text:
    No. 13,437.
    Mutual National Bank of New Orleans vs. John T. Moore et al.
    Syllabus.
    1. One enjoining tile execution of a judgment against himself carries the burden of proving his averment that the judgment was obtained upon an obligation for which there was no consideration.
    2. • Failure of. the receiver to produce a list of assets in compliance with his promise to counsel in open court not followed by objection, and a bill of exceptions, affords- no reason for setting aside a judgment, on the ground that the list does not contain the judgment as one of the assets.
    3. The petition of defendant for an injunction only makes proof of allegations made for an injunction, but not of the facts alleged.
    4. One who alleges that his paper was used as accommodation paper must prove the fact.
    5. The one who plaintiff alleges was the principal debtor was not examined as a witness to prove the payment alleged and no testimony was offered by either of the debtors.
    6. The books and papers of the bank, with the exception of a few, had all been destroyed. Incompleteness of the record in the present condition of affairs is not ground to annual and set aside a judgment, on the ground of payment when there is no evidence by the one alleging payment showing that payment has been made as alleged.
    APPEAL from the Civil District Court, Parish of Orleans —- King, J.

      Dufour & Dufour, Joseph Brewer and Joseph O. Daspit for Plaintiff, Defendant in Injunction and Appellee.

      Robert G.'Dugue and Saunders & Gurley for John T. Moore, Jr., Defendant, Plaintiff in Injunction, Appellant.

      Dinkelspiel & Kart for Civil Sheriff, Defendant in Injunction, Appellee.
   ,. The opinion of the court was delivered by

Breaux, J.

This suit was instituted by Mr. John T. Moore to enjoin plaintiff from cpllecting a judgment it obtained against him, and to have the judgment enjoined, decreed null.

In January, 3890, Mr. Philip Thompson gave the Mutual National Bank his note for twenty thousand dollars, and to secure its payment ho pledged a number of collaterals, one of which was a note of Moore, the maker, for four thousand seven hundred dollars, secured by mortgage on property in Birmingham, Alabama.

At the maturity of the Moore note, secured by mortgage as just stated, foreclosure proceedings, contradictorily with the parties concerned, were instituted in Alabama, which resulted in the sale of the property for twenty-five hundred dollars, and a judgment for the remaining amount due after the sale, that is three thousand two hundred and forty-two and 73-100 dollars. The Alabama personal judgment was recognized here and was made executory against Moore by a judgment which was affirmed on appeal. National Bank vs. Moore et al., 50th Ann. 1332.

The enjoining debtor who seeks to have the judgment against himself annulled, grounds his action on the averment that the action against Thompson, against whom the judgment was not made executory, though he was made defendant in the action, never was understood by him before he was informed that Thompson was not a debtor of the bank. That if Thompson is entitled to the balance he claims, or if he has it in his power to prove payment, it would protect his- co-defendant, and yet nothing has been done by plaintiff to compel trial of the action in so far as he is concerned. That in the suit against Thompson, it should be decreed that the issues are not limited by a final judgment. ' ;

The said enjoining debtor furthermore especially avers that the bank has been paid in full, but that of this fact he did not become aware until sometime after the judgment, which he seeks to have annulled, had been signed. He also averred that he had been diligent in his defence, and that it was not due to any laches on his part that the defences made in his injunction suit were not presented before the judgment in question had been signed. The defendant in injunction denies all diligence on the part of the plaintiff. It charges, through counsel, that, on tlie contrary, plaintiff purposely postponed setting up any defence heretofore, and that during plaintiff’s intentional delays, officers of the bank have died; the bank has failed; and the books have been destroyed, save a few, as is usual in settling the affairs of an insolvent bank by direction of the Comptroller of the Treasury of the United States. In answer to a subpoena duces tecum, issued at the instance of the plaintiff in injunction, the receiver returned into this court all the remaining books and papers containing any reference to the Thompson transaction. This officer (the receiver) testified to credits to which Thompson is entitled, as made to appear by memoranda kept m the handwriting of the cashier of the bank and showing > a balance due by Thompson. The testimony of the attorney of the bank, and that of others, corroborates this testimony based entirely on the cashier’s memoranda. These written notes and memoranda of the cashier were admitted in evidence without explanation on his part for the reason that he was dangerously ill at -the time and could not testify. The notes, accounts, and memoranda referred to by these witnesses, are in evidence. Two of the employees of the bank, as witnesses, explained that there might be an indebtedness to the bank by Thompson without its appearing in the ledgers extant.

When the first receiver who had charge of the affairs of the bank was examined as a witness, mention was made of the inventory of the assets made by the bank examiner showing the assets of the bank. Whereupon counsel called for this list, which this witness promised to produce. When the counsel for the defendant bank, brought the taking of their testimony to a close, the .following, at their instance, was entered on the minutes: “They cannot produce the inventory or list of assets made by the bank examiner which has heretofore been called for by plaintiff in injunction. Mr. Huger reports that he cannot find it.”

It appears from the record that plaintiff in injunction, during the trial, Offered in evidence his affidavit and petition for an injunction, the order rendered thereon, the injunction bond, and the sheriff’s notices of seizuie annexed to the petition.

The judge of the District Court found that the officers and those in charge of the bank’s affairs had not, as charged, concealed the facts.

With reference to the averment of Moore that he had discovered, after the judgment had been signed, that Thompson was not indebted to the bank, it devolved upon him, Moore, to prove this when he was informed of this asserted fact, and, further, that it could not have been ascertained sooner. The District Court also decided that the evidence did not show that the note given by Moore was an accomodation note, and, lastly, the conclusion was arrived at by the district judge that the failure of John T. Moore to testify in the case raises every presumption against him. He dissolved the injunction and allowed 10 per cent, on the amount involved.

The proceedings which resulted in a judgment, and the judgment attacked, had every appearance of regularity. The rights of the parties were fixed m this judgment, after all the testimony offered had been heard. Eor reasons not stated by counsel, nor explained by the testimony, the judgment obtained in Alabama was made executory in Louisiana only against the defendant, Moore, and as to his co-defendant, Thompson, no final judgment has yet been entered. We have discovered no good reason to conclude that the omission to press the ease against the latter, Thompson, to final termination and judgment, was cause sufficient to give rise to the inference that it was because Thompson was not indebted to plaintiff, the bank, and that the officers in charge of the liquidation, none the less, ought to recover judgment. The parties were sued in solido and we judgp that they were solidarity bound, lor the judgment was rendered against Moore as one bound in solido and it has become final. The parties being bound in solido, in the absence of all testimony on the subject, no significance can be given to the asserte,d intentional omission of the plaintiff to press the claim to judgment against both defendants. The testimony does not disclose an intention on the part of the defendant in injunction to take an undue advantage by not insisting upon a judgment against both defendants. The oral argument led us to infer that, owing to misfortune in business, nothing could be collected at this time from the defendant, Thompson, against whom, as yet, no judgment has been pronounced.

In reference to the contention, that it is because the bank is paid, we can only answer that it was incumbent upon the plaintiff in injunction to prove payment. We have not found proof of payment in the record. The evidence is not as conclusive as perhaps it would be if the books of the bank, with the exception of a few, had not been destroyed. The destruction of the books and papers has given to plaintiff in injunction the plausible opportunity of insisting upon the non-indebtedness of Thompson to the bank. But neither he, nor the other defendant, has sought to take advantage of that opportunity by the testimony of one or the other. Plaintiff in injunction rests upon his allegations that the ex-bank has been paid by collecting on its collaterals. The present unsatisfactory condition of the bank’s record, as relates to this claim, is pointed to as sustaining the allegation of this plaintiff.

In view of the years that have elapsed since these transactions were entered into, the destruction of the books and papers, and of the inability of the cashier to testify, for reasons above stated,' we do not find it possible to agree with plaintiff in this respect. Granted that these records prove nothing, the defendant in injunction has a judgment which can be annulled only for good cause shown.

It was incumbent upon the plaintiff, in view of the circumstances, to have Thompson, by whom the loans were obtained, summoned and examined as a witness. He was the borrower. He knew or had it in his power to prove the amount of the collaterals pledged. The names of the debtors and those collaterals are surely known to some one, and by reference to them, with some degree of certainty, it might have been determined who had paid and who had not, and thus prove the amount realized by the bank on these collaterals to a credit of which the-debtor was entitled.

But this plaintiff, instead of thus making proof or seeking to make proof, asserts that neither he nor Thompson can prove his own allegations to be true, except by examination of the books and the officials of the bank; that neither he ñor Thompson knows what the bank has actually collected. From this we' infer that neither of them knows whether or not the bank has been paid, although they have, on other occasions and in the pleadings, averred that the bank has been more than paid. ' ' •

The note of the principal debtor, the collaterals, pledged, the judgment proiiouneed, show that there is an indebtedness. This, to an extent, at least, is corroborated by the books and papers and the testimony of the officers.' The following from the testimony of the last receiver, Mr. Richardson, serves the purpose of an illustration:

' Q. “Look at the list, please, and see whether, on that list, there appears anything showing an indebtedness from Philip Thompson to the Mutual National Bank, and, if so, what is it?
A. “In this list which I hold in my hand, dated February 15th, 1899, which list is also a receipt,, there appears this statement, under the head 'Other Assets Doubtful.’ Claim against Philip Thompson not on hand. ,
Q. “What is the meaning of the 'not on hand ?’
A. “That meant that it was in the hands of the attorney for collection and not received by me.”

There is no testimony contradicting the statement of the witness. Elaintiff in injunction especially complained of want of the examiner’s list of assets as part of the evidence, and seeks to fix the responsibility for its absence on defendants. He refers to the fact that at about the time of the failure of the hank, the examiner was in charge for a period of about four months; that he had time to make a thorough examination of the books; that when the receiver took charge, the examiner gave him a list of the assets of the bank and kept a duplicate of it on file in the department in Washington; that this list shows, in detail, every separate asset of the hank; that he demanded from Mr. Huger, the first receiver, to produce this list, or a copy of it, if the original could not be found. Instead of producing the original, or a copy of it as he had promised, on the day fixed for argument, he filed a return which merely stated that he could not find it, and, therefore, could not produce the original, and said nothing as to the reasons for not prducing the copy. The plaintiff in injunction avers that the failure to produce this list, after it had been called for, and after he had promised to produce it, raises the strongest kind of presumption that if the list had been produced it would have shown that it carried on it nothing as due by Thompson. Upon examination of the record, we did not find that the plaintiff objected to the return of the receiver that he did not have the list and no bill of exceptions was taken.

In reference to the note for twenty thousand dollars, after deducting the amount of collaterals collected as made to appear by acknowledgment written across the face of the note, there remains a balance due to the hank. Deducting the collected collaterals, as mentioned on the note, there remains due four thousand three hundred and fifteen 32-100 dollars, if one hundred and fifty-seven 80-100 dollars be taken as the correct amount of one of the collections, or thirty-two hundred and seventy-two 57-100 dollars, if fifteen hundred and seventeen 81-100 dollars be taken as the correct amount. In the body of the statement one hundred and fifty-seven 80-100 dollars is put down as the correct amount, while on the margin of the same statement it is fifteen hundred and seventeen 81-100 dollars.

We come next to Moore’s denial of all indebtedness on his part to Thompson, and that, in consequence, his paper transferred to Thompson to be pledged as security, was accomodation paper.

The defendants, the hank officers, when the evidence was being heard, sought to prove an indebtedness by Moore to Thompson. Plaintiff, .Moore, objected, to all testimony offered, to prove his asserted indebtedness. He contended, in opposition to the admissibility of the testimony, that it was irrelevant and unconnected with the case; that the issues were between him and the bank, and not between him and Thompson. The court sustained the objection and excluded the testimony. But at another time during the course of the trial, in connection with the testimony of. one of the witnesses, plaintiff in injunction introduced testimony which he contends shows he transferred accomodation paper. This testimony consisted of his petition in this suit and accompanying paper (shown in our statement of facts) as proof that the paper transferred to Thompson was accomodation, as alleged, and that he was not indebted to him. At one moment defendant was not permitted to introduce testimony offered for the purpose of showing that Moore was indebted to Thompson, and at another moment Moore introduced testimony to prove that he was not indebted. This, in view of the present condition of the case, could not make any great difference were it not that although the latter’s testimony was admitted, it did not prove the fact for which plaintiff contended.

The facts set forth in the petition for an injunction do not constitute prima facie evidence.

The decisions cited by plaintiff’s counsel, relative to the prima facie effect of affidavits for conservatory writs, do not sustain plaintiff’s position, i. e., that full effect, as evidence, should be given to this peti-' tion, because it was admitted in evidence without objection. This petition may serve to prove rem ipsam.. In matter of the suit it cannot be taken as proof of the nature and extent of an obligation of the one alleging. Here again, parties have not chosen to testify in their own behalf in reference to a matter of which they alone, presumably, had knowledge.

From this point of view, plaintiff is without right to maintain his suit to -annul the judgment, for he is without interest, and the bank, or-its successor, is entitled to collect the amount. In any case the bank is entitled to the amount, or collateral, equal to the balance due it, and with the evidence before us, we do not feel that we would be justified in concluding that less is due than claimed.

For reasons assigned, judgment appealed from is affirmed.

Monroe, J., recused.

Rehearing refused.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 13,474.
    Charles H. Aiken vs. The Southern Pacific Company et als.
    Syllabus.
    The fact that a passenger upon a ferry boat may be thrown down and have his leg broken, by the striking of the boat at the approaches to the landing, is entirely consistent with the supposition that the boat may have been landed in a careful and prudent manner.
    When the evidence shows that it was so landed a plaintiff can not recover damages.
    APPEAL from the Civil District Court, Parish of Orleans — King, J

      E. Á. 0'Sul¡livan and Solomon Woljf for Plaintiff, Appellee.

      Denegre, Blair & Denegre and Victor Leovy for Defendants, Appellant.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, C. J.

Plaintiff prays for judgment against the Southern Pacific Company and Morgans’ Louisiana & Texas Railroad and Steamship Company, in solido, for eight thousand dollars, based on allegations that, on or about the 4th day of April, 1898, he, as a passenger, entitled to transportation by the defendant companies, which are jointly conducting the business of a public carrier engaged in transporting freight and passengers, for hire, by rail or otherwise, entered the depot of the said company, in the City of New Orleans, to obtain as a passenger the transportation to which he was entitled, and was, by the officers of the said companies, and the rules and regulations required and directed to take passage on a transfer boat belonging to the said companies, which boat was to take him and his fellow passengers across the Mississippi river from the depot of the company at New Orleans to the depot of the defendant companies at Algiers, where the trains of the defendant companies were waiting to transport him and his fellow passengers to their various points of destination.

That the said boat reached the Algiers landing about 9 P. M., and through the negligence of the said companies, their officers and agents, was improperly handled, and struck the wharf or landing with such force as to violently throw him down and cause him to break bis leg about three inches above the ankle.

That, as the result of said injury, he was confined to his bed until September 1st, 1898, and was still unable and did not know when he would he able to resume working at his usual occupation.

That, at the time of his injury, he was earning a salary of $1800 per year and his expenses, which gave him an annual income of $5600; that one year’s service and income had already been lost, and his physicians were not willing and not able to state when he would be able to go to work, besides there was grave and serious doubt that he would be able again to obtain a situation, which his employer was compelled otherwise to fill and which situation was not still vacant.

That he had already paid and incurred bills for medical attention and medicines amounting to four hundred dollars, and the end was not yet here.

That- the pain and suffereing and mental anguish which he had endured, and was still enduring, and the probable loss of his position, and the loss of the opportunities which he. had suffered by reason of his enforced idleness amounted to five thousand dollars.

That he had not, in any manner, contributed to the injury which he sustained, but that the same was caused by the neglect and fault of the defendant companies, their officers and agents, and by the imperfect and faulty provisions which the said company had made for the care of its patrons.

Defendant answered, pleading the general issue and specially denying the accident referred to or intended to he referred to, was due to any fault or negligence on its part, 'or that of any of its officers, agents or employees.

The issues were tried before the court which rendered a judgment in favor of the plaintiff, for six thousand dollars, from which judgment defendant appealed.

Opinion.

The issues in this case were decided by the court, not by a jury.

In the judgment rendered, the court says:

“The defendants run a ferry across the Mississippi river. On the night of April 4th, 1898, the plaintiif, a large, strong, man, weighing two hundred and ninety pounds, went on board defendant’s steamboat, on the New Orleans side, and seated himself on his valise on the lower deck, a place assigned for passengers. When the boat-reached the Algiers side, in entering the slip, it hit against the side. Plaintiff thinking the boat was landing, arose, took his valise in his hand and walked a few steps towards the edge of the boat. The boat then hit the end of the slip, where she was to land, a hard blow, the effect of which was to cause him to fall and break his leg, between the ankle and the knee. Plaintiff lost consciousness for a time from the pain; was found by the crew after the passengers had left the boat, with his leg broken, and was brought back by them to the New Orleans side. The leg is permanently injured; in fact useless, and will be so, in all probability, for the balance of plaintiff’s life. There was no negligence or imprudence on plaintiff’s part contributing to the accident.
The mere fact that plaintiff, acting as a prudent passenger should act, was thrown down and injured front the effect of the blow with which the boat struck the landing, is presumptive evidence that the boat was carelessly handled, and that the accident was caused by defendant’s negligence. The duty is then placed upon the defendant to account, in some satisfactory manner, for the boat, on that night, striking the landing with a force so strong as to injure plaintiff, a passenger, in order to escape liability.
In this the defendant has utterly failed. It was a calm night, and the captain and crew, in substance, testify that the boat made the usual landing. They so testify, although they knew of the accident to plaintiff the night it occurred, and that the plaintiff was injured while on the boat, and while he was in their custody and charge. The court, from the evidence adduced, is of the opinion that the defendant is guilty of negligence and liable.”

The plaintiff refers the court, in support of his position, to Julian vs. Steamer Wade Hampton, 27 Ann. 377; Patton vs. Pickles, 50 Ann. 857; Philadelphia R. R. Co. vs. Anderson, 94 Pa. St. 351; 39 Ann. Rep. 787; 16 Ency. 399; while defendant cites Better on Carriers and Passengers (page 196 and authorities), Edition of 1897; Black vs. Third St. R. R. Co., New York Supreme Court, 1896; 37 N. Y. 381 (referred to by this court in Gretzer vs. Carrollton R. R. Co., just decided); Cassidy vs. Atlantic Avenue Co., 29 N. Y. 724; Hayes vs. R. R. Co., 97 N. Y. 529; Chicago R. R. Co. vs. Hazard, 26 Ill. 373.

The judgment rendered was evidently based upon the cases in 27th Ann. and 50th Ann. referred to.

In the former case this court said:

“Common carriers are bound to carry their passengers safely and securely, and to use the utmost care and skill in the performance of their duty (Angelí on Carriers, p. 568) and, of course, they are responsible for any, even the slightest, neglect.” 2 Greenleaf Ev. 221. “The burden of proof is on the defendants to establish.that there has been no disregard whatever of their duties, and that the damage has resulted from a cause which human care and foresight could not prevent. The captain and owners are responsible for the acts of their employees. 15 Ann. 321; 18 La. 490; 2 Ann. 634; 11 Ann. 396; 14 How. U. S. 468.”

We are not called on in the present instance to discuss the abstract legal proposition as to which party carried the burden of proof, for both sides have presented their testimony, and we are in position to pass upon the rights of parties from the whole evidence, whether adduced by the plaintiff or by the. defendant. We do not think that matters are at all left in doubt under the evidence; or that the issues are to be disposed of through presumptions. The record discloses, affirmatively, the absence of fault or negligence on the part of the defendant.

The plaintiff ascribes .his injury to the boat upon which he was crossing the river, “having struck the wharf or landing with such force as to violently throw him down and cause him to break his leg;” and he avers that this striking was “by reason of the defendants’ officers and agents having negligently and improperly handled the boat.”

It may be conceded that the breaking of plaintiff’s leg was due to the striking of the ferry boat at the second line of piling, making up the Y, through which the boat approached the wharf, but it by no means follows from this that the boat was negligently and improperly handled.

We think the evidence fully establishes the contrary. The blows at the pilings were such as were habitually made, and no one, other than the plaintiff, was thrown from his feet or in any way injured. It is exceedingly difficult for a pilot, approaching at night, to calculate, with absolute precision, the distance of the boat from the landing, and even if he should do this the current and the wind, more or less, may, in spite of the pilot, affect the situation. There is nothing to show error of judgment, still less, want of care, on this particular occasion. Neither the boat nor any part of it was injured, nor were the approaches to the land. Every passenger landed on the Algiers side but the plaintiff. According to plaintiff’s own version, he was sitting on his valise when the boat struck the first row of pilings in the “V.”

No injury was received from the plaintiff by that blow. After it was received, plaintiff rose, unhurt, from his seat. Believing (as he did) that the boat had finally landed, he rose from his seat, took up his valise, and was walking forward when the boat struck a second time, and by so doing threw him to the floor, breaking his leg. The second blow to which reference is here made was the result of the sheering off of the boat from pilings which formed the right side entrance to the “V” to those which formed the left side.

This blow was less great than the first. It is not difficult to understand how a passenger, just rising from his feet after the first blow, or one who having just risen, should be moving forward with a heavy valise to the bow of the boat, .might be thrown from his balance by even a very slight second blow, and that from a special state of facts personal to himself, with which the parties in control 'of the boat have no relations and no knowledge, he should receive injuries.

In defendants’ brief, counsel say:

“There can be no doubt, from the authorities, that in view of the necessary shocks on starting, stopping, increasing and decreasing speed, in the rapid movement of ears and vessels required by the modern public, and in view of the fact that falls constantly occur where there is little or no shock, due to careless positions of the body, or sudden failure of the muscles, slipping, stumbling, etc., there must be something more than a fall, and of adjectives of more or less strength concerning the shock to serve as a basis for the compulsory transference of a large sum of money from a defendant to a plaintiff. All -are acquainted with the usual shocks on usual conveyances.

If any particular shock was unusual, why should plaintiff’s witnesses (and especially plaintiff himself) fail'to so state.

Plaintiff testified that he had traveled extensively, and that he had crossed several times over this particular ferry. On his first direct examination, referring to the blows received, the following questions and answers appear:

Q. “Do you remember what kind of blows they were that this boat gave; as to the strength or weakness of the blows; whether they were heavy or light blows ?
A. “They were blows the same as a boat would naturally make in landing.
Q. “Are you referring to these two blows that the boat gave ?
A. “Yes.
Q. “Well, was the force very great of both these blows?
A. “Well, I should say they were.
Q. “Are you a man who, at that time, was pretty strong on your feet ? ,
■ A. “Yes, sir; fairly strong; as well as a man of my age would be.
Q. “What is your weight?
A. “At that time I weighed two hundred and ninety pounds — I think.”

This conclusion of the plaintiff as to the force of the blows is corroborated by no one. On the contrary, it is positively disproved.

The District Court’s action was evidently based on the views expressed by this court in Julian vs. The Wade Hampton and Patton vs. Pickles, but we think that they were not applicable to the state of facts disclosed by the evidence in the present case.

The injury received by Mrs. Patton, in the Pickles case, was by the breaking down of a bridge of one of the appliances 'of the ferry boat, which resulted in precipitating nearly all of the passengers upon it into the river. It was contended that it was the duty of a passenger, seeking to recover damages for injury received from the breaking of the bridge, to show, affirmatively, that the breaking was the result of a fault on the part of the Ferry Company, but we held that this was not the law.

The obligations of a carrier touching these matters were considered by us from a second point of view or standpoint in Kennon vs. Vicksburg, Shreveport & Texas R. R. Co., 51 Ann. 604.

In both the ITennon and Pickles cases the court referred to the differences between injuries primarily and directly received by a passenger and those received by him secondarily as the result of prior injuries to one of defendant’s appliances. In the Kennon case the Railroad Company having been shown to have been first in fault in passing the plaintiff, who was a passenger, beyond her destination, and having been shown to have wrongly placed her in a position of danger. insisted that she should establish, affirmatively, the precise cause of an injury which she received while so situated. We were of the opinion that the defendant could not impose this burden upon her. These decisions are not precedents for the judgment which has been pronounced in the present case, in which defendant was not shown to have at any time been at fault.

The extract from Fetter on Carriers, to which defendant refers, declares that, as a general rule, a street car company is not liable for injuries to passengers caused by starting its cars in the usual and ordinary manner, but any unusual manner of starting raises a question of negligence which is for the jury. The fact that the car gives a sudden mo i ement when started is entirely consistent with the supposition that the horses were started in a careful and prudent manner, for a car loaded with passengers must necessarily require a strong pull of the horses to overcome the resisting inertia, and it must be something of constant occurrence and unavoidable.' Neither is it evidence of negligence in a driver of a horse ear that he whipped his horses when about to start a car full of passengers, unless there appears to have been something unusual in his manner of whipping.

In Black vs. The Third Street Railroad Company, the Supreme Court of New York, said: “A perusal of the testimony, as it appears in the printed case, shows an utter want of proof to establish the allegations of the complaint respecting the cause of the accident. There is not one word of testimony to show any unskilfulness or negligence of the company’s servant in charge of the appliance by which the motion of the car was controlled; all that is said is that the car started with a violent jerk. No testimony whatever was given respecting the manner of starting a cable car, nor what is the character of the motion ordinarily produced by the attachment of a grip to the cable; nor anything respecting the character of the motion first imparted by the receiving cable to the car, at the instant the motion of the ear begins. It was sought to establish that by reason of plaintiff’s fall there must have been something unusual or excessive in applying the motive power, and hence negligence. There is nothing whatever to show what was the fault of any one of defendant’s employees in operating the car. It cannot be said that there was any neglect on the part of the conductor in giving the signal to start. The person injured w.as with a party consisting of himself, his wife, two others, and several children. They 'all appear to have been seated except plaintiff when the car slatted. In what attitude plaintiff was standing; how his body was balanced or whether he was not in such a position that any motion of the car in starting would have caused him to lose his balance does not appear. The whole of the plaintiff’s case seems to depend on the mere characterization of the motion by himself and his wife and one witness as a violent shock, which, as above stated, is not in any wise distinguished from the ordinary usual force of the movement of a cable car when started. This case, therefore, is destitute of proof on the subject of negligence on the part of defendant’s servants in starting the car, and especially of any proof of the particular act of negligence stated in the complaint as the cause of the accident.”

The ease cited resembles the one at bar quite closely in some of its features, but in the case before us the question as to whether defendant was in fault or not is not left in doubt.

We think that defendant has disjjroved the allegation that it was in fault.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff’s demand be rejected and his suit dismissed.


author: Blancharíd, J.

text:
    No. 13,611.
    State of Louisiana vs. Charles Napoleon.
    Syllabus.
    It is well settled that in a murder trial the dangerous character of the man who was killed cannot be given in evidence until the proper foundation is laid.
    That is to say, it must be shown to the point of reasonable sufficiency by competent testimony that the deceased made some hostile demonstration towards the accused, to do him some great bodily harm.
    3. In a criminal trial a formal bill of exceptions is necessary. An entry upon the record “bill of exceptions reserved” does not suffice.
    The practice, sanctioned by many rulings, is that in the absence of a bill of exceptions this court will not review the action if the trial court on a motion for a new trial. A bill to the ruling denying the motion must be taken, and if evidence was adduced in support of the motion the same must come up annexed to the bill, or made part of it. Otherwise, even though in the record, it will not be noticed,

      5. Where the verdict of the jury was unanimous in convicting defendant of manslaughter, he is without interest to urge that the failure to charge that nine of the jury could convict or acquit of manslaughter was reversible error.
    APPEAL from the Twenty-third Judicial District, Parish of St. Mary — Allen, J.

      Walter Guión, Attorney General, and W. K. Wilson, District Attorney, (Lewis Guión, of Counsel) for Plaintiff, Appellee.

      Sigur & Roberts, for Defendant, Appellant.
   The opinion of the court was delivered by

Blancharíd, J.

Defendant, indicted for murder, was convicted of manslaughter and sentenced to five years at hard labor and to pay a fine of fifty dollars.

He appeals.

In the only bill of exceptions taken during the trial it is set forth that the accused offered to prove the dangerous character of the man who was killed, and that this offer was made after it was established, (1) that the deceased had, during the quarrel, transferred his pistol from the left belt of his pants to his right hand breeches pocket; (2) that he had cursed the accused after the latter had turned to go; (3) that the accused had thereupon turned to find Holmes (the deceased) with a drawn pistol pointing at him; (4) and that the accused had then fired the fatal shot.

The prosecution objected to this attempt to prove the dangerous character, on the ground that a sufficient basis therefor had not been laid.

■ The judge sustained the objection, giving as reason for his ruling that the evidence which had been adduced in the case had not shown any overt act on part of the deceased, had not established an assault or hostile demonstration by him tending to produce upon the mind of the accused the reasonable apprehension or belief that he was in imminent danger. He gives a resume of the evidence, and declares that no witness who was present at the time of the homicide and who was called to testify had given evidence of any overt, hostile act on part of the deceased, except the defendant himself, and this fact and other circumstances mentioned had convinced the court the statement of the accused did not amount to proof. In short, that no sufficient basis for the introduction of evidence of dangerous character had been laid.

The statement of the trial judge in a bill of exceptions (the evidence not coming up) is controlling, and accepting it, we are not prepared to say there was error in the ruling excluding the testimony offered to show the dangerous character of the deceased.

It is well settled that in a murder trial the dangerous character of the man who was killed cannot be given in evidence until the proper foundation is laid. That is to say, it must be shown to the point of reasonable sufficiency by competent testimony that the deceased made some hostile demonstration towards the accused, to do him some great bodily harm.

It is further .urged upon us that the judge a quo erred in denying the motion for new trial. Much matter of defense is set up in an original and supplemental motion for new trial, and in support of the averments thereof testimony was taken in writing and comes up in the record. We are asked to review this evidence and to decide that the judge was at fault in not setting aside the verdict and in refusing the new trial.

It appears that no bill of exceptions was taken to the judge’s ruling on the motion. A bill,"it seems, was reserved, but not written up or perfected. In other words, this ruling of the court a qua, denying the new trial sought, was not made the subject of a bill of exceptions, and the evidence taken in support of the motion was not brought up annexed to and as part of a bill of exceptions.

To have a mere note entered on the record “bill of exceptions reserved,” is, in a criminal trial, no bill whatever. This was distinctly so decided in State vs. Haines, 51 La. Ann. 731. See also State vs. Comstock, 36 La. Ann. 309. A formal bill, duly drawn up and signed, is necessary.

The practice, sanctioned by many rulings, is that in the absence of a bill of exceptions this court will not review the action of the trial court on a motion for a new trial in a. criminal prosecution. Knobloch’s Crim. Digest, p. 331; State vs. Nelson, 32 La. Ann. 842; State vs. Ross, 32 La. Ann. 854; State vs. Hudson, 32 La. Ann. 1052; State vs. Williams, 35 La. Ann. 742; State vs. Comstock, 36 La. Ann. 310; State vs. Tincent, 36 La. Ann. 770; State vs. Jackson, 37 La. Ann. 467; State vs. Walker, 37 La. Ann. 560; State vs. Wire, 38 La. Ann. 684; State vs. Darrow, 39 La. Ann. 677.

The evidence upon which a motion for a new trial was denied by the court below cannot be considered on appeal unless brought up by a bill of exceptions. State vs. Given, 32 La. Ann. 782; State vs. Nelson, 32 La. Ann. 842; State vs. Ross, 32 La. Ann. 854; State vs. Hudson, 32 La. Ann. 1052; State vs. Belden, 35 La. Ann. 823; State vs. Miller, 36 La. Ann. 158; State vs. Redwine, 37 La. Ann. 780; State vs. Deas, 38 La. Ann. 581.

Though the motion for new trial, together with the evidence adduced in support of it, appears in the record, unless the overruling of the motion be excepted to, neither it nor the evidence can be considered. State vs. Jackson, 35 La. Ann. 769.

Complaint is made that the trial judge did. not charge the jury that, should they reach the conclusion ihe accused was not guilty of murder, in considering whether or not he was guilty of manslaughter, nine of their number could convict or acquit.

It appears from the record that in returning their verdict of guilty of manslaughter, the jury were unanimous. In view of this, it is difficult to see in what way the accused has been injured by the failure to charge as above, even though to so charge be conceded to be correct, and even though the same may be taken advantage of without having been made the subject of objection and bill of exceptions taken at the time.

Judgment affirmed.


text:
    No. 13,678.
    State of Louisiana vs. William Thompson.
    Syllabus.
    1. The general venire of jurors should not be set aside for defects or irregu-' larities in its selection unless it should appear that some fraud has been practiced, or some great injury committed therefrom which would work irreparable injury. (Selection 14, Act No. 135 of 1898.)

      2. Parties accused of crime necessarily punishable at hard labor have no legal right to waive trial by jury, and insist upon being tried by the District Judge. (Article 117, Constitution of 1898.)
    APPEAL from the Twenty-Seventh Judicial District, Parish of Assumption — Leche, J.

      Walter Guión, Attorney General, and G. Adolph Qondran, District Attorney, (Lewis Guión, of Counsel,) for Plaintiff, Appellee.

      Pugh & Pugh for Defendant, Appellant.
   Statement op the Case.

The opinion of the court was delivered by

Nicholls, C. J.

The defendant was found guilty under an information charging him with horse stealing, and was sentenced to hard labor in the penitentiary for one year.

Prior to going to trial he moved to quash and set aside the jury-on the ground that it was drawn to the great injury, wrong and fraud of himself, and that it would work irreparable injury if it was allowed to sit on his case. The objections urged were that the law directed (Act No. 135 of 1898) that juries should be drawn by the Jury Commissioners for the first week of the next ensuing session of the court after the drawing; that the next ensuing term after the meeting of the jury commissioners on the 3rd 'of July, 1900, was the term commencing July 16th, 1900; that no petit jurors were drawn or summoned for the first week of that session, but the proces verbal of the drawing of the said jury showed that they were drawn for the first and last week of said term of court, beginning on Monday, July 3rd, 1900, and were summoned for Monday, July 23rd, 1900-.

The motion to quash was overruled and defendant excepted.

On being arraigned he pleaded not guilty and waiving trial by jury prayed to be tried by the court.

The court refused to accede to this prayer, and directed that he be tried by a jury. This action of the court was made the basis of a bill of exceptions, taken at the time, and also for a second bill taken later to the refusal 'of the district judge to consider it as a ground for a new trial, when assigned as such by the defendant.

The petit jury was empaneled and sworn without further objection: the record giving no evidence of challenge of any kind.

Opinion.

By the 15th Section of Act No. 135 of 1898, it was enacted that it should not be sufficient cause to challenge the general venire selected for any session of the court or portion thereof, or for service at any time, in any parish or district of the State, or set aside the venire, because some of the jurors on the list are not qualified to act; nor because of any other defect or irregularity in the manner of selecting the jury as above provided (in the act), “and to such defect (no such defect) or irregularity in the selection of the jury shall be sufficient cause if it shall not appear that some fraud has been practiced or some great injury committed in the selection and summoning of the jury that would work irreparable injury; provided that it shall be good reason to challenge, for cause, any juror who is not qualified to act under the provisions of this act.”

Appellant has, in general terms, alleged wrong, fraud and irreparable injury, but he has failed to either point out or to prove how, or in what manner, wrong, fraud or injury to himself or to any one else has resulted.

We, ourselves see no good ground for complaint.

The action of the court, refusing to allow the accused to waive trial by jury* was based upon the provisions of Articles 116 and 118 of the Constitution of 1898. It ruled that, in cases necessarily punishable at hard labor, a jury could not be waived. In addition to those articles themselves, we are referred, by the Attorney General and counsel, to Profiat on Jury Trials, Sections 110-113; Clark’s Criminal Procedure, page 435, and authorities cited; 5 Ohio St. 283; Thompson & Merriam on Juries, pages 5 and 7, Sections 5 and 6; also Thompson vs. Utah, 170 U. S. 343.

Article 117 of the Constitution declares that “the district judges shall have authority to try at any time all misdemeanors and when the jury is waived all cases not necessarily punishable at hard labor, and to receive pleas of guilty in cases less than capital.”

The reason assigned for refusing to allow an accused to waive trial by jury is that “the State has an interest in the preservation of the lives and liberties of its citizens, and will not allow them to be taken away without due process of law.”

We are of the opinion that the conclusions reached by the District Court, on this subject, are correct.

Eor the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be, and the same is hereby affirmed.


author: Breaux, J.

text:
    No. 13,527.
    A. R. Costa vs. Joseph Yochim.
    Syllabus.
    The master is liable to third persons for injury growing out of his employe’s negligence. If he, the master, is not in fault, he may recover from his employe the damages which he has been made to pay, if the accident was caused by the negligence or carelessness of the employe while in the master’s service.
    The judgment against the master for damages is evidence against the servant who was notified and who was a witness in the case in which the master was condemned to pay damages.
    The judgment rendered in the first case was correctly taken as the basis for the judgment in the case of the master against the servant.
    IN RE Joseph Yochim Applying for Gertiorari, or Writ of Review, to the Court of Appeal, Parish of Orleans, State of Louisiana.

      Robert J. Maloney for Petitioner.

      Ilarry H. Hall and P. M. Milner for Respondent.
   The opinion of the court was delivered by

Breaux, J.

Defendant', Yochim, seeks to have a judgment of the Court of Appeal reversed which condemns him to pay to plaintiff the sum of two hundred and thirty dollars with legal interest and costs.

The defendant, it appears, was sued in the District Court by Costa for an amount which he, Costa, paid to M. A. Bassich, being the value of a mare. Prior to this suit, Costa had been sued by Bassich for the value of this mare which was killed while the defendant, Yochim, was driving Costa’s wagon. In this suit, Bassich, alleging the carelessness and negligence of the driver, recovered judgment against the owner of the wagon thus negligently and heedlessly driven. This judgment was paid by Costa, who, afterwards, sued the relator, Yochim, who was his driver at the time.

Defendant in the suit before the District Court, also here, avers that before that court, in the case of Costa vs. Yochim, he (Costa) pleaded the exception of no cause of action, and that he a&o interposed the plea of estoppel for the reason that in the answer filed by Costa in the suit by Bassich, he (Costa) especially denied that he, his drivers, or employees, had been guilty of negligence or carelessness.

It appears that the plaintiff in the case against Yochim, offered the decree in suit No. 51,006 in evidence. The court admitted this record to prove rem ipsam.

To the ruling of the court thus limiting the effect of the evidence, the plaintiff reserved a bill of exception. The District Court gave judgment against the defendant as prayed for, and the Court 'of Appeal affirmed the judgment of the District Court.

This court has several times decided that judgment will not be annulled in proceedings on review, under Article 101 of the Constitution, unless it be quite evident that the court to which the writ ia addressed has fallen into manifest error of law or fact.

With reference to the estoppel pleaded by defendant in the District Court and in the Court of Appeal, which is also urged here, the facts are, as relates to the proceedings, that defendant, Costa, in the first suit of Bassich vs. Costa, alleged that the defendant, Yochim, the defendant here, who was the driver of his (Costa’s) wagon at the time of the accident, had not been negligent or careless.

In the second suit, that is the suit of Costa vs. Yochim, plaintiff changed his allegations and averred, as found by the judgment against him, that Yochim was the only one at fault, and was entirely responsible for the injury occasioned by the accident; and that, therefore, he owed to him, Costa, the amount he had been condemned to pay to Bassich. The allegations in the Bassich ease did not operate as a conclusive estoppel as between Costa and Yochim. Defendant, Costa, in that suit could not set up other defences. Had he failed to defend himself as he did and to plead that Yochim, the driver, was not guilty of negligence, then the latter would have had serious cause of which to complain. He, defendant, Costa, in the interest of the driver as well as his own, made the defence which the facts, as reported by the driver, justified. After it conclusively appeared that Yochim had been negligent and careless and his employer had been compelled to pay for the property destroyed, he had a right to bring an action and to recover on allegations setting forth the true facts. Watkins vs. Athon, 33rd Ann. 1194.

Defendant, Yochim’s, most serious complaint is that the District Court and the Court of Appeal have given conclusive effect to the judgment rendered in Bassich vs. Costa, No. 51,006.

There does not seem to be any question but that the whole complaint in the first suit, Bassich vs. Costa, was directed against Yochim’s careless and negligent driving as having caused the accident. He was present during the trial and was defendant’s witness. lie could not properly take the position in the subsequent suit, that he was not notified of the first case of Bassich vs. Costa. Fie was virtually a party to the proceedings. He, as relates to the act of negligence, was really the only one concerned. He, in substance, admitted in the first or Bassich case that he alone was driving Costa’s wagon at the time of’ the accident. The judgment of the court could have been based upon no other ground than that Costa was liable because of the negligence and carelessness of the driver. In the second suit he testified, again denying negligence on his part. But the fact remains that he had been found negligent, and while the judgment in question was not conclusive evidence of negligence, it was evidence to which it was proper to give some weight.

When a judgment rendered by a court of competent jurisdiction is not attacked as fraudulent, and no error is made to appear, it is binding on the employee who was notified, and was a witness, and whose negligence was the only cause of damage which was found against his employer who was made to pay the amount. It devolved upon the employee, the onus was with him, to show wherein the judgment was in any particular, erroneous. This he has failed to do.

“Persons notified of the pending of a suit in which they are directly interested must exercise reasonable diligence in protecting their interests, and if, instead of doing so, they wilfully shut their eyes to the means of knowledge which they know are at hand to enable them to act efficiently, they cannot, subsequently, be- allowed to turn around and evade the consequences which their own conduct and negligence have superinduced.” Robbins vs. Chicago City, 4 Wall. 674. “While the master is liable to third persons for injury arising from his servant’s negligence within the scope of his employment, if the master is free from fault as to the negligence in question, he may have his remedy against his servant for damages to which he is thereby subjected and the measure of damages in such case is the amount of the recovery against the master. 5 T. & C. N. Y. 143; 4 T. R. 389; 6 M. & G. 165.”

The applicant, Yochim, for this writ, is bound by the judgment in question, unless error is shown.

The binding effect of the judgment was not changed by his (Yochim’s) testimony, that he had not been negligent. That was'the extent of the testimony. The testimony was the same as in the first case.

It is, therefore, ordered, adjudged and decreed that our order nisi directing the plaintiff, Costa, to show cause why we should not exercise the authority vested in the court by Article 101 of the Constitution, is recalled and annulled, and it is further ordered, adjudged and decreed that relator’s demand be rejected.


author: Nioholls, C. J.

text:
    No. 13,647.
    State of Louisiana vs. Emanuel Mayfield.
    Syllabus.
    1. Objection to the action of the court in overruling a motion for a continuance should be preserved by a bill of exception, taken at the time, and not brought up in a bill first taken on the overruling of a motion for a new trial. If considered at all, when so made the objection must be considered from the standpoint of the whole situation as developed by the trial.
    2. Though a juror state that he had formed an opinion in the case, from having talked to two of the witnesses whom he knew to be truthful men, and that it would take strong evidence to remove the opinion he had formed, he will be held a competent juror when he further states that he had no fixed opinion; that his mind was in such a condition that he could go on the jury and depend entirely on the law and evidence in arriving at his verdict; that he had no bias or prejudice against the accused; that he could disregard the opinion he had, and it would have no influence or effect in determining his verdict, and the court declares that the juror was a man of high character, and it believed he was answering truthfully.
    ON APPEAL from the Eour'th Judicial District, Parish of Lincoln. —Dawkins, J.

      Walter Guión, Attorney General, and F. F. Preoux, District Attorney, (Lewis Guión, of Counsel,) for Plaintiff, Appellee.

      William A. Van Hook for Defendant, Appellant.
   Statement of ti-ie Case.

The opinion of the court was delivered by

Nioholls, C. J.

The defendant, a colored man, indicted for the murder of a colored boy, was found guilty of manslaughter and sentenced to the penitentiary for fifteen years.

Tie appealed.

His first assigned ground of complaint is the overruling, by the court, of a motion made by him for a continuance.

The grounds set up in this motion were that he had only been indicted, arrested and made acquainted with the charge against him, on the 13th of August, 1900; that he was totally without means to procure an attorney, as were also his relations and friends; that it was only late on Saturday evening, September 1st, that he succeeded in employing one; that this attorney was pressed with other business which necessarily required and took up a part of the two days which were given to him to prepare defendant’s defense; that he had, on Monday, the third 'of September, to defend a party charged with wounding less than mayhem, and had many important civil cases; that the weather was exceedingly hot and taxing to strength, and his attorney was not physically strong; that there was a very strong feeling of indignation and prejudice against him in the neighborhood in which the murder was charged to have been committed; that he feared and believed that this state of feeling would work injuriously against him on trial, unless his attorney could be given time to acquaint himself with this prejudice; that he believed that there would be some important circumstantial evidence in the case; that time was, therefore, absolutely necessary for defendant’s attorney to have time to study the physical facts and surroundings on which the circumstantial evidence was based; that last, but not least, the coroner held an inquest and postmortem examination and there would, perhaps, be important expert testimony produced by the State, and should there be, it would be absolutely necessary for Ms attorney to acquaint himself with such evidence, and with the medical science which treated of such matters, otherwise the result would likely be to effect a denial of justice when a man’s life was at stake.

The usual allegations as to the exercise of due diligence, etc., were made.

The application was sustained by defendant’s oath, and accompanied by an affidavit of defendant’s- attorney, declaring that he had been employed late on Saturday, September 1st, 1900, to defend the case, and that the pressure of other important business which he had on hand, and the intrinsic and difficult questions involved in the case, and the great research and investigation of authorities, made it, in his opinion, impossible to get ready and give the defendant a good defence, unless the ease should be continued as prayed for.

It does not appear, from the record, that there was any bill of exceptions taken to the action of the court in overruling this motion, at the time it was overruled. No written reasons for such action were then given by the judge. The matter was made a subject of complaint in defendant’s motion for a new trial, and a bill of exceptions was reserved to the overruling of that motion.

When jurors were tendered, he challenged a number for cause, and a number peremptorily. A number of challenges for cause were held not well founded. Defendant exhausted his peremptory challenges, and two talesmen, A. J. Pipes and J. C. A. McKinney, served upon the jury, the first named, A. J. Pipes, having been accepted over defendant’s challenge to him for cause.

Defendant reserved bills of exception to the action of the court in overruling his challenges for cause. The grounds -of challenge (with the exception to that of Pipes) were substantially alike, as were the reasons for holding the grounds of challenge insufficient.

In the bills of exception covering these complaints, defendant stated that in answer to question on voir dire, three jurors, who were white men, declared that they entertained a different feeling for a black man frcm .that which they entertained for a white man; that, acting in a ease in which there was a contest between a white man and a black roan, he could not, and would not, give the black man the same legal, just and fair and impartial trial that he would give the white man; that he could not give a black man the same just, fair and impartial trial that he could give a white man charged with precisely the same crime; that they did state, however, when questioned by the judge, after they were challenged for cause, that in a case where the parties were all black, and no white person involved, interested, or concerned, that they could give a black man as fair a trial as they would a white man.

In the bills of exception, taken to the rulings, it is stated that by the ruling of the court, defendant was forced to challenge jurors peremptorily, and that by reason thereof, he had exhausted the right to challenge before the panel was complete.

The district judge assigned, as his reasons for accepting the jurors, that the defendant, a colored man, was being tried for the murder of a negro boy of four years; that counsel for defendant propounded to every juror sworn, questions in different forms seeking to know if they, as jurors, could give a negro a fair and impartial trial in contests where one of the parties was a negro; and if they could give a negro the same fair and legal trial they would a white man. Several of the jurors answered that they would be biased, they thought, in favor of the white man; some said they would not be able to give the colored man as fair and impartial a trial as they would the white man; but all of the jurors, in answering to questions by the court, declared that they had no bias nor prejudice against the defendant most emphatically and unqualifiedly; that they could and would give him a fair and impartial trial, and that they would depend entirely upon the law and the evidence in the case in making up their verdict; and where the State was a plaintiff, and the defendant a negro, they could be impartial and above bias.

That the court, feeling that the questions of counsel were not fully comprehended by the jurors, propounded to the jurors the questions in this form, to-wit: “Would you give a colored man, charged with a particular offence, the same impartial and legal trial that you would give a white man tried for the same offence?” Their invariable answer was that they could and would do so. That it was proper to state that while counsel examined all of the jurors as to their feelings towards a colored man and their ability to give such a man a fair trial, objection for that cause was only urged against the first two jurors sworn of those mentioned in the bill of exceptions, viz: Lewis and Griggs; the others were peremptorily challenged without first urging their answers on that point as an objection. That, as to the particular juror mentioned in the bill, he stated, in answer ■ to questions by the court, that he entertained neither bias nor prejudice against the defendant; that, if taken as a juror, he would give him a fair and impartial trial, and that he would depend entirely and wholly upon the law and the evidence adduced upon the trial for his verdict, and that, in this particular case, he would give the defendant a fair and impartial trial, and the court felt that the juror was competent.

In defendant’s bill of exception No. 4, it is stated that after he had exhausted his peremptory challenges by reason of the court’s having overruled some of his challenges for cause, as stated in the other bills, one Jack Pipes was called as a tales juror, from the spectators, and in answer to the questions propounded to him on voir dire, substantially said that he had talked with the coroner who made the post-mortem examination, and who held the inquest over the body of Sam Martin, the party whom the accused was charged with murdering, and with Dr. Kendall, the physician, who assisted the coroner, Dr. White, in making the autopsy, and, from talking with them, he had formed an opinion of the guilt or innocence of the accused, and that it would take strong evidence to remove this opinion. That the juror further declared that he entertained a different feeling towards the black man from that which he had for a white man; that, in a contest between a white man and a black man, he could not and would not give the black man the same just, legal, fair and impartial trial that he would give a white man.

That it was further shown on the trial, by the evidence of Dr. White and Dr. Kendall, the witnesses with whom the juror, Pipes, had talked and from whom he had gotten his opinion (both testified as experts), that the wounds inflicted on the child caused its death, and that the accused confessed to both that he had struck and kicked the child. That this necessarily showed that the opinion which the juror, Pipes, had formed, was that the accused was guilty of murder. That the said Pipes further stated that he knew Dr. White and Dr. Kendall to be truthful men, and that they would not tell anything that was not true. The accused challenged the juror for cause:

1st. Because he had formed an opinion from having talked with two of the principal witnesses whom he knew to be truthful men, and that it would take strong evidence to remove the opinion he had formed.

2nd. That the juror had said he entertained a different feeling for a black man; that he could not and would not give a black man the same just, fair, legal and impartial trial in a contest between a white man and a black man; that the court overruled the challenge, and that the accused, having exhausted his right of peremptory challenge, was forced to accept this juror.

The court gave as its reasons for overruling the challenge that the juror, Pipes, stated both to defendant’s counsel and to the court that he had no fixed opinion; that his mind was in such a condition that he could go on the jury and depend entirely on the law and the evidence in arriving at his verdict; that he had no bias nor prejudice for or against the accused, and that he could disregard the opinion that he had, and such opinion would have no effect nor influence in determining his verdict in the cause; that, more than this, the juror was a mau of high character, and the court believed he was answering truthfully. That the juror stated further that he had no bias or prejudice against the defendant; that in a contest between the State and a negro, he could and would give the negro a fair and impartial trial; that he would decide a case in which a negro was charged with a particular offence, as fairly as he would one in which a white man was charged with the same offence; and, further, that he could decide the case against this particular defendant fairly and impartially and without bias, and according to the law and the evidence. That these answers were made in answer to questions by the court.

Defendant filed a motion for new trial based on four grounds:

1st. Because his attorney had not had sufficient time in which to prepare his defence, there being very important expert evidence. That his counsel could not possibly prepare himself on this branch of the case in the short time allotted to him as a lawyer, he not being familiar with medical jurisprudence, and because he was overtaxed with other business.

2nd. Because of the overruling of the challenge for cause, especially that to the juror, Pipes. In this connection, it was averred that Pipes had declared in his answers 'on voir dire that he knew that the doctors with whom he had spoken (Doctors White and Kendall), were truthful men, and that their evidence, on the trial, would be just as their statements to him were. That the doctors had, on the trial, said that the wounds killed the child, and that the accused admitted to them that he did strike and kick the child; that this juror then, necessarily, went into the jury box under the belief that the accused was guilty.

3rd. Because the State had failed to make out its ease. (Under this heading accused recited and discussed and criticized, adversely, certain portions of the State’s evidence).

4th. Because the confession of the defendant was only that he struck and slightly kicked the child to make it rock the cradle; that they were very light blows and caused no injury. The judge, in refusing the motion for a new trial, stated that the court would not have been justified in delaying the trial for counsel for defendant to have studied or posted himself in medical science. That defendant had summoned two physicians to testify in his behalf as experts, and these physicians were in every respect equals of the other two summoned. He re-stated what he had before stated in reference to the juror, Pipes, and what his answers were on his examination on voir dire. Referring to the evidence in the case, he said there was other evidence adduced than that set forth in the third and fourth reasons urged for granting a new trial, and evidence sufficient, in his opinion, to justify the verdict.

Opinion.

Objection to the action of the District Court in overruling the motion for a continuance should be preserved by an exception taken at the time of its occurrence, and not reserved to be set up in application for a new trial and then submitted to the Supreme Court, through a bill of exceptions, as to the refusal of the new trial as if made prior to the trial. The merits of an application for a new trial, based upon the fact of the absence at the trial of witnesses for the defence, or of the accused having to go to trial under disadvantageous conditions, for want of time to prepare the defense, if considered on appeal at all, will be considered from the standpoint of the whole situation as developed by the trial. The motion must be dealt with as an overruled motion for a new trial, and not as an overruled motion for a continuance. State vs. Wright, 45 Ann. 57; State vs. Hobgood, 45 Ann. 855; State vs. Barfield, 49 Ann. 1695.

We do not think that the acceptance by the court of the jurors challenged by the accused for cause, because of their acknowledgment “that acting as a juror in a case in which there was a contest between a white man and a colored man, they could not and would not give the black man the same legal, just, fair and impartial trial they would the white man, that they would- be biased in favor of the white man,” furnishes any good ground for reversal in a criminal ease where the State is plaintiff and the defendant is a colored man charged with the murder of a colored boy, and the same jurors have declared that in a case where the parties were all black, and no white person was involved, interested', or concerned therein, they would give a black man as fair a trial as they would a white man; that in a case where the State was plaintiff and the defendant a negro, they would be impartial and above bias, and have further declared that they had no prejudice or bias against the defendant in the particular case then about to be tried. •

Under the statements made and the conclusion reached by the district judge in respect to the juror, Pipes, the members of the court (the writer of this dissenting,) are of the opinion that he was properly, accepted as a juror.

For the reasons assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.


author: Blanchard, J.

text:
    No. 13,555.
    Alva Simpson vs. F. F. Robinson.
    Syllabus.
    1. Utterances against a person while in a state of great excitement by one who thinks he has been wronged by that person, are not in law justifiable, but the circumstances under which they were made may be considered in fixing damages.
    2. But this rule of law is liable to abuse and in this instance was carried much too far by the jury. The amount of their verdict ($25.00) is held entirely inadeguate — to be a trifling with justice.
    3. When plaintiff appealed to the courts against slander and abuse, his case being made out, he was entitled to substantial redress.
    APPEAL from the First Judicial District, Parish of Caddo— Land, J.

      HoTbert & Barret for Plaintiff, Appellant.

      Wise & Herndon and Henry J. Shepard for Defendants, Appellees.
   The opinion of the court was delivered .by

Blanchard, J.

This is an action for slander and defamation of' character. Damages are laid in the sum of five thousand dollars.

The grounds of the action are that defendant, in a public place and1 in a public manner, in the presence and hearing of ten or twelve persons, applied to the plaintiff opprobrious epithets, using this1 language: — • , 1

“I will mash your d — d head; you G — d d — d cowardly son of a b — h and d — d thief.”

Malice is charged, and humiliation, mortification and injury are averred.

Defendant, in his answer, does not deny the use of harsh and abusive terms applied to the plaintiff, but sets up as justification, or at least as mitigating circumstances, that he considered himself a partner with plaintiff in the business of conducting a steam laundry, the place of location of which wias the scene of the trouble between them, and being a partner he had the right of access to the premises; that he was constantly in the habit of going there and on the day when the language was used, which is made the basis of this action, had gone into the laundry, when he was ordered out by plaintiff. Whereupon he lost his temper and applied to him epithets of the character complained of.

He denies that plaintiff was injured in his feelings or reputation, or that ho was humiliated.

The case was tried by jury and a verdict found for plaintiff, but only the sum of twenty-five dollars was awarded as damages.

From the inadequacy of this amount, plaintiff appeals.

The evidence establishes fully that the language charged in the petition was applied to plaintiff by the defendant. It was of a nature certainly to humiliate, degrade and injure plaintiff in his reputation. It was slanderous and actionable in character.

With regard to the plea of justification, even if defendant were 'a partner in the business and had been ordered off the premises by his co-partner, this did not warrant his resort to the abuse he heaped upon plaintiff.

But defendant was not a partner. In a civil suit between them where partnership vel non was an issue, the judgment of the court went against the defendant.

Defendant may have, at the time, believed himself a partner and that he had the right to be on the premises.

Naturally, therefore, he became greatly irritated when ordered off, and under the impulse of anger denounced plaintiff.

Utterances against a person while in a state of great excitement by one who thinks he has been wronged by that person, are not in law justifiable, but the circumstances under which they are made may be considered in fixing damages. Simons vs. Lewis, 51 La. Ann. 327; Caspar vs. Prosdame, 46 La. Ann. 36; Taylor vs. Ellington, 46 La. Ann. 375.

But this rule of law seems to have been carried much too far by the jury. The amount of .their verdict is entirely inadequate. It is trifling with justice.

The plaintiff enjoyed a good standing in the community where he lived. He was shown to be honest and industrious and bore a good name. He had established a character for commercial integrity and his credit was good.

When he appealed to the courts for redress against injuries, his ease being made out, he was entitled to substantial recognition. It was a case of “asking for bread” and being “given a stone.”

Every man has a right to be protected from defamation as much as from assault and bodily harm. His reputation is his property and more valuable than property.

To maintain one’s good name unimpaired is the anxious concern of all who possess good names.

Plaintiff when denounced and vilified did not take into his own hands the redress of his grievance. He appealed to the courts. This is what tho law counsels.

The courts shall be open and every person for injury done him shall have adequate remedy. Such is the mandate of the organic law. It means substantial redress — not the mere form of it.

Making due allowances for the circumstances pleaded by defendant in mitigation, we yet think the judgment in this case should be increased to five hundred dollars.

Accordingly, it is ordered, adjudged and decreed that plaintiff do have and recover 'of the defendant the sum of five hundred dollars with legal interest from the date of the judgment appealed from, to-wit:— the 14th of March, 1900, together with costs of both courts.

Rehearing refused.