author: Watkins, J. Blanchard, J.

text:
    No. 12,962.
    State ex rel Rose O. Burke, Executrix, vs. Citizens’ Bank of Jennings, Louisiana.
    Syllabus.
    A shareholder, or other person with a laudable object to accomplish, or a real and actual interest upon which to predicate his request for information dis closed by the books of a bank, is given by the fundamental law, the right to-Inspect them.
    The claim, that the right of inspection is strictly personal to the shareholder, and can not be exercised by another for him, and in his stead, as an agent or executor, is without force; for, if that were true, the possession of the right would be futile in many instances.
    A by-law of a corporation which provides, that no stockholder or other person shall have the right to inspect the books without special authority from the board of directors, must be subordinated to the provisions of the charter and the general and fundamental law.
    On Reiieaiung.
    While, in a proper case, an accountant or expert may be appointed by the-court to assist a party in interest in the examination, the law gives him the right to make of the books of a bank or other corporation, no part of the compensation to be paid such expert should be assessed against the defend- : ant bank or corporation.

      ON APPEAL from the Twelfth Judicial District Court for the Parish of Calcasieu. Bead, J.

      Behwing & Moore for Plaintiff and Appellee.

      Gline & Gline for Defendant and Appellant.
    Argued and submitted December 21, 1898.
    Opinion handed down January 9, 1899.
    Judgment amended and rehearing refused February 20, 1899.
   On the application for rehearing opinion-by Blanchard, J.

The opinion of the court was delivered by

Watkins, J.

The relatrix, as executrix of Dr. E. IT. Burke, deceased, instituted suit in the District Court coupled with an application for a writ of mandamus, to compel the respondent bank to permit her to have view and to make an inspection of the books of the bank, alleging that the deceased,, at his death, was the owner and possessor of fifteen shares of the capital stock of the bank, and that the estate under her administration is still the owner thereof.

She avers, that, under the Constitution and laws of the State, she-has the right to inspect and examine the books of said bank for the purpose of ascertaining, amongst .other things, the amount of capital stock subscribed, the names of the owners of stock, the amounts owned by them respectively, the amount of stock paid up, the transfers of stock and the dates thereof, and the amount of assets and liabilities of the bank.

She further avers, “that said right is valuable, and the exercise-thereof necessary to enable her to ascertain the real value of said stock, what, if any, dividends are due thereon, the condition of said estate in account with said bank, the solvency or .insolvency thereof, and the best interests of said estate in connection therewith.”

She alleges that due demand was made upon the legal custodian of said books and assets, “for permission to make an inspection and examination,” and that said demand was peremptorily refused; and that said refusal was a denial of justice, and “left her without, remedy by the ordinary course of law.”

For answer, the respondent pleads the general issue, and then .specially denies that the relatrix “in her capacity of executrix, or in any other capacity, has a right to examine or inspect the books of said bank, or that the exercise of the said pretended right is necessary to subserve the interests of the succession of the said Burke; or that he ever demanded the right to examine the books of the bank.”

lie alleges, that the relatrix, personally, is unfriendly to the bank, and that she does all of her own business through another bank, and persistently seeks to deter her friends from patronizing the respondent bank.

That she is not a stockholder of said bank, and has no interest in the conduct or management of its business; and, that, being advised of her unfriendliness, it fears and has just grounds to apprehend “the damage she might be able to do respondent’s business, if permitted to examine the books of the bank, where she could learn the names of its customers, their financial standing in the community, and other business, secrets the divulgence of which would be ruinous to the business interests of the respondent.”

The further averment is, that the relatrix “persistently follows, in her business affairs, the advice of one L. M. Valdetero, who is notoriously unfriendly to the interests of the respondent hank; and that he is plaintiff in a suit now pending before your honorable court, wherein he seeks to recover ten thousand dollars, as alleged damages against the respondent.”

That “the monthly sworn statements of the affairs of respondent bank contain ample information to all those interested in said bank as to its financial condition, the value of its stock, what dividends are due thereon, and as to its solvency; that moreover, the cashier of said bank has offered and still stands ready to furnish plaintiff a full and complete statement of the account of the succession of E. M. Burke with the said bank.”

Respondent further avers, that under a by-law of the bank, “no stockholder or any other person shall have the right to inspect the books of the bank without special authority;” and that no such authority was ever applied for, or granted by the boaz-d of directors of the hank.

That said by-law is in strict accord with the custom and usage 'among banks, and that such application is and was a condition precedent to permission being granted for an examination by other than regular officers of the bank; and that, if the relatrix did malte demand upon the president or cashier of the bank for permission to make an. examination of the books of the bank, they were wholly without authority to grant the request, without the sancation of the board of directors being first obtained.

The case was tried and decided in favor of the relatrix, and the-writ of mandamus was made peremptory, and from that judgment,, the respondent has prosecuted this appeal'.

The transcript presents us with a brief statement of facts, which is-herewith transcribed in part, viz.;

“That at the time of his death, E. II. Burke was a stockholder, and' that the estate is still owner of fifteen shares (one thousand, five hunred dollars) of stock in the Citizens’ Bank of Jennings, La.

“That Mrs. Burke, executrix, accompanied by L. M. Valdetero, called * * * at the bank, and asked to be allowed to inspect and' examine the accounts of said E. M. Burke with said bank on the bank’s books, etc.

“That the cashier states that she only asked to examine Dr. Burke’s-account, (though) all agree that ho refused; and that he was and is the custodian c-f the books of the bank.

“That the evidence shows, that an effort was made to see the'president, but that he was absent from the parish.

“The evidence shows, that L. M. Valdetero has a suit against the-bank, and is unfriendly with the cashier, but friendly with the stockholders and officers of the bank.”

On this state of the pleadings and evidence, the cuestión for decision is, whether the relatrix is entitled to the relief she demands, and which was granted by the judge a quo.

The first and principal point taken by the counsel for respondent is, that the relatrix is- without interest as a stockholder, and for that reason, without right to demand an inspection of the books of the' bank, she being merely the executrix of a deceased stockholder, and' without any personal right of examination.

The Constitution of 1879, made it the duty of all corporations organized or doing business in this State under the laws or autho’-’ty thereof, to have and maintain a public office for the transaction of its-business, “and, where shall be kept for public inspection books in which shall be recorded the amount of the capital stock subscribed), etc.” Const. of 1879, Art. 245.

iii the recent decision of this court, in State ex rel. Bourdette vs. Gaslight Co., 49th An. 1566, it was held, that the right conferred by that article secures to stockholders of a corporation the right to inspect its books, and, if the right of inspection be unreasonably denied, mandamus would lie to enforce it; but the court said that “by ‘public inspection,’ is meant not the inspection of the idle, the impertinent, or the curious — those without any interest to subserve, or advance, or protect.

“It was never contemplated that any, and everybody, as the whim may seize him or them, should be permitted to walk, into the office of the company, or corporation, and pry into its affairs. But a shareholder, or other person with a laudable object to accomplish, or a real or actual interest upon which to predicate his request for information disclosed by the boohs, is given by the fundamental law itself, the right to inspect them.” (Our italics).

In our opinion the relatrix, as the executrix of a deceased shareholder of the stock of the respondent bank, has brought herself within the scope and plain intendment of that decision, and thus disclosed an interest sufficient to justify a resort to mandamus.

Indeed, we can perceive no' reason why the person representing, as executrix, the deceased shareholder, should not have the same right of inspection pro hae vice, as the latter had while living.

That she is not personally a shareholder of the respondent bank, and perhaps is a shareholder of another bank, could not be reasonably considered as excluding the right of the estate, altogether; nor do we consider the particular danger pointed out in the defendant’s return as likely to result from the inspection proposed, as sufficient to justify a refusal of relief to the executrix, altogether.

Of course, proper care should be taken in the exercise of the right of inspection accorded to her, that the interest of the bank be amply protected and safe-guarded from idle curiosity or undue inquisitiveness into the private affairs, not appertaining to the legitimate objects to be attained by the inspection.

Nor should the one examining into the affairs of the bank be permitted to examine into the matter of depositors’ accounts, to find out who are depositors; if any one is a depositor, the amount to his credit, or anything connected with private matters of depositors.

Article 273 of the Constitution of 1898 is identical with that of Article 245 of 1879.

In Legendre vs. Brewing Association, 45th An. 669, a similar interpretation was placed upon the latter article as was dene in the Bour■dette case, and in the course of our opinion, we said:

“The constitutional right to inspect the books (of a corporation, at a reasonable time) cannot reasonably be denied.

“There can be no question that the ownership of stock confers the authority to see that the property is well managed. The exercise of this authority involves primarily the right to examine the books.”

In State ex rel. Martin vs. Bienville Oil Works Company, 28th An. 204, the particular question here presented was decided adversely to the present contention of respondent, thus, viz.:

“The ojection that, if the relator has the right he claims, it is personal to himself, and cannot be exercised by another, we regard as having no force. The possession, of the right in question would be futile if the possessor of it, through lack of knowledge necessary to exercise it, were debarred the right of procuring in his behalf the services of one who could exercise it.”

It seems quite apparent, that this rule is entirely applicable to the ease of an executrix, the denial of right of inspection to whom, would be equivalent to an exclusion of the right of a deceased stockholder, altogether.

On the second proposition which counsel for the respondent submits, with regard to the sufficiency of the demand made by the relatrix to entitle her to relief by mandamus, we are of opinion that the answer should be an affirmative one; for, it is not denied that Dr. Burke was a shareholder of the bank, and a depositor as well, and it is admitted that, notwithstanding she is executrix of his estate, her demand for an examination of the books of the bank, and particularly those containing his account, was peremptorily refused.

The management of the bank seems to have conceded the refusal by the cashier, an act of its own; and, hence, the case is differenced from the case of Legendre, 45 Annual.

We are of opinion, that the point made in the respondent’s answer to the effect that a by-law of the corporation which declares, that no stockholder or other person shall have the right to inspect the books of the bank without special authority from the board of directors, can not prevail against the relatrix.

This question was considered by the court in Cockburn vs. Union Bank, 13 An. 289, and in the course of their opinion, they said:

“Defendant avers, that.by the charter of the Union Bank, and the-laws applicable thereto, the entire management of its affairs and the control of its books and property are confided to a board of directors • who administer the same, and have the right of deciding when, by whom, and for what purpose the said books shall be inspected, except in cases specially provided by law, and that petitioner has in law no-right to demand, at his pleasure, the inspection of the books, etc. * * *

“If the board of directors have the exclusive right alleged to exist in them, they must derive the power and prerogative from the Free Banking laws of the State, or the charter. * * * Defendant has not, however, called our attention to any act of the legislature, to any part of the charter of the bank, or to any of its rules or by-laws, which confer such exclusive authority upon the board of directors, and we are not aware of the grant of any such prerogative, exclusively, to the board of directors.

“A stockholder in a corporation possesses all his individual rights, except so far as he is deprived of them by the charier, or the law of the land; as long, then, as the charter, or the rules and by-laws passed in conformity thereto, and the law, do not restrict his individual rights, he possesses them in full, and can demand to exercise them.

“It cannot be denied that it is the right of every one to see that his property is well managed, and to have access to the proper source of knowledge in this respect.” (Our italics).

Taking that opinion as our guide, it is evident that a by-law, of itself, is not sufficient to vest full power in a board of directors, to decide whether a shareholder may inspect the books of a corporation or not; but that a by-law should be thus authoritative, it must have the sanction of the charier and the general law.

But, in the light afforded by the jurisprudence, interpreting the fundamental law in the premises,'we think both the charter and the law are subordinated thereto.

Our examination of this case has brought us to the same conclusion it did the judge of the lower court.

Judgment affirmed. ■

On Application por Rutteartng.

Blanchard, J.

The court a qua granted the plaintiff’s prayer for an expert to assist her in the examination she desired to make of the books of the bank, which, under the law, she has the right ifc inspect.

The plaintiff had asked for the appointment of a particular person, named by her, as such expert.

The defendant bank, while resisting the demand for an inspection-of its books as herein sought, asked that, in the event the inspections was granted, and the court thought it a proper case for the appointment of an expert to assist plaintiff in the examination, the persons named by plaintiff be not appointed because he was inimical to the-bank, and that some other disinterested and unprejudiced person be' named as such expert.

The court declined to name the party suggested by plaintiff and appointed as expert W. H. Simmons.

The costs of mandamus proceeding were rightly adjudged against, defendant bank, but we do not think any part of the compensation, which will be due the expert should have been charged against the-bank.

The judgment below directs that such compensation be paid jointly' by plaintiff and defendant.

As this expense cannot be reckoned any part of the costs of this’ litigation, and as the examination is a matter desired by plaintiff' alone, and for her benefit alone, the compensation of the expert should be borne by her alone.

In this respect the judgment appealed from is erroneous, and it becomes necessary to correct the same.

It is, therefore; ordered that the former decree of this court, hereinbefore handed down, be set aside, and it is now adjudged and decreed that the judgment appealed from be so amended as to strike-therefrom the award against defendant of any part of the compensation which will become due the expert appointed to assist plaintiff in her examination of the books of the bank, and it is directed that such expense be borne by plaintiff alone; and that as thus' amended, the judgment of the court a qua be affirmed, costs of the lower court to be taxed against defendant, those of appeal against plaintiff and ap-pellee.

Rehearing denied.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,897.
    State of Louisiana vs. William Favre.
    Syllabus
    A constitutional amendment is a legislative suggestion that certain specified things be done through the instrumentality of a vote of the people, whereby a change is to be effected in the organic law of the State; and not that the constitution shall remain unaltered in certain specified particulars.
    That the terms of a statute proposing a constitutional amendment are not sweeping and unlimited is of no consequence if the convention is subse,-quently called upon the lines which are suggested by the legislature, and in , exact conformity with the will of the sovereign as expressed at an election • duly held in keeping therewith, and the delegates duly chosen thereat were ..regularly convened and organized, and thereafter framed and promulgated ■_an instrument which is styled a constitution for the State of Louisiana.
    "It is the duty of this court to accept that instrument as the organic law of the State, and not as an amendment to an existing constitution.
    .2. The accused who takes the stand as a witness in his own behalf, may be cross-examined by the State, and for the purpose of laying a basis for his contradiction he may be recalled for additional cross-examination. State vs. Walsh, 44th Ann. 1122, affirmed.

      &. Whilst the testimony of jurors will not be received to Impeach their verdict, it does not follow that such testimony will not be received to sustain it when assailed. If the jurors are accused of misconduct, they must always show by their oaths, not only in their own vindication, but in furtherance of justice, that they are not guilty of the misconduct charged against •.them.
    ON APPEAL from the Eleventh Judicial District Court for the Parish of Acadia. Dupre, J.

      M. J. Cunningham, Attorney General, and JR. Lee Garland, District Attorney, for the State, Appellee.

      E. P. Vezie and P. S. Pugh for Defendant, Appellant.
    Argued and submitted November 12, 1898.
    Opinion handed down November 21, 1898.
    Rehearing refused February 20, 1899.
   'The opinion of the court was delivered by

Watkins, J.

The defendant was indicted for the crime of murder, convicted of manslaughter, and sentenced to seven years’ imprisonment in the penitentiary; and from the verdict and sentence he prosecutes this appeal.

I.

The first bill of exceptions relates to defendant’s motion to quash, which is based on the following grounds, viz.:

1st. “Because the pretended Constitution of this State, of 1898, under which this defendant was indicted and now held for trial, is unconstitutional and illegal, null and void, for this, viz.: that it was passed and adopted in contraventi.cn of Article 256 of the Constitution of 1879, which provides, that all amendments shall be submitted to the electors for their approval or rejection, etc.;” and further, “that the pretended Constitution of 1898 is a mere amendment of the Constitution of 1879, and is therefore' null and void, never having been submitted to the people as required, as aforesaid.”

2nd. “Because — in the alternative, the first ground of the motion be overruled — the indictment against him is null and void for the reason that the grand jury was not composed of sixteen (16) persons, .as provided by Act No. 99 of 1896, but was, on the contrary, composed •of only twelve persons, which was irregular, null and void, because Article 117, paragraph two, had never become executory, as the legislature has made no provision for putting same in force by providing for the drawing of jurors for the trial of criminal cases in conformity ^therewith.

It appears that the trial judge overruled the motion to quash, on •grounds similar to those stated by him in the case of State vs. Wimberly, now pending before this court; and as the following is given in •the bill, which is signed by the judge, as a fair synopsis of those ■reasons, we will extract same therefrom, viz.:

(1) “That the act calling the convention was in the nature of a ' proposition submitted to the people as to whether or not a convention ■should be held, and if held, that it should be held as provided in the act, a feature of which was, that it would not have to submit its work ;to the people.

“When, therefore, the people voted to hold a convention, they de-clared that it should be held and adopted without submission to "'Sie people, as had beer, specially provided for in the act calling same itogether.”

(2). “The grand jury indicting the accused was the only grand, jury that could have indicted him That portion of Article 117 of the Constitution (relating to grand juries) went into effect upon the-adoption of the Constitution as has already been thrice decided, etc.”'

The first proposition rests upon the hypothesis, that the instrument framed by the Constitutional Convention of 1898, is a mere amendment to the Constitution of 1879; and not having been submitted to the people for their ratification or rejection thereof, same is null and void.

If it be an amendment, counsel's proposition is undoubtedly correct;, but we think it is manifestly incorrect.

The principle contention of counsel in favor of his theory is, that the legislative act which proposed the convention scheme, suggested, certain restrictions to be placed upon the delegates to be thereto accredited, when in convention assembled, and that, in consequence thereof, certain provisions of the Constitution of 1879 were left in full force; hence the present Constitution is essentially an amendment thereof.

Taking a comprehensive view of the question, the exact converse of that proposition would seem to be the correct one; for, in general acceptation, a proposed constitutional amendment is a legislative suggestion, that certain specified things be done through the instrumentality of a vote of the people, whereby a change is to be effected in the organic law, and not that the Constitution remain unaltered in certain specified particulars.

That the terms of the statute proposing a Constitutional Convention, were not unlimited and sweeping, would seem to make no practical difference, as the convention was called upon the lines which werp suggested by the legislature, and in exact conformity with the will of’ the sovereign, as expressed at an election duly held in keeping therewith, and the delegates duly chosen thereto were regularly convened and organized, and thereafter framed and promulgated an instrument which is styled a Constitution for the State of Louisiana.

We deem it to be our duty to accept that instrument as the organic law of the State without any hesitation, or resort to any refined distinctions or subtle argument on the question; and thus aceepírñg same, it is, in our opinion, exactly what it purports to be, a Constitution, and not an amendment to an existing Constitution.

With regard to the second proposition of the motion to the effect,that the grand jury who found and returned the indictment, was only composed of twelve persons, in keeping with the provisions of Article 117 of the Constitution of 1898, and therefore, null and void, for the reason that no statute had been enacted putting same in force — the provisions thereof not being self-operative — we need only advert to the fact that we have decided otherwise in State Vs. Caldwell, 50th An. ante., wherein Mr. Justice Blanchard, speaking for the court, said:

“The Article 117 of the Constitution is self-operative, as shown by its terms, which declare that its provisions ‘shall go into effect on the adoption of this Constitution.’ ”

We have no doubt of the correctness of the ruling of the trial judge in overruling' the motion to quash.

II.

The second bill of exceptions relates to certain testimony which was offered on the part of the State in rebuttal, and to which the defendant, by counsel, objected and excepted.

The statement made in the bill, is of the following purport, viz.:

That after the defence had closed its evidence in. chief, the district attorney introduced a witness in rebuttal, by whom he proposed to impeach the credibility of the defendant, who had been interrogated as a witness in his own behalf, by making proof of previous contradictory statements in relation to the subject matter of the prosecutions; and, that upon defendant’s counsel having entered the objection, that this testimony was inadmissable for the reason that a proper basis had not been laid therefor by attracting- the attention of the witness thereto when he was on the stand, the trial judge sustained the same, and refused to permit the introduction of the incriminating ■evidence, but no bill of exceptions was retained on behalf of the State thereto.

That, thereupon, the district attorney moved the court to recall the ■defendant and replace him upon the stand as a witness for further •and additional cross-examination by the State, so as to enable the State to put him upon due notice of its intention to prove by another witness the aforesaid incriminating facts, by attracting his attention thereto, and to that proceeding- the defendant, by counsel, objected on the following grounds, viz.:

1st. Because the attention of the defendant, Favre, was not attracted to the alleged contradictory statements whilst he was on the. stand and under cross-examination as a witness in his own behalf.

2nd. That it was too late for .the State to attempt the introduction, of such evidence, for the first time, in rebuttal; and that it was, also, too late for the State to recall a witness for the defense, especially the accused, for the purpose of impeaching his testimony.

3rd. That the incriminating statement that is imputed to the dfefendant, instead of being merely matter of impeachment, was in the nature and character of a voluntary confession, “because it went directly to qualify the act of killing, charged in the bill of indictment, and to show, (if it be true) that the defendant acted through malice.”

4th. Because the State, having subpoenaed “the witness Walter Heath, and he being present in court throughout the trial, and having been examined in chief by the district attorney, and the district attorney being aware of the testimony to be given by the witness, had no right to hold up the particular fact, decline to place it before the jury (in the course of this witness’ examination in chief), and use same in rebuttal after both sides had closed their ease in chief.”

5th. “Because, under Article II of the Constitution of 1898, the State had no right to place the accused on the stand and compel him to give' evidence against himself in a criminal case of this nature.” The trial judge overruled all of the aforesaid objections, and the defendant’s counsel retained a bill of exceptions, the following reasons being assigned by him for his ruling, viz.:

“Because the evidence was strictly in rebuttal. The State had put Walter Heath on the stand, and he was told to go on and state all he had heard and seen al the difficulty which resulted in the death of the deceased. This the witness did. The State could not anticipate the defense the accused was going to set up; when, however, he took the stand and testified, in his own behalf, among other things, his regret at what had occurred, his endeavors to relieve the wounded man in caring for him after inflicting the blow from which death was said to have resulted, and.other statements of like nature, surely the State had a right to rebut proof of this fact by showing after the occurrence, when the witness called the attention of the accused to his victim’s condition, he employed the remarks which he is said to have made.

“The district attorney stated at the' time, that knowledge of the rebuttal evidence had only come to his knowledge since the defendant had testified.

“It is elementary, that, for the purposes of contradicting a witness,., he may be recalled in order that his attention be directed to the time, and place of the statements, or' circumstances that are attributed to-him; and this rule applies as well to a defendant testifying in his own-, behalf. He then becomes an ordinary witness, and the alleged prohibition as to his constitutional right cannot avail him, etc.”

The incriminating statement which is made the subject of this discussion, as it is incorporated in the bill of exceptions, is of the following tenor, viz.:

“That shortly after the alleged fatal blow, he, (the witness, Heath)' had heard (the defendant) Favre, say, referring to the deceased, ‘d-- — n-him, let him die, I will pray for him.’ ”

From the foregoing statement it appears, that the defendant’s objections are (1) that the State had not the right to recall him as a1 witness in rebuttal, at all; (2) and, if it be conceded that the State had the right, that it was too late to attempt an exercise of that right on rebuttal for the first time; (3) that the testimony sought to be' elicited from the witness was testimony in chief, and should not have been withheld until after the defendant had closed his case.

In arg'ument and brief, counsel urge the further objection, that the-district attorney had failed, in the opening of his case, to make any affirmative proof of malice in the perpetration of the homicide by the-defendant, that he sought by means of the testimony objected to, to-supply the want of it on rebuttal, contrary to all rules of'evidence;, but nothing of that kind appears in the bill of exception.

The first two propositions are fully met and answered by the opinion' of this court in State vs. Walsh, 44th An. 1122, wherein the same-1 question was examined and decided.

From that opinion, we make the following extract, viz.:

“One of the defendants had testified. The day after he had been-discharged as a witness, he was re-examined by the State. The district attorney stated to the court that he desired to have the accused called for the purpose of laying a foundation for a contradiction.

“The defendant’s counsel objected and assigned as reason that the' accused had been a witness in his own behalf; * * * that he had' testified and had been cross-examined, and his examination closed;' that he could not be recalled to be re-examined. The only objection; was, That the assistant district attorney could not place upon the; .■stand an accused person for any purpose, and particularly after said .accused had testified and retired from the witness stand.1 ”

The opinion then makes reference to similar statutes of other states .allowing accused persons to testify in their own favor, and says:

“It is generally stated, that if an accused chooses to waive the con-stitutional protection in his favor and become his own witness, he .may be recalled as any other witness in this case. He may be examined, and cross-examined, impeached and corroborated, etc.”

That was the interpretation this court placed upon the phrase, “that if the accused avails himself of this privilege, he shall be subject to all the rules, that apply to other witnesses, etc.” Section 2, Act 29 of 1896.

With regard to the third proposition, that the testimony sought ti-be elecited from the witness in rebuttal was evidence which should have been introduced in chief, it is sufficient to say, that the jurisprudence of this court on that question is to the effect, that while that is the general rule of evidence, it must yield in its application to the sound discretion of the trial judge, which will not be disturbed except in extreme cases. State vs. Pruett, 49th An. 293. State vs. Spencer, 48th An. 1.

The circumstances which are related in the transcript, sufficiently support the ruling of the judge, and we approve same.

III.

The fourth bill of exceptions relates to the ruling of the trial judge disallowing a motion for a new trial, and the admission of the testi-mony of a petit juror, the tendency of which was to sustain the verdict, and dispute and deny the correctness of the averment of the motion for new trial.

The statement of the bill is, that the district attorney, on the trial 'of the motion, placed on the stand one of the jurors who’had participated in the trial of the cause, by whom he sought to disprove the allegation of the motion to the effect that he, the aforesaid juror, had, previous to the trial, made a bet upon the result of the trial, and was, therefore, “biased, prejudiced and unfit to serve as a juror.”

That defendant, by counsel, objected to any'and all testimony by said juror as a witness, on the ground that he could neither impeach nor affirm his verdict.

It is conceded, that the rule of jurisprudence is, that a juror who participated in the trial cannot be listened to to impeach his verdict; and the argument is, that the legal corollary of that rule is that he cannot be heard to testify to the correctness of his verdict when same is attacked — that being charged with incompeteney and unfitness to be a juror is equivalent to charging the illegality of his verdict.

We have been cited to no adjudication of this court, on this question, and we know of none; but reasoning from analogy, we are of •opinion that the contrary is true.

It would certainly be against public policy to allow a juror, by his ■own sworn statement, to impeach his own verdict, and such is the sense of all authorities. 2nd Thompson on Trials, Sec. 2618.

But that author states that this rule “does not extend to matters taking place out of court.” Id See. 26Í9.

Pie formulates the general rule, thus:

“Whilst the testimony of jurors will not be received to impeach their verdict, it does not follow that such testimony will not be received to sustain it when assailed. If the jurors are accused of misconduct, they must always show by their oaths, not' only in their own vindication, but in furtherance of justice, that they are not guilty of the misconduct charged against them.” Id. Sec. 2628. State vs. Dumpley, 4 Minn. 438. Hackley vs. Hastie, 3 Johns (N. Y.) 252. Taylor vs. Greely, 3 Maine, 204. People vs. Hant, 59 Cal. 490. Cannon vs. State, 3 Texas, 31. Baslow vs. State, 2 Blackford (Ind.) 114. Staunton vs. State, 12 Ark. 810. State vs. Underwood, 57 Mo. 40. State vs. Hastings, 6 N. H. 352. Farrar vs. State, 2 Ohio St. 54.

The rule seems to very generally obtain in other courts of the country, and we can see no reason why it should not be applied in this ■court.

The particular objection which was urged against the verdict is, that one of the jurors accepted a bet on the prospective result of the trial, and was consequently disqualified to participate therein, because he was necessarily biased in judgment; and the argument of defendant’s counsel is, that the particular juror was disqualified and incompetent to sustain, by Ms own evidence his qualification as a juror, on the trial of an application for new trial on the ground of his disqualification on that account.

•The trial judge overruled the objection properly.

IY.

The last bill of exceptions relates to a requested special charge,, which is couched in the following terms, viz.:

“We ask the court to charge,.that if the jury believe from the evidence, that the deceased died from the effects of wounds caused by falling against a door, or against the floor, or from a tumor, or from a fall on the sidewalk; or the jolting in a dray, or from general neglect, or from any or all of the above causes, then you are bound- to acquit the accused.”

The trial judge gave the charge requested, with the follo-ying modification, viz.:

“But I charge you in connection therewi th, that if you find from the evidence, that he (the deceased) died from wounds, or a wound inflicted by Hodges when Favre was acting in concert with him, then they are both guilty. That is to say, Favre is equally guilty as if he had himself dealt the fatal blow, if he was, at the time, present, aiding and abetting Iiodges in the giving of the blow from which the deceased came to his death.”

The objection urged to the foregoing modification of the defendant’s, requested special charge is, that it was misleading and not a full and acemate exposition of the law bearing on the subject matter in controversy.

We entertain a contrary view, and regard the same as accurate and sufficient, and approve of the ruling of the judge.

An attentive examination of all the bills of exceptions has satisfied1 us that they disclose no reversible error.

Judgment affirmed.


author: Breaux, J.

text:
    No. 13.055.
    State of Louisiana vs. Norris Carter et als.
    Syllabus.
    1. A continuance on the ground of absent witnesses was properly refused, as-the defendants had not complied with Act 69 of 1S94, (there were six of their witnesses present).
    2. The refusal to permit defendants to cross-examine a witness sworn on behalf of the State, was not error; the witness was called to the witness stand in error, and had not been examined at all as a witness in chief.
    3. A witness may be examined in rebuttal of an alibi, and the State was not bound to offer the testimony offered in rebuttal on the examination in chief.
    4. The refusal to permit the testimony objected to, to be reduced to writing is. not reversible error, where it is manifest that the testimony would not add anything to the question raised.
    5. A witness, unless proper foundation is laid for admitting testimony, can not confirm his testimony by swearing to statements previously made to third, persons out of the presence of the accused, and on this ground only, the-trial court’s ruling is not sustained.
    6. Error in describing the property charged to have been stolen, is not timely,, when urged after the verdict.
    ON APPEAL from the Twenty-First Judicial District Court for the Parish of St. John the Baptist. Rost, J.

      M. J. Cunningham, Attorney General, and Robert J. Perkins, District Attorney, (J. L. Gaudet of counsel) for Plaintiff and Appellee.

      PL. N. Gautier for Defendants and Appellants.
    Submitted on briefs February 11, 1899.
    Opinion handed down February 20, 1899.
   The opinion of the court was delivered by

Breaux, J.

An information was filed against Norris Carter, MosesRuffin, Buddy Carter, Mel Preston, Arthur Reed, Walter Tanner and Walter Banks, charging them with having committed petty larceny.

On motion of the District Attorney, a nolle prosequi was entered as to Walter Banks. He was afterward called and examined as witness-in the case.

A severance, on motion of their counsel, was granted to Norris and Buddy Carter. They, Norris Carter and Buddy Carter, were then put on their trial, found guilty of larceny, and sentenced to twelvemonths’ hard labor in the penitentiary.

The judge refused to order a continuance, applied for by the accused on the ground of the absence of witnesses.

To this refusal, the accused 'took a bill of exceptions; and the ground of the bill presents the first question for our decision.

The defendants, through their counsel, in their bill of exceptions,. set forth that their witnesses had been served with subpoena, and ■should have been present.

The district judge’s reasons are; that the defendants did not comply with Act 61 of 1894, and that in their application for a continuance, they failed to allege that there were no witnesses present, who could testify to the same facts as would the absent witnesses; that it follows, if they had been present and had testified, their testimony would have been cumulative. The continuance was refused.

As relates to the Act of 1894, defendants, through counsel, insist that the word “each side” means, as many sides as there are accused.

The statute limiting the number of witnesses in criminal cases sets forth, that in all criminal eases on final trial, each side shall summon no more than six witnesses, unless on formal application, it is made to .appear that an additional number is required to meet the ends of justice.

The intention of this statute certainly was, to lessen the number of witnesses in each case. The decrease of the number of witnesses would not amount to much, if each accused had a right to as many as ■six witnesses.

The defense consists of two accused, jointly charged -with larceny, and representing “a side” of the case.

The question cannot, in our judgment, be treated as though there had been a severance. If we were to grant the contention of the defendants, it would be, as relates to this question, as if each had been separately, tried. In that case, in the language of the statute, the State would have the right to as many witnesses as each defendant, in order to meet “each side,” or each ease. That, we take it, was not the intention in enacting the law.

Moreover, the defendants have no cause to complain on this ground, for the reason, that they did not set forth in their affidavit for a continuance, that the testimony sought by them was cumulative.

It is well settled that a continuance on the ground of the absence of witnesses, is properly refused, when it does not appear that the testimony is not cumulative. The accused failed to swear that there were no witnesses in court who would swear to the same facts.

The action of the trial court in denying the motion for a continuance will not be reversed without showing, that the court has abused its discretion. We have not discovered in this case, that the court' •abused the discretion with which it is intrusted.

In the second bill of exceptions, the accused complained of the court’s ruling, in refusing- to permit them to cross-examine a State witness, duly sworn.

It appears that the witness called by the State immediately after she-had been sworn, declared that she knew nothing of the case; she was, thereupon, withdrawn by the State. She, it seems, ha3 been called in error. The defendant then requested to cross-examine the witness. The court refused to permit him to cross-examine the witness, but reserved to the defendant the right to call the witness for the defense. The witness not having been examined at all in chief, there was no-ground for the cross-examination. It is difficult to discover wherein the defendants have been prejudiced, inasmuch as they were at-liberty to call her as their witness; besides, the witness had not testified against the accused at all.

“The opposite party may cross-examine a witness to any facts stated-in his direct examination; without this, there is no ground for cross-examination.”

“Whenever any witness 'has been examined in chief, the opposite party ha's a right to cross-examine.” Rice on Evidence, page 335, vol. 3.

“Cross-examination relating to cumulative matters and immaterial' issues, is largely within the discretion of the court, and its ruling is-not subject to review.” State vs. McGee, 36th An. 206; State vs. Ailen, 37 An. 637.

The narrative contained in the third bill of exceptions shows that defendant examined witnesses to prove an alibi.

The plaintiff called a witness in rebuttal; to disprove the alibi. Counsel for the defendant objected to the. testimony. The court overruled the objection, and admitted the answer, as it is made to appear that the testimony was in rebuttal, i. e., “to the effect that the accused were present at the commission of the offense.” Quotation from the bill of exception. __

We are not of the opinion that the ruling was incorrect.

The fourth bill of exceptions was taken to a ruling of the court, allowing a witness to testify that he had reported the killing and stealing- of the animal to the one in whose charge it was at the time.

The judge, in his relation of the facts, incorporated in the bill of' exceptions, shows that the witness was asked to state all he knew about the case, and that in answer to the question, the witness said that he-■went next morning after the theft is charged to have been committed, ■to notify the owner’s agent that the calf had been killed by accused; ■that the testimony was objected to as made out of the presence of the .accused.

We have given our closest attention to the ruling, and have found .it impossible to agree with our- learned brother of the District Court.

It is well settled that a witness cannot corroborate his statement as .a witness by his own declaration as a witness, that he, on a former occasion had made the statement to another, and a third person, out •of the presence of' the accused. It is not shown that the testimony ■of this witness was attacked. As we take it, no foundation was laid lor admitting this testimony.

Going into particulars, it is in evidence that Walter Banks, the witness, was indicted jointly with Norris Carter and his son; that on proper motion on part of the State, a nolle prosequi was entered on behalf of Banks, and that afterwards, he (Banks) was called as a witness by the State, and testified against the accused, who were convicted.

We quote, as relates to the facts, the following statement from the brief filed by the Attorney General and other counsel, to-wit: “Mrs. Dodson had charge for Mr. Chaffe of the cow and the bull calf, which latter was the subject of this larceny. Walter Banks is the nephew of Norris Carter, one of the accused. He had been working for Mrs. Dodson. He had been charged as a principal in this larceny, but the case as to him was nolle prosequi. When examined as a witness, he was asked to relate what he knew of the case. He stated among •other things, that the' next morning he went to notify Mrs. Dodson ■that the calf had been killed by his uncle, and his cousin.”

On redirect examination he was asked to repeat what he told Mrs. Dodson.

In justice to the prosecution we will add the following, which we 'have not succeeded in finding in the transcript. It is doubtless true as a fact, but it is also true that we have not found it of record •although we searched for it, viz.:

“This was an eye-witness to the killing and the- stealing of the calf. Mrs. Dodson had been the cause of the affidavit being made against •the accused.”

If Banks was one of the principals, as we take it he was, he could •confirm his own testimony by proof of former statements made by him, according with those made at the trial, if his credibility had been .attacked either on cross-examination, or by independent evidence. Even in this case, the question is much controverted. Roscoe, page 97.

Here, there is not a word going to show that his credibility was attacked, either on cross-examination or by witnesses called for the purpose; but should it be taken that his testimony is that of a witness, and not that of an ex-principal, then the following applies:

“When evidence has been offered tending to show improper motive •or recent fabrication on the part of a witness, former statements made by him may be offered to sustain his statements at the trial.”

There is not a word of record showing "that the least attack was made to assail the testimony of the witness.

The rule quoted from Roscoe and then Beck is always regarded as •controlling.

In Beck, we find a long list of decisions, both State and Federal, among them, 11th Howard, p. 480.

The charge, in our judgment was correct, and the verdict responsive to the charge.

TKe ground of defense, that there was a lack of description of the animal stolen, came too late after verdict, and it, also, was properly ■overruled.

In our opinion, all the rulings were correct, except the ruling permitting the witness to testify over objection made as to his prior statement to a third person; This view renders it necessary to remand the case for another trial.

It is, therefore, ordered, adjudged and decreed that the verdict, sentence and judgment appealed from be annulled and set aside as not good in law, and that the defendants be remanded in custody subject to the orders of the trial court.


author: Miller, J.

text:
    No. 12,994.
    Desire Hayes et als. vs. J. C. Dugas et als.
    Syllabus.
    <(1) In a suit by married women the mere statement they are Joined and assisted by their husbands will not suffice. C. C.. Art. 14 ; C. P., Art. 106; 2nd Ann., p. 140 ; 7th Ann. 477: 11th Ann. 265.

      (2) The suit against sureties on' an administrator’s bond will not be defeated, because the creditors have not notified their judgment against him to the administrator, or called on him lor a statement of the succession funds in his hand, there having been a final account filed by the administrator and. homologated showing the succession funds in his hands and fixing the amounts due the heirs.
    (3) Our law requires belore suit can be brought against sureties on the bondsol administrators all necessary steps shall be exhausted to procure payment from the administrator; the final judgment against the administrator, the execution returned nulla bona alter the diligent effort to make the money and calls on the parties constitute a substantial compliance with the requirement as to suits ol this character. R. S., Section 3715; C. C., Art. 3006; 4th Ann. 486; 35th Ann. 390.
    (4) The sureties will not be discharged because ol the mortgage on the records in lavor ol the individual who was the administrator, securing a note payable to him, it not being shown the plaintiffs could have seized the note extant in the hands ol the holder, whoever he might be. 6th Ann. 530; 9th Bob. 504; 1st H. D. Vide Execution ol Judgment, p. 345, No. 5.
    Oft APPEAL from tbe Nineteenth Judicial District Cornt for the-Parish of Iberia. Voorhies, J.

      Foster & Broussard for Plaintiffs and Appellants.

      Marlin & Voorhies for Defendants and Appellees.
    Argued and submitted January 11, 1899.
    Opinion handed down February 6, 1899.
    Rehearing refused February 20, 1899.
   The opinion of the court was delivered by

Miller, J.

The defendants are sued as sureties on the bond of an administrator, and the plaintiffs appeal front the judgment against them.

The plaintiffs are the heirs of the deceased. The record shows the homologation of the final account of the administrator, exhibiting the amounts in his hands allotted to the plaintiffs, the issue of an execution against the administrator for these amounts he was directed to pay the plaintiffs and the return nulla Iona on the execution.

The demand of the plaintiffs is resisted on the grounds that two of' the plaintiffs are married women not authorized to sue, that plaintiffs have shown no notification of the plaintiffs’ judgment to the administrator or call on him for a statement of his condition as administrator, with regard to the succession funds as directed by the articles 1053, 1056, of the Code of Practice, and that plaintiffs have discharged, defendants by not subjecting to the demand they make" on the sureties, their property plaintiffs it is claimed could have seized.

The defence in part is based on the statutory requirement that there; is no recourse against the sureties on judicial bonds until the necessary steps have been unavailing against their principals. Civil Code, Article 3066; Revised Statutes, Section 3715. These necessary steps have had frequent exposition in our jurisprudence, and include in the-main the recovery of final judgment against the administrator or executor, the issue of an execution, and the return nulla bona, after due-diligence to make the money and the calls on the parties. Nicholson vs. Ogden, 4th Ann. 436; Gaillard vs. Bordelon, 35th Ann. 390. The argument insists that in this case, it is equally indispensable to maintain the plaintiffs’ suit to show the notification to the administrator of the judgments, and the call on him for the condition, or rather the amount of the succession funds in his hands directed by the Code of Practice. Articles 1053, 1055, 1056. It is not easy to appreciate the necessity in this case of such notification or call. We are referred to the decision in Wilson vs. Murrell, 6th Rob. 68, as supporting this contention, but in that case it seems the account of the administrator was ordered to be amended, and there was, as we read the decision, only a judgment’of partial distribution. In this condition the Supreme Court held that before the succession creditor could sue on the-bond of the executor, it was essential to notify the administrator of the judgment of the creditor, and call -on the administrator for a statement of the condition of the succession funds in his hands as directed by the articles of the Code of Practice on the subject. In this-case the amount of the succession funds in the administrator’s hands, and the amounts to be paid to the plaintiffs are determined by the final judgment. We perceive in the brief a reference that might be deemed to convey the idea that there are still succession creditors unpaid, but as we read the record the judgment fixes the amounts due by the administrator to the plaintiffs as heirs. Hence, we cannot apply the-articles of the Code so as to require a call for a statement of the succession funds the homologated account furnishes, or to exact a notification to the administrator of a judgment homologating the account rendered by him.

On the other branch of the defence based on the mortgage recorded/ in favor of Norres, securing the promissory note for six thousand dollars, which it is claimed the plaintiff's should have subjected to their judgment, it suggests itself that neither the debt represented .by the note, nor the mortgaged property, could have been subjected to .the plaintiffs’ execution, unless they obtained possession of the note. It is true there was recorded a donation of the note by Norres, but if the note was transferred to the donee, he, in turn, must have parted with it. The plaintiffs made two efforts to seize the note by garnishments against parties they supposed held it as the property of Norres. These efforts resulted in the denial by the garnishees of the possession or control of the note. Finally, the note turned up in the hands of the People’s Bank pledgees, who on their judgment on the note seized and sold the mortgaged property in satisfaction of the debt of the bank. We have no basis to hold that the defendants have been discharged from their obligation as sureties, because of a promissory note once the property of the principal debtor, with no proof that the plaintiffs could have seized the note essential to have seized the debt the note .represented. Stockton vs. Stanbrough, 3rd Ann. 390; Succession of Lauve, 6th Ann. 530; Simpson vs. Allain, 7th Rob. 504; 1st Hennen’s Digest, p. 345, No. 5.

The exception of the defendant directs attention to the institution of this suit by the married women, joined with the other plaintiffs, and the exception is that the wives thus made plaintiffs are neither authorized by their husbands nor by the court. We think the exception well taken. We find neither authorization. The recital in the petition that the wives are joined and assisted by their husbands is inot the equivalent of the authorization of the husbands appearing of •record, nor can we hold the suit is by the husbands, as they are not .introduced as plaintiffs. Code of Practice, Articles 106. Civil Code, Art. 121; Grover vs. Clarke, 7th Ann. 177; Dunn vs. Woodward, XIth Ann. 265; Lacour vs. Delamarre, 2nd Ann. 140; Robinson vs. Butler, 6th Rob. 78.

It is therefore ordered, adjudged and decreed that the judgment of •the lower court be avoided and reversed, and it is now ordered and ■decreed that this suit in so far as respects the demands of Delanson Hayes, wife, Sallie Gordy, wife, Louisa Cook, wife, Mary Stansbury, wife, joined as plaintiffs herein, be and it hereby is remanded to enable the said mailed women to obtain the authorization requisite to prosecute their suits; it is further ordered, adjudged and decreed •that each of the plaintiffs, save said married women, do have and recover from defendants in solido the amounts severally claimed by .the said plaintiffs as stated in the petition, with legal interest thereon, .and that save the costs incident to the suits by married women -to he paid by plaintiffs, that the defendants pay costs.


text:
    No. 12,834.
    Mrs. Joyce J. Bentley et al vs. Fischer Lumber and Manufacturing Co., Limited, et al.
    Syllabus.
    1st. The building of a levee on the land of another without his consent, by which it is claimed his land was made unfit for cultivation, will subject the party constructing the levee to the damages, hut he will not be responsible for damages caused by the cutting of the levee by a mob, the law excluding such damages under the rule that the party who commits the wrong cannot be held for what tile law deems remote damages. Sedgwick on Damages, S. 57 et scq. Cooley on Torts, p. 09 ; 4th Ann. 79,
    2nd. Our law seeks to compensate damages resulting from the wrongful act of defendant, but our jurisprudence does not í'ávor the allowance as part of the damages, of the fee of the attorney of the plaintiff in the suit. 35th Ann. 1910 . 30th Ann. 133; 39th Ann. 931.
    3rd. There is a limit even to vindictive damages, proportioned as they should be to the nature of the wrong, and with some reference to the actual loss of the injured party. 7tli Ann., 447.
    OR APPEAL from the CiiviT"District Court for the Parish of Orleans. Theard, J.

      O. B. Sansum and Carroll é Carroll for Plaintiff and Appellant.
    Farrar, Jonas, KruUschniit and Curley for Defendants and Appellees.
    Submitted on briefs December 1, 1898.
    Opinion handed down February 20, 1899.
   The opinion of the court was delivered by

Miller, J.

The plaintiff appeals from the judgment awarding her only part of the damages she claims to have sustained by the building of a levee on her land by the defendants.

The defendant, Conrad 33. Fiselier, the owner of swamp land, found it essential, in order to float the timber cut on his land to the Atchafalaya river, to construct a lock in a bayou by means of which it was expected sufficient water would be accumulated to float the timber. The' bayou was on the plaintiffs land, as we find it stated in this brief, but being a natural outlet for the adjacent lands, the police jury of the-parish conceived they had the right to grant the defendant the privilege of placing the lock in the bayou, and besides that authority, he obtained plaintiffs consent to the construction of the lock on payment of the amount she claimed for the building of the lock and other privileges in respect to her property, the defendant desired. The lock, however, proved ineffective for his purposes, and to obtain the water sufficient to float his timber, he caused to be built a levee from the lock across the adjacent low or swamp land and this levee which, combined with the lock, proved serviceable in checking the flow of water through the bayou and gave to him, on his swamp land, the requisite water to float his timber to the river. This levee was built across a strip of swamp land belonging to plaintiff; the defendant claims by her consent, given through her husband, and implied as defendant insists, by the privilege she gave for the making of the lock, useless 'it is claimed, without the levee to accomplish the defendant’s purpose. Owing to this levee obstructing the natural flow of the-water through the bayou, a portion of plaintiff’s land above or north of the levee was flooded, preventing the seasonable replanting for another year, and the damages thereby sustained, form part of the plaintiff’s demand in this suit. The plaintiff urges another complaint arising from the cutting of the levee. Obstructing a natural outlet for the lands of others besides plaintiff’s, the levee proved a source of discontent to the land owners in the vicinity, and the result was that a number of men assembled and out the levee, causing the confined water to escape on plaintiff’s cultivated lands, below or south of it, destroying her crop, unfitting the land for the production of the full crop it would have yielded but for the precipitation of the water on the land at a time too far advanced in the season to admit of successful replanting, and the plaintiff’s alleged loss, in this respect, is also claimed in this suit. Before the mob cut the levee, the defendant had made gaps he deemed sufficient to allow enough water to escape, for the protection of the lands from overflow. After all these openings had been made in the levee, the plaintiff, apprehending that defendant would rebuild it, enjoined him from doing so, and the expense which she supposes will be requisite to level the space occupied by the levee forms another part of the damages claimed in this suit.

The plaintiff’s petition averred that the defendant, O. B. Fiseher, and the Fischer Lumber & Manufacturing Company had wrongfully entered upon and built the levee on her land, averred the loss of crops above the levee by stopping the flow of the water from the land and below the levee by the precipitation of the water through the gaps made by the mob. The expense of levelling the space occupied by the levee, including replacing the earth in the pits, was also claimed, and with the punitory damages demanded, made up the four thousand five hundred and thirty-seven dollars sought to be recovered. The answer is substantially the general issue. The lower court awarded plaintiff five hundred and sixty-seven 45-100 dollars. She seeks by this appeal to have that amount increased, and the defendant answering the appeal, demands that the damages given by the lower court be reduced, and that the injunction of plaintiff against rebuilding the levee be dissolved, with damages.

In our view the defendants have shown no consent from the plaintiff to build the levee on her land. The testimony of O. B. Fischer is that the plaintiff’s husband gave his consent, but his testimony is to the contrary- The whole testimony impresses us that the lock in the bayou without the levee, would not have arrested or checked the flow of water to that degree required to accumulate the water on defendant’s land so as to enable him to float his timber, but we cannot infer that because plaintiff gave the defendant the privilege of the lock, she thereby assented to the levee on her land. The defendant, C. B. Fischer, must respond for the damages the plaintiff sustained arising from the building of that levee.

We first direct our attention to the alleged loss on the crop above or north of the levee, caused by the water resting for say three months on the plaintiff's field, because of the obstruction to the natural flow interposed by the levee. The witnesses for the plaintiff fix this cultivated area covered by the water at twenty-five acres. On the other hand, there is the testimony of two witnesses, surveyors, who carefully surveyed the land, guided by the water stains on the trees in the adjacent swamps, who concur in fixing the cultivated area overflowed at 13 71-100 acres. It is true, this survey was made about a year after the water subsided. It is claimed that water stains are not sufficiently distinct to be reliable guides, and at best, do not indicate the surface of the water or height the water attains. We find the stress of the-testimony to be that the discrepancy between the stain and the height of the water, if any, is inconsiderable, and that a difference in levels of two inches would not change the area surveyed more than one and 2-1C acres. The testimony of these surveyors is to the effect that the water stains were distinct, agreed with the bench marks of the State engineers, and confirmed, they state, by the information derived by them from the residents. Leaving out of view the statement of the residents, there remains the testimony of the surveyor, testifying on the basis afforded by the distinct water stains. We think equal, if not greater, effect is due to their testimony than that of witnesses who gave the area in a round number, not as far as we can ascertain, based on any survey. The lower court on this issue adopted the area given by the surveyor, 13.71 acres, and wo do not find the basis to disturb-that finding. On this land a crop was made, the witnesses call a half crop. It is claimed that a full crop would have been a bale to the acre. The lower court allowed for the loss of the half crop, assumed' the weight of the bale at five hundred pounds, and that six cents per pound would have been obtained, that the profit of plaintiff would have been ten dollars per acre, and hence plaintiff’s loss was five dollars per acre. A theory that rests on the assumption of ten dollars per acre clear profit to the cotton planter, in the light of the record, strikes us as liberal, not to qualify it as excessive. Thus deduced, the plaintiff’s loss, five dollars per acre on her cultivated lands, was sixty-eight 65-100 dollars. We find no warrant to increase it, even by the usual value of cotton seed yielded by that acreage.

We gather from the record that there was a part of the land flooded above the levee on which the trees were deadened, covered with underbrush, not enclosed, and never in cultivation. The plaintiff claims that she should be allowed for the flooding of the “deadened lands,” as they are called, never cultivated, nor enclosed, nor fenced or ditched, a loss of twelve dollars pier acre, making thirteen hundred and eighty dollars, the largest item of the demand, except that of twenty-seven hundred dollars punitory damages, including attorney’s fees. We have testimony that the land could have been rented, that if rented it would have yielded a net profit of ten dollars per acre, which plaintiff claims should be increased two dollars an acre for the yield of the cotton seed. The testimony is, of course, entirely hypothical. It consists of the opinions of the witnesses enforced by the testimony of a witness to the effect that he desired to rent the lands, visited the' locality for that purpose, but would not rent because the lands were wet from the standing water. We find a comment on this kind of testimony as a basis for damages in the ease of Grant vs. McDonogh, 7th Ann. 448. Opposed to the view that a man really desirous of renting the lands would have been deterred by the effect of the water that had stood on the land, it is in evidence that cotton can be, planted and good crops made, after the date when it is proved the' water receded from the land. While the plaintiff should be fully compensated for her loss, we cannot find the basis to allow damages on the theory that land in the condition exhibited by the testimony, could have been cultivated, and if cultivated, would have yielded a profit to the owner of twelve dollars per acre. In the opinion of the lower court this part of the plaintiff’s case was not supported. Unless we can award damages on a basis purely hypothetical, and in our opinion, not possible; we must reject this part of the demand.

The claim for damages in respect to the land below or south of the levee, encounters the difficulty that the inundation causing the alleged loss of crops, was the result of the act of the mob cutting the levee. In this view it was not the levee that caused the damage, for while the levee stood, there could be no flooding of the land. Gan the defendants be held for the violence of the mob that precipitated the water on the land? The law is clear that in suits of this character, in computing actual damages, the proximate cause is that which the law regards. When the law awards other damages than those attributable .to the proximate cause, they are given as punitory. Sedwick on Damages, S. 58 et seq. 2nd Greenleaf S. 256. We have given attention to the line of authority cited by plaintiff to connect the act of the defendant in building the levee with the subsequent violence of the mob cutting it. The “Squib” ease is found in the text books to illustrate the rule that distinguishes the remote from the proximate cause. The squib is thrown in the market house, lights on one stall, then on another, from both of which it is thrown, and finally the squib thus thrown from the last stall enters the plaintiff’s eye and destroys his sight. The court attributed the plaintiff’s injury to. the party who first threw the squib; in other words, his act was deemed the proximate cause of the loss. The text books call attention to the concurrence to the full extent of the decision of but one of the four judges; .•and to the dissenl of Justice Blackstone. Sedgwick, p. 58, note at •foot. This type of cases cited in support of plaintiff’s demand, does ■not, in our view, support it. The hurling' of the squib in the ease cited, the wrongful act, is the effective and direct cause of the loss ■of the plaintiff’s eye. In the case before us, the levee built by defendant was harmless in respect to plaintiff’s loss. The act of the mob was the direct cause of that loss. Our law and the general law in this ■class of cases, restricts damages, unless given by way of punishment, to the loss arising from the proximate cause. Gaulden vs. McPhaul, 4th Ann. 79; Grant vs. McDonogh, 7th Ann. 448. With the most patient consideration on this part of the ease, we reach the conclusion of our learned brother of the district court that the plaintiff’s demand in this respect, cannot be sustained.

The lower court allowed three hundred and forty-eight dollars for 'levelling the space occupied by the levee. The allowance is based on -the number of cubic yards the levee contained, and supposes that this levee, built in the swamp, will have to be taken down in all its course and the earth replaced in the pita from which it was taken. We think there is reason in defendant’s argument that a less expensive method, whether by the gaps already made, or other modes, would •avert any danger from the obstruction of the levee to the flow of the water. The lower court, in dealing with this question, has adopted the medium of the cost of taking down the levee exhibited in the testimony. This allowance is three hundred and forty-eight dollars, and plaintiff claims it should have been three hundred and sixty dollars. We do not think the allowance should be increased.

The plaintiff claims a large measure of punitory damages, including ■one thousand, two hundred and fifty dollars attorney’s fees. The •case discloses an encroachment by defendants on the plaintiff’s property and an injunction to protect her rights. The levee was built on ■a strip of swamp land. The injunction to prevent its rebuilding was promptly issued and enforced by the punishment of the defendants for its violation. In all this we recognize, as did the lower court, the 'basis for exemplary damages. Our jurisprudence has not favored the ■allowance of attorney’s fees as part of the damages to be awarded for injuries to persons or property. Our courts, in cases like this, have aimed to compel full restitution to the extent possible of accomplishment, for the plaintiffs injuries, but the policy and spirit of our .jurisprudence has not been to introduce the fee of the plaintiff’s attorney as an element of the damages to be given. Eatman vs. Railway Co., 35th Ann. 1016; Roos vs. Goldman, 36th Ann. 133; Fox vs. Jones, 39th Ann. 931. Our attention has been called to one case in which such fees were allowed. The case was exceptional, that of the dispossession of the property of the plaintiff under the threat of taking his life, if he resisted. Cooper vs. Cappel, 29th Ann. 213. This case presents no such features. The defendant Fischer testifies he built the levee; believing he had the right, and he testifies further, that plaintiff’s husband consented. The impression we derive from the testimony is, he assumed the right to build the levee on the idea that plaintiff would not object, and it is in proof before this suit was brought he offered to pay the damages caused by the obstructed water. His defense is directed against the measure of damages claimed by plaintiff, and the absence of any liability for the acts of the mob. The ease, therefore, in our opinion, does not exhibit the features of violence and other aggravated features conspicuous in the Cappel ease, and in other cases for damages that have come before this court. W© •do not feel at liberty to establish in this case the precedent of attorney’s fees as damages. On the question of the amount to be given .as exemplary damages, we must be guided to some extent by the plaintiff’s actual loss.' Rejecting her demand for damages done by the mob, and the claim that land never cultivated or fit for cultivation except that the trees were deadened,-would have been rented and cultivated in cotton at a profit of ten dollars per acre, a little over five hundred dollars, and that, too, on the most liberal mode of computation, covers all of plaintiff’s actual damages, strongly contrasted with the amount •of punitory damages claimed, swelling the entire demand up to over five thousand dollars, as we find it figured in the brief. Our courts have time and again held that even punitory damages have a limit, ■and must bear some proportion to the real injury. Grant vs. McDonogh, 7th Ann. p. 447.

Campbell vs. Short, 35th Ann. 465, and others of the same type might be arrayed. With the most patient consideration we can find no basis to increase the amount allowed by the lower court as exem•plary damages.

We think the levee was built in ihe interest of the Fischer Lumber ¡and Manufacturing Company and impliedly with their consent. We will not disturb the judgment holding the company and C. B. Fischer liable. We find a reference in the briefs to the expenses of plaintiff for maps and documentary evidence constituting necessary proof in the cause. For all such expenses that are essential to make out plaintiffs case the power is in the lower court to tax such expenses as costs. C. P. Art. 552 and amendment.

We regret to find in one of the briefs for plaintiff, language to the effect that the issue of this litigation is awaited with interest by “the people,” and that if the judgment does not grant redress “the people” will resort to violence. By “redress” we can only understand the measure of relief contended for by the plaintiffs. The judges of this court, and presumably of all courts, perform their duties under a deep sense of responsibility, and with an earnest desire to do justice to the plaintiff seeking relief, and to the defendant, equally entitled to protection if the demand against him is exaggerated or unfounded. Our learned brother of the District Court devoted great care to this case. We have scanned this record, and given the closest attention to the argument and to the law we conceive applicable. We concur in the conclusion of the lower court. The meaning conveyed by the part of the brief under discussion, is that the courts must adopt the standard of rights and measure of relief claimed by the litigant and presented by his counsel; or provoke that violence which the (brief implies, if it does not expressly state, will be the necessary and appropriate redress to which the pcoiole will resort. There is neither persuasion nor propriety in these lines put in the brief. The courts of the country would forfeit the public confidence if the least influence were accorded to the method adopted in this brief, of enforcing the plaintiff’s demand; and we would” fail in our duty if we passed over the brief without suitable expression. The forbearance of further comment that might well be deemed appropriate on the language of this brief, is perhaps as expressive as that more explicit condemnation we do not care to put in words.

It is ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.


author: Hiller, J. Blanchard, J.

text:
    No. 12,754.
    The St. Charles Street Railroad Company vs. Board of Assessors et als.
    Syllabus.
    The law requiring franchises to operate street railways, to be taxed according to their value, makes the earning capacity of the corporation a basis for ascertaining the value at which the franchise shall be assessed, but does not exclude reference to other elements that bear directly on the question of that value. Constitution, Article 203; Act No. 10G of 1800, Ss. 1, 28.
    On Reiieaking.
    (1) Where a settlement of the matter in controversy since the judgment below was rendered appears from papers presented here, and the fact of such settlement is not disputed," effect may be given by this court to the same.
    (2) Not deemed Decessary in such case to remand.
    (3) The question whether or not the city of New Orleans can make, or has made a valid compromise of a tax claim does not properly arise herein.
    (4) Proper parties raising such an issue are not before the court.
    ON APPEAL from the Civil District Court for tlie Parish of Orleans. JZighior, J.

      Harry H. Hall for Plaintiff and Appellant.

      <7ames J. McLaughlin,, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for City pf Now Orleans, Defendant, Appellee.

      F. 0. Zacharie for Board of Assessors and State Tax Collector, Defendants and Appellees.
    Argued and submitted April 5, 1898.
    Opinion handed down June 28, 1898.
    Rehearing granted, touching alleged agreement between City of New Orleans and Plaintiff, November 21, 1898.
    Rehearing refused as to the State of Louisiana December 9, 1898.
    Argued and submitted on Rehearing January 13, 1899.
    Opinion handed down on Rehearing February 20, 1899.
   The opinion of the court was delivered by

Hiller, J.

Plaintiff is the appellant from the judgment denying the reduction claimed of the assessments for taxation for the year 1896, of the plaintiff’s franchise for operating a street railway.

Franchises with other property are subjected to taxation by our law, and v,he actual value of the property is to be ascertained in the mode pointed out by lawr and exhibited by the assessment. The revenue act, along with the duty to furnish the assessors with the returns of their business and condition, requires from the railway corporations a sworn statement of their earning capacity to serve as a basis to estimate the value of the corporate franchise. Constitution, Article 203, Act of 1890, No. 106, Ss. 1, 28.

In the protest against their franchise assessment of six hundred and fifty-eight thousand, three hundred dollars, the plaintiff claims that the net earnings of their road for 1896 were thirty-six thousand, six hundred and twenty-nine 85-100 dollars, and contend the amount capitalized to produce at six per cent interest per annum the sum of thirty-six thousand, six hundred and twenty-nine dollars should be deemed the value of the franchise. On this theory six hundred and ten thousand, four hundred and ninety-seven dollars capitalized, yielding at six per cent thirty-six thousand, six hundred and twenty-nine dollars, is assumed to represent the franchise and all the property of the corporation, and deducting two hundred and ninety-two thousand, eight hundred dollars, the value of the property taxed directly, leaves three hundred and seventeen thousand, six hundred and ninety-seven dollars, which it is insisted, should be accepted as the value of the franchise of a corporation with near a million of capital stock on which it declared a dividend^of six per cent. It is stated in the briefs for the assessors, that the plaintiff made no returns of earnings and expenditures. The assessors ascertained the franchise value by capitalizing the amount sufficient to produce the six per cent on the entire stock paid by plaintiff, deducting the value of the property directly taxed, and treating the residue, six hundred and fifty-eight thousand dollars, as the value of the franchise; in other words, the assessors adopted the capital of the company nine hundred and fifty-three thousand, three, hundred dollars as representing franchise and property; deducted the value of the property, two hundred and ninety-two thousand dollars, because directly taxed and assessed the residue ■as the franchise value. The difference between the plaintiffs and the assessors arises from the one insisting on the sum capitalized to produce thirty-six thousand dollars, as measuring the value of property and franchise; and the assessors’ adoption of the capital, nine hund■red and fifty-three thousand dollars, producing at six per cent, the dividends paid as fairly representing' franchise and property. The assessors’ method gives six hundred and fifty-eight thousand dollars as the franchise value, that of the plaintiff’s three hundred and seventeen thousand dollars.

The proposition of the plaintiffs that net earnings are the test to-ascertain the value of the franchise, it is claimed, is supported by the revenue statute. Net earnings are an element in the investigation of that value, but under the statute, is only- made “a basis.” Dividends-imply or are supposed to represent profits, not forced by borrowing or other expedient, to make the sum requisite, and when actually paid from earnings, the dividends furnish a reliable guide to ascertain earning capacity. That guide the assessors followed in this case, that is, the six per cent, dividend paid on nine hundred and fifty-three thousand dollars. We find in plaintiffs’ brief the statement that the shortage of earnings in 1896 to -pay the dividend was supplied by the sales of stock. It is to be inferred that if one annual dividend is paid by meeting a deficiency of earnings by a sale of the stock of the company, it is because the shortage is accidental, or due to some temporary cause, to account for that departure from the usual course of paying dividends only from earnings of the company. The circumstances under which the stock was sold to pay dividends might not reflect' at all on the management of the corporation, or affect the value ' of its stock or franchise, for the relation between the stock value and that of the franchise is obvious, in the revenue systems of some of the-States the excess in the market value of the stock, including the franchise, or stock alone, over the value of the corporate property, being the test to determine the value of the franchise. Hamilton Company vs. Massachusetts, 6th Wallace, 632. It may well be that the assessors in this case, exercising their best judgment, with due regard to all the elements that contribute to franchise value, fixed the valuation exhibited by the assessments. If our law made net earnings the exclusive test as is contended, we should have to apply it, but the law is careful not to use terms that limit the assessors in ascertaining the value of a railway franchise with some years to run, to the earnings of one year, whether due or affected by unexpected losses, accident or other temporary causes. While we attach deserved importance to that influence that actual earnings of the company must exert in fixing the franchise value, and which this court is prepared to enforce, we must recognize that our revenue statute has not imposed on the assessors that inexorable test that excludes cognizance o± all the facts .that should contribute in determining franchise value, save and ex.cept the test the argument insists is exclusive. Our previous decisions have dealt with other questions arising' with reference to franchise assessments; have discarded some tests that have been urged, and have accorded due weight to dividends declared and actually paid from the earnings of the company, but have abstained from maintaining the sole standard the plaintiffs’ argument seeks to uphold. Railroad Company vs. City and Board of Assessors, 44th Ann. 1058; Railroad Co. vs. City et als., 44th Ann., 1055; State ex rel Railroad Co. vs. Assessors, 48th Ann. 1157.

We have given attention to the argument that the tax of plaintiffs’ franchise is oppressive and violative of the rule of equality. No complaint in this respect can be urged against the law which requires all franchises to be assessed according to their value, and makes earning capacity a basis to ascertain that value. Constitution, Article 123; Act No. 106 of 1890, Ss. 1, 28. The argument rests on the method it is stated the assessors have assessed the franchises of other companies. It is claimed that the assessors, in instances stated in the brief, have not made capital stock to the full extent of the amount on which dividends have been paid, an element in ascertaining franchise value, and that in determining earning capacity of other corporations the assessors have not deemed interest paid on the bonded debts of such corporations the measure, to any extent, of earning capacity. As to interest on the bonded debt, we find the assessors have given to all these corporations the benefit of exclusion of that element, in ascertaining the value of the franchise. Plaintiff has not, it claims, had the same advantage in this particular, because its bonded debt is comparatively small. But it seems to us that these objections to the method of assessing other corporations, in reference to which we feel called on to express no opinion, does not furnish the plaintiff the cause of complaint he urges against the assessment of its franchise, based on the proportionate value of the franchise to that total value on which the company paid its dividend.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be and it is hereby affirmed with costs.

Entry on the Minutes November 21st, 1898.

St. Charles Street Railroad Company, vs. Board of Assessors.

No. 12,754.

It is ordered that the rehearing applied for in this ease he granted on the question of the reduction of taxes,, in accordance with an agreement claimed to have been entered into, by the parties in interest.

Entry December 9th.

It is ordered that the rehearing applied for in this case by the plaintiff be refused so far as it affects the State of Louisiana.

On Eehearing.

Blanchard, J.

Plaintiff Company’s street railway franchise was assessed, for the purposes of taxation, at six hundred and fifty-eight thousand, three hundred dollars, for the year 1897. It contested this assessment, claiming the same was excessive, and prayed its reduction to three hundred and seventeen thousand, six hundred and ninety-seven dollars, which it asserted to be its value, or “to such figure” as the court might decide “to be the true and correct value thereof.”

The court of the first instance rejected its demand and maintained the assessment at the sum fixed by the Board of Assessors.

An appeal by the corporation followed and on June 28, 1898, this court handed down its opinion and decree affirming the judgment appealed from.

Whereupon, in an application for a re-hearing filed by the company, it was pointed out that pending the submission of the cause, and while the same was under advisement by this court, plaintiff had settled all taxes claimed of it by the city of New Orleans, and that this was made to appear by the tax receipt presented to the court on the 13th • of June and prior to the decision of the cause here. It was further represented that there had been a failure to give due consideration and proper effect to this settlement in the decision of the court and because of this, and for other reasons averred, a rehearing was asked.

Acting on this application, the court, on November 21st, 1898, made the following order:

“It is ordered that the rehearing applied for in this ease be granted on the question of the reduction of taxes, in accordance with an agreement claimed to have been entered into by the parties in interest.”

Subsequently, counsel for the State Tax Collector appeared, and •pointing out that the ground upon which alone the rehearing had been granted, applied only to the city of New Orleans, and to the taxes due to said city, and did not in any manner refer to the State, or to the taxes claimed by the State, asked that the State’s interest in the ease bn excluded from the operation of the order granting the rehearing,, and that the application for rehearing as to the State be denied.

The court granted this motion, as follows: “It is ordered that the rehearing applied for in this case by the plaintiff be refused as far as it affects the State of Louisiana.”

By this action the judgment of the court, so far as the State was concerned, became final, and what was left of the controversy between plaintiff company and the city of New Orleans alone remained.

It is to that we address ourselves.

We find that the Comptroller of the city, formally authorized thereto by the City Council of New Orleans, has received six hundred and fifty-eight dollars, in full, of balance of city taxes from plaintiff company for the year 1897, having previously received ten thousand dollars, on account of said taxes for that year, and has receipted the company in full as against all demands for city taxes for 1897.

There is no pretense that the city has since rescinded, or attempted to rescind the action thus taken, nor does it appear that any steps have been taken by it or by any other interest to have the same repudiated. overthrown and annulled.

This is not a case wherein the question properly arises whether or not the city can make, or has made a valid compromise of a tax judgmen fc.

When plaintiff company’s taxes were paid to the city there was no final judgment in favor of the city for any specific amount of taxes, nor has the city been enjoined from receiving any money pursuant to any compromise, nor from carrying out the provisions of any compromise.

Proper parties to raise these questions are not before the court.

The only parties here are plaintiff company and the city, and these two have agreed on a settlement of the taxes in dispute in this case as due the city, and the same have been paid.

The questions of law raised by the City Attorney with reference to this settlement of taxes are not considered before us in proper form for our determination.

Nor is the other question that the rehearing applied for in this case, so far as the State is concerned, having been refused, and the State Tax Collector eliminated thereby from the case, no question of the reduction, of assessment can be considered, since the State Tax Collector is a necessary party in suits for the reduction of assessments.

But were this question before us, it suffices to say that the rehearing granted plaintiff, so far ás the city of New Orleans is concerned* having been conceded before a rehearing was refused on that part of the ease appertaining to the State, it is considered that proper parties-appellant and appellee are retained before the court for all purposes necessary to give life and validity to the order granting the rehearing, on the city’s branch of the case. Surely it,*is not expected the court, will hold it did a certain thing, made a certain order, and then proceeded to do that which renders vain and nugatory the previous order... While the State is eliminated from further concern in the case by the-rehearing refused on its branch of the controversy, the Tax Collector' is retained on the other branch of the case so far as he may be made; by the law, a necessary party to suits of this character.

Neither can the contention of the City Attorney, that the tax receipt-produced is in the nature of new evidence not receivable in this court, be maintained. In White vs. Ramsey, 14 La. Ann. 328, a motion wa& made to dismiss the appeal on the ground of the appellant’s voluntary execution of the judgment by its payment after the appeal was-granted. The motion alleged payment and the fact of payment was-sworn to in an affidavit by plaintiff’s authorized agent. It-was held the showing of payment could be made in this court, and as it constituted voluntary execution of the judgment, the right of appeal was extinguished, citing C. P. 567.

So, we hold in the instant case that the city’s tax receipt in full of all taxes it claims against the appellant, is admissable here to show satisfaction and settlement, so far as this case, as it now stands before-us, is concerned.

The city does not deny the payment, and hence there appears to be-no reason to remand the case on this ground, to inquire into the fact of payment.

Nothing is intended to be decided and concluded herein except that as the case now stands before us, a settlement of the controversy between the only parties remaining in the litigation appears to have been reached, and, this being so, there is no warrant to maintain the-former decree herein handed down against appellant, so far as its tax obligation to the city of New Orleans for the year 1897 is concerned»

It is, therefore, ordered that that decree in the particular mentioned, be set aside; the judgment appealed from to that extent be reversed and avoided, and the suit as between plaintiff and the city of New Orleans be dismissed at plaintiff’s costs in both courts.

Niciiolls, O. J., and Miller, J., dissent.