author: Watkins, J.

text:
    No. 11,493.
    Joseph Fredericks vs. Illinois Central Railroad Company.
    1. Tile possessor of lands or tenements is not at liberty to plant in them dmigerous instruments, which may seriously injure trespassers, but ho is under no duty to keep his premises in a safe condition for other persons than those whom he invites — and, consequently, he is not liable to trespassers for injuries they may receive from defects not amounting to traps in such premises.
    2. If a person allows a dangerous place to exist on premises occupied by Mm, he will be responsible for injury caused thereby to any other person entering the premises by invitation or procurement, express or implied. The question of importance, then, is whether the place was dangerous per se; and was its situation such as to operate an invitation to trespassers ?
    APPEAL from the Civil District Court, Parish of Orleans. Theard, J.

      Fenner, Senderson & Fenner and W. B. Spencer Attorneys for Plaintiff and Appellee:
    In the exercise of a franchise to lay tracks upon a public street or highway, a railroad company owes to the inhabitants thereon the duty to lay them in such a manner as to interfere as little as possible with their equal right to the enjoyment of the street or highway, and so as to make the use of the highway as little more dangerous or inconvenient as possible.
    Whoever does anything in or immediately adjacent to the public street calculated to attract children of the vicinity into danger which they can not appreciate, owes the duty of protecting them by suitably guarding the source of danger.

      In a suit for damages for the negligent construction of a track across a street of a city, evidence that the track was constructed in accordance with plans and specifications furnished by the Oity Engineer is irrelevant.
    The care and caution required of a child is according to his or her maturity or capacity, to be determined in each case by the circumstances of the case. *
    Under the circumstances of this case the verdict was not excessive.

      Farrar, Jonas & Kruttsehnitt Attorneys for Rosetta Gravel Company, Defendant and Appellant:
    Defendant had a right to show that the structure in question was built in accordance with the plan approved by the City Council and the City Surveyor.
    The structure complained of was not unlawful, and was not dangerous per se.

    The structure complained of was in a place where no foot passenger had a right to cross the gutter, and the defendant was under no obligation to make a crossing for foot passengers where the law contemplated that there should be none.
    On the facts shown by the plan and photographs, the structure was not an obstruction to the highway and was not dangerous.
    The burden of proof was on the plaintiff to show that his child was not guilty of any negligence leading to her injury.
    A child Y years and Y months old is, by law, presumed to be able to take care of itself, in so far as its ability to walk across a hewn beam twelve inches wide over a ditch four feet wide is concerned.
    The evidence shows that the child in this case could not have been injured except by its own gross carelessness and negligence.

      Fenner, Henderson & Fenner and W. B. Spencer on Application for a Rehearing:
    In the latter portion of its opinion it would seem that the court deemed this a case for the application of the principles of law governing the right of a man to construct dangerous instrument» on his own premises, and his obligations to trespassers for injuries which they may receive from such dangerous instruments. The case .of O’Connor vs. R. R. Co., 44 An. 339, is cited as establishing that “the possessor of lands or tenements is not at liberty to plant in them dangerous instruments which may seriously injure trespassers; but he is under no duty to keep his premises in a safe condition for others than those whom he invites; and, therefore, he is not liable to trespassers for injuries they may receive from defects not amounting to traps in such premises.” Now, we respectfully submit that this case, and this proposition of law, can have no possible bearing upon the instant case. Surely, Louisiana avenue does not belong to the defendant corporation; the avenue can not be said to be the defendant’s private premises. The plaintiff’s child was surely not a trespasser. The defendant’s obligations in this case can not certainly be fairly measured by those of a man to a trespasser upon his own private premises.
    With due respect we submit that right here is disclosed the fundamental error of the court’s opinion — the failure to recognize the extent of the public’s right as respects a highway, and the corresponding obligation of the defendant corporation to the public, and especially to the families of the vicinity. The principle for which we contend is tersely stated in the ease of the City of Indianapolis vs. Emmelman, 108 Ind. 530: “Whoever does anything in or immediately adjacent to the public street, calculated to attract children of the vicinity into a danger which they can not appreciate, owes the duty of protecting them by suitably guarding the source of danger.” It seems to us plain that any prudent man might have foreseen that the children of the neighborhood would use this culvert as a crossing. It seems to us equally plain that it ought to have been manifest that this use would result, as it did, in serious personal injury, and such being the case the defendant ought to have covered it.
   The opinion of the court was delivered' by

Watkins, J.

This is an action in damages, and the defendant, the Rosetta Gravel, Paving and Improvement Company, is the sole appellant from the verdict of the jury and the judgment of the court a qua thereon based, for the sum of fifteen hundred dollars — the Illinois Central Railroad Company and the New Orleans Belt Railroad Company having been discharged from liability.

This suit is brought by the plaintiff for the use of his minor child, who suffered serious injuries, as the result of a fall through an open culvert, part of a switch track, connecting the yards of the defendant with the main belt road track on Louisiana avenue, the averment of the petition being that, in the construction of this switch track, the defendant dug a deep trench, or excavation, on the south side of said avenue, in order to obtain earth to make an embankment on which to lay its track, and. same was permitted to remain open, notwithstanding the duty was imposed on the company to restore the street to its original condition.

The further averment is made that, in the laying said switch track from the main line to the company’s private yards in the vicinity, it became necessary to lay it across the said trench or ditch, which is several feet deep and several feet in width, and that the place where it crosses this ditch is near the place where the crossing for pedestrians is constructed. That the only crossings over that ditch are such narrow plank walks as have been placed over it by the people living in the neighborhood for their own convenience. That this switch track over the ditch is laid on an open culvert consisting of cross-ties of about eight inches in diameter, laid about two feet apart and at right angles with the avenue, the culvert being about eight feet in length and on a level with the street.

That the spaces between the cross-ties are not covered or closed, and the culvert is in no way guarded or protected so as to prevent children or other persons from falling into same, as they are liable to do in crossing from one side of the avenue to the other.

That said open culvert is a dangerous trap to wayfarers passing that way.

It is alleged that on or about the 16th of September, 1892, at about 4 o’clock P. m., plaintiff’s daughter, a child of seven years and seven months, left his house on the north side of Louisiana avenue, to go across the street to the home of one of her playmates on the south side of the avenue, as was her custom to do; that taking the most direct route she went diagonally across the street, and on reaching the first place where she could cross the ditch, she attempted to cross over the trestle, fell, and striking against the sharp edge of one of the cross-ties received serious injury.

Grounded on this statement of fact, the charge is made by the plaintiff that, in the construction and maintenance of an open culvert, over a deep ditch, on a street in a populous part of a city, in close proximity to the houses of the citizens, and in a place frequented by children of all ages, and used by them as a play-ground, and lying in their customary path across the street, the defendant was guilty of gross negligence, and a wanton disregard of the equal rights of every inhabitant therein to the undisturbed enjoyment of the street.

The only question of fact that the defendant controverts is that with reference to the digging of the trench and leaving it open, the fact being that the ditch had been dug by the city and had been in use by the city as a drain some time prior to the building of the switch track, and thus necessitated the defendant to construct the trestle over it.

This is not denied, but admitted by the plaintiff. Practically all of the other allegations of the petition are undenied.

The question at the threshold is whether this statement makes out a case of negligence on the part of the defendant.

The counsel for the defendant puts the question thus: “ The only point of alleged negligence against the defendant is that the spaces between these broad cross-ties ought to have been filled in so as to make a passage-way over the gutter where none was intended by law, and where people, as a rule, had no business or right to cross.

“ There are street crossings on every street at the crossings. The gutter in the middle of the street is not a normal place to cross, and it is not expected that anybody will cross there.”

Again: ‘‘There was no such passage-way over this gutter at this point before this structure was erected. It was not intended that there ever should be any passage-way at this point. Our structure was not intended as a passage-way for foot passengers, and they had no right to cross the street at this point when it was not contemplated that foot passengers should cross.

“We were, therefore, under no legal obligation to provide a safe passage-way over a place where the law provided none.

* * * * * * * * *

“ If the defendant in this case is guilty of any negligence, then every person who lays a twelve-inch plaDk across a gutter in the city of New Orleans for his own convenience, with the consent of the city, is liable for negligence to any person who undertakes to walk that twelve-inch plank, and missing his footing falls in.”

The culvert in question was a ditch or drain which had been constructed by the city, and had been in use by the city long prior to the time of the construction of the trestle or culvert in question. That ditch or drain is just such as exist in all parts of the city for like purposes. The switch track turned out from Louisiana avenue in a curve, crossing this ditch in the direction of the defendant’s private grounds. The place of the intersection of this track with the gutter was neither in the street nor in the crossing or foot path on the side of the street. The track was between the two, and impeded the use of neither in any manner. To all appearances the street was left just as free for the use of vehicles, and the sidewalk and crossing of the gutter just as free for the use of pedestrians, as before the defendant’s culvert was constructed over this gutter. Oonsequently there is no causal connection between the two — the structure complained of not being in the street or sidewalk adjacent to the street.

On the contrary, the evidence shows, and the fact is, that there was a good crossing over the gutter, within a few feet of this switch - track crossing, and it was the legal and commonly used foot path for all pedestrians, and the switch track did not lie in the customary path of pedestrians going across Louisiana avenue. Therefore this structure could not have been built “in wanton disregard of the equal rights of every inhabitant thereon, to the enjoyment of the street,” as plaintiff alleges it was.

The case cited by the plaintiff from Hawkins’ Pleas of the Grown (404) was that of digging a ditch in a highway, making a hedge over it, or by laying logs of timber in it.

The case cited from Wood on Nuisances (Sec. 258, 266) 19 L. J. O. P. 195, is that of an unauthorized excavation in or near a highway.

The ease cited from 1 Rorer on Railroads (546) 29 Conn. 434, is that of leaving impassable obstructions, or an open culvert in a public road.

The case cited from 5 Dillon (96) is that of a railroad company making an excavation in a street and leaving it unguarded, whereby children may be injured.

The case from Pierce on Railroads (248) 8 Allen 560, is that of a railroad company causing defects or leaving obstructions in a highway.

The case stated in Wasmer vs. Railroad Company, 80 New York, 212, is one of the company failing to place planking or filling on the side of the rails at a crossing. 65 N. Y. 561.

The case of City of Indianapolis vs. Emmelman, 108 Ind. 530, was that of the city making an excavation in a street, at a place where it knew children living in the vicinity were accustomed to play, and where they had a right to be at all proper times without being ■intruders on the premises.

In our opinion neither of these cases meet the requirements of this case, because of the fact that the structure of the defendant was not built in the street or sidewalk, and'was constructed in a good, substantial manner. There was nothing in the structure within itself to tempt children to it, or to induce them to use it. In putting a crossing over the gutter for its use and convenience, the defendant did no more than the citizens residing in the community did for their convenience and utility.

There are, doubtless, similar gutters in all parts of the city; and if every one who puts a bridge or walk over one of them for use or convenience becomes liable for the happening of any accident or injury that may occur to any chance pedestrian who may use it, at any time, a strange condition of things would in aU likelihood take place.

But the defendant did not act capriciously. It placed this culvert where it did from the sheer necessity of its situation, and in constructing the*switeh track as it did, it apparently did the best thing for the community in not putting same in either the street or sidewalk, and thus avoiding trespassing on the rights of any one, or disregarding the equal rights of every inhabitant of the city to the undisturbed enjoyment of the street and banquette as well as of the crossing.

In thus constructing this switch track crossing, the defendant did not put it !< in a place frequented by children of all ages, and used by themas a play-ground," because their play-ground was on a square of ground near by. This switch track was not built “in their (the children’s) customary path across the street," because the evidence shows and the proof is that the customary path of children, as well as of adults, was over the crossing near by — a covered and safe crossing of the gutter established by the city. Indeed, the proof does not show that the children of the neighborhood who were accustomed to assemble on the adjacent square for purposes of play had ever been aeustomed to use this switch track crossing at all. On the contrary, we gather from the evidence that this crossing was rarely used in this way and the incident under consideration was exceptional.

Evidently this is not such a case as that plaintiff’s counsel cite from Judson vs. Railroad Company, 29 Conn. 434, as will appear from the following extract from his brief, viz.:

“ A railroad company constructed its road across the main street of a village, about a foot and a half above the level of the street. The street was twelve rods wide, with two traveled paths on each side of the street, and an open common between. The company was required by its charter to restore any highway intersected, so as not to impair its usefulness. The company put the two traveled tracks in proper condition for passing with vehicles, but made no other crossing. About midway between the two paths they constructed a culvert under the timbers of the track to let the water accumulating from rains pass through, which was left uncovered. A person walking across the street upon the railroad track, at a time when the culvert was filled with snow and could not be seen, fell into it and was injured.

Held — That the railroad company was liable for the injury.” In their opinion the court ask: “ Why should not the defendants place the whole of the highway, as well as a part of it, in such a condition that it could be safely and conveniently used by the people? Why leave to it anywhere uncovered ditches and culverts, so far rendering it unsafe for foot people to pass along or across it?”

As will appear from the facts recited supra this is a very different case.

The case of McCloughey vs. Finney, 37 An. 27, cited in plaintiff’s brief, is one of an accident happening to a small boy passing along the banquette in front of a feed store on Poydras street, in the city óf New Orleans, from a sack of corn which fell from the top of a pile of corn that had been placed on the banquette by the defendant.

The case of Railroad Company vs. Stout, 17 Wall. 657, is one involving the condition and management of its turn-table, constituting it a dangerous machine.

In O’Connor vs. Railroad Company, 44 An. 339, we held, upon the examination and citation of a great many decisions and opinions of text writers, that the possessor of lands or tenements is not at liberty to plant in them dangerous instruments, which may seriously injure trespassers; but he is under no duty to keep his premises in a safe condition for others than those whom he invites; and therefore he is not liable to trespassers for injuries they may receive from detects not amounting to traps in such premises.

That was the case of a little child who ha.d resorted, in company with other children, to the yards and premises of the defendant for purposes of play, and was injured by a coal dump of peculiar construction which was left standing on its track.

After quoting with approval from a decision of the Massachusetts court — Coombs vs. New Bedford Co., 102 Mass. 572 — to the effect that “if a person allows a dangerous place to exist in premises occupied by him, he will be responsible for injury caused thereby to any other person entering the premises by his invitation or procurement, express or implied,” we made this inquiry in the O’Connor ease: “ With reference to children of tender years, it may be conceded that they proceeded with due care, but can it be said that the condition of defendant’s fence operated as an ‘invitation or procurement, express or implied?’ ”

In that case a verdict in favor of plaintiff was reversed.

The instant case is easily distinguished from the case of Westerfield vs. Levis, 48 An. 67, as in that case the negligence of the defendants was fully established — they having left a heavy iron roller, with two mules attached thereto, unattended by a driver, on an open, public street; the mules not fastened and the wheels of the roller unlocked.

The petition in this case alleges that the switch track of the defendant was constructed “underand by virtue of Ordinances 4884 and 5822, C. S.,” and consequently same was authorized. And the petition further recites that, in constructing and maintaining an open culvert in a deep ditch in a street in a populous part of the city — one dug or excavated by the company in order to obtain earth to make an embankment — the company was guilty of negligence, but this state of facts is not borne out by the record, as has been already stated.

It is our opinion that the negligence of the company is not made out,- and that the judgment should be reversed.

It is therefore ordered and decreed that the verdict of the jury and the judgment thereon based be annulled and set aside; and it is further ordered that there be judgment in favor of the defendant, rejecting the plaintiff’s demands in both courts.

Rehearing refused.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 11,427.
    Mrs. Caroline Leman vs. The Manhattan Life Insurance Company.
    In an action on a life policy, proofs of loss, stating suicide as the cause of dea’tli, are admissible, but not conclusive against the assured. Bliss on Life Insurance, Sec. 265; 142 U. S. 699; 22 Wallace, 86; 26 An. 404.
    In such action, when the defence is self-destruction, the burden of proof is on the insurer to establish the suicide, and when circumstantial evidence only is relied on, the defence fails, unless the circumstances exclude with reasonable certainty any hypothesis of death by accident or by the act of another. Bliss, Secs. 366, 367; 47 N. Y. 52; 26 An. 404.
    No such exclusion of any hypothesis save suicide can be predicated on the mere fact of the dead body of the person insured found with a mortal wound from a gunshot, the discharged pistol wedged on the thumb, “ as if thrust in forcibly,” and there being other circumstances inconsistent with self-destruction.
    APPEAL from the Oivil District Court, Parish of Orleans. Ellis, J.

      A. H. Leonard and Morris Marks Attorneys for Plaintiff and Appellant:
    Where the dead body of an insured is found under such circumstances and with such injuries, that death may have resulted from negligence, accident, homicide or suicide, the presumption is against suicide as contrary to the general conduct of mankind and a gross moral turpitude. May on Insurance, p. 459, Sec. 325; 47 N. Y. 52; Guardian Ins. Co. vs. Hogan, 50 111. 35; 127 U. S. 667.
    The burden of proof is on an insurance company when it alleges that deceased committed suicide, and the evidence must exclude all other reasonable hypotheses. Circumstantial evidence which does not exclude all other reasonable hypotheses proves nothing. 26 An. 405, Philipps vs. La. Eq. Co.; 142 U. S. 691, Home Benefit Ass’n vs. Sai'gent; 85 N. Y. 317, Penfold vs. Universal Life Insurance Co ; 20 E. R. 662, Edwards vs. Travelers’ Insnranee Co.; 47 N. Y. 52, Mallory vs. Insurance Co.; 30 Hun. N. Y. 535, Germain vs. Brooklyn Life Ins. Co.; 9 S. W. R. 812, Mutual Life Ins. Co. vs. Davies; 16 S. W. R. 723, Accident Ins. Co. vs. Bennett; Am. Digest 1890, p. 2046, No. 497; Am. Digest 1891, p. 2399, No. 451; 29 E. R. 198, Keels vs. Mutual Res. Fund Life Ass’n; 47 F. R. 272, Ingersoll vs. K. G. C.; 127 U. S. 667, Travelers’ Ins. Co. vs. McOonkey.
    Inquests are not admissible as evidence of causes of death. May on Insurance, p. 705, Note 4; Goldschmidt vs. Mutual Life Ins. Co., 7 N. E. R., 407; U. S. Life Ins. Co. vs. Kielgast, 26 111. App. 567; Am. Digest 1889, p. 2033, No. 406; Neblock Mutual Benefit Societies, p. 210, Sec. 175; Mut. Life Ins. Co. vs. Schmidt, Ohio, 8 Am. Law R. 629; Cook vs. Stand. Life and Acc. Ins. Oo.,47N. W. R. 568.
    Plaintiff is not estopped by the statements made in “proofs of claim.” She may show, and has shown, that such statements were erro - neous. Home Benefit Ass’n vs. Sargent, 142 U. S. 698-9; 35 F. R. 35, Am. and Eng. Ency. Law, Vol. 13, p. 657; Note4, “Statement of Physician; ” 94 U. S. 495; 26 Til. App. 567; 47 F. R. 272, Am. Digest 1889, p. 2033, No. 406.

      Dinhelspiel & Hart Attorneys for Defendant and Appellee:
    Where, under a policy of insurance, which is a conditional contract of indemnity, proofs of loss must set up specifically and categorically the date, circumstances, and cause of death, etc., and proofs of loss are made in conformity with said contract, no suit will be allowed to be instituted, much less legally prosecuted, by attempting to show facts at the time the case is tried, and for the first time, which are substantially at variance with the proofs of loss furnished to the insurer. Oook on Life Insurance and authorities there cited; Mrs. Campbell vs. Charter Oak Fire and Marine Insurance Company, 10 Allen, pp. 112, 113 et seq.

    A -policy of insurance with a clause in the contract to the effect that if the assured die by his own hand, sane or insane, and in case of death by suicide the company agrees to pay the net reserve of the amount due on said policy is reasonable and legal; the courts will maintain said contracts. Bigelow vs. Berkshire Life Ins. Co., 93 U. S. 284; Pierce vs. Travelers Life Ins. Co., 34 Wis. 389; Gogorzo vs. Knicker ocker Life Ins. Co., 65 N. Y. 237; Chapman vs. Republic ILife Ins. Co., 6 Bissell, 238; Mrs. Anna Bois vs. Mass. Life Ins. Co., Court of Appeals for the Parish of Orleans, Opinion No. 284.
   The opinion of the court was delivered by ,

Miller, J.

The plaintiff sues on a policy of insurance issued by the defendant on the life of her husband. The defence is, the husband committed suicide, and the policy excludes liability in cases of self-destruction, sane or insane. The jury found for the defendant and plaintiff appeals from the judgment on the verdict.

The proofs of loss furnished the company, i. e., statements of the undertaker, physician, agent and friend, as well as the coroner’s inquest, stated suicide as the cause of death. The defendant offering these proofs insisted plaintiff was bound by them, that is, defendant objected to any testimony contradicting these proofs. The court admitted the testimony. It is to be observed at the outset, the cause of death in this case is purely a matter of opinion. There is no testimony whatever on the subject, except the fact the insured was found dead from a mortal gunshot wound, with a pistol wedged in the bend of his thumb, and the body so disposed, as will be discussed in another place, as to suggest inferences entirely consistent with accidental death or at least not of a character to exclude every sup-posit on but suicide. If opinions of witnesses as to the cause of death are to be accepted as conclusive, contained in statements which the company exacts under their policy, it is a harsh application of the supposed rule as to the effect of such statements. In our opinion, neither reason nor authority support the contention of the company in this respect. We think the proofs of death were admissible to be weighed by the jury with other testimony administered. Such was the ruling of the lower court and we sustain it. See Home Association vs. Sargent, 142 U. S. 699; Company vs. Newton, 22 Wall, p. 36; 26 An. 404. The authorities, perhaps, do not go the full length here affirmed, but they tend to give the proofs of death admissibility, but certainly do not assert their conclusiveness. The better opinion is the insurer is not estopped by the proof. Bliss Life Insurance, Sec. 265.

The discussion on the point that suicide should be regarded as proceeding from insanity, and not bar recovery, even though the policy stipulated no recovery in cases of self-destruction, has been ended, as life policies now usually, we believe, contain what is known as the “sane or insane” clause, i. e., no recovery in cases of suicide, sane or insane. That clause is in this policy.

But still, notwithstanding the sane or insane clause, to defeat a recovery on this policy it must appear the deceased took his life. In this case the testimony, mainly the mute witness of the dead body, is all on which the company relies, besides the statement in the proof of loss from those who were possessed of no knowledg', save that afforded by the body of the deceased. Th re is in the record a mass of what is termed expert testimony. It of course consists of theories as to the cause of the death. The testimony is of those who testify from their experience in the use of firearms and from physicians who draw their inferences from the gunshot wound, the position of the body and other circumstances. The admissibility of such testimony is at best doubtful. Bliss on Life Insurance, Secs. 378, 379. The court at lastmust determine the basis and potency of all such theories arising from all the facts. These facts are: The body found with the wound from a gunshot causing death, the discharged pistol wedged, or as if it had been forced on the thumb of the right hand, the body i eclining on the sofa as of one sleeping, the left arm rested on the breast, the right leg crossed on the left, the head in the usual position of one in repose, and there being no evidence of any convulsive movement, if we correctly translate the technical word “jactitation,” used by the physicians who testify. The pistol was “ tightly wedged ” to the thumb so as to require force to remove it. The question is whether these appearances point to suicide, to the exclusion of any other cause? Why not, with equal potency, to accidental death or death by the hand of another?

Dr. Gray, who was one of those who gave a statement at first attributing the death to suicide, seems to have changed his opinion. He testifies:

“ I was first led to believe it was suicide from the fact that the body was dead and the pistol was on his hand, but the fact as stated in a previous answer (viz.: that thumb was thrust through guard of pistol and tightly wedged as if it had been thrust in forcibly) the force necessary to draw the thumb from the guard, the absence of any evidence of jactitation, or of having been any, as shown by the precise manner in which the body laid, with arms folded, the legs crossed at ankles as in a person sleeping, have raised doubts in my mind as to how his death did occur, whether by his own hand, or by that of another.” The testimony of othei’3 professing to be experts as to the handling of firearms and the causes of this death reaches a conclusion different from that of Dr. Gray. We think, giving all due effect to the expert testimony, it is at least fair to say it does not establish the suicide.

In any consideration of the cause of the death weight is due to the condition of the deceased in life, i. e., his domestic relations, his means, his health and the state of his mind. It is human experience that the motive prompting . self-destruction is to be sought, and usually found, in domestic unhappine s, ill health, financial troubles or insanity. In this case no such causes are exhibited by the record. The deceased was fortunate in business, had a wife and children to whom he was attached, and with whom he was happy. He parted with them on the day of his death in the best of spirits, and the shock of his death came a few hoars later. No physical malady or mental disturbance or financial trouble existed to furnish any cause for taking his life.

In this condition of the record there is no adequate basis to refer the death.to the intentional act of the deceased. If there are indications that point to suicide, there are other features noi consistent with that theory. When, as in this case, circumstantial ev.dence alone is relied on to establish suicide, it is at least within bounds to say the evidence must be of a character to exclude with reasonable certainty any other cause of death. If the evidence falls short of this exaction the suicide is not proved. The fact of death remains, and that casts the liability on the company insuring against death; with the excepted case of self-destruction which the company fails to establish. This appreciation of the evidence and of the burden of proof constrains us to set aside the verdict and judgment of the lower court in favor of the defendant. Bliss on Life Insurance, Secs. 366, 367; 47 N. Y. 52; 26 An. 404.

It is therefore ordered, adjudged and decreed that the judgment oi the lower cour. be avoided and reversed and that plaintiff do have and recover from defendant five thousand dollars with legal interest, and that appellees pay costs.

Rehearing refused.


text:
    No. 11,543.
    The State of Louisiana vs. Randall Leftwich alias Randall Butler.
    If the motion to quash an indictment for alleged defects in drawing the Jury, may-in certain cases, be made after the first day of the term, such motion will be deemed too late made several days after the indictment is found and ten days after the beginning of the term, especially when the accused is in custody awaiting indictment when the term begins, and all the facts on which the motion is based are then known to his counsel. Act No. 44 of 1877, Secs. 10,11; 5 An. 342; 31 An. 94, 869; 37 An. 216.
    The statement of the judge in the bill of exceptions, that he ordered of his own motion the pica of not guilty to be entered for the accused, will be deemed conclusive in this court, and the verdict will not be set aside and a new trial ordered because the judge ordered the minutes corrected so as to show the entering of the plea and refused to hear testimony contradicting his statement of the performance of an official act and the corrected minutes. 32 An. 1227; 34 An. 881; 39 An. 1105.
    Nor will the verdict be set aside and a new trial ordered because the lower court overruled questions to the jurors on their voir dire whether or not they would follow the instructions of the court in the contingency of circumstantial testimony, tbe question supposed might be presented, it appearing by the bill the court gave the jury an accurate charge as to nature and degree of circumstantial testimony required to convict.
    After trial and verdict in a criminal case — i. e., a murder, there must be conditions highly exceptional to authorize the appointment of experts to examine and report whether stains on the dress of the deceased produced before or referred to in the testimony given to the jury were blood stains, the report to be used on the now trial sought to bo obtained. No such conditions exist in this case, nor will the new trial be granted on the ground of newly discovered testimony which, if attainable, with due diligence could have been obtained on the trial.
    APPEAL from the Twentieth Judicial District Court, Parish of Assumption. Guión, J.

    M. Jl Cunningham, Attorney General, and Oscar D. Billon, District Attorney, for the State.

      Pugh, Marks & Pugh Attorneys for Defendant and Appellant.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from the sentence of death for murder. The record brings up ten bills of exception.

There was a motion to quash the indictment based on a challenge to the array of jurors for alleged irregularities in the drawing. It is claimed that one of three who acted as jury commissioner had vacated his office by accepting the position of deputy sheriff, that persons other than the commissioners suggested names and participated in the drawing, and that all the names of the jury drawn for the term were not in the box when the grand jury was selected by whom the indictment was found. Our examination has not impressed us with the force of these grounds, but it is enough in our view to dispose of the motion to quash, that the law requires that it should have been made earlier. The defendant was in custody on the charge of murder when and before the term of court begun; the counsel who made the motion had been employed on the preliminary examination and all the facts relied on to sustain the motion to quash were known to counsel before the indictment found on the 22d March, 1891; the term commencing on the 19th; the defendant arraigned on the 22d and the the motion to quash not filed until the 30th of the month. The requirement of the law, that motion to quash for supposed defects in drawing the juries, shall be made on the first day of the term, is to secure the prompt administration of justice and with that view to prevent the holding back of motions of this character preventing alleged irregularities easily corrected without serious delay or expense, if made at the beginning of the term. If the statute should be relaxed when the indictment is found after the term, as was the case here, although the accused was in custody and represented by counsel, cognizant of all the facts on which the motion to quash the venire was based, still the motion should not have been delayed until the 30th March, ten days after the term began and the day fixed for the trial. In any view we hold that to be too late. We,are fortified in this view too by the absence of any fraud practised on the accused or wrong that could arise from the alleged defect in drawing the jury. Act No. 44 of 1877, Secs. 10 and 11; 31 An. 369, 94; 5 An. 342.

Another bill, the second, is to the refusal of the court to permit the propounding to jurors on their voir dire the question as to-whether they would follow the instructions in the contingency of a charge as to circumstantial evidence. Hypothetical questions how the jury would or would not be influenced in certain supposed conditions of the testimony are calculated to mislead and confuse jurors, and to ask the juror whether he would respect the instructions of the court is certainly out of the usual course. In this case while the court declined to permit the question in the form counsel penned it, the charge as to the nature and force of circumstantial evidence was given with entire accuracy and great liberality to the defendant. Yfe think the question proposed was properly overruled.

Another bill (the fifth) denies the right of the State to close the argument when the defendant, as in this case, offered no testimony. There is nothing in this exception. 15 An. 557; 31 An. 91.

It was part of the case of the State to offer testimony that a dress found in a bureau removed from the house of the deceased belonged to her, and that there were blood stains on the dress. The defendant objected to the testimony of the physicians tending to show the blood stains. It is claimed that the search, soon after the crime was committed, developed no such dress, or at least fione that was stained; that the mother of the deceased produced the dress some time after the killing, and, exasperated as she was against the accused, the statement of the mother that she had found the stained dress in the bureau was not entitled to credit. All that is urged by the defence in this respect might well tend to depreciate the weight of the testimony as to the dress and the character of the stains, but the testimony was certainly admissible; and this disposes of the third and fourth exceptions, if, indeed, the last, referring to the introduction of the dress, is pressed.

The sixth and eighth bills may be considered together. One, made after trial and verdict, is to the refusal of the judge to appoint ■experts to examine and report as to the stains on the dress, whether ■or not caused by blood. The application was supported by affidavits ■of a number of witnesses to the effect, generally, that in the search for evidence of the crime at the house of the deceased soon after.the killing no such dress, or at least none that was stained, was found, and in other respects the affidavits tended to discredit the dress theory and the testimony of the mother of the deceased, a witness on the trial. The rule for the new trial assigned as some of the grounds that the search developing no such dress, the defence was surprised by the testimony in this respect, and that newly discovered evidence would show that when the body of the deceased was found the dress was not in her house, and would in other respects present the case in a more favorable light for the accused. We have weighed with care these bills and the able argument of defendant’s counsel in support of the applications. We think the proposition to give a new trial, or practically the same thing, to appoint the experts after the trial, is inadmissible. The time to appoint experts, if deemed necessary, was while the trial was in progress, and that was the time for offering the testimony suggested in the rule for new trial. The materiality of that testimony should, we think, have suggested itself when the State’s testimony on this branch of the ease was being given to the jury. The testimony claimed to be newly discovered, tended to repel that of the State as to the dress and the criminating stains. The witnesses suggested in the rule for new trial were at hand, some of them in court, had testified, but not in regard to dress or stains, because not asked, and as to those witnesses not present, the court would doubtless have compelled their attendance. Under these circumstances, we can not, on the ground of surprise or due diligence or any other ground, sanction the opening of the ease. The showing for the new trial is not, in our view, sufficient, and there is no ground, after trial and verdict, to appoint experts for obtaining and reporting information with a view to another trial. We think there is no merit in the sixth and eighth exceptions.

Prom an early period the law has provided that standing mute shall be no bar to the trial of the accused. In such case the court is directed to enter the plea of not guilty (Revised Statutes, Sec. 996). In this case the plea was made by counsel for the accused, but was entered of course under the direction of the court. It is not easy to appreciate that the plea entered necessarily under the eye and sanction of the court is vitiated because made through counsel. If the prisoner does not plead, the court is to order the plea to be entered. He does not plead in this case, and therefore the court in effect directs the plea to be entered. Utile per inutile non vitiatur would seem to apply to the circumstance that the counsel pleads, when if the counsel had not spoken at all the court would have caused the plea to be entered. Besides, in the argument on the rule for trial the bill recites the judge stated he had ordered the plea to be entered of his own motion, and he then, i. e. on this argument, directed the minutes amended so as to state the facts. The minutes were amended accordingly, and to this the defendant took a bill of exception, as well as to the refusal of the court to bear testimony that the minutes were correct as they stand, i. e. stating the plea by counsel of the accused. The right of the court to order an amendment of the minutes so as to conform to the facts and show this performance of an official duty we think is beyond question. 32 An. 1227; 39 An. 1105: 34 An. 881. If defendant had been permitted to offer the testimony suggested in the bill tending to show the judge had not directed the plea to be entered, this negative testimony would have encountered the corrected minutes and the direct and positive statement of the judge contained in the bill, that he did direct the entry of the plea, and that his recollection was clear and positive on the point, distinctly announced when the testimony on the point was proposed to be offered. We think the statement of the judge of a fact within his own knowledge pertaining to his official duty must be deemed conclusive and accepted as such by this court. In this view the proffered testimony was useless and properly excluded. This disposes of the seventh exception.

As to the ninth exception to the exclusion of testimony that a juror had been approached by the mother of the deceased and urged to find a verdict for the State, we concur with the judge that if offered to impeach his verdict it was inadmissible, and if for any other purpose it was irrelevant.

The tenth exception was to the overruling of the motion in arrest based on word “ prerent ” in the indictment instead of present. It is obvious this is a mere clerical error and did not vitiate the indictment. 38 An. 66; 35 An. 293.

Our consideration has embraced all the points in the numerous bills of exception, and the views expressed in this opinion we think embody all that need be said.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.


author: Miller, J. Miller, J.

text:
    No. 11,382.
    W. S. Reddick vs. R. M. White.
    On Motion to Dismiss.
    There is no provision in our law permuting- the filing o£ the record o£ appeal “informa pauperis.” The record must be stamped or the cause can not be heard. Constitution of 1879, Art. 145; Act No. 186 of 1889, See. 1, pars. 441,10, 22.
    On the Meeits.
    The administration by the husband of the paraphernal property of the wife is not displaced and the community deprived of the fruits' merely because the husband receives a salary from the partnership of which his wife is a member, formed for the cultivation of the plantation, a part of which is her paraphernal property; the husband having the management of the entire plantation for the partnership as well as for his wife Civil Code, Arts. 2883, 2885, 2386; 18 La. 431; 6 R. 41; 12 R. 524.
    An action by the husband for alleged advances to and debts paid for such partnership, brought against the partner of his wife, is subject to the rule that one partner can not sue his copartner for specific sums, but only for a settlement of the partnership and for the balance with interest thereon found due on settlement. Story on Partnership, Sees. 217,219, 221; 4 Rob. 445; 10 Martin, 483.
    An action to recover the amount of alleged debts paid and advanced for another, is an action for the settlement of a partnership and is prescribed by ten, not by one, three or five years. Civil Code, Arts. 3358, 3554; Act of 1888, No. 76; 12Rob. 148.
    PPEAL from the Civil District Court, Parish of Orleans. Bightor, J.

    On Motion to Dismiss.

      F. O. Zaeharie against the motion.
    The judgment allowing this proceeding in forma pauperis was rendered contradictorily with the defendant in the District Court, and he having neither appealed nor excepted thereto can not urge objections thereto by a motion to dismiss the appeal.
    The granting of an application 1 o proceed in forma pauperis lies with the District Judge. 38 An. 423.
    Applications to so proceed can be made and granted at any stage of the proceedings in the lower court. Eng. and Am. Ency. of Law, Vol. 8, p. 548; Ibid., Vol. 4, pp. 325, 319.
    The right is guaranteed under Magna Oharta XLVII and XLVI and under Louisiana Constitution, 1879, Art. 11.

      Ubi jus, ibi remedium, lex semper dabit remedium. Brown’s Legal Maxims, 8th Ed., p. 191; 2 Ld. Raymond, 953, are maxims of the civil law.
    Although the right to proceed in forma pauperis in common law must be given by express statute, yet in chancery it is afforded on principles of abstract equity. Eng. and Am. Ency., Vol. 8, pp. 544,. 545, and authorities in note.
    The courts of Louisiana are courts of equity as well as of law, and will give relief wherever a chancellor in equity can and will give. Hennen’s Digest, Vol. 1, pp. 479 and 480, tit. Equity; 7 An. 498; 11 An. 572; 15 An. 409, 506; 2 Howard (U. S.), 318; 2 Oranch, 191; 4 R. 83.

      Our statute in prohibiting the filing of unstamped documents is not any more prohibitory than the English law on the same subject, and [yet under that law, in admiralty and equity, unstamped documents are allowed. Pritchard’s Admiralty Dig., Vol. 1, 442, tit. Stamps, Secs. 229, 230, 231, 232, 378.
    On the Merits.
    Same Counsel for Plaintiff and Appellant:
    Prescription liberandi causa is to be construed strieti juris.

    The prescription under Art. 3358, R. C. 0., and the amendatory Act 78 of 1888, does not apply to the debts of one co-obligor paid by his joint obligor. 12 R. 149; 2 An. 636, 780; 10 An. 395; 19 An. 493; 24 An. 200; 28 An. 181; Bishop on Statutory Crimes, pp. 227 and 246; Bacon’s Rule; 8 Smith (Penn.), 448; Dwar. Stat., 2d Ed. 621; Smith’s Const. Stat. 172; 7 Carr and P. 444; 6 16. 369, 726, 446; 11 Ire. 477; 10 Vt. 587; 9 Carr and P. 486; 44 Mich. 617; 38 Iowa, 321; 84 N. Y. 565; 71 N. Y. 481; 29 Mich. 50; 1 East P. C. 187, 188; 18 Ala. 415; 2 Ev. D. 268; 7 B. and O. 596; 23 Law Times Rep. 156; 28 L. and Eq.; 5 Bing. N. C. 185.
    The prescriptions of one and five years do not apply to the same, but only the ten years prescription for personal actions. Same Louisiana authorities as above.
    A judgment, to have the authority of res adjudícala and the effect of estoppel, must be for the same cause of action, for the same thing, between the same persons, on the same quality. Bouvier’s Diet., verbo Bes judicata. “A judgment for or against two or more joint parties ordinarily determines nothing as to their respective rights and liabilities as against each other in their own subsequent controversy.” Black on Judgments, Vol. 2, Sec. 599; 73 Mo. 145; 39 Am. Rep. 489; 35 Ala. 312; 73 Am. Dec. 491; 34 Kan. 122; 8 Pac. Rep. 253; 28 N. J. Eq. 71; 18 Ohio St. 412; 26 Ind 378; Eng. and Am. Law Eney., Vol. 21, p. 152; 46 Hun. N. Y.; 1 Ga. 200; 44 Am. Dec. 638; 95 N. Y. 212; 37 Minn. 49..
    In sales of land which contain no stipulation for interest, the purchaser is liable for interest from the day he takes possession, especially if he receives rents and profits. Eng. and Am. Ency. of Law, Vol. 2, p. 395. All debts in Louisiana bear interest at the rate of five per cent, from the time they become due. R. S., Sec. 1183.
    “ Whenever money has been' received by a party which ex sequo et bono he ought to refund, interest follows as a matter of course.” 95 U. S. 644; O. O. 1932, 2984; 19 L. 431; 8 R. 13; 1 An. 265; 3 An. 338; 13 An. 353.
    The interest of the husband administering the paraphernal property of his wife, as head of the community, is that of a usufructuary. 10 R. 47; 6 An. 636; Duranton, Vol, 14, p. 106; Delvincourt and Proudhon, cited by Toullier, Vol. 12, p. 133; R. O. C. 540; Proudhon, Traité des Droits d’Usufruits, tom. I, Ed. 1836, p. 340, Sec. 279, p. 342; lb., tom. Ill, p. 574, Secs. 1767, 1768.
    And as such on paying debts of a co-obligor is subrogated to all the rights of the co-obligor’s creditor. Proudhon, Traité des Droit d’Usufruit, tom. IV, p. 89, Sec. 1407, Ed. 1836; Demolombe, Traité des Contrats, tom. IV, pp. 517, 518, 568; Mourlon. p. 454; Gauthier, 356; LarombiSre, tom. Ill, Art. 1251; No. 44, See. 570; 2 R. 424; 5 An. 500; 9 An. 247; R. O. O., Art. 2161, Sec. 3; 14 An. 663; Hennen’s Dig., Payment, II, Vol. 2, p. 1164; 15 An. 705.
    The husband, in the absence of proof to the contrary, is presumed to administer the paraphernal property of his wife. R. O. O., Art. 2385; 14 An. 282; 18 An. 105; 6 R. 41; 18 An. 189; 20 An. 208; 21 An. 345; 33 An. 160; Merlin, Répert. de la Jur., tom. 22, p. 275, par. 3.
    When accounts are complicated and need intricate calculations, the Supreme Court will remand the ease to have them adjusted and audited in the lower court. 5 An. 192; 31 An. 532; 34 An. 1218; 36 An. 351.
    The two spouses and the community constitute three separate entities, or Ures moraux, having each their separate, distinct relations to each other. 6 An. 636.
    A debt owed by one person to another does not become a partnership debt, by the creditor and debtor afterward forming a partnership, and the creditor may sue the debtor therefor before the settlement of the partnership. 2 An. 218; 6 An. 682.
    The cases cited in 4 R. 440; 10 M. 433, and Story on Partnership, are ■ eases of partnership debts paid by individual partners, and the doctrine therein does not apply here.

      In cases where the debt is an individual and not a partnership debt, the partner paying the debt of the other may recover before a settlement of the partnership. Eng. and Am. Ency. of Law, Vol. 17, pp. 1257, 1258, 1259 and cases there cited, particularly 6 Ala. 129; 4 Ala. 225; 38 111. 533; 10 Allen, 429; 10 Iowa, 224; 15 Johns. (N. Y.) 160; 62 Mich. 133.

      E. Howard McCaleb Attorney for Defendant and Appellee:
    Where the fruits and revenues of a wife’s paraphernal property were put into a copartnership, of which she was a member, with the authorization of her husband, and where the husband was an employó of such partnership, he can not subsequently claim that these fruits and revenues were under his dominion and control, as head and master of the community. 14 An. 68; 26 An. 640; 14 An. 211; 42 An. 785.
    Where the husband acts as agent of a partnership, of which his wife is a member,'he can not be considered as administering her property put into such partnership, in his capacity as head and master of the community, and, as such, entitled to the fruits and revenues. A husband may act as his wife’s agent, in the administration of her paraphernalia, with or without a written power of attorney, and without depriving her of her administration. 33 An. 160; 2 An. 890; 17 La. 421.
    The property of a succession, when received by the wife, is paraphernal, which she may administer without the consent of her husband, and in the administration of which she needs not his authorization.
    Plaintiff’s claim, if any he ever had, which is denied, is prescribed (1) by ten years (R. O. O. 3544) ; (2) by five years (3540). (“A silence of five years in the settlement of partnership accounts will bar any claim for abalance.”) (17 An. 28) — and (3) by three years. Act No. 78 of 1888.
    “An agent’s right of action upon an account for moneys advanced is barred by the lapse of three years. 16 An. 224.
    A partner can not sue his copartner for specific sums, but only for a settlement of the partnership and for the balance found due on such settlement. Story on Partnership, Sees. 217, 219 etseq.; 4 Rob. 445; 10 M. 433; H. D. “Partnership,” IV. (b),Nos. 1 and 2, p. 1093. “A suit for a specific sum can not be considered a suit for a settlement, even where there is a prayer for general relief.” Mead vs. Ourry, 8 N. S. 281.
    The prayer of the petition determines the character of the action. 16 La. 44; 1 Rob. 109; 5 Rob. 132; 10 An. 657; 15 An. 293; 20 An. 170. It appearing from the prayer of the petition in this case that plaintiff sues defendant for a specific sum, and not for the settlement of the partnership of Reddick & White, defendant’s exceptions, filed in limine litis, should bave been sustained and this suit dismissed, reserving to either partner the right to sue for a final settlement.
    The husband alone can not sue for the settlement of a partnership of which his wife was a member. O. P. 107; 2 La. 57; 17 An. 204. Every partner has the inherent right to sue his or her eo - partner for a partnership settlement. Where a married woman was, with the consent of her husband, a member of a copartnership, she has the right to sue her copartner for a settlement with her husband’s authorization, or, in case of his refusal, with that of the judge. 26 An. 646.
   On Motion to Dismiss.

The opinion of the court was delivered by

Miller, J.

The motion to dismiss in this case is on the ground the record of appeal is not stamped as required by Sec. 1 of Act No. 136 of 1880.

The appellant claims that under the order of the lower court the appeal was allowed in forma pauperis, dispensing him from stamping the record. We are aware of no legislation that authorizes this court to dispense with the stamping of the record as a preliminary to the hearing of the cause. The appellant refers to the dispensation from costs accorded by courts of equity to the poor litigant and insists our courts can observe the same rule. But our courts are controlled by the legislation on this subject. That legislation is to provide the means to maintain the judiciary by stamps to be paid for by the litigant and affixed to all papers filed or used in the courts, including records of appeal. The State is exempted from costs on the general principle that in its own courts the sovereign pays no costs.

The city pays none in advance in criminal cases by statutory exemption, and there may be other exemptions by statute. The exemptions illustrate the rule that all litigants must observe the law requiring stamps in legal proceedings. It is claimed that the eleventh article of the Bill of Rights of the State Oonstitution declaring that the courts are open to all entitles the appellant in forma pauperis to file the record without stamps. The same Oonstitution provides for stamps to be paid by litigants as the revenue of the State for supporting the courts. If under Article 11 of the Bill of Rights the courts are to be open without costs to the class of litigants who claim privileges as poor litigants — on the same principle it might be claimed there was no authority under the Bill of Rights to exact any stamps. We think the right of all to appeal to the courts for the redress of. grievances is subject to the limitation in the Oonstitution itself, that fees shall be paid in the form of stamps. We find no warrant in the Oonstitution or in our legislation to dispense the appellant from stamping the record, and we can not supply an exception when the law-giver has made none. Constitution, Art. 145; Act No. 136 of 1880, Sec. 1, par. 45, Sec. 10, 22.

In 33d An. 226, an application was made to this court to compel the lower court to send up the record without the stamps on the ground of the poverty of the litigant. This court, without passing on the question of exemption of the litigant from costs, referred the applicant to the lower court. The case decides nothing except the application must be made primarily to the lower court. In this case that application. was made and the issue now is presented to this court, whether it can entertain this appeal on an unstamped record. In our opinion we can not, but in view of appellant’s application to the lower court, and by reason of its order, we think the appellant should be allowed an opportunity to stamp the record if he desires to submit his case for decision.

It is therefore ordered, adjudged and decreed that the appeal be dismissed at the appellant’s cost, unless within ten days he place the requisite stamps on the record of appeal.

On the Merits.

Miller, J.

The plaintiff alleging that his wife, inheriting a plantation, sold a portion to defendant and formed a partnership with him for the cultivation of the property; that in defendant’s purchas'd he assumed as part of the price one-half of certain debts of the wife, agreeing in the partnership articles that the profits of the plantation should be applied to pay these debts, and as to any residue left unpaid the defendant should be bound for his part. The plaintiff alleges that he administered his wife’s share of the partnership property, made payments out of the profits of the debts stipulated to be paid, and also advanced his own funds for those payments, as well as for other partnership debts; that defendant’s share of the profits was insufficient to pay the half of the debts he had assumed and his part of the partnership debts, and that he is indebted to the extent of plaintiff’s payment of that part of the debts for which defendant was liable. The suit is to recover that indebtedness. The defendant pleaded the prescription of one, three and five years; the exceptions were answered, denying that plaintiff administered his wife’s share of the partnership property; hence had no claims for payments made with her funds, i. e. arising from her share of the partnership property, or that plaintiff ever advanced his own funds for the partnership. The plaintiff’s wife intervened, joining the defendant in controverting the asserted liability of defendant. The judgment was for him an,d plaintiff appeals.

When the partnership was formed in 1878 the plaintiff’s wife was largely indebted, for part of which indebtedness the plantation was mortgaged. The defendant in purchasing part of the plantation agreed to pay as part of the price one-half of the wife’s indebtedness, the half being fixed at four thousand nine hundred and eight dollars. The partnership agreement proposed that all the revenues derived from the cultivation of the property should be applied to pay the wife’s indebtedness subsisting at the date the partnership was formed; that the defendant was to be bound for one-half of any amount left unpaid, and there were the usual stipulations for the equal division of partnership profits and debts. The plaintiff managed the property, attended to the cultivation, shipment of the crops, and received and applied the proceeds. The crops appear to have been meagre. The funds realized from their sale seem to have been applied in payment on the mortgage debt and expenses of the plantation, and at the close of the partnership in 1883 a large portion of the debts expected to be discharged from the crops remained unpaid. We have been unable to determine from the record the contention of plaintiff that he paid the debts of the partnership to the extent of becoming a creditor of the defendant for four thousand four hundred and thirty dollars, the amount for which judgment is claimed. The petition refers to the account annexed. We find an account of crops and payments, another headed Black’s notes, and a mass of testimony referring to disbursements for the partnership. From all these we can not ascertain how the plaintiff makes up the amount he claims nor how it is supported. The record furnishes no basis on which the pecuniary relations of the parties can be adjusted, and hence determining the legal questions, we will remand the case.

The law presumes the paraphernal property of the wife to be under the husband’s administration, and when thus administered the fruits belong to him. Civil Code, Arts. 2383, 2385, 2386.

The defendant denies that the husband so administered, and in this the wife, in her intervention, concurs with defendant. To support their contentions both rely on the fact that the plaintiff was paid for his services in managing the plantation, and it is claimed he was a mere laborer for the partnership. We think the argument of defendant on this point misconceives the fact as well as the legal relations arising out of the fact. The partnership agreement stipulated three hundred dollars per annum should be allowed for labor; that is, all the labor required. It was this three hundred dollars plaintiff was paid, or rather reserved for himself out of the partnership revenues and with which he defrayed all labor charges. The fact that he received this three hundred dollars per annum from the partnership, in which his wife was a partner, did not exclude him from administering the paraphernal interest of one-half in the partnership, or deprive him of the right jure maritia arising out of that administration. The defendant’s brief suggests the plaintiff was a laborer on the plantation before his wife acquired it, and that relation the defendant insists was not changed after the wife acquired, sold one-half the plantation to the defendant and formed the partnership. We think, on the contrary, when the wife acquired the property, and at a later period formed the partnership for its cultivation, the property first, and afterward the partnership interest in respect to it, fell by operation of law under the husband’s administration. The wife may retain the administration of the paraphernalia by appointing the husband her agent. Civil Code, Art. 2384. In this case, no such agency existed. The husband administered solely by virtue of the marital relations. The wife sued to resume the administration of her paraphernal estate, but not till 1888. It is our conclusion, therefore, the plaintiff became entitled to the share of his wife in the partnership revenues, and in the adjustment of defendant’s liability, if any, plaintiff is entitled to charge all payments of partnership debts made with, or from the wife’s share of the partnership funds. If over and above the funds derived from the partnership the husband made payments of the partnership debts during its existence or after its dissolution, he is entitled to recover one-half the amount so paid, with legal interest from the dates of such payments. If these payments should have been on account of the mortgage debt of the wife, that would not entitle the husband to any subrogation to the rights of the mortgage creditor, as there was no conventional or legal subrogation. The husband is not bound for the debt of the wife resting on her separate property, i. e. acquired by inheritance, as in this case, and hence if he paid her mortgage debt or that of the defendant, her partner, there would be no subrogation.

The plaintiff in this case is asserting, in respect to the paraphernal interest of the wife in the partnership, the right of one partner against his copartner. The same rule applies as in ordinary cases for the settlement of the partnership. It is well settled one partner can not sue the other for specific sums. The suit must be for the settlement of the partnership, which of course embraces an inquiry into the assets of the partnership; its liabilities, the profits, the credits in favor of each partner, and the charges against him. On all these elements the balance for or against the partner is ascertained, and judgment given accordingly. Story on Partnership, Secs. 217, 219 et seq; Gridley vs. Connor, 4 Rob. 445; 10 Martin, 433, passim.

It is only for the balance found due on the final settlement that the partner can sue. If either partner has paid mortgage debts which the partnership assumed, or if the share of the profits of either partner has been thus applied, there would be no subrogation in favor of either partner to the mortgage debts. The whole right of the partners are merged in the balance found due on the settlement.

The prescription of three years pleaded by defendant has no application to the demand of plaintiff. That prescription refers to accounts for goods sold, and merchants’ accounts against their principals, and generally to those business or other relations in which accounts are usually rendered. Civil Code, Art. 8588; Act of 1888, No. 7.

The prescription against the actions for moneys advanced or debts paid by one for another, or for the settlement of partnership, is ten, not three or five years. O. C., Art. 3544; 12 Rob. 148.

Reserving our opinion on the question of liability we will remand the case with instructions for the lower court by testimony or the report of experts to ascertain.

1. The amount of the payments, if any, by the plaintiff out of his own funds, i. e. not the funds of the partnership, of the debts of the partnership.

2. The amount of the debt of the partnership, if any, paid by defendant out of the funds of the partnership.

3. The amount of the partnership funds received by each partner.

4. The balance for or against each partner on the adjustment of the partnership affairs.

We assume that as to the amount of the crop proceeds and the mortgage debt of Bowland the record as it now stands affords full information, and it is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed; that the case be remanded as directed and for the purposes stated in this opinion, and that appellee pay costs.

On Application by Plaintiff for Rehearing.

As the record does not furnish the basis to adjust the controversy we will so far modify our previous opinions as to reserve for determination, when the case comes again before us, the questions of interest claimed by plaintiff and whether he is entitled to any subrogation to the mortgage rights of Bowland or the judgment rights of Black and Davis. In making this reservation we are not to be understood as acquiescing in the views of plaintiff’s counsel advanced in support of the application for rehearing, We simply reserve the questions.

It is therefore ordered, adjudged and decreed that the former opinion and decree be modified to the extent stated and the cause be remanded for the purposes stated in the original opinion and decree, and although we think all the testimony needed has been indicated, with the right of the parties to offer, besides, such testimony as they deem pertinent.

Rehearing refused.


author: Nioholls, C. J.

text:
    No. 1289.
    James L. Spencer vs. Leon Scott, Sheriff, et al.
    1. When a husband has legally selected and recorded a homestead, the homestead right is not destroyed by the fact, that subsequently thereto, personal property of the husband, not included by him in the declaration, is transferred by him to his wife in payment of paraphernal funds of hers received by him and converted to his own use, thus placing this property beyond the reach of his creditors. The Constitution contemplates the possibility of the co-existence of ownership of paraphernal property by the wife with a homestead right in the husband, when the value of the property of the wife is within the limils fixed by it.
    2. If the wife has legal rights which she has enforced in a legal manner, her motives in exercising her rights, do not concern the creditors of her husband. If she has no legal rights, or has enforced them in an illegal manner, the remedy of the creditors is to attack the judgment which recognizes them, and the transfer made under the judgment,'to have it sot aside, and the property included in the transfer subjected to the payment of their claims.

      3. When the community of acquets and gains is dissolved by a judgment of separation of property, the wife, in the absence of evidence on the subject, is presumed to have renounced the community. A wife who renounces the community stands as a third person quoad the community.
    APPEAL from the Sixth District Court, Parish of Richland. Ellis, J.

      Ghmby & Sholars for Defendant and Appellant.

      Robert Whetson for Plaintiff and Appellee.
   The opinion of the court was delivered by

Nioholls, C. J.

A certain piece of land in the parish of Richland containing one hundred and twenty acres, more or less; also ohe horse, two mares, four mules, one wagon and one buggy, having been seized by the sheriff of that parish in execution of a writ of fi. fa. in the case of Mrs. Carrie' P. Myers vs. James L. Spencer, the seized debtor enjoined the sale of the land, of the horse and of the wagon and demanded a release of the same with damages on the ground that they were exempt from seizure and sale under Arts. 219 and 220 of the Constitution of the State and Act No. 114 of 1880, as the said property had been set aside and recorded as a homestead. Plaintiff in execution answered the petition, denying that Spencer had any legal or just grounds for the injunction. She admitted that the sheriff seized the property, but denied that the same is exempt under the homestead laws of the Stste. She denied that her debtor ever complied with the conditions prescribed by law for securing the homestead exemption and averred that the declaration filed by him more than ten years before was defective, insufficient and void. She specially denied that the horse and wagon, the sale of which is enjoined, are contained in or described by said declaration.

She further averred that Spencer abandoned and forfeited all right to claim said property as a homestead by having his wife to sue him for a separation of property and obtaining a judgment dissolving the community and decreeing him io be indebted to her for a large sum, under which judgment he attempted to transfer to her all his property not covered by the homestead claims, thereby committing a fraud on the seizing creditor and rendering it impossible for her to collect the debt due the succession of Myers by the community of which Spencer was the head and master. She specially denied plaintiff’s right to claim a homestead in the land held in indivisión by him with his wife after the dissolution of the community, and the legality, justice and good faith of his claim to a homestead after there had been a separation of property collusively entered into between him and his wife, for the purpose of placing a part of his property beyond the reach of his creditors. She averred that all the proceedings in the suit for separation and in an injunction taken out in the District Court for Richland by the wife against the sale of the four mules seized as being her separate property, under the act of transfer mentioned, were instigated and carried on under the direction of Spencer, and he is estopped in law and morals from asserting or claiming-a homestead exemption on the community property, and denied that, he is entitled to the same on any ground whatsoever. She prayed that plaintiff’s demand be rejected, the injunction dissolved, and that she have judgment in reconvention against Spencer and the surety on his bond in solido, for twenty per cent, on the amount of the writ enjoined, as special damages, and ten per cent, thereon as general damages. The sheriff, who had been made a party, averred he had no interest in the litigation; that he was proceeding regularly with the execution of a legal writ when enjoined. He prayed that plaintiffs demand against him be rejected.

On trial the District Court rendered judgment perpetuating the injunction. The seizing creditor has, under the amendment to Art. 81 of the Constitution, brought the case before this court on appeal. Appellee has filed an answer, praying that the judgment be amended so as to allow him one hundred dollars damages for attorney’s fees.

A certified copy of the declaration of homestead made by plaintiff injinjunction, together with the certificate of its registry in the parish of Richland, is in the record.

It seems to conform to the requirements of the articles of the Constitution and to the provisions of Act No. 114 of 1880. Defendant in injunction declares it to be “defective, insufficient and void,” but we have not been informed, either in the argument or the brief of counsel, upon what this assertion is based. The only departure from Art. 219 of the Constitution which we notice, is the placing of a mule upon the exemption list instead of a “work horse.” It is not claimed that Spencer’s wife, either at the time of the declaration of the homestead or since, has had property of her own sufficient in value to deprive her husband of his right of exemption. The property which she owned at the time of the seizure seems to have consisted exclusively of four mules (among which isthe one referred to in the declaration of homestead) transferred to her by her husband in payment of the judgment which she obtained against him in restitution of paraphernal funds of the wife received by him, and converted to his own use.

The Constitution contemplates the possibility of the co-existence of a right by the husband to a homestead with ownership of paraphernal property by the wife, provided the value of the paraphernal property be under two thousand dollars.

The evidence shows that at the time of the declaration of homestead Spencer owned four mules, of which three died, but that he replaced these three by others. That not long before the seizure in the present suit Mrs. Spencer instituted a suit against her husband for a separation of property, praying for a moneyed judgment against him for moneys of hers alleged to have been received by him, and converted to his own use. That she obtained judgment in conformity to her prayer, and that in satisfaction of this judgment the four mules owned by her husband were transferred to¡ her, and are now used in the cultivation of the farm. ' It is claimed that all the proceedings in the suit for separation were collusively carried on for the purpose of placing a part of his property beyond the reach of his creditors and of committing a fraud on defendant in injunction by putting it out of her power to collect the.debt due the succession of Myers by the community of which James L. Spencer was the head, and that they were instigated and carried on under the direction and control of the husband. The reality of the claims of the wife against the husband is not disputed. No attack upon the judgment is made.

The wife is not a party to this suit. The contention as made is that she could not and should not legally, in good morals and equitably, enforce her judgment in view of the exemptions claimed by the husband, and the existence of debts due by him to other parties.

The main reliance of appellant for reversal of the judgment is in •successfully holding, that the dissolution of the community between Spencer and wife (brought about by the judgment of separation) had as its effect to destroy the right of exemption asserted in the declaration. The theory upon which this result is based is that the dissolution of the community operated ipso faoto a change from ownership of the property in its entirety by the community to joint ownership by each of the two spouses of an undivided one-half interest therein. That by reason of the ownership being no longer of the property in its entirety, and of the fact that the homestead exemption can not be made to cover undivided joint interests, the homestead in this ease ceased to exist.

The seizing creditor has overlooked the fact that the acceptance or renunciation of the community of acquets and gains by the wife is a matter resting entirely upon her own will, and that where it is dissolved by reason of a separation of property both allegation and proof that she has accepted are necessary to be made to justify a court in dealing with her interests or those of the husband from that standpoint. Herman vs. Theurer, 11 An. 70; Andrich vs. Lamothe, 12 An. 76; C. C. 2420.

Under such circumstances the presumption is that she has renounced. It is not alleged nor proved that Mrs. Spencer has accepted the community. The renouncing wife stands quoad the community.as a third person. Lombas vs. Collet, 20 An. 80. She is not prejudiced in her legal rights by any moral obligation which it may be supposed rests upon her to see that .her husband’s debts to others be paid. The wife, so far from this, in dealing with her husband in reference to her property rights, is often upheld and protected where dealings of like character between the husband and one of her creditors, under similar circumstances and conditions would be liable to be set aside as fraudulent.

Mrs. Spencer either had or had not legal rights against her husband's property. If she had and enforced them legally, her motives in exercising them play no part in this controversy.

If she had not legal rights or did not enforce them legally the remedy which the seizing creditor should have pursued was to have attack the judgment and the transfer under it as illegal, fraudulent or unreal,, have it set aside and the property covered by the transfer subjected to the satisfaction of her claim. A fraudulent judgment and a. fraudulent, simulated or illegal transfer could be set aside. The legal result of their having been resorted to by the spouses would not be the destruction of the homestead rights to which they were entitled under the law and the Constitution. We see no reason for enjoining the sale of the horse which was seized in this case. It was not included in the exemption lisV which was recorded, and besides this there has been no attempt made to show that it was a work horse. We think the injunction as to it should have been dissolved. Each side should pay its own attorney’s fees. For the reasons herein assigned it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby amended by dissolving the injunction which issued in this case as to the horse seized, but that otherwise it stands affirmed. Cost of appeal to be paid by appellee.