author: Bermudez, C. J.

text:
    No. 9515.
    E. F. Stockmeyer, vs. Henry Oertling.
    A surety, sued for indemnity by a co-surety who has paid under judgment, has no interest to question tho validity of the transfer by another surety to the plaintiff, where such transfer impairs no right of his against the transferror.
    An illegal deduction contained in a judicial proceeding, and corrected by the court of last resort, cannot serve as a foundation for the plea of estoppel in a subsequent suit.
    Evidence showing the signature of a bond by principal and sureties, suit against the sureties, payment by some of them under judgment, the insolvency of certain of them, and other material facts, authorizes recovery from a co-surety to a certain extent.
    Articles 2,104 and 3,058 It. C. C. must be combined together. "When thus construed, they mean that where loss is occasioned by the insolvency of one or more co-sureties, whether solitary or joint, it must be borne by the solvent sureties when called upon by the paying surety for indemnity or reimbursement of what was paid under judgment.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      JE. W. Huntington and H.L. Dufour for Plaintiff and Appellee.

      Bnmghn, Buck & Binkelspiel for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This case was once before us on an appeal from a judgment sustaining an exception of no cause of action and dismissing the suit.

We reserved the judgment and remanded the case; 35 Ann. 467. The judgment of the lower court having gone for plaintiff, the defendant appeals.

It is an action by a surety who has acquired the interest of a similar obligor, (W. Bogel), against a like surety, (Oertling), for his proportion in the amount paid under judgment, iu satisfaction of the principal’s ■debt; the remaining sureties, who had signed the bond, being insolvent.

The defenses are:

1st, That plaintiff has failed to prove the alleged transfer of Bogel.

2d. That he is estopped from prosecuting this suit.

3d. That the evidence does not sustain any part of the judgment.

4th. If any judgment can be rendered against defendant, it should be for one-sixth or one-fourth of the amount paid by the plaintiff, according to the interpretation which the court may place on article 3058, R. C. C.

I.

The transcript contains the admission that the plaintiff is the trans■ferree of William Bogel against Oertling.

Tlie objection to this transfer appears to be, that it was made for purposes of suit without valuable consideration, as alleged.

The defendant has not averred that he has any claim whatsoever .against Bogel, which is jeoparded by the transfer.

What is it to him, whether the transfer be witli or without consideration ? It is sufficient that it was made, particularly for the stated purpose, to authorize plaintiff to sue. A judgment on the merits, will bind both Stockmeyer and Bogel.

II.

The estoppel pleaded consists in averments in the answers made by Stockmeyer and Bogel in the suit of the Teutonia Bank against them, as sureties of^J. M. Wagner, the defaulting cashier, and which was decided by this court iu favor of the plaintiff. 33 Ann. 732.

In those answers, the appearers admitted having signed the bond of the cashier; but charged that the name of Charles Pothoff, having been ■erased therefrom, and that of II. Oertling having been substituted thereto, without the consent of the defendents, though with that of the Board of Directors, the bond was avoided.

The plaintiff in the present action does not aver any fact which is .at variance with those stated in those answers in that case. They merely, from the condition of things, deduced (they thought legally), their discharge and non liability.

The court corrected their misconception of the law on such a subject, .and condemned them to pay, under the obligation which they had -contracted.

The doctrine of estoppel, however apparently emphatic, is full of exceptions, which vary according to circumstances, and was never designed to apply to a case like the instant one, in which the declaration made, which is an illegal deduction from facts, has led no one astray and occasioned damage to nobody. 2 Wood, 435; 32 Mich. 336.

III.

The evidence shows the signature of the bond ; the suit and judgment against Stockmeyer and Bogel; payment by them of $8,080.21 thereunder; the insolvency of the other sureties on the bond ; the nonpayment by O'ertling of any part of said amount; in fact, the proof' establishes the truth of the main averments, necessary for recovery.

IV.

It is true that article 2,104, R. C. C. is to the effect, that: “If one of the co-debtors insólido pays the whole debt, he can claim from the others no more than the part and portion of each; and that, if one of them be insolvent, the loss, occasioned by his insolvency, must be equally shared among all the other solvent co-debtors and him who-has made the payment.”

It is likewise true that article 3,058, R. C. C. declares, that “when-several persons have been sureties for the same debtor and for the same debt, the surety who has satisfied the debt, has his remedy against the other sureties in proportion to the share of each; but this remedy takes-place only when such person has paid in consequence of a law suit, instituted against him.”

The defendant argues that, as the previous article authorizes the share of the loss occasioned by the insolvency of co-obligors, bound in solido, and as the last article which refers to joint obligors, in no way alludes to such insolvency and loss, the provisions of the former cannot, without violence, be extended to the latter. lie concludes that the insolvency of the other co-sureties cannot be made to be borne by him, and that he can, at worst, be held responsible only for his aliquot part of the whole, regard being had to the number of sureties. This is an error.

Articles 2,104 and 3,058 corruspeud to articles 1,214 and 2,033 of the Napoleon Code.

The rights of a surety-against his co-sureties for indemnity are the-same in France in such instances under both articles. There is no-reason why they should not be regulated and enforced in a like manner in Louisiana, under a similar legislation.

In the case of the Teutonia Bank vs. Wagner, et al., in which the plaintiff herein was a defendant, 38 Ann. 733, we held and reiterated the-ruling in 35 Ann. 468, that the sureties on the bond sued on, though; bound in solido with the principal, are several obligors intersese, though the solidarity between themselves be not expressed. They bound themselves by different contracts, though the same be evidenced by one act only (the bond).

In the last case, the exception of no cause action, sustained by the-lower court, was overruled by this court, the action being for one-third.

On this subject, Troplong, in his work on suretyship, says: (No. 440.)'

“Lorsque l’un des coñdéjusseurs, contre lequel le ñdéjusseur payant a son recours, est devenir insolvable, Part. 1214., avec lequel Part. 2033 doit étre combine, veut que la perte se répartisse par la contribution entre les solvables et celui qui a fait le paiement.”

Also Duranton t.18, No. 369, and M. Ponsot, No. 290—Del. vol. v. 2, 856-7; v. 3, 874, 881.

The district court decided correctly.

Judgment affirmed.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 9529.
    Charles B. Miller vs. R. H. Shotwell et als.
    The Supreme Court will not undertake to examine a cause on its merits if the transcript of appeal is too imperfect and incomplete to inform the court of the matters and evidence which were contested below.
    Rut, if the shortcomings or imperfections of the transcript are not imputable to the fault of! the appellant, and if the ends of justice require a review of the judgment appealed from, the appeal cannot ho dismissed; but the case will be remanded to be tried de novo.

    This relief will be granted in a case in which the papers were destroyed by fire together-with the Court House after the appellant had perfected his appeal.
    APPEAL from the Civil District Court for the Parish of Vermilion. DeBaillon, J.

      Henry St. Paul and Jos. A. Breaux for Plaintiff and Appellant. O'Bryan & White for Defendants and Appellees.
   Tne opinion of the Court was delivered by

Poché, J.

This suit involves the title to a tract of land in tli& parish of Vermilion.

It appears that after trial and judgment, and after the plaintiff had obtained and perfected his appeal, the papers which made up the record in the case were destroyed by fire together with the courthouse of that parish.

Hence the transcript of appeal, which had been made up and brought by consent between the parties, is very imperfect and incomplete. In fact, it is not in a condition to enable us to intelligently and fairly pass upon the issues involved in the controversy.

Among other elements missing, or not legally contained in the transcript, is the testimony of a very important witness, whose evidence as an expert is of vital importance in the cause.

After the destruction of the record, the witness wrote down his testimony at the joint request of both parties, and his statement is in the transcript, but it was not accepted by appellee’s counsel, who contend that the testimony, as thus reproduced, does not agree with their recollection of the testimony as given ,at the trial. It was then agreed between counsel of both parties that the matter should be left to the trial judge, who was thus fully empowered to make a statement of the testimony as he remembered it.

But, in answer thereto, the judge stated in writing that he was unable to settle the question, as he could not remember the testimony with sufficient accuracy, so as to give even the substance of it.

Under this condition of things we are not furnished with a transcript sufficient to authorize us to examine the case on its merits. Udder ordinary circumstances this conclusion would suggest a dismissal of the appeal, but this would be unjustly depriving the appellant of his appeal, when it appears clearly that he is not responsible for the destruction of the papers of the file. And, in addition, appellees do not complain of the condition of the transcript, and they formally consent to a trial of the appeal in its present shape.

But as consent cannot of itself give jurisdiction, neither can it impose on this court a task which it is powerless to perform, considering that the ends of justice require a trial of the appeal, and following wise and well established precedents,' we conclude that the case must be remanded and tried de novo. Porter vs. Dugat, 9 Mart. 121. McDaniel vs. Ingall, 7 La. 245. Doliole vs. Agenia, 3 La. 360. President, etc. vs. Douglass, 3 Rob. 169.

It is, therefore, ordered that the judgment of the district court, be reversed, and that this case be remanded to the lower court for a new trial according to law, all costs to abide the final determination of the cause.


author: Fenner, J.

text:
    No. 9565.
    The State of Louisiana vs. Willie Clark and Willie Boyd.
    In order that a party may contradict his own witness, a proper foundation must be laid therefor, by proper inquiry as to time, place and person involved in the supposed contradiction, putting him fully on guard. The subject-matter of the testimony to be contradicted must also be material and relevant to the issue, and the contradiction must be ■not merely for the purpose of discrediting his testimony generally, by showing that in immaterial matters, his statements were untrue.
    APPEAL from the Criminal District Court for the Parisli of Orleans. Baker, J.
    ilf. J. Cunningham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee.

      W. JR. Whitaker for Defendant and Appellant..
   The opinion of the Court was delivered by

Fenner, J.

The bill of exceptions which presents the only ground ■of error, arraigns a ruling of the judge refusing to permit a witness to be examined b3r the defense for the avowed purpose of contradicting the testimony of another witness who had also been called by the defense.

The judge, in signing the bill, states the reasons of his ruling as follows: 1st, that no foundation had been laid for the contradiction of the witness; 2d, that the testimony was irrelevant under the facts ; 3d, that nothing coming from the witness justified counsel in assuming him to be an unwilling witness, and he could not contradict his own ■witness.

These reasons, on their face, are sound and sustained by authority. Wharton Cr. Ev. §§ 482, 483, 484; 1 Green leaf on Ev. §§ 449, 462.

We are bound to assume that they are applicable to the circum.stances of the case.

The learned counsel of accused has no doubt seen the impossibility of sustaining the charge of error, and has made no appearance by oral •or written argument.

Judgment affirmed.


text:
    No. 9626.
    Raphael Beltran vs. Charles Gauthreaux et als.
    Iii partition suits between co-owners, who are “of age and present,” but who “cannot agree on> the partition and mode of making it,” the rules established by the Code relative to the partition of successions, are applicable, under the express terms of C. C. 1290.
    Whether the judicial partition is made in kind or by sale, it is now settled that the mortgages and privileges created by one co-owner on his own undivided share, are transferred from the entire property to the share allotted to him, or, in case of sale, to his-share of the proceeds.
    After such a sale, when a rule is taken upon the mortgage creditor to show cause why his mortgage should not be cancelled and erased as affecting the property, the creditor cannot, in answer thereto, attack the validity of the judgment of partition, unless at least for absolute nullities.
    The co-owners in partition suits have the perfect right to agree to submit the questions to the court, on issue properly joined, and the judgment of the court rendered, on such issue, according to law and evidence and not according to any consent, is not a consent judgment.
    Parties have the right to waive delays with reference to submission of their causes and the signature of judgments therein, without impairing the validity of the proceedings. After judgment in partition and proceedings commenced in execution thereof by advertisement of the sale, a seizure under executory process by the mortgage creditor forms no obstacle to the sale, which proceeds, subject to the rights of the creditor, which, as shown, pass to his debtor’s share of the proceeds.
    There is nothing reprehensible in an agreement by which a party contemplating purchase at a judicial sale for cash, agrees with a third person that, if he acquires, he will sell to-the latter on terms of credit — in absence at least of any evidence that the third person intended to bid at the sale or that the agreement was made with the purpose of preventing competition.
    Where a man’s wife has an interest in a suit, and where the husband has no separate interest therein, the latter cannot testify.
    The share of the co-owner under a partition sale is only ascertained after deduction of his-share of the costs of the proceeding, and the mortgage creditor must submit to such deduction.
    APPEAL from the Twenty-second District Court; Parish of St.. James. Duffel, J.

      James Legendre and St. M. Dérault for Plaintiff and Appellee.

      JSobt. <?. Dugué for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The plantation involved in this controversy was owned' in indivisión by plaintiff, Beltran, owner of one-half, and by four Gautlireauxs, all present and majors, as joint owners of the other half-The undivided half belonging to the Gautlireauxs was encumbered by a special’mortgage and vendor’s privilege for $8,500 held by Charles-U. Gaudet.

On tlie 27th of Marcli, 1885, Beltran sued the Gauthreauxs for a partition, alleging the impossibility of a partition in kind, and praying fora sale. The Gauthreauxs joined issue denying the necessity of the sale, submitting the question to the court, and praying for such judgment as the law and the nature of the case may require. Experts were appointed and reported, in substance, that the property could not be-divided in kind. Judgment was rendered on March 31, 1885, homologating the report of experts and ordering the sale to effect partition. The defendants thereupon filed a written acquiescence in the judgment and consent to its immediate execution, whereupon the judgment was immediately signed.

On the same day Gaudet sued out executory process on his mortgage,. under which the sheriff sfeized the property on April 7th, following. ■In the meantime, in execution of the judgment for partition, on April 1st, the plantation had been advertised for sale on May 2d, following, and on that day the sheriff adjudicated it to Beltran at the price of $11,000 cash. On the 4th of May, all the parties to the partition suit joined in a rule upon Gaudet, to show cause why the inscription of his mortgage and privilege as affect the property, should not be cancelled, and erased, and why he should not be referred, fortheir satisfaction,, to one-half the proceeds of the sale after deducting the costs and charges of the partition proceedings.

Gaudet opposed the relief sought, on the grounds :

1st. That the sale, even if a valid judicial sale, did not shift his. rights from the property to the proceeds, but that the purchaser was. bound to take the property subject to his mortgage and privilege.

2d. That the partition proceedings were consent proceedings, the sale a consent sale, and, on that ground, could not affect his mortgage and privilege.

3d. That, at the date-of the sale, the property was under seizure on his executory process, which prevented any valid adjudication, because-the property could not be delivered.

4th. That Beltran, the adjudicatee, was only a person interposed, the real purchaser being one Auguste Gauthreaux, who, owing to a previous agreement with Beltran, had been deterred from bidding at the sale, as he would otherwise have done.

5th. That he was not bound to bear any part of the cost of the partition proceedings, to which he was a stranger.

From a judgment making the rule absolute, Gaudet prosecutes the present appeal.

We shall consider the grounds of his opposition in the order above indicated.

I.

On the question of the effect of judicial partitions by sale, on mortgages upon the share of one co-owner, the following principles are •apposite. Art. 1289 C. C. declares: “No one can be compelled to hold property with another, unless the contrary has been agreed on, any one has a right to demand the division of a thing held in common, by the action of partition.”

The absolute right of Beltran to require the partition cannot, therefore, be questioned, and could not be, in the slightest degree, affected by any mortgage which his co-owners might have placed upon their interest.

Judicial partitions are ordinarily made in kind; but Art. 1339 provided that, “When the property is indivisible by its nature, or when it cannot be conveniently divided, the judge shall order, at the instance ■of any one of the heirs, on proof of either of these facts, that it be sold at public auction, etc.”

The previous article 1338 had provided that, “In all judicial partitions where the property is divided in kind, the mortgages, liens and privileges existing against one of the co-proprietors, shall, by the mere fact of the partition, attach to the shares allotted to him by the partition, and cease to attach to the shares allotted to his co-proprietors.”

It was not deemed necessary to provide that, in case of partition by •sale, such mortgages should attach to the share of the proceeds coming to the co-proprietor liable for the same, because it seemed to be too •clear a corrollary of the foregoing principle. For why should a difference be made? At all events this hiatus in the code has been filled up by a long and consistent course of jurisprudence, holding that, at least in succession partitions by sale, the property passes free from mort.gages affecting the shares of co-proprietors, and that such mortgages are transferred to the shares of the latter in the proceeds. Succession of Pigneguy, 12 Rob. 450. Gilmore vs. Menard, 9 Ann. 212. Finley vs. Babin, 12 Ann. 236. Fabre vs. Hepp, 7 Ann. 9. Campbell vs. Woolfolt, 37 Ann. 320; 27 Ann. 125; 21 Ann. 253.

This is conceded, but it is claimed that the same rule does not apply to partitions between ordinary co-owners, But why? If the rule •of Art. 1338 relative to partitions in kind applies, as has never been •disputed, why should not its corrollary just enunciated apply also?

Besides, Art. 1,290 prescribes that, “All the rules established in the present chapter (of the partition of successions), with the exception of that which relates to the collations, are applicable to partitions between co-proprietors of the same thing, when among the co-proprietors-any are absent, minors or interdicted, or when the co-proprietors of age and present cannot agree on the partition and the mode of making-it;” within which last category, upon the face of the proceedings, the present case falls. It should seem, therefore, very clear that the same-rule should apply to both cases.

In Life Association vs. Hall, 33 Ann. 53, we said : “Whether, in case of a sale to operate a partition among co-heirs or any class of co-owners, the mortgage creditors could be driven, against their will, to-accept the proceeds, in order to clear the property and pass it unencumbered to the adjudicator, is a question that has not, that we know, been as yet clearly adjusted; but it does not now appear to ns why it-should not be so, if the sale was truly a judicial one, made after compliance with all legal requisites; for it is manifest that the creditors, having the ability to protect themselves by bidding on the property to its value, etc., could be required to confine their mortgage to the proceeds of sale.”

It must be admitted that the opinion referred to contained other expressions seemingly in conflict with the foregoing; but in the later-case of Bayhi vs. Bayhi, 35 Ann. 531, the foregoing quotation was referred to with approval, and it was then distinctly decided that in a partition suit between co-heirs, by judicial sale, the mortgages affecting the share of one of them, can, on rule against the mortgages, be-relegated to the proceeds, and their inscriptions cancelled against the property. That case is conclusive on the point, because, although the-parties were co-heirs, they were co-heirs in possession, and, therefore,, simple co-proprietors, and the proceeding had no probate character. The same fact also existed in the case of Finley vs. Babin, 12 Ann. 236, which is a further authority directly in point.

We consider the conclusion thus reached, in thorough harmony with the textual provisions of our law, with jurisprudence, with public interest and with reason and justice.

We find no hostile authority. The cases relied on from 26 Ann. 690s and 31st Ann. 798, when analysed, are clearly inapplicable; and the dictum in Freret vs. Freret 31 Ann. 506 that “ partition suits between co-proprietors, when they are present, or majors, or not interdicts, are not governed by the rules established in that section for the partition of successions,” is obiter and evidently uttered with exclusive reference to the question of jurisdiction and is in conflict with the plain terms of Art. 1290, wliieli expressly extended those rales to partition suits between co-proprietors of age and present, when they “cannot agree on the partition or on the manner of making it.” We have thus taken occasion, very carefully, to again examine and settle this vexed question.

A contrary conclusion would have, in effect, paralyzed the right of the co-owner to terminate the indivisión of property, guaranteed by Art. 1289 C. (5., at least in every case where sale was essential and where the share of the other co-owner was burdened by mortgages exceeding its value. Nor can we see any harm accruing to the mortgage-creditor, from the partition by sale, since it gives him the advantage of having the entire property sold, which is much more likely to bring full value, than a sale of an undivided interest.

II.

The charge that the partition proceedings were collusive and, in their nature, mere consent proceedings, has no merit, and is fully disposed of by the JBa.yliis case, which held, first that, in answer to a rule precisely like the one before us, the validity of the judgment of partition could not be assailed; second, that the parties, plaintiff and defendant, in a partition suit, had a perfect right to submit the issues to the determination of the court, and that, whatever might have been the common desire of the parties, yet, if the issue was propexly formed and determined by the court, not according to consent of parties, but according to law and evidence, the judgment so rendered is not a consent judgment. Such was the case, here; and it matters not what the relations of the attorney of defendants were to the other parties; if lie had the authority of defendants to place the case, at issue and if the judge decided it on the law and evidence, that is all that is required. What concern has the appellant with the waiver of delays made in the case, or with the rapidity with which the proceedings were conducted? The sale, was made in full conformity to all the requirements of law, and that is the only matter with which he had any concern.

III.

The seizure under appellant’s executory process, made after the court had rendered its decree ordering the property to be sold, surely could not interfere with the execution of that judgment, which was already in progress under pending advertisements. This would be a new mode of enjoining the execution of judgments.

Ownership and not possession is the basis of partition. C. C. 1324. The sale takes place subject to the rights of the seizing creditor, and those rights we have just defined. See Citizens’ Bank vs. Ferry, 32 Ann. 310.

IY.

We cannot see what concern the appellant has with the question of whether Beltran was the real purchaser or only a person interposed, since it is not pretended that he represents any of appellant’s debtors. He would have no greater rights, under our law, against the adjudicatee, for whom he claims Beltran was interposed, than against Beltran himself.

So far as the evidence in the record is concerned, there is' none establishing any combination between Beltran and Gauthreaux operating to prevent bidding at the sale. It does not appear that Gauthreaux ever intended, or was able, to bid at,the sale, which was for cash. It is merely proved that Beltran had agreed with Gauthreaux (who had no connection with the, parties to the partition suit) that, if he bought and his title proved good, he would sell to Gauthreaux at an agreed price and on terms of credit. There is nothing illegal in this.

The evidence, of Poirier, the husband of one of-the defendants in the partition suit, was properly excluded. His wife was a party to and interested in the issue, and Poirier had no separate interest therein. Therefore, under article 2281, he was clearly an incompetent witness.

V.

Finally, we see not how the share of appellant’s debtors, which passes to the satisfaction of his niortgage, can be ascertained -without first deducting their share of the costs of the partition suit and sale. The judgment, so decrees, and these costs were necessary to realize the proceeds, which go to the satisfaction of his debt. Surely Beltran cannot be made to pay them either as party or as purchaser.

We find no error in the judgment.

Judgment affirmed.


author:
Todd, J.
      Fenner, J.

text:
    No. 9528.
    D. A. Hanson, tutor, vs. Mansfield Railway and Transportation Company.
    Railroad companies are held to the greatest eare and diligence both iu regard to the machinery aud equipments of the road and the conduct and acts of their officers, agents and employees.
    One who goes on a freight train hypermission of the conductor, or the engineer acting as conductor, and pays the usual fare, is entitled to the privileges and xirotection of a passenger, even, though the officer has been forbidden to receive passengers on such trains; provided, such order was not known to the passenger.

      The going on a freight train and even taking a seat in the cab of the locomotivo by the direction of tho engineer in sole charge, is not contributory negligence per se on the part of the passenger, who has paid his fare, especially where persons are habitually or occasionally received on such trains and placed in the same or like places thereon.
    Where the conduct of a passenger has contributed to the casualty, but such conduct has not been, in a legal sense, imprudent or negligent, ho may recover if the defendant were* in fault.
    APPEAL from tile Tenth District Court, Parish of DeSoto. Taylor, J.

      J. 1L Cunningham and J. S. Young for Plaintiff and Appellant.

      C. W. Pegues and J. C. Pugh for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

This case was argued and submitted at the recent term of this court at Shreveport, and it was agreed that it should be decided at this place.

The plaintiff, as the tator of his minor son, Charles Hanson, sues the defendant company for damages on account of personal injuries caused the latter by the explosion of the boiler of a locomotive, used on the company’s road, and charged to have resulted from serious defects in the boiler, and the gross negligence of the engineer in charge of it.

The answer is, substantially, a general denial, coupled with an allegation of contributory negligence on the part of plaintiff’s ward which, it was averred, relieved the company of any liability for the alleged injury.

There was judgment for the defendant and the plaintiff has appealed.

The facts are substantially these:

The defendant’s railway, known as the Mansfield Transportation Road, extends from the town of Mansfield to its junction with the Texas and Pacific Railroad, a distance of nearly two miles.

At the time the casualty is alleged to have occurred, the company ran two passenger trains and two freight trains over the road daily.

On the 18th of January, 1883, Charles Hanson, a youth of about, seventeen years of age, went to the depot of the company in the town of Mansfield, for the purpose of procuring a passage for himself to the aforesaid junction. There was a freight train at the depot, consisting of two cars which were loaded and locked. It was some hours before the passenger train would leave. Hot wishing to wait, he spoke to the engineer and asked if he could go down with him to the junction. Permission was granted, and the engineer assigned him, together with a. lady passenger, seats in tlie cab of the locomotive. This cab is described as a space three feet by four, where wood was stored for the running of the engine and for the accommodation of the engineer and fireman.

There was an order of the company against talcing passengers on the freight train, but no notice of this order was posted at the depot or elsewhere, and young Hanson was not shown to have been cognizant of it. On talcing the seat assigned him, the usual fare was demanded and paid to the engineer. There was no conductor on the train, the engineer being in sole charge. It was stated on the trial by one of the directors, quoting his language, “when there is no conductor on a freight, train the engineer controls it in the running of it.”

It appears that occasionally passengers were received on the freight trains, as in this instance, and sometimes paid their fare and sometimes did not.

After Hanson had been seated in the cab a short time, having had, it seems, some experience with steam engines, he noticed or discerned that the water was low in the boiler, he called the engineer’s attention to the fact and told him that there was someting wrong, and rose to get off the train, when the engineer laid his hand on his arm and told Mm there was no danger and that he knew wliat lie was doing, and at that instant-, as we construe the testimony, the explosion took place. By it the engineer and the lady passenger and the brea-kman and fireman on the. car in the rear were killed, and Hanson seriously injured. He was senseless for several hours, had several gashes on his head, was badly scalded about the face and neck, and his collar bone broken. He suffered great pain from Ms wounds, was confined to his bed for nearly a month, and could neither speak nor see for several days. Though able to resume his work — being a telegraph operator — his-sight remained somewhat impaired; there is a deformity in one of his-shoulders, it being lowered from its normal position, and Ms sleep is disturbed by fits of nervousness and fright — alleged consequences of' the shock he received.

1. The first question to be considered is whether the explosion was 'caused by negligence on the part of the company or any of its officers or agents.

We deem it unnecessary to enter into a detail of the evidence on this point. We have attentively examined the whole of it, and it conclusively shows that the direct and proximate cause of the casualty weretlie serious defects in the boiler and the want of skill or gross carelessness of the engineer.

This is the more appreciable in this case, when we consider that, under the well settled jurisprudence of the country railroad companies are held to the greatest care and diligence, both in regard to the machinery and equipments of the road, and the conduct and acts of their officers, agents and employees. 10 Ann. 38; 14 Howard, 486, Am. and Eng. R. R. cases, vol. 6, p. 592.

It is indisputable that the defendant company, in this instance, fell far short of these essential legal requirements.

2.. The next inquiry is whether the plaintiff’s son was a passenger -and entitled to the privileges and protection extended to passengers on railroad trains, under the state of facts above set forth.

This is a question that admits of much discussion, and one in which the authorities are not entirely harmonious. We have diligently examined these authorities and have reached the conclusion that they .greatly preponderate in support of the proposition, that in this instance the plaintiff’s son stood in the relation of a passenger to the company.

He was either a passenger or a trespasser on the train. He could not reasonably be held to be the latter, in view of the fact that he boarded the train by the permission of the engineer then acting conductor and having sole charge of the train; that he was assigned a seat by him ; that he paid him the usual fare — and, moreover, that his case, was not an isolated one, but that he, the engineer, occasionally, if not habitually, received other persons on the freight train and assigned them at times the place to’ which- Iianson’-'was directed ; and that, at that very time, he received a lady on board.the train who, by his direction, occupied the same gab or’seat with Hanson.

But it is urged that there was an order of the company, that persons .should not be permitted to ride op the freight trains, and tlus engineer was forbidden to receive them. In the absence of the proper n.otice pf such order, by being posted at the depot or otherwise, brought to the attention of the public, it remained, a regulation solely between the company and its employees, a.hd could have no effect upon the. right,of passengers, or the responsibility of the. company. .

Borer, who is justly held as high authority on this subject, in his work on Bailroads, p. 1113, thus discourses on this point:

“Where freight trains, or some ofihem, are accustomed to carry passengers for pay, and a passenger enters a freight train to be carried for pay, though he may have no ticket and though the course, of such trains as to carrying passengers may, as between the employees thereon and the company, he such that passengers are not allowed t-liereon, yet such person if ignorant thereof is entitled to he regarded as a passenger, and if injured the company is liable.”

The author cites among other cases in support of this doctrine that of Lucas vs. Milwaukee Railroad, 33 Wis. In that case a person went to the depot and found the ticket office closed and a freight train, about starting. He' went aboard this train by consent of the conductor, who had been forbidden to take passengers on such trains, and it was held that he was a passenger; and in so holding and in discussing this question of persons hoarding freight trains, where the company was not in the habit of carrying passengers on such trains, the Court used this language: “Especially will this he so if they are directed to go aboard by the conductor, although such conductor lias in fact no such authority from the company for that purpose.”

A leading case on this point is that of Dunn vs. Grand Trunk Railway, 58 Me. 187, from which we quote as follows:

“If a passenger enters the caboose car of a freight train and when the train starts, without being requested to leave, remains there as passenger, contrary to rules of the company, but with the knowledge •of the conductor, who receives from him the usual fare of a first class passenger, the corporation incurs the same liability for his safety as if he were in their regular passenger car.”

And again: “Every one riding in a railroad car is prima feme presumed to he there lawfully as a passenger having paid his fare, and the ■onus is upon the carrier to prove affirmatively that he was a trespasser * * *- -i That the regulations of the defendant are binding on its servants. Passengers are. not presumed to know’ them.”

To the same effect are 3 Otto, 93 U. S. 1291; 14 How. 486; 1 Duer 578; 20 Minn. 125, 126; 13 Ill. 364; Am. and Eng. R. R. Cases, vol. 1, p. 257.

The learned judge of the district court in his reasons for judgment cites apixrovingly the. case of Easton vs. Delaware R. Co. as opposed to the above authorities.

Iu that case the conductor of a'coal train invited some hoys to ride upon the train to a certain point, promising them employment. There was a printed regulation forbidding persons from riding on the train. It did not appear that passengers were ever allowed to ride thereon, and no fare in that instance was paid or demanded. In such features it differs from the instant case. Thompson in his work on Carriers, p. 344, thus comments on that case :•

“The foregoing decisión (Eaton vs. Del. R. Co.) is strictly in accord with the circumscribed views of the courts of the State of New York, in regard to the scope of a servant’s authority and the immunity of the master from liability for the results of acts for the doing of which the-servant was not hired. But as courts in general are not disposed to-thus limit the responsibility of the master for the acts of his servant, it will not he surprising to find that a contrary opinion is entertained upon this question. Thus the Supreme Judicial Court of Maine, in Dunn vs. Grand Trunk R. Co. have held,” and quotes from the decision, and adds, “to the same effect is the decision of the Supreme Court of Pennsylvania, in the late case of Creed vs. Penn. R. Co. These last two eases would seem to express the better view of this question, and they have the support of authority in analogous cases.”

Under these circumstances we cannot accord the same weight to that decision that was given it' in the court below.

3. This being as to the question of contributory negligence.

This is charged to have consisted in Hanson boarding tbc freight train and taking a seat in the cab of the locomotive; and again, his failing to leave the train on discovering the condition of the boiler or the, low state of the water therein.

Much that we have said upon the question of Ms being a passenger-will apply to the first branch of this inquiry, as to whether his acts in the premises, as stated, constituted negligence per se.

This Court in the case of Knight vs. Pontchartrain R. Co., 23 Ann. 462 has laid down rules of contributory negligence, which we find have been quoted and approved as sound by Rorer in his work mentioned, page 1039.

These are substantially:

1. “Where the conduct of plaintiff lias, as a matter of fact, contributed to the accident, but such conduct lias not been in a legal sense imprudent or negligent. In such case plaintiff may recover from a defendant in fault.

2. “Where the conduct of plaintiff has been negligent or imprudent, hut has not contributed to the accident. In such case the plaintiff may recover from defendant in fault.

3. “Where the conduct of plaintiff has been negligent and lias contributed to the disaster. In such case the plaintiff cannot recover, even though the defendant he in fault.”

It is not easy to perceive how, by any reasonable application of any one of these rules to the facts of this case or of the facts to the rule, the plaintiff could be considered as debarred from the right of recovery.

It is certain that the defendant was in fault witli regard to this explosion which caused the injury, and that the fault of the company in providing a defective engine, and the fault of the engineer in not keeping- a sufficient supply of water in the boiler, were the immediate and direct causes of the disaster.

It cannot be said that the plaintiff, by any act or omission, contributed to produce the explosion of the boiler, or that he. in any manner, contributed to the injury he sustained, unless indirectly and remotely by being on the train and in the place he occupied thereon. And if his presence there could be held as any kind of contributory negligence, he could not, under any rule or principle of law, be held .guilty of negligence in a legal sense.

Negligence, in its common acceptation, is held to be the doing of ■something that a reasonable and prudent person would ordinarily not have done under the circumstances of the situation, or the omission to •do something which a person of like character would have done under ■the circumstances of the case.

We incline to the belief that most any man of average prudence, situated as Hanson was at the time, would have acted just as he did in this instance. The road was a short one — less than two miles — he went on the train by permission of the person in charge of it, and took the place assigned him thereon — as an employee of a telegraph •company he had often occupied a similar place on a train without harm.

Leaving out for the moment the question of an exyrlosion, the only increased danger that would naturally suggest itself to his mind incipient to his position on the engine, and that he would not be equally-exposed to on a passenger train, ivas such as might result from a collision with another train or that of being shaken or jolted off from the rapid running- of the train or meeting an obstruction on the track.

As to the danger from an explosion, lie was just as safe where he was as he could be elsewhere on any kind of a train; provided the engine was sound and the engineer did his whole duty, and he had a right to expect a sound engine and a competent and careful engineer; and it avg-ued no negligence on his part that he rested in secuiity on this presumption.

And in this connection we may- add that, as before stated, the proximate causes of this'disaster were an unsound engine and the negli .gonce of the engineer, and there is a high authority to support the proposition that, to defeat a recovery on account of contributory ■negligence, such negligence must be the proximate cause of the injury. Am. and Eng. R. R. cases, vol. 8, p. 480, citing Fowler vs. Balt. and O. R. R; W. Va. R. R. and 9 W. Va. 253; 16 W. Va. 307.

The inference which might be drawn from the original opinion that the court assumed a position on the vexed question of the liability of railroads for injuries happening to persons who assume unusual and dangerous positions ou trains, with the consent of enaployees, but against the rules of the company, is repelled. Enough was said m the opinion to support the liability of defendant, independent of thi3 question.

It lias also been frequently held, that taking an unusual place on a train, which ordinarily might be considered contributory negligence,, cannot be so regarded where the place is occupied by the direction or a permission of the conductor.

Thus where ho goes on the car-platform, 32 Barb. 397; 27 Ind. 59; 38 Ga. 409. Or in the baggage car: 59 Penn. State, 239; 1 Duer, 571; 20 Minn. 125. Or on the engine: Nashville & Chat. R. R. Co. vs. Erwin, (Tenn. R.) cited in 3d vol. Am. and Eng. R. R. cases, p. 465.

See also 1st vol. Am. and Eng. R. R., p. 82, citing Ky. R. R. vs. Thomas; 50 Mo. 139; 36 N. Y. 135; 3d Head, (Tenn.) 638; 14 How. 468.

We attach but little weight to the further contention of the defendant that contributory negligence was shown by Hanson in. not leaving the train after he discovered the condition of the boiler or the-insufficiency of the water in it, and after he was thus warned of his-danger. Hanson’s testimony, which is all there is on this point, clearly conveys the impression that the explosion instantaneously followed the-discovery and his movement to leave the train. It is as follows :

After being there (on the engine) a few minutes, the engineer started toward the machinery, when witness glanced at the water gauge which-was made of glass. (Being around machinery all of his life, he could tell that there was no water in the boiler, the gauge showed nothing but smulled foam and steam.) Witness told the engineer that there was something wrong with the engine. (He seemed then getting-ready to start.) I told him I had been enough around machinery to know there was something wrong and I wanted to get off and started to get off. He told me that he knew what he was doing and to stay on,, that he was running the engine. Witness knew nothing more until late that night, etc.”

4. We have thus been brought to the conclusion from this review of' the facts of the case and the legal questions involved, that plaintiff is entitled to recover.

His injuries were severe and his sufferings great, and the damages-allowed should be commensuiate with them. We think that Lo is-justly entitled to two thousand dollars ($2,000).

On Application nor Rehearing.

Fenner, J.

Questions of negligence vel non depend upon the particular circumstances of the cases in which they arise; and general dieta must he confined, in their application, to particular facts.

On tlie general question of liability of railroad companies for accidents happening to persons who occupy unusual and peculiarly dangerous places on trains, even with tlie consent of employees, hut against tlie rules of tlie company, authorities are conflicting and there-are many opposed to those cited in our original opinion. See Beach on Contrib. Neg. p. 159; Pierce on Railroads, p. 317; Hutchinson on Carriers, p. 521.

The necessities of this case do not require us to assume any position on this question, and we now desire to repel the inference which might, he drawn from the original opinion that we have done so.

It is sufficient to say that, under the peculiar circumstances of this case, and with reference to the particular fault here involved, plaintiff' was guilty of no contributory negligence which legally debars him from recovery.

Enough was said in the opinion to sustain this view without reference to the general question above referred to.

We adhere to our conclusions and tlie rehearing is refused.


text:
    No. 9538.
    The State ex rel. Benjamin Newgass vs. The City of New Orleans.
    A claim for reimbursement of money paid in error, even when reduced to judgment, does not arise from a contract, but from the law, and is not protected by the provision in the Federal Constitution, which prohibits States from passing laws impairing the obligation of contracts.
    A State constitution when it does not conflict with that Constitution is omnipotent in its-disposition and even destruction of private and social rights.
    A State may divest vested rights without infringing the paramount law of the land.
    A PPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Fred. I). King and Blanc & Butler for the Relator and Appellee:

      A. The obligation of the city to refund a tax illegally exacted is an obligation of contract protected by the Constitution of the United States.
    1. Municipal as well as private contracts may he expressed or implied. C. C. 1780, 1797, 1809,1811, 2292, 2293; Argenti vs. San Francisco, 16 Cal. 255, 282; 12 Wall. 12; I)ilion Mun Coip. §§ 459, 938.

      2. Wherever the law attaches a duty to refuud money unduly exacted and paid by mistake, there results an implied promise to reimburse as in the case of a want of consideration. C. C. 2301, 2302; Hubbard vs. Brainard, 35 Conn. 501; Collector vs. Hubbard, 12 Wall. 12; Bradford vs- Chicago, 25 III. 423; Dillon, Mun. Corp. 5th Ed. §§ 459, 938; Argenti vs. San Francisco. 16 Cal. 255, 282.
    3. The action in like cases is assumpsit and is ex contractu. Collector vs. Hubbard, 12 Wall. 12; 2 Metcalf 228; Am. Jurist, vol. 23, pp. 143, 271; Bradford vs. Chicago, 25 111. 423; Dillon, Mun. Corp. 3d Ed. 939, 940, 938.
    4. The contract to refuud money unduly exacted and paid in error is called a quasi-con’ tract; so is the obligation to refuud the purchase money under a void title; so is the -duty to account for an estate managed by one person without the consent, as during the absence, of another; and so are the obligations of tutorship and curafcorship, and yet it will scarcely he denied that all of these imply contract obligations protected by the Federal Constitution. O. C. 2293, 2305, 2301, 2302; Paul vs. Kenosha, 22 Wis. 266.
    5. It is the civil obligation of contracts which (the Constitution) is designed to reach; that is, the obligation which is recognized by, and results from, the law of the State iu which it is made. Cooley, Const. Dim. p. 347, 5lh ed.
    6. The rate of taxation at the time the obligation arose, enters into and forms part of the obligation, and cannot afterwards he withdrawn to the prejudice of the obligee, without impairing the obligation of contract. /
    '7. By Act Ho.-of 1872, sec. —, the rate of taxation was fixed at twelve and one-half mills, and to that extent relator is entitled to the exercise of the taxing power.

      B. Should the relator he denied the right of contract, then he says : As the city only needs, can only use, and has only appropriated, for alimony or government, nine of the ten mill tax it levied, re'ator can he paid from the revenue derivable from, the surplus mill. Acts 18S4, Ho. 88.
    1. Relator registered his judgments pursuant to Act Ho. 5, Ex. Sess. 1870; he accepted its remedy, and lie has no other. By that act he was entitled to have his registered judgments paid from the budget revenues, subject always to the preferred claims of the city’s alimony.
    2. The revenue not needed, nor appropriated, nor used for alimony is the ten per cent rebate on the whole budget estimate; this rebate includes one mill of the ten mills tax and much more than exceeds one hundred thousand dollars per annum.
    3. Relator’s acceptance of the only remedy offered him, that of Act 5 of 1870, Ex. Sess., and the only means of revenue for his payment being the aforesaid rebate, he has a vested right in this exclusive remedy and in tho means of payment, which cannot he divested by the legislature, under the State Constitution. Shields vs. Olíase, 32 Ann. 409; Copley, Const. Dim, p. 443; Hubbard vs. Brainard, 35 Conu. 563; Dillon Mun. Corp. 3d ed § 845; Memphis vs. United States, 97 U. S. 294; Folsom case, 32 Ann. 714.
    4. The attempt of the State by Act 88 of 1884 to wrest from creditors the said revenue, by appropriating it for unadopted and problematic improvements, occurring after the acquisition of said vested rights, must be disregmled and held void, as unconstitutional. , See authorities cited above.
    IF. H. Rogers, City Attorney, for Defendant and Appellant.
   Tlie opinion of the Court was delivered by

Bermudez, C. J.

The relator, who is a judgment creditor of the city, claims that an appropriation he made and revenue provided for his benefit in the next budgets or tax and revenue levies of the city, and in all future "budgets and levies until lie "be fully paid in capital, interests and costs.

He charges that- the judgments in his favor have, as their consideration, amounts paid for licenses illegally exacted prior to 1874; that the obligation of the city to reimburse springs from a contract and cannot be impaired by the State; that the. rate of taxation at the time was fixed at 12-J mills, which would have sufficed, but that the same has been since reduced to 10 mills.

He further argues that, if his claim is not based on a contract, the •obligation of which cannot be impaired, he is entitled to be paid out of part of the 10 mills, only ninetentlis of which constitutes the alimony of the city, the remaining tenth the reserve fund, not forming part of it and being a municipal asset out of which he can be. satisfied.

The defense is that the judgments are. not based on contract obligations; and .that the same are payable only out of the usual and ordinary municipal revenues, which are limited to ten mills, which are necessary for the alimony of the city.

From an adverse judgment, the corporation has appealed.

I.

No principle is hotter recognized by law and jurisprudence than that 'he who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it, and that he who has thus paid through mistake, believing himself a debtor, may reclaim what ho has paid. R. C. C., 2301-2.

This principle governs both natural and artificial persons.

It does not, however, follow that the right to claim reimbursement and the obligation to refund arise from a contract, express or implied, which is protected from impairment or invasion by the Constitution of the United States, which is invoked as a shield in the present controversy.

The contracts designed to be protected are such by which perfect rights, certain, definite, fixed private rights, are vested. Butler vs. Penn., 10 How. 402.

There is a distinction between those rights which the law gives to, or obligations which it imposes upon, persons in certain relations, merely in carrying out its own views of policy and independently of any stipulations which the parties may have made, and those rights which the law itself, even in carrying out some matter of general policy, authorizes to be made the subject of express contract between tiie parties.

In the former case, tiie rights being entirely derived from the law and not from the contract, laws changing them are not within the prohibition ; but, in the latter case, although the law authorized the rights to be acquired, yet it authorized them to be acquired only by contract and when thus acquired the contract is within the pale of the protection.

The doctrine of implied municipal liability,” says Mr. Chief Justice Field, in a California case, invoked by relator and which was subjected to a thorough examination,” applies to cases where money or other-property of a party is received under such circumstances that the general law, independent of express contract, imposes the obligation upon the city to do justice with respect to the same.

If the city obtain money by mistake, or without authority of law, it is her duty to refund it, not from, any contract, entered into by her on the subject, but from the general obligation to do justice, which binds all persons, whether natural or artificial,” etc. The italics are ours.

The obligation to refund the money illegally received by the city, for the licenses subsequently declared to be illegal, does not arise from any contract between the city and the parties paying, any more than does the obligation to repair damage caused by the fault of another.

In the case of Folsom vs. New Orleans, 32 Ann. 714, decided by the present Court, whose conclusions were affirmed by the Supreme Court of the United States, we had occasion to review fully the principles. and the jurisprudence on the question of the protection which the Federal Constitution awards to contracts by prohibiting States from impairing the obligations of the same, and following in the line of well established precedents, we held that the right to claim damages, occasioned by the commission of a tort, even when reduced to judgment, did not arise from a contract and was not, therefore, within the constitutional protection.

We further declared that a State Constitution, when it does not conflict with that of the United States, is omnipotent in its disposition and even destruction of private and social rights, and that a State may divest vested rights, without infringing the paramount law of the land.

It is manifest in the case at bar, that as the right to claim reimbursement does not arise from any contract, but is recognized by law only, the relator has vainly invoked the constitutional protection.

ii.

The relator, however, claims that, if his case does not present the features of a contract shielded from invasion, lie had a vested right which could not he divested hy the reduction of the quantum of' taxation.

This may well he otherwise, hut were it not so, the relator would not, on that account, he entitled to he paid out of the tenth remaining j after deduction of the nine-tenths, from the ten mills taxation, authorized by- the Constitution, for the obvious reason that ho has set forth, and established no special valid ground, on which to predicate a diversion of that tenth from the object contemplated and appropriation made hy the legislature under Act 88 of 1881, and to justify a payment in full to him, hy preference over other municipal creditors, who may have as well founded claims against the city.

It is, therefore, ordered and decreed, that the judgment appealed, from he reversed and that plaintiff’s demand he rejected with costs.

Rehearing refused.