text:
    No. 12,698.
    Wm. E. Hawks vs. Wm. A. Bright.
    Syllabus.
    Defendant, vendor oí stock, bound himself personally to pay ten per cent, per annum for ten years on the amount of the stock transferred, if the company, issuing the stock, did not pay it in dividends.
    Defendant reserved the right, as vendor, of purchasing back the stock (at the price settled upon when the sale was made) at the end of ten years.
    'The company having stopped operations and never having declared any dividends, plaintiff sued to compel defendant to pay the instalments or dividends for ten years, on the ground that by going out of business the company caused defendant’s obligation to mature. The court holds that one instalment is due as claimed, but that the other instalments are not ex-igible, the time stipulated not having elapsed; that the defendant was the principal obligor under the terms of the contract of sale and the time granted him to pay the ten per cent, was not recalled by the failure of the company, which was not, in matter of the sale, treated as principal obligor. The principal obligor continues to enjoy the time during the term agreed upon.
    'The evidence does not sustain the charge that the defendant wrecked the company by which the stock was issued and that he thereby concluded himself from claiming the fines stipulated for payment.
    Defendant's liability grows out of the poor management of the company; against that plaintiff sought to protect himself by requiring defendant’s obligation.
    ■On this branch of the case defendant’s liability is fixed by requiring him to pay the loss of dividends. lie did not attempt to wreck or damage the company. with the view of injury to plaintiff. The court did not find that the terms of the contract had been forfeited.
    The absolute want of all organization of the company, owing the shares, and defendant's representations in that respect, are not issues before the court, under the pleadings.
    "With reference to the claim on reconventional demand for damages to defendant, glowing out of allegations to his detriment in the case here, to sustain his plea, it devolved upon defendant to prove malice and the want of probable cause. In this attempt he did not succeed.
    ON appeal from the Fifth Judicial District Court for the parish of Ouachita. Stubbs, judge ad hoc.

      Hudson. Potts & Bernstein, for Plaintiff, Appellant.

      E. T. Lamhin, for Defendant, Appellee.

      Argued and submitted May 30, 1898.
    Opinion handed down June 13, 1898.
    Rehearing refused January 9, 1899.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff and appellant sued on a contract of guaranty. On appeal he urged that an error was committed to his prejudice in. not having pronounced judgment in his favor for the whole of the-amount of his claim, instead of one-tenth of the amount of his claim.

The defendant and appellee controverted plaintiff’s demand and in his answer here asked for an amendment of the judgment by rejecting the whole of plaintiff’s demand, and prayed for judgment on his reconven tional demand for. the sum of fifteen thousand dollars.

From the averments of plaintiff’s petition and the evidence, we gather that in March, 1893, defendant, alleged president of the Right ♦Lumber Company, made application to plaintiff and urged him to buy a part of the stock of the corporation and in order to effect the sale, assured him that the stock was worth a larger amount than that at which it was offered for sale. Tie gave as a reason for desiring to sell, the purpose to enlarge the plant and extend its business.

Plaintiff declined to buy unless the defendant consented to guarantee an annual dividend of, at least, ten per cent. In order to effect the sale, the defendant gave a written guarantee to plaintiff that the certificates transferred “shall receive an annual dividend of 10 per cent for ton years, with the understanding that myself or the Right Lumber Company, Limited, have the option of recalling the stock after-five years and paying one hundred and twenty-five dollars for same.”

The foregoing is an extract from the contract of guaranty.

Plaintiff it appears, prior to buying, wrote to the defendant, raising objection to the language or terms of the guarantee which had been forwarded to him for his acceptance. Defendant immediately mailed another guarantee to plaintiff, and in a letter of advice, expressed the hope that the last guarantee would meet with his approval. The following is an excerpt from the letter: “I think, however, you arc mistaken in your conclusions, as my guarantee is simply an individual guarantee, and does not, affect your claims in the Right Lumber Company for dividends. My understanding of the transacation was and is. the same as yours, i. e., your shares are to receive the same dividends that any other shares of the Right Lumber Company receive, but in event the company should not declare an annual dividend of at least ten per cent I am to become personally responsible to you for that amount, making your shares net you 10 per cent per annum, no .matter what may happen, and for this guarantee I have the option of buying, said shares at the expiration of five years at one hundred and twenty-five dollars per share. If this is not plain enough write out just what you desire and send to me for my signature.”

Thereupon plaintiff bought stock to the amount of ten thousand dollars, of the Right Lumber Company, paying- therefor, the sum of eight, thousand dollars.

No dividend, was paid on the shares. In May, 1894, plaintiff alleging a breach of the contract of guarantee; failure to declare dividends, owing to the alleged mismanagement of the defendant as president of the company; wrongs and even frauds committed by him in. the administration of its affairs, brought "suit for the total amount, secured by the contract of guaranty.

.Plaintiff in support of his demand for the immediate payment of' the ten instalments of dividends, as having matured because of defendant’s acts, represented that a short time after he became the owner-of the certificate of shares in the Right Lumber Company, Limited;all the property had been seized under writs of attachment- and other-legal process, issued aginst it, by creditors of the corporation and: had been sold by the sheriff. That there remained a large amount-due after the sale of all its property; it was absolutely insolvent.

Defendant sought to meet plaintiff’s contention by averring, in substance, that the Right Lumber Company was amply able to meet its obligation and to earn dividends at the date of the transfer of its certificates to plaintiff, but that a short time after the transfer, the-plaintiff who was president cf the Momoe Water Works and Light. Company wrongfully and maliciously, as president of that company sued the Right Lumber Company upon a false and fictitious demand, and had an attachment to issue under which all the property of the-company was seized; that the unwarranted appeal to the courts aroused the other creditors, who also sued out writs of attachment and' brought on the ruin of the corporation; that the plaintiff cares for his interest exclusively by buying all the property sold at sheriff’s sale-for a limited amount, and that since the purchase he lets the property for a comparatively large annual rental.

lie also alleged, that he had not been placed in mora.

In a supplemental answer he reconvened for damages in a large sum and alleged that the charges in plaintiff’s petition in the case before us for decision of fraudulently scheming to defraud the stockholders .and direct the earning of the company were maliciously and libelously made for the purpose of bringing him into disrepute in the community in which he resided.

The District Court pronounced judgment in favor of the plaintiff for one thousand dollars and interest, being the first year’s dividend guaranteed in the contract, and non-suited plaintiff’s demand for the remainder of dividends, as being premature. The judgment rejected defendant’s reconventional demand for damages.

From the judgment the plaintiff prosecutes this appeal.

The utter insolvency of the Eight Lumber Company is not disputed.

But defendant contends that plaintiff, president of the Monroe Water Works and Light Company, and one of its principal stockholders, brought about the insolvency of the Eight Lumber Company by filing a suit and causing an attachment to issue, and the seizure under its illegal attachment of all its property; that this prompted the ■suing out of other writs of attachment which proved disastrous to the ■corpora Lion.

The defendant failed in his attempt to trace the cause of the collapse of the Eight Lumber Company to plaintiff. The suit of which he complains was not brought by him, nor was the attachment made at his instance. It was the act of the corporation in his absence. He did not take the required oath or furnish the bond for the attachment. Another person acted in his absence. Whatever may have been his responsibility as president of the Monroe Water Works and Light Company, plaintiff in the suit and attachment, it does not appear that he acted for the purpose of causing the destruction of the Eight Lum'ber Company, but, on the contrary, it was shown that he had naught ■to do with instituting the suit.

The amount involved in this suit was only two hundred and seventy-■eight twenty-nine-one-hundredth dollars, and it is shown that the plaintiff company was amply able to respond for damages, if any had been committed. The amount of damages growing out of an illegal .attachment cannot very well be settled here.

Moreover: The suit complained of was brought on the 11th of

February, at the same time with suits of several other creditors. The .next day other suits were brought and other attachments issued. Of the number there was a suit brought by the defendant personally and .an attachment sued out by him against the Right Lumber Company, •of which he was the president. It must be stated in justice to the defendant, that he was absent at the time. But the suit, none the less, was prosecuted to a judgment and the attachment was recognized in the judgment.

Defendant having sued his own company the day after the suit .brought by plaintiff against it, is hardly in a position to plead the great degree of malice by which he contends plaintiff, Hawks, was .actuated in bringing the suit.

We have found no difficulty in arriving at the conclusion, in view of the terms and conditions of defendant’s obligation of guaranty that the amount of one thousand dollars allowed in the judgment appealed from was due.

With reference to the remaining nine-tenths of plaintiff’s claim, the •question arises: Did the failure of the Right Lumber Company, Limited, have the effect of precipitating the maturity of defendant’s ■obligations as guarantor under the contract before stated?

It is contended in behalf of plaintiff that the company is utterly unable to earn anything to pay any dividends; that it is without stockholders, officers or property and exists only in name.

It is also averred by the plaintiff that the suit was not brought on a contract with the Right Lumber Company, but with defendant; that he guaranteed that plaintiff should receive, at least, 10 per cent dividends upon his stock; that it being no longer possible for the company to earn or 'pay dividends, defendant’s liability is fixed and exigible. The plaintiff as a witness confirms the averment by the statement that he would not have purchased the stock without the personal guarantee of the defendant.

Conceding all that is claimed relative to the insolvency and ruin of the Right Lumber Company, in view of the conditions of the contract, the plaintiff is not entitled to the cash payment of the whole amount ■due.

In the first place the defendant reserved the right to buy after five years, the shares he transferred to plaintiff. It was left to his option, to buy or not to buy. It may be that they are, at present, worthless,. and that they never will have any value, yet, for purpose of his own,. the defendant may redeem them in accordance with the right reserved.

As relates to five years, after which the defendant may buy the shares, it would be, in our view, inequitable to require payment of dividends in advance on shares of which to avoid further payment of. dividends he may become owner at will. He stipulated a personal right which is part of the contract.

In the second place, by the conditions of the contract, the defendant became the principal obligor.

In the third place, the defendant’s obligation being personal and absolute, the insolvency of the corporation even if judicially declared, would not, as against the defendant, cause his obligation to mature.

The defendant was a vendor. He assumed to make good that which-the vendee considered, or must have considered, at least, partial consideration. This is not the case of a security, but an independent obligation of one who is called upon to respond, because-the property he transferred has not yielded the revenue he bound himself.it would yield. The corporation, for reasons alleged, is no longer a going corporation. it appears that the corporation never c-an pay plaintiff the dividends defendant guaranteed he should receive. It remains that the defendant was considered and treated as an independent obligor. The question arises, if the accessory obligation, for any reason, fails to carry out the intention of the parties, as shown by the terms of the contract, will the failure of performance carry with it a rescission of the instalments of the principal obligation?

In the case here the corporation has not been judicially declared' an insolvent. In addition, the defendant has not been placed in mora. No offer has been made to dissolve the contract, or to return the shares. We take it finally that the benefit of the delay was personal’ and independent of the accessory obligation, and that before the principal can be affected, the exact condition of the accessory should be ascertained and fixed.

The corresponding article of the Code Napoleon (488) to ours (2054) has been interpreted by the French Courts. Le Boise vs. Hautot. Dalloz Jurisprudence Generele (1813) p. 206. In the French Commentaries reference is made to the principle here involved. We cite • .them in support of our own jurisprudence upon the subject. Larombiere, Vol. 2, Art. 23, p. 499; Laurent, Vol 17, p. 226, 227.

With reference to the charge that the company had not been legally -organized at the date that the defendant, as its president, issued certificates of shares; that issue was not raised by the pleadings. On the contrary, plaintiff averred in his petition that the corporation had been organized under -the laws of the State of Louisiana, an averment .by which, in this appeal, plaintiff is bound. .

With reference to the charge against the defendant, that the corporation was insolvent to his knowledge, at the date he transferred the ■certificate of shares to plaintiff, and that he, by his own acts, ruined the corporation and rendered valueless the shares he had transferred, we do not think the defendant was guilty of the bad faith and treacherous conduct the accusation implies.

We take it. that plaintiff and defendant knew very little of the value ,of the plant and of its stock, and that, as is frequently the ease, too much credence was given to inflated written statements of the eompauy’s business, prepared by employes not sufficiently careful m making estimates of values.

Relative to the active management of the corporation, it does not .appear that the president was positively at fault. He, as is sometimes the case with enterprises, was positively blameworthy for not .giving needful attention to the interests of the company. This does not offer a ground of action in the present suit for specific perform.-anee, growing out of the inability of the company to declare dividends and from the fact that it is not in business.

We pass to the next question involved, and brought up by re-convention for damages growing out of the allegations personal to the • defendant, contained in plaintiff’s petition in this case. The averments complained of, made with the view of sustaining plaintiff’s ■action, have not had the damaging effect, it is urged they had. Coun•sel. in their zeal and industry, allege sometimes more than is necessary to sustain their suits. Unless there is evidence of downright malice and intention to injure, such allegations are taken cum grano .salis. Here, the plaintiff was absent. He did not know of the allegations, when they were made, nor even at the trial. The principles laid down in Gardemal vs. McWilliams, 43rd Ann. 435, and Monroe vs. Lumber Co., 50th Ann., apply here.

It is ordered, adjudged and decreed that the judgment appealed from, is affirmed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 12,807.
    T. A. Roy, Mayor, vs. Eli Schuff.
    Syllabus.
    On Motion to dismiss.
    The Supreme Court in a prior case, between the same parties decided, that ai Question of law was involved of which the District Court did not have jurisdiction as an appellate tribunal from judgments rendered by a justice of the peace. It followed that this court has jurisdiction, and that the finding of the court that there was a question of law involved is binding on all-parties who are concluded from reversing the point that no question of law-regarding the license tax claimed -was involved.
    On tub Mbbits.
    The farmer who sells his crop in a small wagon (retailing it) is not a peddler,, and he is not liable under a license law, requiring peddlers to pay a license.
    ON APPEAL from the Third Magistrate’s Court for the Parish, of Avoyelles. -N. II. Zimmer, J.

      Couvillon & Son for Plaintiff and'Appellee.

      A. V. Coco for Defendant and Appellant.
    Argued and submitted December 19, 1898.
    Opinion handed down January 9, 1899.
   The opinion of the court was delivered by

Breaux, J.

The municipal authorities of the town of Mansura took action to compel the defendant to pay a license tax of seventy-five dollars imposed on peddlers.

The defendant contended that he was not a peddler.

The issue before us is whether a planter who sells his crop of rice in parcels, from place to place, is a peddler, within the intendment of an ordinance requiring peddlers and hawkers, excepting those peddling fruits, vegetables, oysters, poultry and eggs, to pay an annual license.

On Motion to Dismiss the Appeal.

Plaintiff and appellee moved to dismiss the appeal, on the ground that the Supreme Court is without jurisdiction; the amount in dispute, he alleged, was less than the minimum, limit, and the constitutionality or legality of the license was not at issue.

This case was before the court in 1897, on the relation of the defendant, who applied for a writ of certiorari and mandamus.

The justice of the peace court condemned the defendant to pay the license.

From the judgment an appeal was taken to the District Court of the parish of Avoyelles.

Before that court the Mayor, who is the appellee here, made a motion to dismiss the appeal upon the ground that the District Court was without jurisdiction, as the legality or constitutionality of a license tax was involved.

This motion was sustained by the District Court.

Whereupon the ■ defendant, relator in the application for certiorari and mandamus, applied to the Supreme Court to compel the District Court to rescind the judgment dismissing the appeal, and resume jurisdiction of the case.

The Supreme Court decided, in disposing of the application for certiorari and mandamus, that the action of the District Court in. dismissing the appeal was correct, and that the question of law-involved was within the jurisdiction of the Supreme Court. State ex rel. Scheff vs. Judge, 49 An. 1744, 1748.

After the dismissal of the appeal, and this court’s action as just stated, defendant was granted an appeal to the Supreme Court.

That appeal is now before us. The appellee moves to dismiss on the grounds that we have already stated.

Those grounds received the court’s attention on the application for writs of certiorari and mandamus, and on that application, contradictorily with all parties concerned, the court determined that the District Court, for reasons stated, had no jurisdiction.

It follows, inevitably, that the Supreme Court has jurisdiction.

The decision in the cited case correctly, we think, disposed of the point involved, and properly determined that the question was one of law, of which this court had jurisdiction.

The question was so finally decided that there was no necessity of our looking into the reasons of the court for holding as it did. But we, none the less, reconsidered the matter and found, as heretofore, that the legality of a tax was contested; that it was claimed that an error had been made by the justice of the peace court in recording a decision to compel the defendant to pay a license, under a law, which it was contended was illegal as to him. (Although counsel for defendant appeared before the District Court and urged that the court had jurisdiction.) -

That issue having been decided against, and the decision having been affirmed cn appeal to this court, to which it was manifest, the case was appealable from the first.

On tub Merits.

Article 200, of the Constitution of 1879, was brought to our notice. It exempts all persons engaged in agricultural pursuits from the payment of a license tax.

It appears that the rice was produced on a farm not very far from the town of Mansura, and that it was being sold in that town for his (defendant’s) account, when demand for the payment of a license was made.

The sowing of rice, tilling, gathering, and converting it into an •article of food was the work of the owner, for whose benefit it was ■offered for sale.

The claim on the part of plaintiff is that, in offering the rice for sale in the manner it was offered, he became a peddler, and liable for .a license under the law 78 of 1896, and an ordinance drawn under it by the municipal authorities of the town of Mansura, imposing a license tax on peddlers.

A peddler, as we take it, is anyone who sells anything having value, .bought by him, and sold from place to place in small quantities. He is engaged in a small business, something of a trader.

The definition does not take in the farmer who travels about in a small wagon, in dust and heat, or on heavy roads, selling his erop; retailing it in small quantities.

He is not a small trader who deals in a number of wares or commodities. He was only carrying out the purpose he had in view in making the crop, to sell it at retail or wholesale, as deemed most advantageous to him as a farmer.

The selling was an incident of farming it may be said. It was a •part of his pursuit as a farmer, and he thereby in no way became a peddler or a merchant.

The exemption covers both the farmer and the sale by the farmer of .that which his industry produces.

Rice gathered in the field and placed in sacks is, unquestionably, an .agricultural product.

The decision referred to by counsel for plaintiff in which it was held that the manufacturer of wine, from his own grapes (to quote the language of the decision), is “not 'an agricultural product/1 •although manufactured from such product, does not apply to the case before us for decision. Town of Mandeville vs. Baudet, 49 Ann. 236.

Here the amount received for an agricultural product was realized .as a return for the farmer’s labor, clearly exempt under the Constitution. Adler, Goldman & Co. vs. Assessors, 37 An. 807.

For reasons assigned, the judgment appealed from is annulled, .avoided and reversed; the demand of the plaintiff and appellee is rejected at his costs in both courts.


author: Breaux", J.-

text:
    No. 12,701.
    S. W. Vance vs. First National Bank.
    Syllabus.
    Interests on amount due are to be computed from tlie respective dates that these amounts were recognized as due.

      A debtor whose property is covered by a deed of trust is bound to see to thp payment of the taxes, and if it be sold for taxes, he has no claim for its value-against his mortgagee or trustees.
    The rank of mortgages remains unchanged (to the extent that the notes are open to equities) if both creditors hold notes secured by those mortgages transferred after maturity.
    The question growing out of a note transferred before maturity, secured as to its payment by mortgage was postponed, in order that values might be established contradictorily with all parties concerned who were not before the court.
    ON-APPEAL from the Second Judicial District Court for the Parish of Bossier. Watkins, J:

      Leonard & Randolph for Syndic, Plaintiff and Appellee.

      Wise & Herndon for Defendant, Appellant.
    Argued and submitted June 2, 1898.
    Opinion handed down November 21, 1898.
    Rehearing refused January 9, 1899.
   The opinion of the court was delivered by

Breaux", J.-

This case was remanded for the trial of issues as', directed. Vance vs. Bank, 49 An. 378.

In the District Court, after it had been remanded, the judge pronounced judgment, holding that an amount of ten thousand dollars-loaned had not been paid.

That the lands in Arkansas, covered by a deed of trust given by S. W. Vance to S. J. Zeigler, are worth seven hundred dollars, and that with that amount the latter should be charged.

That the value of two mortgage notes for six thousand dollars to be charged against Zeigler was ten thousand dollars.

The court decreed that the sum of ten thousand seven hundred dollars be charged to Zeigler, and credited to Vance, and that that, amount be added to the credits heretofore allowed to S. W. Vance.

From the judgment the defendant appealed.

We take up, in the first place, the question of accounts between Vance and Zeigler.

.'Both, counsel for plaintiff and counsel for defendant, agree as to-the amount of total debits against S. W. Vance.

In each brief it was put down as being $23,581.40.

The only difference is that the former, the plaintiff, arrives at a balance without a further computation of interest, while the latter claims interest from the time the respective amounts became due.. Upon his basis, plaintiff arrives at the following result:

April 7; 1892, total debits...............................$28,581 40-

April 7, 1892, total credits ............................$17,403 17

April 7, 1892, balance against Vance....................$6,178 23-

Defendant claims a larger amount of interest. In our view interest, at five per cent, should be calculated on the respective amounts-allowed by our decree, and not previously allowed by Zeigler or Vance; that is, five per cent, interest should be computed on ten thousand five hundred and eleven (11-100) dollars from February 20r 1890, to April 7, 1892, and from the last mentioned date legal interest to be computed in balance after having deducted credit of seventeen thousand four hundred and three (19-100) dollars.

Fees of attorney, on balance due, was allowed in our fir.st decision.

We are brought to the question of the amount to be allowed for the-lands in Arkansas. They were, as we understand, covered by a deed of trust. They were sold for taxes after the deed of trust had been given. These taxes were due by the pledgor Vance, and in consequence of his failing to pay the taxes, the lands had no value to thepledgee or mortgagee. The deeds of trust, in the absence of evidence of the law of Arkansas upon the subject, are considered similar to our civil law mortgages.

We take up, next in order, the mortgage for twelve thousand dollars-now held by the Merchants’ and Farmers’ Bank as collateral security.. We infer that in fixing the value of this claim, the judge of the-District Court did not take into account the fact that those lands are burdened with mortgages.

To the amount of one note of six thousand dollars, secured as to its payment by the mortgage just mentioned, the two transí errees of Vance are in the same position; that is, the Merchants’ and Farmers’ Bank is a transferree of this note after maturity, and as to its notes the defendant also is a transferree after maturity. These claims being subject to the equities in our view, the rank of the respective mortgages, as relate to these claims, remains unchanged.

For the purpose of illustration, let us assume that “A” holds notes transferred after maturity, save one. “B” also holds notes transferred to him after maturity. These notes are all secured by mortgage, but “B” holds a mortgage prior in rank; we take it that that mortgage does not lose its rank when opposed by a mortgage second in rank, represented by note transferred after maturity. “C” the common debtor is not in a position to claim a prior right for “A” as relates to the note transferred after maturity.

The rank of a mortgage is not changed by the fact that a creditor holds a mortgage second in rank, securing a note transferred to him .after maturity, as against a creditor who holds from the common debtor. It follows that from the value of the property is to be deducted the amount, proportionately, of this mortgage.

In our first decision, we said: “In establishing the value of these notes due regard is to be given to the rank of mortgages, not affected by the rules of the commercial law relating to securities subject to ■equities.”

The contest will arise between the holders of these noles.

Vance being insob/en c has no interest in the matter.

In our judgment no preference can be obtained by plaintiff for one ■of his creditors, the Merchants’ and Farmers’ Bank, as relates to the note transferred to it after maturity and to that extent the value of the property is affected. In our view a creditor cannot properly be charged with (he values of properly to the extent to which he, as a ■creditor having a mortgage, has an interest.

As to the note held by the Merchants’ and Farmers’ Bank, transr ferred prior to maturity, the question is left to be determined when the parties in interest will be before the court, also the question of •rank of mortgages.

It is therefore ordered, adjudged aud decreed that the judgment appealed from be annulled, avoided and reversed.

It is ordered and adjudged that defendant have judgment against the plaintiff, S. W. Vance, for the sum of twenty-three thousand, five hundred and eighty-one (40-100) dollars, with interest and attorney’s ■ fee as before indicated and subject to credit, in amount and date, as before stated, and that costs of appeal be paid by appellee.

It is ordered and adjudged that as relates to the note of six thousand dollars, transferred after maturity, held by the Merchants’ and. Farmers’ Bank, the mortgage by which it is secured as to its payment has no preference over defendant’s mortgage first in rank and that to the extent of its value, as between the parties here, the value of the property mortgaged is decreased.

It is decreed that as relates to the note transferred before maturity, held by the Merchants’ and Farmers’ Bank, and the mortgage by which it is secured on the one hand, and the notes held by defendant, after maturity, and the mortgage by which it is secured, the question of respective rights be postponed until the parties in interest are-before the court.

It is further ordered that the property mortgaged be seized and. sold to pay and satisfy the claims due.

Blanchard, J., recused on the ground of interest in result.


author: Miller, J.

text:
    No. 12,753.
    George L’Hote vs. City of New Orleans et als.
    Syllabus.
    Tile city of New Orleans has the power to assign the limits beyond which houses-of prostitution shall not be permitted; an ordinance of that character merely asserts the municipal functions to secure public order, decency and morals, and violates none of the guarantees of the rights of person and property contained in the federal and State Constitutions. City Charter, Act No. 45-of 1896, S. 15; the similar provision in previous charters: Black’s Constitutional Law, p. 301; 3 st Dillon Municipal Corporation. S. 310.
    ON APPEAL from the Civil District Court for the Parish of' Orleans. King, J.

      E. Howard McCaleb, E. Howard McGaleb, Jr., and Rene G. Metoyer for L’Hote, Plaintiff, and Appellee, and for Church Extension Society ■of the Methodist Episcopal Church, Intervenor and Appellant.

      James J. McLaughlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for City of New Orleans and Superintendent ■of Police, Defendants, Appellants.
    Argued and submitted April 20, 1898.
    Opinion handed down November 21, 1898.
    Rehearing refused January 9, 1899.
   The opinion of the court was delivered by

Miller, J.

The defendant’s appeal from the judgment maintaining the injunction restraining the enforcement of the ordinance of the ■common council changing the limits beyond which lewd women are prohibited from residing.

From an early period it has been the policy of the councils of the city to assign limits for houses of prostitution by prohibiting, under prescribed penalties, the location of such houses beyond the designated limits. The ordinance, earliest in date on this subject, to which our attention has been directed, was passed in 183^. There were changes in the limits in subsequent years, and the last ordinance which gave rise to the present controversy prescribed the south side of Customhouse street to the north side of St. Louis, and from Basin to the lower side of Robertson street as the limits beyond which houses of prostitution were prohibited. This, as we understand it, extended the permitted limits of previous ordinances so as to include St. Louis street from which such houses had been excluded by the ordinance passed shortly preceding that the city is now seeking to enforce. This last ordinance restricts the limit assigned to these houses by the previous ordinances by substituting “between Basin and Robertson •streets,” for the more enlarged space comprised between the river in front and the rear of the city designated by earlier ordinances, ■although St. Louis street is embraced in the last ordinance, not in the ordinance immediately preceding the last enactment. It is claimed that St. Louis street never was within the space assigned for these houses; we derive a different impression, but whether or not included in the earlier ordinances, can exert no appreciable influence on our •decision.

The plaintiff, a property owner, and a resident on Treme street, intersecting St. Louis street, and half a square from St. Louis street, .alleges in his petition for the injunction, the close proximity of his ■dwelling to that portion of St. Louis street brought within the area in which houses of prostitution are to be allowed by the ordinance he proposes to enjoin; that his locality has been and is free from such houses; that their introduction is calculated to render his property unfit for his family dwelling and greatly depreciates its value; that the ordinance excludes a large portion of the area in which houses of prostitution were previously permitted, at the same time enlarging the limits so as to embrace St. Louis street; that the city, by the previous ordinance designating the limits and excluding St. Louis street, had exhausted the legislative power in respect to the subject, and the petition charges that the ordinance is oppressive, unjust and violative of the protection to persons and property accorded by the Constitution -of the United States and of the State. Theie is an intervention by a religious corporation, owning- and maintaining a church near St. Louis- street, between Robertson and Villere streets, and ■another intervention by another property owner in the ■same neighborhood; the allegations in the petitions of intervention present the subject in a different phase, and allege the injury to property within the designated area, arising from confining houses of prostitution as proposed by the ordinance. 'Thus the theory of the plaintiff’s petition is that the city has no power to change the limits of houses of prostitution; the position of the intervenors is, there should be no limits for such houses.

The city and the officials sought to be restrained by the injunction, except to the jurisdiction of the Civil District Court, on the ground that the injunction sought is directed against the enforcement of a penal statute; that the petition discloses no cause of action, and, on other grounds unnecessary to notice. The judgment maintained the injunction and this appeal followed.

It is clear that the Oivil District Court has no jurisdiction to restrain prosecutions for crime confided by the law to the criminal courts.' No prevention of such prosecutions is attempted. The plaintiff seeks the injunction for the protection of his rights of property,, menaced, as-he conceives, by an illegal ordinance. The right of the citizen to that protection, is too clear to permit dispute, and, in our view, the petition contains all that is essential to secure relief at our hands, if the allegations in the petition are supported. 1st High on Injunction, S. 68.

The regulation of houses of prostitution would seem to be so closely connected with public order and decency; the policy announced by the ordinance has been so long exerted in all large cities of our country ; and the power has had such frequent recognition in the charters of this city, that it would seem the power itself cannot be successfully controverted. City Charter of 1870, S. 12; of 1882, S. 8; of 1896, S. 15. We have, however, given careful attention to the argument that urges objection to all such legislation and which directs attention to the grounds of opposition deemed specially applicable to the ordinance, the execution of which is sought to be arrested.

That there are limitations to the power asserted by this ordinance-may be conceded. It does not, however, readily occur to the mind that confining houses of this character, within- certain limits by the appropriate ordinance, is violative of any of the constitutional guarantees invoked in this discussion before us. The ordinance neither sanctions nor undertakes to punish vice. The power to punish vice not in the form of an offence, denied by the argument and enforced by the authorities we find in the briefs, is, in our view, entirely distinct from the function the ordinance asserts as belonging to municipal government by the express terms of the city charter. It is urged, too, the ordinance is a license for vice, and, hence, illegal. Tiedeman on Police Power, p. 291. Undoubtedly, the court should refuse its aid to any ordinance, if of the character asserted by the argument. The-vice, the subject of this ordinance beyond the reach of penal statutes, is simply subjected by this ordinance to that restraint demanded by the public interest. The unfortunate class dealt with by the ordinance must live; they are not denied shelter, hut assigned that portion of the city beyond which they-.are mot permitted to establish their - houses. Thus viewed, the ordinance cannot he deemed open to the-objections that it either punishes or grants a license to vice beyond the competency of the council.

Again, it is urged that the ordinance is oppressive, unreasonable., and hence, not to he enforced, because it seeks to confine the depraved, women in too narrow limits. We find the testimony of this tendency in the record. If the ordinance is lawful this question of space is,, in our opinion, confided to the council, and not for the courts. At. any rate, we find no basis in the record to authorize the conclusion that the judgment of the council on this question, is erroneous,. There is the general proposition asserted by the argument that the correct policy is to diffuse the houses throughout the city, although the-anticipated presence of the houses, within half a square of the plaintiffs residence, and though on a different street, prompted this suit and vigorous opposition of the plaintiff. We cannot accept the view of public policy announced by the argument for the plaintiff, and, on. that ground, set aside the action of the council.

The argument is advanced that houses once used for immoral uses,, the subject of the ordinance, can never regain a reputable character;, that the primary ordinance of this character gave the neighborhood, it designated, and to the property within its limits, an ineffaceable.stigma; depreciating' for all time the value of the property, and hence-it is argued that this first concession of private right for the public-good is enough; that is the first exercise of power by the council is-exhaustive of its power over the subject. The character of the houses, within the limits first assigned, fixed forever, it is hence contended the limits cannot be chang-ed, least of all extended, involving as it. would, a fresh and unnecessary sacrifice of private right. The effect, of the argument, while conceding- the function of municipal government to assign limits for such houses, is to affirm that this important municipal function once exerted, can never he again exercised. The-limits, we are told, must remain as originally fixed, irrespective -of all those changes and public needs apt to arise, and to demand modification of limits, assigned years previously, for uses admitting of no suppression, but which can he restricted as to locality. It seems to us if" the functions asserted by the ordinance can be once exerted as the-argument concedes, the more reasonable conclusion is that the function may again be called into exercise, to meet the changed conditions-time has called into existence, and which appeal for appropriate action to the municipal authorities. We cannot, therefore, as~ sent to the proposition, that because limits for these houses were assigned, perhaps more than three-quarters of a century ago, therefore the council cannot furnish in 1896, the legislation demanded by the public interest.

There remains the argument addressed to us varied in form, but maintaining the general proposition that the ordinance operates to ■deprive the citizen of his property; that is, to depreciate its value the same as deprivation in legal effect. We can readily appreciate there might be an arbitrary exercise of this power that would warrant an appeal to the courts. Thus, to extend these limits so as to embrace without an apparent reason, if reason could exist, portions of the city always devoted to private residences, schools, churches and other lawful uses, might, well be deemed oppressive and an abuse of the power of municipal government; but as we understand this ordinance, in its main features it is restrictive, that is, confines these houses within narrower bounds. True, it takes in St. Louis street, or, as we believe, one side of the street excluded by the ordinance immediately preceding that now sought to be enforced. If it be true that St. Louis street, that is, both sides of it, were always without the area in which these houses were permitted, it is none the less true that St. Louis .stzeet has ahvas been in close proximity to the space allotted to houses <of prostitution. An extension of these limits, so as to take in that street, or rather that portion of it always alongside of the area for those houses, and at the same time greatly diminishing that area as previously delineated, does not strike us as arbitrary, or as calling for any substantial sacrifice of private rights beyond that required by antecedent ordinances. To whatever extent, however, the right of private irroperty may be deemed affected by this last ordinance, it must be borne in mind that it is their great power of government given to preserve the morals, health and lives of the community that requires the surrender of right by the citizen supposed to be exacted by this ordinance. To that police power all must yield obedience. As put in the text books and enforced by all decisions: “Every citizen holds his property subject to the proper exercise of the police power exerted either by the legislature or by the subordinate political corporations. It is settled that police laws and regulations, though they may disturb the enjoyment of individual rights, are not unconstitutional. They do not expropriate property for public use. If the in■dividual sustains injury it is deemed damnum absque injuria, or, in .the theory of the law, the injury to the owner is deemed compensated by the public benefit the regulation is designed to subserve.” 1st Dillon Municipal Corporations, p. 93. It is our conclusion, on every .aspect of the case, that the ordinance is the exercise of lawful power,

Black’s Constitutional Law, p. 301. Dwarris on Statutes, p. 455. .and no ground exists to enjoin the execution of that which the ordinance proposes. 1st Dillon, S. 310.

It is therefore ordered, adjudged and decreed that the judgment of the lower court in favor of plaintiff, be reversed, and the injunction • obtained by plaintiff issued be dissolved, his suit be dismissed, and that the judgment of the lower court, dismissing the interventions, .and dissolving the injunction granted on the prayer of one of them .be affirmed and that plaintiff pay costs.

The Chief Justice did not sign the judgment, not being satisfied .as to its correctness.

Mr. Justicie Blanchard concurs in the judgment also, for reasons .assigned from the bench.

Note — Taken to United States Supreme Court by writ of error.


author: Blanci-tard, J.

text:
    No. 12,944.
    State of Louisiana ex rel F. W. Kinberger et als. vs. Mayor and Council of New Orleans.
    Syllabus.
    From the differing provisions, clear and pronounced, in the two charters of the city of New Orleans (that of 1882 and that of 1896) respecting the membership of the City Council, and the reservation made in the charter of 1896 relative to the Council in office at the date of its passage, and the care observed to continue in force existing laws not inconsistent with the later enactment, is deduced the legislative intent that the change in the manner of Ailing vacancies in the Council as provided in the later charter over what it was in the earlier one, was to apply to city councils to be thereafter elected, and no! to the Council then and now in existence.

      ON APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      G. W. Flynn and Lazarus, Moore & Luce for Plaintiffs, .Appellees.-

      Bamuel L. Gilmore, City Attorney, for Defendants, Appellants.
    Argued and submitted November 11, 1898.
    Opinion handed down December 5, 1898.
    Rehearing refused January 9, 1899.
   The opinion of the court was delivered by

Blanci-tard, J.

The relators, duly qualified electors of the Eirst Representative District of the city of New Orleans, and property taxpayers therein, invoke the writ of mundo,mus to compel the Mayor and Council of said city to order an election in said representative district for member of the city council, to fill the vacancy occasioned by the resignation of Quitman Rolinke, who had been elected councilman from said district at the general election in April, 1896.

The contention on part of plaintiffs is that the same eonstituency wliich in 1896 accredited Dr. Kohnke to the council, alone have the right and authority to name his successor, now that he has resigned.

The contention on part of defendants and respondents is that this • vacancy is not to be referred to the electors of the First Representative District, to fill the same by election, but that said vacancy is to be filled by the City Council itself, the members thereof choosing viva voce a citizen therefor possessed of the requisite legal qualifications.

A petition to the mayor and council by certain electors of the First District, praying that an election be ordered to fill the vacancy, having-been denied, this suit was brought in the Civil District Court to enforce the right of election.

From the decision of that court making peremptory the writ of .mandamus and directing the mayor and council to order the election, .this appeal is prosecuted.

The election for mayor and councilmen had in 1896, was held .under the provisions of the then existing charter of the city, which had been adopted in 1882.

Under that charter the legislative power of the city was vested in . a council composed of thirty members, who should be residents of the districts from which elected. The city was divided up into repre- . sentative and municipal districts and the thirty councilmen provided for apportioned among the same. The councilmen were elected for four years and were to serve without compensation. Vacancies were to be filled by election, and it was made the duty of the mayor, and in ■ case of failure on his part, of the council, to at once order an election ••to fill the same. The same constituency that had elected the former 'holder of the seat was to be called on to fill the vacancy.

The same mayor and council elected in 1896 are holding' office now .-and will continue to until, at the general election of 1900, their suc- ■ cessors are chosen.

Subsequent to their election in 1896, and in that year, a new char-ter for the city was provided by legislative act.

This new charter, it is claimed, effects a change in the manner of -filling vacancies in the council, and Section 79 thereof is pointed to ■ as the provision operating this change.

It provides that “vacancies occurring in the office of councilmen ■ * -x- * -x- t>e filled by election viva voce by the council of a citizen having the qualification required for such office, and such •person shall serve for the unexpired term of office.”

If the present city council, from which Dr. Kohnke resigned, had 'been elected under, and held its tenure of office pursuant to, the Act No. 45 of 3896 (new charter), there would not be any doubt as to how vacancies occurring should be filled — at least so far as the intention of ■the act goes.

But since this comicil was elected under, and derives its tenure from, the earlier charter, it becomes important to enquire how far, or to what extent, it is affected by the provisions of the later charter.

The latter divides the city into seven municipal districts and provides for the election of seventeen councilmen therefrom, apportioning the same among the districts. These seventeen are to constitute the City Council. Its members are to receive a compensation of twenty dollars each for attendance at each regular monthly meeting. They are to be elected at the same time the mayor is and for four years.

While the city is divided,'by the present charter, into representative-districts, there is no provision for the election of counoilmen therefrom, except as the same may form part of the municipal districts.

It is, therefore, apparent that the constituencies respectively entitled to elect councilman under the later charter are not identical with those which, under the earlier charter, elected the members of the' present council.

While the act establishing the later charter announces it is to take effect after due promulgation thereof, it specially provides that the various municipal officers and eouneilmen elected at the general election in April, 1896, shall continue in office until the expiration of the-term for which they were elected.

This preserves their status as officials elected and holding, as to their tenure, under the charter of 1882, and that this is so, is shown by the further announcement in the charter of 1896 that the first election under it shall be held on a certain Tuesday in April, 1900.

The last and repealing section of the act does not go to the extent of repealing1 all prior laws on the same subject matter, but rests content with the more moderate declaration that “all laws or parts of' laws in conflict, or inconsistent herewith, are hereby repealed.”

From the differing provisions, clear and pronounced, in the two charters, respecting the membership of the council, and the reservation made in the act of 1896 relative to the council in office at the date of its passage, and the care observed to continue in force existing laws-not inconsistent with the later enactment, is to be deduced the legislative intent that the change in the manner of filling- vacancies in the council as provided in the later charter over what it was in the earlier one, is to apply to city councils to be thereafter elected, and not to the council then and now in existence.

This interpretation is in direct accord with the views expressed and' the decree rendered by this court in November, 1896, within a few months after the adoption of the new charter, in the case State ex rel Sarah Holsom vs. Henry Bezou, Recorder, etc., 48th La. Ann. 1384.

So long, therefore, as the present council holds office, vacancies occurring therein are to be filled pursuant to the provisions of the old1 law, and Section 79 of the Act of 1896, providing a different mode of filling vacancies, is held suspended in its operation until the happening of the condition that alone can give_it potency and force, viz.: the election of a new council under the provisions of the present municipal charter.

We pretermit, as unnecessary to the decision of the case, any expression of opinion on the constitutional question raised and discussed at the bar; that Section 79 of the charter of 1896 is'repugnant to Article 253 of the Constitution of 1879, and in conflict with Articles 319 and 320 of the Constitution of 1898, in that it provides a different mode of choosing or appointing public officers “charged with the administration of the police of the city,” as expressed in the earlier Constitution, or those “charged with the exercise of the police power and with the administration of the affairs of the city m whole- or in part,” as expressed in the later Constitution.

The judgment appealed from is correct and is affirmed.


author: Blanchard, J.

text:
    No. 12,919.
    State of Louisiana vs. E. T. Jones.
    Syllabus.
    1. After a case, as to the introduction of evidence, is closed, the question of re* opening it for further evidence is one left largely to the. discretion of the trial judge and his ruling thereon will not be disturbed unless a clear case is shown of the abuse of such discretion.
    2. Counsel in argument should not indulge in statements of fact beyond and’ outride of the facts brought out in evidence, and whore a prosecuting attorney abuses the privilege of argument to the manifest prejudice of the accused, it is the duty of the trial judge to interfere, and if he fails to do so. and the impropriety is gross, it is good ground for reversal. Held, however, that the transgression in the instance complained of not to be of that grave-character warranting the setting aside of the verdict.
    3. Error, alleged in an assignment of errors filed in this court, .to be patent outlie face of the record, must appear from the record with certainty, else nothing is presented for the court to act upon.
    ON APPEAL from the Twelfth Judicial District Court for the1 Parish of Calcasieu. Read, J.

      M. J. Cunningham, Attorney General, and A. R. Mitchell, District Attorney, for Plaintiff, Appellee.

      R. P. O'Bryan, for Defendant, -and Appellant.
    Submitted on briefs November 12, 3898.
    Opinion handed down December 5, 1898.
    Rehearing refused January 9, 1899.
   The opinion of the court was delivered by

Blanchard, J.

The accused,'E. T. Jones, and two. others were jointly indicted for murder.

Jones was found guilty of manslaughter; the other co-defendants were acquitted.

From a sentence of twenty years at hard labor, the former prosecutes this appeal.

Five bills of exception are found in the record, and in this court an assignment of errors is filed.

Only the first and second bills and the assignment of errors, are pressed upon our attention.

The bill of exceptions first taken was to the refusal of the court to permit co-defendant Schultz, (subsequently acquitted) to testify. 'The case,' as to the introduction of evidence, had been closed the day previous, with the exception of a report of some experts, previousl5r appointed by the court, which report, together with some further evidence in rebuttal, the prosecution reserved the right to offer. The .judge states that when the case was closed the previous day, save as to the exception noted, all the witnesses were, with the acquiescence of both sides, discharged from further attendance.

The report of the experts being forthcoming it was offered, and then •the State offered, under the reservation as to additional rebutting testimony, the depositions of defendant J ones taken at the coroner’s in■quest. This was received without objection and read to the jury and immediately thereupon the District Attorney closed his case finally.

Counsel for defendant Jones then offered Schultz as a witness to .prove certain alleged facts, unnecessary to mention here. This was ■objected to by the State on the ground that it came too late, that the ■case was closed and the State’s witnesses discharged. Whereupon the presiding judge enquired of counsel the object of the testimony -sought to be elicited and was told it was to corroborate the deposition ■of defendant Jones, referring to the deposition which the State had .just offered. The judge thereupon ruled the objection of the State well taken and declined to permit the re-opcning of the case.

We cannot say the judge erred. After a case, as to the introduction ' • of evidence, is closed, the question of reopening it for further evidence is one left largely to the discretion of the trial judge, and this court will not disturb his ruling thereon unless a clear ease is shown of the -abuse of such discretion.

38 La. Ann. 448; 27 Ib. 691; 29 Ib. 716; 33 Ib. 952; 31 Ib. 267; 39 Ib. 329. See also State vs. Chandler 36 La. Ann. 177.

The vindication of the law, the maintenance of good order, the establishment of justice, the prevention of crime, the punishment of the guilty, the protection of the innocent, are the great objects for which courts of criminal procedure are organized, and when these ends, or -any one of them, may be promoted by the reopening of a case once ■ closed, the judge may and should permit it to be reopened and additional evidence offered. But a wise discretion is vested in him to . judge the situation as it arises, and to say whether or not a case has been made out justifying a departure from the rules prescribing the • order in which evidence is to be adduced.

It is not contended by the accused that a full opportunity had not been accorded him, under the rules, for the introduction of all testimony he had to offer. The co-defendant Schultz might have season- •• ably been called to the stand had such been the desire of the defense. So, we are constrained to hold that the demand to put him on the ■ stand under the circumstances narrated, and that, too, for the purpose -of corroborating the deposition of defendant Jones just offered by the ~8tate, was not a reasonable one, and its denial did not prejudice the - accused.

A bill of exceptions was taken to the refusal of the judge to interfere with the argument'of the district attorney and stop him from asserting a fact which defendant claimed had not been proven.

It appears that the district attorney did in his closing argument make a statement as of his own knowledge of something about which there had been no proof; but it was in reference to a matter of not enough consequence, or serious bearing on the result of the case, to-prejudice the accused.

Counsel in argument should coniine themselves to the facts brought out in evidence, and where a prosecuting attorney abuses the privilege of argument to the manifest prejudice of the accused, it is the duty of the judge to interfere, and if he fails to do so, and the impropriety is gross, it is good ground for reversal.

Rice on Evidence, Vol. 3, p. 245, section 180; Clark Crim. Procedure, p. 458, sec. 170.

A. & E. Ency of Law Vol. 4, p. 875.

Hall vs. U. S. 150 U. S. 76.

But we do not consider the transgression in this instance of that grave character that warrants the setting aside of this verdict. State vs. Johnson, 48th La. A. 37.

The assignment of errors is leveled at the trial judge’s charge to the-jury, not for what it contains, but for what it does not contain.

The contention is that the verdict is. vitiated because of the omission of matter which must be charged under pain of nullity of the jury’s finding, if it be against the accused.

The ground of attack is that the judge omitted to instruct the jury that the failure of the accused to testify should not be construed for or against him, as directed by Act 29 of 1886.

And it is assigned as error patent on the face of the record.

It is not averred that the judge was requested to instruct the jury in reference to this and had refused, and no bill of exceritions whatever as to the charge, whether as to what it contained or did not contain, was reserved.

The charge of the court to the jury was in writing and is found in full in the record. Its perusal shows that nothing was said in reference to the accused testifying or not testifying.

The first question that suggests itself is, if this omission be error that may be taken advantage of without a bill of exceptions seasonably tendered fas to which wo express no opinion), is it error patent' on the face of the record?

It is stated in the brief filed on behalf of the defense that the appellant “did not go upon the witness stand, nor did he proffer himself as a witness.” And that “this record shows that none but witnesses for the State testified.” Where the record shows this, is not stated, no citation of page or paragraph being given.

A careful examination of the court’s minutes of the trial of the case fails to disclose what witnesses testified for the accused and what for the defense. Nor is it usual for the minutes of a criminal trial to> show this. Whether appellant testified or not, we are not, by the only record we can go by, informed. If he did testify, we do not see that it was essentia] for any reference to be made of the matter in the-court’s instructions to the jury, and its omission might warrant the-presumption that he did testify in the absence of anything in the record affirmatively or positively showing otherwise, or of a bill specifically bringing the point up.

In a bill of exceptions reserved to a ruling of the judge excluding certain testimony offered by the defense (and having nothing to do-with the matter under discussion), a reference is incidntally made to the sheriff and coroner of the parish having been “the only two witnesses called by the defense.”

This is the only justification whatever for defendants’ contention that the record shows the accused did not go upon the stand as a witness. It must be considered a mere recital of something the drawer of the bill thought necessary to the proper presentation of the matter forming the subject of the bill. Tt does not suffice to make record evidence of the fact that appellant was not a witness in his own behalf. It does not eke out his case that the omission of the judge to instruct the jury, as it is claimed he should, is error patent on the face of the record.

It not appearing, therefore, from the record, affirmatively or with certainty, that the accused did not testify, the assignment of errors filed in this court, seeking to bring the question of the omission to instruct as aforesaid, up for review, cannot be held to really present it for the consideration of the court. 5 La. Ann. 24.

Judgment affirmed.


text:
    No. 12,816.
    Phil. R. Rice and Lucille Rice, His Wife, vs. The Crescent City Railroad Co.
    Syllabus.
    a. A plaintiff's act or omission when only a remote cause, or a mere antecedent occasion or condition of the injury inflicted, is considered not to be contributory negligence.
    .2. A child oí three and a half years is, of itself, incapable of contributory negligence.
    3. No man should be in charge of an electric car as motorneer, running along populous thoroughfares of a city, who has not the full and complete use and sight of both eyes.

      4. No doctrine or rule exists here that the negligence or imprudence of a plaintiff, while not of the proximate character to defeat his recovery, may yet be looked to by the jury or court in mitigation of damages.
    •5. Nevertheless, this court has constantly exercised its reasonable discretion of increasing or diminishing the sums awarded for damages, according as its judgment, operating on the facts, prompted in given cases.
    ■6. It has never been the intention to fix by rule specific sums for different classes of injuries, nor for varying grades and duration of anguish and suffering. ,

      '7. In this respect, each case is considered independently on its merits and on the state of facts peculiar to it, a due regard, however, being always had to the proper observance of a reasonable uniformity of jurisprudence on general lines.
    ON APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Buch, Walshe & Bucle for Plaintiffs and Appellees.

      Farrar, Jonas, Kruiischnitt & Gurley for Defendant and Appellant.
    Argued and submitted November 10, 1898.
    Opinion handed down January 9, 1899.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiffs sue for twenty-five thousand dollars actual damages for the killing of their three and a half year old child,, a little girl, by the electrically-propelled street railway car of defendant company.

The action is brought under the provisions of Article 2315 of the Revised Civil Code of Louisiana.

The demand is for the damages only which the child might have recovered if it had survived, and, consequently, the claim as presented is one accruing to the parents as.heirs of their deceased offspring.

The defense interposed is that the child was injured entirely through the fault and carelessness of the nurse in whose charge she-was; that the nurse was the servant of the plaintiffs, who must be held responsible for her acts; and that if the conduct of the nurse was not the sole cause of the accident, it was the contributing cause.

The case was tried by jury, who returned a verdict of twelve thousand five hundred dollars for plaintiffs, and from a judgment based thereon, defendant company appeals.

A preponderance of evidence sustains, we think, the following, statement of the ease: ‘

Rebecca Oobb, a colored woman, fifty-one years of age, was employed as nurse to the children of plaintiffs. There were two children —the little girl, whose death was the occasion of this suit, and a baby boy less than a year old. The colored woman was, strictly speaking, the nurse of the baby, but it was usual for her to take the two children out for a walk or airing- in Audubon Park in the upper part of the city of New Orleans. Plaintiffs lived opposite the upper end of this park.

November 18, 1896, was a bright, clear, warm autumn day.

In the forenoon of this day the nurse started out with the two children. Her destination was the Park. She had them both in a baby carriage. She appears to have taken the direction down St. Charles avenue to Calhoun street, paid a visit to some one’s house, and then proceeded along the lower side of the latter street towards Magazine street. Magazine street l-uns parallel to St. Charles avenue and distant from it some half dozen blocks. Audubon Park extends from the river to St. Charles avenue. Calhoun street is the first street below the Park and distant from the Park about one block. It crosses-■ Magazine street not far from the river. Calhoun street, including banquettes, is forty-two feet wide, and Magazine street, at the inter-section of the two, is thirty-five feet wide. Along* the center of Magazine street ran two tracks of defendant company’s street railway. The upper track- — the one nearest the river — was used by the cars going down town, and the lower track by those going up town. The space in the street between the outer rail of the lower track and the gutter curb is nine feet, and that between the outer rail of the upper track and the curb ten and a half feet. Magazine street, at that point, is unpaved, and appears not to have been used to any great extent by vehicles drawn by horses, for the street, on either side of the .railway tracks, was covered with grass from six to eight inches high.

Pushing along the baby carriage with its two occupants, the nurse reached Magazine street, when the little girl expressed a wish to get out “to pick some flowers.” These flowers are supposed to have been some clover blossoms growing among the grass in the street near the curb. The nurse assented, put the little one out of the carriage, and then proceeded across Magazine street with the carriage containing the baby. Reaching the river side of the street she turned up, or towards the Park, crossed Calhoun street-and then proceeded up the banquette ou Magazine street. Meanwhile the little g'ii’l had crossed Calhoun street and proceeded along the lower side of Magazine street •in the space between the banquette and the railway track.

Magazine, at the intersection of Calhoun street, is perfectly level, and is straight, looking down town, for a distance of nine hundred feet. Along this straight, level track, at this moment, came car No. 162 of defendant company, going up town. It stopped at ITenry Clay avenue, 1he first street below and parallel to, Calhoun street, and distant from the latter 304 feet.

When the car started on its upward journey! after its momentary stop at Olay avenue, there were five persons aboard. They were Plathorne, the conductor, Eenwick, the motorneer, Diest, a motor inspector and repairer of cars of defendant company, who had hoarded the car some blocks below and was on his way to his home up town for his mid-day meal, and two passengers, Vance and Perilloux.

In releasing the brake of the car to start from Henry Clay avenue, the crank or-handle of the brake slipped from the hand of Eenwick, the motorneer, and, rapidly revolving, struck him in the stomach. T)iest, the car repairer, was on the front platform with Fenwick. The blow from the crank of the brake sickened the latter, and he requested Diest to take charge of the car. The latter consented, stepped into Fenwick’s place, and Fenwick, opening- the door, entered the car to sit ■down. The two passengers were sitting in the interior of the car and the conductor was on the rear platform.

Diest was not a motorneer, but had learned something of the business of running cars on the route, and had had a good deal of experience in running them up and down the car barn, testing the apparatus after making repairs. ,

He was not a skilled or experienced motorneer in handling cars on the regular runs. Indeed, beyond a half day’s work running cars on regular runs he had had no experience in that line of service.

His right eye had been injured in an accident, and it is a fact that he was almost blind in that eye.

As the child, who was run over, was to the right of the car as it went up town, it will be noticed she was on the blind side of this temporary motorman.

One hundred feet from Henry Clay avenue, going towards Calhoun .street, is a circuit breaker, i. e. where the continuity of the trolley wire is broken, and at which point it is usual to turn off the current until ■the trolley wheel has passed this break of continuity.

Diest took charge of the car just before it reached the circuit ■breaker.

He was then something over 193 feet from Calhoun street, that street is 42 feet wide, and according- to his testimony, the child was .about ten feet above the Calhoun street crossing. It thus appears that •she was, in the view most favorably to defendant, at least two hundred and forty-five feet up Magazine street at the moment Diest assumed control of the car. The street was, as stated, level and straight and nothing- obstructed the view of the child. As Diest was on the front platform when the car left Henry Clay Avenue, there was nothing to prevent his seeing- her as far back as that point.

As the car passed the circuit breaker in his charge he increased its speed and went rapidly forward.

Diest did not see the child until his car had reached the crossing ■of Calhoun street. Indeed, in his examination in chief, he says his ■car was'midway of the two crossings of Calhoun street at the time he saw the child. If he saw her for the first time when his car reached the lower crossing of Calhoun street, he was then distant from her only fifty-two feet; if he first saw her when his car was midway of the two crossings he was only thirty-one feet from her. Either distancé was entirely inadequate to the timely stoppage of the car. He should, have seen her from the time he left Henry Olay avenue, and was guilty of gross negligence in not seeing her when he assumed control of the car at the circuit breaker.

Having crossed Calhoun street on the river side of Magazine street and proceeded up the banquette of the latter street, the nurse with the infant in the baby carriage had reached a point about thirty feet above the upper crossing of Calhoun street when she realized that the little girl across the street might be in danger from the rapidly approaching car. Thereupon she left the baby carriage and baby on the banquette and calling to the other child to stay where she was, and hailing the car by voice and signal to stop, she rushed across the street to the child. At that moment the child was in that space of the street between the curb and the outer rail of the up town track. She was perhaps nearer the curb than the rail, but was making towards the track, unconscious, in her infancy, of the danger she was approaching and heedless of the cry of the nurse to stop. The woman succeeded in clearing the two tracks and seizing the child, but too late. At the moment she reached her the latter was at the outer rail of the track, and immediately the car was upon them. When the-car struck, the woman fell upon the fender, was carried along a little-distance, and then thrown to the right into the street. The little girl was thrown under the car and dragged 150 feet up the track before the car could be stopped.

. She was found to be under the rear truck of the car, was taken out horribly mangled and died in about an hour after the accident.

Diest and Fenwick, as witnesses for the defense, assert that the-woman, after reaching the child on the street, started back with her across the track, and in consequence of this was run over. If this was-established it would relieve the company of liability. But we do not consider it established.

The great preponderance of the testimony is that the woman, the child and the car all came together at the same moment, and that just as the woman laid hands on the child in her effort to save it, the impact came.

While it is not altogether certain that the acting motorman sounded' his gong, conceding that he did so, it was done too late.

The attempt to stop the car was not timely, or else the aeting motorman bungled in his efforts to do so. The fact that the car ran 150’ feet after the woman and child were struck is eloquent in refutation of the contention of the defense that there was neither negligence in the effort to stop the car, nor want of skill on part of the motorneer in. doing- so.

The attempt to show that the track was “sweaty” and otherwise in such condition that the car slipped and slided and rendered futile the effort to more speedily check it, in our opinion, failed. The accident happened a little after noon on a bright, sunshiny day.

In ihe nature of things the track was dry and there was testimony to that effect.

That the nurse was not wholly mindful of her duty when she put this child of tender years down on the street with permission to walk along it gathering flowers, in close proximity to the tracks of an electric street railway, is beyond pel-adventure. But this conduct of hers cannot he held to have contributed proximately to the tragedy.

It has even been held that where.ihe conduct of a claimant has, as a matter of .fact, contributed to the accident, but such conduct was not in a legal sense imprudent or negligent, íecovery may be had of a defendant in fault. Knight vs. Pontchartrain Ry. Co. 23 La. Ann. 464. See also Reynolds vs. Railroad Co., 37 La. Ann. 693; Thompson on Negligence, Vol. 2, p. 1129.

A plaintiff’s act or omission, when only a remote cause, or a mere-antecedent occasion or condition of the injury inflicted, is considered not to be contributory negligence. A. & E. Ency of Law, Vol. 7, Second edition, p. 373.

A child of three and a half years of age is, of itself, incapable of contributory negligence. 47th La. Ann. 1218; 43 La. Ann. 63.

Defendant company is, of course, answerable for the fault, imprudence, negligence, want of skill or of circumspection, of its omployeeswhile in the performance of their duties.

It is impossible to escape the conclusion that there was in this case borh negligence, and want of skill and circumspection.

When the accident occurred, and for 250 feet before the child was leached, the car was in charge of a man acting as motorneer, who,, from his want of practical experience in running, handling and managing electric ears on the regular runs, must be held to have been iii-c.mnpetent. To this must he added the further circumstance that he '•‘¡is almost entirely blind of one eye, and that eye. unfortunatelv, on the side next to the child.

No man should be in charge of an electric car as motoneer, running along populous thoroughfares of a city, who has not the full and complete use and sight of both eyes.

The child should have been seen when the car resumed its up-town journey from Henry Clay Avenue. All the more she should have been seen by Iliest when, at the circuit breaker, ké relieved Fenwick of control of the car.

If he saw her and failed to govern his car accordingly — running at such slow speed as to be able to check it immediately should the imminence of danger appear — he was guilty of the grossest, if not criminal, neglect. If he did not see her, it was due to the fact that he was not performing his duty by keeping a sharp out-look, or to the fact of his blindness. In either event, the company is liable.

Nelson vs. Ry. Co. 49 La. Ann. 497; Barnes vs. Ry. Co. 47 La. Ann. 1218; Thorp, Westerfield et als. vs. Levis Bros., 43 La. Ann. 63; Maguire vs. Ry. Co. 46 La. Ann., 1543; Gallagher vs. Ry. Co. 37 La. Ann. 288; Curley vs. Ry. Co. 40 La. Ann. 811.

This brings us to the consideration of the amount for which plaintiffs should have judgment as damages. The verdict returned by the jury, fixing the amount at $12,500.00, is excessive, in view of the established jurisprudence of the State.

As hereinbefoi'e stated, plaintiffs are not suing for any damages they, themselves, suffered by reason of the dreadful calamity which befell them in the loss of their child. No amount of pecuniary compensation could palliate that loss, nor assuage the heartbroken grief ■of which it must have been the occasion. They sue only for such, ■damages as the child, itself, could recover on account of its injuries .and sufferings, had it survived the shock.

We have, in this State, no doctrine or rule that the negligence or imprudence of a plaintiff, while not of the proximate character to defeat his recovery, may yet be looked to by the jury or court in mitigation of damages.

Nevertheless, this court has constantly exercised its discretion, within reasonable limits, of increasing or diminishing the sums .-awarded for damages by the verdicts of juries, or the decrees of inferior tribunals, according as its judgment, operating on tKe facts, -prompted in given cases.

It has never been the intention to fix by rule specific sums for differ■enfc classes of injuries, nor for varying grades and duration of anguisli and suffering. In this respect, each ease is considered independently on its merits and on the state of facts peculiar to it, a due regard, however, being always had to the proper observance of a .reasonable uniformity of jurisprudence on general lines.

The facts and circumstances of this case, we think, justify the re■duction of the verdict of the jury from twelve thousand five hundred ■ dollars to four thousand dollars, and this reduction and its extent is .sustained by the following authorities: Vredenburg vs. Behan, 33 La. Ann. 644; Poirier vs. Carroll 35 La. Ann. 699; Towns vs. Ry. Co. 37 La. Ann. 630; Van Amberg vs. Ry. Co. 37 La. Ann. 655; Westerfield vs. Levis 43rd La. Ann. 63; Mattise vs. Ice Co. 46 La. Ann. 1535; McGuire vs. Ry. Co. 46 La. Ann. 1543; Bland vs. Ry. Co. 48 La. Ann. 1057.

But we do not, considering the same facts and circumstances, feel .authorized to reduce it below that sum, as strenuously insisted on by • defendant’s counsel, even though the court, in the authorities last cited, may have, in most if not all of them, fixed upon smaller allowances in analogous eases.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be amended by reducing the same to four thousand dollars, and that, as thus amended, it be affirmed, costs of .appeal to be taxed against plaintiff and appellee.