent for him at the time of the alleged confession, but that he had sent for the accused, and that the accused did not volunteer of himself to make a statement before he was sent for.

It also appears from his evidence, on the cross-examination, that a scaffold or gallows, on which a murderer had recently been executed, had been left standing in the jail yard, and that the prisoners could see it in passing to and from the jail. Asked if he advised them to make &, statement, he answered! No; I told him to tell the truth,” and asserts he did not say to him it would be better for him to make a statement.

Deputy Millspaugh was called as a witness, and, the testimony of Andrus being read to him, he declared he corroborated the same.

The accused, placed on the stand at this juncture, denied he had made any confession to Andrus; testified the latter had endeavored to force him to confess; that he had told him he would be sorry if he did not, etc. He states further that the way Andrus had spoken to him frightened him.

The trial judge ruled the confession had been freely and voluntarily made, and admitted the evidence offered of the same.

In determining the question presented it will not be necessary to give effect to the testimony of the accused. '

Considering only the evidence adduced on behalf of the prosecution, it is clear that the statement of the accused, offered as a self-incriminating confession, was one made under circumstances amounting to a demand — the antipode of a free and voluntary confession.

Here was a prisoner in custody and under the authority of the sheriff and his deputies.

He had been arrested by one of the deputies, handcuffed and brought to prison. He is sent for by this deputy a few days later, taken under the shadow of the standing gallows, to a room in the jail, and there confronted by this deputy, in the presence of the sheriff and two other deputies (one of them presumably the jailer) and told he must tell the truth in regard to the robbery.

It was an inquisitorial proceeding in which the deputy, who was doing the questioning, assumed that the three accused, then before him, were the guilty parties.

He demanded to know “ when they had robbed, the store, and how often they had robbed it.” And while it has been held that a prisoner’s confession will not be rejected as evidence merely because it was made in answer to a question which assumed his guilt (Wharton’s Crim. Ev., 9th Ed., Sec. 663), the answers, thus compelled, of the accused in the instant case, under the circumstances mentioned, can not be received without doing violence to the rule that confessions to be admissible must be free and voluntary.

L The accused had not sent for the deputy to come to him; he had given forth no intimation that he desired to see him, or to make a statement to him. There was lacking everything tending to show the making of a free and voluntary confession.

The only conceivable hypothesis upon which this conversation could legally have been admitted to-the jury was that it was a free and voluntary confession on part of the defendant.

“ The rule of law,” says Greenleaf on Evidence, See. 219, * * * “ demands that the confession shall have been made voluntary, without the appliances of hope or fear by any other person.” And whether it was so made or not, is to be determined upon consideration of the age, situation and character of the person and the circumstances under which it was made. It must not be obtained by the exertion of any improper influence. 3 Russel on Crimes (6th Ed.), 478; Wharton’s Crim. Ev, (9th Ed.), Sec. 673; 2 Taylor, Ev. (9th Ed.), Sec. 8722; State vs. Havelin, 6 An. 168; State vs. Nelson, 3 An. 497.

The circumstances, amounting to menace, at least calculated to produce fear, under which this accused was called upon to tell what he knew about the crime, must be held to be such as to have made his situation so full of perplexities and embarrassments as to deprive him of the character of free agent, and overthrows the implication that his reply to the deputy sheriff could have been the result of a purely voluntary mental act.

The mere fact that a confession is made to a police officer, or other official, while the accused is under arrest in or out of prison, or was drawn out by questions, does not, .it is true, necessarily render the confession involuntary, but such imprisonment or interrogation, and the circumstances and surroundings of the accused at the time, should be taken into careful account in determining whether or not the statements of the prisoner were voluntary. Hopt vs. Utah, 110 U. S. 574; Sparf vs. U. S., 156 U. S. 61, 55.

“ The law,” says Russell in his work on Grimes “ can not measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and, therefore, excludes the declaration if any degree of influence has been exerted.”

While the admissions or confessions of a prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminatory evidence, extreme caution and care are to be observed in determining that they are free and voluntary — a principle firmly embedded in both English and American jurisprudence. And the rule is comprehensive enough to exclude manifestations of compulsion whether physical or moral, the resultant effect of which, upon the mind, is hope or fear, aptly described to be “ an involuntary condition of mind.”

With regard to the question of proof to show that a confession was or was not voluntary, the rule is not that in order to render a statement admissible the proof must be adequate to establish that it was voluntarily made; bub ib is that it must be sufficient to establish that the making of the statement was voluntary. See Bram vs. U. S., 168 U. S. 532, 549.

Upon the broad ground that the making of the .statement, sought' in the instant case to be proven as the accused's confession of guilt, was not voluntary, but done under conditions of menace, or calculated to inspire fear, the conclusion is reached that there was reversible error in permitting it to go to the jury.

It is therefore ordered, adjudged and decreed that the sentence and judgment appealed from be annulled, avoided and reversed, and that the case be remanded for further proceedings according to law.


text:
    No. 12,770.
    State ex rel. Moyse Brothers vs. Hon. Walter Guion, Judge, et als.
    A district judge having granted and made a writ o£ mandamus against a justice of the peace peremptory, commanding him to grant a writ of injunction against the consummation of an execution sale, because the defendant had no? been notified of the proceedings antecedent to trial and judgment, same will not be disturbed or inquired into by means of certiorari and prohibition, if same appear to have been regular and jurisdictional.
    ON APPLICATION for Wribs of Certiorari, Mandamus and Prohibition.

      Edmond Maurin for Relators.
    Respondent Judge and Justice of the Peace for themselves.

      Submitted on briefs March 21, 1898.
    Opinion handed down April 4, 1898.
    Rehearing refused, reasons assigned, May 16, 1898.
   The opinion of the court was delivered by

Watkins, J.

The statement of the relator is, that on the 7lh of September, 1897, a judgment was rendered in their favor and against the defendant, Joseph Bradford, by Owen Leñares, Justice of the Peace for the fourth ward of Ascension parish, for the sum of one hundred dollars; and that after legal forms had been complied with, and due notice had been served on the defendant of the judgment pronounced against him, an execution was issued, and certain movable property seized in satisfaction of said judgment and duly advertised for sale.

Tha.t a few days previous to the time of sale, the judgment debtor, Bradford, presented a petition to the aforesaid justice of the peace praying for a writ of injunction restraining said sale upon the ground that “no notice of the trial had been served upon him;” but that the justice declined to grant the writ, “ because the ground alleged for said writ was negatived by said judgment on its face,” etc.

That thereupon said Bradford applied to the respondent judge of the District Court for a writ of mandamus to coerce said justice of the peace to grant said injunction, and prohibit further proceedings under said injunction, and prohibit further proceedings under said fi. fa. and the sale thereunder.

That the respondent granted the writ of mandamus, and upon the trial thereof made same peremptory, and commanded the respondent justice of the peace to issue the writ of injunction prayed for.

On this statement of facts the relators herein aver that the action of the aforesaid respondent judge in issuing said writ of mandamus, and making same peremptory, is and was an usurpation of authority, and therefore illegal and void, and that said justice of the peace and constable holding said fi. fa. are and were not bound to respect them, but should disregard them and proceed with the execution of said judgment and the sale of said .property. That the writ of mandamus does not lie to compel a judge, or court of inferior jurisdiction to grant an injunction in any case in which he is vested with a judicial discretion either to refuse or to issue said writ; and in this particular instance the relators aver' that the petition for injunction “ was in direct conflict with the decree of the court,” i. e., the justice of the peace.

On the foregoing representations, relators demand relief by certiorari and prohibition as to the act of the respondent judge, and by mandamus to compel the aforesaid justice of the peace and constable to disregard said injunction suit, and proceed with said execution and sale.

The respondent substantially returns that on the foregoing statement of the relators’ petition he entertained the opinion that the respondent justice of the peace was without any discretion in the premises, because the law declares that when an execution is being proceeded with contrary to law, an injunction must issue if prayed for, and no discretion is given in such case, to the judge who is applied to for it — citing Oode of Practice, Art. 298, No. 10.

That, as under the law, the sworn allegations of the petition for injunction are to be taken as true, the judgment sought to be enjoined was absolutely null and void, however perfect in form it might have appeared to have been.

That in his opinion it was the plain duty of the justice of the peace to have granted the writ of injunction, because he was vested with no discretion in the premises at all. Evidently an injunction was the only remedy the alleged judgment debtor had; and if, as alleged, the proceedings in the justice court were illegal, and no notice of the trial had been served upon him, the defendant was entitled to have the proceedings, under the judgment and execution, arrested. C. P. 608.

The assignment by the justice of the peace of the perfect regularity of the proceedings in his court on the face of the papers as being a sufficient warrant for his refusal of the writ of injunction, strikes.us as a novel proposition, indeed. Such a theory being recognized would result in stating every injunction out of court, if need be.

Notwithstanding the point has not been raised in the pleadings or argument, it has become necessary, that we should consider whether or not the respondent judge has legal power to grant the writ of mandamus under the circumstances, same not having been granted in aid of the appellate jurisdiction of his court.

The Constitution confers upon this court the power to grant the writ in aid of its supervisory jurisdiction. Article 90.

It confers upon the¡ judges of the courts of appeal the power to grant the writ “ in aid of their appellate jurisdiction.” Art. 104.

In the Constitution there is no provision on the subject with regard to the district judges; consequently, the law, in that respect, was allowed to remain as it existed before the adoption of the Constitution.

It is worthy of remark, however, that mention of this power was necessary with regard to the Supreme Court, because that instrument, for the first time, conferred upon it supervisory jurisdiction. And it was equally necessary that mention should have been made of the grant of power to the judges of the courts of appeal because there were no such courts in existence prior to its adoption.

Recurring to the power of the district judges to grant the writ, we find that the provisions of the Code of Practice furnish ample warrant for its exercise by them.

They are, that “ this order * * * can be issued by courts whose jurisdiction incivil matters exceeds one hundred dollars,” etc. Article 836.

“ It is only the court which exercises appellate jurisdiction over an inferior court that can direct to the latter an order to perform any of the duties belonging to it.” Article 839.

It is quite apparent that the judges of the district courts fulfil all the requirements; and it is manifest, that the power of these judges is not limited to causes wherein the writ comes in aid of their appellate jurisdiction, but extends to all classes of causes because they are judges of courts which exercise appellate jurisdiction, as -well as ordinary civil jurisdiction.

The province of the writ is to command “judges of inferior courts * * * to render justice, and to perform the duties of their offices conformably to law.” Article 837. Notin aid of their appellate jurisdiction, but generally.

“ The object of this order is to prevent a denial of justice * * * and it- should therefore be issued in all cases where the law has assigned no relief by the ordinary means, and when justice and reason require that some mode should exist of redressing a wrong, or an abuse of any return whatever.” Article 830.

True it is that a great many cases can be cited wherein mandamus will not issue where there is an adequate and sufficient remedy afforded by appeal; but the converse of that proposition is equally true, and it has been decided that in case an appeal from an order refusing an injunction wonld be either an inadequate or ineffectual remedy, mandamus lies to coerce the granting of injunction. State ex rel. Murray vs. Judge, 36 An. 582; State ex rel. Railroad Company vs. Judge, 35 An. 218.

That rule applies, particularly, to courts of record; but it must apply with stronger force to those not possessing any record, like those of justices of the peace. On account of their keeping no records, greater abuses are likely to arise; and hence there is the greater need for stricter surveillance over them, and for the prompt and speedy exercise of repressive measures to prevent same, and keep them within proper bounds.

We are of opinion that the case presented was one which came within the jurisdiction and competency of the respondent herein; and we therefore decline to interfere therewith.

Id is therefore ordered and" decreed that the preliminary writs be annulled and set aside, the relator’s demand be rejected, and all costs taxed against them.

On Application for Rehearing.

Relators complain that the respondent made a writ of mandamus peremptory, commanding Owen Lanares, justice of the peace, to grant a writ of injunction, restraining an execution sale under a judgment which he had theretofore rendere dagainst Joseph Bradford in their favor; said justice of the peace having declined to do so for the reason that “ the ground alleged for the writ was negatived by said judgment on its face.’’

The ground assigned for the injunction was and is, that no notice of the trial had been served ” upon the judgment debtor, plaintiff in injunction; and the relators allege, as cause for the writ of certiorari to issue, that “ the petition for injunction was in direct conflict with the decree of (his) court ” — the perfect regularity of the proceedings in his court, on the face of the papers, affording suffi - cient warrant for his refusal of the writ.

The drift of counsel’s argument is (1) that the remedy of defendant Bradford, if any he had, was.by appeal; (2) that his proceeding by injunction was a collateral attack upon the judgment.

First — If, as relators allege, the records in the justice court, and the judgment therein rendered, negative the defendant’s complaint in terms, could an appeal have afforded an adequate and sufficient remedy?

We need not affirm that it was, or was not, in the instant case; as in the exercise of the supervisory power of this court by certiorari it can grant relief only when some illegality or nullity in the proceedings has been pointed out.

The employment of the writ of mandamus by the respondent was the exercise of an ordinary, not an extraordinary jurisdiction.

And in State ex rel. Murray vs. Judge, 36 An. 578, we said the court “ will issue the writ in its discretion, according to the exceptional features of each case submitted.”

Consequently, if it be conceded that it was a doubtful proposition whether or not a proper case was presented for the allowance of an injunction, the respondent was of that opinion and made the mandamus peremptory; and, on the disclosures made in the record, we do not feel warranted in saying that, in so .doing, he abused the discretion which the law accords him.

Second — As to whether the proposed injunction proceeding was a collateral attack upon the judgment which was assailed, is foreign to the issue raised herein, as it neither appertains to the illegality of the mandamus, nor to the jurisdiction of the respondent. On the trial of the injunction it might so appear; but the question lies beyond the domain of our supervisory jurisdiction. In this case we are dealing with the judge who made the writ of mandamus peremptory and not with the injunction proceedings.

Rehearing refused.


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    No. 12,636.
    Solomon Reinach and Santo Oteri vs. New Orleans Improvement Company, Limited.
    A tax sale based on assessments against the recorded owner holding under titles conveying ownership bind all previous owners by whose acts or acquiescence such titles are placed on the public records, thus becoming guides for the assessors.
    One who witnesses an act of sale is precluded from afterward asserting title to the property against the purchaser who accepts the conveyance in part on the faith implied by the witness’ signature. Bigelow on Estoppel, p. 451.
    An act of sale absolute in form, though the real consideration be the indebtedness of the vendor to the purchaser, binds the vendor as effectively as if the price was paid in cash.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Benjamin Ory for Plaintiffs, Appellees.

      Carroll & Carroll for Defendant, Appellant.
    Argued and submitted March 7, 1898.
    Opinion handed down April 4, 1898.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from the judgment condemning it to pay plaintiffs one-half the price of property bought by them under the agreement for the purchase on the joint account of the plaintiff and the defendant.

Under this agreement for the purchase of the property on joint account, the plaintiffs became the purchasers, but objected to the title tendered, and refused to pay the price. This led to the suit against the plaintiffs to compel compliance with their purchase, in which suit the objections to the title were deemed insufficient by this court, and plaintiffs were held bound to take the title and pay the price. Savings Bank in Liquidation, 48 An. 1428. Thus compelled to pay, the plaintiffs bring this suit for one half the amount paid, for which they claim defendant is bound by the agreement under which the property, was purchased.

The petition avers the agreement with the defendant to buy the property on joint account, that plaintiffs have paid ihe price under the judgment condemning them to take the title, and claims that defendant be decreed to pay one-half the price according to its agreement. The answer is the general issue, with the defences of defects in the title, and that defendant, no party in the suit, resulting in the judgment condemning plaintiff to accept the title, is not bound by that judgment.

We are inclined to think defendant is bound by the judgment condemning plaintiffs to take the title. When that suit was brought the purchase had been made in plaintiff’s name; under the agreement they were to buy on joint account with defendant. Plaintiffs defended the suit for the joint account. The suit against plaintiffs was of some months’ duration. The defendant claims it had no notice of that suit. In the statement of facts it is admitted the president and attorney of the defendant company would testify they were not notified. On this question of notice in addition to the pendency of the suit for months affecting defendant’s liability brought against and defended by the associate of the defendant in the purchase, there is the testimony that one of plaintiffs communicated with the president of the company in reference to the suit and its defence. Against this testimony there is only the admission the president and attorney would testify they had not been notified. Under our jurisprudence res judicata prevails although the party resisting that exception was not a party to the record, if in point of fact identified in interest with the defendant, he assents to the defence for both, by the defendant who is sued, and the assent may be implied. Johnson vs. Weld, 8 An. 126. After that defence has failed, it seems to us, under the circumstances of this case, the defendants are not free to dispute their share of the liability arising from their agreement to buy the property on joint account, and after their associate in the agreement has been compelled to pay the whole price of which defendant was to bear one-half.

But we have considered the defences' to the title, the defendants contend were not passed on in the suit to compel plaintiffs to accept the title. The property, it is conceded, belonged to J. Q, Bailey, and by conveyances from a number of parties claiming to be his heirs, was sold to John W. Bailey, by acts dated one in 1845 and another in 1859. John W. Bailey conveyed to Warner Van Norden in 1868. Under two assessments against Van Norden, the property was sold for taxes in 1876; then conveyed by the tax sale purchaser to the president of the Louisiana Savings Bank and his acquisition has been adjudged against him, to have been for the bank. Raymond vs. Palmer, 47 An. 786. The plaintiffs hold by sale from the bank. The alleged defects are, that in these earlier conveyances from the Baileys to John W. Bailey, there is no proof of the heirship of his vendors; besides some of the titles are not in authentic form and the Isignatures are not proved, and further the acts, it is insisted, nominally on sales, are in the common law form of a nominal consideration, and love or affection and hence to be deemed donations liable to redaction in the event that these vendors of 1845 and 1859, should leave forced heirs. Van Norden’s title is alleged to be defective, because his wife living in 1876 died subsequently; that Guthrie, the purchaser at the tax sale, acquired for Van Norden, conveyed to Palmer for the bank at Van Norden’s request; and it is claimed the bank held the title not absolutely but only to secure the indebtedness of Van Norden, hence the ownership continuing in him> it is insisted, at his wife’s death, the title to one half vested and is now in her hair.

We think the defects supposed in the title of John W. Bailey, the vendor of Van Norden, whatever their intrinsic force or weakness, must be deemed removed by the tax sale of 1876. The titles of all previous owners became merged by their own acts and long acquiescence in John W. Bailey. For all purposes of taxation he stood the recorded owner. The tax sale on the assessments against him bound previous owners as it bound him, unless for defects neither alleged or proved in the tax sale. Any subsequent purchaser could successfully urge the tax sale against any claim of the Baileys if there were any basis for such claims.

The bank holds under the tax title to Guthrie; Van Norden witnessing the act, an estoppel against him from ever disputing the conveyance. Bigelow on Estoppel, p. 451. It is claimed in the argument that Guthrie was only a nominal owner purchasing for Van Norden, and at his request conveying to the bank. Whether nominal or not Van Norden, the owner against whom the taxes are assessed, is bound by the conveyance to the bank. It is claimed, too, that the conveyance to the bank was to secure Van Norden’s indebtedness. Raymond vs. Palmer, 47 An. 786. It was none the less an absolute transfer, and we know no reason why the act does not avail as a sale, because the real consideration was an indebtedness to the purchaser. This conveyance by Guthrie to the bank was in 1876, and in respect to the right that Van Norden may have had, his signature to the act concluded him the same as if he had been the vendor. His wife died subsequently, and hence never was vested with any title. His quitclaim we find in the record of date, 1896, it is true would not bind his wife’s heir if she had any claim, but practically before his wife’s death Van Norden had divested himself of title. The quitclaim is an additional though unnecessary ground to maintain the title of the bank, and that of plaintiffs derived from the bank.

It is therefore ordered, adjudged and decreed that the defendant be credited with four hundred and thirty-three dollars and forty cents deposited by him, and as thus amended the judgment of the lower court be and it is hereby affirmed.


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    No. 12,699.
    George H. Russell vs. Shreveport Belt Railway Company et als.
    It is usual to have a motormau and conductor on a train consisting of a car and trailer carrying passengers.
    Approaching a railroad crossing on a steep grade the train of defendant company was not stopped owing to the fact that it was not controlled by the motorm an.
    The result was that it rail into the passing train of the Texas & Pacific Railway. At the moment of the collision plaintiff, a passenger on defendant’s train leaped off and was injured.
    The duty was, by the ordinances of the municipality and rules of safety, imposed upon the defendant train to stop at the crossing. It was not stopped.
    The ordinary care due passengers was wanting. There was only a motorman and no conductor on the train to properly apply back brakes. There was actionable negligence.
    A PPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.

      T. Alexander for Plaintiff, Appellee.

      Joel Edward Dean, THse & Herndon for Defendants, Appellants.
    Argued and submitted March 23, 1898.
    Opinion handed down April 4, 1898.
   The opinion of the court was delivered by.

Breaux, J.

This was a suit by plaintiff against defendants for damages for personal injuries.

Plaintiff, and his son, a minor, were passengers upon the train of the defendant company.

The train was made up of two cars; one a motor, and the other a trailer.

The Texas & Pacific Railway Company track in the city of Shreve - port is crossed nearly at right angles by the defendant Shreveport Belt Railway Company, an electric street railway.

About the distance of a square from the intersection of the two roads the incline or descent over which the cars of the defendant company move is abrupt and steep.

The train of the Texas & Pacific Railway Company was on schedule time.

In the evening, while it was still daylight, the train of the defendant company, in charge of one man only, the motorman, descended without any restraint down the incline to the crossing of the two roads and ran into the passing train of the Texas & Pacific Railway Company, moving over the crossing place at the time of the collision. In this collision the front platform of the street cars was crushed in, and the train was greatly jarred by the encounter.

There had been a conductor on these cars. He got off (a short distance prior) some distance from the place of the accident, and left the car3 in charge of the motorman alone; who only had a few days’ experience as motorman.

No fault was found with the Texas & Pacific Railway Company’s passing train.

Petitioner it appears (just before the train on which he was a passenger struck the Texas & Pacific Railway Company train) jumped off, and fell on his shoulders. One of the shoulders was partially dislocated and an arm bruised.

He underwent medical examination at the trial before the jury, and there was external evidence of the injury which the physicians in their testimony of record described. After the accident he had been under treatment of physicians, who also testified in regard to the injury.

The son of plaintiff, who was sitting in the car with petitioner, did not leap to the ground. He was only slightly injured.

The motorman also jumped, just prior to the accident, and a moment before the collision.

There were passengers who remained in their seats, who did not attempt to jump out, who were not injured.

The sheriff was made a party defendant. The record discloses that at the time of the accident the defendant company was under seizure, made by a judgment creditor. The operations of the road were conducted under an agreement with the sheriff.

The judgment under which the seizure had been made, we deem it proper to state in justice to the defendant company, although the fact has no bearing in this case, was subsequently paid, and the prop - erty was released from seizure.

The case was tried by jury. The verdict for the plaintiff was for one thousand dollars.

From the judgment of the court affirming the verdict, the defendant appeals. Before the court plaintiff, in his answer to the appeal, applied for an increase of the amount allowed.

It is clear in our judgment, that defendant did not; make reasonaable and proper exertions to see before hand and avoid the collision.

The usual signal had been given by the Texas & Pacific Railway Company, of the approach, but this it appears served no purpose; the motorman could nob, or did nob cheek or stop his ears. He lost control of the cars, and could not stop or check the sliding of the cars down the incline in time to prevent the collision.

A short time preceding the accident near the top of the hill, at a point where there was already some incline, just prior to the steep grade, one of the passengers having come to her landidg place, rang the bell; the motorman did not stop the car in obedience to her call.

He applied the front brakes and reversed the current, but this did not stop the car. The wheels, by the sudden application of the brakes, were locked, and thereafter the wheels, instead of turning on the rail down the incline to the crossing, slided down.

The passenger who desired to alight was constrained to remain on the car, until a few moments later, when she, about the time petitioner jumped, also leaped to the ground to escape from bhe danger of the collision.

The evidence discloses that there was no difficulty, or should have been none, in stopping the cars at the place of the accident. The evidence also shows that the brakes were in excellent condition, they were applied with sudden force to the front car, and the effect was to lock them and cause a slipping of the wheels on the rails as just stated.

There was no conductor to timely and properly apply the back brakes to the rear of the second car. The momentum of the trail car thereby added to the trouble. A lad who was a passenger on the trail car jumped to the back brake and tried to help the motorman by applying them. This did not suffice to prevent the collision, nor did it have the effect of relieving the defendant company from the responsibility.

There was, as we take it, absolute necessity for the presence of a conductor to assist the motorman, who had only been a short time in the service o'f the company.' The municipal regulations of the city require, as well as the common rules of safety, the motorman to stop the cars at the crossings. There was manifestly negligence on the part of defendant, and an amount is due for the injury. Street car companies must ■ exercise reasonable care to provide sufficient number of men to properly move and operate its cars.

This brings us to the question of the amount of the damages which should be allowed.

Plaintiff, a few days after having received the injuries for which he seeks to recover damages, served as a juror in a jury case which sat four days.

He did not ask to be excused from jury service and was not heard to complain, as far as the evidence discloses, of his injuries during the four days of his service on jury. With reference to jury service, and consequent inference, it was urged by defendants that the injuries were not as great as contended by plaintiff, who did not at all apply to the court to be excused.

We can only say, it is not surprising that defendant made proof of the service of the plaintiff as juror, and contended upon that ground that the injuries were not as great as alleged. A citizen very seldom thinks that an accident of any sort is not excuse enough for exemption, by order of pourt, from jury service. Yet there may be exceptions. It may be that petitioner is of the number who serve on jury, though not .well enough to attend to business of their own. If the evidence was not conclusive on this point, we would be loath to believe that petitioner was an exception. But the evidence of injuries received was ample to overcome all presumption arising from service on jury a short time after the accident.

It (the injury) may not have been as great as alleged; it remains that petitioner was injured and suffered pain. The facts with reference to damages are not quite as controlling in this ease as they were in the case of Flournay against Shreveport Belt Line, just handed down. We therefore do not change; as to the amount of the verdict of the jury and the judgment of the District Court.

The judgment has given effect to the agreement to which we have referred; entered into for the protection by the sheriff who was temporarily in charge of defendant’s railway.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is affirmed.

Blanchard, J., recused, having been of counsel. *