text:
    No. 11,800.
    Bertrand Weil, Administrator, vs. New York Life Insurance Company.
    In the matter ol insurance, there is a marked distinction between a warranty and a representation, the latter constituting part oí the proposal for insurance and the former part of the contract of insurance.
    As a general rule, it has been laid down that a warranty must be a part and parcel of the contract of insurance, so as to appear upon the face of the policy itself, as in the nature of a condition precedent.
    It must be strictly complied with, or literally fulfilled before the insured is entitled to recover on the policy.
    Tne warranty need not be material to the risk, because it is of itself an implied agreement that the representations warranted are material.
    A representation is not, necessarily, a part of the contract of insurance, nor is it of its essence; but it is rather something collateral, or preliminary, and in the nature of an inducement to it. It should, ordinarily, by some phraseology of the policy, be made part thereof.
    A false representation, unlike a false warranty, will not operate to vitiate the eon - tract, or avoid the policy, unless it relates to a fact actually material or clearly intended to be made material by the agreement of the parties.
    A PPEAL from the Tenth Judicial District Court for the Parish of Rapides. Andrews, J.

      White & Thornton and Robert P. Hunter for Plaintiff, Appellant.

      Dinkelspiel & Hart for Defendant, Appellee.
    Argued and submitted June 4, 1895.
    Opinion handed down June 17, 1895.
   The opinion of the court was delivered by

Watkins, J.

This suit has for object the recovery of $5000 as the amount for which the defendant insured the life of Oonrad Weil, deceased, on policy bearing the No. 577,832 and bearing the date December 12, 1893, the insured having died January 22, 1894.

The defendant’s answer admits the execution of the policy, but denies all liability, charging violation of the warranty clauses of the application and the policy. There was a trial of these issues, a judgment in favor of the defendant, and an appeal on part of the administrator of Oonrad Weil’s estate.

The salient features of defendant’s answer we will reproduce, and they are as follows, viz.:

“ That the late Oonrad Weil, * * * to induce this defendant to issue said policy and to undertake to insure his life, made application in writing for said policy, which said application is a contract of insurance which was issued, only upon the faith of the statements and declarations made and contained in said application.”

That in said application the deceased “made certain statements and representations and gave answers to certain questions propounded to him, and concerning facts then and there unknown to the defendant, but necessary and material to defendant’s risk, in insuring the life (of the deceased) and issuing the policy,” etc.

That in the course of the applicant’s medical examination he was asked if he had “ever had severe headaches, vertigo, fits, or any nervous or muscular trouble,” and answered “no.”

That in truth and fact the deceased had an attack of trigeminal neuralgia in May, 1893, for which he was treated by a physician for the space of one week; that he had a convulsion on the 22d of October, 1893; and that in November, 1893, he was sick of la grippe for the space of about two weeks. “ That all of said facts were concealed by (the deceased), and not reported to the medical examiner of this-.respondent. ’ ’

That he was farther interrogated as to the name and residence of his physician, to which he answered, “ Dr. Randolph, of Alexandria; ” and that he was requested to state “when and for what have his services been required,” to which he answered “Dengue fever, last month.” Thereupon the answer charges that the deceased concealed from the respondent the other diseases above set forth, for which he had consulted a physician and been treated by him.

That he was further asked “ what other physician have you consulted, when and for what,” and his reply was, “none, and for nothing.” Thereupon the answer represents that “said statements were false and untrue, for the reason that in addition to consulting Dr. Randolph as hereinabove set forth he had, from May 25, 1898, consulted Dr. Smith Gordon of Alexandria, La., for supra-orbital neuralgia, and in June or July (or perhaps later), 1893, the exact date of which is unknown to this respondent, but shortly before the issuance of said policy, the deceased visited the city of New Orleans for the purpose of being examined and treated by Dr. Rudolph Matas. That he was sent to Dr. Matas by his regular physician, the said Dr. Randolph, as an epileptic. That he was treated by the said Dr. Matas several times; was treated by him and received medicine from him.”

Having thus enumerated the various particulars in which the statements and representations of the application of the insured are and were “false and untrue,” and averred that the truthfulness of same was “ necessary and material to defendant’s risk,” the answer declares :

“ That the failure of the said Weil to disclose the material facts herein set forth caused the policy to be absolutely null and void, for the reason that in the application which it was agreed should be the basis of the contract between him and your respondent he warranted the answers to the medical examiner to be full, complete and true, and that the warranty was a condition precedent to and consideration for said policy, which was subsequently issued.

“ That the answers aforesaid being untrue were a breach of the warranty, vitiating the policy and destroying the right to recover thereon.”

The application contains the following clause, on which defendant places reliance, viz.: “That the statements and representations contained in the foregoing application, together with the declarations made by me to the medical examiner, shall be the basis of the contract between me and the New York Life Insurance Company; that I hereby warrant the same to be full, complete and true, whether written by my own hand or not, this warranty being a condition precedent to and a consideration for the policy which may be issued thereon.”

The policy contains a similar provision, viz.:

“ This contract is made in consideration of the written application for this bond policy, and of the agreements, statements and warranties thereof, which are hereby made a part of this contract,” etc.

Upon the reverse of the policy an abstract of the application, the warranty clause and the declarations of the insured are endorsed, and made parts thereof; and a comparison instituted between the said declarations and the averments of the answer shows that the recitals therefrom in the latter are correct.

The physician who attended deceased during last illness certifies that he died of epilepsy, after a brief illness of three or four days, That he had been his medical adviser for about one year previous, and that he treated the deceased once in May of that year for supra-orbital neuralgia. With regard to the cause of his death, that statement is concurred in by two other physicians who were in attendance during the fatal illness. The statement of one of them is that he also attended the deceased during his attack of neuralgia in May, 1893. That he treated him for a fainting spell on October 22, 1893, and for la grippe in November, 1893. That the attack in May lasted one week, that in October one day, and that in November two weeks. He states that, under the treatment in each instance, the deceased was cured completely. These attacks were previous in date to the application which bears date December 7, 1893.

An examination of the testimony taken at the trial does nob differ materially from the statements of the witnesses made parts of the proof of the death of the insured, which were furnished to the defendant.

The theory of the defendant’s answer is that the application is the primary evidence, on the faith of which only the policy was issued to the insured, and that the validity and binding force of the policy necessarily depends upon the statements and representations which are made in the application.

Upon this theory the answer avers that the deceased made, in his application, certain statements and representations, and gave answers to certain questions propounded to him in the course of his medical examination, which is made part of the application, concerning facts “ then unknown to the defendant, but necessary and material to the defendant’s risk;" and it further represents that “said statements were false and untrue,” and that the truthfulness of same was necessary and material to the defendant’s risk.”

Reiterated the representations and statements- alleged to be untruthful are that he answered that he had never had any “ severe headaches, vertigo, fits, or any nervous or neuralgic trouble,” whereas he had an attack of trigeminal neuralgia in May, 1893, for which he had been treated by a physician for the space of a week; an attack of vertigo or convulsions in October, 1893, for which he was similarly treated for a period of several days; and an attack of la grippe in November, 1893, for which he was similarly treated for a period of two weeks. That these different attacks of illness were by the deceased concealed from the medical examiner, and consequently not made known to the defendant at the time it issued the policy.

And the further defence is predicated upon the fact that when interrogated as to the name and residence of his physician, the deceased only gave the name of Dr. R. D. Randolph, whereas, in truth and fact, he was attended by Dr. Smith Gordon as well as by Dr. Randolph during his attack in May, 1893; and was also examined and prescribed for by Dr. Rudolph Matas, of New Orleans, in May, 1893, at the suggestion of Dr. Randolph, of Alexandria. And in truth and fact he was attended by Dr. Gordon in September and October, 1893.

It is not a point made in the answer that the death of the deceased resulted from an excepted cause in the risk of the defendant; but this testimony is pertinent to show the materiality of the information which was necessary that the defendant should have known in determining whether it would issue a policy, and in enabling the court to estimate the probable effect of the failure of the deceased to make known these facts to the defendant through the instrumentality of his medical examination.

Reviewing the parol testimony of witnesses interrogated at the trial, we find the following facts substantially detailed, viz.:

Dr. Smith Gordon says he first attended the deceased on the 21st of May, 1893, and from the 21st to the 31st, when he turned the patient over to Dr. Randolph. That he treated him for supra-orbital neuralgia; that is to say, neuralgia of the tri-facial nerve.

Dr. Randolph says he attended Oonrad Weil on the 21st of May, 1893, and up to the 28th of that month. On being interrogated with reference to those visits he was asked the question: Was there any fainting fit or convulsion, or anything of the kind?” and his reply was: 111 saw no convulsion.” But on being further interrogated and requested to state what he discovered, he replied that “ it looked like he had fainted.”

It appears from the record that Oonrad Weil paid a visit to Dr. Rudolph Matas, of the city of New Orleans, during the latter part of May or the early part of June, 1893, at the suggestion of Dr. Randolph, of Alexandria. ' His situation is better described in his own language, and it is as follows, viz.:

“That his face indicated suffering which was confirmed by his statement that he had been recently much disturbed by periodical but frequently repeated pains injihe face, in the region of the eyes, cheeks and temples, and that these pains were much more intense in the left side of the face. There was a slight but distinct paralysis of the muscles corresponding to the painful regions, and this paralytic condition was more marked in the external muscles of the left eye and cheek. * * * The patient told me that he had had a fit, or convulsion, during which he lost consciousness, some time previously, and since that (occurrence) he had been seized (of) the pains in his face. He was much worried about his condition, and anxious to be relieved of those pains. He was, also, anxious to ascertain the relationship of the present trouble with his previous convulsion. I was not able to satisfy him in this respect, and I told him I would like to keep him under observation for some time before committing myself to a definite diagnosis.

- “ His condition impressed me as being serious, and that the local face symptoms were simply manifestations of some other grave disorder, or lesion of the central nervous system; but what that other condition was I could not tell.

“From his descriptions I concluded that he had an epileptiform convulsion, which had been caused by some reflex, possibly peripheral irritation of the inflamed nerves of the face * * * The patient came to see me again on two or three occasions, and appeared to me to be much relieved of his pains, and improved as to his paralytic symptoms * * * This apparent improvement led me to encourage the hope of final recovery, but the impression as to the gravity of his condition lingered in my mind.”

Again: “The gravity of epilepsy is in proportion to the frequency and intensity of the convulsive paroxysms. Death very rarely occurs during an attack, but indirectly may cause a fatal issue. * * * At any period the symptoms may lessen and the patient recover. Many cases, however, end fatally; but fortunately that condition is rare.”

It is from the concurring statements of these three physicians that the situation of Oonrad Weil on the 21st to 31st of May, 1893, was demonstrated.

Nothing further occurred that is worthy of note until the 11th of the following September, when Dr. Smith Gordon had occasion to visit him again professionally.

With respect to that visit the following occurred, viz.:

Q,. For what purpose (did you visit him) ?

A. Well, he w’as ill. I was there professionally.

Q. Do you remember what for?

A. Well, I can not say positively what the trouble was; he was over his chief trouble when I reached him.

Q. How long did you treat him on that occasion?

A. Only for two days; I made another visit to him on the 12th.

Q. Did you treat him at any other time in 1893?

A. On the 17th of October; also on the 22d of October.

Q. For what?

A. I' don’t know. I can not say exactly. The diagnosis was indefinite.

*********

Q. Was he confined to his bed at all jn May, do you know?

A. He was confined to his bed from the 21st to the 31st of May. Yes, sir. Or to his house. I realiy do not know whether he was in bed or not.

Q. Was (he confined to his bed) on the 7th of October?

A. Then, of course, he was confined to his house.

In speaking of the fatal illness of Oonrad Weil the doctor was requested to state if, in his opinion, that was the first time he had suffered from this disease, and he replied: “No, sir; I think he had epilepsy before that, but I did not know it. I think two of the previous attacks must have been epilepsy — those when it was claimed he had the fainting fits. One of these was in September and the other probably in October. But two, I am sure, in which the family thought he had fainted. Really, I have no doubt they were mild attacks of epilepsy.”

Dr. Randolph supplements this statement thus: That on the 26th of October, 1893, Oonrad Weil came to him and requested him “to make a very thorough physical examination and see if he could find anything wrong about his health,” etc.

Leaving out of view the attack of la grippe, or dengue fever, with which the deceased was affected in November, 1893, it strikes our minds with irresistible force that the materiality of the information with respect to Conrad Weil’s physical condition, during several months prior to the defendant’s undertaking a risk upon his life, is fully established, and that this information was most material for the defendant to have known in determining whether it would or not issue a policy on his life.

And the foregoing testimony is fortified by the further statement of Dr. Smith Gordon with reference to the fatal illness of the insured, viz.:

“ I did not see him at the beginning of the attack. . He fell upon the floor of his store, so it was stated to me when I found him. He was in a comatose state — the secondary condition of an epileptic fit. He had a recurrence of those attacks from time to time until the period of his death, thirty-six or forty-eight hours afterward. I think he must have had twenty or thirty fits, continuing up to the time of his death.”

The manner and circumstances of his death clearly indicate the carefulness of Dr. Matas’ examination of the patient in May previously, and the correctness of his partial diagnosis then made.

Dr. Johnston, the medical examiner, says, as a witness at the trial, that if he had known that the deceased “had been treated for diseases (before his examination) he would not have passed him as a first-class risk, and it had been proved since that he had been treated before. In other words, if he had known then what he knew when testifying, he would not have passed him as a first-class risk.”

In determining the probable effect of the deceased not having made these facts known to the medical examiner, the court is greatly assisted by the sworn testimony of the examiner at the trial.

It is unnecessary that we should discuss the question of the probable truthfulness of the statement of the deceased, or the wilful suppression of the facts in the course of his medical examination. This is altogether unnecessary for the decision of this case, the only question being whether withholding the foregoing material facts on the part of the insured constituted a violation of his warranty to the defendant which rendered the policy of insurance void ab initio.

Recurring to the averments of the answer, we find them to be that to induce the company to undertake to insure his life, the insured made an application in writing for the issuance of a policy of insurance, “ which said application is a contract of insurance,” and that the policy of insurance was issued only upon the faith of the statements and declarations which are made and contained in said application.

The charge is then made that certain fq,ets concerning the physical condition of the applicant, during the several months next preceding his application, which were material to the risk, and necessary for the defendant to have known in determining whether it would undertake the insurance of the life of the deceased, were neither disclosed in his application, nor in his medical examination, which constituted an integral part thereof; and that, in failing to make these material and necessary disclosures, the answers of the applicant to the interrogatories of the medical examiner were, of necessity, untrue.

The answer then avers that the failure of the applicant to make the aforesaid disclosures rendered the policy void ab initio, for the reason that he had, in his application, warranted his answers to the medical examiner to be full, complete and true; and that this warranty was a condition precedent to, and a consideration for, the policy of insurance — the falsity or material insufficiency of the answers constituting a breach of the warranty, and vitiating the policy.

As previously observed, the application declares that the statements and representations therein contáined, together with the declarations made to the medical examiner, shall form the basis of the contract of insurance between the insurer and insured, and that the same shall constitute full warranty of their truthfulness, and be a condition precedent to and a consideration for the policy.

And the recitals of the policy are to the effect that the contract of insurance is made in consideration of the written application of Conrad Weil therefor, and “the agreements, statements and warranties thereof, which are hereby made a part of this contract.”

Upon the reverse of the policy is endorsed a copy of the application, the medical examination of the deceased, and the warranty clause of the contract, thus making of them one complete and homogeneous whole.

It is to this condition of the contract for, and the policy of insurance, as interpreted by the evidence we have detailed, that we are to apply the law and determine the liability vel non of the defendant. As counsel for the plaintiff mainly rely for a reversal of the judgment upon the decision of the Supreme Court in Mouler vs. American Life Insurance Company, 111 U. S. 335, and have made elaborate quotations therefrom in their brief we will reproduce same, as we have compared them with the text and found them to be correct.

We quote from the syllabus of the decision:

“ The principal reaffirmed, that when a policy of insurance contains contradictory provisions, or has been so framed as to leave room for construction, rendering it doubtful whether the parties intended the exact truth of the applicants’ statements to be a condition precedent to any binding contract, the court should lean against that construction which imposes upon the assured the obligations of the warranty. ” (Italics ours.)

“ An applicant for a life insurance was required to state, categorically, whether he had ever been afflicted with certain specified diseases. He answered that he had not. Upon an examination of the several clauses of the application, in connection with the policy, it was held to be reasonably clear that the company required, as a condition precedent to a valid contract, nothing more than that the insured would observe good faith toward it, and make full, direct and honest answers to all questions, without evasion or fraud, and without suppression, misrepresentation or concealment of facts with which the company ought to be made acquainted.

“In the absence of explicit stipulations requiring such an interpetation it should not be inferred that the insured took a life policy with the understanding that it should be void, if at any time in the past he was, whether conscious of the fact or not, afflicted with diseases, or any of them, specified in the questions propounded by the company. Such a construction of the contract should be avoided, unless clearly demanded by the established rules governing the interpretation of written instruments.”

On the merits of that case the court says:

1 ‘ The main defence was that the insured had been afflicted with scrofula, asthma and consumption prior to the making of his application, and that in view of his statement that he had never been so afflicted, the policy was by its terms null and void. There was, undoubtedly, evidence tending to show that the insured had been afflicted with those diseases, or some of them, prior to his application ; but there was also evidence tending to show that he was then in sound health; but that at the time of the application he did not know or believe he had ever been afflicted with any of them in a sensible, appreciable form.” The Circuit Court instructed the jury just what is contended for by the counsel for the defendant in the case at bar: “It is of no consequence, in such case, whether he knew it to be untrue or not; he bound himself for its correctness, and agreed that the validity of his policy should depend upon its being so.” Again: “That he, the insured, did not know he was then afflicted is of no consequence whatever, except as it may bear upon the question, ‘ Was he afflicted? ’ If he was, his answer (for the truth of which he bound himself) was untrue, and his knowledge, or absence of knowledge, on thesubjectis of no consequence.” Further: “You (the jury) must determine whether the insured was at any time afflicted with either of the diseases named. If he was, his answer in this report is untrue, and notwithstanding he may have ignorantly and honestly made it, the .policy is void and no recovery can be had upon it.”

These charges were severally excepted to by the counsel for plaintiff, and the United States Supreme Court held them all to be erroneous and remanded the case. :

The court in this ease cites with approval the following language from the case of National Bank vs. Insurance Company, 95 U. S. 673: “Where a policy of insurance contains contradictory provisions, or has been so framed as to leave room for construction, rendering it doubtful whether the parties intended the exact truth of the applicant’s statement to be in a condition precedent to any binding contract, the court should lean against that construction which imposes upon the insured the obligation of a warranty. The company can not justly complain of such a rule. Its attorneys, officers or agents prepared the policy for the purpose, we should assume, both of protecting the company against fraud, and of securing the just rights of the assured under a valid contract of insurance. It is its language which the court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself.” Citing, Grace vs. American Insurance Company, 109 U. S. 278-282, the court proceeds to say:

“ These rules of interpretation, equally applicable in cases of life insurance, forbid the conclusion that the answers to the questions in the application constitute warranties, to be literally and exactly fulfilled, as distinguished from representations which must be substantially performed in all matters material to the risk ;■ that is, in matters which are of the essence of the contract.'”

As to what is the proper signification of the word “ true ” in insurance contracts the decision is remarkably clear and explicit. We quote from page 345 of the opinion:

“ The entire argument in behalf of the company proceeds upon a too liberal interpretation of those clauses in the policy and applica - tion which declare the contract null and void if the answers of the insured to the questions propounded to him were, in any respect, untrue. What is meant by ‘true’ and ‘untrue’ answers? In one sense, that only is true which is conformable to the actual state of things. In that sense, a statement is untrue which does not express things exactly as they are. But in another and broader sense, the ward ‘true’ is often used as a synonym for honest, sincere, not fraudulent.” In that case the court sums up the whole matter as follows:

“The jury should have been instructed, so far as the matters here under examination are concerned, that the plaintiff was not precluded from recovering on the policy unless it appeared from all the circumstances, including the nature of the diseases with which the insured was alleged to have been afflicted, that he knew, or had reason to believe, at the time of his application, that he was or had been so afflicted.”

Oomparing the foregoing quotation with the terms of Oonrad Weil’s application and the defendant’s policy it is evident that we are dealing with a different instrument, as it is perfectly clear, upon casual observation, that from the syllabus and opinion, in so far as it is quoted, the Supreme Court dealt with a policy of insurance, with regard to the correct interpretation of which they entertained grave and serious doubts. This is evidenced by the statement “that when a policy of insurance contains contradictory provisions, or has been so framed as to leave room for construction, rendering it doubtful whether the parties intended the exact truth of the applicant’s statements to be a condition precedent to any binding contract, the court should lean against that construction which imposes upon the assured the obligation of warranty.”

Therefore the policy of insurance then under consideration did contain “ contradictory provisions,” and was “ so framed as to leave room for construction;” and such being the case the court inclined “ against that construction which imposed.upon the assured the obligation of warranty.”

For our examination counsel for the defendant has produced a complete transcript of that case, which contains a copy of the insurance policy, which the court then interpreted; and an examination thereof has disclosed the following as the controlling recitals thereof, viz.:

“ This policy witnesseth that the American Life Insurance Company, in consideration of the representations made to them in the application for this policy * * * do insure the life of Louis Moulor, of New Orleans, * * * in the sum of ten thousand dollars.”

Again—

“And it is hereby agreed and declared that if the representations and answers made to this company in the application for this policy, upon the full faith of which it is issued, shall be found to be untrue in any respect, or that there has been any concealment of facts, then, and in such case, this policy shall be null and void.”

In Moulor’s “application for insurance ” the following stipulation occurs, viz.:

“It is hereby declared and warranted that the above are fair and true answers to the foregoing questions; and it is acknowledged and agreed by the undersigned that this application shall form a part of the contract of insurance, and that if there be, in any of the answers herein made, any untrue and evasive statements, or any misrepresentations or concealment of facts, then any policy granted upon this application shall be null and void,” etc.

Referring to the opinion of the court in the Moulor case, we find a striking paragraph explanatory of the conditions and stipulations of that policy, to which plaintiff’s counsel make no reference at all.

It is as follows, viz.:

“We have seen that the application contains a stipulation that it shall form a part of the contract of insurance; also that the policy purports to have been issued upon the faith of the representations and answers in that application. Both instruments, therefore, may be examined to ascertain whether the contract furnishes a uniform fixed rule of interpretation, and what was the intention of the parties. Taken together, it can not be said that they have been so framed as to leave no room for construction. The mind does not rest firmly in the conviction that the parties stipulated for the literal truth of every statement made by the insured. There is, to say the least, ground for serious doubt as to whether the company intended to require, and the insured intended to promise, an exact, literal fulfilment of all the declarations embodied in the application.

“ It is true that the word ‘warranted’ is in the application; and, although a contract might be so framed as to impose upon the insured the obligations of a strict warranty, without introducing into it that particular word, yet it is a fact, not without some significance, that that word was not carried forward into the policy, the terms of which control, when there is a conflict between its provisions and those of the application. The policy upon its face characterizes the statements of the insured as representations. Thus we have one part of the contract apparently stipulated for a warranty, while another part describes the statements of the assured as representations. The doubt as to the intention of the parties must, according to the settled doctrine of the law of insurance, recognized in all the adjudged cases, be resolved against the party whose language it becomes"'necessary to interpret. The construction must, therefore, prevail which protects the insured against the obligations arising from strict warranty'1'’ (our italics) ; pp. 342, 343.

This just and appropriate rule of construction was well and aptly applied in that case. It is the basis of that decision. The application, preceding the issuance of the policy, was looked into for the purpose of ascertaining the nature and character of the proposed obligations of the insured; but the terms of the policy were interpreted as controlling the contract of insurance which was actually entered into and binding upon the company. And, as the policyIwas found to contain no clause stipulating for a strict warranty, and it did not recite that (he application formed a part thereof, that fact was construed in favor of the insured. But in the instant case the policy is altogether different. It stipulates in express terms as follows, viz.:

“I do hereby agree as follows: (1) That the statements and'representations contained in the foregoing application, together with those made by me to the medical examiner, shall be the basis of the contract between me and the New York Life Insurance Company; that I warrant same to be full, complete and true.”

In discussing the theory which the Circuit Court entertained, the Supreme Court employed this language, viz.:

“ The Circuit Oourt plainly proceeded upon the ground that the knowledge and belief (of the insured) as to having been afflicted with the diseases specified, or some of them, was not an essential element of the contract; in other words, if the assured ever had, in fact, any one of the diseases mentioned in his answer to the seventh question, there could be no recovery, although the jury should find from the evidence that he acted in perfect good faith, and had no reason to suspect, much less to believe or know, that he had been so afflicted.

“If upon a reasonable interpretation, such was the contract, the duty of the court is to enforce it according to its terms; for the law does not forbid to a contract for life insurance to stipulate that its validity should depend upon conditions or contingencies such as the court below decided were embodied in the policy in the suit.

“The contracts involved in Jeffries vs. Life Insurance Company, 22 Wall. 47, and Ætna Life Insurance Company vs. France, 91 U. S. 510, were held to be of that kind. But unless clearly demanded by the established rules governing the construction of written agreements, such an interpretation ought to be avoided.”

This case seems to come clearly within the rule which was relied upon by the Circuit Court in deciding that case in the first instance.

But plaintiffs’ counsel cite and confidently rely on Alabama Gold Life Insurance Company vs. Johnson, 2 So. Rep. (Ala.) 125, as strengthening and fortifying the theory which they insist is announced as controlling the decision of the Supreme Court in the Mouler case.

Counsel for the defendant has brought up for our examination a certified copy of the life policy which was therein construed, and from it we have made the following pertinent extracts, viz.:

“ This policy of insurance witnesseth that the Alabama Gold Life. Insurance Company, in consideration of the representations made to them in the application for this policy of insurance * * * do insure the life of,” etc.

Again:

“ And it is also understood and agreed by the within assured to be the true intent and meaning hereof, that if the declaration, or any part thereof, made by or for the insured, in the application for this policy, * * * and upon the faith of which this policy is made, shall be found in any respect untrue, then, and in such case, this policy shall be null and void.”

Again:

“ And it is further agreed, and the same is made a part of this contract.” (Vide p. 127 of opinion for extracts from policy.)

It contains, neither in terms nor in substance, any stipulation of warranty, on the faith of which the insurance company issued its policy.

The opinion of the Alabama court thus presents its interpretation of the policy of insurance:

“The question of the most importance which is raised by the rulings of the court in this case is whether the answers made by the assured to the questions contained in the application for insurance are to be construed as absolute warranties,or in the nature of mere representations. The distinction between a warranty and a representation in insurance is frequently a question of difficulty, especially in the light of more recent decisions, which recognize the subject as one of growing importance in its relations particularly to life insurance. As a general rule it has been laid down that a warranty must be a part and parcel of the contract of insurance, so as to appear, as it were, upon the face of the policy itself, and is in the nature of a condition precedent. It may be affirmative of some fact or only promissory. It must be strictly complied with or literally fulfilled before the assured is entitled to recover on the policy. If need not be material to the risk, for, whether material or not, its falsity or untruth will bar the assured of any recovery on the contract, because the warranty itself is an implied stipulation that the thing warranted is material. It further differs from a representation in creating on the part of the assured an absolute liability, whether made in good faith or not. A representation is not, strictly speaking, a part of the contract of insurance or of the essence of it, but rather something collateral or preliminary, and in the nature of an inducement to it. A false representation, unlike a false warranty, will not operate to vitiate the contract or avoid the policy, unless it relates to a fact actually material or clearly intended to be made material by the agreement of parties. It is sufficient if representations be substantially true. They need not be strictly or literally so. A misrepresentation renders the policy void on the ground of fraud, while a non-compliance with a warranty operates as an express breach of the contract.”

This much of the opinion bears directly upon the principal issue in the instant case and is conclusively in favor of the contention of the defendant. It is in strict keeping with the principles we have extracted from the opinion in the Moulor case.

But after announcing the rule above formulated as applicable to policies of insurance containing a warranty clause, the court then states the principles of the law of insurance, which are applicable to the policy of insurance under consideration, and which, as has been shown, contains no covenant of warranty whatever. The opinion proceeds as follows, viz.

“ The mere fact that a statement is referred to, or inserted in the policy itself, so as to appear on its face, is not alone now considered as conclusive of its nature as a warranty, although it was formerly considered otherwise. Whether such statement shall be construed as a warranty or a representation depends rather upon the form of expression used, the apparent purpose of the insertion, and its connection or relation to other parts of the application and policy, construed together as a whole, where these papers constitute one entire contract, as they most frequently do.” Quoting: Bliss Insurance, Sec. 43, et seq.; Price vs. Phœnix Mutual Insurance Company, 17 Minn. 497; 10 Am. Rep. 166-172.

“In construing contracts of insurance, there are some settled rules of construction bearing upon this subject which we may briefly formulate as follows: (1) The courts, being strongly inclined against forfeitures, will construe all the conditions of the contract, and the obligations imposed liberally in favor of the insured, and strictly against the insurer. (2) It requires the clearest and most unequivocal language to create a warranty, and every statement or engagement of the assured will be construed to be a representation, and not a warranty, if it be at all doubtful in meaning, or the contract contains contradictory provisions relating to the subject, or be otherwise reasonably susceptible of such construction. The court, in other words, will lean against that construction of the contract which will impose upon the assured the burdens of a warranty, and will neither create nor extend a warranty by construction. (3) Even though a warranty in name or form be created by the terms of the contract, its effect may be modified by other parts of the policy, or of the application, including the questions and answers, so that the answers of the assured, so often merely categorical, will be construed not to be a warranty of immaterial faces stated in such answers, but rather a warranty of the assured’s honest belief in their truth, or, in other words, that they were stated in good faith. The strong inclination of the courts is thus to make these statements and answers binding only so far as they are material to the risk, where this can be done without violence to the clear intention of the parties expressed in unequivocal and unqualified language to the contrary. In support of these deductions, we need not do more than refer to the following authorities: Moulor vs. American Life Ins. Co., 111 U. S. 335, 4 S. Rep. 466; National Bank vs. Insurance Co., 95 U. S. 673; Price vs. Phœnix Mut. Life Ins. Co., 10 Amer. R. 166, supra; Southern Life Ins. Co. vs. Booker, 9 Heisk. 606, 24 Amer. Rep. 344; Fitch vs. American Ins. Co., 59 N. Y. 557, 17 Amer. Rep. 372; Bliss, Ins., Sec.34; Campbell vs. New England Mutual Life Ins. Co., 98 Mass. 381; Fowler vs. Ætna Fire Ins. Co., 16 Amer. Dec., note, 463, 466; Piedmont, etc., Ins. Co. vs. Young, 58 Ala. 476; Parsons on Contracts, 465; Glendale Woolen Co. vs. Protection Ins. Co., 54 Amer. Dec. 309, 320; Wilkinson vs. Connecticut Mut. Life Ins. Co., 30 Iowa, 119, 6 Amer. Rep. 657; 1 Phil. Ins., Sec. 338; Ang. Ins., Secs. 147, 147 a.”

Finding that the policy contained no stipulation of warranty, the court held that the statements and representations of the insured were binding on him only in so far as they were material to the risk; and finding that the alleged misrepresentations related to matters which were immaterial to the risk, rejected the pretensions of the insurance company, and affirmed a judgment enforcing the policy.

The foregoing synopsis of the quoted cases will serve as a full and sufficient citation of adjudications,, as the true distinction between policies containing covenants of warranty and those which do not, and it is so clearly and forcibly made, and backed with authorities, that any further argument would prove to be a work of supererogation.

With respect to warranty we have extracted from May on Insurance the following, viz.:

“In all contracts of insurance, certain statements are made, certain stipulations are entered into, etc.

* * * * * * *

“Asa general rule, if these statements, stipulations, etc., are contained in, or explicitly made a part of the policy, they become warranties, and are so denominated in the law of insurance.

* * * * * * *

“ An express warranty is a stipulation inserted in writing on the face of the policy, on the literal truth or fulfilment of which the validity of the entire contract depends. This is the definition given by Arnold, which has met with general acceptance. 2 Arnold’s Insurance, 577. By warranty the insured stipulates for the absolute truth of the statement made and the strict compliance with some promised line of conduct, upon penalty of forfeiture of his right to recover, in case of loss, should the statement prove untrue, or the course of conduct promised be unfulfilled. A warranty is an agreement in the nature of a condition precedent, and like that must be strictly complied with.” May on Insurance, See. 156.

Again:

“ Whether the fact stated, or the act stipulated for, be material to the risk or not, is of no consequence, the contract being that the matter is as represented, or shall be promised; and, unless it prove so, whether from fraud, mistake, negligence, or other cause, not proceeding from the insurer, the intervention of law, or the act of God, the insured can have no claim. * * *

“Indeed, one of the very objects of warranty is to preclude all controversy about the materiality or the immateriality of the statement.

“ The only question is, has the warranty been kept ?

“ There is no room for construction; no latitude, no equity. If the warranty be a statement of facts, it must be literally true. If a stipulation that a certain act shall or shall not be done, it must be literally performed.” Ibid.; 1 Bacon’s Life Ins., See, 104, et seq.

Applying the principles of law herein above related to the application of the insured, and to the policy of insurance issued by the company, there is in our minds no possible doubt that there was a breach of the warranty by the insured, on the faith of which the insurer undertook the risk. "We might go one step further and admit, for the argument, a proposition not admissible in law, that a covenant of warranty only guarantees the truthfulness of a statement of facts which is material to the risk, and yet, on the proof, the plaintiff would not be entitled to recover.

Judgment affirmed.

Nicholls, O. J., absent.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 11,770.
    State of Louisiana vs. Jim Murray, alias Greasy Jim.
    Notwithstanding all the names which are drawn from the jury wheel were those of white persons, if proof be not administered that all the names therein were of white people, the theory of the defendant, a colored person, that discrimination against his race was resorted to on account of race, color, or previous condition of servitude, can not be of avail. And proof being made of the fact that persons of African descent were not excluded from the general veuire, but, on the contrary, that some colored people were included therein, the charge that the accused has been deprived of due protection of the law is unfounded.
    Act 170 of 18S4, being an amendment of Sec. 2 of Act 98 of 1880, is not a local or spe cial law, in the sense of Art. 48 of the Constitution — the constitutionality of the original act having been affirmed by this court.
    Other bills of exception taken to rulings of the trial judge already affirmed and approved need not be again analyzed.
    That a motion to transfer a cause to the Circuit Court of the United States has been made and overruled does not divest the court of first instance of jurisdiction ; nor can a petition to same effect, subsequently filed in the Circuit Court of the United States, have fhat effect.
    A PPEAL from the Oriminal District Court for the Parish of Orleans. Moise, J.

      M. J. Cunningham, Attorney General, Charles J. Butler, District Attorney, and John J. Finney, Assistant District Attorney, for Plaintiff, Appellee.

      Thomas F. Maher for Defendant, Appellant.
    Argued and submitted May 11, 1895.
    Opinion handed down June 3, 1895.
    Rehearing refused June 17, 1895.
   The opinion of the court was delivered by

Watkins, J.

Having been convicted of murder and sentenced to the extreme penalty of the law, the defendant has appealed, relying upon a variety of technical pleas, though chiefly upon the complaint that he is a colored man and that the deceased was a white man, and in the selection and drawing of the grand jury there was an unlawful discrimination against the black or colored race in favor of the white or Caucasian race, whereby he sustained an unjust deprivation of his legal rights.

First in order is defendant’s bill of exceptions to the overruling of his challenge to the array. Substantially, it is that in selecting the persons whose names were placed in the jury wheel, from which the grand jurors who found the bill and the petit jurors who tried and convicted him were drawn,, the jury commissioners violated the provisions of various State and Federal statutes, as well as various provisions of the State and Federal constitutions, in that they discriminated against citizens of the black or colored race, so that he was deprived of an equal protection of the law during the progress of the trial.

That, consequently, the indictment against him was null and void.

Simplified, the complaint is that citizens of African descent were excluded from the jury wheel, and consequently from participating in the trial from the commencement to the end.

This, of course, depended upon the proof, of which the defendant carried the burden.

The evidence fails to support the challenge.

Each of the jury commissioners was called as a witness for the purpose of substantiating the charge, but their evidence completely overthrows it. The trend of their cestimony is that they had acted with perfect fairness and impartiality in the discharge of all their duties as jury commissioners and in strict conformity to law.

That there were quite a number of names of colored men in the jury wheel at the time the venire was drawn, and that there were at least two colored men on the panel from which the grand jury who found the indictment against the defendant were chosen.

That they have never, in the performance of their duties, made any discriminations on account of race, color or previous condition' of servitude.

Defendant’s counsel also called and interrogated as witnesses quite a number of deputy sheriffs, who served summonses on the persons whom the jury commissioners desired to examine preparatory to jury service.

The purport of their evidence is that a large preponderance of them were constructively notified by making domiciliary service, and being unacquainted with them personally they could not state whether they were colored or white persons.

The evidence shows that there were some persons of color who were members of the grand jury who found the bill, and it is, therefore, quite clear that the general venire was not exclusively composed of white persons, and it is thus made clear that colored citizens were not excluded from the venire on account of race or color.

The trial judge cited and relied upon State vs. Joseph, 45 An. 905. It is quite a similar case, and the same issue was therein raised and decided.

Admitting the premises arguendo, the court say:

“ It is quite true that all the names which were drawn from the box were those of white people, yet it is not established by any testimony in the record that all the three hundred names in the general venire box were those of white people. This is destructive of defendant’s theory, because he had the chance of some colored persons being drawn from the box, unless it was exclusively made up of the names of white persons. And, in addition to this argument, is the fact, sworn to by one of the jury commissioners, that people of African descent were not excluded from the venire box on account of their race or color.”

There is no question in our minds of the correctness of the trial judge’s ruling.

With regard to the defendant’s complaint as to the action of the court with reference to his motions for subpoenas duces tecum on the register of voters and the jury commissioners, nothing need be said, because they cnt no figure in the case, since the testimony which was elicited from the witnesses clearly show that his challenge to the array was groundless. As these subpoenas could not have practically affected the l’esult, in the face of the positive testimony adduced on the trial of the motion, it might be conceded for the argument, that the proceedings under them were irregular, though such is not the case by any means, as the subpoena directed to the jury commissioners shows that it was intended only as a means of eliciting information, and not for the purpose of obtaining books and papers, which were particularly described therein.

Defendant’s counsel retained a bill to the judge’s refusal to quash the indictment on the ground that Act No. 170 of 1894, under the provisions of which the grand jury was drawn, is unconstitutional, null and void — it being a local or special law, and not enacted according to constitutional requirement by giving previous public notice.

The act drawn in question purports to be ian amendment and reenactment of Sec. 2 of Act 98 of 1880 to organize the Oriminal District Oourt of the parish of Orleans, in pursuance of Art. 180 of the Oonstitution of the State; to create a Board of Jury Commissioners, and for other purposes.

Immediately after the title of this amendatory act comes this prefatory clause, viz.:

“ Whereas due proof has been made that notice of intention to apply for the passage of this act has been published in accordance with the provisions of Art. 48 of the State Oonstitution,” etc.

The provisions of Art. 48 of the Oonstitution are as follows, viz.:

“ No local or special laws shall be passed on any subject not enumerated in Art. 46 of the Oonstitution, unless notice'of the intention to apply therefor shall have been published, without cost to the State, in the locality where the matter or thing to be affected may be situated; which notice shall state the substance of the contemplated law, and shall be published at least thirty days prior to the introduction into the General Assembly of such bill, and in the same manner provided by law for the advertisement of judicial sales.

“The evidence of such notice having been published shall be exhibited in the General Assembly before such act shall be passed, and every such act shall contain a recital that such notice has been given.”

This amendatory statute appears to strictly conform to the foregoing constitutional requirement in every particular, and its recitals must be accepted as the final and conclusive proof of such notice of intention having been given, and that such proof was “ exhibited in the General Assembly” before the passage thereof, there being no charge of fraud or ill-practice in procuring its enactment.

No extrinsic proof is admissible for the purpose of contradicting the recitals contained in a legislative act. State ex rel. Morris vs. Mason, 43 An. 590.

But we think it evident that the amendment must follow the conditions of the statute that is thereby amended; and it was held and interpreted by this court not to be a local or special law. State vs. Dalon, 35 An. 1141.

In treating the question here raised, the court there said:

“It has no private or local good in view, but aims solely at the enforcement of the laws enacted for the prevention and punishment of crime. It is a public, a general aet’which regulates the common good of each and every member of the human family within the limits of the State.

“ The words ‘ local ’ or ‘ special ’ are clearly used in contradistinction of the word ‘ general.’

* * * * * * *

“ A moment’s reflection satisfies the mind that the intention to apply, alluded to, can only mean that of private individuals seeking some private advantage or advancement for the benefit of private persons or property within a certain locality.

“It is manifest that the act assailed was one of indispensable necessity to put in motion a court created by the Oonstitution, and which, without such legislation, would have remained lifeless and cumbersome.”

We can but regard that reasoning sound and the authority of that decision complete.

On neither proposition can defendant’s complaint be sustained. The judge below correctly declined to sustain the alleged unconstitutionality of the law and properly maintained the indictment.

Immediately after the defendant’s motion to quash was overruled his counsel filed a motion to transfer'the cause to the Circuit Court of the United States, which is exclusively based upon the grounds assigned in the challenge to the array of grand jurors and other rulings of the court previously discussed.

This motion was at once overruled and the transfer of the cause refused.

This refusal was a matter of course, in view of the previous rulings of the court below, which we have found correct and approved.

Had we, on the other hand, ascertained the fact to be that the jury commissioners were guilty of illegal discrimination against citizens of African descent, within the sense of the Federal statutea snd Constitution, our ruling would have been different and the motion to transfer unnecessary.

After the trial was completed a motion for a new trial is made, substantially, upon the same grounds as those already gone over, coupled with a criticism of the written charge of the court to the jury.

Of course, the correctness of the rulings of the trial judge on the propositions enumerated necessarily draws to it the correctness of the judge’s declination to grant a new trial predicated on the theory that his rulings were erroneous, and we have uniformly held that unless exception has been first taken to the charge of the court objections urged for the first time in a motion for a new trial will be of no avail.

At this juncture in the proceedings counsel for the defendant tendered a motion in arrest of judgment, based on the ground that he having filed a motion to transfer this cause into the Circuit Court of the UnitedStates, under and by virtue of Sec. 641 of the Revised Statutes of the United States, and having subsequently filed and docketed said petition in said Circuit Court conformably to law, this court is not possessed of jurisdiction or authority any further to proceed in the cause. ■ And thereupon defendant’s prayer is that the judgment of the court a qua be arrested, that the trial and verdict be declared a nullity, and that he be surrendered to the Circuit Court in order that the cause be therein proceeded with according to law.

The question here presented, so far as the jurisdiction and authority of the court a qua is concerned, goes back to the challenge to the array again. If the challenge was causeless, all subsequent proceedings were, necessarily, legal and jurisdictional — ultimately subject to such decision as the Federal tribunals may make in the premises.

We must deal with the issues presented, and, in our view, there is nothing in them to justify the conclusion that the court a qua did not have full and complete jurisdiction. The motion in arrest was correctly refused.

Having examined this case with the care required in a case involving the life of a human being, we have reached the conclusion that there is no error in any of the rulings defendant has complained of. But we can not refrain from applauding the zeal and vigor with which counsel for the defendant has defended the accused.

Judgment affirmed.


author: McEnery, J.

text:
    No. 11,823.
    Mrs. Ellen Longino et als. vs. John R. Phipps.
    fleirs who take possession of a succession are responsible to the other heirs for the portion taken by each heir, and not in solido for the entire succession. In all cases of conflicting testimony, based upon the recollection of witnesses, and on estimates made by them, it is safe to accept the conclusions of the trial judge, whose position enables him to judge with accuracy of the weight to be given to the testimony of each witness.
    APPEAL from the Third Judicial District Court for the Parish of Olaiborne. Barksdale, J.

      J. W. Holbert and J. E. Moore for Plaintiffs, Appellees.

      McClendon & Seals for Defendant, Appellant.
    Submitted on briefs June 8, 1895.
    Opinion handed down June 17, 1895.
   The opinion of the court was delivered by

McEnery, J.

This is a suit to partition the effects in the succession of I. Phipps, who died in the parish of Olaiborne in 1892. The defendants concur in the demand of plaintiffs, but deny that they have received from the succession the amounts with which they are charged. There was judgment directing a partition and charging the defendants with certain amounts, and ordering the remaining property in the succession to be sold. The defendants appealed, and •complain of the judgment decreeing more than they had received in the succession, and that they should not be held in solido.

It seems from the evidence that the defendant heirs, who were domiciled in the parish of Olaiborne, except Mrs. Taylor, who had received her full share in advance, on the death of I. Phipps, took possession of the farm on which deceased liyed, the stock and effects of the succession, and partitioned the proceeds among themselves. The testimony as to the amount of corn, fodder, cotton seed and the rental value of the place is based upon the recollection and estimates of the witnesses, and we are not disposed to disturb the findings of the District Judge as to the quantity of each left among the effects of the deceased. In all eases of conflicting testimony, or where it is based upon estimates from the recollection of the witnesses, it is safer to accept the conclusions of the District Judge, as he has better opportunities of judging what weight is to be given the testimony of each witness. In this particular case it is of greater necessity to accept his conclusions, as the defendants had it in their power and failed to take an accurate inventory of the effects of the succession.

J. R. Phipps, one of the heirs, found among his father’s papers a note due by one Short, the husband of one of the heirs. He sent this note, which was for five hundred and sixty-two dollars, to Short. The decree held Phipps and- several of the heirs in solido for this note in case it is not returned to the succession. There was error in holding the other heirs liable for the note. The other heirs may have been in possession of the property of the succession with Phipps, but they are not liable for his individual disposition of its effects. J. L. Phipps drew from P. Loewenberg two hundred and ninety-nine dollars and nineteen cents for the use of the farm. The decree orders the heirs in possession to be held in solido to the •other heirs for the amount, but as between the five heirs in possession of the property to be charged to J. L. Phipps.

The judgment in this particular is erroneous if it charges these heirs in solido for the portion of the succession received by each. Each heir is responsible for only that part of the succession which he illegally appropriated. We interpret the language of the decree to mean that Phipps is responsible for the whole amount, receiving his reimbursement from the heirs who participated in the disbursement of this sum. A decree ordering each heir to collate the portion he received would meet the requirements of the case, and be in accordance with the responsibility each assumed in taking possession of the effects of the succession.

The decree also makes the heirs liable in solido in the event of the property not bringing enough to equalize amounts due .other heirs with those charged with specific sums, for the value of rent, corn, cotton seed.

The reasons assigned for the liability of each heir in the disbursement of the amount of cash drawn from Loewenberg will apply to this part of the decree also.

The defendants are liable for the costs of the sale, provoked by them without judicial process. It is claimed that there are some costs due by the succession in two cases. The succession is charged with the payment, and on the final partition each heir will pay his part of the costs, to be deducted from his portion. There is no necessity for incorporating this in the judgment.

The appellees ask that the judgment be amended so as to make its language more explicit as to the sale of the property. This prayer will be complied with, although there is no real necessity for doing so.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to charge the heirs, J. R. Phipps, J. E. Phipps, P. L. Phipps and Mrs. Patrick, each with one-fourth of the sum of two hundred and ninety-nine dollars and nineteen cents, drawn from Loewenberg in 1892, and used on the farm, and with one-fourth of the value of the rent, corn, cotton seed and fodder; that the judgment in solido against G. E. Phipps, J. L. Phipps and Mrs. Patrick, for the Short note of five hundred and sixty-two dollars, be reversed.

1 It is further ordered that the decree be amended so as to order enough of the property of the succession to be sold for cash to pay the portion coming to plaintiff, Mrs. Longino, and that she be paid the proceeds of the sale, and that the portion of the minor heirs be sold for cash, or on such terms of credit as a family meeting may advise, the succession to pay costs of this appeal.

Nicholls, O. J., absent.


text:
    No. 11,843.
    The Bank of Minden vs. The Lake Bisteneau Lumber Company.
    It is not a good ground for dismissing an appeal, that the transcript has been filed before the expiration of the delay for answering the appeal. The appellee is only entitled to the delay in order to answer. •
    A bond that is good for a suspensive appeal is sufficient for a devolutive appeal.
    It is the duty of the appellant to furnish a complete transcript. If a part of the record is not in the transcript, and such part is essential to decide the case, and the applicant makes no effort by certiorari to complete the transcript, after his attention has been called to the omission by a motion to dismiss, the appeal will be dismissed,
    A PEAL from the Second Judicial District Court for the Parish of Webster. Watkins, J.

      L. K. Watkins tor Plaintiffs, Appellees.

      Leonard & Randolph and D. W. Stewart for Defendants, Appellants,
    Argued and submitted June 10, 1895.
    Opinion handed down June 17, 1895.
    On Motion to Dismiss.
   The opinion of the court was delivered by

McEnery, J.

The order of appeal makes it returnable “ according to law.” The transcript was filed May 13, 1895. The citation of appeal was served on appellees on April 1, 1895. The number of days in which they were entitled to answer had not expired when the transcript was filed. This is no cause for a dismissal of the appeal. The appellees were entitled to the delay before answering, and having done so and the case submitted, there is now no occasion for the delay. Objection is made to the insufficiency of the bond as to amount and the insolvency of the sureties. This is a matter for the consideration of the lower court.

The form of the bond is for a suspensive appeal. The appellee urges this to be insufficient and that it should have been devolutive in form. If it is sufficient as a suspensive appeal bond, which covers the costs in the case as well as the judgment in the principal demand, it is assuredly sufficient for a devolutive appeal where costs alone are recoverable on the bond. Chaffe vs. Carroll, 34 An. 122.

The interest of the appellee is shown by the petition for the appeal and the affidavit of the attorney attached to the same. The objection, therefore, of the want of an appealable interest in the appellant is not sustained by the record.

The plaintiff was a judgment creditor of the defendant corporation. He caused an execution to issue under it, which was returned “no property found.” The plaintiff in execution on the sheriff’s return, under Sec. 688 Revised Statutes, presented a petition to the District Judge for the appointment of a receiver for the corporation, and the liqiudation of its affairs. The judgment, fi. fa. and return were annexed to and made part of the petition. The receiver was appointed, and the appellant, a stockholder, applied for and obtained an order of appeal from the judgment appointing the receiver. In order to decide the case the papers annexed to the petition are essentiál parts of the record. They are not in it. It was the duty of the appellant to send up a complete transcript. He has not shown that he was not in fault, nor has he applied for a certiorari to complete the record, even after the motion to dismiss was filed.

The appeal is therefore dismissed at appellant’s costs.

Nicholls, O. J., absent.


text:
    No. 11,839.
    Heirs of Burney vs. John T. Ludeling.
    The party in possession is the only one liable for rents, fruits and revenues.
    The true owner of property can avail himself of the judgment against the warrantor.
    A PPEAL from the First Judicial District Oourt for the Parish of Ouachita. Richardson, J.

      Charles J. Boatner for Plaintiffs, Appellants.

      Wise & Herndon (E. T. Lamkin of Counsel) for Mrs. 'Katie Whithed, Tutrix, and F. T. Whithed, Oo-tutor, Defendants and Appellants.

      Stubbs & Russell for Stubbs and others, Defendants, Appellants.

      R\ G. Hudson for Mrs. M. C. Ludeling, Defendant, Appellee.
    Argued and submitted June 8, 1895.
    Opinion handed down June 17, 1895.
   The opinion of the court was delivered by

McEnery, J.

This case was before us in the early part of the present session of this court and remanded for the sole purpose of identifying certain sales of real estate disposed of by the defendants. Heirs of Burney vs. Ludeling et als., 47 An. 73.

On a trial, under the decree remanding the case, there was judgment for plaintiffs. Both parties appeal.

■Without detailing at length the objections urged by parties to the judgment, we will state the complaints against it, which are, that interest was improperly allowed on certain sales from the date of the sales, and that the judgment is erroneous in not decreeing the defendants liable in solido, and that a part of the property was held in indivisión, and sold to certain of defendants by Ludeling as the agent of all, and that these defendants being in possession of the property, the price thereof can not be recovered, as the judgment rendered had dispossessed them of title.

The answer to these objections to the judgment can better be explained by referring to the original opinion in this case, by which it will be observed that the theory upon which the decree was rendered is that the property in controversy was originally a plantation; had been cut up and divided into town Iocs, and its identity destroyed. The town had been abandoned, and the property was comparatively valueless. In other words there was an inability of the defendants to restore what they had originally acquired. Hence we said: “The obligation of defendants to restore the thing, the fruits and the revenues, or the price in case they have alienated it, results not from an offence, or quasi offence, but from a quasi contract.”

The evidence did not disclose that any fruits or revenues were derived from the property. The property was acquired under the forms of law, and in this we distinguished the suit from one sounding In damages for a quasi offence, to which the allegations in plaintiffs’ petition assimilated it. The defendants, had they sold the property in its original condition, could not have been sued for the price, without affirming the sale. Had prescription been acquired by the purchasers, they could not have recovered the price from the vendors. The vendors would not owe a restitution of the price to the plaintiff, but to his immediate vendee in warranty. The person who receives the fruits, rents and profits is the only one to respond for them. Gillespie vs. Bank, 35 An. 779; New Orleans vs. Gaines’ Administrator, 131 U. S. 191.

If suit had been brought against the vendees of defendants and they had been evicted and judgment had been rendered against them for fruits and revenues, their warrantor would have been liable to them for the same. This provision of the civil law accomplishes the same result as that in the equity jurisprudence in the other States, it being the law of Louisiana that the warrantor must protect the vendee from the hardship of paying that which his warrantor ought to pay. The true owner can, of course, by subrogation, avail himself of the judgment against the warrantor. But before a recovery can be had for fruits and revenues due the owner by the vendee during his possession, there must necessarily be first a judgment obtained against the vendee and on a call in warranty against the vendor.

The particular facts in this case gave us a great deal of thought, and believing that the plaintiffs had been wronged when minors, we felt justified in making almost an exception of the case, and ordered a return of the price received by defendants for the property sold.

A suit against defendants’ vendees and a judgment against them would not have had the effect of restoring the property as it originally existed. The defendants, under the facts in this case and for the reasons stated, are only liable for interest from judicial demand. The defendants are not liable in solido. This question was finally disposed of in the opinion and decree remanding the case.

What has been said will apply to the objection to that part of the judgment which makes some of the defendants liable for property purchased by them. It is out of their power to restore the property as it originally existed as a plantation.

It is therefore ordered that the judgment be amended so as to annul that part of it which makes some of the defendants liable for interest from the date of the respective sales, and it is now ordered that they pay interest from judicial demand. In other respects the judgment is affirmed, plaintiff to pay costs of appeal.

Nicholls, O. J., absent


text:
    No. 11,848.
    Ardis & Co. vs. Theus & Armistead, and Board of Liquidators Arcadia State Bank vs. Theus & Armistead.
    The insolvent condition of the husband and alleged suspicious circumstances at the time of a dation enpaiement may exist, but if the reality of the indebtedness of the husband to the wife is shown and the property transferred bears a just proportion in value to the indebtedness and the wife is placed in possession of the property, the dation will be maintained.
    If the father advances money to his son-in-law, who is in commercial business, with the intention that it shall be used in said business, and it is so used, the intention of the father that the advances were made for and in behalf of the wife can not prevail over the fact that the money was actually loaned to the husband. And the same may be said of land transferred to the husband for the purpose of raising money for his firm. The reason is the stronger when the husband is a silent member of the firm, lending it his name in order to strengthen its credit.
    APPEAL from the Second Judicial District Court for the Parish of Bienville. Watkins, J.

      D. W. Stewart and J. E. Reynolds for Plaintiffs, Appellees.

      J. A. Dormon and J. W. Holbert for Defendant, Appellant.
    The creditor of the husband can not question the form or validity of a donation to the wife. 2 La. 40; 3 An. 610; 22 An. 487; 36 An. 219, 748.
    A donation of immovable property may be made and stand good against creditors, when the father deeded the property to the husband and gave the price to the daughter. 2 La. 40; 17 An. 230; 22 An. 487; 26 An. 594; 32 An. 432.
    Parol evidence admissible to show that money advanced to the husband was really intended as a donation to the wife. 22 An. 97; 27 An. 465; 10 R. 198; 13 An. 197; 10 La. 254; C.C. 1539, 1541, 1550; 34 An. 511; 36 An. 551, 565; 30 An. 966; 37 An. 209.
    Argued and submitted June 12, 1895.
    Opinion handed down June 17, 1895.
    Rehearing refused June 29, 1895.
   The opinion of the court was delivered by

McEnery, J.

These suits were consolidated, but it seems that we have only to deal with a transfer or sale of certain property made by defendant, Theus, to his wife.

We need not notice the facts as to the insolvency of the husband and the attendant alleged suspicious circumstances of the sale by the husband to the wife. These facts may exist and the sale to the wife to replace her paraphernal property converted by the husband be legal and valid.

As repeatedly stated by this court the essential facts to maintain the validity of the dation are the real indebtedness of the husband to the wife, the just value of the property transferred for the existing debt, and the delivery of the property to the wife.

If Theus owed his wife the price stated in the dation en paiement, and the property bears a reasonable proportion in value to the price, and she actually was placed in possession of the property before any right was asserted upon it, the dation will be maintained, regardless of the motives which actuated the husband in making restitution and of the financial embarrassment in which he may be placed.

In the instant case we will confine ourselves to an examination of the question whether the debt was owing from the husband to the wife.

Theus married the daughter of Captain Brice, a man of ample means, to aid and assist the husband, or to give to his wife ample portions of his fortune, as she was an only child. In 1882 Theus was in commercial business in the firm of Theus & Marburry. Captain Brice gave Theus two thousand dollars and loaned Marburry two thousand dollars, for which he took his note. Marburry sold his interest in the firm to Theus, the price being the two thousand dollar note held by Brice. This sum of four thousand dollars^ it is alleged, Captain Brice gave to his daughter, which the husband converted, and for which he is indebted. Brice says that it was the intention that this sum was to be given to the wife; that his intention was that Theus should receive it for her account, and that for this sum he had no expectation of a return, nor was it his intention to receive from Theus a reimbursement. It is unfortunate that his intention was not expressed at the time, preserved in such shape as to be valuable to the wife and daughter, it is a noticeable fact that the wife had no appreciable knowledge of this donation; nor of the others which it is alleged the father made to her. The circumstance of an absolute absence of any declaration at the time, or any evidence whatever that the money was intended for the daughter, forces the conclusion that the money was a loan to the son-in-law, or an accommodation to him. This we think is sustained by the subsequent transaction between Brice and Theus. But this is the only item of the indebtedness which could possibly be allowed, and it is so insignificant in value to the property transferred that the dation would be set aside on this account. The money, if intended for the wife, was by the donor given directly to the husband to be used in commercial business, and to stand its chances in the uncertainties of trade. It was, given then, by the donor, for use by the husband immediately and under such conditions it would be carrying protection to the wife, far beyond the already liberal construction which the court has placed upon the articles of the Oode in her behalf in the restitution of dotal and paraphernal funds. Oaptain Brice finally became a member of the firm of Theus & Oo. He took no active interest in the firm, put nothing in it and, as he says, drew nothing out. His name was permitted to be used only to strengthen the firm and to give it credit. Yet he was a partner and was, with Theus, responsible for the firm’s debts. He kept an account there, although it is stated he knew nothing of the manner in which the books were kept and never authorized the entries. They were made, however, and he is not in a position to deny them.

During the existence of the firm he advanced several large sums of money to Theus, which he says were also gifts to his daughter. Oaptain Brice was credited with these sums as against his account for merchandise which he owed, and in a running account at the dissolution of the firm there was a large balance due him. The amounts were moneys to Oaptain Brice’s credit in Monroe and New Orleans, and were placed to Theus’ credit, and drawn against by him, and on Theus & Oo.’s books credited to Oaptain Brice.

These amounts Oaptain Brice says were intended as gifts for his daughter. Whatever may have been his intention, the facts show that they went into a commercial firm of which he was a member and figured in its affairs. The firm of Theus & Oo. was embarrassed. A large tract of land, some 2800 acres, was sold by Brice to Theus. He says no price was paid for it, and this was also intended as a gift to Mrs. Theus. The matter also rests upon the intention, without an extraneous fact to show that a gift to Mrs. Theus was made. Theus mortgaged the property, and we understand Oaptain Brice to say that the “ land transaction ” was for the purpose of raising money for the firm of Theus &Oo., or for securing by mortgage of the property some of the large creditors of the firm.

If we have misinterpreted his testimony, the facts show that the land was mortgaged to two creditors, in New York and New Orleans, for the purpose of securing the firm’s indebtedness. Under the facts of this case this question is suggested: Can a parent advance money directly to the husband with the intention that it is a gift to the wife, when at the very moment of its advance there is the intention also that the money shall be instantly used by the husband in his commercial ventures? Every rule of construction is that the money is loaned to the husband, and can not be considered as a donation to the wife.

There is no doubt that Captain Brice, who is so well and favorably known, believed that by assisting the husband he was advancing to his daughter a part of his fortune, which would be returned to her. His testimony is on this line, and is open and candid; but it is unfortunate that his intention did not find some practical form in which io embody itself.

Judgment affirmed.

Nicholls, C. J., absent.


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    No. 11,831.
    Hugh J. McDonald vs. Louisville & Nashville R. R. Co., East Louisiana R. R. Co., New Orleans & North Eastern R. R. Co.
    A collision of railroad trains brought about by the concurring negligence of two companies will render them liable in solido to an injured party.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Benjamin Biee Borman for Plaintiff, Appellee:
    Where a railroad company permits another company to exercise the franchise by running cars drawn by steam over its road, the company owning the road and to which the law has entrusted the franchise is liable for injury done. Macon, etc., Ry. vs. Mayes, 49 Ga. 355; 5 Wallace, 105.

      Denigre & Denigre for Louisville & Nashville R. R. Co., Defendant and Appellee.

      Harry H, Hall for New Orleans & Northeastern R. R. Oo., Defendant and Appellant:
    A railrosd company authorized by act of the Legislature to contract, to perform its transportation with another railroad company may permit that company to use its tracks without becoming liable for the negligence of that company. Act 60 of 1870, Sec. 4; Hutchinson on Carriers, Sec. 515, p. 585, and authorities.
    And such legal use of track and immunity will result from a traffic arrangement. Morawetz on Private Corporations, I, Secs. 876* 377, 378, 379, 380. . , -
    Farrar, Jonas & Kruttsohnitt for East Louisiana Railroad, Defendant and Appellant.
    Argued and submitted June 6, 1895.
    Opinion handed down June 21, 1895.
    Opinion refusing rehearing June 29, 1895.
   The opinion of the court was delivered by

McEnery, J.

The defendant corporations are sued in solido for ten thousand dollars damages inflicted upon plaintiff’s wife in a collision of the trains of the first two defendants, at the intersection of the New Orleans & Northeastern Railroad and the Louisville & Nashville Railroad, at People’s avenue and Patriot street, on the morning of October 14, 1894. There was judgment against the East Louisiana and New Orleans & Northeastern Railroad Company in solido for plaintiff in the sum of one thousand two hundred and fifty dollars, with five per cent, from date of judgment.

The East Louisiana, to reach its own track, has to pass over and use the track of the New Orleans & Northeastern Railroad Company. The East Louisiana was running its own train, and on its own schedule. They are separate corporations, and the contract between them is for the mutual interest of both lines covering the interchange of traffic between points on the line of the road of the New Orleans & Northeastern south of but not including Pearl River Station. There is nothing in the agreement to indicate ownership of the East Louisiana by the New Orleans & Northeastern, nor is there any stipulation that would indicate that the latter road is to be responsible for any damages to third parties by defective equipments of the former’s trains running over the New Orleans & Northeastern tracks.

The plaintiff’s wife was a passenger on the Louisville & Nashville Railroad when the collision occurred, and received severe and painful injuries, from which she had not entirely recovered when this suit was filed.

At the crossing, the Louisville & Nashville road, it is conceded, had the right of way; that is, the right when trains on both tracks were approaching the crossing, to pass over first.

The Louisville & Nashville Railroad train, as it approached the crossing, stopped at the “ stop board,” some three or five hundred feet from the crossing. It gave the usual signals, but no response was made by the train of the East Louisiana road.

The engineer of the Louisville & Nashville train, believing the track was clear, from hearing no signals, moved forward to cross. When seventy-five feet from the crossing, he saw the East Louisiana train coming at a distance of three-quarters of a mile. The train moved on, the engineer says, he was sure the engineer of the East Louisiana was preparing to stop. When one car was on the crossing, the engineer of the Louisville & Nashville became convinced that; the East Louisiana would not stop. He then put on all the force he could to clear the crossing. There were eight coaches in his train, and the East Louisiana struck the sixth coach. The train, when put in motion to cross, was going at the rate of six miles per hour.

The “slow post ” on the Northeastern road is 3500 feet from the crossing; the “stopping post” 300 feet. The engineer of the Louisville & Nashville says in his testimony: “ When I saw him rolling by the ‘stop board,’ I knew the speed he was going at. I saw that he was not going to stop his train, and I threw the reverse lever down in the corner, and opened the throttle valve to get out of his way as quick as I could, but I couldn’t do it quick enough on account of stopping at the ‘ stop board.’ ” The engineer of the East Louisiana says that as he approached the “ slow board ” he blew the whistle for the crossing, and “let his train,” as he supposed, “roll up, ‘half way,’ as it was an incline.” He was going at a high rate of speed, twenty-five miles per hour. When half way between the “ slow hoard” and the “ stop board” he applied the air brake, but it did not work. He called for hand brakes and succeeded in reducing the speed of the train to two miles, when it struck the Louisville & Nashville train.

There is no doubt as to the negligence of the East Louisiana. The air brake, it is said, was in good condition when the train left the depot, and that it had been inspected prior to the departure of the train. The defect in the brake is accounted for on the supposition that it had been maliciously tampered with. There is no evidence of any kind that points to this conclusion. It is much more reasonable to assign as a cause the oversight of the inspector, or some inherent defect in the brake, than to attribute it to some depraved and malicious creature, without even the slightest suspicion upon any one.

Notwithstanding this defect in the air brake of the East Louisiana road, the accident would not have happened had the engineer of the Louisville & Nashville exercised ordinary care and judgment. When he saw the train it was in time, about two minutes from the crossing. It would take his train about the same time to go over the distance, say one thousand one hundred feet from where he first saw the approaching train, in order to clear it, if it kept at the same speed at which it was going, twenty-five miles per hour. Human life is too precious to take chances in the small margin of time here presented. He ought to have stopped his train and waited for the stopping of the approaching train at the “stop board” on the Northeastern Railroad track. Although the Louisville & Nashville train had the right of way, the engineer had no right to exercise it in the presence of immediate danger. In attempting to exercise this right, with the approaching train so near the crossing, he had to assume that it was in order in all its equipments, and no contingency would prevent its stopping at the “ stop board.”

The engineer’s experience and his trained judgment ought to have taken in the situation and appreciated the danger in taking such chances within such limited time. The fraction of a minute was important in calculation, and the least derangement of the machinery or equipment of the approaching train would cause the loss of this precious time.

Surely human life is too valuable to be sacrificed to save in the scheduled time of a train such an inappreciable amount.

Both trains were in default, and the fault of each was simultaneous and concurred as a proximate cause in bringing about the accident. They are liable in solido to the plaintiff.

It was said in argument that there was no contractual obligation between the plaintiff and the East Louisiana Railroad, as he was not a passenger on its train. The claim for damages arises as against the East Louisiana Road ex delieto. Had the Louisville & Nashville been without fault, would the plaintiff have been denied relief against the East Louisiana road? We see no force in this contention.

It is ordered, adjudged and decreed that the judgment appealed from be amended, reversing that part as to the New Orleans & Northeastern Railroad Company, and that part as to the Louisville & Nashville Railroad Company, and it is now ordered that plaintiff’s demand against the New Orleans & Northeastern Railroad Company De dismissed, and that there be judgment against the Louisville & Nashville Railroad Company in solido with the East Louisiana Railroad Company for the amount of the judgment appealed; in other respects the judgment is affirmed, the defendant roads against which judgment is rendered to pay costs of appeal.

Nicholls, C. J., absent.

On Application for Rehearing.

In the application for rehearing it is urged that the amount awarded by the jury and affirmed by this court is excessive, and that this court assigned no reason fob the amount of damages allowed. It was entirely unnecessary to go into details of plaintiff’s injury.

The testimony of the physicians show that her injuries were severer than mere bruises or contusions, and that the injuries inflicted were more than temporary. She was not well at the trial of the case and exhibited her injuries had to the jury. Dr. Butterworth, a competent physician, says that at the time of his testimony she suffered some, and this must be a necessary consequence of the condition of the hand, which he describes as having the outside bone of the hand fractured near the bone of the little finger; that she seemed to be nervous, and that the third and fourth Angers were stiff. This was the condition of the hand a few days before the trial. Besides, it is shown that the plaintiff was hurt about the shoulders; that her left leg was dark and bruised.

It is true the first physician who saw her discovered no fracture of the bone of the hand, but it is asking too much of this court to believe that the broken bone was a self-inflicted injury.

From the condition of the plaintiff when she received her injuries and when she appeared in court, we are satisfied her suffering from the time of the accident until the trial was severe and painful. Dr. Butterworth says that the probabilities are that the plaintiff will never have her hand restored to its first healthful condition.

Under the circumstances of the case and the testimony in the record, the jury assessed the damages at a reasonable amount, and had we been disposed to interfere with the verdict we would have increased rather than diminished the amount of damages.

The cases referred to in the brief of defendants are, with few exceptions, those in which temporary injuries were suffered and the inconveniences to plaintiffs were limited.

Rehearing refused.


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    No. 11,787.
    Louis Raymond Moustier vs. Bella Meyer, His Wife.
    The judgment of the lover court will be affirmed, on questions of fact, when the District Judge says the witnesses were of low character, prostitutes and till tappers, were inconsistent in their statements, some of which were improbable, and that upon his conscience he can not accept their statements.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      A. L. Tissot for Plaintiff, Appellant.
    Submitted on briefs June 4, 1895.
    Opinion handed down June 17, 1895.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff instituted this suit to obtain a divorce from his wife on account of adultery.

The plaintiff wronged the defendant wife, and afterward, on the 10th day of May, 1892, married her, as he alleges, to legitimate their child, a girl, born 13th day of September, 1890. He asks for the custody of the child.

After the marriage the plaintiff never lived with tbe wife nor had any marital relations with her. He has never supported her nor the daughter, nor in any manner contributed to their comfort. If the wife went astray the husband was to a great extent responsible by his want of attention to her, and in not supporting her with the necessaries of life, and in not giving her that protection which should shield her from temptation. Under these circumstances, if these facts stood alone, we Would be reluctant to grant to the plaintiff the relief asked for, and thus add to the already overburdened wife the loss or her child, particularly when there is no assurance that she would be better cared for physically and morally.

The testimony in the record, cold and unsympathetic, leaves the impression upon the mind that the wife is depraved, and is physically a strong, healthy, unblushing prostitute. Under ordinary circumstances this testimony would be sufficient to free the husband from such a wife. It is a rule that great weight should be given to the opinion of the trial judge as to the conduct and appearance of the witnesses when on the stand. Fortunately, in this case, the lower judge has given a most graphic description of the witnesses, and the defendant and her protectors. His language is eloquent with indignant protests against the credibility of plaintiff’s witnesses, and the modest, virtuous and unpretentious appearance of the wife, and the humble though impressive appearance of her protectors, the uncle and the grandfather.

He characterizes the two main witnesses of plaintiff as confessed prostitutes; one of them had been the mistress of plaintiff. “ Much that I have said,” says the District Judge, “ as to these female witnesses, as to the inconsistency of their statements, applies to the witnesses Mank and Maggioli and Miller. The latter was a till tapper, a man of no morals, appearing in his manner and speech as unreliable, and the former, who did not stand the test of cross-examination, were his friends and associates. They are flatly contradicted by Oontreras, in the matter of the particulars stated as to him.

“Defendant is a frail-looking, small woman. Her manner in court was shrinking, timid, modest, retiring. She has nothing in appearance or manner, in look or bearing, that would indicate the brazen, hardened, abandoned woman.

“I saw and heard the witnesses who accused the defendant, and; on my conscience, I am unable to accept and believe what they say. All the appearances of defendant, and of her family, and all the conduct of the plaintiff’s family, stand as mute witnesses in defendant’s favor; yes mute, so far as speech may go, but forceful and convincing and effective to overthrow the statements of plaintiff’s witnesses. This defendant was seduced by plaintiff; she trusted to him and married him. He turned from her and made a mockery of all her hopes and spat upon his marriage vows.”

When witnesses are of such low character and degree as described by the trial judge, and are inconsistent in their testimony, and some facts related improbable of occurrence, and the appearance and conduct of defendant and the attendant circumstances of the trial are such as to contradict their statement, and he says on his conscience he can not believe them, we will accept his conclusion and affirm the judgment.

Judgment affirmed.

Nicholls, C. J., absent.