text:
    No. 1252.
    James A. Reynolds et al. vs. The Texas and Pacific Railway Company.
    Bail way carriers are bound to furnish safe mode3 of passage between their depots and their trains, and at stations where trains pass at night theyare bound to furnish proper and sufficient lights to make the way reasonably safe.
    Por inj arios resulting from non-performance of these duties they are responsible.
    When the negligence of the carrier is established, and is of a character greatly to multiply the chances of the accident which happened, and naturally leading to its occurrence, and when the evidence tends to connect the accident with the negligence, the mere possibility that the accident might have happened even without the negligence will relieve. Courts, in such matters, consider the natural and ordinary connection of events, and will not indulge in fanciful suppositions.
    APPEAL from the Thirteenth District Court, Parish, of St. Landry. Hudspeth, J.

      Lewis & Bro. and W. S. Frasee for Plaintiffs and Appellees:
    It is the duty of railway companies to keep in a safe condition their premises, depots and approaches from thence to their passenger cars. Pierce on Bail ways, pp. 275-6.
    The law implies in the contract of carrying passengers by railroad companies that they shall provide safe and convenient egress and regress from the -lines of their road. Digress of American Law Register, p. 786, No. 4.
    It is the duty of such companies to keep tlieir depot, platforms and approaches from their passenger trains lighted up at night. Wharton on Negligence, pp. 654 and 652; 34 A. p. 777.
    It is gross negligence in a railway company to suffer its passengers to grope their way in the dark from its depot to its passenger train over a crooked and unsafe passageway.
    Our courts have authority te award exemplary damages agaiust railway companies for gross negligence resulting in wounding and maiming a passenger, especially where such nogligeuce is attributable directly to the company. 10 A. p. 34; same vol. p. 88.
    The husband, for an injury inflicted on his wife, can sue for loss of her services to himself and'his minor children, as well as tlio damages inflicted upon her. 10 A. p. 33.

      Moseley & Foster for Defendant and Appellant:
    A plaintiff in a case of damages ex delicto must make his case certain; a probable case will not satisfy the exigency of the law. XU A. 121; 15 A. 105; 16 A. 151; 21 A, 185. ..

      The negligence must be affirmatively proven. 15 A. 115; 27 A. 229; 11 A. 292 ¡ 23 A. 726; 18 L. 340; 35 A. 695 and 498; Wharton on Negligence, § 360, 871-2 and S99; Pierce on Railroads, 423; Thompson on Negligence, vol. 1, p. 512, § 15.
    Apla'ntiff cannot recover for an injury which was purely accidental, and not shown to have been caused by any fault on the part of another.
    A plaintiff who has contributed to an injury cannot recover, even if ho succeeds in proving fault on the part of another. The rule of law in Louisiana is that where both, are at fault neither can recover. 30 A. 15; 31 A, 490; 32 A. 615; 33 A. 154 ; 5 Otto 697; 18 L. ‘ 339 ; 3 A. 48 and 441; 6 A. 496 ; 11 A. 292 ; 23 A. 462; 23 A. 53; 36 A. 751; 28 A. 320 ; 9 A. 441.
    Field on Damages, § 126 to 131, inclusive.
    One must protect himself when he can. 23 A. 264 ; 30 A. 15.
    No recovery can be had by one who knew of the alleged cause of tlie injury, and who could have avoided it and did not do so. 34 A. 180 ; 33 A. 155; 5 Otto 441; 6 McLean 242 ; 34 A. 1086.
    Positive testimony must prevail over negative testimony. 33 A, 800; 26 A. —; 2 A. 1008 ; 37 A., case'of Benjamin S Storey vs. Hope Insurance Co. (unreported).
    No one should be allowed to increase by his own misconduct the amount of damages resulting from an injury for which he seeks to hold anothor responsible. 35 A. 1132; Sedgwiok 170.
    •There can be no recovery where 'there is an intervening cause, and where the imputed negligence was not the immediate and proximate cause. Field on Damages, sees. 9, 10, 11, 45 to 53 inclusive, and- appendix, p. 705; American and English Railway Cases, vol. 10, pp. 740 and 752; 35 A. 641; American Law Register, vol. 33, No. 9, p. 604; 2 A. 144 ; 34 A. 180.
    If there is a reasonable doubt as to tbe cause of an injury, tbe boneflt of tbe doubt will be given to tbe defendant, if his trade is a lawful one. Wood’s Law of Nuisances, sec. 472 , 35 A. 648.

      Keunard, Howe & Prentiss on same side:
    1. Plaintiff, in a cáse of damages ex delicto, must make his case certain; a probable case willnot satisfy tbe exigency of the law. 16 An. 121; 15 An. 105; 35 An. 498 and 694.
    2. Tbe burden of proof is on tbe plaintiff to show tbe defendant company’s negligence whenever its liability for an injury depends on its nogligenco, and tbe negligence muob be affirmatively proven. Thompson on Negligence, vol. 1, p. 512, seo. 15; Pierce on Railroads, p. 423 ; Wharton on Negligence, secs. 860,871-2,899; Pleytas vs, Pontoliartrain Railroad, 18 L. 340 ; Klein vs. Railroad Company, 23 An. 726 ; Perkins & Billiu vs. Morgan, 27 Ann. 229; Knight vs, Opelousas Railway Case, 15 Ann. 115; Hill vs. Opelousas, 11 Ann. 292; 35 Adu. 694 ; 30 Ann. 244.
    3. Proof that the injury was sustained is not prima facie evidence of negligence, and does not establish a charge of negligence against oho person causing the injury. See Slier, man on Negligence, sec. 5; Hammock vs. White, 11 C. B. N, S. 588.
    4. Tlie negligence complained of must have been the immediate cause of the injury sustained by plaintiff.
    5. Negligence is tbe failure to do what a reasonable and prudent person would ordinarily have done under tbe circumstances, or doing what such person under the existing cir - cumstances would not have done. 95 U, S. Reports, p. 441, R. R. Co. vs. Jones.
    6. The degree of care which the law expects, and the omission of. which is negligence, is that degree which men of ordinary prudence would exercise in a given situation. *
    7. When circumstances point just as much to negligence on the part of one of the parties as to its absence, or points in neither direction, a recovery cannot be had. See 31 Ann, 490 3 Ann. 48, 441. ’ ’

      8. Plaintiff cannot recover for an injury resulting from tlie negligence of the defendant if, notwithstanding such negligence, he might have avoided the injury by the exercise of care and prudence on liU part, or if his own want of such care and prudence, or that of the party injured, contributed to the injury. Am. Law Register, vol, 5, No. 5, p. 397; Redfield^on Railways, p. 337.
    9. There is abundant proof in the record that plaintiff was guilty of the grossest negli gence.
    10. An intervening agency of sufficient force and power of itself to have caused theinjury, and occurring between the first causo and the result, is considered in law as the prox - imate cause of the injury, whilo the first cause is the remote; aud plaintiff cannot recover when lie declares on the first as the proximate cause, and it is shown not to bo. See 7 Wallace 52 ; American Law Register, vol. 23, p. 604.
    22. When two witnesses, unimpeached, contradict each other, the presumption is in favor of the one who swears affirmatively. H. D. p. 557 (d), 1] No. 12; 2 Ann. 1008 (bottom of pago); 23 Ann. 800; Pierce on Railroads, 292 (bottom of page and note).
    11. The allegata must correspond to the probata, and when witnesses contradict each other as to when, whore and Iiow the accident occurred, their testimony is to be taken with some allowances, and such inconsistencies affect their credibility.
    13. The positive and affirmative testimony of one witness having no interest in a suit, supported by corroborating testimony and circumstancos, is entitled to more weight and consideration than that of several who contradict each other on a material fact which they are introduced to prove.
    14. Exemplary damages are only allowed when malice, fraud and grossest negligence are patent and proven. Sedgwick on Damages,
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff aud his wife claim damages of tlie defendant company for injuries suffered hy the wife aud caused by the alleged negligence of the company.

Mr, Reynolds, with his wife, sister-in-law, three small children aud two colored attendants, had purchased tickets as passengers on the defendant road, and were at the depot at Morrogh Station for the purpose of boarding the east-bound train, which was duo at that station at about midnight, but, being-behind time, did not reach there till about two o’clock in the morning.

Between the depot and the regular track on which the passenger train arrived there was a switch-track, which, on the night in question, was occupied by a freight train, and, by uncoupling'Ahe latter, a passage way was opened to the passenger cars.

The mode of getting from the depot to tlie cars was as follows: passengers went down a stairway of several steps, which ran parallel to the track and led to a lower platform ; on reaching which they turned squarely’ to the right and passed between tlie uncoupled cars to tbe train. These steps were unprotected by railing, and on tbe left of tliem tliere was a ditch. The platform at the bottom extende d five feet towards the front, and beyond it there was a slope running to the bottom of a ditch. If, in descending, the passenger wont too far to the left, he tumbled into a ditch ; if ho did not turn promptly to the right on reaching the bottom and went too far forward, lie fell down the slope in front; and if ho stumbled in going down the stairs his impetus was likely to carry him over the narrow platform in front and down the slope beyond.

It is obvious that, while such a passage might fulfill all customary and reasonable requirements of safety in the daytime, or when well lighted, yet at night, and when not sufficiently lighted up, it undoubtedly exposed passengers unfamiliar with it to danger of fall and injury. Although both the east and west-bound trains customarily stopped at this station in the night-time, no stationary lights were provided for the depot platform or the steps. There was no moon on this night. The lights of the engine and passenger coaches were intercepted by the intervening freight cars, except such as might have passed through the opening above referred to, which we are satisfied was of no value. The lights in the rooms of the station could have shed no light on the bottom of the steps. There is much conflict of testimony touching the presence and position of a conductor and brakeman with lanterns, which we need not discuss. After an attentive study of the evidence, we clearly concur in the conclusion of the district judge that there was no sufficient light; that its absence rendered this passage from the depot to the train insecure, and constituted negligence in the company and a failure to perform its duty of providing safe modes of ingress and egress between its depots and its trains. We are impressed by the judicious comments of the judge on the conflicts in the evidence, viz : “ There are here, as there will always be, contradictions and discrepancies amongst witnesses in all such cases, so long as stationary lights are not provided, and so long as this mode of providing lights for passengers boarding or leaving the cars is adhered to. What is sufficient for purposes of ingress and egress from cars, until stationary fixed lights are provided, will ever bo a matter dependent on the discretion of conductors, brakemen and other employees, liable to be varied by every change made in these employees. * * * Even granting there were lanterns or lamps held by employees, a change of position of afew feet, even a step or two, would suffice to leave positions in darkness one minute which were in light the next, and vice versa.'1'1

The train was behind time. Several witnesses testify that passengers were warned to “hurry up.” Mrs. Reynolds, a corpulent woman, weighing two hundred and fifty pounds, emerging from the bright light of the sitting-room, which naturally exaggerated the outside darkness, and hastening down these unligiited steps, made a misstep in some way and was precipitated beyond the narrow platform in front and down the slope beyond, incurring- the serious injuries complained of.

Upon what grounds do the company claim exemption from liability 9

1st. It denies the fact of negligence on its part, and contends that the way was safe and the lights sufficient.

We have already disposed of this contention, and have found that the light was insufficient and that this rendered the way insecure. The duty of railway carriers to provide safe modes of egress and ingress to and from their cars, and to provide sufficient lights at their stations where passengers take or leave their trains at night, is well established by authority, and has been recently expounded and enforced by ourselves. Peniston vs. R. R. Co., 34 Ann. 777; Turner vs. R. R. Co., 37 Ann.; Lehman vs. R. R. Co., 37 Ann.; Wharton on Negligence, § 654, 652 and authorities there cited.

2nd. It contends that, oven conceding the negligence of the company in the above respect, it does not follow that the accident to plaintiff was necessarily caused thereby, but that she might well have made the misstep and fallen even had it been broad daylight. We concede that this is possible, and recognize the distinction between post hoc and propter hoe. But where the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, 'and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury. Courts, in such matters, consider the natural and ordinary course of events, and do not indulge in fanciful suppositions. The whole tendency of the evidence connects the accident with the negligence.

3rd. It is claimed that there was contributory negligence on the part of the husband in leaving his wife to grope her way unattended by himself. The evidence satisfies us that Reynolds’ absence was due to another fault of defendant’s station agent in requiring- him to assist in putting his own baggage on the cars, because some of the employees^ whose duty it was, were absent. But aside from this, his wife, though a corpulent, was not an infirm woman, and was fully capable of taking care of herself. We have considered the case in all its bearings, and find no reason to doubt the correctness of the district judge’s conclusion holding defendant liable.

As to tlie quantum of damages, tlie injury consisted in a dislocation of tlie ankle and a fracture of tlioleg below tlie knee. There resulted no loss of the limb. The evidence shows that, notwithstanding the accident, she went on the cars and continued without interruption her long railroad journey to Florida, without availing herself of medical attention, and that, even after arrival there, she received but trifling medical aid. These facts impressed the district judge as they do ourselves. No doubt she suffered greatly, and perhaps she has not yet fully recovered j but how much her suffering and the effects of her injury may have been increased and prolonged by this unusually imprudent conduct it is impossible to say.

The judge allowed her two thousand dollars as damages, and we will not disturb his finding.

Sundry bills of exception were reserved to rulings of the judge on reception or rejection of the evidence. We have considered them all, and find no merit in any of them.

Judgment affirmed.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 1255.
    The Town of Opelousas ex rel. Chas. M. Thompson, President, et al. vs. Clinton B. Andrus.
    Suit in the name of “ the town of Opelousas on the relation of the president and "board of police of said town,*1 is the equivalent of suit in the name of “ the board of police of the town of Opelousas,” which is the proper corporate title.
    The fact that the board is authorized to appoint a collector, whose duty is to collect its taxes and pay them over to the board through its treasurer, does not prevent the corporation from suing in its own name to recover dues which its collector has failed to collect. ‘
    Where it appears that an ordinance has been duly considered and passed in themoderoquired by law by the board and has been duly promulgated by publication in the official journal bearing the name of the president as having signed the samo, and had passed into execution, it will not be invalidated by the fact that the president had not actually signed if The legislative provision requiring the president to sign all ordinances will, under such circumstances, be treated as directory only, unless the intent of the legislature to make it an essential condition be apparent.
    APPEAL from tbe Thirteenth District Court, Parish of St. Landry. Hudspeth, J. -

      W. 0. Perram.lt for Plaintiffs and Appellees.

      Kenneth Baillio for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The action is brought to recover a license tax due under the provisions of an ordinance of the board of police of the town of Opelousas.

The suit is brought in tho name of “the town of Opelousas ex rel. Chas. M. Thompson, president, and of Moses Green, Victor Lastrapes, II. E. Estorgo, Emile Peffercour, George Pulford and James Lasalle, members of the board of police of said town.” The first objection is that the suit should have been brought in tho name of “ the board of police of the town of Opelousas,” which is the corporate title under tho charter. It is, in effect, so brought, and the objection is frivolous.

Next, it is urged that, under the charter, Act 37 of 1876, it is made the duty of tho collector appointed by the board of police to collect all taxes, and that the action could be brought only by said collector. Obviously the collector is merely tho agent of the board, appointed by it and accountable to it. The taxes are due to the board, and it has clearly tho right tb sue for them when its agent has failed to collect.

The legality of tho tax claimed is assailed on the ground that the ordinance imposing the same was not engrossed and was not signed by the president, as provided by sections 6 and 8 of the Act 37 of 1876.

The evidence of the clerk is that it was duly engrossed and it is uncontradicted.

It is shown that the ordinance was duly introduced, considered and adopted by the board and published as required by the law, and the publication carries the name of the president as having signed the same. The judge a quo seems to have been satisfied by the evidence that the ordinance was not actually signed by the president; though we find nothing in the record to satisfy us to that effect. But he concluded that the provision requiring the president to sign ordinances was directory merely, and that where the ordinance had been actually passed by the board, in tho exercise of its authority and in accordance with all legal requirements, and had been duly promulgated by publication in the official journal and had passed into execution, the mere failure of the president to sign would not invalidate it, unless the legislative interest to the contrary was clear.

He is sustained in this conclusion by respectable authorities holding that “a legislative provision requiring the presiding officer of the council to sign all ordinances is directory in its nature. If regularly passed an ordinance is valid, though not thus authenticated.” 1st Dillon on Munic. Corp. sec. 331 and notes.

Tho case of Breaux’s Bridge, 30 Ann. 1105, rests on peculiar facts, and seems to indicate that, had the ordinance been promulgated by publication in the official journal purporting to have been signed by the mayor, the defect of his actual signature to the original ordinance would not, alone, have been fatal.

We see no reason to disturb the conclusions of the district judge on this point, or as to the amount due by defendant.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 1240.
    Fanny K. Philips vs. Her Creditors.
    An appeal will ¿not be dismissed beoause of irregularity in the citation of appeal and return thereon, when citation lias been prayed for.
    An- «appeal bond -for a suspensive appe«al is in time when tiled within the year following the adjournment of the court in the country. The delay is'not to'be computed from the date'of the signature of the judgment during term.

      lies judicata is not a ground for dismissal of an appeal. .r It is a means of defense which can be urged on tho merits only.
    A second motion to dismiss made after submission of the cause is too late.
    A judgment rendered homologating an account and ordering a distribution of funds, is a nullity where the cession of property previously ordered by the court has been avoided and set aside.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. DeBaillon, J.

      M. JS. Girard and F. D. Ghrélien for Opponents and Appellants.

      O.A. Mouton and O. G. Mouton for-Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

Tho transcript contains two motions to dismiss, one made before, tho other after submission.

In the first it is claimed that the appeal should bo dismissed, because:

1. Proper parties wore not made and cited.

2. The syndic having died, no one was appoinied to represent him

3. The appeal bond was not filed within the year from the rendition of the judgment; and because of

4. lies judicata.

Iu the second motion, it is urged that the appellant has not filed in this court the transcript mentioned in the clerk’s certificate and which is necessary to complete the transcript.

I.

1. The appellant has prayed in her petition for an appeal “that the parties defendants be duly cited as required by law in such cases.”

This'is all. she had to do. Tho prayer fully protects her from the attack now made upon her. if, notwithstanding lior prayer, the clerk and the sheriff did not perform their duty, she is not, but they are, to be blamed for it.

Under such a state of facts the only thing that could have been asked/wottld have heen a continuance of the caso, to allow that to be done which had not heen done; but for this no prayer is made.

2. Tlie death of the person appointed syndic and the non appointment of some one in his stead, is no ground for the dismissal of the appeal.

The proceedings in this matter contemplated a respite. The district court refused the application and ordered a cession of property. On appeal, the judgment rendered to that effect was reversed, so far as it decreed the cession, but affirmed otherwise. The effect of tiie judgment was therefore to put the applicant for the respite in the condition which she occupied before she filed any proceeding for that relief, at the same time that it avoided the cession ordered by the district court and all proceedings consequent upon it. With this avoidance the appointment of the syndic fell. In that condition of things there was no necessity to appoint any one to replace one who had no legal existence, who was therefore no necessary party to the appeal.

3. The bond furnished to perfect the appeal was filed within the year following the day on which the judgment appealed from could have become executory, that is, within the year following the close of the term during which the judgment was rendered. The year does not begin to run in the country from the signature of the judgment during term, but only from the end of the term.

4. The objection of res judicata is not one which can bo urged on a motion to dismiss. It can be considered and acted upon only as a matter of defense on the merits of the cause, at which it is necessarily levelled.

II.

The second motion to dismiss was filed after the submission of the cause, subject to the objection of the appellant, who urges that it comes too late. This objection is well founded and must be sustained.

Motion to dismiss denied.

On the merits.

The appeal is taken from the judgment of the lower court homologating an account filed by the syndic and ordering a distribution of the funds therein mentioned and which are the proceeds of a sale of the assets of the applicant for a respite.

This judgment was rendered while the'appeal from the judgment ordering a cession was pending in this Court.

The latter judgment having been reversed, 36 Ann. 904, it irresistibly follows that whatever was done in furtherance of the judgment ordering the cession is illegal and must be dealt with as having never had any existence.

The plaintiff was therefore right in opposing the distribution pro posed by tho account presented by the syndic an d is entitled to relief.

It is therefore ordered and decreed that the judgment appealed from be avoided and'reversed, and it is now ordered and adjudged that the opposition of the plaintiff to tho account in question be sustained, and accordingly that tho tablean of distribution proposed be rejected; that all anterior proceedings, save those in which the respite asked was refused, be pronounced to be null and of no effect, and that appellees pay costs. _


author: Manning, J.

text:
    No. 1248.
    M. A. Montijo vs. F. J. Montijo.—Miller, Cannon & Co., Intervenors.—Henry Young et alii, Intervenors.
    Tli© labourer has the first and paramount privilege upon the crops raised by lús labour-for payment of liis wages and a concurrent privilege with others upon tli© agricultural implements and stock used iu the cultivation of the crops, while tlie factor has a privilege * upon tho crops alone and inferior in rank to tho labourer. /
    In a contest between the factor and tho labourer, the latter eannot be compelled to discuss tho movables before enforcing his privilege on tho crops because his lien on the crops is superior to all others and he is entitled to be first paid out of tho fund produced by them. His concurrent lien on the movables is only an additional security to which he need not resort until the primary fund has proved insufficient.
    APPEAL from the Nineteenth District Court, Parrish of St. Mary. Goode, J.

      JD. Gaffrey iov Miller, Cannon & Co., Intervenors.

      G. B. Shepherd and Foster & Suthon for Henry Young and others, In- ■ tervenors.
   The opinion of' the Court was delivered by

Manning, J.

M. A. Montijo of Cuba sued F. J. Montijo of St. Mary parish for rent of the Retreat plantation situated therein and provisionally seized'the crops. Miller, Cannon & Co. of Galveston who furnished the supplies and made advances for the cultivation of the place intervened to' enforce their privilege, and Henry Young and other labourers also intervened, claiming a privilege superior to all others. Tbe contest is between tbe factors and the labourers and the lower judge decided for the latter.

The labourers have the first privilege on the crops. Rev. Civ. Code, art. 3217, addendum to paragraph 9. They have a concurrent privilege with the lessor on the agricultural implements and stock, etc.j while the factor has a privilege on the crops alone.

The contention therefore is—inasmuch as the labourer has a privilege on tho crops and movables and the factor’s privilege rests on the crops alone, the labourer should be compelled to exhaust the movables first before he trenches on the crops, and should not be permitted to absorb the whole of a fund upon which the factor has also a privilege to the latter’s detriment when he might satisfy his claim or a part of it out of a fund upon which the factor has not a privilege.

There is no textual provision of our law to that effect, (and privileges are strioti juris), but it is claimed that equitable considerations of the highest character will be promoted by construing its provisions touching privileges on agricultural estates and their fruits in the particular manner now insisted on, and the principle-adopted by courts of equity is invoked, that where one party has a lien on two funds and another has a lien only upon one of them, equity will compel him who has the double lien to resort first to that fund upon which the other has no lien.

The manifest object of our law was to assure payment to the labourers to the prejudice of every one else. The sequence of the different provisions shews this, for immediately after declaring the privilege of the labourer to be concurrent with the lessor, the furnisher of supplies, etc. it adds that his privilege shall be superior to all of them—the result of an amendment prompted doubtless by an apprehension of injury to agricultural interests if the labourer wore not specially protected. However inequitable it may be for the labourer to be given precedence over the lessor, without whose land no crop can be grown, and over the factor without whose money the labourer cannot bofed, the law adopted that policy, and it is stamped very unmistakably on the legislation that was had immediately after the system of free labour began to bo used. The law moans that 'the labourer shall be paid whoever may suffer, and to ensure his payment gives him the first and paramount lien on the crops and a concurrent lien on the movables. To force him to discuss the movables before resorting to the crops would be hindering instead of helping him to payment for lus labour, for if the factor can thus compel him to exhaust the movables so may the lessor, and he will be driven by one and the other to fruitless pursuits of the movables, and ho might justly complain that while the spirit and intention of the law was to subject the crops to his payment first and over all, construction had placed obstacles in his way that defeat the law’s intention. We cannot adopt a construction that would entail that result. The fact is there is no room for construction. The priority of the labourer’s privilege is a matter of positive law.

And so the lower court held.

Judgment affirmed.


text:
    No. 1245.
    Henry Lehman vs. Louisiana Western Railroad Company.
    It is the clear duty of a railway carrier to provide safe egress from their cars for their passengers, to give due notice of arrival at stations, to allow passengers proper and sufficient time to alight, and to take care not to start the train while passengers are in the act of getting off. For negloct of such/duties, resulting in injury to passengers, the carrier is responsible.
    When a passenger, with his wife and children, is in the act of alighting from the train stopped at a station, and when the wife, with an infant in her arms, having reached the lowor step of the car, is thrown violently to the ground by the sudden starting of the car, the husband’s act in jumping off to her assistance while the train is in motion and leaving his other children of tender years on the platform, one of whom is injured in attempting to jump off after her parents, is not such contributory negligence as debars recovery for injury to the child. The acts of both the/father and the child were the direct consequences/of defendant’s own "misconduct, and falls within the well-settled rule that contributory negligence cannot be set up as a defense when such negligence was the result of tremor or excitement produced by the defendant’s misconduct, or when/the latter1 puts/the plaintiff to a sudden election between the course which he took or submitting to a grave inconvenience.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Be Baillion, J.

      M. JS. Girard for Plaintiff and Appellee.
    Z>. Gaffery for Defendant and Appellant:
    1. In a suit against a corporation, the existense of the corporation must be set out. The court cannot judicially recognize ité existence. C. P. 112, 119,198; 34 Ann. 963; 28 Ann. 415.
    2. A citation issued against a defendant, not a natural person nor alleged to be an artificialperson, and served, first, on “ the agent of the nondescript defendant; and, second, on an individual who accepts service for another agent, is null and cannot be the foundation of suit or judgment.” C. P. 198, 201; H. D. Citation; W. Nos. 2, 4, 6, 15.
    3. When the circumstances of a case show that a party suing for damages for injury sustained from a railroad accident loft the train while in motion, without necessity and without being placed in peril by the road, no recovery can be had. Redfield on Railway, sec. 194; Hutchinson on Carriers, sec. 643; Leading Eng. and’Am. R. R. Cases, vol. 26, p. 351; 9 Ann. 441.
    4. If in sucli.a’case'the^train stopped long enough to allow the passengers to get off at their station, and they lingered aboard beyond a reasonable and proper time to got off, the relation of carrier and passenger ceased, and the carrier is not answerable except for criminal negligence. Hutchinson, sec. 613; Redfield, sec. 613 ; Hutchinson, sec. 553.
    5. Though defendant were in fault, if defendant’s negligent act was the proximate cause of the injury, no recovery can be had. 34 Ann. 778, 139, 182; 27 Ann. 54; 30 Ann. 20 ; 32 Aun. 615; 33 Ann. 154; 5 Ann. 514; 9 Ann. 441; 11 Ann. 292 ; Redfield on Railways, sec. 193; 3 Ed, Sedgwick, p. 495 ; 5 Otto 4U; Shearman and Redfield 25.
    6. If the evidence shows that the injured child was traveling in company with and under the charge of her- parents, and she is non sui juris, their negligence is her negligence. Thompson on Negligence, vol. 2, pp. 118, 1183.
    7. When the damages are excessive the verdict will be reduced.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff, for the use and benefit of his minor child, Eva Lehman, sues the defendant for damages for injury to said child resulting from the alleged negligence of defendant or its employees.

He was met hy two exceptions, which must first be disposed of:

1. The first exception sets up want of legal citation, and denies the jurisdiction of the court on the ground that its domicile is in the parish of Orleans.

The charter of the company, Act 21 of 1878, assigns it no domicile in the State; provides that it may bo sued “only in the district courts of the parishes in which its railroad is constructed, of which the parish of Lafayette is one; and directs that service of process may be made “upon either the president, secretary, treasurer or any of the directors of said company resident in this State, or upon an agent or agents of the company resident in this State, and designated by the directors to receive such service.”

Before instituting suit, plaintiff’s attorney wrote to the general attorneys of the company, Messrs. Leovy & Kruttschnitt, of New Orleans, inquiring who were the agents, and received a reply designating A. C. Hutchinson and J. Gr. Schriever as such. Accordingly, the citation was served personally on Schriever, who also accepted service for Hutchinson. Neither by allegation nor proof is the agency denied. On the contrary, the proof, as far as it goes, sustains it.

The exception has no merit.

2. The other exception is that the petition does not allege or set forth that the defendant is a corporation, an association or a natural person.

.The defendant was sued in its.proper corporate name, and the objection was robbed of all force, if it had any, by the amendment made under direction of the judge.

On the Merits.

The evidence satisfies us as to the following facts:

Lehman, with his wife and six children, bought tickets for passage on the defendant’s road from Lafayette Station to Scott Station, a distance of about five miles. They boarded the train and took seats in the rear passenger car. Through the failure of the conductor to reach that car before arrival at Scott, no employee of the company had informed himself as to whether or not there were passengers to get off at Scott. Shortly before reaching that station the brakeman called out “ Scott,” and again called it out immediately on arriving. He then got out on the platform and proceeded towards the front of the train, and within a very brief period, not exceeding a minute or minute and a half, gave the signal tor the starting of the car.

In the meantime, after the car stopped and with reasonable expedition, considering the character of his party, the plaintiff, with his wife, children and luggage, had proceeded to the platform of the car for the purpose of getting off. Two of the children, boys, had just stepped off. Mrs. Lehman, with an infant in her arms, had reached the lower step of the car, while the father, with the luggage and the two little girls, was on the car platform. At this moment the train started with the usual jerk, precipitating Mrs. Lehman, with her infant, off the step to the ground. The husband immediately jumped after her. This left the two little girls unprotected. One of them was restrained by a passenger, while the other, Eva, seven years of age, was either thrown or attempted to jump off after her parents, and in so doing was caught between the two cars and suffered the injury complained of.

Nothing is better settled than that carriers owe to their passengers the duty of exercising a very high degree of diligence, care, skill and foresight, in order to carry them safely. They are bound to the diligeniia diligentis patris-familias—the diligence which a good specialist in that particular lino of business would exercise, including all the care, caution and skill which common experience shows to be proper in order to secure safety. The provision of safe methods of ingress and egress to and from their trains, the giving of due and proper notice of arrival at stations where passengers are to get out, the allowance of proper and sufficient time for passengers to debark at such stations, and due care not to start the train while passengers are in the act of getting off, are amongst the plainest and clearest features of the duties of the railway carrier to its passenger's.

The evidence, in this case exhibits a very gross infractioxx of these rules.

No care was taken to ascertain whether there were passengers to land at Scott Station.

The stoppage was excessively brief. No diligence was used to learn whether passenger's were in the act of getting off. Had there been, it would have been seen that the plaintiff, with his party, were on the platform axxd steps of the car for that purpose at the moment when the train was stai’ted. They had not been guilty of any unusual or unreasonable dilatoriness in getting off. They had a right to suppose that the train would not start until they were safely landed. The wife was unquestionably on the bottom step of the car in the act of alighting when the car started, and the evidence leaves no doubt that she, -with her infant in her arms, was precipitated to the ground by the jerk of the car. Had she or her child been injured, the liability of the company would have been clear beyond dispute.

But it is claimed that the act of the husband in jumping off after the train had started, thus abandoning his little girls, and the act of Eva in jumping after him, were faults which give rise to the defense of contributory negligence.

The evidence leaves it doubtful whether Eva jumped or was thrown off by a jerk of the car; but however that may be, the acts of the father and of the child were both the direct result of the negligence of the defendant.

When a man sees his wife aad infant thrown violently from a car by the starting of a train, his natural and irresistible impulse is to jump to their assistance; and it is equally the impulse of a child when seeing herself about to be carried away from her parents to seek to join them. Their conduct, under such circumstances, is not to be judged by ordinary rules.

The rule is well settled that contributory negligence cannot be set up as a defense when such alleged negligence was the result of tremor and excitement produced by the defendant’s misconduct, or when the latter’s negligence puts the plaintiff to a sudden election between acting as lie did or submitting to a grave inconvenience.

The rule has received a variety of applications. 2 Redñeld on Railways, § 194 et seq.; Wharton on Neg., § 375, 377 ; 2 Thompson on Neg., p. 1174,

We consider that the facts of this case bring it clearly within the reason and spirit of the rule.

The accident resulted in such injury to the child as to necessitate the amputation of her left arm just above the elbow.

The jury returned a verdict of twelve thousand dollars. The evidence shows that plaintiff is a farm laborer, supporting his entire family, according to his own statement, on twenty dollars a month, and giving no education to his children. Under all the circumstances, we think the verdict should be reduced to five thousand dollars. It is therefore ordered, adjudged and decreed that the verdict and judgment appealed from be amended by reducing the principal thereof to five thousand dollars, and that, as thus amended, it be affirmed, appellees to pay costs of appeal.


text:
    No. 1246.
    H. C. Minor vs. J. B. Budd, Sheriff, et al.
    An appeal from a judgment rendered by the district court for Terrebonne parish, return' able to this court “ according to law,” is not returnable at Opelousas, but at IsTe-w Orleans] on the second Monday of .February.
    APPEAL from the Nineteenth District Court, Parish of Terrebonne. Goode, J.

      Ij. F. Suthon for Plaintiff and Appellant.

      B. F. Winchester, District Attorney, for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The motion of the appellant to strike this cause from the docket of tills court at this place (Opelousas) must prevail,

This is a civil suit, the object of which is to arrest the collection of certain State and parish taxes.

It was decided by the district court for the parish of Terrebonne in May last, and the payment rendered against the plaintiff was instantly appealed from, the appeal being made returnable to this court, “according to law.”

The transcript was filed here by the defendant and appellee, and not by the plaintiff and appellant.

The latter claims that this court has no right or jurisdiction over the cause at Opelousas, but can pass upon its merits at New Orleans.

A reference to the last act regulating returns of appeals to this court, Act No. 69 of 1884, p. 92, sec. 5, shows that appeals from the district court for the parish of Terrebonne are not included among those which are returnable to this court at Opelousas.

The words found in the order granting the appeal, making it returnable “ according to law,” mean returnable at New Orleans on the second Monday of February next, under the general provision contained in sec. 10 of the same act.

If this were a criminal case quite a different question would be presented. Act 1876, p. 56.

It is therefore ordered that this cause be stricken from the docket of this court at this place at the cost of appellees.


text:
    No. 1244.
    Oscar Halphen vs. U. A. Guilbeau and Lézaire Broussard.
    Where the suit is in its inception a contested election-case and the appeal comes up on a question of pleading at the proper time and place for appeals in such cases, it will not be dismissed on. the ground that the suit has been converted into au action under the Intrusion Act which should have been returned in ten days.
    An appeal from a judgment dismissing the suit cannot be dismissed for prematurity.
    Whore a suit has been stolen from, the court-house and the plaintiff files another reciting the allegations of the first and other proceedings therein, the plea of Us pendens is not maintainable.
    A stolen suit may be reconstructed and reinstated in other ways than that specifically provided by general or special statutes. A new petition setting forth the allegations of the first, or incorporating a copy of it, may be as efficacious and is as permissible as the special methods pointed out by the statutes.
    Neither is it necessary that the lost suit should be reconstructed by judgment of court in a separate and independent suit before renewing the allegations upon which the contest for the office is made, although the facts that the allegations and objects of the two suits are substantially the same and that the first was brought with the formalities and within the time prescribed, must be satisfactorily established before the defendant can be compelled to answer to the merits of the main action.
    The new petition is a substitute for the first and a trial is had upon it as it would have been had upon the first with the additional issues raised, whether such first suit ‘had over in fact been instituted and the proceedings had thereunder as alleged.
    APPEAL from tlie Twenty-first District Court, Parish of St. Martin. Gates, J.

      Bdw. Simon, O. NT. Monton and Jos. A. Breaux for Plaintiff and Appellant.

      F. Voorhies and Robert Perry for Defendant and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

At the general election in the spring of 1884 Oscar Halphen and U. A. Guilbeau were rival candidates for the shrievalty of St. Martin parish. Guilbeau was returned and Halphen filed a suit on May 21st asserting his election to the office and praying judgment for induction therein.

The motion to dismiss is on two grounds :

1. That the suit involves the right to an office and the appeal should have been returned in ten days.

The judgment ’was rendered six months ago and the appeal was taken here at the next regular term thereafter. This is the proper course in contested election cases. State ex rel Young v. Judge, Manning’s Unrep. Cas. 237 followed in Duson v. Thompson, 32 Ann. 863; State ex rel Jeter v. Judge, Mann. Unrep. Cas. 281.

The appeal in its present shape does not present the merits but merely a question of pleading, and therefore we will not say now what is the technical character of the action except that as first instituted against Guilbeau it was undoubtedly a contest of an election, and as the appeal is on the form of pleading we shall maintain that it is rightly taken at this stage of the case.

2. That an appeal docs not lie from an interlocutory judgment such as this.

As the judgment sustained an exception the effect of which was to dismiss the suit, it is difficult to imagine a judgment that more imperatively requires an appeal for its rectification. .

The motion is denied.

On Exception.

Although Guilbeau liad been commissioned he refused or failed to qualify and the time for qualifying having elapsed, the .Governor appointed Lozaire Broussard to the vacancy. Halphen then filed an amended petition reciting these charges and made Broussard a party, and shortly Ihereaftei the suit with all the papers connected therewith was stolen from the court-house and no trace of them has been discovered.

Halphen then filed the present petition in which he sets out his antecedent suit and its loss and the allegations thereof, and thus attempts to reinstate or reconstruct it and prays judgment, as he had prayed in the original.

The defendants except on various grounds:—

1. Lis pendens in this, that the former suit is alleged to contain the same allegations and to present the same issue as the present and its pendency is a bar to the present action.

The maintenance of this branch of the exception would forever prevent the plaintiff from obtaining a judicial determination of his action and thus make him the victim of an act for which he is not responsible. It would establish the piecedent that the abstraction of a pending suit from the public records is a protection of the defendant from further pursuit and would be an invitation to the repetition of like acts in other cases.

2. That the object of this suit is to re-establish and reinstate a lost suit which cannot be attained in this way, but a rule should have been taken and served to show cause why the lost proceedings should not be reinstated and the former suit be reconstructed.

3. If it be held that [such form is permissible, then all other matters should be eliminated from the petition and the inquiry be limited to the ascertainment whether the allegations now made are th'e same as those in the first suit and the relief sought now is the same as that sought before.

The lower judge sustained the second brauch of the exception for the reason that an Act of 1878 provides a particular mode of reinstating a lost suit, viz, by obtaining copies of the several papers in it from the book in which tile clerk is required to record them and filing them in lieu of the lost originals. Sess. Acts 1878, p'. 42. And he accordingly dismissed the plaintiff. His ruling is error.

The object of the legislature in providing this mode of relief would be frustrated by the failure of the clerk to record the petition and other papers. It would be frustrated in this case, if we maintained the ruling, as the fact was the clerk had not recorded them, and numerous parishes if not all would be unable to adopt this statutory mode of relief because in most offices such book of judicial records is not kept at all.

The legislature did not intend to exclude other modes of relief when it adopted this particular one. In fact this case shews the statutory remedy to be less efficacious than the ordinary modes which are left untouched by the statute. Several parishes have lost all their public records by the burning of their court-houses and special Acts have been passed providing for the reinstatement of them. In a case coming-up from one of these parishes where a reinstatement of a lost suit was attempted by a petition reciting the contents of the original as in the suit at bar, it was held good. The process adopted in that case was a rule and doubtless it suggested that feature in the exception now before us. Wallace v. Calhoun, Manning’s Unrep. Cas. 353. But there is no reason why a citation with copy of the petition should not be equally as good process as a rule. In the above-cited case no service had been made which defeated the attempt to reinstate, but in this case service has been made.

We do not think the third clause of the exception more tenable than the others. Except to avoid prescription it would not matter that the first suit had never been instituted, and to hold that the plaintiff must first go through the regular stages of a suit to re-establish his lost suit and obtain a judgment therefor before he can approach the main object of his action would be to invent obstructions in pleading to delay suits.

Unquestionably the plaintiff could have brought a new suit out-and-out and at the time he brought this one, but for the necessity that such suit must be filed within a given time after the election. His sole object in alleging the institution of the first suit] is to bring himself within the time given for action and to avoid prescription. It matters not therefore if he never obtains a formal judgment of reinstatement. He does not need any for his purposes. What he does need is to prove that he brought suit with the necessary allegations within the time the law permits and took [such other steps as-the law prescribes in¿the premises, and he must do this before the defendants can be compelled to answer to the merits of the shrievalty contest, for non constat that he can re-establish or reconstruct the lost suit or prove that' it was filed in time. Of course we at present ignore the documents and papers in the record upon that issue while we are considering this exception. Having re-established his lost suit, he can then proceed with his proof on his 'present allegations touching the®shrievalty contest.

There are other questions raised in the record which we do nottouch. The case went off on the branches of the exception which we have noticed and we decide no others.

It is therefore ordered and decreed that the judgment of the lower court is reversed and the cause is remanded for further proceedings according to law, the costs of appeal to be paid by the defendant appellee.


text:
    No. 1239.
    The State of Louisiana vs. A. A. Goodwin.
    In a prosecution for knowingly and maliciously sending' a'Jetter to another threatening to accuse him of a crime, undoc Act 64 of 1884, the use of the words “willfully, maliciously and feloniously ” ‘is the certain and entire' equivalent ,of the'words “knowingly add maliciously ” employed in the statute.
    An admission, made to avoid a continuance, that the prosecuting'witness had made frequent threats against the accused, does not debar .the;‘'State2from proving on the trial the times and circumstancesjnnder which such threats"were made.
    Proof of the truth of the charges threatened toHoe made is not per se a justification under the statute, though such proof, in connection with other evidence tending to rehut the malicious intent, might'under some circumstances be'admissible.
    This offense is entirelv'different from libel, and neither the letter nor the reason of the con stitutional provision permitting the truth of the libel to he given in evidence has any application here.
    The only qualification of the crime is that the.‘act denounced was done “knowingly and maliciously,” i. e , with malicious intent'; and while'charging that the malice must be established, ¿the judge did not err in charging that the particular character of the malicious motive was of no consequence.

      It is no obstacle to a conviction under Act 64 tbat tbe evidence might have supported the graver offense denounced by Act 63.
    The statute does not violate the constitutional guaranty of liberty of speech.
    APPEAL from the Twelfth District Court, Parish of -Rapides. Blackman, J.

      John 0. Wiehliffe and John 0. Ogden, District Attorneys, for the State, Appellee:

      B. P. Hunter and Jas. Andrews for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The indictment charges that the defendant “did willfully, maliciously and feloniously write, send and cause to be delivered to one William McCuen a letter threatening to accuse said McCuen of the crimes of arson, embezzlement and larceny, etc.”

A motion to quash was made, based on the grounds : “1st. That th indictment is so vague, indefinite and defective for duplicity that it is impossible to tell what is charged against him. 2d. That said indictment does not charge any offense known to the law of Louisiana; that there are two statutes of a similar nature, but the offense herein is not laid under either, and it is impossible to tell under which the prosecution is brought. 3d. That the distinction between the two statutes is the intent to extort money or the absence of such intent, and no intent is charged.”

We think the motion was properly overruled. The two statutes referred to are the Acts Nos. 63 and 64 of 1884, already referred to in the case of Peters, just decided. There is not the slightest obscurity as to the act on which the indictment is based. The absence of any charge of intent to extort removes it conclusively from the operation of Act 63 and confines it to Act 64. The latter act affixes no intent to the offense, except that it be done knowingly and maliciously.” The only question deserving attention under the motion is, whether the terms “willfully, maliciously and feloniously” are a sufficient equivalent for the words “knowingly and maliciously” used in the statute. It is not essential that statutory offenses should be charged in the precise words of the statute, provided terms of certain and equivalent import are used. State vs. Stiles, 5 Ann. 324; State vs. Pratt, 10 Ann. 191; State vs. Hendry, 10 Ann. 207; State vs. Butman, 15 Ann. 166.

We can conceive of no possible significance of the words “knowingly and maliciously ” which is not conveyed by the words “willfully, maliciously and feloniously.”

2d. Accused made a motion for continuance on the ground of an absent witness, by whom he swore he expected to prove that the prosecuting witness, McCuen, had made frequent threats that lie would send accused to the penitentiary, and that this is a false, wicked and malicious prosecution, instigated by malice and spite against affiant.” The State admitted the threats, but refused to admit the part in quotations, on the ground that it would be only an opinion of the witness. The judge did not err in accepting the admission as tendered, and in refusing the continuance.

We may here dispose of a later exception connected with this matter taken to the ruling of the judge permitting McCuen to prove the time and circumstances under which the threats above admitted were made. We can perceive no inconsistency between this evidence and the admission, and no error in the ruling.

3d. Bill No. 3, taken to all the evidence, on the ground that the indictment charges no intent and is not sufficient to support any proof, falls before the same reasons on which the motion to quash was overruled.

4th. Bill No. 4 covers an objection to a statement by McCuen that the threatening letter produced was written by accused “to the best of Ms knowledge and belief,” he having seen him write once, on the ground that it was only the opinion of witness. The objection has no merit}*and goes only to the effect of the testimony.

5th. The ruling excluding questions as to the contents of a letter without showing that the letter itself had been lost or mislaid was clearly correct.

6th. The objection to the reception in evidence of the threatening letter referred to in the indictment, on the ground that it tended to show an intention to extort money and to prove the offense established by Act 63, had no force. If it was “knowingly and maliciously sent,” and was a threatening letter within the terms of the statute, it would support the lesser offense under Act 64, whether or not it was designed to extort.

7th. The exclusion of testimony offered to prove the truth of the charges threatened to be made in the letter was not error, though, perhaps, the reasons given by the judge, as they appear on the face of the bill, are expressed too broadly. We are not prepared to say that in connection with, and as an element of, evidence going to show proper motives for the communication, and to rebut malice, the truth, or even an honest belief in the truth, of the charges might not, under some circumstances, be receivable in evidence. For instance, suppose the motive of the party sending a letter threatening to accuse another of a crime of which he believed him to be guilty had been to give the latter an opportunity of explaining his conduct and showing his innocence, if possible, before taking action, such facts would obviously rebut the imputation ot malice, which is an essential element of the offense. But where, as in this case, the truth was offered as, of itself and by itself, a justification, it was properly rejected.

The qualifications contained in the statute are “knowingly and maliciously,” not falsely or untruthfully, and _the malicious intent may be as clear in threatening to accuse another of a crime which he did commit as of one which he did not commit. And this is apparent from the context of the statute, which extends the denunciation to threats to accuse another of any “fault, misfortune, infirmity or failing? Surely the fact that the misfortunes or infirmities existed would not justify the letter or rebut the malice. The mandate of the law and the constitution, that in matters of libel the truth shall be received in evidence, lias no application to this case, which does not partake of the character of libel or even of slander, an essential element of which is publication, which is not]contemplated here. And the reason of the requirement is equally inapplicable. It may serve as some protection to society to let the world know that another is a criminal or an unworthy person, if that be true; but what good purpose is served by malicious and vindictive threats addressed privately to the criminal, and servirfgonly' to annoy and alarm him, without the remotest benefit to any other person]]?

The evidence was properly rejected.

8th. The next exception is to the following charge of the judge : “ If the jury find from the evidence that the accused sent the letter as charged in the indictment'—that is, if he lcnowimgly and maliciously sent the letter—and that it threatens to accuse McCuen of a crime, it makes no difference with what intent it was done, whether for extorting money or other valuable thing or for the purpose of defaming, it being necessary for the State to establish that it was knowingly and maliciously done.”

Counsel for accused contends that this charge entirely eliminates the questionMf intent from the consideration of the jury, and leaves nothing to be determined but the bare fact of sending the threatening letter. The language is not susceptible qf such interpretation. On the contrary, it could not more emphatically express the requirement that the sending must be malicious, i. e., with malicious intent. If malicious, it correctly holds that the particular character of the malicious motive is of no consequence. And such is the law.

9th. The last exception is to the refusal of the judge to charge the jury as follows: “If the jury finds that the intent was to extort money and not to maliciously injure the character and reputation of McCuen, then they ought to acquit the accused; that the prisoner is being tried under an indictment found under Act No. 64 of 1884, and they cannot find the prisoner guilty under the state of facts denounced by Act No. 63"of said session.”

The judge did not err in such refusal. The crime of “ knowingly and maliciously sending a letter threatening to accuse another of a crime ” may certainly coexist with an additional intention of 'extorting money, and the objection is robbed of all possible force when it is considered that .the latter intention adds to the penalty of the offense.

Some general remarks were [made to the effect that the statute, as thus construed, violates the constitutional guaranty of liberty of speech.

A bare reference to the judicious commentary of Mr. Cooley on this subject, wherein ho expounds the meaning and history of these constitutional provisions, with copious reference to authorities, will show that this contention has not the slightest foundation. Cooley on Const’l Lira., chap. 12.

Threatening communications, with the intention to extort money, have been common subjects of criminal legislation both in England and in the States of this Union. 2 Archbold Cr. Pr. and PL, p. L060 and notes.

The legislature of this State adopted similar legislation in the Act 63 of 1884. But recognizing the existence of an equally cowardly and reprehensible practice on the part of evil-disposed persons of vexing, annoying and alarming others against whom their malice had been excited, by sending anonymous or other communications threatening to expose them to public criticism by accusing them, generally falsely, of crimes or of humiliating infirmities or misfortunes, the legislature wisely extended the provisions of its criminal law so as to prevent or punish such acts.

It is a libel upon the noble privilege of free speech, guaranteed by our constitution, to say that it embraces or protects such despicable practices. We make this remark, of course, without reference to the facts of this particular case, with which we have nothing to do.

Judgment affirmed.


text:
    No. 1247.
    The State of Louisiana ex. rel. C. H. Mouton, District Attorney, vs. U. A. Guilbeau et als.
    In the absence of legislation to that effect, tax collectors are not entitled to make deduc - tions for charges and expenses incurred by them from the amounts realized by or chargeable to them.
    Mere delay in taking steps against a defaulting tax collector does not release his sureties when no time or prolongation is allowed by the State herself, and by the delay their rights to a subrogation is not impaired.
    The law regulating the relations between the State, through her fiscal agents, and the gatherers of her revenues, is one of extreme rigidity which must be strictly enforced. Under them and under the contract evidenced by the official board the accounts have to bo promptly and faithfully rendered at the appointed time and in the proper manner» otherwise the principal becomes a defaulter, and his sureties are liable with and for him in the mode and to the extent stipulated.
    A PPEAL from the Twenty-first District Court, Parish of Iberia. XjL Gates, J.

      O. B. Mouton, Relator, District Attorney.

      Felix Voorhies and Mouton & Martin for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit against a sheriff as defaulting tax collector, and against his sureties.

The defense by the defaulter’s legal representatives, he having died, is to the effect that he is entitled to be credited, 1st, with amounts due him by the State for necessary expenses and costs incurred by him in the collection of taxes; 2d, with a diminution on the ainount carried on the rolls for double and erroneous assessments and for amounts due by delinquents; and, 3d, with amounts paid by him iii tire treasury and not accounted for by the auditor.

The sureties plead further, that they were discharged by the dereliction of the government, in consequence of whose laches their rights of subrogation to those of the State have been destroyed.

From an adverse j udgment the defendants have appealed.

They complain here that they were illegally deprived, by the ruling of the district judge, of the right of establishing the credits averred on behalf of Guilbeau, the alleged defaulter.

The bill taken to the action of the judge excluding the proof offered, shows that it was pi’oposed to introduce in evidence an account for publication of delinquent tax sales in 1880, 1881 and 1882 due the Observer, a newspaper published under that name; a receipt of the clerk of conrt for amount paid by G-uilbeau for recording sales of property adjudicated to the State; a receipt of the Observer for publication of tax sales in 1883; two checks on a bank to the order of the State treasurer.

The evidence was ruled out “on the ground that compensation cannot be pleaded by a tax collector when sued for taxes collected by or chargeable to him. This would be practically to allow him to sue the State. The proper place to settle this was the auditor’s office.”

It is urged that the relations existing between the State and a tax collector must be assimilated to those of principal and agent, and that, in the absence of adverse legislation, recburse must be had to the general provisions of the law on the subject of mandate.

There can be no question as to the correctness of the proposition, but the law touching this matter does not authorize the agent to make any deductions. He is one and the same person with the principal. He must pay over what he has collected, and then claim reimbursement of the charges and expenses necessarily incurred by him in the execution of his mandate.

The law on the subject, E. C. C. 3023, distinctly provides, as a rule, that the principal ought to reimburse the expenses and charges which the agent has incurred in the execution of his mandate, and pay his commission when one has been stipulated. The agent has a right to retain the same only when they are admitted or where they should clearly have been allowed. This is not such a case.

The district judge well;says, however:

The mode of ascertaining the indebtedness of a tax collector is very simple. He is charged with the sum total of the assessment rolls and blank licenses, and it is his duty to offset these by vouchers of payments to the State—delinquent lists, sales of property made for nonpayment of taxes and adjudicated to the State, and such blank licenses as he may not have issued.

The revenue laws of the State fix the dates' at which his settlements shall be made, and if he fails to comply with those laws all presemptions are against him. * * * The State demands prompt payment of its dues, or a cleai showing of the reasons why not.”

It may well be, and it is no doubt the case, that, in adjusting their accounts with the State, lax collectors are allowed to retain all just amounts to which they might be otherwise entitled; but where they have not been permitted to make such deductions they cannot look for relief to the judiciary, but must address themselves to another branch of tlie government, which alone controls the funds in the treasury in the absence of special legislation.

It is upon this principle that in a similar case, recently decided at Monroe, (State vs. Bradly) this court held that a sheriff and ex-officio tax collector is not entitled to deduct from amounts due the State for taxes and licenses collected by him the cost of deeds and copies charged to the State in cases of purchases of land sold for taxes and adjudicated to the State.

The district judge was therefore right in excluding evidence to show cost of publication of tax sales.

In justification of his refusal to admit the two checks in favor of the State treasurer, he says, in his reasons for judgment, that the amount of both had been placed to the credit of the collector in the auditor’s and treasurer’s statements. This saying is verified by the record. Such being the case, his exclusion of the checks, if erroneous, has worked no injury. The checks might have been admitted, the objection to them going to the effect and not to the admissibility.

On the Merits.

The case of the State is made out, not only by proof, but also by the special defense setting up title to further credits.

There is no evidence establishing that the defaulting tax collector is entitled to any credit. The district judge, in his elaborate opinion, so finds and declares; so do we.

The defense of the sureties is, after all, simply, that, by the failure of the auditor and of the Governor to report Guilbeau as a defaulter to the General Assembly, and to publish him to the world as such, they have been deprived of their right of subrogation to the rights of the State in case of payment, and are thereby discharged from all liability on their bond.

It is true that the Code provides (E. C. C., 3063) that the jirolongation of the terms granted to the principal debtors, without the consent of the surety, operates the discharge of the latter; but there is nothing in the record to show that the State has ever granted to Guilbeau any prolongation whatever. It is not even pretended that the custodians of the fisc have arrogated to themselves such power which the sovereign alone could have exercised. State vs. Lanier, 31 Ann. 423.

In case of the Police Jury vs. Brookshier, tax collector, 31 Ann. 738, whicli was a synonymous case, the sureties having claimed a release because of an alleged delay in enforcing settlement, the court said:

“Their complaint is that the plaintiff was so dilatory in commencing proceedings as to imperil their safety. * * * It is not shown, nor even pretended, that whatever delay there was instituting proceedings either impaired or destroyed their right of subrogation or any other right. The right of subrogation is, indeed, the only one that could be impaired by delay, and it was not affected in any manner by tardiness in instituting this proceeding. The surety is discharged when he loses his right of subrogation. The mere delay to sue does not of itself produce that effect.” See Andrus vs. State, 4 La., 407, and Barnes vs. Crandell, XI Ann. 119.

The defendants contend that, although they did not seasonably establish in the auditor’s department that G-uilbeau was entitled to a credit for the difference between certain taxes, and the price realized by the property liable therefor, and which sold for less, still they should be credited therewith.

The only answer to this is that the law regulating the relations of the State with the gatherers of her revenues is one of extreme rigidity which must be strictly enforced, and that under them, and even under t]re terms of the contract evidenced by the bond signed by the collector and his sureties, the accounts have to be promptly and faithfully rendered at the required time and in the proper manner, otherwise the principal defaulter and his sureties become liable for his defections with and for him in the mode and to the extent stipulated.

The court can pass upon such questions only as may present an erroneous exercise of discretion or judgment on the part of the auditor and treasurer as custodians of public moneys.

In this instance they are not shown to have acted in an authorized manner.

The appellee claims that, in the judgment of the lower court, two of the defendants have been misnamed, and that the errors should be corrected. There can be no objection to that relief.

It is therefore ordered and decreed that the judgment appealed from be amended by striking from the names of Jean Olivier Bouvior tho first name Jean and substituting thereto the name Jacques, and from the name of Jules (?. Guidry the letter G. and substituting thereto the letter J., and that thus amended said judgment be affirmed with costs.


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    No. 1238.
    G. Seeligson & Co. vs. A. Rigmaiden & Co.
    An order granted and signed by the clerk for an attachment to issue needs no seal.
    A creditor who sues out an attachment solely on the ground that his debtor had given a mortgage to another creditor, and who is proved bo have asked a mortgage for himself before the mortgage complained of was given cannot complain of an unfair preference and justify an attachment on that ground.
    The damages awarded by a jury will not bo disturbed when no substantial reason appears therefor.

      j. PPEAL from the Fourteenth District Court, Parish of Calcasieu. . Beed, J.
    Geo. K. Wells for Plaintiffs and Appellants :
    One who lus acquiesced in the assessment of his property for taxes is ostopped from claiming that it is worth more than its assessment, or that he owns more property than was assessed, when he sots up such claim, in his own interest, to recover damages for its alleged illegal seizure, unless ho proves that his assessed property has increased in value since its assessment, and the amount of such increasod value at the date of the seizure; or that the property nob assessed was acquired by him since the assessment of his other pioport.v, and its amount and value at the date of the seizure.
    2. ’Where one, by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his previous position, the former is estopped from afterwards averring against the latter the existence of a different state of things at the same time. 5 It. 523 ; 4 Ann. 293; 5 Ann-368; 9 Ann. 528; 12 Ann. 473; 30 Ann. 50.
    3. The seal of court is nob required to ordors of court, rendered by the clerk in the exercise of his judicial functions. It is required to the writs which he issues in execution of such orders. The words “ orders or writs ” in Art. 774, C. P., are there used synonomously, and mean only process of court, issued in execution of its orders. C. P. 625, 774.
    4. When a clerk of court renders one of thoso judicial orders, the power to render which is conferrod upon him by statute, lie acts as a judge, pro hao vice; and such order is as much an order of court as if it had been rendered by the judge himself. 18 L. 482.
    5. In a suit by attachment, on the sole ground that defendant has mortgaged, assigued or disposed of, his {property, with an intent to give an unfair preference to some of his creditors, it is unnecessary to allege or prove that he has done so with intent to defraud his other creditors. The fourth clause of art. 240, C P., provides two causes of attachment, and makes an express distinction, between such a mortgage or disposition of property with intent to defraud creditors, and such mortgage or disposition thereof will), intent to give some creditors an ‘unfair preference. To justify an attachment, however on the sole grouud of such unfair preference, the complaining creditor must show that he has been injured thereby.
    6. A charge, under the fourth clause of art. 240, C. P., that a debtor has mortgaged, assigned or disposed of, his property, with intent to give some of his creditors unfair preference, does not necessarily involve a charge that he has done so with intent to defraud liis other creditors.
    7. On motion therefor, a mero clerical error or omission in a writ, should bo amended, nunc pro tunc, even where it is proposed ‘to amend an essential requisite of the writ. An omission or mistake in respect to ¿the seal is a proper subject for amendment. 3 Tex. 261; 49 Tox 633; 3 Ala. 250; 2 Sme&os &■ Marsh, 307; 1 Hill, 204 . 2 Brock. 13 ; 9 Porter1 320; 5 Pick. 663; 20 Pick. 38; 18 Woud. 675; 19 Wond. 99, 304; 11 Term. 331; 5 Blackf. 374.
    8. Attorney’s fees, for damages for alleged •wrongful attachments, are recoverable only for attorneys’services relating exclusively to the attachment; and then, only when tli^y have been paid, or where there has been a contract to pay a specific amount therefor.
    9. A. claim in reconveniion, for damages for an alleged illegal seizure, must contain the same “ clear and concise statement of the nature and object of the demand,” as is required in a petition in a direct action; and where several injuries are alleged, there must be a specific amount of damages stated for each injury averred.

      A. R. Mitchell and JT, A. Gallaugher for Defendants and Appellees:
    The} remedy hy attachment is stricti juris, and cannot be extended to cases not coming within the obvious intendment of the law.
    IjTo extension of its scope can be permitted .in consideration of equity, and the formalities prescribed are rigidly exacted on pam of nullity. 9 Ann., 586.
    Clerks shall issue all orders or writs m the name of the State of Louisiana and from the court from which they issue, aud shall seal thorn wish the soal of the court, and sign them with their own names designating their quality as clerks C. P. 774.
    Every act whatever of mau that causes damage to another, obliges him by whose fault it happens to repair it. C. C. 2315.
    Every person is responsible for the damage ho occasions, not merely by his act, but by his negligence, his imprudence or his want of skill C. C. 2316.
    Iu order to maintain a writ of attachment under the fourth sub-division ot art. 24o C. P., it must be shown that the debtor’s purposes were fraudulent. 32 Ann., 341; 30 Ann., 394 ; 26 Ann,, 641; 28 Ann., 819.
    The intent to defraud is tbe essential ingredient, and the simple act of giving a mortgage to a creditor to secure his claim does not of itself constitute a ground for a writ of attach - ment. 28 Ann., 818.
    Where defendant in an attachment reconvenes the allegation that plaintiffs, hy their uolawful attachment of his goods, have damaged him in the amount of three thousand dollars, is sufficiently clear and certain to admit of evidence tending to show the amount of pecuniary loss suffered by him in his business by reason of the attachment. 32 Ann., 341.
   The opinion of the Court was delivered by

Manning, J.

The plaintiffs, a commercial-firm of Galveston, sued the defendants, a firm of Lake Charles, for $2987.80 with interest from June 30, 1881, and attached their stock of goods. The defendants moved to dissolve and claimed damages for the injury caused by tbe attachment, which having been referred to the merits the whole issuo was tried by a jury who gave the plaintiffs judgment for their demand without interest and gave the defendants judgment for $3000 with interest, and the plaintiffs appeal.

One of the grounds of the motion to dissolve is that “ the order of the clerk in granting the attachment is not sealed with the seal of the court as required by’law.”

It is seriously taken for it is reno,wed in the brief, and it was seriously received for the judge charged the jury that the seal was “ossential to the validity of all orders of the clerk” and if they should find that its omission was not caused by plaintiffs and should dissolve the attachment on the ground alone of its omission, then they must not give damages.

There is no room for the supposition that the writ of attachment was confounded with the order for the issuing of the writ. The writ has the seal. There is no dispute about that, and the order does not need the seal. The writ goes into the sheriff’s hands and the seal authenticates it, but the order does not go from the clerk’s hands. The only significance of attaching'the seal to it would be to assure himself that he had signed it and the law does not require such purposeless acts of any officer.

The other ground of the motion is that the facts and allegations of the attachment proceedings are untrue.

The sole ground for the attachment alleged is that the defendants had mortgaged a portion of their property to another creditor with intent to give him an unfair preference “thereby entitling the plaintiffs, says the petition, to an attachment.” It turns out in the evidence that the plaintiffs had asked aud even insisted on the defendants giving them a mortgage accompanied with ail engagement to buy only from them, and the defendants refused to give it burdened with this onerous condition. They did not owe this other creditor as much as two hundred dollars hut he agreed to let them have goods not to exceed a given sum at one time and the mortgage was given to secure this continuing credit. There was no concealment about it. The plaintiffs could have doubtless had the same arrangement but they demanded his exclusive trade in articles in their line. The defendants did not give the mortgage until after the plaintiffs liad demanded one in their favour, and the refusal of the plaintiffs to credit them farther was the cause of their application to the other creditor.

Notwithstanding this refusal and the termination of their business relations, the defendants continued to pay them the balance that was due. Their purchases of the plaintiff's had reached the sum of $27,000 and they had paid all hut the balance now sued for. They paid $1500 or thereabouts after the plaintiffs had refused to credit them further. So far from exhibiting any desire or intention to defraud the plaintiff's or give any other creditor a preference over them, they evidenced the purpose to pay them as fast as possible and did auto their more obliging creditor only what the plaintiffs wanted should be done to them. The suggestion of a mortgage first came from the plaintiffs.

T3ie defendants’ store was shut up under the attachment eleven days—their credit was seriously impaired—all their creditors came down upon them and they lost trade, credit, and profits.

We are urged to impute fraud to the defendants because their property was assessed lower than its value. That habit is chronic all over the land, but the plaintiffs were not hurt by it. They never regulated their credit to the defendants by the value they put on their property on the assessment roll. It did not form an element in the plaintiffs’ estimate of what the defendants were really worth, and we cannot permit them to champion the State’s interest in. appearance when their patriotism and public spirit serves only to ward off responsibility for damages occasioned by a rash and illegal act.

Both parties wish us to end their disputes and not send them back to another jury. We shall gratify them, but shall leave them where we find them. The verdict has very much the appearance of an attempt by the jury to balance accounts. The'plaintiffs claim $2987. The jury give it to them and give the defendant $3000. We don’t know that we could do any bettor in such a case as this. The jury however made the mistake of giving interest where it was not due and of withholding it when it was due and left out eighty seven dollars through a clerical error—mistakes which we correct.

It is therefore ordered that the judgment of the lower court is amended by substituting $2987 ^ to that mentioned in the judgment as in favour of the plaintiffs and that the same bears five per cent per annum interest from June 30, 1884, and that the judgment in favour of the defendants so far as it allows interest on the same be stricken out, and that the defendants pay the costs of this appeal.


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    No. 1249.
    H. S. Burch vs. E. Mouton, Sheriff, et al.
    The occupants of a homestead have the same right tp travel and sojourn in other places for temporary purposes of health, business or pleasure that other citizens have; aud so long as such privilege is exercised in good faith, within reasonable limits and without inten tiou to change or abandon the homo, but with the fixed and certain intention of return, ing thereto, the homestead exemption is not affected thereby.
    A PPEAL from the Twenty-fifth District Court, Parish of Lafayette. •JjL DeBaillon, J. —--

      Olías. J). Oaffery for Plaintiff and Appellee.

      Oroio Girard for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff enjoins the seizure under execution of property belonging to Mm and duly set apart as Ms homestead.

There is no dispute that the case presents every feature of a valid homestead, except that, at the time of seizure, the property was not actually “occupied” by the debtor.

The evidence is clear and uncontradicted that the property constituted the home Of the plaintiff; that, being in ill health and acting under the advice of his physician, he concluded to try a change of residence during the summer months; that for'this purpose he took and occupied a residence in] Franklin, in St. Mary’s parish; that, being a poor man, he rented his own premises during the summer, with the express stipulation, however, that he was to retake it on the 1st of October; that he left his kitchen utensils and furniture on the place in charge of his Jagent, except two chairs and some bedding, which he carried with him; that he did return in September and has since occupied his home.

His own testimony is direct and positive, not only to the above facts, but that he never harbored the intention of abandoning his home or changing his residence, but had merely left it temporarily for the sake of his health and with the fixed intention of returning thereto in the fall.

His statements are corroborated by the testimony of other witnesses. All acts apparently inconsistent with his declared intention are satisfactorily explained.

There is no opposing testimony. The only question is whether such facts destroyed plaintiff’s oecujoaney in such manner as to defeat his homestead right.

Obviously they did not.

The law did not contemplate the conversion of the homestead into a prison, within whose limits the debtor and his family are bound to confine themselves perpetually under pain of forfeiting the right. The occupants of tire homestead have the same right to travel and sojourn in other places for temporary purposes of health, business or pleasure that other citizens have. So long as such privilege is exercised in good faith, within reasonable limits and without the intention of changing or abandoning the home, but, on the contrary, with the fixed and certain intention of returning thereto, exemption is not affected thereby. So plain a proposition scarcely needs the support of authority, but we mention the following, which are cited by counsel: Jarvis vs. Mac., 38 Wis; West River Bank vs. Gale, 42 Vermont; 30 Vt., 678; 17 Texas, 64; 18 Texas, 417; 20 Texas, 24, 96; 18 Ill., 194; 21 Ill., 178.

A bill of exception was reserved to the ruling of the judge permitting the plaintiff to testify to his intention.' The objection has no merit.

Judgment affirmed.


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    No. 1234.
    The State ex rel. Ed. Wentz vs. Robert J. Willson, Clerk Supreme Court at Monroe.
    Only one rehearing in any cause can be granted, unLess matters are decided which have not been previously considered and reserve has been made for the application.
    A petition for a rehearing filed after a judgment on a rehearing, in the absence of a reserve for such petition, will not be considered, and the clerk is authorized to issue a certified copy of the judgment, which lus become final, as though the application had not been

      Thomas O. Benton for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a proceeding to compel the clerk of this court, at Monroe, to deliver to the relator a certified copy of the judgment in his favor, rendered by this court at this place in June last.

The clerk justifies his refusal to issue the copy on the ground that the party cast by said judgment has applied for a rehearing, which has remained pending.

The record shows that two judgments were rendered by this court, at Monroe, in the suit in which the relator was plaintiff and Bernhardt defendant, th & first sustaining an exception and dismissing the suit; the second (on a rehearing) setting aside the previous one, dismissing the exception and allowing plaintiff judgment for a stated amount.

The case had boen argued and submitted both on the exceptions and on tlie merits, which had been duly considered; the former alone, however, having first been passed upon.

On the discovery of an error of fact, for which the court was not responsible, a rehearing was granted; and, on the rehearing, judgment was rendered setting aside the previous decree and granting plaintiff’s money demand in part.

The court adjourned sine die on the same day. The application for a rehearing was subsequently handed in.

Rule IX, par. 6, of this court provides:

“Only one rehearing in any cause will be granted, unless matters are decided which liad not been previously considered and reserve has been made by the court for an application.”

In the present ease, not only had the matters decided been previously considered, but also no reserve had been made for the application.

If every subsequent judgment rendered by this court could otherwise remain open to petitions for a rehearing, such judgments could never become final, and parties would be frustrated of the exercise of their recognized rights.

Interest reipwblicce'ut sit finis litium.

The record in this proceeding shows that Bernhardt, the cast defendant, was served With a copy of the petition and affidavit therein, making him aware that steps would be taken here for the purpose in view. He has interposed no objection.

The application for a rehearing cannot be considered.

It is therefore ordered and decreed that the rule herein taken be made absolute, and that the clerk of this court, at Monroe, do deliver forthwith to the relator a certified copy of the final decree of judgment of this court in the case described in the petition.


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    No. 1254.
    Caroline E. Heath et al. vs. Texas and Pacific Railway Company.
    Prescription begins to run, not from the building of a railway-bed, but from tlie time dam*’ age is caused by it.
    A railway company must so build its road-bed as not to impair tbe drainage of tlie land over which it passes, and must construct necessary cattle-guards and crossings, under penalty of paying damages for injuries caused by its omissions.
    The failure to stipulate in the donation of the right of way that cattle-guards and crossings must be provided does not deprive the donor from recovering for injury caused by want of them. They are incidents of railroad building. The company must build them for its own protection.
    APPEAL from the .Thirteenth District Court, Parish of St. Landry. Hudspeth, J. -

      H. P. Veagie and Thos. H. Lewis for Plaintiffs aud Appellees.

      Moseley <& Foster for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The plaintiffs sue for $6500 as damages for injury to their land by obstruction of its drainage, by digging pits and holes outside of the 150 feet width donated the company, by failure to construct crossings, and for injury to crops from not making cattle-guards in consequence of which stock entered. The injury from obstruction of drainage is claimed to bo $2,500—from inconvenience caused by want of crossings $1,500—from the pits and holes $2,000— from depredation of cattle upon crops $500.

Tlie case was tried by the judge alone who awarded $1,540, of which $1,000 was for injury to the drainage, $500 for injury to crops from cattle, and $40 for failure to make crossings.

There were also allegations that the injury was continuing and unless the defendant was compelled to do what was needful to prev, nt its perpetuity, great and increasing damage would be suffered. Upon this branch of the demand the judge ordered the defendant to make the needful crossings, repair the cattle-gap, restore the drainage, cut openings on the road-bed etc all before October 1, 1885.

The defendants pleaded the • prescription of one year supposing it began to run from the completion of the railway, March 1, 1882, The suit was brought August 20, 1883. Prescription begins to run, not from the building of the road-bed, but from the time the damage is caused by that act. Hotard v. Tex. & Pac. R. Co., 36 Ann. 450.

The tract contains about 175 acres of open land which is unequally divided by the railway track, 140 acres being- on the east of .it. It is on the bayou Petite Prairie in St. Landry parish, which runs north and south or nearly so. The railway crosses the bayou near the south - eastern corner of the tract, traverses the open land diagonally with a trend, and emerges at the north-western corner. The drainage is from the front to the rear—from the bayou to the swamp.

The testimony in suits such as this is always conflicting. Mr. Phipps, a civil engineer of the defendant, has made a plat of the tract and says the construction of the railway-bed has not impaired the drainage. Mr. Heath, a son of the widow Heath and her co-plaintiff, a man of twenty-six years who has always lived on the place and managed it for several years, says seventy acres of it is seriously injured. He says there were two natural drains running from front to rear which were totally stopped up by the road-bed—that ditches had been dug leading into and from these drains which were also stopped and an artificial drain parallel with the others was obstructed in like manner, and that water stood on the land, unable to escape. Previous to this the family derived a comfortable subsistence from the place, but since then renters had refused to lease from them or rented at reduced prices and their own cultivation of such parts as had not been rented was very much less productive. He goes into details and talks very intelligently. He foresaw that the road-bed would do the very injury it has done and while it was constructing remonstrated with the engineer who was ordering and superintending the work. He told him it would ruin a large part of the land and the engineer answered “ we do not propose to build this road to please the people but to suit ourselves.”

' He was equally prescient and careful about tho cattle-guards. He' requested the company to construct them at certain points and in a certain way that would have effectually prevented the ingress of cattle hut it was not done until after Ms crop of 1882 was injured seriously Each of these witnesses is supported by others. We have gone throu gli the testimony with care and we are unable to discover that we could better balance it than the district judge has done, or that we could alter his- conclusions and give a good reason for it.

There is no doubt upon the law of the case. A railway-company must so build its r oad-bed as not to needlessly injure the land over which it passes. It cannot obstruct drainage with impunity. It must make crossings and cattle-guards on pain of responsibility for damage caused by the omissiou to make them. Bourdier v. Morgan R. Co., 35 Ann. 947; Eatman v. N. O. Pac. R., Idem, 1018.

In the Eatman case there was an express stipulation in the grant Of the right of way that cattle-guards should be made. There is none in the plaintiffs’ donation, which was voluntary and without consideration, but they are entitled to these safeguards that are usual and necessary as much as if expressly stipulated. They are a part of the fixtures that custom and necessity requires for the operation of railroads through open cultivated fields. Rev. Civ. Code, arts. 1964-5. Judgment affirmed.