text:
    No. 13,552.
    State ex rel. New Orleans Land Co. vs. State Tax Collector, Third District et al.
    Syllabus.
    1. Tax assessments on property may be defective, and yet their validity may not be open to contest by certain parties. Parties may occupy such special relations to property as to withdraw from them the right of invoking the prescription of taxes levied thereon, or the pre-emption of tax privileges and mortgages resulting therefrom.
    APPEAL from the Civil District 'Court, Parish of Orleans— Ellis, J.'

      Dart & Kernan for Eelator, Appellee.

      Frank B. Thomas, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for the City of New Orleans, Defendant, Appellant.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, C. J.

Eelator alleged that it was the owner of certain property described'in its petition; that it acquired ownership from Philip H. Morgan, on the 27th of September, 1899, by act under private signature duly acknowledged. That the State of Louisiana claims as due on said property the taxes for the years 1884 to 1892, inclusive, amounting to the sum of two hundred and twenty-three dollars, and the city of New Orleans claims as due on said property the taxes for the years 1870 to 1892, inclusive, amounting to the sum of two thousand three hundred and fifty-six and 15-100 dollars, assessed as shown on the research certificate from the office of the State Tax Collector of the Third District and the office of the Comptroller of the cty of New Orleans, both of which are annexed hereto.

That the assessment of said property was null and void and the taxes hereon based were null and void, for the reason that no proper and correct description of said property was given whereby same could bn identified; that the correct description of said property was given upon .the record of the conveyance office for this parish in the transfer to Philip II. Morgan, in book 88, folio 714.

That said property was sold to the city of New Orleans on January 30th, 1892, for the taxes of 1880 to 1887, inclusive; that said tax sale was null and void and of no effect for the reason that the description of said property, under which said tax sale was alleged to have been made, was insufficient to describe and identify the same.

That no notice of the delinquency of said tax, or the seizure of said property therefor, was ever served on the tax debtor, Philip II. Morgan. That the said Philip IT. Morgan was an absentee from llie State of Louisiana and had no agent in New Orleans upon whom the notice could have been served.

That, in any event the taxes claimed by the city of New Orleans and the State of Louisiana for the years 1880 to 1892, inclusive, were prescribed and pre-empted by the prescription of three and five years, and the tax liens and privileges securing same were no longer enforceable.

That the said taxes for the years 1870 to 1879, inclusive, assessed in the name of Philip IT. Morgan, were null and void for the reason that the assessment thereof was null as hereinabove set forth.

In view of the premises, relator prayed that a writ of mandamus issue commanding the State of Louisiana and the city of New Orleans to cancel and erase from the records of their respective offices, the tax and tax liens and privileges and mortgages securing same, and to further cancel and erase the inscription of the sale to the city of New Orleans for the taxes of 1880 to 1887, inclusive, for the reasons and upon the grounds hereinabove set forth; or to the contrary to show cause on the day and date to be fixed by the judge, and relator prayed for all general and equitable relief.

The District Court rendered judgment commanding the State of Louisiana and the city of New Orleans, and the State Tax Collector of the Third District of New Orleans, to cancel and erase the taxes and-the tax liens and privileges and mortgages securing same, to-wit: The State taxes for the years 1884 to 1892, inclusive, amounting to $223, and the city taxes for the years 1870 to 1892, inclusive, amounting to $2,356.15, and, further, to cancel and erase the inscription of the sale to the city of New Orleans for the taxes of 1880 to 1887, inclusive, on the property described in relator’s petition.

The city of New Orleans appealed.

Opinion.

The relator in this case sought, in the District Court, by way of mandamus, not only to have certain State taxes, privileges and mortgages sustaining them, and certain city taxes, privileges and mortgages sustaining them, erased and cancelled, but also to have an adjudication alleged to have been made to the city on January 30th, 1892, in enforcement of taxes from 1880 to 1887, inclusive, set aside, on the ground that the assessments of the property were so radically wrong as to render sales made thereunder absolutely null and void, and on the further ground that no notice of the delinquency of the tax or of the seizure thereof for taxes was ever served upon Philip PI. Morgan, the owner of the property. Judgment was rendered in the District Court in accordance with the prayer, and the city of New Orleans appealed.

The State has made no appearance. The record does not show the service of the application for a mandamus upon it, nor does relator’s petition allege that the State officers ever were called upon to have the taxes erased. There is no averment in relator’s application either as to its being' itself in possession- of the property or of the city of New Orleans being presently in possession or claiming’ present ownership. The evidence introduced by relator touching the ownership of the property and the assessment of taxes thereon is, first: (1) A certificate from the State Tax Collector’s office, known as a “research,” which bears date of March 31, 1898. (2) An unsigned statement headed “Delinquent Tax Department City Treasury, New Orleans, December 3, 1898,” and (3) an act of sale from P. PI. Morgan, to relator, of date of the 25th of September, 1899.

The first consists of a paper containing in the one column the numbers of the years from 1867 to 1897, inclusive, and opposite to the same, in a second column, the name of Philip H. Morgan, down to 1885; opposite to the years 1886, 1887, 1888 and 1889, the words “Est. of Philip Morgan,” opposite to 1890, 1891, 1892, the words “Ludovic Delcazel,” and opposite to the years 1893, 1894, 1895, 1896 and 1897, the words “New Orleans Swamp Land Reclamation Company.”

In a third column are given the amounts of assessment and in a fourth column the words “Remarks.” In this latter column,-opposite to the years 1869 to 1876, are the words “Sold to J. P. Martinez, under Act 82 of 1884,” and opposite to the years 1880 to 1884, are the words “Sold to State under Act No. 80 of 1888.”

Across the assessments, from 1885 to 1892, are written the words “Cancelled by Judgment of Civil District Court, Section A, March 29th, 1900”.

Below this, in-the column of Remarks, opposite to the years 1893 to 1897, during which the property seems to have been assessed in the name of the “N. O. Swamp Land Reclamation Company,” is noted the fact that the taxes of those years were paid.

It was admitted on the trial “that the New Orleans Land Company,” the present relator, is the same as the “New Orleans Swamp Land Reclamation Company,” which it appears from the research of the State Tax Collector owned this property from 1892 to 1897.

The statement from the Delinquent Tax Department of the City Treasury, to which reference has been made, contains columns similar to those in the State research, but does not show in whose name the property was assessed from 1870 to 1889. In 1889 it was assessed to P. II. Morgan, in 1890 and 1892 to L. Delcazel, and from 1893 to 1898. inclusive, to the New Orleans Swamp Land Reclamation Company. On the face of the statement are stamped the words, “sold to the city, tax 80-87, Jan. 30th, 1892. Sale No. 1231.” There are some words and figures made with pencil on the statement, but when or by whom made does not appear. Most of the taxes are marked as “paid” in the colui'nn of Remarks. It was admitted on the trial that the sale mentioned in the research or certificate from the City Hall, showing that “the property was sold to the city for the taxes claimed therein from 1880 to 1887, inclusive,” sale No. 1231, on January 30th, 1892, “did take place and was registered in the conveyance oifice.”

Nowhere is it shown what description was made of the property upon the assessment rolls themselves.

The judgment rendered in this ease is erroneous. Independently of the question as to whether an adjudication of properly in enforcement of taxes could be set aside through a mandamus proceeding, the evidence introduced on the trial is entirely unsatisfactory. Neither this court nor the court below was properly advised as to the exact situation of this property, either as to its ownership or possession, or as to the taxes or tax mortgages and privileges upon it.

As matters stand, the appearances are that relator had, at some time, acquired the ownership of the property, under tax proceedings, and that it had subsequently attempted to supplement that title through a purchase from P. II. Morgan, and then repudiate its title acquired under the tax proceedings. In this we may be mistaken. The relator assumes, as a fact, that taxes and tax privileges and mortgages are prescribed and pre-empted by the prescription of and by the lapse of three and five years,under all circumstances and in favor of and against all parties.

We are not prepared to accept the correctness of that broad proposition, particularly when presented to us in this collateral manner and under such meagre and improper evidence. Martinez vs. Tax Collectors, 42 Ann. 677; Gulf States Land Company vs. Wade, 51 Ann. 252.

We are not satisfied that appellee’s position in respect to this property is such as to authorize him to attack the assessments he complains of.

We think the proper course to pursue in the premises is to reverse the judgment appealed from, and reject relator’s demand as of non-suit.


source: Caselaw Access Project

author: Niciiolls, C. J.

license: Public Domain

text:
    No. 13,760.
    State ex rel. William Garig et al. vs. Fred. D. King, Judge Division “B”, Civil District Court.
    Syllabus.
    Ill computing the ten days within which an appeal has to be perfected from an order of the District Court, appointing a receiver under Act No. 159 of 1898, Sundays are to be included.

      ^ PPLICATION for a Writ of Prohibition.

      John T. Whiiaher for Relators.
    Respondent Judge pro se.

   Statement of ti-ie Case.

The opinion, of the court was delivered by

Niciiolls, C. J.

The applicalion in this case for a prohibition is based upon allegations that on the 27th of November, 1900, relators presented for filing and granting to the Honorable Fred. D. King, Judge of Division “B” of the Civil District Court for the Parish of Orleans, in suit entitled Mrs. Harriet Shwartz vs. Rosetta Gravel Paving & Improvement Company, No. 63,385 of the docket of the Civil District Court, a petition for a suspensive appeal from a judgment rendered appointing a receiver to said company in said case, said judgment being rendered and signed by said judge on November 22nd, 1900.

That said judge granted said suspensive appeal returnable to the Supreme Court of Louisiana on the third Monday in December, 1900.

That before the ten days had elapsed from the rendering of the judgment appealed from, to-wit: on the 4th day of December, 1900, petitioners gave a good and solvent, bond in the full sum of two thousand dollars ($2000), the amount fixed by the court.

That in spite of said bond being given by relators, and in disregard of the delay accorded by law to petitioners to appeal, said judge made executory the judgment rendered by him on the 22nd day of November, 1900, suspensively appealed from.

That under the law said judge had no legal right to take the actiou he did in this matter, until the time allowed by law for taking a suspensive appeal had expired.

That the acts of said judge cause them an irreparable injury and damage. That in refusing to wait until the delay for taking this suspensive appeal should have expired, and issuing orders in conflict with relators’ legal rights, said judge exceeded the bounds of his jurisdiction, and caused relators an irreparable injury and damage.

That said judge had no right to act in the maltcr, pending the delay for a suspensive appeal, and the same was out of his jurisdiction, and any and all judgments or orders made by him during said period in conflict with rdlators’ suspensive appeal were, illegal, null and void.

That they desire to perfect their appeal, but the action taken by respondent judge herein will deprive them (unless a writ of prohibition is granted), of any benefit they could get from same.

That they are compelled to apply to this court for the protection.of their legal rights.

The prayer of the petition was that a writ of prohibition issue directed to the defendant judge prohibiting him from taking cognizance of the case referred to and to abstain from exercising any jurisdiction over tite matters pertaining to the said case, until relators’ suspensive appeal has been legally disposed of.

Annexed to this petition was the following order of the District Court:

“On motion of Lazarus & Luce, of counsel for Peter Stifft, receiver herein, duly qualified under the decretal order rendered herein on Nov. 22nd, and which order appointing your mover as receiver was signed on the date of its entry; and on suggesting to the court that intervening petitioners moved this court on 27th day of November for a susIjensive appeal to the Supreme Court of this State, and that more than ten days have elapsed since the decretal order of appointment was rendered and signed, and that the said intervening parties appealing have not furnished a bond as directed by the order granting said appeal within the time limited by the statute in such cases, made and provided as per certificates of clerk of court, attached hereto, that the effect of their neglect to perfect their appeal has been, under the law, to abandon the same, and in consequence thereof, your mover is entitled to immediate possession of the assets and effects of said Rosetta Gravel Paving & Improvement Co., of which he has been duly appointed as receiver.
“It is ordered, that Peter Stifft, receiver of the Rosetta Gravel Paving & Improvement. Company, he and is hereby directed to demand of Charles Mendelson, manager and acting president of the Rosetta Gravel Paving & Improvement Company, possession of all its property and its effects and to hold the same until the further orders of this court, as receiver, for due and proper administration, and until the further orders of this court; and that he immediately proceed and take an inventory of the property delivered into his possession, and to return the same into this court with all reasonable dispatch; that he, the said receiver, hold himself at all times, and the property under his possession, as receiver, subject to the further orders of this court. (Signed) Fred D. King, Judge. . New Orleans, Dec. 4th, 1900.”

The district judge having been ordered to show cause 'why (he writ should not issue as prayed for, answered that in the cause entitled Harriet Shwartz vs. Rosetta Gravel Paving & Improvement Company, “allotted to the division of the Civil District Court over which respondent presides, after due hearing and for cause sufficient, in respondent’s opinion, to justify judicial action, lie did, on Nov. 22nd, 1900, by formal decretal order, appoint Peter Stiift as receiver of said Rosetta Gravel Paving & Improvement. Company, and as appears by the record, said Peter Stiift furnished the bond directed under said decretal order, and qualified in accordance therewith.

That on the 27th of November, 1900, Wm. Garig and others, averring themselves to he creditors and stockholders of said Rosetla Gravel. Company, presented their motion for an appeal from the order entered in said cause appointing a receiver; that the amount of the appeal bond was fixed at $2000, and the moving parties made said appeal returnable to the Supreme Court on the third Monday in December, 1900, and that no appeal was either asked or taken by the Rosetta Gravel Paving k Improvement Company, the defendant in said cause.

That, while under Sec. 4 of the statute No. 159 of 1898, immediately upon the decretal order being entered, the receiver appointed is entitled to take possession with his functions suspended in the event of an appeal, except for conservatory purposes, respondent, at the request of counsel for said defendant corporation, and being advised that an appeal had been taken, suspended the receiver’s possession, until an opportunity was afforded the appealing intervenol-s to perfect their said appeal; that under, and by virtue of the 4th section of the Act above referred to, an appeal from a decretal order appointing a receiver must be taken and perfected within ten days from the entry of said decretal order; that said appeal, as appears by the record and the clerk’s certificate attached and made part hereof, was not perfected within the time limited by the statute — that is to say, within the ten days from the entry of the decretal order appointing the receiver, the bond only having been filed on Doc. 4th, at 2:45 p. m., after the order hereinafter referred to, had, upon motion of the complaining paifies, been entered with directions to said defendant corporation to surrender possession of its property, rights, credits, and assets, to the receiver appointed in the cause, and that respondent, as appears by said order directing the receiver to take possession, as aforesaid, acted upon the statements contained in said motion, and which are true in point of fact, as disclosed by the record and docket entries of the court in said cause.

That the failure upon the part of the intervening appellants to furnish the bond within the time prescribed by law, was an abandonment of their appeal, and justified the action taken by respondent in said cause — and this, independent of the right which respondent had, inimediately upon the appointment of the receiver, to send him into possession of the company’s property and assets, as aforesaid:

That, under Sec. 4 of the Statute of 1898, hereinabove referred to, the appeal in the cause should have been lodged within ten days from the granting' thereof; that the return day for said appeal, erroneously fixed as the third Monday in December, was attributable to the appellants, and did not comply with the statute with reference to the return day of appeals from decretal orders appointing receivers; and that the time fixed by the statute for the appeal and its perfection, as well as its return, are running days. See State ex rel. Pharmaceutical Association vs. Secretary of Stale, 52 Ann. 942; Schenck vs. Schenck, lb. 2104.

That the-motion for an appeal is further defective, in this that it is not accompanied by the requisite affidavit provided for in Section 4 of said statute, the parties appealing being intervenors in said cause.

That the application herein for writs of prohibition against respondent, is not in itself sufficient to invoke this court’s jurisdiction, inasmuch as the affidavit for said relief should have been made by the parties in interest, and not by their attorney-at-law, there being no declaration upon the part of said affiant that the principals invoking the jurisdiction of this court are absent from the parish or State.

In consideration of the premises and the recital of facts hereinabove made, respondent, attaching hereto the record in the cause, for the inspection and consideration of this court, prays that the application for writs of prohibition directed against respondent, in the cause above-entitled and numbered, be denied at relators’ costs; and that respondent be discharged and relieved from the operation of said writ herein applied for.

Opinion.

Li relators’ brief accompanying their application they state that ‘The sole question involved in this matter, is whether Sunday should or should not be included in the ten days allowed for taking a suspensive appeal. It will be seen that two Sundays intervened between the 22nd day of November, 1900, and the 4th day of December, 1900, and excluding Sundays the 4th day of December was the tenth day within which an appeal could be taken.” They argue that as, under Articles 575 and 624 of the Code of Practice, Sundays are excluded from the number of days within which a suspensive appeal can generally be taken, the same rule applies to appeals taken under Act No. 159 of 1898.

The Act referred to is entitled “an Act to authorize and regulate the practice of appointing receivers of corporations, under Articles 109 and 133 of the Constitution. The first section of the Act provided for the appointment by the District Court of the State, under different states or conditions of facts stated, of receivers to take charge of the property and business of corporations. The second, points out on what application, and at whose instance the appointment is to be made. It directs that the court should cause a copy of the petition presented together with an order, requiring it to show cause on a day fixed (not less than ten days from the date of such order unless circumstances shown require in the judgment of the court, a shorter delay), to be served on the corporation, and such application should be heard and determined by the court in a summary manner in term time or vacation, and without the intervention of a jury.

The 4th section authorizes any person or persons who by affidavit appear to be interested, on giving bond in a sum to be fixed by the court, to appeal, on the face of the record from any order appointing or refusing to appoint a receiver, granting or refusing an injunction (as provided for in the third section), and declares that such appeal when perfected shall have the effect of suspending the functions of such receiver, except to perform such administrative acts as may be necessary for the preservation of the property; provided that such appeal be taken and perfected within ten days from the entry of -the order appointing o” refusing to appoint a receiver or granting or refusing to grant an injunction. That such appeal should be returnable in ten days from the date of such order and should be tried by preference in the appo1late court.

The General Assembly in the act in question was dealing with a particular subject and it evidently intended to regulate and cover the whole practice concerning that particular matter. The terms of the Act show that it was deemed important to have the issues which might be raised under it speedily determined, for they were to be disposed of in the first instance summarily, and this either in term time or in vacation.

Article 318 of the Code of Practice under the heading “Of Appearance and Answer of the Defendant”, is as follows:

“In the delay for answering; Sunday is included like other days, but in all cases where delay is given either to do something or to answer, neither the day of serving the notice nor that on which the act is to be done or the answer filed, are included.
“The exceptions to this rule are specially provided by law.”

Sunday, not having been specially excluded from the ten days during which the right to appeal was granted by Act No. 159 of 1898, we are of' the opinion that it must be included in counting those days. (See State ex rel. Pharmaceutical Association vs. Secretary of State, 52 Ann. 942.)

Eor the reasons assigned, it is ordered and decreed that the temporary restraining order hereinbefore issued be and the same is hereby set aside, and that the relators’ application for a prohibition be and the same is hereby refused.


author: Breaux, J.

text:
    No. 13,746,
    Margaret Dorsey vs. Kansas City, Pittsburg and Gulp Railway Company.
    Syllabus.
    Defendant appeals and asks for the review and reversal of a judgment condemning it to pay damages to the plaintiff who is the widow of the deceased.
    Defendant’s brakeman, instead of waiting a few moments to oust a trespasser after a stop of the train, chose to pelt him with rocks and clods to make him get off the rods where he was riding, stealing a ride, under the car.
    The trespasser, in endeavoring to escape from under the car while it was running, fell and was killed. It was within the course of the brakeman’s employment to compel him to stop trespassing and leave the car, and had he exercised the right in a proper and legal manner, there would have been no good cause to complain. The damage arose from the manner of the removal. It -was unnecessarily violent and illegal. The act of trespassing was not, of itself, contributory negligence justifying defendant's servant to resort to the acts he did, when there is not the least reason to infer that there was necessity to resort to any violence at all to remove the trespasser.

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

      Wise & Herndon and Qharles W. Liam, for Plaintiff, Appellee.

      Alexander & Wilkinson for Defendant, Appellant.
   The opinion of the Court was delivered by

Breaux, J.

Plaintiff brought this suit to recover five thousand dollars damages for the death of her husband, who was killed while stealing a ride on defendant’s train.

The record discloses that a brakeman of the defendant company thi ew stones or clods at plaintiff’s husband, who was riding on the rods of cie of the box cars, about midway of the train.

It appears that the local freight train of the defendant company, going north, was at or near Mansfield, La., running at the rate of about six or seven miles an hour, and that when the engine passed the switch target a brakeman alighted to the ground from the engine to change the switch and lot the train in on the side track out of the way of a coming passenger train. As this freight train was passing by the switch, this brakeman saw Marshall Dorsey riding under the box car. It was then, while he was under the car, that he pelted him with stones or clods, hitting him twice. Dorsey then attempted to crawl from under the ear, struck his head against the platform, by which he was thrown across the track and run over by several of the ears. He made no attempt to get off the train until the brakeman threw rocks or clods at him. He was, by his fall, occasioned by his endeavors to escape the rocks or clods, severely wounded, suffered great agony, and lived about eight hours after the accident.

On the part of the defense, testimony was offered of statements of .the deceased that he had stolen rides for many years. Defendant denies that the death of plaintiff’s husband was caused by any fault of its agents. It charged that plaintiff’s husband came to his death by his own fault and negligence. Defendant also denied that the deceased was the husband of the plaintiff. The case was tried before a jury. The verdict awarded twenty-five hundred dollars to the plaintiff. The defendant prosecutes this appeal from the verdict and judgment.

Defendant, in the first place, urged that Ryan, its brakeman, was not acting within tbe scope of his employment; that in order to recover, it was incumbent upon the plaintiff to show affirmatively that this brakeman was acting within the scope of his employment; that not only this proof was not made, but that the brakeman testified that it was not part of his duty to put trespassers off of the train, his duty being to report trespassers to the conductor for such action as this officer might deem proper.

In order to retain the full force of the defense, the defendant requested the judge of the District Court to instruct the jury, in delivering his charge, that if they found that no contractual relations existed between tlie deceased and the railway company, then the company was not responsible for any acts of its brakeman outside of the scope of his employment. The judge refused to give this charge, but, on the contrary, instructed the jury that the removal of trespassers from the cars, as a matter of law, is within the implied authority of the company’s servants on the train, including the brakeman. Defendant complains of the charge as being erroneous.

At the outset, we find no difficulty, after having considered a number of decisions upon the subject, in arriving at the conclusion that, even though one be a trespasser on a train, he should not be expelled in such a manner as to expose his life or do him great bodily harm. This point has been considered and passed upon twice recently. While a mere trespasser is not entitled to the consideration and protection of those who are not trespassers, yet they should not be treated with unnecessary harshness and violence. No one, in the exercise of his right, is author-i'.ei to, resort to unnecessary force.

This court said, in Young vs. Texas and Pacific Railroad Company, 51 Ann. 295: “A trespasser on a railroad train must be ejected at a place not perilous for one alighting in the'night time.” Again, in Jackson, Tutor, vs. Railroad Company, 52 Ann. 1706: “Upon the other hand, if he was forcibly ejected by anyone for whom the defendant is rc sponsible, he is entitled to recover, no matter why he got on the train, since there is no law authorizing the taking off of a bojr’s arm at the shoulder as a penalty for trespassing on railroad, or any other, property.”

The jurisprudence of the courts of several other States is equally as emphatic and to the point. “A trespasser, one stealing a ride, was ruthlessly removed and injured by a brakeman. The court held that this brakeman, as such, was acting' within the scope of his authority.” Kansas City, Fort Scott and G. R. R. Co. vs. Kelley, 14 Pacific Reporter, 172. And held further “that while the defendant had a right to remove- the ti(sspasser, but in so doing must exercise the-right with ordinary care and prudence on its part — the mere fact that one is a trespasser was not such negligence as to relieve the defendant from this obligation.”

This brings us to a consideration of the question directly placed at ic,sue by the refusal of our brother of the District Court to charge that the removal of a trespasser is not within the expressed or implied authority of a brakeman, and his instruction, on the contrary, that the removal of trespassers from cars, as a matter of law, is within the implied authority of the company’s servants, including the brakeman.

We take it that the rule exempting the master from, responsibility is expressed in the following: When the employee, in carrying out a purpose of bis own, does injury to another, not within the scope of his employment, the employer is not liable. We have not found it possible to hold that the act complained of falls within the grasp of this rule. The brakeman was not, at the time, seeking to protect his own, or resisting the act of a trespasser in so far as he was concerned, but was acting for the employer, seeking to get rid of a trespasser who had placed himself in an exposed position, dangerous to himself and against (•very requirement of the rules regulating the business and operations of the defendant company. The act complained of was done in the course of his employment. We understand that the first duty of the brakeman is to apply the brakes, either to enable the car to move onward or to stop, but there are, we take it, other duties he is at times called upon to perform. TTe is under the direction of the conductor, who is himself responsible for the proper management of' the train. Without an express order, we take it, that, in aiding to man the train properly, he may, of his own motion, see to the removal of a trespasser vho is stealing a ride suspended under the car on or very near the running gear of the cars, in the condition of which, the brakeman, as an employee, must, to some extent, be concerned. With reference to the liability of the defendant for the acts of its brakeman the Court of Appeals of New York held that the defendant is responsible, unless the brakeman used his authority for a mere cover for accomplishing an independent and wrongful purpose. Hoffman vs. N. Y. Central and Hudson R. R. Co., 87 N. Y. 31, citing a number of authorities in support of this proposition. The decision in Pierce, administrator, vs. North Carolina R. R. Co., 44 L. R. A., is directly in point. The tortious act complained of in that ease was the act of a brakeman of a railroad company.

The Civil Code prescribes that "masters and employers are answerable for the damage occasioned by their servants and overseers in the exercise of the function in which they are employed.” The liability must he limited within due hounds, hut not to the extent, however, of holding that the employee is not acting within the scope of his employment, who, as in this ease, removes one from a place directly under his eye as a brakeman in charge, to some extent at least, of the brakes and the part of the car to which their force and effect extend.

The defendant calls our attention to the fact that the article just quoted further provides that “even then the master is not responsible unless he could have prevented the damage and did not do it.” This article has, of late years, been invoked both in the courts of this State and in the Federal courts. The view pressed upon our attention was not sustained. It was held, in repeated decisions, that the employer is constructively present; that the management is his, for him, or in his incerest and that he can not avoid liability by the plea that he was not present at the moment of the accident. The master or employer is present by his management and by the effect of the employment of one to serve his ^interests.

The agent entrusted with the performance of a duty occupies the place of the corporation, which is deemed present. Mattise vs. Ice Co., 46th Ann. 1535.

The «removal itself of the trespasser was proper. The act of i-emoval was the cause of damage. In consequence, this cause does not fall under the rule laid down in the Williams vs. R. R. Co. case reported in the 40th Annual, cited by the defendant. - In the cited case, the “porter or brakeman” was not called upon to perform any duty in which the defendant company was concerned. He brutally assaulted a stranger, one between whom and the defendant there existed no contractual relations. The wrong-doer acted entirely from malice unconnected with anything due by him to the company. His employment contemplated no such act as that of which he was guilty. Here the brakeman was seeking to oust a trespasser who was trespassing upon the property of his employer. Defendant cites several decisions rendered before commerce was as active as it is now and prior to the employment of rapid and frequently dangerous modes of transportation.

The earlier doctrine has necessarily undergone some change owing to the change of conditions and dangers. “The earlier doctrine has been greatly modified.” 40 Ann. 37.

This being our conclusion on this point, we deem it useless to review the cited decisions in cases in which the employee was not acting within the course of his employment. We are decidedly of the opinion that the diameter of the employment placed the onus of proof on the defendant, showing that its brakeman was not expected to, and never exercised any supervision over, the appliances under the cars.

We do not gather from the evidence that there is the least merit in the allegation of , defendant that plaintiff was not the wife of the deceased.

We are now to consider the amount which has been awarded, and determine whether it should be increased or reduced. Plaintiff asks for an increase, and defendant, on the other hand, complains of the amount and urges that it is too large.

The jury, by its verdict, has fixed the amount. We have determined, in view of the facts of the ease, to let it remain.

Por the reasons assigned, the verdict and judgment are affirmed at defendant’s costs.


author: Nicholls, O. J.

text:
    No. 13,724.
    Marie Hebert vs. Louisiana Western Railroad.
    Syllabus.
    The engineer of a train running on schedule time, on its own right of way, in the open prairie away from any town or crossing, is not called upon to immediately slacken its speed, from the simple fact that a trespasser, sitting upon the ties, does not at once rise and change his position on receiving warning of the approach of the train by the ringing of the bell, and the blowing of the whistle, duly and properly given.
    The engineer has the right to assume that he will ultimately obey the signals and is not held to presume, in the absence of some special circumstance, that the inaction of the trespasser is due to some physical cause or infirmity which prevents his leaving the ties.
    APPEAL from the Fifteenth Judicial District, Parish of Calcasieu— Miller, J.

      Paul A. Sompayrac for Plaintiff, Appellant.

      Denegre, Blair & Denegre and Pujo & Moss, for Defendant, Appellee.
    The opinion of the court was delivered by Nicholls, O. J.
   Statement op the Case.

Nicholls, O. J.

The plaintiff, widow of Vilier Hebert, seeks judgment for ten thousand dollars against the defendant company for damages-caused her by the killing of her husband, alleged to have been caused by the fault of the said company.

She alleges that, on February 10th, 1900, her said husband was sitting' on the track, or right of way of said above named company, at, or near the town of Welsh, in Calcasieu parish, Louisiana, with his head down apparently under an influence that deprived him of the exercise of his senses and strength; that the engineer in charge of and running passenger train No. 9, west bound, operated by said company, had notice of the condition and position of the deceased, on that occasion, when said train was fully six hundred yards from him, and that he could easily have stopped said train and obviated killing her husband, but that he carelessly and in utter disregard of the preciousness of human life, ran said train onward — struck her husband with same, fracturing his skull, from the effects of which he died within a very short time.

That her husband was guilty of no contributory negligence and that his death was caused by the fault of the employees of said company, their negligence and want of skill.

Defendant, after pleading the general issue, admitted that plaintiff’s husband came to his death by accident on February 10th, 1900, while seated on defendant’s track, but denies that said accident was due to fault or negligence on the part of the defendant, or any of its officers, agents or employees, and avers that said accident was contributed to and caused by the deceased’s own gross negligence in voluntarily and unnecessarily placing himself in a position of obvious danger on defendant’s track, and in failing while there, to exercise proper or any care or caution, to avoid being run over by a passing train.

Judgment was rendered in favor of defendant.

Plaintiff appealed.

Opinion.

This suit is brought by Marie Hebert, as widow of Vilier Hebert, claiming damages from the defendant company for the death of her husband. It is claimed that the husband was killed by being struck on the head, by some part of a train which was being operated by defendant’s employees, and that the injury was received as the result of gross fault and negligence on the part of those employees.

The evidence shows that the deceased, Vilier Hebert, lived about two and a half miles west of the village of Welsh, in the parish of Calcasieu; his residence being about a quarter of a mile to the south of defendant’s tracks. He had lived in this same place for many years and must therefore have been familiar with the whole local situation. The testimony shows that he made a practice of going to Welsh every Saturday morning and returning home in the afternoon. That he made the trip along the defendant company’s track, both ways, by walking along the track.

On February 10th, 1900, he made his customary Saturday visit and started homeward in the afternoon. When he had reached a position on defendant’s right of way almost opposite his own house, he sat down on the outer edge of the ties or between the ends of the ties, which cross the track. He had been seated at this place about half an hour when defendant’s regular west hound passenger train approached hint from the direction of Welsh, running at a speed of forty or forty-five miles an hour, struck him on the head as it passed, and killed him instantly.

lie had been seen sitting upon the ties by the engineer and fireman some time before they reached him, and he was warned of the approach of the train by the ringing of its bell and the blowing of its whistle, but he remained seated, paying no attention to the signals given, further than to turn his head partly towards the locomotive bearing down upon him.

The plaintiff’s counsel concedes, that in order to sustain his action he must bring it within the exceptional class of cases where a plaintiff, in spite of being guilty of contributory negligence is entitled to recover damages for injuries received by him, and this he has undertaken to do. He contends that the attempt to stop the train by the application of the brakes was made when it was useless to have made the attempt, as it was obvious that the train could not then he stopped before reaching Hebert; that the attempt to hold up the train at that lato time, might- well have been omitted altogether, so far as any practical good to result therefrom was concerned.

His contention is that the train was passing through an open prairie country on a straight line, with an unobstructed view ahead for over a mile; that Hebert was, in point of fact, seen sitting on the track for a half a mile before he was reached; that it was the fireman’s duty to have immediately rung the hell and the engineer’s duty to have, at once, blown his whistle, so as to apprise Hebert of his danger. That having done so, and seeing that no notice was being taken of the signals, it was the duty of the engineer to have commenced applying his brakes, at a point sufficiently removed from the deceased to have admitted of the stopping of the train, and not to have delayed doing so until the attempt to stop would manifestly prove ineffectual.

He claims that the brakes should have been applied earlier than they were, and that had this been done, the life of the deceased would not have been sacrificed. He further contends that the evidence shows that the deceased was observed by the trainmen on the ties “with his head down”, and his position was such as to have at once notified defendant’s employees that he was suffering from some physical trouble, and they should have taken precautions accordingly.

The precise distance from Hebert at which the train bell began ringing, and the train whistle commenced blowing is not definitely fixed, but we think it is shown that when the brakes were first applied it was too late, so far as the complete stopping of the train was concerned, to have avoided the accident. The trainmen say they saw nothing sufficiently peculiar in Hebert’s position at the end of the ties, to have aroused their suspicions as to his being there under extraordinary conditions. That it is a matter of constant occurrence for men to sit down at the end of the railroad ties and remain sitting, though they hear the signals, until just before the train reaches them, when they will rise and “make motions at the engineer”; by which we understand them to say that this continued sitting on the ties by these trespassers is often purposely done, merely to exasperate the engineer, or because considered as a joke, in seeking to make him hold up his train uselessly.

The train was being operated at the point it was, at a legal rate of speed on schedule time. The engineer was not called upon to slacken its speed upon the bare possibility that unless this should be done, an injury might result by reason of the unknown physical condition of a trespasser. The evidence shows that in point of fact Hebert heard either the ringing of the bell or the blowing of the whistle before the engine reached him, for he turned his head in that direction, though he did not attempt to rise.

We think he had ample time to have escaped unless from sickness or some physical trouble not explained, he was unable to rise at all. Plaintiff suggests that the day was bitterly cold and Hebert had succumbed to the freezing weather, but this is pure conjecture. The evidence does not disclose that he had been sick or that he was sick when the train reached him. Why he did not push himself off from the end of the tie even if he did not rise to his feet, or why he did not rise to his feet, is not explained.

Although it was too late when the brakes were applied to have stopped the train before Hebert was reached, yet the ringing of the bell, the blowing of the whistle, and the slacking of the speed of the train, gave Hebert timely opportunity to have saved himself by his own efforts.

After consideration of the evidence adduced in this case, we are of the opinion that the judgment appealed from is correct and it is hereby affirmed.


text:
    No. 13, 740.
    Charles J. Chaison vs. A. W. Wehrt.
    Syllabus.
    Primarily, all municipalities have charge and control of the banks of navigable streams withiD their limits. When a third person claims a right to those banks, growing out of the fact that he is owner of riparian property, or out of the fact that some one who acts under an authority granted by the municipal corporation infringes upon his rights as owner of property adjacent to the riparian property, he should bring suit against the municipal corporation and make it the principal defendant. The right which the public has, or may have, to the use of the property cannot be affected in any manner unless the representative of the public, the municipality, ismade a party to the suit and the issues decided contradictorily with it. To determine any question growing out of such issues against a private individual who disclaims any right and who, in reality, has none except those he has exercised as owner of a ferry boat and under a resolution of the corporation, would he doing a vain thing.
    APPEAL from the Fifteenth Judicial District, Parish of Calcasieu— Bead, J. ad hoc.

      Cline & Cline for Plaintiff, Appellant
    . Eleinpeter & Eleinpeter for Defendant, Appellee.
   The opinion of the Court was delivered by

Breaux, J.

This action is petitory and for rent claimed. The lot sued for is situated within the limits of the city of Lake Charles. It is described as being bounded on the east by Front street, on the west by the lake known as Lake Charles, and 'on the north and south by lines which are extensions respectively of the north and south lines of Pujo street, if prolonged. •

Plaintiff claims title down from the United States to his own. He avers that defendant has possession and use of the land in question and ho demands rent for this use and possession. It appears that the land is contiguous to Lake Charles, a navigable stream, being a widening of Calcasieu river. This lot abuts on the Lake Charles.

' Petitioner claims that the shores of this lake are a part of the public highway, and sets forth that at this point the lake is shallow for some distance and that vessels can not be brought to the bank to receive and discharge freight, and because of this it is necessary to build wharves out from the banks to navigable water, where vessels are loaded or unloaded and passengers find their way to or from these vessels. Plaintiff claims that as front proprietor he has the right to build wharves as wide as his lot and extending into the navigable water; that this right is valuable to him; and that he can not be divested of it without compensation.

The defendant, on the other hand, seeks to meet plaintiff’s proposition by averring that he can not be condemned for the reason that he does not claim the ownership or possession of the lot claimed by plaintiff or of any improvement thereon. The evidence shows that the wharf on the front of the lot was built by subscription, a number of interested parties contributing the funds needful for its construction. In the District Court, plaintiff’s suit was dismissed as in the case of non-suit. From the judgment, plaintiff prosecutes this appeal.

We glean from the evidence that the wharf, which rests on the front of the property claimed by plaintiff, is used by the public generally in crossing the lake backward and forward, and that in the line of his business as ferryman, defendant uses it for landing his steam ferry boat.

But defendant declares as a witness that he is not in possession of the wharf, is not its owner, and that it is not in his control. His boat crosses the lake six or seven times a day, according to schedule of round trips, and on the east side of the lake it lands at this wharf. There is a building on the wharf used by the passengers as a sitting room. Defendant, the evidence shows, has the exclusive use of this wharf as a feiry landing. The only authority he has for this use was issued by the council of the city of Lake Charles, by resolution, a copy of which was admitted in evidence. This resolution shows that the city granted to certain individuals the right to build a wharf at this particular place and 'of using a terminus mentioned in the resolution in question, situated on the bank of the lake, and this is the right under which defendant operates his ferry and effects his landings at the east bank of the lake.

' Our attention is immediately attracted to the fact that the defendant is not the owner of the property, nor does he own or control any right to it, rendering it possible to hold him bound in a petitory action. The local municipality may have rights. The defendant being its licensee, we think it only just and fair to let the case come up contradictorily with the authority having in charge certain rights on navigable streams at that place. The court will not undertake to say in this case that the municipality is, or is not, entitled to the front in question on the Lake Charles. If we were to decide the case contradiciorily with this defendant, this, to some extent at least, would be the effect of our decision. It is well settled that the defendant is not liable to a petitory action for land of which he is not in possession and it follows that a petitory action must be brought against one actually in possession. We have seen that defendant especially disclaims being in possession as owner, a disclaimer which is sustained by the facts.

The pleadings and the evidence disclose the character of his possession and render it manifest that the municipal corporation has an interest which can not be affected without making it a party.

If plaintiff possesses all the rights he sets forth in his petition, they should be contested contradictorily with those the municipal corporation may have in the exercise of local administration and government.

For reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from dismissing plaintiff’s demand as in case of non-suit he affirmed at plaintiff and appellant’s cost.


author: Blanchard, J. Monroe, J.

text:
    No. 13,726.
    Mayor and Board of Trustees of the Town of New Iberia vs. Miss Harriet Weeks, et als.
    Syllabus.
    1. The authority to impose the burden of the construction and repair of sidewalks and curbings upon abutting property not being expressly conferred at the present time by the law and the charter of the corporation of New Iberia, nor derived from the terms of the same by necessary implication, a municipal ordinance directing such imposition is ultra vwes and void.
    On Rehearing.
    Consideration will be extended to municipal corporations with respect to the errors of omission and commission of their representatives, and particularly where a question, presented as to one citizen and property holder, exists as to all Oder holders of real estate within the corporate limits, and should, therefore, be determined upon the basis of a rule which will bear equally upon all.
    APPEAL from the Nineteenth Judicial District, Parish of Iberia— Foster, J.

      Andrew J. Oammack for Plaintiffs and Appellees.

      Voorhies & Voorhies for Defendants, Appellants.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff sues to recover of defendants, jointly and severally, an amount expended in the construction of a sidewalk and curbing along the front of property owned by them jointly.

An ordinance of the Town Council is pointed to as authorizing the demand made.

This ordinance makes it incumbent upon property holders to construct and keep in repair the curbings and sidewalks along streets in front of their property. It is provided that when in the judgment of the street committee a sidewalk or curbing should be constructed or repaired, and they so determine, the mayor is to notify the property owner to construct the same, or repair the same, as the case may be, within twenty days. This notice must be in writing. If the construction or repairing is not done by the owner within twenty days, it is made the duty of the mayor to have it done at the expense of the owner. A bill of the cost is then to be presented to the owner, and if he does not pay the same within ten days, the ordinance directs that suit shall be brought.

The allegation is made that the street committee judged it necessary that a new sidewalk and curbing should! be constructed along the front of defendants’ property, and having so determined, the notice required by the ordinance was served upon them; that notwithstanding this notice defendants failed and neglected to have the work done; that after the lapse of the twenty days’ delay, the town authorities proceeded to construct the improvements mentioned and paid for the same; and that due demand had been made in vain upon defendants for reimbursement.

There was. judgment for plaintiffs and defendants appeal.

The defense against the action is that a municipal corporation cau exercise only such powers as are granted to it expressly in its charter, or derived from the terms of the same by necessary implication; that under the charter of plaintiff corporation no grant of authority to it, expressly or impliedly, exists sanctioning such an ordinance as the one referred to; and that the ordinance, assuming powers not granted, is ultra vires, illegal and void.

Opinion.

Plaintiffs refer the court to Act No. 130 of the Acts of 1898 as being the present charter of the town of New Iberia. An examination of the Act shows it is one amendatory of previous Acts of the General Assembly relating to the town and its government, and also of certain sections of an amended charter of the town adopted by vote of the people at an election held on the 28th of December, 1880. No copy of this charter adopted by the people appears in the transcript.

Indeed, no reference is made on behalf of plaintiffs to any charter or grant of authority to the municipality other than the Act of 1898.

An attentive reading of that Act fails to reveal either directly, or by implication, the vesting in the town or town authorities, of any such power as that claimed for the enactment and enforcement of the ordinance in question.

In fact, the language of the statute appears rather to withhold from, than to grant to, the municipality the authority to impose the burden of the construction and repair of the sidewalks of the town upon the owners of abutting property. The intention seems to have been that the expense of improvements of this character should be a charge upon the common treasury.

For instance we find this:

“It (meaning the municipality) shall have' the power and right of raising money by imposing and levying taxes and licenses upon all kinds of property, movable and immovable, and (on) all persons, associations of persons, and corporations pursuing any trade, profession, business or calling, except such as may be exempt from taxation and license under the Constitution of the State, which money so raised shall be applied to its improvements of the town, to maintain the police thereof and an efficient fire department, to make openings and repairing streets, sidewalks and bridges in and around the town, and to making and repcdring every other improvement which said corporation may deem necessary amd proper, and to all other purposes to which the Board (of Trustees) may be authorized to apply them by the corporation charter.” (Italics ours.) Sec. 1, Act 130 of 1898.

It indubitably .appears from this that the authority conferred upon the corporation is the right only to levy a general tax for and on account of the constructions, improvements and repairs mentioned — the cost of same tó be paid for out of monies derived from this general taxation.

Not a word there or elsewhere in the charter to the effect that the cost of putting down.a sidewalk and its curbing may be assessed against the abutting property or its owner.

This would be in the nature of a forced contribution and for it there must be undoubted authority delegated to the municipality, which is, at last, but an agency of the sovereign power.

It is a principle universally declared and admitted that municipal corporations can levy no taxes, general or special, upon the inhabitan Ls or their property, unless the power be plainly and unmistakably conferred. This power must be given in either express terms or by necessary implication, and it is not to be collected by doubtful inferences from other powers, or powers relating to other subjects, nor deduced from any consideration of convenience, expediency, or advantage. Dillon Mun. Cor. (3rd Ed.) § 763.

The authority to municipalities to impose burdens of any character upon persons or property is wholly statutory, and as its exercise may result in a divestiture. and transfer of property, it must be clearly given and strictly pursued. Ib.

As the authority to levy taxes or to make local assessments does not exist unless conferred by some provision of the Constitution or by an Act of the Legislature, so.it can be exercised no further than it is clearly given, and if the mode in which the authority shall be exercised is prescribed, that must be pursued.

Dillon, § 769,

Since, therefore, all the powers of the corporation are derived from Wre law and its charter, it is evident that no ordinance or by-law of the corporation can enlarge the same.

It follows that the authority to impose contributions or exactions upon abutting- property to meet the expense of sidewalks and curbings being withheld by the law and its charter, the Town of New Iberia, its Mayor and Board of Trustees, had no warrant to enact the ordinance upon which the demand of this suit is predicated. See Fayssoux vs. Succession of De Chaurand, 36 La. Ann. 547; Barber Asphalt Paving Co. vs. Watt, 51 La, Ann. 1345.

Act 136 of 1898, entitled “An Act for the creation and government of municipal corporations throughout the State and defining their powers and duties”, etc., has no applicability to the corporation of New Iberia, for the reason, that the electors of the town have never voted to bring the municipality under the provisions of the Act, .as required by See. 40 thereof.

Neither can. the corporation act in this instance under the authority of Act No. 127 of 1890, which is a general law conferring powers on municipal corporations and limited to certain purposes, for the reason that Section 6 thereof expressly excludes the space allotted for sidewalks or banquettes from the operation of the statute.

The judgment appealed from is erroneous and must be reversed.

Accordingly, it is ordered and decreed that the same be avoided and annulled, and that the demand of the plaintiffs be rejected, with cost in both courts.

On Application for Rehearing.

The opinion of the court was delivered by

Monroe, J.

Counsel for plaintiff, in his brief for rehearing, says: “The plaintiffs and appellees * * * contend that the judgment * * just rendered in this case is erroneous, not through any fault of this court, or through any fault or negligence of the plaintiffs * * * but for the reason that the clerk of the lower court, through an error on his part, believing that Act 130 of the Acts of the General Assembly (of 1898) * * * contained ■ the entire charter of the Town of New Iberia, referred this honorable court to that Act; instead of including in the transcript the amended charter of the city of New Iberia, as introduced in evidence upon the trial, which charter confers upon the Mayor and Trustees of the town of New Iberia the right to compel property owners to build sidewalks in front of their respective properties at their own expense. Tour Honors will note that since your decision in this case, the plaintiffs, for the first time, having learned that the charter of the town of New Iberia was omitted from the transcript of appeal, have secured the sworn statement of the deputy clerk of court who made the transcript, showing how the omission occurred, and also the sworn statement of the attorney, showing that it was impossible for him, or the plaintiffs in this suit whom he represented, to know that the transcript of appeal did not contain the charter of the town of New Iberia, and to these affidavits is annexed a copy of the amended charter of the city of New Iberia, as it was introduced in evidence in this suit upon the day of the trial.

* * * * ■» * • *

“Plaintiffs further contend that a rehearing should be granted, for the reason that amendment ‘four’ of the amended charter of the city of New Iberia, which was adopted by a vote of the people on the 18th day of December, 1880, and which section had not been modified or altered by any subsequent enactment, and which was re-enacted in Section 1, Act 33 of 1900, confers the necessary powers upon the municipal authorities to compel property owners to build their sidewalks at their expense”, etc.

The appended affidavit of the clerk sets forth that, through error, he omitted to include in the transcript, the amended charter of the town of New Iberia, “which was introduced in evidence on the trial * * * believing that Act 130 of 1898 included the entire charter of that town”, and that the transcrixit, when made, was handed to the. appellants, and was not submitted to the apx)ellees, who are not responsible for the omission mentioned. And he attaches to his affidavit a pamphlet which he describes as a certified copy of the amended charter of the city of New Iberia. The affidavit of the counsel for the appellees states that upon the trial in tha lower court he introduced in evidence the amended charter of the city of New Iberia, “which is printed in pamphlet form”, and that the clerk omitted the samé from the transcrix^t without his knowledge, and that he did not know of such omission until the case had been decided in this court. He therefore prays for a rehearing, and also asks that flhis court consider the evidence thus supxfiicd as though it had been included in the original transcript.

The transcript was completed October 16th, 1900, and filed in this court November 14th, and the brief of the counsel was filed upon December 6fh, following. There would seem to have been ample time, therefore, within which the counsel might have ascertained whether the transcript as thus filed contained the principal evidence upon which he relies, and we are of opinion that it was incumbent upon him, as a prerequisite to the argument of the case, to inform himself upon that subject. Aside from this, the note of evidence, which we find in the record, taken in connection with the indorsements upon the pamphlet called “The Amended Charter of the City of New Iberia”, which is attached to the application for rehearing', makes it a question of some doubt as to what was intended to be introduced or filed in evidence at the time of the trial, and we are inclined to think that this question was improperly left to be determined by the clerk. The note of evidence reads: “Introduced. Certified copy of Amended Charter of New Iberia, marked J.”, and, at another place in the transcript, we find the following- entry, to-wit: “Amended charter of the city of New Iberia, see Act of General Assembly of the State of Louisiana of 1898. Filed in evidence. In re 3392 marked J.” The transcript, however, contains no charter of any kind, amended or otherwise, and no agreement to the effect that the Acts of the General Assembly should be referred to in the bound volumes; and, that it was not intended that they should be so referred to follows from the fact that what purports to be the amended charter of the city of New Iberia was offered in pamphlet form, and the offer thus made is relied on as the basis of the present application for rehearing'. Examining- the pamphlet in question, which is said to be the identical one offered, introduced and filed, on the trial, we find, first, that it is not certified, though the offer calls for a “certified copy”; second, that, whilst it bears the indorsement, “Filed in evidence July 11th, 1900, In re Mayor & Board of Trustees vs. Harriet Weeks et als., No. 3392, Marked Pltff. J.”, it also bears the indorsement, in the same handwriting, “Received Dec. 26th, 1900”, and neither of these indorsements have any signature attached. The face of the document does not, therefore, show that it was filed at date of the trial, but rather indicates that it did not reach the hands of the clerk of the trial court until after the transcript of appeal had been lodged in this court. But not only is the pamphlet not certified, which assuredly was not the fault of the clerk, and not only does it not appear to have been filed, but it does not contain the law upon which the plaintiff relies. The particular section in question having been amended and re-enacted as Section 1 of Act No. 33 of 1900, which Act, it is not pretended, was either offered, introduced, or filed in evidence, or referred to, or relied on in argument.

The question presented, however, is one which, whilst affecting in the instant ease, the municipal corporation in its relations with only a single citizen, really exists as to every owner of real estate within the corporate limits. It is, therefore, particularly desirable that it should be correctly determined, in order that the rule to be established shall bear upon all alike. Under these circumstances, and in view of the established precedents authorizing special consideration to be extended to municipal corporations, the final judgment herein rendered will be so far amended as to make it a judgment of 11011-suit. Millaudon vs. Municipality, 1 Ann. 215; Delabigarra vs. Municipality, 3 Ann. 280; Police Jury vs. McDonough, 4 Ann. 352; Hassard vs. Municipality, 7 Ann. 495; Canal Co. vs. City, 44 Ann. 396; City vs. Werlein, 50 Ann. 1256.

And it is so ordered. Rehearing refused.

Ereaux, J., takes no part.


author: Monrof., J.

text:
    No. 13,716.
    L. J. McClure and Wife vs. Mary McMartin and Husband.
    Syllabus.
    1. Where slanderous reports are shown to have been originated or circulated, the law presumes malice upon the one hand, and injury upon the other, and damages will be awarded.
    2. Where a defendant, charged with the utterance of certain slanderous statements, does not attempt to justify or plead in mitigation, but denies the utterance of the statements as charged, evidence tending to establish the truth of such statements should be excluded.
    3. The husband not shown to have been cognizant of the slanderous utterances of his wife is not liable therefor.
    APPEAL from the Eighteenth Judicial District, Parish of Calcasieu —Miller, J.

      Cline & Cline for Plaintiff, Appellant.

      Schwing & Moore for Defendants, Appellees.
   The opinion of the .court was delivered by

Monrof., J.

This is an action in damages, for slander. The petition alleges, in substance, that the defendant, Mrs. Mary McMartin, wife of J. G. Martin, between May 1st and July 24th, 1899, wantonly and maliciously originated and circulated false, slanderous and defamatory statements about Mrs. Jennie McClure, wife of L. J. McClure, plaintiff herein, for the purpose of injuring her character and good name.

That in the town of Jennings, she said to Mrs. Blaekshear, at a time when Mrs. McClure was about to return from Sour Lake, Texas: “Are you going to let Mrs. McClure come back to your house .to board?”, Mrs. Blaekshear, who ran a boarding house, said, “Yes; why?” “Because,” said Mrs. McMartin, “she is a bad woman and will ruin your house and your daughters,” or words to that effect. That Mrs. McMartin also told Mrs. Blaekshear that a certain married woman had told Mr. McClure that “he must get his wife out of town within two weeks or she would be waited on;” and that Mrs. McMartin told Mrs. Montanya, “that Mrs. McClure had been very intimate with three gentlemen in Jennings, to-wit: Dr. Wilkinson, Mr. Spencer and Mr. Wright, and that, upon a certain occasion, she had followed Mr. Spencer to Houston.” That she further stated to Mrs. Montanya that IT. S. Phillips had said, “if this case ever comes into court, no woman will be permitted to remain in the court room, as the evidence which will be adduced against Mrs. McClure will be so indecent;” and that she also said that she could get six women and fourteen men to testify to the bad character of Mrs. McClure. It is further alleged that the statements mentioned were false and malicious, and that Mrs. McClure has been damaged thereby in the sum of $10,000, for which judgment is prayed.

J. G. McMartin filed an exception of “no cause of action,” which was sustained, and the suit, as to him, dismissed. Mrs. McMartin answered, in substance, as follows, to-wit: that she had heard the report that Mrs. McClure had exposed a portion of her person in the presence of two or more persons, to-wit: Messrs. B— and W — ; that she had shown an unusual interest in Mr. Spencer, and had insisted on having the room at Mr. Blaekshear’s boarding house nearest the one occupied by him; that she had heard that Mrs. McClure was often seen sitting on the porch late at night with Mr. Spencer, while her husband was engaged at his office; that she had heard that Mrs. McClure had acted on a wagonette party in a very peculiar manner, being very gay in the morning, and out of humour in the evening, and had the next day given as a reason that Mr. Spencer had insulted her while in bathing; and that, having been asked if she had reported it to her husband, she had replied that she would not do that, and yet, that she was immediately seen on the most friendly terms with Mr. Spencer; that she had heard that Mr. Wright had been in Mrs. McOlure’s bedroom; and that Mrs. McClure kept her bed “as if hogs had wallowed in it”.

Defendant further avers that having heard these and other like reports, and some of them having been mentioned while she was in the presence, of Mrs. Blackshear and Mrs. Abbott, she (defendant) remarked, “if these reports are true which are going around town, was she, Mrs. Blackshear, not afraid that it would hurt her house?” And defendant did then say that a woman “had told her that Mrs. McOlure had to leave Jennings .in two weeks, but defendant did not state the reason why she was to go, nor that she would be waited on.”

“And defendant declares that all the above reports were in circulation, and that Mrs. McOlure was talked about, all of which will be established on the trial of this case. And defendant further declares that she did not repeat the reports above stated, or those with which she is charged in plaintiffs’ petition, and never originated a single injurious report about the plaintiff, and made the remarks herein admitted to ñave been made only in the presence of the parties from whom she had first heard some of these reports .and in consequence of their conversation with her, and without malice or the desire to injure the plaintiff,” Mrs. McOlure.

She denies that anything actually said by her could have injured the plaintiff and .alleges that this suit is malicious, and she prays for damages, in reconvention.

There was a verdict and judgment in the court a qua, rejecting the demand of the plaintiff and the matter has been brought before this court by appeal.

It may be remarked here that the suit should have been brought by, and in the name of, the husband, alone. The joiner of the wife may, however, be treated as surplusage. Cooper vs. Cappel, 29 Ann. 215; Barton vs. Cavanaugh, 12 Ann. 333; Holzab vs. R. R. Co., 38 Ann. 188.

The evidence shows that the plaintiff, Lester J. McOlure, was the station agent and telegraph operator at Jennings, in this State, in the summer of 1898, and that he and his wife boarded and lodged at the house of Mrs. Blackshear, together with several other men, boarders. They appear to have been a comparatively young couple (although they had been married about ten years), and she had borne an unblemished reputation all her life, in Iowa, where she had lived before coming to Louisiana. But she was of a lively disposition, and, situated as she was, in a boarding house, where the other boarders were men, whilst her husband was kept at his place of business for a great many hours out of the twenty-four, she became the subject of some criticism, which took hold of and distorted trifles, harmless in themselves, to her prejudice. Nevertheless, her reputation had not been seriously affected, when, some time prior to the month of June, 1899, her husband, having been so ordered by his employer, the railroad company, moved to Texas and she went with him. Thereafter, wishing to return to Jennings, perhaps, temporarily, she wrote to her former landlady, Mrs. Blackshear, for board and lodging, and received a reply to the effect that she would be accommodated. At this juncture, the defendant, Mrs. McMartin, was guilty of the intermeddling which has given rise to this suit. It appears that she heard that Mrs. McClure was about to return to Jennings and to become again the guest of Mrs. Blackshear, and she took it upon herself to warn Mrs. Blackshear against receiving her. The evidence shows that she and Mrs. Blackshear met at the house of Mrs. Abbott, and Mrs. Blackshear gives the following testimony as to what took place, to-wit: “I remember of having a conversation with Mrs. McMartin; she asked me if Mrs. McClure was coming back to board with me; and I said she was. Mrs. McMartin said, don’t let her do that; and I asked her why; and she said, have you heard and don’t you know that she is a bad woman?

“Q. — What else did she say?
“A. — In the course of the conversation, she asked if I knew whaL took her away from Jennings; I said because I heard that her husband got a promotion and better wages; she said there was a certain woman told Mrs. McClure to get out of town inside of two weeks or she would be waited on.
“Q. — When she told you not to let her come to your house to board, did she tell you what would happen?
“A. — She said it would ruin my house and daughters.
“Q. — What else did she say ?
“A. — That was the sum and substance of it. * * *
“Q. — Did you ask her for this information, or did she give it voluntarily ?
“A. — V oluntarily.”

Mrs. Blackshear went on testifying at considerable length, and was subjected to a protracted cross-examination, but that portion of her testimony which is relevant to the case, and which was in no wise affected by any other statements, is embodied in the foregoing excerpt. The version which the defendant, Mrs. McMartin, attempts to give of the conversation, thus testified to by Mrs. Blackshear, is, that, with the exception of the statement as to Mrs. McClure’s having been obliged to leave town, she only said to Mrs. Blackshear, “If these reports which are going around town are true, I should think that you would be afraid it (the reception of Mrs. McClure as a guest) would hurt your house and daughters”. When interrogated as to whether in thus referring to the reports, she gave Mrs. Blackshear the benefit of her information, which seems to have been very comprehensive as to their nature, her denial is so weak as to amount almost to an admission. Eor instance, being asked whether Mrs. Blackshear was not an old friend and whether she intended any harm to Mrs. McClure by the advice she gave Mrs. Blackshear concerning her, she says, “No, sir; if I had been in Mrs. Blackshear’s place and had heard so many things, I would thank her to come to me and tell me as a friend. * * * Q. — Do you deny, then, having alleged that these things were true? A. — Yes.” Elsewhere in her examination, she is asked: “Q. — Did you state to Mrs. Blackshear and Mrs. Abbott what the reports were? A. — I said, ‘If those reports were true’. Q.- — Did you state what they were? A. — I don’t think.” If the witness means, “I don’t think I did state what they were”, the answer is still a weak and insufficient denial in view of the circumstances and other testimony bearing on the same point. Thus, in addition to the direct testimony of Mrs. Blackshear, it appears that, within a few weeks after the conversation in question, the Baptist church, of which Mrs. McClure and Mrs. MeMartin were members, took up the matter of the reports which were in circulation concerning Mrs. McClure and appointed a committee, consisting of the pastor and two members, to investigate and report. The pastor, and then the committee, waited upon Mrs. MeMartin and interrogated her upon the statements which she was said to have made to Mrs. Blackshear, and also, generally, as to any information which she might have, bearing upon the subject under investigation. Some representations were made to her by the committee, whereby she was led to believe that her disclosures, within a certain limit, would be regarded as confidential, but this did not relate to anything which she might say concerning the statements previously made by her to Mrs. Blackshear. As to any new matter, that is, any reports concerning Mrs. McClure which had not already been originated or circulated by Mrs. MeMartin, it may fairly be held that her disclosures to the committee of her church, calling upon her under such circumstances, fall within the category of privileged communications, for which, if made in good faith, she would incur no liability whether they were imparted on. condition that they would be kept secret or not. Her own testimony as to the understanding between herself and the committee is as follows, to-wit:

“Q. — When that committee called upon you, did you understand that they came to you with the authority of the church?
“A. — They told mo that Mrs. McClure had preferred charges against me for things I had said at Mrs. Blackshears.
“Q. — Did they tell you what it was ?
“A. — They asked me what it was and I gave it to Mr. McLendon, who has them written down just ¿exactly as I made them. (Italics by the court.)
“Q. — When Mr. McLendon came to you, did he tell you what charges Mrs. McClure made against you?
“A. — They repeated the reports, and Mr. McLendon said they were very similar to what Mrs. Blackshear had said.
“Q. — Did they promise that everything you said would be secret?
“A. — Yes, sir; after I gave in what I said to Mrs. Blackshear — I expected that would be made public in the church. Mr. McLendon said to me, tell all you know, and we promise it will go no further..
“Q. — Then, when you made your statements to them, did you make them for the purpose of circulating the report?
“A. — Nothing but the two remarks I made to Mrs. Blackshear; I thought I was making it to an investigating committee.”

Turning now to the testimony of Mr. McLendon, the pastor of the church and chairman of the committee, we find the following; being asked whether there was any trouble in his church, he replied: “There was trouble between Mrs. McClure and Mrs. McMartin.”

“Q. — What was the nature of that trouble?
“A.- — It was reports of scandal reported to the grievance committee by Mrs. McClure that Mrs. McMartin had made concerning her. It was my duty to have the matter investigated.
“Q. — Did you go alone to see Mrs. McMartin?
“A.- — Yes, sir.
“Q. — What' occurred ?
“A. — I told Mrs. McMartin that Mrs. McClure had made these charges and that the grievance committee had the matter in hand and desired to make an investigation, and wanted to see her, if convenient; she said she was ready and the least Mrs. McClure had to say about the matter the better it would be for her; that Mrs. McMartin had told Mrs. Blackshear that she, Mrs. McClure, was a bad ' woman, and. that, if she permitted her to board at her boarding place, it would ruin the reputation of her house and ruin her daughters; she did also charge that Mrs. McOlure was made to leave the town of Jennings.
* # -x- «• * * * *
“ * -x- -x- ^he committee called to see Mrs. McMartin and told her the object of their visit, that it was to investigate the charges that Mrs. McClure made against her * * *. .In the conversation had with her, she said she told Mrs. Blackshear things she had heard. She prefaced her statement with that statement, she told Mrs. Blackshear that there were bad reports on Mrs. McClure, and advised her, Mrs. Blackshear, on having Mrs. McOlure hoard with her, and that if she were in her place she would write to Mrs. McOlure not to come to her place to board.”

Mr. Kokonour, a member of the committee referred to, gives the following testimony concerning the interview with Mrs. McMartin: “Mrs. McMartin said that when she learned that Mrs. McOlure was about to return to Jennings from Sour Lake, Texas, where she had been for some time, she warned Mrs. Blackshear, who conducted a boarding house, that it would be best for her not to allow Mrs. McOlure to come to her house, as she would ruin the reputation of the house and Mrs. Black-shear’s daughters.”

These witnesses narrate a good deal more that was said by Mrs. Mc-Martdii, which we do not consider, giving her the benefit of the view that it was privileged. .

The foregoing is, however, absolutely conclusive, even according to her own admissions made as a witness in this ease, that she told Mrs. Blackshear that Mrs. McClure was a had woman who had been forced to . leave the town of Jennings, and who, if received again into her house, would ruin its reputation and would ruin Mrs. Blackshear’s daughters. It is also made reasonably certain that Mrs. McMartin prefaced her warning to Mrs. Blackshear by telling her the damaging things that she had heard concerning Mrs. McClure. Observe that the witness, Me- - Lendon, says, “She said she told Mrs. Blackshear things she had heard”. Mrs. Abbott, who was the third person in the interview between Mrs. McMartin and Mrs. Blackshear, and who was sworn as a witness on behalf of the defendant, gives the following testimony: “Mrs. McMartin asked Mrs. Blackshear if she had heard the reports going around about Mrs. McOlure”, and she went on to say, “If the reports were true, if she were Mrs. Blackshear, she would not have her come back to her house to board. * * * If these things are true that are going around town, Mrs. McClure isn’t a decent woman.”

The witness is apparently willing that the inference should be drawn that Mrs. McMartin did not state what the reports were upon the basis of which she was assuming to warn Mrs. Blaekshear; but she does not so testify. And, at another time, in the course of a somewhat protracted examination, being asked, “whom she had heard discussing the reputation of Mrs. McClure, she said, Mrs. Cutting, Mrs. Blaekshear often, Mrs. McMartin, Mrs. Derouen”, (the lady last named being Mrs. McMartin’s daughter). Q. — When did the conversations occur ? A.— I could not say; they talked so much, I don’t remember.”

We reach the conclusion, therefore, that Mrs. McMartin prefaced her advice to Mrs. Blaekshear by repeating, and thus giving further cur-, rency to, the various slanderous reports which she had heard concerning Mrs. McClure, and which she recapitulates in her answer filed in this case. ,

Apart from this, Mrs. Montanya, a witness for the plaintiff, gives the following testimony as to other statements made by Mrs. McMartin: “I “heard Mrs. McMartin say of Mrs. McClure that she, Mrs. McClure, “ with Mr. Spencer, Mr. Wright and Dr. Wilkins, had been intimate, the “ substance of what I heard from her was, inferentially, thal Mrs. Mc- “ Clue was intimate with Mr. Spencer, and that her conduct with the “others was fast. I heard this from Mrs. McMartin at Jennings, La., “ during the year 1899.”

“ Int. 4th. Did not Mrs. McMartin tell you that II. S. Phillips had “ informed her that no woman would be permitted in court on the trial “of this case, or words to that effect? A. — All that Mrs. McMartin “ said with reference to what IT. S. Phillips had informed her was, that “ he said that no decent woman could sit in the court and' listen to the “ trial. * - * Int. 6th. — Was anything, or not, said by Mrs. Mc- “ Martin in your presence during the summer or spring of 1899, about “ being able to get six men and fourteen women to testify about Mrs. “ McClure’s bad character ? If so, state the substance of what she said “ on that subject as near as you can remember ? A. — In the spring “ of 1899, at her front gate in Jennings, La., in my presence, and “ to me, she said that she knew six women and fourteen men who would “testify about Mrs. McClure’s bad character, and that was the substance oliher conversation at that time. Cross Int. 1. — Did Mrs. Mc- “ M"artin ever tell you that Mrs. McClure had been intimate with three “ gentlemen in Jennings, namely, Dr. Wilkinson, Mr. Spencer and Mr. “ Wright, and that on a certain occasion, Mrs. McClure had followed “Mr. Spencer to Houston? A. — Yes, except that ‘Dr. Wilkins’, was “ one of them named and not ‘Dr. Wilkinson.’ ” Mrs. McMartin denies that she made the statements attributed to'her by this witness, except that with regard to the persons who would testify, etc., as to which she says: “I said that in case it came to court, I could get enough gentlemen and ladies to come to court and testify to what I said.” * * * Q.— “ (on cross-examination). You said in explanation of one of your au- “ swers, that you did tell Mrs. Montanya that you could get plenty e£ “ ladies and gentlemen to testify to the truthfulness of what you said. “ A.- — I meant what I said to the committee and church people, those “ two reports.”

Some attempt was also made, by means of a witness named Harris, to discredit the testimony of Mrs. Montanya. Upon a careful consideration of the matter, however, we are of opinion that it is entirely worthy of credence. Aside from the testimony which we have thus reviewed, there is a great 'deal'which is'wholly irrelevant and which should have been excluded upon objections properly made. And the conviction that our learned1 brother of the District Court has erred in permitting- evidence, greatly to the prejudice of the plaintiff, to go to the jury, relieves us of any doubts which we might otherwise entertain as to the propriety of setting aside a verdict in a case of this character.

The rulings, upon the admissibility of evidence, in which we think there was error, are fairly illustrated by the following instances, to-wit: In the cross-examination of Mrs. Blackshear: “Q. — What was the rela- “ tive situation of Mrs. McClure’s room to Mr. Spencer’s (objected to “by counsel for the plaintiff as not covered by the pleadings. The “ court overrules the objection because the defendant has a right to “show conduct of the plaintiff in the case.) A. — They occupied two “ front rooms and the hall divided them. * * * Q. — -Didn’t Mr. “ Evans occupy the room that Mrs. McClure afterwards occupied ? “ A. — Mrs. McClure had the room at one time and she went away, and “ while she was away Mr. Evans had the room. Q.- — And when she “ came hack ? A.- — Mr. Evans gave up that room and took another one. “ Q. — Did she not demand that room? A.- — I don’t know; I think she “ wanted that room, but I am not positive.”

Now the whole purpose 'of this testimony, as abundantly appears from the entire conduct of the defence, was to create upon the minds of the jurors the impression that, as a particular and concrete fact, there were improper relations existing between Mrs. McClure and Mr. Spencer. And, although the evidence admitted was wholly inadmissible, and, being admitted, wholly and utterly fails to establish the fact sought to do proved, it may, nevertheless, have seriously prejudiced the minds of the jurors against the plaintiff and his wife. That such evidence was inadmissible is susceptible of easy demonstration. Mrs. MeMartin is sued for damages resulting from her alleged slander of Mrs. McClure, and, among other things charged against her, it is said she told Mrs. Montanya, that Mrs. McClure had been intimate with three gentlemen, one of whom was Mr. Spencer. As was said in Williams vs. McManus, 83 Ann. 161, “In an action of this character, the only possible defences are, either a denial, or a justification, or a confession under mitigating eir- “ cumstances.” R. S. 3640; 14 Ann. 406; 15 Ann. 166; 36 Ann. 469.

The defendant, Mrs. MeMartin, has partly admitted, and partly denied, but she has set up no plea of justification. She has admitted that she said, in the presence of Mrs. Blackshear and Mrs. Abbott, that a woman had told her that Mrs. McClure had to leave Jennings “in two weeks”. She has denied the utterance of any other language which could be construed as slanderous) and she has particularly denied that she ever said that Mrs. McClure had shown an unusual interest in Mr. Spencer, or had insisted on having the room nearest the one occupied by him. Under these circumstances, it is plain that she ought not to have been permitted to introduce evidence to establish the truth of such charges, nor does it meet the objection to say that she was entitled to show Mrs. McClure’s character, whether in mitigation of damages, or because Mrs. McClure had opened the door by tendering proof of her good character, since it is incompetent to enter into an investigation of specific acts of alleged misconduct for the purposes of such an inquiry, the most that the defendant could, under the circumstances, claim the right to prove being that Mrs. McClure’s general reputation, was indifferent or bad.

Mrs. Blackshear was afterwards asked to name other persons than Mrs. MeMartin from whom she had heard specific reports damaging to the character of Mrs. McClure. She was asked whether she had ever heard of Mrs. McClure having been in Mr. Spencer’s room, and whether she had ever heard that Mrs. McClure had exposed her person in the presence of two or more gentlemen in her (the witness’) house — which questions, though objected to, were permitted by the court. And yet, it would seem to be clear enough that, if the plaintiff is unwilling to assume the responsibility 'of asserting in her pleadings that certain reports, which she is charged with having circulated, were true, but, on the contrary, distinctly disclaims such an assertion, she ought not to be permitted to introduce evidence to prove that they were true. When Mrs. Abbott, a witness for the defendant, was placed on the stand, she. produced a written memorandum from which she was allowed to refresh her memory, in testifying, concerning the conversation which has already been referred to as having taken place between Mrs. McMartin, Mrs. Blackshear and the witness. It is true that the witness states that the paper was prepared by her “shortly” after the conversation, but, later on, and in her cross-examination, it appears that it was prepared at the request of the defendant, not at the time, or immediately after, the conversation took place, but after the church, of which the defendant was a member, had taken up the matter of the slander with which she was charged; so that the word “shortly”, as used by the witness, has a very indefinite signification. Under these circumstances, the objection to the use of the paper ought to have been sustained. The witness was asked if she remembered having heard a Mrs. Cutting say anything about this “McMartin-McClure matter”, and the question was objected to, but the objection was overruled, and the answer, “She said she did not know why Mrs. McClure wanted to make a fuss about these things, that she had been the town talk for a yeav,” was permitted to go to the jury; under what rule of evidence we are not advised, and we are not able to conjecture.

The following testimony of Roy Cooper, a young man who was sworn as a witness for the defendant, was allowed to go to the jury, to-wit: “ Q. — Did you ever hear any report in regard to Mrs. McClure in that “town, damaging to her character? (Objected to as irrelevant, objec- “ tion overruled and counsel for plaintiff excepts to ruling and reserves “ this in lieu of a bill.) A. — What I considered damaging, if it was a “wife or sister of mine. Q. — About how long ago was it you hoard “ these reports? A. — Just before I went to work in the Post Office, that “ was the latter part of June, I believe. Q. — What reports did you hear ? “ A. — I was crossing the street with a young man and he asked me who “ was that lady on the porch at Mrs. Blackshear’s; I asked him to whom “he had reference, and he designated Mrs. McClure; he asked me what “ kind of a woman she was, I told him I did not know, and he smiled “and said, he thought he could have fun with her * * * (Cross- “ Ex.) Q. — This young man you spoke of first, he did not say he knew “ Mrs. McClure, he wanted you to tell him who she was ? A.- — ILe asked “for her name. * * * Q. — He did not claim to have had relations “with Mrs. McClure? A. — No, sir. * * * Q. — Isn’t this man a “ man who is always looking after women with a view to find the kind “ you spoke of, a licentious man ? A. — I heard him speak several times “ about admiring the forms of women.”

And so, the casual remarks of a perfect stranger, passing on the street, who chose to make some ribald comment upon a woman whom, so far as we are informed, he had never seen before, of whose name he was ignorant, and who, apparently, was conducting herself with perfect propriety at the time, was allowed to go to the jury in support of the denial ón the part of the defendant before the court that she has uttered or circulated certain slanderous charges concerning the subject of that comment. It is small wonder that there was a verdict for the defendant, which, upon the case as we find it in the record, must bo set aside.

There is no evidence before us upon the basis of which a judgment could be rendered against Mr. McMartin. In fact it is not shown that he is the husband of Mrs. McMartin. But, if that be conceded, it is not shown that he was cognizant of the utterances of his wife which have given rise to this suit, and we know of no law in Louisiana under which he could be held liable for the damages here claimed. Upon the other band, the legal principles applicable to the facts which we have found leave no room for doubting the liability of Mrs. McMartin. “Every person has a right to enjoy that degree of respect, good will “ and social or business distinction to which his own acts and his social “ or business habits entitle him, and anyone who unlawfully interferes “with this right by circulating slanderous reports, renders himself lia- “ ble for consequent damages.” Williams vs. McManus, 38 Ann. 101; Savoie vs. Scanlan, 43 Ann. 967.

“Damages are necessarily due for libel and slander. The law pre- “ sumes damages to follow from the injurious words spoken or uttered “against the plaintiff.” Wimbish vs. Hamilton, 47 Ann. 254; Weil vs. Israel, 42 Ann. 962; Mequet vs. Silverman, 52 Ann. 1369.

“ In giving currency to libelous or slanderous reports and publications, “ a party is as much responsible, criminally and civilly, as if he had originated the defamation.” Staub vs. Van Benthuysen, 36 Ann. 467.

“Talc bearers are as bad as tale makers.” Harris vs. Minvielle, 48 Ann. 908.

The only remaining question is as to the amount. It would be impossible to fix. upon- any particular' sum of money which would altogether make good the injury which has been inflicted by the defendant upon the plaintiff. Upon the other hand a favorable judgment in the case which is here presented is at once a vindication of the one and a rebuke to the other litigant, and we must not add a penalty in money greater, perhaps, than the defendant can bear. We shall, therefore, fix the damages to he allowed at $500.00. For these reasons, it is ordered, adjudged and decreed that the verdict and judgment appealed from be annulled, avoided and reversed. And it is further ordered, adjudged and decreed that there he judgment in favor of the plaintiff, Lester J. McOlure, and against the defendant, Mrs. Mary McMartin, wife of John G. McMartin, in the sum of five hundred dollars ($500), together with costs in both courts. It is further ordered and adjudged that, as to the defendant John G. McMartin, the judgment appealed from be affirmed.