author: Roché, J. Fenner, J. Poché, J.

text:
    No. 9450.
    Succession of Myra Clark Gaines.
    In a contest over an olographic will, the probate of which has been resisted as soon as the. instrument was presented, on the ground that said will is not in the hand-writing of the deceased, and is therefore a forgery, the burden of proof of the validity of the will is on the paity who presents the same for probate.
    The proof of the writing and signature of the testator hy at least two credible witnesses, which is considered sufficient under the laws of Louisiana, applies only to wills which are not opposed or contested.
    In contestations which involve the validity of wills, as regards the genuineness of the same all legal modes of proof, including the testimony of experts, and comparisons of writings are admissible, and all such evidence must bo considered by the courts.
    In such cases the allegtd physical incapacity of the testator, at the date of the instrument, to write a will or to date the same, is a legal element of proof to he considered. So is the mode of acquiring possession of the will by the party who presents it for probate, an element to be considered; and in case that a mysterious or unnatural manner is indicated by the party, the burden of proof is on him to show the actual delivery of the will to him as alleged.
    The court will also consider the character of the dispositions contained in a contested will, as a means of testing the validity uf the will, by the probabilities of such donations.
    When the evidence in a cause is sufficient to justify a final judgment in the case, courts of' justice would be derelict to their duty in refusing to give it legal effect and to thus end the litigation.
    Evidence and considerations which, in a contest over a will in the olographic form, would justify that the will is not genuine, must carry with them the conclusion that the will, was not written hy the deceased and is therefore a forgery.

      An amendment on appeal, which does not alter tlie practical result flowing from tlie judgment of the court a qua, hut merely strikes out some irrelevant matters, will not visit costs of appeal on the appellee.
    APPEAL from tho Civil District Court for tlie Parish of Orleans. Houston, J.

      Breaux (& Hall and A. H. Leonard for Mrs. Evans, Appellant:
    The following legal propositions are elementary :
    X. La date ne doit pas étre mise le jour méme oü-le testateur ócrit ses dispositions. Laurent, XIII, p. 1700, Ho. 204.
    •2. “Onadmet que le testament olographe fait foi de sadate." Laurent, XIII, 269, 274, Hos, 242, 243; Lemolom.be, Lon. IV, p. 158; Gilbert (Codes), 429.
    TTn testament olographe est regardó córame un acta solennél qui fait foi de sa date. Toullier, III, p. 210; Cassation, Juin, 1810; fcíiroy, p. 290.
    So that if the writing be proven, tho date will be assumed to be made as indicated. This is not a presumption juris et de jure, but it is sufficiently strong to control in cases of conflicting testimony.
    3. L’obligation de dater le testament n’emporte pas l’obligation d’indiquer le lieu oh a été fait." Gilbert, p. 428,
    •4. “The presumption of innocence is too strong to he overcome by an artificial intendment of law." Starkie on Evidence,
    5. Tho proof by witnesses who havo not seen a person write or sign, aud who only express their belief or knowledge of the genuineness of the signature in dispute, from its similarity and likeness to signatures of the same person which they have seen, has always, in itself, something rather vague and unsatisfactory, if not corroborated by circumstantial evidence." 15 La. p, 264.
    •6. “ We would have been better satisfied with some evidence explanatory of the conduct of plaintiff, so little in accordance with the usual springs of human action, at least with that most powerful of all, self-interest! We concede the suspicions which may attach to the appearance of this small scrap of paper as the title to a large fortune. But, after all, suspicions are not permitted to counterbalance, in the judicial mind, the testimony of numerous and uncontradicted witnesses. It is in the recollection of some of us, that a dirty fraction of a half sheet of foolscap, was the vehicle for the devise of the large fortune of the late Chief «Justice Martin.” Penn vs. Cities, 13 Ann. 87.

      T. J. Semmes & Bayne and A. Goldthwaite, for Hilder and others, contra:

    X. When the genuineness of a last will and testament in the olographic form is denied, evidence as to handwriting and comparison of same may he introduced and made, together with all the circumstances attending the alleged making of tho will. C. C. Art. 2245; C. P. Art. 325; 9 La. 560-2; 18 Ann. 445; 2 Ann. 667.
    2. The finding of a will and the history of its possession are material facts to be consid* ered, and should be satisfactory and occasion no distrust in the mind of the court. 13 Ann. 86; 18 Ann. 445; Williams on Executors, vol. 1, p. 292, 4th Am. Ed.; 2 Haggard Eng Ecclesiastical Hep. 531; 1 Addams Eng. Ecclesiastical Hep. 162 ; 2 Addams, 53 ; 1 Haggard, 60.
    3. A person who accounts for the finding by saying a neighbor, or third person, gave it to her, may he believed; hut when the neighbor, or third person, is produced and denies the statement, the presumption is that the statement of the finding is untrue.
    4. A person offering a will for probate, which is denied to be genuine, and alleged to be forged, has the burden of proof upon her,; she must make her case not merely probable but legally certain. 18 Ann. 449.
    5. Any evidence that will aid the trial judge, sitting as a jury, in comparing and examining different specimens of hand-writing, such as photographic copies, a stereopticon to-enlarge and magnify true copies, is admissible. Lawson on Expert and Opinion Evidence, 414-15; 16 Gray, (Mass.) 160; 2 Baxter, (Tenn.), 23L.
    6. An appellate court may make the comparison for itself. Lawson on Expert and Opinion Evidence; 6 Court of Claims, 421.
   The opinion oí' the Court was delivered by

Roché, J.

On the 12th of January, 1885, Mrs. Marie P. Evans presented for probate, as the olographic will of the deceased, the following instrument:

“New Orleans, January 8, 1885. — I, Myra Clark Gaines, being of sound mind, bequeath to my excellent friend, Mrs. Julietta Perkins, as a token of my esteem and love, that part of my estate known as the Fuentes property, and to my friend, Mrs. Marie P. Evans, one-third of the remainder of my entire estate, the balance to be divided equally between my grandchildren. I appoint Mrs. Marie P. Evans, my testamentary executrix and detainer of my entire estate, without, bond.”

(Signed) “MYRA CLARK GAINES.”

In connection therewith, she exhibited another document, in the shape of a letter, and which reads as follows:

“ Confidential. — Washington, D. C. August 23, 1884.

“ My dear Mrs. Evans — I have been very unwell but am quite well' again. I am pleased to learn the news of the bank suit, but feel most anxious about your success. With love, I bequeath to your excellent mother that portion of my estate known as the Fuentes property; and to you, dear Mary, one-third of the remainder of my whole estate. As yon are the friend I trust above all others, I appoint you my testamentary executrix and detainer of my entire estate, without bond. With love to your excellent mother and the kindest regards to to your husband,

I am ever your friend,

MYRA CLARK GAINES..

“Excuse this scrawl, my hand trembles and I am very weak.

“Adieu again, MYRA.”

To these two documents, she supplemented another instrument, indicating similar testamentary dispositions, and which is in the following words:

Washington, D. C., November 10, 1881.

“ I, Myra Clark Gaines, bequeath, in this, one-third of my estate to Mrs. Marie P. Evans, and my Fuentes estate to her mother, Mrs. Perkins, in token of my love for them.

“I, Myra Clark Gaines, sign the above most heartily.

(Signed) “MYRA CLARK GAINES.

“New Orleans, December 18, 1884.”

On the same day, the court was asked to probate a will in nuncupative form under private signature, purporting to have been executed by the deceased Myra Clark Gaines on the 5th of January, 1885. This will was presented by W. H. Wilder and I. Y. Christmas, who had 'been therein appointed as executors, and who, on the same day, resisted and opposed the probate of the will presented by Mrs. Evans on the ground that it was not a genuine will written by Mrs. Gaines.

Probate of the nuncupative will of the 5th of January, was resisted by Mrs. Evans on the ground that it had been superceded by the will ■of January 8, and of non-observance of legal formalities.

Further opposition was made to the alleged will of January 8, by I. Y. Christmas in his capacity of natural tutor of his children, who ■are the grandchildren and heirs at law of the deceased.

By agreement of counsel, the issues presented under these several pleadings, were tried and determined together. The result was a judgment which rejected the nuncupation will of January 5, as defective in form ; and decreed that the instrument purporting to be the ■olographic will of Mrs. Gaines, was fraudulent and forged, and not ■entitled to probate as a will.

No appeal was taken from the judgment in so far as it annuls the nuncupative will, hence that question is eliminated from the present discussion.

This appeal is prosecuted by Mrs. Evans, and it presents the question of the validity of the alleged will of January 8, 1885.

The undisputed facts of the case are as follows:

Mrs. Myra Clark Gaines died in the city of New Orleans, on Saturday the 9th of January, 1885, at two. minutes past eleven o’clock at night, at the age of 78 years, after a lingering illness, (capillary broucliites), of twelve days, at the house of L. L. Davis, No. 150 'Thalia street.

Her disease progressed steadily, without any reaction, her condition growing worse day after day, until death ensued.

During her illness, she was attended to and nursed by Mrs. Virginia Davis, the wife of L. L. Davis, by the latter’s niece named Adolphine Case, by Mrs. I. M. Walsh, a near neighbor and a relative of Mrs. Davis, and by a Mrs. Letitia Bringier Gonzales, a life-long friend of Mrs. Gaines, who became afterwards Mrs. Bradley. Her physician was Doctor W. H. Holcomb, from whose testimony it appears that on the 5th of January, 1885, Mrs. Gaines was unable, through weakness and exhaustion, to sign her name to the will made on that day, and that in order to affix her cross thereto she required his assistance to hold and guide her hand.

It also appears that, between that day and the day of her death, Mrs. Gaines signed several documents in the presence of witnesses, ■and that in each case she made her cross with the assistance of some ■one of the persons present, after declaring that she was too weak to sign her name. '

All other facts connected with the case are disputed and very warmly contested. Hence the truth had to be searched through a mass of conflicting testimony, composing an enormous record, and by means of comparison of the hand-writing in the three documents which are hereinabove transcribed, with the hand writing admitted to be that of Mrs. Gaines, in some eighty documents, mainly letters which, by consent of counsel, have been brought up in their original form.

In the performance of our painful task, we have divided the subject into four different branches of inquiry:

1. The alleged inability of Mrs. Gaines, on January 8, 1885, to execute in whole or in part, the will of that date, on account of her great weakness and exhaustion, through sickness, and of other surrounding circumstances.

2. The manner by which Mrs. Evans claimed to have obtained possession of said will.

3. The alleged improbability of the dispositions contained in said will.

4. The genuineness or forgery of the hand writing of the body and of the signature of said will, and of the two documents presented therewith.

We must, however, first lay down the rules by which our courts should be guided in the investigation of such cases.

We note in this connection that appellant’s counsel urge the rule that after proof of the signature 'of the testator by at least two credible witnesses, under the requirements of Article 1655 of the Civil Code, the burden of proof is on the party who opposes the execution ■of the olographic will.

We understand tliat rule to apply to the probate of a-will which is not opposed, as a part of the mortuary proceedings looking to the settlement of the succession of the deceased. When the olographic will is presented and due proof is administered of the genuineness •of the testator’s hand-writing and signature, the will is ordered to be-probated and executed. If thereafter any party seeks to annul or sot aside the will on any legal grounds, he is met by these preliminary proceedings which have established thejprima/acie validity of the will, and under the effect of which he is charged with the burden of proof in support of his attack. But a different rule applies when the probate of the will is opposed ab initio, on the ground that it is a fraud and a forgery.

In such a case the denial of the genuineness of the will removes the contest from the domain of Article 1655 of the Code, and it presents an issue which must be determined under the rules which govern all contests involving the genuineness of a signature which is denied, and in such a case the burden of proof is on the party who relies on the genuineness of the proffered signature. C. C. 2245; Code of Practice, art 325.

Under such an issue the doors of justice are opened for the introduction of legal evidence, under all the forms which prevail in all contested facts oreases; and the textual provisions of the law recognize the mode of testing signatures by a comparison of the writing. 9 La. 559, Plicque and LeBeau vs. Labranche; 2 Ann. 724, Sophie vs. Duplessis et ais.; Aubert vs. Aubert, 6 Ann. 104; Pence vs. New Orleans, 13 Ann. 86; Fox’s Case, 18 Ann. 448.

Satisfied with the wisdom and with the absolute correctness of these rules, which were pointedly and practically enforced in Fox’s case, 18 Ann. 448, we have felt authorized to consider all the legal evidence which the record affords, and which could throw any light on our path, including the testimony of seven respectable and credible witnesses, who testify to their belief in the genuineness of the writing and of the signature in the contested will, including also a minute comparison, with the aid of a powerful magnifying glass, of the hand-writing of the proffered will, with that in the original documents which have been brought up as containing the genuine writing and signature of Mrs. Gaines.

I.

The subject of our first inquiry involves the physical and mental condition of Mrs. Gaines on the 8th of January, 1885; and other circumstances connected witli the possibility of her having made a will on that day.

The weight of the evidence has served to convince our minds of tlio following facts on this point:

The last time that Mrs. Gaines affixed her signature to any instrument or wrote any word or words in her own hand was on Sunday the fourth of January preceding her death.

On that day, with the assistance of three persons, two of whom lifted her up in her bed, and one of whom held a small board on which was laid the paper, she signed a nuncupative will under private signature, which she supplemented on the next day by the will which was annulled in this case as defective in form.

From that day on to the day of her death, she sank continuously and gradually without any perceptible improvement or reaction, and she never more attempted to sign her name. Whenever she desired to sign any instrument after that day, it was done by means of a cross, which she made with the greatest difficulty, and with the indispensable assistance of some person to hold and to guide her hand.

In the morning of the 8th, the very day on which she is represented to have made her olographic will, or at least to have written the words “Jan. 8th, 1885,” her physician gave up all hopes of her recovery, and for that reason alone he allowed her nurses and attendants to humor her in one of her sick and dying fancies — to be given a steam or vapor bath.

From that operation she was replaced in her bed, materially weakened and alarmingly exhausted; her feet and hands began to swell, her ears grew black, and her condition gave unmistakable signs of a rapidly approaching dissolution, which occurred the next night at 11 o’clock.

Up to that time she had been able to hold a glass in her hands and to drink therefrom; from that time she lost even that faculty, and the only refreshments which she could take were in the liquid form, and these had to be administered by her nurses with the use of a spoon.

These facts are gathered in the main from the testimony of Mrs. Davis, her niece Miss Case, and her relative and neighbor, Mrs. I. M. Walsh, to whose testimony we attach great weight and importance mainly because it emanates from persons entirely disinterested, also because their respective statements are mutually corroborative, because their answers are given without hesitation, without unnecessary explanations and without deviation, and because their whole testimony leaves the unmistakable impression of candor and truth, a cliaracteristic unfortunately not found in the testimony of several other witnesses in the case.

These three witnesses agree in the statement that from, and including Sunday the fourth of January, to the time of her death, Mrs. Gaines was never left alone a single moment; that one, at least, of these three ladies was constantly present and awake night and day in her room, and that neither of them ever saw her handle a pen or write a word in her own hand after that day. It would be next to impossible to estaba negative proposition with more certainty than is done in this instance.

A rather hazardous attempt is made to break down the testimony of these witnesses by that of one Plorentine Pierce who swears that on one occasion she went up to Mrs. Gaines’ room dnring that interval of time and found her absolutely alone. But we do not believe her. Her whole testimony is devious, tortuous, very unsatisfactory, and not in the least clad in the livery of truth. We deem it unnecessary to analyze her testimony in greater details.

We are thoroughly convinced that on the 8th of January, Mrs. Gaines ■was physically unable to write a single word, and that she did not write the will in question or any portion thereof on that day.

II.

Our next inquiry is directed to the alleged manner in which Mrs-Evans obtained possession of the proffered instrument. Her theory is in substance as follows:

Having been informed through newspapers that her intimate friend, Mrs. Gaines, was lying very ill at No. 150 Thalia street, she left her own sick bed, to which she had been confined since the 24th of December, 1884, in the morning of Saturday, the 9th of January, 1885, and came down for the purpose of paying her a visit. She called at the house, but was refused admission to Mrs. Gaines’ room by the latter’s son-in-law, Mr. Christmas. She then came down to her lawyer’s office, where she spent the better part of the clay, in great distress of mind over the occurrence of her defeated visit to her bosom friend. Prom there she took a car on her return home at about four o’clock, p. m , but on reaching the corner of Thalia street, she left the car, with the intention of making another attempt to see Mrs. Gaines. In a disturbed state of mind, creating indecision of purpose, she passed by the house threejtimes, when she was spoken to by a woman “dressed in shabby black, with a black veil tied on her head,” who stood in the doorway and who asked her if she was Mrs. Evans. _

On an affirmative answer the person “ in shabby black,” who looked very much confused and manifested great nervous excitement, handed her a handkerchief containing- a paper folded therein, remarking to Mrs. Evans that it was sent to her by Mrs. Gaines. She did not know the woman in “shabby black,” and she was not known to her. She then walked away without asking any questions, and on opening the bundle she found the paper in question, of which she then read but one line, refolded it, and taking a car, returned home without reading said paper before she reached her house.

Dealing with such a statement counsel for appellant can hardly expect but one answer from a court of justice. The explanation makes confusion worse confounded.

But on attempting to further explain, Mrs. Evans states that she subsequently ascertained the name and identity of the woman who had handed her the mysterious bundle, and that it was Mrs. Letitia Bringier, now the wife of J. S. Bradley; and that in a subsequent conversation, the woman had admitted that much to her.

Called in as a witness by the opponents, Mrs. Bradley flatly denied the whole statement, and emphatically declared that she knew nothing of the pretended will or of the mysterious bundle.

Appreciating the very damaging effect of that testimony, appellant’s counsel devote a large portion of their brief to show that Mrs. Bradley is not a credible witness, and that she made numerous contradictory and glaringly untrue statements in the course of her testimony.

But conceding the full force of that line oí attack, can we be expected to construe her denial into an affirmative statement?

Eliminate her testimony altogether, and the case is left with the unco: roborated narrative of Mrs. Evans.

Her unsupported evidence would tax the court to believe a romantic story, which finds no reason in any of the springs of human action, and to which no court of justice can conscientiously give credence.

In Fox’s case the party charged with having delivered McDonogli’s will to Fox was produced as a witness, and his testimony went to the supjmrt of the latter’s theory. But weighing his testimony in' the. scales of surrounding circumstances, with the improbabilities of the case, the court refused to believe him.

In this case we are called to uphold a mysterious delivery of a will unsupported by the testimony of a single disinterested witness, and to that end to actually discard plausible testimony for the purpose of giving effect to an improbable theory. No court would undertake to go to that length.

We find no evidence in the record to justify the conclusion that Mrs. Gaines, who died in the belief that her estate would amount to two millions of dollars, and who left two sets of grandchildren for whom she had always shown the warmest attachment and manifested the utmost solicitude, would deliberately disinherit them of more than one-thirdj’of her estate for the benefit of any living being. This brings us to the consideration of our third inquiry, which involves the alleged improbabilities of the dispositions made in the pretended will.

III.

In addition to what we have already said on this point, the record shows that Mrs. Gaines and Mrs. Evans were not related either by blood or affinity, and that their acquaintance dated only from the year 1870. It further appears that after an intimacy of several years with Mrs. Evans,¡the deceased had gradually become estranged from her and had lost all confidence in her.

The evidence is, perhaps, more conflicting on this than on any other point in the case. Hence we have analyzed it with more than ordinary care and attention, and the result of our examination is the conclusion that Mrs. Gaines had gradually withdrawn her friendship from Mrs. Evans. It is useless, and it would be a tedious labor, to go into details on that point. But the following facts cast a very significant light on the subject of this inquiry :

From the testimony' of Mrs. Evans it appears that to her knowledge Mrs. Gaines had been in New Orleans at Mr-s. Davis’ house since the 8th of October, 1884, and that she also had been in the city during all that time, and they had not yet exchanged visits, or even the courtesy of the slightest correspondence.

The attempted explanation of that fact by Mrs. Evans is not satisfactory. Again, it does not appear that during hér whole illness, Mrs. Gaines had requested any message for Mrs. Evans, or made any inquiry about her, while it is shown that she had been thus concerned about other persons. During the last days of her illness, Mrs. Gaines made several donations inter vimos and made two nuncupative wills, and in no instance did she make the slightest allusion to Mrs. Evans.

In this connection, counsel for appellant contend that the wills of the 4th and of the 5th of January, were not the result of Mrs. Gaines’ voluntaiy desires, aud that far from manifesting any wish to make a will, she had always expressed a decided aversion thereto.

It is shown, however, that she made several special legacies in both of these projected wills, and from the testimony of both sets of attesting witnesses it appears that she signed both wills without undue persuasion, and without the slightest coercion. But in their zeal in that line of argument, intended to show that Mrs. Gaines had a great aversion to making a will, and that she did not, at any time, believe that she was about to die, counsel lost sight of the effect of such contention on the very will which they are endeavoring to probate.

And thus it appears that appellant gathers no strength from the consideration of the alleged probabilities of the testamentary dispositions as supporting the validity of the will.

IV.

We now reach our fourth and last point of inquiry, and that in volves the test of the hand-writing and the signature of the alleged olographic will and incidentally of the two other documents connected therewith.

Our researches on this branch of the case include the testimony of experts and of persons familiar with the hand-writing and signature of Mrs. Gaines, and a comparison made by ourselves of the hand-writing of the three instruments now under discussion with the admitted writing and signature of Mrs. Gaines in original documents which have come up with the record.

In this connection, it is contended by counsel for Mrs. Evans, that comparisons of hand-writings with each other and expert testimony on the same subject find little favor under the laws of Louisiana, and are very often precarious and dangerous; that experts may give opinions, but they must state the facts on which they are based, and that in verifying a signature the expert cannot refer to extraneous facts established in the case.

Counsel are mistaken in the proposition that such modes of verifying signatures have but litle force in Louisiana. Both modes are recommended by the very text of our Jaw. C. C. art. 2245; C. P. 325. It is undeniably true that such testimony must yield wlien pitted against positive testimony. 15 La. 263, Robinson vs. Arnet. We find no fault with the other legal proposition advanced by counsel, and we have been guided by them in our consideration of the testimony on this branch of the case.

Hence we have given no weight to opinions expressed by some of the experts as to the impossibility of Mrs. Gaines writing as plain as was done in the will of January 8, on account of her physical weakness.

But we have given due weight to the facts recited by them as the basis of their opinion that the writing and signature of the will and of the confidential letter were not the genuine writing of Mrs. Gaines. These experts were subjected to a very rigid cross-examination, under which it was ascertained that they had been mistaken in some of their elements or modes of comparison ; but it is nevertheless true that in the leading facts their testimony is correct as shown by the very thorough examination which we ourselvos have made.

Besides the testimony of four expeits, three of whom had been selected and appointed by the district judge, we find in the record the testimony of Mr. Christmas, of Mr. Wilder and of Mrs. Whitney, who have been familiar with the hand-writing of Mrs. Gaines for upwards of twenty years, and who fail to recoguize her genuine writing in either of the instruments in question.

We were very much impressed with the testimony of Mrs. Whitney, the daughter-in-law of Mrs. Gaines, who, in the course of a rigorous cross-examination, was put to the test of verifying the signature of Mrs. Gaines, without the opportunity of seeing the writing to which the signature was attached, made but very few mistakes in testing more than sixty signatures.

As stated by the experts, the hand-writing in these two documents has a general resemblance, and bears a striking similarity to that of Mrs. Gaines. But, notwithstanding this remarkable imitation, the forgery can be safely detected by considering certain striking features and peculiarities in the genuine writing of Mrs. Gaines, which were not successfully imitated in the two documents.

All the experts agree that the two documents, the will of January 8 and the confidential letter, as well as the words “I, Myra Clark Gaines, sign the above most heartily, New Orleans, December 18th, 1884,” and the signature thereto in the third document, were written by the same person.

Now, the most striking feature in the writing of Mrs. Gaines was the uniformity of her signature, in the imitation of which the forger signally failed in the three instruments.

A careful study of the documents containing the admitted signature of Mrs. Gaines," shows that she has two styles of forming the capital letter “G; ” one of which is to be found in all documents signed previous to the year 1880, or thereabout, and another form prevailing from that time on, even to her signature on the fourth of January, 1885, which we think is her last genuine signature •, and that neither of these forms is found in the three documents now under inspection, and it also appears that Mrs. Gaines has never made the capital letter u G ” in the manner adopted in either of the documents in question.

In the will, as well as in the confidential letter, the letter “ a ” in Myra, ends with a loop or flourish, a feature which is never found in the genuine signature, unless it he when Mrs. Gaines signs “ Myra ” alone in a post-script. In the genuine signatures of the deceased, the letter k ” in “ Clark” invariably ends with a loop, resembling the letter e” as though she intended to write “ Clarke,” it even appears that she thus turns the letter “k” whenever it ends any word such as “clerk” “ ask,” etc., and in the two signatures under examination, the absence of the loop in finishing the letter “ k ” in Clark is signally apparent.

In her letters, Mrs. Gaines had two peculiarities in writing the word “friend,” one in the letter “f” and the other in the letter “ d ” the attempt in the spurious will to imitate herform of “/” is quite palpable, but is an awkward failure, and the same may be said of the letter “ d ” in the same word, which terminates with a graceful loop, when Mrs. Gaines almost always terminated in the letter “ d ” with a downward stroke, and never with a loop.

In not a single word in all of the documents before us which were written by Mrs. Gaines have we found a capital letter “ J” even resembling in form or character, the well defined, well shaped and elegantly finished “ J ” in the words “ Jan. 8th,” etc., in the heading of the will of that date; the same may be remarked of the word “August” in the heading of the confidential letter.

In every letter which we have seen from the pen of Mrs. Gaines, the date thereof and the name of the place whence written, are placed-on the extreme right edge of the paper, so close thereto, as to leave barely enough space to write the necessary words. In the confidential letter, the words “ Washington, D. C.” are placed near the middle of the line, more to the left of the paper; and in the spurious will, the words “New Orleans” are located on the extreme left edge of the paper.

We might go on in this way and establish a difference between the characteristic features and peculiarities of every word in the forged will and the peculiarities in shaping the same words in the genuine hand-writing of Mrs. Gaines. But this would be work of supererogation, and would serve no useful purpose. It is sufficient to say that we have made that identical comparison with the result as above indicated.

Our solemn conviction is that the will propounded by Mrs. Evans, is not in the hand-writing of Mrs. Gaines, and that it is manifestly a forgery, and that therefore the judgment of the lower court is correct.

It will be noticed from the tenor of this opinion, that the conclusion reached by us on the first point of our inquiry would, perhaps, have been of itself decisive of the whole controversy.

Under ordinary circumstances we might have been disposed to close the discussion at tnat point, but considering that the whole case was discussed by counsel in subdivisions which differed from those which we have adopted, and that all the points of investigation were very closely blended together, we have concluded to review the entire field of discussion, while we restricted our reasons to elucidate only the salient facts or features of the case.

Our study of the evidence has been exceedingly laborious and our comparison of hand-writings quite prolonged and very thorough; hence we leave the case with the absolute conviction that onr painful task has been faithfully and conscientiously performed.

The judgment appealed from is therefore affirmed.

CONCURRING opinion.

Fenner, J.

I do not profess to be an expert in hand-writing, and the document propounded as the will of Mrs. Gaines is too skillful an imitation of her -writing to enable me to pronounce from mere inspection and comparison that it is a forgery. Nor would the testimony of the experts serve, unaided, to convince me of the fact. I discern differences between specimens of Mrs. Gaines’ writing and signatures admitted to be genuine, quite as marked as those signalized in the evidence of the experts and in the opinion of the court.

Still, the contradictory evidence on the subject of the apparent genuineness of the will is of a nature to leave the question in serious doubt on this pioint, and to justify and require a resort to other circumstances for the purpose of determining it.

For, after all, the factum probandmn is that this instrument is the veritable will of Myra Clark Gaines, and however perfect the resemblance to her writing, yet if the other proof in the case is of a character to satisfy the judicial mind that she did not execute it, the probate of the will must be denied.

Now in tills case, I discover the following- circumstances, several of which are adverted to in the majority opinion, but which I prefer to recapitulate and group together, in order that their collective weight, as operating on my mind, may be appreciated.

1st. There exists no bond of blood or affinity between the beneficiaries under the will propounded and Mrs. Gaines, while she left direct descendants, who were the natural objects of her affection and who had done nothing to forfeit her bounty. It is difficult to conceive why she should divert from her grandchildren to these persons so large a share of her estate.

2d. The evidence leaves no doubt on my mind that the friendship which Mrs. Gaines had at one time felt for Mrs. Evans had suffered a great change during the latter years of her life. This appears from her letters and conversation, as well as from the greatly diminished intercourse between them. The change may have been wrought by the influence of others, but this does not negative its existence. Nor is it contradicted by the expressions of formal regard contained in contemporaneous letters to Mrs. Evans, written generally on business; and the nature of that business is itself a strong negation of the existence in the mind of Mrs. Gaines of any such benevolent sentiments towards Mrs. Evans as are evinced in the will. It related to hard and usurious bargains which Mrs. Gaines was then driving with Mrs. Evans under the convenient guise of a fictitious third person, repeating the trick of the usurer in Sheridan’s immortal comedy, pretending to get the money loaned from another lender who was “ an unconscionable dog.” Her whole conduct in the premises displayed an eager desire to get the better of Mrs. Evans — certainly not natural towards one whom she contemplated as her intended legatee of so large a share of her estate.

In this connection I attach no weight to the curious documents produced and foreshadowing this will, because these and the will must stand or fall together as parts of one whole, all of which or none are genuine.

3d. The wills of January 4 and 5, four days preceding the date of the will propounded, though invalid for defects of form, were undoubtedly the free and genuine expression of the testamentary wishes of Mrs. Gaines, and are absolutely inconsistent with the existence in her mind at that time of any wish to make a disposition in favor of Mrs. Evans or her mother. Nothing occurred to the knowledge of any one having access to her, before or after the making of that will, indicating dissatisfaction with their dispositions, at least so far as her grandchildren were concerned, or any desire or intention to change it then.

4th. It is certainly a significant circumstance that Mrs. Gaines had made a conveyance of the Fuentes property, which was bequeathed to Mrs. Perldns in the pretended will, to Wilder, which was extant and unrevoked; and though it may have been a simulated title, Mrs. Perkins might have been unable to establish the simulation, and it is strange that in making sueli a bequest she should not have alluded to the condition of the title, or left some clue for the legatee.

5th. The mode in which the will came into the possession of Mrs. Evans, according- to her own account, is mysterious and extraordinary. As she had had no access to Mrs. Gaines, the will must necessarily have reached her through some third person •, and the person named by her absolutely denies any connection with it and contradicts the whole statement of Mrs. Evans.

I have duly considered the commentaries upon the character of this person’s testimony and upon various significant circumstances which cast suspicion upon it. While they raise a doubt as to its entire truthfulness and a suspicion that she had had some connection with the paper and some kind of dealing with Mrs. Evans in relation to it, they do not convince me that she spoke falsely in denying that she ever received the paper from Mrs. Gaines.

At all events, the statement of Mrs. Evans as to the manner in which the paper came into her hands is entirely unsupported and is denied by the only witness who could have confirmed it.

6th. To cap the climax, the evidence places it beyond belief that Mrs. Gaines could have executed the will .propounded on January 8. That evidence is stated with great force in the majority opinion and need not be repeated.

Conceding it to be possible that Mrs. Gaines, by a tremendous exertion of will power, might have written the words “January 8th, 1885” on that day, in the firm and shapely characters presented in this paper, yet it is manifest that, in order to do so, she must have either had assistance, or, at least, that the paper, the pen and the ink should have been at her hand. The evidence leaves it doubtful whether she was ever, for a moment, alone on that day. It is conclusive that no one assisted her to write any part of the document, and that she did not so write in the presence of any of her attendants; and that the pen, ink and paper were not together at her hand in such manner that she could have used them unassisted. Unless some dark peijury lurks in the testimony of her attendants, it is humanly impossible that Mrs. Gaines executed that will or any part of it on the 8th of January, 1885.

Taking all the foregoing circumstances together, my mind is unable to resist the conviction that the document propounded is not the will of Myra Clark Gaines.

The evident sincerity of proponent’s counsel and the signal skill with which they have arranged the lights and shadows of their case, so as to throw its strong points into bold relief and to obscure its weaknesses, have at times in the course of my investigation engendered doubts and staggered the firmness of my conviction; but when I revert to the overwhelming array of circumstances above detailed they leave my mind in no doubt that the strength of proponents’ cause lies in the argument of counsel and not in the cold facts of the record.

I concur in the decree.

On Application por Rehearing.

Poché, J.

The main object of appellant is to induce us to modify our decree from a final judgment to one of non-suit only.

The principal reliance is od the uncertainty of human testimony, especially in matters of handwritings. Such an argument might apply to all convictions of the human mind, based on extraneous proof, and to all human judgments.

But the issue presented by the pleadings was the genuineness of the will propounded by Mrs. Evans, and having reached the conclusion that the will was not genuine, we can find no logical middle-ground on which to rest a judgment of ron-suit.

The evidence and the considerations which convinced us that the document propounded as the olographic will of Mrs. Gaines, was not genuine, in other words, that it was not in the hand-writing, either in the body or in the signature, of Mrs. Gaines, logically carries with them the conclusion that the pretended will was in the handwriting of some other person, or, in other words, that it was a forged document.

There is no perceptible difference between the two propositions ; the only distinction being that one proposition is couched in negative woi ds, and the other in affirmative terms. Hence our decree, if it had been restricted to the declaration that the will was not genuine, and that therefore it could not be probated, would not in substance have differed from the judgment which refuses the probate because the will is a forgery.

To have said less would not have been consistent with the conclusions forced on our minds by the record, and would not have done justice to the force of the evidence which it was our duty to examine and to consider.

Our solemn conviction is that, not only has Mrs.Evans failed to show that the will which she propounds is in the hand-writing of Mrs. Gaines; but that the opponents have succeeded in demonstrating that the document is not in the hand-writing of the deceased.

The legal deduction from that fact is that the instrument is a forgery it therefore became our duty to so declare and to adjudicate accordingly. There must be an end to litigation, and when the evidence is sufficient to justify a final judgment, courts would be derelict to their duty in refusing to give it all the legal effect it is entitled to.

But we are charged with error in simply affirming the judgment of the lower court, on the ground that the judge committed a palpable error in adjudicating that the confidential letter of August 23, 1884, is likewise a forgery.

Our attention had not been previously drawn to that feature of the judgment, and on close examination of the pleadings, we think that such an adjudication is not indispensable to the ends of justice and strictly speaking, perhaps not covered by the issue as narrowed down by the pleadings.

But we understand the reason which led the judge into that slight error; it was superinduced by the following language in appellant’s first petition. Referring to the will which was presented for probate, counsel said:

“That petitioner herewith presents said testament for probate; that she likewise produces another testament of decedent of anterior date,” and the prayer of the petition is for probate of “said last will and testament,” without reference to the dates of either of the wills.

The judge may' therefore have had reasons to suppose that the genuineness of both wills was at issue.

But on close examination we find that Mrs. Evans did not ask for probate "as a will of the confidential letter of August 23, 1884, and hence it is proper that it be not dealt with as a testament, or as an issue for adjudication.

What was said on the subject in our opinion is purely argumentative, and we had not then considered the fact that the district judge had treated the matter as an issue in the case. This is shown by our concluding language, which says: “Our solemn conviction is that the will propounded by Mrs. Evans is] not in the handwriting of Mrs. Gaines.” * * * Hence it is clear that our intention was not to declare any other document to be a forgery, in our decree. We therefore consider that those expressions in the judgment appealed from are mere surplusage.

But to remove all doubts on the subject, we shall amend the decree in that particular. But as the proposed amendment does not alter the practical result of the litigation as settled by the judgment appealed from, it is not of the nature of amendments which in law usually entail the costs of appeal on the appellee.

A second examination of the case has satisfied us that all the conclusions of law and on the evidence contained in our opinion are supported by the record, by sound reason and by authority.

It is therefore ordered that our former decree be amended so as to read as follows:

The judgment appealed from is therefore amended by striking out of it that portion which adjudicates that the confidential letter of August 23, 1884, purporting to have been made by the deceased, Myra Clark Gaines, as a last will and testament, be rejected as false, fraudulent and forged and not entitled to probate, and as thus amended said judgment be affirmed. Costs of appeal to be paid by appellant.

Rehearing refused.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 9540.
    Succession of Mrs. Laura E. Bright.
    A judicial sale made without an order of court, or in contravention of the terms of such an order where one exists, is an absolute nullity, and no resort to a direct order is necessary to have it declared.
    And even where the nullity is relative only, if asserted by reconventional demand in the answer, and all the parties in interest with respect to the sale are before the court, such nullity may be determined and decreed.
    A judgment or judicial order must be construed in connection with the averments and prayer of the petition therefor. And where the averments of a petition presented by the surviving partner of a community administering the succession of the deceased spouse, are to the effect that a sale of the community property is essential to pay the community debts, and the prayer of the petition is in conformity therewith, the order of sale rendered on such petition will be construed to require the sale of an immovable belonging to the community in its entirety and to confer no authority to sell only the undivided interest of the deceased therein j and a sale of such interest would be null.
    A PPEAL from tbe Civil District Court for tbe Parish of Orleans. Lazarus, J.

      M. L. JMwards and Geo. L. Bright for the Tutor, Appellant.

      JE. T. Merrick, Sr., A. U. Wilson and JE. T. Merrick, Jr., contra.

   The opinion of the Court was delivered by

Todd, J.

Louis J. Bright, as natural tutor of his minor children, issue of his marriage with Laura E. Merrick, his deceased wife, filed an account of his administration of the succession of said deceased, and in liquidation of the community that existed between them resulting from their marriage.

The account was opposed by the under tutor of the minors, and judgment was rendered sustaining the opposition in part; from which the tutor and accountant has appealed.

1. The sole complaint of the appellant before this Court relates to that part of the judgment appealed from, declaring the nullity of the sale of the community property, and rejecting the item representing the price at which it was adjudicated from the account.

This sale was made upon the application of the tutor. In this application he represented that, to pay the debts of the community, it was necessary to sell all the movable and immovable property belonging thereto, and described in the inventory, and the prayer of his petition was that the under tutor show cause why all the property movable and immovable of the community should not be sold.

Tiie order of sale granted on this j>etition was to the effect “that the movable and immovable property belonging to the succession of Laura E. Bright, be sold at public auction.”

Under this order the tutor caused to be sold one undivided half of certain community property — consisting of a lot and buildings in this city — described in the inventory of the succession, and appraised therein for $5000, which lie purchased himself for $1670. With this sum he credited the community in his account.

The opponent objected to this sale and asked that its nullity be declared on the ground that the sale of the undivided half of this property was illegal, and unwarranted by the order under which it purports to have been made.

This order must be determined as to its scope and effect in connection with the petition to obtain the sale and the prayer thereof; and when we consider that the petition alleged that a sale of the community property was necessary to pay the community debts and the prayer was for the sale of the community property, and that this property was placed on the inventory of the succession, the conclusion is irresistible that the true purport and meaning of the order was to direct and require that this property be sold in its entirety.

The sale was for the purpose of paying the debts of the community, and there is no authority for selling either the separate property of the deceased or her separate interest in the common property for that purpose. Besides it is manifest that a sale of an undivided interest in such property as the property in question could only result in its sacrifice.

Moreover the tutor by asking- that the entire property be sold for the purpose stated in his petition, gave his consent to the sale not only of the undivided interest of his deceased wife therein, but of his own half thereof; and in effecting the sale, he was entirely without warrant to depart from the plain intent and meaning of the order, as construed by his own acts and averments and the prayer of his petition. The sale, therefore, of the undivided interest was in contravention of the order and rendered the sale, a nullity.

2. But it is contended by the counsel for the tutor, that this nullity could not be propounded in an opposition to the account, and could only be asserted in a direct action. If, as we have stated above, there was no order or judgment that justified the sale, then the nullity was absolute, and such nullity could be declared, though pleaded in an answer or an opposition and without resorting to a direct action.

Moreover the opposition in question, by its very terms, was an answer and a reconventional demand; and as the purchase had been made by the accountant himself, and all the parties in interest were before the court, the nullity, even if not absolute, could have been properly declared under the demand in reconvention, and the special prayer therefor contained in the opposition.

3. Finally, it is urged with much earnestness that the record shows that the succession of Mrs. Bright is wholly insolvent, and the community is greatly indebted, and that the minor heirs of the deceased are without interest in this opposition, and that, even if the property in question were sold again and brought its full appraisement, they would not be in the least benefited thereby, since it would not pay the community debts.

This may be so, but if so, it does not authorize this Court to decline considering the legal questions presented by the record.

There was no motion to dismiss the opposition for want of interest in the opponents; no objection to evidence in support of the opposition. Moreover, the proceedings for a liquidation of the community, and for the sale of its property and the settlement of the tutor’s account were conducted contradictorily with the minors through their under tutor and were predicated on the existence of an interest in them in the succession and the property, the subject, the order and the sale, and were inaugurated by the tutor, and therefore we are compelled to determine the legal questions that have arisen in these proceedings, however this determination may affect the parties, or whether it affects them at all, and however much we may deplore useless and fruitless litigation, such as this is charged to be.

4. There is a motion made on the part of the appellee to amend the judgment, which we have attentively considered.

In the condition of the account as affected by the judgment, and in the absence therefrom of one of the most important items, representng the immovable property or the proceeds of its sale, it would be impracticable to make a complete or satisfactory adjustment of the accounts, and besides not being satisfied that the evidence in the record warrants the amendments or any of them asked for, we have deemed it best not to disturb the judgment appealed from, which, considering some of the reasons assigned for its rendition by the judge a quo, evidently contemplates another account after the sale of the property ordered thereby has been effected.

Judgment affirmed.

Rehearing refused.


author: Manning, J.

text:
    No. 9640.
    The State of Louisiana vs. Ben. E. Brabson.
    The State can. appeal in criminal cases after verdict rendered and judgment has been arrested.
    In an indictment for murder it is not essential that the name of the deceased should follow the word “murder.” If it be in another part of the sentence so that it certainly appears to be the object of thatverb, and there can be no doubt upon whom the crime is charged to have been committed, it is sufficient to answer the requirements of our statute.
    If the prisoner is fully informed by the indictment for the murder of what person he is accused, so that if he had been acquitted he could plead autrefois acquit to another indictment for the murder of the same person, the indictment is good.
    APPEAL from the Twenty-seventh District Court, Parish of West Carroll. Williams, J.

      M. J. Cunningham, Attorney General, for the State, Appellant

      3. P. Wells for Defendant and Appellee.
   The opinion of the Court was delivered by

Manning, J.

The defendant was indicted for murder, was convicted of manslaughter, and moved in arrest of judgment, which motion being sustained the State appealed.

The prisoner moves here to dismiss the appeal on two grounds:

1. That the State cannot appeal in criminal cases after verdict rendered.

We have recently held that the same reasons that entitle the State to an appeal when the indictment has been quashed and the prosecution has thus been prevented, apply when the prosecution has been successful and judgment thereon has been arrested. State v. Robinson, 37 Ann. '673.

2. “That there has been no final settlement of the case in the lower court, the accused being still held for trial for the same offence.”

The object of the appeal is to make final the trial already had.

The motion is denied.

The ground of the motion in arrest is, “it is not charged in the indictment that the accused did make an assault, nor is it charged that the accused did feloniously and of his malice aforethought kill and murder John F. Webb.”

The indictment charges that the prisoner “ with force and' arms in and upon the body of one John F. Webb, a person in the peace of the State, then and there being feloniously, willfully, and of his malice aforethought did kill and murder contrary, etc.”

The objection appears to be that the name of Webb is not repeated after the word “murder.”

By our statutes nothing more is required in an indictment for murder but to charge that the accused did feloniously, willfully and of his malice aforethought, kill and murder the deceased. Rev. Stats., sec. 1048. It is not sacramental that the name of the deceased shall follow the word “murder.” If it be in another part of the sentence, so that it certainly appears to be the object of that verb, and there can be no doubt upon whom the crime is charged to have been committed, it is sufficient to answer the requirements of the statute. Wharton Cr. PI. and Pr. § 760.

The prisoner is fully informed by this indictment for the murder of what person he is charged, and if he had been acquitted could have pleaded autrefois acquit to another indictment for the murder of the same man. State v. Frances, 36 Ann. 336; State v. Simien, Ibid, 923.

The motion in arrest was improperly sustained and the case must be reffianded for sentence to be passed upon the prisoner for the crime of which he has been convicted.

It is therefore ordered and decreed that the ruling of the lower court sustaining the motion in arrest of judgment is avoided and reversed, and the case is remanded with directions to the judge below to pass sentence upon the prisoner according to law.


author: Fenner, J.

text:
    No. 9656.
    Mrs. Julia Trezevant and Husband vs. H. B. Holmes, Sheriff et al.
    A wife enjoining the seizure and sale of movables seized under executory process against her husband as part of the mortgaged property, on the double ground that they belong to her and were not covered by the mortgage, because not attached to the mortgaged property, has no interest in the last question, because, if they do not belong to her, it is not her concern whether they were covered by the mortgage and were properly seized or not; and if they do belong to her, it is of no consequence whether they were attached to the property or not. The question of title is the only material issue.
    Although we have held that the agency of the husband is not incompatible with the wife’s separate administration, yet such agency must be clear and certain, and the administration must be distinctly conducted in her name and for her account.
    Under the circumstances of this case, where the husband conducted, as one plantation, throe adjoining places, one belonging to his wife and the others to himself, carried on the whole business in his own name, shipped the crops, obtained advances and supplies, and received credits on his own account, such administration is that of the husband and the fruits belong to the community.
    Movables on such places, destined to the use of the whole property, purchased during the existence of the community and found in the husband’s possession, are presumed to belong to the community.
    These presumptions can only be rebutted by clear evidence establishing that they were purchased by the wife with paraphernal funds under her separate administration and control.
    The evidence in this case fails to establish the wife’s title, and as she has no authority to vindicate rights appertaining to the community, her claim is rejected.
    A PPEAL from tlie Eighth District Court, Parish of Madison. 1A. Delomj, J.

      A. L. Slade and B. 0. Montgomery for Plaintiff and Appellee.

      Stone & Murphy and W. S. Benedict for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

At the date of her marriage with Geo. T. Trezevant in 1871, Mrs. Julia Trezevant held, under an agreement of purchase afterwards perfected, a plantation in Madison parish. Subsequently her husband bought two tracts of lands, adjoining the wife’s property, one on each side. From the date of said purchases, the three tracts were embodied and administered as one plantation under the control of the husband.

Since 1880, the commercial firm of Nugent & Lallande and, after its dissolution, John B. Lallande, had been the factors of the entire plantation, the business being conducted exclusively with the husband, in whoso sole name the accounts were kept, upon whose credit the supplies and advances were furnished, who shipped all the crops in his own name and received credit for all proceeds of sale.

The planting operation resulted disastrously and, in 1884, being indebted to Lallande in the sum of $8700, Geo. T. Trezevant executed in his favor an act of mortgage upon the tracts of land belonging to himself.

In December, 1884, Lallande took out executory process under which the sheriff seized the mortgaged property and also twenty mules and one wagon claimed to be attached thereto.

Thereupon Mrs. Trezevant instituted the present injunction proceeding enjoining the sale of the mules and wagon on the ground that they are her separate paraphernal property and were not attached to the mortgaged property or covered by the mortgage, and praying for judgment perpetuating the injunction, decreeing her to be- the owner of said mules and 'wagon, and awarding her damages against Lallande and the sheriff.

An attempt is made to raise a double issue, viz: 1st. That she is the owner; 2d. That, even if the husband was owner, yet the seizure was wrongful, because the mules and wagon were not attached to the mortgaged property.

The last question is irrelevant. If Mrs. Trezevant is the owner, it matters not whether they were attached to the property or not. If she is not the owner, they belong to the husband or to the community, and she has no authority to vindicate rights appertaining to either.

We have, therefore, nothing to decide but the question of title.

We have read and weighed the whole evidence with great care, and we are satisfied the wife’s claim of title is not sustained.

The pretension that the wife retained the administration of her plantation and conducted the same through her husband, merely as her agent, is at variance with the law and with all the facts. It is true we have held that such agency is not incompatible with the wife’s separate administration; but we were careful to emphasize the circumstances which should characterize such administration. Thus we said: “Mrs. Jackson administered the plantation in her own name, her husband acting as her agent by virtue of procurations which she was always careful to prepare and to deposit with her merchants, who are shown to have recognized her authority as principal in all transactions. The accounts with her successive merchants were always kept in her name; she was credited with all its revenues and charged with all its expenses. Her husband, who conducted other plantations for his own account, kept his own accounts with the same merchants entirely separate from the wife’s plantation accounts.” And we said: “ So long as the acts of the spouses make it clear and certain that the wife intends to reserve the administration to herself and the husband does not assume to interfere in the administration except as the express and open agent of the wife, wo can see nothing to prevent the administration as being that of tire wife, 'separately and alone’ in the sense of the law.” Miller vs. Handy, 33 Ann, 160.

With regard to the facts of this case, it suffices to say that they ar'e marked by a conspicuous absence of every feature above indicated, and that to permit the wife to claim the benefit of separate administration under such circumstances would be to nullify the law and to enable the spouses to assign the fruits to the wife or to the community in their own option as their convenience might require. Hence, we are bound to hold that the plantation was under the administration of the husband and that the fruits thereof fell into the community.

Thus, every presumption of law is against the wife’s ownershij). The mules and wagon were purchased during the existence of the community, and the presumption is that they were community property.

They were in possession of the husband, who possessed and administered the plantation, and this gives rise to another presumption of community ownership. Bostwick vs. Gasquet, 11 La. 537.

They were destined to the use of the three plantations as a whole; but even were they considered as attached to the wife’s plantation, (which we do not decide) that would not convert them into immovables by destination as part thereof, if they belonged to the community and were placed thereon by it. Hall vs. Wyche, 31 Ann. 734.

Tt does not clearly appear that the wife had paraphernal funds, or any funds not derived from the revenues of this plantation which belonged to the community.

So far as the origin of the price paid for the property is concerned is clearly traced, it is shown to have been paid by the husband out of funds under his own control, and most of it by drafts upon Lallande, which form part of the indebtedness for which the mortgage was taken.

The property was assessed as that of Trezevaht and wife.

The husband represented to Lallande that he owned all the mules and movables on the places.

The mules were all branded with his initials.

The confused and contradictory evidence of the wife is totally insufficient to overcome all these powerful presumptions; and, indeed, upon the face of her own statements, taken as a whole, we should conclude that her claim of title was not sustained.

Ifc is, therefore, ordered, adjudged and decreed that the judgment appealed from'be annulled, avoided and reversed; and it is now ordered, adjudged and decreed that there be judgment rejecting plaintiff’s demand and dissolving the injunction issued herein, reserving to defendant, John B. Lallande, his rights against the principal and surety on the injunction bond — plaintiff to pay costs in both costs.


author: Pooeé, J.

text:
    No. 9659.
    Police Jury of East Baton Rouge vs. Wm. Hubbs, Clerk, etc.
    The Supreme Court has no jurisdiction ovéi* suit by mandamus to compel the clerk of a district court to give access to an employe of the police jury in his office for the purpose of transcribing mutilated archives, when the petition contains no moneyed demand, and the record fails to disclose any pecuniary interest exceeding $2000 in any of the parties to the suit. ,
    PPEAL from the Seventeenth District Court for the Parish of East Baton Rouge. Burgess, J.

      Beale & Buehner for Plaintiff and Appellant.

      Bobertson & Bussell for Defendant and Appellee.
   Motion to Dismiss.

The opinion of the Court was delivered by

Pooeé, J.

This is a proceeding by mandamus to compel the defendant to giveaccess.to his office and its archives, to a person authorized- by contract with the police jury to transcribe portions of the archives which are mutilated.

The only jurisdictional allegation in plaintiff’s petition is that plaintiffs have an interest in the suit exceeding one hundred dollars; this may have been sufficient to give jurisdiction to the district court, but evi dently not sufficient to vest jurisdiction in this tribunal.

We find nothing in the record sufficient even to justify a strained supposition of jurisdiction over the case in this Court, and we are at a loss to conceive by what process of reasoning appellants may have been led to bring their appeal to this tribunal.

The question is entirely covered by the decision in the case of State ex rel. Police Jury of Livingston parish vs. F. W. Miscar, Sheriff et al. 34 Ann. 834, in which we refused to entertain an appeal in a case'involving the right of the police jury to compel the sheriff and the clerk of that parish to remove the archives of their respective offices from one place to another.

But it is useless to argue on a self-evident proposition.

The motion to dismiss based on our want of jurisdiction ratione material, is eminently proper, and it must be sustained.

It is, therefore, ordered, that this appeal be dismissed at appellant’s costs.


text:
    No. 9484.
    Thos. Hutchinson, Tutor, vs. Mrs. Ann Jamison et als.
    One who claims property hy inheritance from his mother and at her do-ith goes into possession of the same under an honest belief that he is the sole heir, a belief founded on the fact of his brother — the only other child o£ his mother — having joined the army in the war between the States, and not being heard from thereafter np to the death of the mother, an interval of many years, is a possessor in good faith. As such possessor, he can only he made liable for rents from judicial demand, it evicted, and the party evicting must pay him for improvements, to extent of the price of the materials and the workmanship, or the enhanced value of the soil, and if the latter is not proved, the measure of reimbursement must he controlled hy proof of the former.
    A PPEAL from the Civil District Court for the Parish of Orleans. r\ Lazarus, J.

      W. S. Benedict and J. Timony for Plaintiff and Appellant.

      T. J. Bemmes & Bayne for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff, as tutor of his two minor children, owners of .13-96 of certain city property known as No. 200 Camp street, and 1-16 of other property known as No. 198 Camp street, of this city, seeks to effect a partition of the same by this suit, and also to recover their share of the revenues of the last mentioned property from the 1st of January, 1865.

The defendant, Mrs. Jamison, in her answer, asserts ownership of the entire property by inheritance and prescription; resists the demand for rent in any event, and reconvenes for the value of the improvements made by her on the property, 198 Camp street, as a possessor in good faith, should plaintiff’s alleged interest in the property be recognized and its partition ordered.

The other defendants, the Blakeleys, answer by general denial, but otherwise make no defense.

There was judgment recognizing plaintiff’s interest in the property as claimed, ordering its partition, decreeing the payment of rent from judicial demand only, overruling the pleas of prescription, and allowing to the defendant, Mrs. Jamison, the value of her improvements on property 198 Camp street.

From this judgment the plaintiff has appealed. The defendant and appellee, Mrs. Jamison, acquiesces in the judgment as rendered, save as relates to the value of the improvements, which she seeks to increase by a motion to amend.

The only points of contention left for our determination relate solely to the matter of rent and the value of the improvements — -all other issues being eliminated under the pleadings.

For a clear understanding of this controversy, it would be well to state that the minors-plaintiffs and the defendants are all the descendants of one Thomas Stackhouse, who died in 1843. He was twice married. The issue of his first marriage were two children, Margaret and Reynolds, and of his second marriage, three children. Of the latter, one died in infancy, leaving Ann (Mrs. Jamison) and Thomas Stack-house, Jr., as the only issue of the second marriage.

Margaret, daughter of the first marriage, became the wife of John A. Turn ell, and died leaving two (laughters. One of these daughters married Thos. Hutchinson, and died subsequently. The issue of that marriage are the two minors, plaintiffs herein, represented by their father and tutor. The other daughter of Mrs. Tnrnell married one Blakeley, of which marriage the Blakeleys, co-defendants herein, are the issue.

The property, 200 Camp street, belonged to Thomas Stackhouse, Sr., at his death.

The property, 198 Camp street, was purchased by Rebecca Johnson, his surviving widow, after his death.

Mrs. Jamison, defendant, went into possession of this property at the death of her mother in 1864, claiming to be her sole heir.

After the death of Thomas Stackhouse, Sr., there was a settlement among his heirs, in which the entire property of his estate, which included 200 Camp street, purported to have been conveyed to hL surviving widow, the mother of Mrs. Jamison. This property, Mrs. Jamison, on the death of her mother, claimed to inherit as her only heir.

All these facts are fully set forth in the case of Jamison vs. Smith, decided by this Court and reported in 35 Ann. p. 609, but are again recited for the elucidation of the present case.

In that case the title of the minors Hutchinson, the plaintiffs herein, to an interest in the property above mentioned as 200 Camp street, and sought to be partitioned in the present suit, was finally adjudicated. We held that Mrs. Jamison was not the sole owner of this property (200 Camp street) as she claimed to be, by virtue of the conveyance to her mother, Widow Stackhouse, in the settlement of 1849, and her (Mrs. Jamison’s) inheritance from her mother, but that the said settlement was void as to the descendants of Margaret Stackhouse (Mrs. Turnell),for the reason that John A. Turnell, as tutor of his minor children, issue of his marriage with Margaret Stackhouse, was without authority to convey the interest of said minors in the property. Hence, that the title of the heirs of Margaret Stackhouse and of their descendants — among whom are the plaintiffs — was not divested by said settlement.

Neither did Mrs. Jamison inherit-from her mother the entire property known as 198 Camp street, for we held in the same case that-Thomas Stackhouse, Jr., her german brother, survived his mother; and he, therefore, inherited jointly with Mrs. Jamison this property, and at his death his interest in the same passed in part to the descendants of Margaret Stackhouse (Mrs. Turnell) his half sister.

This brings us at once to the question of the rents of this property, 198 Camp street, as claimed in the present suit — no claim being made by the plaintiffs to the rents of other property, No. 200 Camp street. This question of rent is dependent on the fact whether Mrs. Jamison was,a possessor in good or bad faith. If in good faith, rent can only run from judicial demand. If in bad faith, from the death of Thomas Stackhouse, Jr., -which is presumed to have occurred in 1865.

Mrs. Jamison went into possession of this property on the death of her mother in 1864. She claimed to be the owner of it by inheritance. She was an heir of the deceased and assumed, at the time, to be the sole licir. There were good reasons to induce an honest belief on her part that she was the only heir of her mother.

Her brother, Thomas Stackhouse, Jr., had been absent several years, had joined the army during the late war between the States, and had not been heard from for some time previous to his mother’s death. There were just grounds for the conclusion that he had died before his mother, in which case Mrs. Jamison would in truth have been the sole heir.

In point of fact, Thomas Stackhouse, Jr., never returned to his home and has never been heard of since. This Court held in the case of Jamison vs. Smith, above referred to, that from these circumstances there.was a legal presumption that Stackhouse, Jr., was dead, but that this presumption did not extend so far as to support the conclusion that he died before his mother; and thus holding, the Court decided that Stackhouse survived his mother and inherited jointly with Mrs. Jamison her property. Plaintiffs, therefore, as the descendants of his half sister, Margaret Turnell, became vested at his death with an undivided interest in his estate with Mrs. Jamison.

This conclusion of the Court does not, however, place Mrs. Jamison in the attitude of a possessor in bad faith. As said before, there were sufficient reasons for an honest belief on her part that she was the sole owner of the property.

“Article 3451 declares that “the possessor in good faith is he who has just reason to believe himself the master of the thing which he possesses, although he may not be in fact.”

Another article defines the possessor in good faith as one “who possesses as owner by virtue of an act sufficient in terms to transfer property, the defects of which he was ignorant.” C. C. 503.

This article is a reproduction of Article 550 of the Napoleon Code, and a text writer commenting on this article (550) says :

“Le titre translaiif de propriété s’entend d/u titre héréditaire comme de tout autre titre.” 6 Laurent, No. 208, Journal du Palais, 1848, p. 218.

And further: “Peu importe d'ailleurs que le titre dont seprévaut le possesseur soit nul et que eelui-ei ait pu facilement reconnaitre eette rmllité, si enfaitil Va ignor'ée.” Journal du Palais, 1863, p. 133.

We have no doubt that under these authorities Mrs. Jamison was a possessor in good faith, and was properly condemned to pay rent only from judicial demand.

As such possessor, Mrs. Jamison claimed- and was allowed reimbursement for the improvements placed by her on this property to the extent proportioned to the interests of the plaintiffs therein, under Articles 508 and 3452 of the Civil Code.

This latter article substantially provides that the person evicted, if a possessor in good faith, must be reimbursed the value of the materials and the price of workmanship, or a sum equal to the enhanced value of the soil.

In the judgment of the lower court, the former, that is the value of the materials and the price of workmanship were allowed, as estimated by the judge a quo.

Of this the plaintiff complains, claiming that he had the option of paying the enhanced value of the soil resulting from the improvement.

This is true, but we have closely examined the evidence on this point and we do not find it sufficient to give anything like a clear idea touching the enhanced value of the property. In fact, only one witness testifies on this point, the one who did the brickwork in. remodeling the old house, and he deposes only as to the value of his work and not to the comparative value of the entire building, before and after its reconstruction.

The value of the materials and workmanship was shown by a detailed bill, purporting to contain the charges and items of expenditure, made contemporaneously with the progress of the work. The lower court based its judgment on this point on the evidence afforded by this bill, and it was impossible to reach a satisfactory or reasonable conclusion with respect to the reimbursement in any other way.

The defendant and appellee, through a motion to amend, seeks to increase the judgment in her favor by a further allowance for improvements made subsequently to the rebuilding of the house.

We are not disposed to disturb the judgment in this particular. We think the amount allowed for improvements was liberal enough. Besides, there is some evidence m the record that detracts to some extent from the weight of that afforded by the bill of expenses referred to. The charges therein for workmanship does not altogether comport with the oral testimony of the persons called as witnesses, by whom some of the work was done; and we think that substantial justice has been done without allowing anything for these subsequent improvements as claimed.

For these reasons the judgment of the lower court is affirmed, with costs.

Rehearing refused.


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    No. 9623.
    L. A. Crozier vs. W. H. Ragan.
    The conveyance of property in the forra of a sale does not vest the ownership in the apparent buyer if the deed was really intended by both parties to be a mortgage.
    The answers of one of the parties to interrogatories on facts and articles propounded by the other, are equivalent to a counter-letter and have the same force and effect. They are unquestionably admissible in evidence.
    APPEAL from the Nineteenth District Court, Parish of Terrebonne. Goode, J.

      John B. Winder, L. F. Southon and T. Gibson for Plaintiff and Appellee.

      John S. Billiu for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

On December 4, 1882, the plaintiff conveyed to the defendant certain property in the parishes of Lafourche and Terrebonne. The conveyance was in the form of a sale, the consideration being $9050, but the plaintiff alleges that it was really a mortgage, or as he called it in his petition, a pledge, and the object of his suit is to have it so adjudged. The prayer is “that the plaintiff be declared the owner of the property alleged to have been sold, that the act of sale of December 4, 1882, be declared not a sale but a mere pledge, and that he be quieted in the possession and ownership of the property.”

Crozier remained in possession after the sale, managed it as he had done before, and exercised the same rights of proprietor after as before the sale. The plantation was run at his risk. The losses of its cultivation fell on him. He owed Ragan about six thousand dollars at the time of the conveyance. How much he owes now is not definitely shewn. Ragan says it is $20,000.

Interrogatories on facts and articles were propounded to Ragan and in one of his answers he says: “The sale was made to secure me for the then existing debt and such future advances as I might make him.” To another of the interrogatories he answered: “I may have declared to Oscar Crozier, agent of L. A. Crozier, that I held the title as security for such outlays and the original indebtedness and may have written him to that effect.”

It is manifest that the conveyance was intended and understood by both parties to be a security for an existing and an anticipated indebtedness. The use of a form of sale to accomplish that object has not been infrequent, and in Parmer v. Mangham, 31 Ann. 348, where a number of decisions on such cases are grouped, it was held that such conveyance does not vest the ownership of the property in the creditor.

Strenuous opposition was made to the reception of any testimony other than a counter-letter to contradict or vary the act of sale. There was no counter-letter, but the answers of the defendant to the interrogatories on facts and articles have all the effect of a counter-letter. They are the contradiction of one of the parties to the act of sale of the recitals therein made and the confirmation by him of the truth of the allegations of the other party as to the real nature and character of the act, and are as much admissible in evidence as a counter-letter. Newman v. Shelly, 36 Ann. 100.

The judgment below was for the plaintiff. We understand that judgment to be in accordance with the prayer of the petition, merely declaratory of the real nature of the conveyance. It does not accord the plaintiff the ownership of the property freed of the debt he owes the defendant, if he does owe anything now. It merely declares that the conveyance was not a sale, but was a mortgage or pledge, and therefore if any part of the mortgage debt exists, the act secures its payment. And with this understanding and construction of the judgment,

It is affirmed.


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    No. 9606.
    Morley H. Wallis vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    A servant who assumes tlie discharge of duties, the nature and mode of performance of which are fully known to him, voluntarily subjects himself to risks necessarily incident thereto, and unless such risks were increased by some other fault or negligence of the master, injury resulting therefrom will not be the subject of reparation by the master.
    In the operation of coupling trains the relation between engineer and brakeman is that of fellow-servants and subject to the rule that the master is not liable for injury occasioned to one servant by the fault of another servant, in absence of proof of fault in the master in the employment or retention of the latter.
    In this case the evidence fails to establish any fault or negligence for which defendant is responsible but shows that the injury resulted from the mischievous act of an unknown third person, for whose act the defendant was not responsible.
    APPEAL from the Nineteenth District Court, Parish of Terrebonne. Goode, J.

      L. F. Suthon for Plaintiff and Appellee:
    1. In actions of damage for trespass, tbe Morgan’s Louisiana and Texas Railroad Company is amenablo to the jurisdiction of the Court where the trespass occurs. Act No. 37, Session Acts of 1877, page 37, section No. Í2; 33 Ann. p. 955; 36 Ann. 186.
    2. Where an employe is injured by a railway accident, and the act that caused the damage could have been prevented by the railroad company, it is liable for damages under positive provisions of the Civil Code. R. C. C., art. 176, 2320.
    3. The conductor of a train, who has control of its movements and of the employes of the train, is the representative of the company and not an ordinary employe. Decision of S. C. of IT. S. in Chicago, M. & St. P. R’y. Co. vs. Ross, reported in American Law Reg., February 1885; also in Chicago, L. N. <fc Albany L. J., 1885.
    4. In the assessment of damages the verdict of the jury is entitled to great respect.

      Leovy <& Leovy for Defendant and Apx>ellant.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff claims damages for injury suffered by him incurred in the process of coupling cars while he was acting in the capacity of brakeman on defendant’s road.

The issues will he much simplified by quoting that portion of plaintiff’s petition relating to the accident, its causes, and the grounds on which defendant’s liability is charged.

After reciting his employment as brakeman on that portion of defendant’s road known as the u Houma Branch,” the petition proceeds: that the train runs over said road four times a day; * * that the main business of said branch road in tiie winter season is the transportation of sugar and molasses, which is loaded in cars left at the different plantations on the route, the empty cars being brought down from Terrebonne station by the last train for the day from said station and distributed on the route; that said, empty cars are left in charge of the planters and laborers on plantations who load them over night, and they are taken up the next morning by the first train from Houma which conveys them as far as Terrebonne station, where they are transferí ed to the main line of said company.

That, at most of the plantations on the Houma branch, switches or side-tracks have been constructed, on which to leave the cars for the purpose of being loaded, but that at some of the plantations, there are no side-tracks and notably at what is known as the Isle de Cuba plantation, about two miles from Terrebonne station; that at said plantation the empty cars when needed are left in the evening by the train from Terrebonne station on the main line'of said branch road and are taken up, when loaded, in the morning and coupled on atiead of the engine and are thus pushed up to Terrebonne station ahead of the train, a distance of about two miles.

Petitioner alleges that it was his duty as brakeman to stand on the flange of the cow-catcher of the engine and couple the cars to the engine; that on the morning of the 30th of November, 1883, at the Isle de Cuba plantation, there was a car loaded with sugar to be coupled ahead of the engine, and your petitioner was at the post of duty to make the coupling; that said car had its brakes off, they having been taken off during the night of November by some person unknown to petitioner, and said car was only held in position by a large stick of wood back of its wheels across- the track; that, as the train approached the car, one of the laborers on the plantation removed the stick of wood, and the said car began moving down the track towards the train, there being a grade or incline at that point; that the train moved on towards the advancing car, the result being that, though petitioner stood at his post in the prudent discharge of his duty and made the coupling, the iron bar snapped in two like a brittle stick from the weight of the two meeting bodies, a collision took place and your petitioner was caught between the loaded car and the engine, and was injured as fully described in the petition. It then further proceeds: “Now your petitioner charges that the injuries received by him as aforesaid, are directly attributable and due to the fault and negligence of the defendant company: First, because they failed or neglected to construct a proper switch or side-track at said Isle de Cuba plantation on which to place the cars left to be loaded; and secondly, because it was gross and repeated negligence on the part of said company to leave cars on their main line in the hands of planters and ignorant plantation laborers, who know nothing about handling cars and especially so at a point where there is a grade or incline in the track as at the Isle de Cuba plantation'as aforesaid.

Your petitioner further alleges that the injuries received by him as aforesaid were due, in addition to "the causes above alleged, to the negligence, unskilfulness and unfitness of the engineer in the employ of said company and in charge of the engine at time of said accident; that said engineer, George Williams by name, is habitually careless and unskilful, and by reason of his defective vision and nervousness is altogether unfit for the duties imposed on him by his position. That the unfitness of said Williams as an engineer, was well known to the defendant company prior to the accident aforesaid or could have been found out by said company by the use of due care, so manifest was his said unfitness, and said company is responsible for all damages resulting from his incompetency. That, at the time of said accident, though he was signalled to reverse his engine in time to prevent the accident, he did not do so until it was too late to prevent the collision and nearly kill your petitioner.

Petitioner alleges that, for,the causes above set forth, the defendant company is justly liable to him in the sum of $25,000 damages for the excruciating pains inflicted upon him, etc.

From a verdict and judgment for $12,500 in favor of plaintiff, this appeal is taken.

The foregoing extensive extracts from the well-drawn petition in this case should serve to abbreviate, rather than to lengthen, our opinion, since it places the whole case of plaintiff in full view.

It will be observed that the grounds of fault or negligence on which the alleged liability of defendant is based are distinctly set forth and are as follows:

1st. Failure to construct a switch or side-track at the Isle de Cuba plantation on which to place cars left there to be loaded.

We fail to perceive any fault in this. The “ Houma Branch ” was a short road built for local accommodation with a single track, on which only one train ran which passed back and forth.

The only difference between leaving cars to be loaded on a switch and leaving them on the main track, was that, in the former case, they could be coupled to the rear of the train while, in the latter, they were coupled to the engine in front and pushed to. their destination.

The latter mode of coupling and moving cars for short distances is shown to be frequent and common on railroads, when circumstances require it, and the proof establishes that, so far as the mere operation of coupling is concerned, which is the only matter here involved, it is rather less, than more, dangerous than the ordinary mode of coupling in the rear.

Moreover, the petition specifically alleges that such was defendant’s customary mode of operation at this particular plantation, and defines his own habitual duties in connection therewith. Having assumed and continued in the discharge of said duties, with full knowledge of their nature, he voluntarily subjected himself to the risk necessarily incident thereto, and unless that risk was increased by some other fault or negligence of the master, the law will not allow him to hold the latter responsible therefor. Satterlee vs. Morgan Co. 35 Ann. 1166; Rover on Railroads, p. 1198; Pierce on Railroads, p. 379, 380; Wood on Master and Servant, p. 698, and numerous authorities cited in above treatises.

2d. The next fault charged consists in leaving cars on their main line, to be loaded, in the hands of planters and laborers, especially at a point where there is an incline in the track as at Isle de Cuba plantation. But the petition had already alleged that such was defendant’s habitual mode of conducting its business at sundry plantations and especially at this particular one, to plaintiff’s full knowledge, and the principle and authorities just cited apply equally here.

Nor do we perceive the existence on any fault or negligence in the above conduct. A car on a railroad track with no engine attached is not like a wild and dangerous animal, but is ordinarily as innocent and incapable of harm as any inanimate object. Nor was there anything in the incline, about which so much is said, to suggest the necessity of any particular care. The incline was only 156 feet in length; the fall in that distance was but six or eight inches; and a heavily loaded car started down it, if its running gear were in the best possible condition, would only attain at the bottom a maximum speed of three and one-half miles per hour, not greater than that of a man walking rapidly.

The existence of such inclines is not ordinarily attended with dan- . ger, and they are so common and often necessary in railroad construction that this cannot be attributed to the company as negligence per se or as a fault in the construction of the road.

The leaving of a -car, with brakes down, on such an incline, was, under all ordinary - circumstances, perfectly safe and no reasonable prudence or foresight could have anticipated any injury likely to result therefrom.

We must therefore acquit defendant of any negligence on this score.

3d. It is next charged that the injury was caused by the habitual carelessness and unskillfulness of the engineer and by his unfitness resulting from defective vision and nervousness, all of which defects were known to the defendant or, with the use of due care, should have been known.

The evidence wholly fails to sustain this charge. On the contrary it establishes, for the engineer, the highest reputation, earned by long service, for skill, competency, carefullness and firmness in the discharge of the duties of his profession. It is true he was affected to a slight extent, with strabismus, commonly known as squint-eye, but the medical testimony shows that it did not exist in a degree to interfere appreciably with his power of sight, and it is otherwise proved that he possessed normal acuteness, correctness and range of vision.

4th. It is finally urged that the accident resulted from the negligence of the engineer who, though signalled to reverse Ms engine, in time to prevent the accident, did not do so until it was too late.”

If this were true, it would not avail plaintiff. We had occasion very recently to say: “in the particular operation of coupling trains, dorxbtless the relation between engineer and brakeman have all the features of fellow-service, and if the engineer’s negligence were the sole cause of the injury, the overwhelming weight of authority would exempt the company from liability.” Towns vs. R. R. Co. 37 Ann. 632. The general principle that the master is not liable for injury occasioned to a servant by the negligence of a fellow-servant, in absence of proof or fault or negligence in the employment or retention of the latter, may now be considered as firmly settled in Louisiana. Hubgh vs. Carrollton, 6 Ann. 495; Satterlee vs. Morgan, 35 Ann. 1166; Poirier vs. Carroll, id. 699; Towns vs. R. R. Co., 37 Ann. 632.

We must add, however, that the charge of negligence against the engineer is not sustained by the proof. The allegation that he failed to reverse his engine when signalled, is contradicted by plaintiff’s own evidence, which admits that he reversed as soon as plaintiff signalled him to do so, but says it was then too late and that it should have been done sooner. Why plaintiff did not signal sooner is not explained. But the engineer’s testimony shows that he han reversed the engine before any signal was given and as soon, as the danger - was apparent, but the distance was so short that the only effect was to bring the train to a standstill, without causing it to retire from the approacMng ear. The result was that what is called the “ slack” was taken out of the train, all the cars being jammed together, and thus opposed as a solid deadweight, which increased the violence of the collison and caused the breaking of the coupling bar, which is shown to have been, in every respect, of proper size and quality.

We believe the engineer did everything that was possible under the circumstances.

The true cause of the accident was that, as the train was moving np prudently and properly to make the coupling with the stationary car, some person unknown removed the stick of wood which chocked the wheels of the latter, which started it down the incline at a time when it was too late for the train to avoid the collision. The identity of this person is not established. One witness says it was a white, another that it was a colored, man. He may have been ,a mere mischief-maker. At all events, there is no pretence that he was an employee of the company, or that the latter is in any way responsible for his wanton act.

We feel great sympathy with plaintiff because he was injured in the discharge of his duty, and especially on account of the courage with which he kept his post in the presence of impending danger. The suggestion that this was to he imputed to him as contributory negligence would find no favor at our hands.

But we are hound to hold that this record establishes no fault on the part of the defendant company which obliges it to repair the damage which plaintiff has suffered. We will not say that different principles might not have applied had the'person injured been a passenger.

It is therefore ordered, adjudged and decreed that the judgment appealed from he annulled, avoided and reversed, and it is now decreed that there ho judgment in favor of defendant rejecting plaintiff’s demand at the latter’s cost in both courts.

Rehearing refused.