text:
    No. 12,392.
    Succession of L. Octave Hymel. On Opposition of Mrs. F. E. Tassin.
    A provisional account was filed by the executor.
    It was opposed by a renouncing co-heir, who was a creditor.
    The account was homologated so far as not opposed, leaving for future determination the issues raised by the opposition, carrying with it the renunciation. •
    The judgment of homologation made evident the acceptance of the succession by those heirs who had not renounced.
    On trial of the opposition the claim of opponent, as a creditor, was rejected and effect was given to the renunciation.
    •On appeal the judgment was affirmed, save as to the renunciation.
    The near kinship of the.heirs, and the fact that there was possibility of an intended waiver of the advantage and benefit resulting from the renunciation, owing to the further fact that the renunciation was hastily made, without cause (although it was not made in ignorance), the court remanded the case for further evidence upon this point.

      On this appeal, it is manifest, that the accepting heirs had aecepteti the succession before the renouncing heir had attempted to revoke her renunciation and claimed all the advantages and benefits resulting from the renunciation.
    Heirs duly cited, who do not object, but, on the contrary, practically accept the account as correct, the account being approved and homologated, inherit the rights (and charges) of the estate, including the accretion, for the benefit of the heirs who have accepted.
    One who renounces can not revoke her renunciation after her co-heirs and co-legatees have accepted the succession.
    APPEAL from the Twenty-first Judicial District Oourt for the Parish of St. Charles. Rost, J.

      James Legendre and Robert G. Dugué for Executor, Appellee.

      Fenner, Henderson & Fenner and Jos. F. Poché for Opponent, Appellant.
    Argued and submitted March 3, 1897.
    Opinion handed down March 15, 1897.
   The opinion of the court was delivered by

Breaux, J.

Before proceeding to the consideration of the particulars of this case, it is proper, we think, to recall the issues presented in the case bearing the same title. Succession of Hymel, 48 An. 737.

The controversy grew out of an opposition by Mrs. F. E. Tassin, claiming that as an heir of her mother she was a creditor of her father’s succession, and that her claim should be placed on the account of administration of the succession.

There were only three children, heirs of the late L. Octave Hymel, at the date of his death: Mrs. F. E. Tassin and her two brothers, Seraphin Hymel and Joseph R. Hymel.

In his will, L. Octave Hymel, after bequeathing comparatively small amounts to several of his grandchildren, and a few movables, and ten thousand dollars to his son, Joseph R. Hymel, appointed him executor, and bequeathed the residuum of his estate to his three children jointly.

An inventory was taken of the decedent’s estate, showing assets appraised at thirty-seven thousand six hundred and eighty-one and six-one-hundredths dollars.

Subsequently, the executor filed a provisional account in which, after payment of the debts and special legacies, he distributed an amount of succession fund to each of the heirs in equal portions. The executor provoked a judgment homologating the account so far as not opposed. The judgment recites that no opposition had been filed save the opposition of Mrs. Tassin. The latter, at the date that her opposition was filed, had renounced in due form the benefit of the residuary legacy in her favor, and had abandoned all hereditary rights in the succession over and above the legitime, and had expressly restricted her claim to the legitime and the amount for which, she averred, she was a creditor.

Judgment was rendered dismissing her opposition, rejecting opponent’s claim as a creditor, giving effect to her renunciation, and distributing the funds.

In the brief in support of the application for a rehearing Mrs. Tassin, through counsel, urged that the judgment of the District Court (to which we have before referred), homologating the account, which begins as follows: The law and the evidence being in favor of the executor and against the. opponent, Mrs. Tassin, it is ordered, adjudged and decreed that the opposition of Mrs. Tassin be and it is hereby dismissed at her cost,” completely disposed of the issue before the court, and that from the moment the opposition was dismissed the function of the court was ended; that the prior judgment homologating the account, so far as not opposed, became, with the dismissal of the opposition, absolutely final and effective, and that no further decree was either necessary or appropriate. She urged further, in matter of this homologation of the account in question, that the judge committed an error, and acted ultra petitum in proceeding, as he did, to amend the account by striking out an allowance in her favor, which the executor himself had judicially admitted to-be due, to her, which he had expressly prayed might be confirmed and approved by the court, which, with full knowledge of her renunciation, he had proven to be correct, and had actually adjudged to be correct, save only as opposed by Mrs. Tassin, and in the absence of any prayer that judgment can not be given for more than is claimed. In the brief it was stated that the silence of the executor and of the heirs, after Mrs. Tassin had filed her opposition and published her renunciation, their persistence in the prayer to have “ the funds distributed in accordance with the account,” their action in provoking a judgment of homologation without even suggesting any amendment, their failure at any time to ask any amendment of the account, indicated their unwillingness to claim judicially the benefit which they might have claimed from Mrs. Tassin’s renunciation, and amounted practically to a waiver of such benefit. We believe, added counsel in the brief, they so intended it, and that not one of them would have been willing to file any pleading in court asking their sister, notwithstanding her renunciation, should be deprived of what her father had bequeathed to her.

The court remanded the case for the purpose stated in the decree remanding the case.

After the case had been remanded Mrs. Tassin offered to revoke her renunciation of the legacy left her by .her father, and expressed her desire to avail herself of the benefit of his will.

Before the attempted revocation had been filed, the executor filed a final account of administration, in which he stated that, in view of Mrs. Tassin’s renunciation which enured to the benefit of her co-heirs, he proposed to distribute the funds of the succession between himself, as an heir, and the children of Seraphin Hymel, his only co-heir. He prayed for legal service of the account upon Mrs. Tassin and the children of Seraphin Hymel.

The executor interposed a plea against any attempt by Mrs. Tassin to revoke her renunciation after (he alleged) her co-heirs had accepted the succession and the benefit of the renunciation.

All the heirs joined in this plea, and claimed the benefit of the renunciation.

Judgment was rendered maintaining the validity of the renunciation, dismissing Mrs. Tassin’s demand, and the opposition homologating the account.

Before finally exercising the power of deciding the issue growing out of the renunciation of the legacy, we determined to let the interested parties be heard a second time, particularly for the reason suggested, of a possible waiver by the co-heirs of any advantage or benefit resulting from the renunciation.

Under the rules of practice effect was given in the court below to the renunciation, evidence of which was admitted, although not alleged. There was, we believed, when the case was before us on appeal, a possibility that between a brother and the children of a brother deceased and a sister, dividing their patrimony, (despite her renunciation made sine causa), she would by them be offered the opportunity to revoke this hasty and improvident act. In matters which may trench upon family peace and family union, in regard to which the State itself as a question of policy should not be entirely unconcerned, courts may. in the exercise of their sound legal discretion, require direct and positive evidence. In pursuance of this purpose, to the co-heirs were given the opportunity to disavow the effect of a technical ruling of the District Judge, which was not unalterably binding.

They did not, however, decline to avail themselves of the advantage —on the contrary, they eagerly sought the right accruing from the renunciation, on the trial after the casé had been remanded.

There is now only one question remaining — that is, whether prior to May 2, 1896, when Mrs. Tassin filed her revocation of her renunciation, her co-heirs had accepted the succession.

It is proper here to state: it is conceded by all parties concerned that the renunciation can not be revoked if the co-heir has declared his wish to profit by it or has accepted the succession, which is substantially the principle expressed in Art. 1031 of the Civil Code ■authorizing withdrawal of renunciation.

We believe that the heirs intended to accept, and that they had •accepted at a date prior to May 2, 1896, when Mrs. Tassin filed her asserted revocation.

Our reasons for thus concluding are: there was cash in the possession of the executor which he sought to distribute among the heirs.

Two accounts had been filed; one a provisional and the other a final account. (The heirs were duly notified.)

The first was homologated in so far as not opposed; the second was filed on the 23d of April, 1896.

With reference to the first account; it was finally homolgated as a whole. It is true that the opposition of Mrs. Tassin was dismissed as urged by her counsel. It remains that the judgment of dismissal did not have the effect of striking out the renunciation she had made and the evidence of which renunciation she had introduced in evidence. Technically it was possible for the court to give it the effect intended at the time by the remaining heir and she, in strict law, is without right to complain. When the account was homologated in so far as not opposed, the claim of Mrs. Tassin remained in' abeyance, and when subsequently her claim was rejected and her-opposition was dismissed, to her renunciation was properly given effect. The heirs, it is now abundantly established, did not intend, in any manner to waive anything.

Passing to the second account of administration filed by the executor as relates to acceptance of the succession by the Hymel heirs-other than Mrs. Tassin, it is an approval of the first account and an affirmance of their acceptance, as we take it, of their acceptance as-made evident, when the first account was homologated.

The account distributing the funds among the heirs as such are in effect partitions. The executor as an heir was unquestionably bound by his declaration that he, as an heir, was entitled to the-amount declared to his credit, and the other heirs (parties to theaecount as heirs) were equally as emphatic, that they consented to the homologation of the account. There was a question of fact-raised at bar, about the date of consent given by .the heirs to thehomologation of the last and final account. Granted, as to this-date, that it is, as urged by the appellant, the homologation of the first account bound the heirs as having accepted.

“Demander le partage dit Furgole, est de tous les actes d’heritierleplus expres; c’est 1’exercise du droit hereditaire proprement dit,. on ne peut pas etre copart-ageant sans etre heritier.” Laurent, Vol. 6, See. 333, par. 3.

There is before us no question of error or the want of professional, advice. When Mrs. Tassin renounced, she had a legal adviser who, presumably, advised her correctly and informed her of the effect of' her renunciation upon her right as an heir.

It is, we think, proper to state that the legal adviser at the time-the renunciation was made was not the counsel who represented her on appeal to this court. This completes the review of the question presented, and we find no ground upon which the appellant can be-relieved. It only remains for us to affirm the judgment.

It is therefore ordered, adjudged and decreed that the judgment, appealed from is affirmed at appellant’s costs.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 12,280.
    State National Bank vs. Bryant & Mathers.
    1. A warehouseman who had received cotton on deposit from a factor issued his warehouse receipt for the same, deliverable to the depositor, or his order, only-on surrender of the certificate. The factor, who had deposited the cotton in his own name in the warehouse, pledged the warehouse receipt to one of his own creditors. Certain parties claimed a portion of the property in the hands of the depository, alleging that the factor was without authority to pledge the cotton. The warehouseman called on the person who had made the deposit and the holders of the warehouse receipt that they might oppose the restitution, and judgment was rendered contradictorily between these parties, ordering the depository to surrender the cotton to the claimants. Held: That the delivery by the warehouseman to the claimants, under the judgment, protected him against any liability to the pledgee of the warehouse receipt. O. C. 2934.
    2. A warehouseman issued a warehouse receipt for two hundred and twenty-five bales of cotton then actually in his warehouse, but without specification on the receipt of the particular bales of cotton received, deliverable only on surrender of the receipt, endorsed by the original holder. The depositor pledged this receipt to one of his creditors by endorsement of the receipt, and the pledgee gave immediate notice of the pledge to the warehouseman. The depositor, subsequently, deposited other cotton in the same warehouse, receiving a receipt for the same, also without designating the particular cotton covered by it. He then died. At the time of his death only seventy bales remained in the hands of the warehouseman, the balance haying been delivered, under orders of court, to parties who had successfully claimed ownership and possession thereof. In a contest (for the balance of the cotton on hand) between the pledgee of the warehouse receipt and the administrator of the succession of the depositor — Held: that the former was entitled to recover the cotton. Cutters vs. Baker, 2 An. 572; Williams vs. Pinor, 10 An. 277; Cammach vs. Floyd, 10-An. 351; Connery vs. Webb, 12 An. 272; Newton vs. Gray, 10 An. 67.
    APPEAL from the Civil Judicial District Oourt for the Parish of Orleans. Théard, J.

      James McConnell for Plaintiff, Appellant.

      Farrar, Leake & Lemle and Chrétien & Suthon for Public Administrator, Appellee:
    The estate of Marx being insolvent the Public Administrator represents the creditors,’ and was a third person quoad the State National Bank.
    No valid pledge has been provedas against the Public Administrator, who is a third person, he representing the creditors of S. E. Marx, his estate being insolvent. 14 An. 375; 15 An. 165; 32 An. 586; 31 An. 865; Art. 3158, Revised Civil Code.

      Where the possession of the pledgor is not sufficiently complete to prevent substitution, the pledge is not valid. 46 An. 1046; 96 U. S. 476.

      E. W. Huntington and H. L. Dufowr for Defendants, Appellees.
    Argued and submitted December 5, 1896.
    Opinion handed down January 4, 1897.
    Rehearing refused February 1, 1897.
    Statement oe the Case.
    Plaintiff alleges “ that on the 12th day of January, 1894, Simon E. Marx, then a cotton factor in good commercial standing in this city, applied to the State National Bank for and obtained a loan of eight thousand dollars, giving as collateral security five negotiable warehouse receipts issued by the Louisiana Ootton Press, Bryant & Mathers, proprietors.”
    “ These receipts were dated on the 11th day of January, 1894, and certified that the Louisiana Ootton Press had received from S. E. Marx (in the aggregate) two-hundred and twenty-five bales of cotton in their warehouse, marked as per margin (“marks' various”) “ to be delivered upon return of this receipt properly endorsed.”
    “ The word ‘negotiable ’ was stamped by Bryant & Mathers, in red ink, across the face of each certificate before they were issued. That these facts determined the commercial value of these certificates as collaterals, and rendered, absolute the condition expressed on the face of the receipt, that the number of bales specified in each receipt would be “delivered only upon the return of the receipt properly endorsed.”
    “The bank made this loan applied for by Mr. Marx solely on the credit of these five certificates. A pledge note, in the form usual in the banks, was then executed, in which the two hundred and twenty-five bales of cotton called for by the five receipts were pledged, and notice was on the same day sent to Bryant & Mathers that the bank held in pledge the five receipts, specifying the numbers and amounts. Ten days later, to-wit, on the 22d of January, 1894, Mr. Marx died. On the day after Marx’ death a meeting of the board of directors of the bank was called and the matter was submitted to them for action, and apprehending that legal complications with the estate of Marx might arise from delay, the board adopted a resolution authorizing Mr. John M. Parker to demand, receive and sell the cotton.”

    “ On the 23d of January, at 3 o’clock P. M., Mr. John M. Parker proceeded to the Louisiana press, tendered the five certificates duly endorsed by S.E. Marx, and demanded the two hundred and twenty - five bales of cotton. To this demand the first reply of Mr. Mathers was that “ as no marks were specified on these warehouse receipts, they did not know which cotton to deliver us,” and subsequently a positive refusal was given.”
    “ The refusal to deliver was made on the 23d, and the first seizure by any party claiming the cotton was not made until the 26th — three days after the refusal.”

      “Bryant & Mathers, having refused to comply with the obligation of their certificates, which was to deliver two hundred and twenty-five bales of cotton on return of the receipts properly endorsed, the bank brought suit to recover the damages sustained by their refusal.”
    The answer of defendants sets up:
    1. That in the course of business, Simon E. Marx at various times stored various lots of cotton in their press,' and for the cotton so stored they issued at his request cotton press receipts certifying that they held a certain number of bales of cotton of various marks stored in their press by Marx.
    2. That these receipts were similar in form and purport to those customarily issued by the various cotton presses of this city, and negotiated by the various banks, and particularly to those issued by the Louisiana Press to Simon E. Marx, and negotiated by the State National Bank.
    8. That there were receipts outstanding for two hundred and seventy-five bales of cotton of various marks stored by Simon E. Marx, and there were two hundred and seventy-five bales of cotton to represent the same in defendants’ press under defendants’ control at the time of the issuance of said receipts, where they still are, with the exception of such bales as have been taken from defendants by judicial process in various suits to which the plaintiff bank was made a party, and in which it appeared.
    4. That defendants were simply the cnstodians of the cotton, responsible in law for its retention until the receipts issued for the same were returned for cancellation, or the property was taken from them ,by judicial process, and they were not in law or justice guarantors of the title of Marx to the cotton.
    5. That they admitted a demand was made by John M. Parker & Oo. in behalf of the State National Bank, on January 28, 1894, for two hundred and twenty-five bales of cotton, and a tender was made by him of the five cotton press receipts sued on, but they denied that they refused to deliver any cotton.
    6. That they averred the truth to be as follows: That they informed said Parker that they he Id in their press and under their control a number of bales of cotton, sufficient to cover all the cotton press receipts issued by them to Marx, but as Marx had not set aside a specific number of bales of special marks for each receipt, and there being no description of marks as usually given in such cases, .accompanying the order for delivery and the receipts, defendants were without information as to the subject, and unable to point out what cotton was covered by the receipts, but offered to' deliver said cotton when pointed out and identified by said State National Bank and said Parker.
    7. That the fact was notorious and must have been known to plaintiff when said warehouse receipts were endorsed to them, that generally cotton factors in this city are not the owners of cotton stored by them in the presses of this city.
    8. That by proper inquiry, plaintiff would have ascertained that Marx was not the owner of the cotton represented by the press receipts issued to him by Bryant & Mathers, and had no interest therein which authorized him to pledge same.
    9. That plaintiff could have protected itself under the law providing for the issuance of cotton press receipts, by requiring before effecting a loan to him from Marx, proof of the ownership o£ the property pledged, and if any loss has fallen on said plaintiff, it was due to its failure to take the proper and prudent precautions in the premises.
    10. That at no time during the life of Marx was any demand made by the bank to designate the specific marks of, or set aside the ¡specific bales covered by each of the press receipts held by it, and had plaintiff made such a demand, defendants could have called on Simon E. Marx to designate and set aside the cotton covered by each receipt.
    The succession of Simon B. Marx, the holder of a receipt for fifty bales of cotton of the two hundred and seventy-five bales stored at the Louisiana Press by him, and remaining there at the time of his death, was made a party to the suit, and answered by setting -up the illegality of the pledge of the receipts to the plaintiff bank, and claiming the cotton.
    There was judgment rejecting plaintiff’s demand, and from that judgment this appeal has been taken.

      Copy of note ancl act of pledge annexed to plaintiff’s petition:
      “ New Orleans, January 12,1894.
      “ On demand after date, I promise to pay to the State National Bank of New Orleans, or to the order of its cashier, at the banking house of said bank, in United States notes, National Bank notes or gold coin, eight thousand dollars, for value received, with interest at the rate ot 7 per cent, per annum after date until paid. To secure this obligation and any other liabilities to said bank now existing or which may hereafter arise, I do hereby pledge to said State National Bank or its assigns, as collateral security for said note and other liabilities (225) two hundred and twenty-five bales cotton in Louisiana Press, and agree to give additional security to keep up the present margin whenever the market value of the above collateral should decline. And in the event of failure to make good such margin within twenty-four hours after notice so'to do, or in the event of prompt payment of this note, according to its tenor, said bank or its president or cashier is hereby authorized to sell or cause to be sold, without the intervention of courts of justice, and without notice to me or the public, at public or private sale, at its or his option, all or any part of said collaterals, applying the net proceeds first to the payment of expenses incurred by said sale, to the discharge in part or whole of this note, any surplus to be applied at the option of the bank or its officers to the payment of any of my liabilities to said bank now existing, or which may hereafter arise. In case of deficiency I promise to pay said bank the amount thereof forthwith after such sale, with 8 per cent, interest. I hereby also agree that on failure to comply and pay said obligation: as hereinabove stipulated, I shall by the mere act of said failure be adjudged tobe in default without any demand or notice whatsoever. In case of a sale of collaterals, said State National Bank or the holder of any liability hereby secured may become the purchaser thereof without any right of redemption on my part.
      “ (Signed) Simon E. Marx.”
      The five warehouse receipts referred to are identical in form, all bearing date January 11,1894. Four of them are receipts (each) for fifty bales of cotton, while the fifth is a receipt for twenty-five bales.
      The following is a copy of one of the first four:
      “ Marks No. 499. N. O., January 11,1894.
      and Received from Simon E. Marx,
      number in our warehouse, fifty (50)
      of bales bales cotton marked as per m irgin,
      various to be delivered only upon the return of
      50 this receipt properly endorsed,
      bales. (Signed) Louisiana Cotton Press,
      “•bryant & Mathers.
      “ Eadorsement on back of receipt
      “ (Signed) Simon E. Marx.”

   The opinion of the court was delivered by

Nicholls, C. J.

The defendants in this case are the proprietors of ¡the Louisiana Press in the city of New Orleans, in which parties are in the habit of storing cotton for a consideration. Among their customers was one Simon E. Marx, who, during the season of 1893 and’ 1894, stored several thousands of bales in their warehouse. Marx died on the 22d of January, 1894. At the time of his death the State National'Bank, plaintiffs herein, were the holders of the fiye receipts, signed by the defendants, which they annexed to-their petition, in which they acknowledged that they had received from Marx two hundred and twenty-five bales of cotton, to be delivered only upon the return of the receipts properly endorsed, while the succession of Marx held a similar receipt for fifty bales. After- Marx’s death,, plaintiffs made a demand upon the defendants' to deliver to them two hundred and twenty-five bales of cotton, notifying- them that if they did not do so they would hold them responsible for the value of he same. The bank, immediately upon receiving the receipts, had notified defendants that they were the holders of the same under Marx’ endorsement. Defendants having failed to deliver, for the reasons assigned by them in their answer to plaintiffs’ supplemental petition, the present suit was instituted. Erom the evidence it would appear that the cotton presses in New Orleans very frequently hold, for some length of time, cotton in store for their customers without issuing directly to them receipts for the same at all; that when they are called on so to do, the storer determines the wording of the receipts as well as the number of bales for which receipts are to be issued. The usual form of the receipt is that shown by this record, in which the marks upon the bales are referred to simply as being “various,” modified, when requested so to do, by entering on the margin of the receipts the special marks which were on the articles, stored at the time of storage. It frequently happens that outstanding receipts having been brought in and surrendered, new receipts are given either for a larger or smaller number of- bales than those originally receipted for. It results from the facts above stated that the dates of the receipts do not fix with certainty the date of actual receipt of the different lots of cotton covered by them, nor do. the outstanding receipts show, necessarily,-the full quantity of cotton on storage at the date of their issuance. They do, however, recognize that the press has on storage for account of the storer, at the dates of these receipts, a number of bales equal to those receipted for. The custom in New Orleans seems to have been to deliver cotton from the presses, not by force of the surrender of the receipts themselves, duly endorsed, .but only when supplemented by a direct order from the storer accompanying the receipts on which the particular bales to be delivered were designated for the purpose- of, identification by the special marks .upon them. The practice which has grown up, of leaving a portion of the stock in the warehouse entirely uncovered by receipts, .while other portions are receipted for by receipts, in some instances specifying the precise marks upon the bales, and in others reciting in respect to the marks simply that they, were “ various,” seems to have been adopted to give more freedom of action to storers in their commercial transactions than they would have if each lob of cotton was immediately receipted for as received by a receipt identifying the particular lot received by its special marks. The idea prevailing among the cotton press proprietors is, that so long as the outstanding receipts issued by them calls for only a given number of bales of cotton without specification of. marks, their whole obligation consists in retaining in their hands a number of bales corresponding to that mentioned without regard to what particular bales are so retained — that the storer in spite of the issuing of the receipts by the press to him preserves full power of control as to the particular-lots to be afterward delivered, by subsequently executing to them-orders to deliver certain cotton specially designated in the order — in» other words, that the holders of receipts for cotton wherein- the cotton, is referred to simply as cotton marked with various ’ ’ marks have bub, a floating or inchoate right which could attach only bo the residuum (whatever it might be) remaining on hand after the special orders given by the storer had been exhausted, or until they themselves acquired fixed rights on an order from the storer designating specific cotton. They look upon a designation in the receipts themselves of the special marks which were upon the cotton receipted for or the subsequent designation or fixing of specific cotton by the storer in an order directed to them, coupled with a surrender of the receipt, as the exclusive means of identification of the bales falling under the operation of the receipts given, and they, do not appreciate that any other condition of affairs should or could render them liable to holders of their receipts. The practice which we have alluded to i§ not only'a very loose but a very dangerous one.to all parties relying upon it. Under its operation as claimed, a.factor having stored in a press several lots of cotton, part of which he could legally sell or pledge and part of which he could not legally pledge for his own debt, can leave a part of it unreceipted for and cause to be executed to himself special receipts for a limited number of bales, leaving their identity (so far as the receipts themselves are concerned) undetermined. He can then pledge these special receipts to a bank for a loan of money, but before the particular cotton to be covered by the receipts is fixed in favor of the bank or pledgee, he can sell the cotton which he was authorized to sell or pledge to a third person, and through the instrumentality of an order directed to the press, ordering them to deliver that specific cotton to parties named, he can withdraw it from the possession of the proprietors of the warehouse, and from the possible operation of the warehouse receipts, and drive the holders of the receipts into an unsuccessful litigation with the owners of the cotton still on hand (0. C. 1921, 1922). The lenders, in the end, will find themselves, unless, under exceptional circumstances, the holders of worthless pieces of paper. Even if matters in some given case did not go to the full extent here supposed, the lenders, under the operation of this loose practice, might be driven, in execution of their collaterals, upon a worthless grade of cotton; whereas, had they taken the simple precaution of causing the marks of specific cotton to be inserted in the receipts, they would have been amply protected. So long as business men elect to deal in this way, in order, by affording commercial facilities to their customers, to retain their business, they must not be surprised that they should occasionally be called upon to suffer loss.

The proprietors of warehouses, in following this same course of dealing, are also taking upon themselves risks which they evidently underrate. It is not essentially necessary to a liability on their part tor cotton receipted for by them, either that the marks upon certain specific cotton should be inserted in the receipts, nor that the storer should by subsequent special order directed to them designate the particular cotton to be covered by their receipt. A certain condition of facts dehors the receipts themselves and dehors the direct order of the storer might, 'as between themselves and the holder of their receipts, fix a liability upon them. (Id certum est. C. C. 1917, 1918). We do not propose to enter into an examination of cases of possible responsibility on their part. One of the witnesses on the stand (Mr. Heyward) a cotton press proprietor, showed that he realized a very probable danger in a case supposed by himself. He said that if upon a given date he had a given receipt for two hundred and twenty-five bales of cotton “ marks various,” when the identical number and no more were then actually on hand, he would not permit the storer, who subsequently stored with him two hundred and twenty-five other bales, to draw out the first lot of cotton by special order, without the simultaneous surrender of the particular outstanding receipt which he had given. Under that condition of things he evidently considered the identity of the cotton covered by the receipt fixed by the facts of the case, and that under his own contract he would have to hold that particular cotton for the benefit of the holder of the receipt given, as the owner had lost control over it, and it was no longer subject to transfer by him or attachment or seizure by his creditors; that matters would stand as if without the receipt the storer had directed to them an order in favor of the bank to deliver to it the cotton in the warehouse on the 11th of January, and they had accepted the order. In this case not only had the warehouse receipts been endorsed by Marx, but the bank had immediately notified the defendants of the transfer or assignment of the receipts. Hennen’s Digest, verbo “ Attachment,” page 185, No. 2, page 188, No. 1; page 189.

If, in the case thus assumed by the witness, there had been two outstanding receipts instead of one covering the exact number of bales then on hand, the fact that these receipts did not, on their face, specify any particular cotton^would complicate the [situation between the two parties holding them; the difficulty, however, would be one of evidence,” and one claimant by having transferred to him the rights of the other could dispose of that trouble. In the absence of such transfer the holders of the two receipts would prorate the proceeds of the cotton, holding them against the claims of other parties.

We think the issue in this particular case a restricted one. Are the defendants liable to plaintiffs under the special state of facts shown? We think not. Plaintiffs claim through a pledge dated January 12, 1894, of receipts which call for no particular cotton. The most they can claim is, that the defendants should legally account for the cotton in store for account of Simon E. Marx on the 11th and 12th of January, 1894. Now of the number then on hand, two hundred and four bales have in suits, brought against these defendants, and to which plaintiffs were made parties, been decreed to have belonged to the plaintiffs in those suits. Defendants were ordered to deliver the same to the claimants, the court holding that Marx did not have possession under circumstances such as to justify or warrant his pledging the same.

The judgments in those cases bind the plaintiffs and conclusively relieve the defendants in respect to them. In calling the plaintiffs into those cases, defendants performed their duty. The defendants in receipting for the cotton did not warrant the title of the storer nor the circumstances of his possession. Insurance Co. vs. Kiger, 130 U. S. 352, 356.

Plaintiffs claim that there were one hundred and twenty-six bales of cotton in the press on the 11th and 12th of January, which Marx sold on the 11th and which defendants delivered on the 12th of January, 1894, to Townsend, Cowie & Co., under orders from the vendor, and that defendants, with knowledge of their outstanding receipts and that they had been pledged to them, should have held them for their benefit.

The evidence establishes that on the 11th of January, Marx sold one hundred and twenty-six bales of cotton to Townsend, Cowie & Co., then stored in defendants’ warehouse; that at that time there were outstanding receipts in his hands which defendants had issued to him; that the latter declined to deliver the cotton to the vendee until these receipts should have been produced and surrendered; that Marx undertook to do so; that in anticipation of this being done on that day (the 11th), the receipts were drawn up, which plaintiffs now hold, which were to recognize Che balance of cotton on hand after the delivery to Townsend, Cowie & Co. That Marx did not produce and surrender the receipts held by him until the 12th; that on their surrender on that day, the delivery of one hundred and twenty-six bales was made to his vendees, and thereafter the receipts, which had been dated on the day before upon the supposition that the outstanding receipts would have been then surrendered, were delivered to Marx, who having them, pledged them to the plaintiff bank. We think it was right and proper that the circumstances under which the new'receipts were dated, as of the 11th instead of the 12th of January, should be shown. Plaintiffs’ pledge bore date of the 12th, and there is nothing to show that they had any knowledge of the fact that Marx owned the cotton which was sold and delivered to Townsend, Oowie & Co., or that it was in defendants’ warehouse. They did not act on the strength of that particular cotton, but relied upon the simple fact that, at the date of the receipts, defendants held in store for account of Marx two hundred and twenty-five bales of cotton. This quantity they did in fact have. When defendants issued the new receipts all outstanding receipts had been called in. Plaintiffs had no rights of any kind then in existence. When, on the 12th of January, Marx (after having received the new receipts) offered them for pledge to the plaintiffs, it was their duty, if it was their expectation or their wish to be protected by particular cotton, to insist upon the insertion of marks which would specifically designate it, or chat the pledgor should give an order for delivery supplementing the uncertain description of the cotton receipted for. C. C. 1922, 1923.

Plaintiffs claim that if defendants had delivered to them when called upon to do so, the cotton which was subsequently declared to have been the property of the plaintiffs in the various suits and to have been illegally attempted to be pledged by Marx, the present •complications would not have arisen; that they would have received and disposed of it. Defendants reply that they themselves were in danger in the premises and justified in taking the action they did, and that, even if plaintiffs had received the cotton and sold it, they would and should have been held legally liable to the actual owners for improperly converting to their own use property belonging to another person, and that the ultimate result, so far as plaintiffs were concerned, would be of no benefit to them. We think that defendants were justified in protecting themselves, and that plaintiffs’ claims presented from the particular standpoint we are now considering, are without foundation. C. O. 2312.

After deducting the cotton on hand, which was sold and delivered to Townsend, Oowie & Co., and that which was decreed to belong to persons other than Marx, there remained in the possession of the •defendants on the 12th of January, 1894, seventy-seven bales of cotton. The question is, as between the plaintiffs and the administrator of the succession of Marx, which is entitled to a judgment for its recovery.

The administrator of the succession of Marx claims them as holder of a receipt issued by defendants for fifty bales of cotton of “various marks” of a date later than the receipts held by the plaintiffs~ Both claim under receipts not specifically describing the cotton referred to. With its delivery of this cotton the relations between the defendants and Marx will come to an end. Defendants standi indifferent as to whom it should be decreed. The lower court adjudged the property to defendant for general distribution.

Were Marx still alive and the present contest one between him and the plaintiffs, we think he could scarcely be permitted to come-in competition with the creditor to whom he had assigned those press receipts. (Salzman vs. His Creditors, 2 Rob. 241; Blood vs. Vollers, 6 An. 785; Neuton vs. Gray, 10 An. 67). It is true-that as between certain parties and under certain circumstances the-want of specification of the precise property covered by the attempted pledge would result in the most serious consequences; but,, as between Marx himself and the State National Bank, we think, matters were in such a condition as would have forced him to recognize the rights of the bank over this remnant on hand. By the-process of exhaustion and the force of circumstances it would have been demonstrated that the only cotton to which the receipts were applicable, and which he could legally pledge, was this particular cotton. He would be forced in order to give any effect to his contract to recognize the bank’s rights.

The receipts as written, it is true, do not express in terms that-defendants will deliver to Marx or his order two hundred and twenty-five bales of cotton on the surrender of the receipt. They declare that defendants have received that number of bales of cotton from Marx, which are deliverable only upon surrender of .the receipt duly endorsed. It is by reason, we suppose, of the peculiar phraseology of the receipts that they have not been deemed sufficient of themselves and by themselves to call for a delivery, and that a special order from the storer has been required to be produced supplementing and to accompany them. We find that the defendants have-written across the receipts the word “ negotiable.” Defendants-contend thatthese words have no force or significance; that “ negotiability ” is a “ legal result ” of a fact only, and can not be brought, about by stipulation or contract. We are, however, to consider whether, in placing that word upon the receipts, the defendants did not intend to contract to consider the receipts,, as written, a promise on their part “ to deliver to Marx or to his order,” and carry those words practically and substantially into the receipts, even granting that these words, in addition to the endorsement of the storer of the goods, would be necessary to be inserted in the receipts to operate a transfer or assignment of the same. We think it was clearly the intention of the parties, either that the receipts themselves when endorsed in blank should import an order for the delivery of the cotton to the holder, or that Marx should subsequently give substantial order for delivery supplementing the receipts. If Marx were alive to-day, claiming the cotton as against the bank, we think he would be under a legal obligation to execute an order on the defendants for the delivery to the plaintiffs of the cotton now on hand; law and equity would call for his doing so, and “equity considers that done which should be done.” The bank had, before the death of Marx, notified defendants that it held their receipts for the cotton on hand on the 1st of January, 1894, under Marx's endorsement.

But Marx having died, we are to consider the effect of that fact upon the rights and obligations of parties. The question now is whether, there being no parties claiming special fixed rights upon this remnant of cotton, either by way of purchase or privilege, and the contest being narrowed down between plaintiffs (holding under a pledge which might be imperfect in some respects as to certain parties and under certaim circumstances) and the mass of ordinary creditors of the succession of Marx, represented by the administrator of that succession, the defect in the evidence of the pledge is to work any change in the situation from what it would have been were Marx alive, and he, and not his succession representative, were one of the contesting parties. We think it does not. The ordinary creditors of a person, in the absence-of,fraud, hold under the rights of their debtor. Gardiner, judge, in Candee vs. Lord, 2 N. J. 269, declared that “ in creating debts, or establishing the relations of debtor and creditor, the debtor is accountable to no one unless he acts male fide.

* * * The claims of other creditors upon the debtor’s property are, through him and subject to all previous liens, preferences or conveyances made by him in good faith. Any deed, judgment or assurance of the debtor, so far at least as they conclude him, must Ístop His creditors and all others.” This doctrine may be too broadly stated, but not too much so, in our opinion, for the purposes of this case. [Succession of Nash, 48 An., p. 1573; Nicolopulo vs. Creditors, 37 An. 472; Webre vs. Beltran & Co., 47 An. 195; Baldwin, Recorder, vs. McDonald, 48 An. 1460.] We think the judgment of the District Court in rendering judgment in favor of the succession of Simon E. Marx, recognizing it to be the owner of the remnant of cotton (seventy-seven bales) now on storage in the Louisiana Press, stored therein by Simon E. Marx, and ordering its delivery by the defendants to the administrator of the succession of Simon E. Marx to be by him accounted for in due course of administration, is erroneous, except in so far as it recognizes the ownership of said cotton to be in the succession of Simon E. Marx — to that extent the judgment of the District Court in favor of the succession of Marx is correct, and it is hereby affirmed; beyond that it is annulled, avoided and reversed. Hepp vs. Glover, 15 La. 461; Deloach vs. Jones, 18 La. 447; Frazier vs. Wilcox, 4 R. 517; Marston vs. Deuberry, 15 An. 519.

For the reasons herein assigned) it is ordered, adjudged and decreed that the defendants do deliver to the plaintiffs the seventy-seven bales of cotton now on storage in their press, the Louisiana Press, which were therein stored by Simon E. Marx, the said cotton to be received and sold by' the State Rational Bank and the proceeds applied" by the bank as far as they extend to the payment of the promissory note of Simon E. Marx, of which it is the holder, for eight thousand dollars with interest thereon, which note was referred to in plaintiff’s petition and filed in evidence herein — the court recognizing and decreeing that payment of said note stands secured as to its payment by pledge upon the cotton herein ordered to be delivered by defendants to the plaintiff.

In the event of the defendants, Bryant & Mathers, failing to make delivery to the plaintiffs, the State National Bank, of the cotton herein ordered to be delivered by them to said bank, it is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, the State National Bank, and against the defendants, Bryant & Mathers, for the value of each bale of said cotton not delivered, the value of each bale being hereby fixed at forty dollars.

• It is ordered, adjudged and decreed that the judgment appealed from in favor of the defendants, Bryant & Mathers, and against the plaintiff, the State National Bank, be and the same is hereby annulled, avoided and reversed, and judgment is hereby rendered in favor of the plaintiff bank against the defendants as hereinbefore decreed, with costs in both courts.


author: Miller, J.

text:
    No. 12,385.
    C. Brent Richard vs. Southern Building and Loan Association.
    The contract by which a party becomes the owner of shares of the stock of a building and loan association to be paid for in instalments running through a long series of years, and borrows from the association on his-stock, the interest on the loan being 6 per cent, per annum, is not to be treated as a usuri" ous loan, the payments supposed to constitute the usury, by the terms of the contract being made on the stock debt, not the loan.
    APPEAL from the Twelfth Judicial District Court for the Parish of Calcasieu. Read, J.

      Edward L. Wells for Plaintiff, Appellee.

      Williams & Sugar and Carroll & Carroll for Defendant, Appellant.
    Argued and submitted February 18, 1897.
    Opinion handed down March 15, 1897.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from the judgment maintaining in part the plaintiff’s injunction to restrain the sale of his property under the executory process obtained by defendant on the-plaintiff’s note, secured by mortgage.

The ease involves the contract of the plaintiff, a shareholder in the defendant corporation, and a borrower from it. As we gather from the record the outline of the character of these building and loan associations, the party seeking a loan becomes the owner of the shares of the association to an amount double the amount of the desired loan. In this case the loan sought was two thousand dollars,, and the number of shares of which plaintiff became the owner was forty shares of one hundred dollars each, one of which, in the-argument it is stated, he carries for the benefit of the company, and the other for his own. To secure a mortgage or vendor’s lien for the note of the borrower, which is for an amount equal to the number of shares, in this case four thousand dollars, the borrower and shareholder transfers his property to the association, which transfers it back to him for his note corresponding with the amount. of the shares, and thus besides the special mortgage the association gets the vendor’s lien to secure the note. The borrower pays nothing for his stock at the time, but is required to pay a moderate amount, in this case seventy cents per month, on each share, giving a long period to pay for the stock, and as we understand it, the stockholder is to be credited also with the dividends anticipated from the profits of the association, which, of course, if realized, will lighten the payments and shorten the maturity of the stock. On the loan he makes no payments, except the interest at six per cent. Whenever the stock payments and dividends thereon equal the value of his shares, the stock and the loan are canceled. Failure to make the payments gives the right to forfeit the stock and makes the debt exigible, but when demanded before payment by the stock instalments, the stock is allowed a credit (in this case of one thousand six hundred and four dollars) in consideration of the liquidation of the loan earlier than contemplated, owing to the default of the shareholder in the payments required of him by the contract. In this case the shareholder defaulted after twenty-nine payments on his stock, and is in arrears for interest. He is credited in the petition for arrears of interest, and also with the sixteen hundred and four dollars,, called the unearned premium, for the abridged period of the loan occasioned by his default, and in the briefs it is brought to our notice that his stock not forfeited will entitle him to its value, if claimed by him, and if not claimed, but kept in force by the required payments, will secure for him the benefits of a shareholder.

The petition of the association claimed the amount of the note with the stipulated interest from July 1, 1895, to which date interest is paid. The petition of plaintiff for the injunction alleged that he borrowed only two thousand dollars; was entitled to credit for two thous- and dollars on the note; to the credit besides for his payment on the stock; admits an indebtedness of twelve hundred and eighty dollars, and claims damages for the dissolution of the writ of seizure and sale. The judgment of the lower court treated the transaction as a loan, maintained the injunction to the extent of six hundred and •eighty-six dollars and fifty cents, allowing all payments on the stock as credit, and this appeal by defendant followed.

There is a motion to dismiss the appeal on the ground that the answer admitting an indebtedness of twelve hundred and eighty dollars, and the amount claimed in the petition being two thousand three hundred and ninety-six dollars that the controversy only as to the difference, is below the amount necessary to give 'this court jurisdiction. We find no brief in support of the motion and presume it is waived. The plaintiff’s claim is for a sum in excess of our jurisdiction, and we see no reason to dismiss the appeal.

It is urged by the defendant that the transaction was a mere loan to him of two thousand dollars; that the excess of his note over that amount is not to be deemed a premium on the loan, hence is not demandable, and that all the payments, except those for interest, are to be imputed on the notes. This theory was adopted by the lower court. It is difficult to reconcile this defence with the contract in the record. A mere loan of two thousand dollars would not be linked with the transfer of forty shares of stock to the borrower, imposing the burden on him of payment, as well as entitling him to the benefits of a shareholder; nor would a single loan be accomplished with the stipulation that payment on the stock, with the dividends accruing on it, would cancel stock and loan. The plaintiff made the application for the loan with the distinct statement it was on his shares; that all payments by him, other than interest, were to be imputed to the stock; and the method of payment of loan and stock, and that default of these payments would mature the note, were well defined in the contract. The plaintiff received the two thousand dollars; has had the benefit of it at six per cent., along with the rights conferred on him as a shareholder. With these obligations imp vsed and the rights secured to him under the contract, he has evinced his own appreciation of the contract, and paid for a period the interest on the loan and the required payments on the stock. We can not, therefore, without disregarding the contract placed before us and the plaintiff’s interpretation of it manifested by his acts, treat it as a mere loan on usurious interest, as alleged in the answer and contended in argument.

These building and loan contracts have been frequently considered by the courts of other States; the stipulations of the agreement between the association and the shareholders and borrower have been subject to careful analysis, and the mutual benefit of the shareholder and borrower, as well as the association, proposed to be secured has been exhibited as the prominent feature of the contract. With some •contrariety of views, our appreciation is that the tendency of the decisions have been to sustain the contracts. Associations of this character are viewed as formed to secure to the shareholders the-privilege of borrowing on their stock; participating in the profits that may be derived, and at the same time extinguishing their obligations to the association by paying interest on the loans and by accruing dividends and small monthly payments on the stock. In a. case before us recently the decisions of other States were reviewed,, and we upheld the validity of the premium the shareholder was-required to pay. American Homestead Company vs. Linigan, 46 An. 1119.

In accordance with the charter of the association the plaintiff is allowed a voluntary credit of sixteen hundred and four dollars. Wears not enabled to appreciate on what basis this amount is adjusted,, but no argument is addressed to us to show the credit should be-greater. The plaintiff, treating his obligations as that of a borrower,, insists his stock payments should be imputed on his loan. But under his contract the payments were on his stock, of which he remains owner with the right to obtain its withdrawal value. We find no-basis to give the credits he claims.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and annulled, and it is now ordered, adjudged and decreed that plaintiff’s injunction be dissolved; that-defendant’s writ of seizure and sale be reinstated, maintained of full force and executed, and that plaintiff pay costs.


text:
    No. 12,380.
    Oscar Auguste Duvernet vs. Morgan's Louisiana & Texas Railroad and Steamship Company.
    The passenger alighting from the train, stopping at the meal station, attempting, under circumstances fully apprising him of the risk, to reach the eating house by passing so close to the baggage ear while the baggage is being unloaded as to be injured by a trunk falling on his foot, has no claim for damages, though the passage he chooses to select is used by passengers, there being another path to the eating house as convenient and direct, free from all risk or obstruction, and provided by the company for passeng-ers-to reach the eating house.
    A PPEAL from the Seventeenth Judicial District Oourt for the- * Parish of Lafayette. DeBaillon, J.

      Orther C. Mouton for Plaintiff, Appellee.

      Leovy & Leovy and Garland & Dupré for Defendant, Appellant.
    Submitted on briefs February 16, 1897.
    Opinion banded down March 15, 1897.
   The opinion of the court was delivered by

Miller, J.

The plaintiff sues for damages for injuries caused by a heavy trunk falling on his foot from the baggage car of the defendant's train on which the plaintiff was a passenger. The defendant ■appeals from the judgment awarding plaintiff one thousand dollars.

The facts substantially are, that plaintiff, in undertaking to pass in front of the baggage ear when the baggage was being unloaded at a railroad station, received the injury for which he claims damages. The passage on which the plaintiff was when the accident occurred is about ten feet; on one side was the train of ears, on the other the baggage room of the depot building, and in front of this room was the baggage ear, with its open door to permit the unloading of the baggage; on this space between the baggage car and the baggage room, when the plaintiff attempted to pass, was a truck, a number •of trunks, so occupying the narrow passage as hardly to leave room for any one to go by; as plaintiff approached the car porter, but a few feet in plaintiff’s front, was in the act of moving away a trunk just unloaded, and the trunk that fell on plaintiff’s foot was being shoved from the car, the plaintiff in his progress reaching the front of the car at the moment when the trunk in its descent struck his foot. The train had stopped at the station to afford the passengers the opportunity for a meal. The plaintiff’s purpose in alighting from the train was to obtain letters he expected at that place, and to partake of the meal, for which fifteen minutes was allowed. The passage along which he walked led him to the place to get his letters, and also to a plank walk laid from the railroad track to the eating house, and it is in evidence that passengers used that passage to reach the eating house, though it led the plaintiff by the baggage car where the unloading of trunks was being effected. There was, however, another way provided by the company for passengers to reach the eating house; one of the witnesses calls it the regular path, and it is shown to be as convenient and direct as that •the plaintiff chose to selee's

The argument for the plaintiff is in great part devoted to the proposition that the pathway on which he walked was used by the train passengers with the knowledge and assent of the company; that the path was connected with the plank walk leading to the eating house, and while there is some variance in the testimony, its general tendency is to show that the path selected by plaintiff was used as much as the other to reach the eating house, hence plaintiff contends he had the right to be there and to protection from the alleged imprudence of the company’s employees in unloading the baggage car. The line of authority on which plaintiff relies is undoubtedly, to the effect that all portions of the railroad depot, permitted to be used as approaches, standing places or exits, the passenger is entitled to use for purposes incident to his travel. The text writers lay down the rule and our jurisprudence affirms it. Hutchison on Carriers, Sec. 561 et seq.; Sullivan vs. Railroad Co. 39 An. 800.

In our view, however, there is another principle that must exert controlling influence in our decision. The plaintiff knew the path he chose led by the baggage car from which the trunks had to be unloaded. It is true the company used no skids, but it does seem to us the plaintiff had the intimation of the process of unloading quite as effectively as that by skids projecting from the car. The impetus of the trunk derived from skids, if used, would have caused in all probability the trunk tó come in contact with plaintiff’s foot with greater force. There was the truck lying in front of the baggage car; the trunks already unloaded lying around obstructing the passage, provoking the remark of passengers like plaintiff attempting to go by, “ there was no room, the trunks were in the way', they were loading and unloading;” the porter was a few feet in plaintiff’s front removing a trunk just unloaded; the baggage car, with its open door plainly denoting the purpose, was on his left in full view, and as plaintiff in his approach came near, the employee was in the act of shoving the trunk that in its descent struck the plaintiff’s foot. Giving due weight to the fact there was no one posted there to warn the approaching passenger, it seems to us the surroundings gave all the admonition any other warning could convey. Under all these circumstances the plaintiff continued his progress, passing so close to the car as to receive the falling trunk on his foot. We observe, too, that but a slight deflection on his part, had he paid any attention, to the right, would have saved him. The petition alleges the trunk was thrown from the car, but the testimony shows no such method, and it is clear to us, with ordinary care, the plaintiff could have come to no harm from that mode of unloading.

In this class of cases the law regards the conduct of the plaintiff in connection with the injury of which he complains. If imprudent himself, he can not recover unless his neglect is overshadowed by greater neglect or recklessness of the other party, so as to make it in legal contemplation the cause of the accident. We find no such relation of plaintiff’s imprudence with that imputed to the defendant, when it is considered, too, that the defendant had provided another way to the eating house free from any obstruction or risk, as direct and convenient to the eating house as that plaintiff chose, though longer for that other purpose of plaintiff in alighting. We are constrained to hold the accident was due to plaintiff’s imprudence in seeking under the circumstances to pass the baggage car, and because with the other perfectly Safeway provided, he selected that attended with the risk he encountered and from which he suffered. Wharton on Negligence, Sec. 361; Johnson vs. Canal & Claiborne Railroad Company, 27 An. 53-54.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and annulled, and it is further ordered and adjudged that plaintiff’s suit be dismissed with costs.


author: Watkins, J.

text:
    No. 12,303.
    Paul Lecourt vs. D. S. Gaster, Superintendent of Police, et als.
    An injunction 'will not issue to restrain the execution of a criminal statute.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      E. A. O’Sullivan for Plaintiff, Appellant.

      Samuel L. Gilmore, City Attorney, for Defendant, Appellee.
    Argued and submitted March 4, 1897.
    Opinion handed down March 15, 1897.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff alleges that he is a licensed restaurant keeper and retailer of spirituous, vinous and malt liquors, doing business at West End, a place of resort for recreation and health much frequented by the citizens of New Orleans; that he conducts his establishment in an orderly and peaceful manner, and in strict •accordance with police regulations.

That he has been informed and believes that it is the intention of the defendant to enforce against him on Sundays the provisions of Act 18 of 1886, known as the Sunday law, and that in the enforcement of said law he (defendant) proposes to close up his said establishment and thus interfere with his constitutional right of carrying •on his business. That his aforesaid business is lawful and recognized as such by laws of the State and city, and that said act especially exempts localities such as that at which his business is being •prosecuted from its operation and effect.

For the foregoing reasons plaintiff sought and prayed for a writ of injunction to prevent the defendant from closing his establishment •as proposed.

To this petition the defendant tendered as a peremptory exception the want of jurisdiction of the District Court ratione materise et personse, and same having been sustained by the judge a quo and the order of injunction refused, the plaintiff prosecutes this appeal.

In the course of his reasons for refusing the order the judge said the case involved an interpretation of the Sunday law, and same was beyond the jurisdiction of a court of civil jurisdiction exclusively.

In State ex rel. City of New Orleans vs. Judge, 48 An. 1448, a similar question was raised and decided and in the course of our opinion we said:

“Act No. 18 of 1886 is a criminal statute. The duty was imposed •upon relator (defendant here) to see that the statute was executed. It was his duty to arrest all offenders against that statute. No court has the power by injunction to restrain the execution of a criminal statute. But the respondent judge says the law does not apply to the plaintiff in injunction. This is placing an interpretation upon a criminal statute that is within the jurisdiction of the Oriminal Court.
“In the case of Hottinger vs. City, 42 An. 680, it was said the •courts of this State have no power to issue an injunction to prevent a municipal corporation from enforcing, by authorized judicial process, its police ordinances, penal in their nature, enacted for the promotion of the public health.
“ Much stronger, therefore, is the reason that no court can enjoin ■the execution of a criminal law of the State, or the officers upon whom devolves the duty, from enforcing obedience to the law.”

The instant case can not be distinguished from that one; and we •adhere to the opinion and ruling therein.

Judgment affirmed.


text:
    No. 12,378.
    Louis Grunewald vs. Commercial Soap, Starch and Candle Manufactory, Limited.
    The blank iu the authentic act in which the amount of the debt is repeated will not vitiate the act, there being the explicit statement of the debt in the previous part of the act with the usual confession of judgment.
    When the plaintiff is the holder of all the obligations, matured and unmatured, of the mortgage debt, and under the stipulations in the act sues for the entire debt, the five per cent, attorney’s fees stipulated in the act, may be included in the writ as part of the costs to be paid from the proceeds of the mortgaged property.
    Insurance premiums may also be included in the order, when the amount is not in excess of the amount allowed in the act.
    APPEAL from the Civil District Court for the Parish of Orleans. J.

      Dinkelspiel & Hart for Plaintiff, Appellee.

      W. S. Benedict for Defendant, Appellant.
    Argued and submitted March 3, 1897.
    Opinion handed down March 15, 1897.
   The opinion of the court was delivered by

Miller, J.

This is an appeal from an order of seizure and sale. The writ issued on a petition claiming that the property be sold to pay the attorney’s fees on the full amount of the mortgage bonds, ten thousand dollars and interest, five per cent, attorney’s fees on the full amount of the debt and interest due being stipulated in the act, two hundred dollars for insurance premiums, and the amount of the past due coupons three hundred dollars, the purchaser to assume up to the amount of his bid, the bonds not due secured by the mortgage.

The errors assigned by the defendants are that the petition, bonds and coupons do not authorize the order; that the order for the payment of ñve per cent, attorney’s fees on the full amount of the bonds, ten thousand dollars past due coupons and interest, is not authorized by the authentic act, and that the order for payment of two hundred dollars, part reimbursement of premiums, is not supported by authentic evidence.

When mortgage notes, secured by the same mortgage, are held by different parties, the suit on one or more does not authorize the imposition of the per centum of the attorney’s fees on the whole amount of the debt, but only on the amount sued on by plaintiff. If it were otherwise the ñve per cent, might be claimed in every suit brought by different holders; but in this case, notwithstanding the imperfect record brought up by the appellant, it is apparent the plaintiff held all the bonds and coupons representing the entire debt, ten thousand dollars, and under the stipulations of the act he brings the suit to sell the property for the whole debt. We think, therefore, the ñve per cent, fee can be claimed on the full amount of the mortgage debt.

In respect to the insurance premiums, the act stipulates their payment up to two hundred dollars for payment out of the proceeds of mortgaged property. With that stipulation, the writ (not in the record however, but we presume followed the order), properly directed the payment of two hundred dollars for insurance premiums.

We are of opinion that the assignments of error to which our attention have been directed in the argument furnish no basis for us to set aside the order of the lower court.

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


author: Miller, J. Breaux, J.

text:
    No. 12,297.
    W. R. Nelson vs. Crescent City Railroad Co.
    Under our jurisprudence it is not essential in a suit against a corporation for damages caused by its agent, to aver that the corporation had the power to prevent the act of the agent and failed to do so. Civil Code, Art. 2815, 2820, Hart vs. Eailroad Co., 1 Eob. 181; 27 An. 716; 37 An. 654.
    If, with due attention the motorman of a street car could and should have perceived a child of tender age, on or straying near the track, under circumstances-indicating the great danger of the child, the motorman should seasonably .use the preventive means to avert the accident and his failure in that respect resulting in injury to the child will make the railroad company liable for the injury.
    A PPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Fenner, Henderson & Fenner for Plaintiff, Appellee.

      Farrar, Jonas & Kruttsehnitt and Thomas J. Semmes for Defendants, Appellants.
    Argued and submitted January 7, 1897.
    Opinion handed down February 15, 1897.
    Rehearing refused March 29, 1897.
   The opinion of the court was delivered by

Miller, J.

The plaintiff sues for damages for injuries to his minor child struck by an electric ear of defendant, thrown to the ground, and the wheels of the ear passing over the legs of the child, rendering necessary the amputation of both, the petition charging that the accident was due solely to the gross carelessness of the defendant’s agent, the motorman. The defendant’s answer denies the imputed negligence, and alleges the accident was due solely to the fault and negligence of the child and its parents. Thereafter the defendant excepted that the petition disclosed no cause of action, which overruled, the case was submitted to the jury, and from the judgment based on their verdict against defendant for thirty thousand dollars, this appeal is prosecuted.

It is urged that the petition, containing no averment that the defendant could have prevented the act causing the damage, discloses no cause of action. Civil Code, Arts. 2320, 2315, 2317. In the Napoleon Code the exemption relied on by defendant is denied to masters and confined to parents, teachers and artisans sought to be held for acts causing damage, committed by children and apprentices in their charge. Napoleon Code, Art. 1384. The commentators on that Code maintain that masters must be deemed able, by selecting careful servants, to avoid all damages arising from their acts, and hence the French jurists reach the conclusion that inability to prevent the act can not be urgea by masters when sought to be made liable for damages caused by their servants. Boilleaux thus states this view: “Ces derniers,” referring to masters, “ne s’affranchiraient done point de l’obligation pése. sur eux, en offrant •de pouver qu’ils n’ont pu empécher le dommage; la loi les assu.jettit S. la responsabilité la plus entiére, ils doivent s’imputer d’avoir pris a leur service des gens méchant, maladroit, imprudents ou dont ils ne connaissaient par le moralité.” 4 Boilleaux, p. 765; 2 Mourlin, p. 890.

The framers of our Code, however, have extended this exemption given by the Napoleon Code so as to give masters the same defence of inability to prevent the wrongful act of their servants, given by the Napoleon Code to parents, teachers and artisans. Civil Code, ¡articles cited. But when a corporation is the employer, and is sued tfor the wrongful act of its agent, is not the failure of the corporation to exert its power of prevention, manifested by the act itself of the imprudent agent, whose act is that of the principal capable of .acting only through its agents? The prevention the Code exacts, ¡and the exercise of which it makes a shield for the employer against liability for his servant’s acts, is obvions in its application to natural persons. But if the corporation acting only through agents, is to be exempted from liability for its agent’s acts, on the theory that some .¡preventive power must be shown beyond the selection of the incom - petent agent, it would follow that no corporation could be made liable. The theory, in other words, would seem to exclude liability of corporations from that responsibility for the neglect and imprudence of its servants imposed by the laws on all masters.

The question raised by the exception of defendant is not new in ¡our jurisprudence. In suits against individuals asserting their liability for acts of their agents, our courts have applied the exemption from responsibility unless there was averment and proof the principal could and did not prevent the act; there are decisions exacting the same requirement to hold corporations, while in other, and especially the decisions of later years, the responsibility of the principal has been determined with no reference to averment or proof on this point. Palfrey vs. Kerr, 8 N. S. 504; Strawbridge vs. Turner & Woodruff, 8 La. 537; Buel vs. New York Steamer, 17 La. 545; Collingsworth vs. Covington, 2 An. 406; Fitzgerald vs. Ferguson, 11 An. 396; Poree vs. Cannon, 14 An. 506. But even in the earlier decisions applying the exemption of the master’s liability for the servant’s act, the distinction has been recognized between the principal, a natural person, and the corporate principal. Judge Martin dealing with the charge'of the lower court to the effect that this qualification of the master’s liability in Art. 2299 of the old, now 2319 of the new Code, had no application to a corporation capable of acting only through its agents, and that part of the Code had been inserted inadvertently, sustained the charge, though not of the opinion the article had found its way into the Code by inadvertence. Marlatt vs. Levee Steam Cotton Press Company, 10 La. 586. In another case of similar character, this court, dealing with this part of our Code, observed it was calculated to do away with the responsibility of corporations, still was our law, but the corporation was absolved from liability on the ground that the act of its agent was a crime, and of course not within the scope of the functions entrusted to him. Ware vs. Barataria and Lafourche Canal, 15 La. 169. In Hart vs. New Orleans & Carrollton Railroad Company, 1 Rob. 181, this court held the lower court properly refused the charge that the master could not be held for the servant’s act resulting in injury, without proof the master could have prevented the act and failed to do so. In McCubbin vs. Hastings, 27 An. 716, and Van Amburg vs. Railroad Company, 37 An. 654, the last being a suit against a corporation, the exemption of the master’s liability under consideration here was discussed and limited. In the long line of decisions since the Hart case, the principle of that decision has been followed through without discussion, except that bestowed on it in the McCubbin case, 27 An. 716, and the Van Amburg case, 37 An. 654. The reason the French jurists assign for denying to masters the exemption from liability accorded in our Code, that they must be presumed able to select competent agents, suggests that the ability to prevent the wrongful act of the servant is to be deemed implied when the master is sought to be held for such acts. Whether guided by the reason of the French commentators or on the theory that the act of the corporate agent is to be regarded as that of the corporation, our jurisprudence, it seems to us, dispenses with the express averment in suits of this character that the corporation could have prevented the act of its agent and failed to exert that prevention.

The defendant claims that the testimony produced by plaintiff should have been excluded because containing no allegation that the child or those having him in charge did not contribute to the accident. On this point, we think the age of the child, and that he strayed from the banquette, stated in the petition, dispensed with greater particularity of statement. The petition alleging the accident was due solely to the gross carelessness and want of care and skill of defendant’s agent, in our view, is a sufficient averment in that respect. Besides, the defendant claims the allegations of the petition are lacking in precision and fullness in regard to the manner of the collision; the relative position of the child and the car; because “the speed” of the child crossing the street and the car, Are not given, nor the lack of proper signals or apparatus, is not charged, and other deficiencies are suggested. The petition avers the time, the place of the accident, that the child was run down by the car, his legs crushed by the wheels, and this was due solely to the carelessness of the motorman. There was no call for any greater detail of statement, but defendant joined issue. Under our system of pleading requiring a concise statement of the cause of action, we think the petition was sufficient, especially as no exception to the form of its statements was interposed.

The accident occurred on an evening in June, about 7:30 p. m. The car that struck the child, descending Magazine street, was of the kind called the “summer car,” with steps on either side and «eats ranged across the car. On that street, the width of which is thirty feet, there are the ascending and descending tracks; the descending track being nearest to the right, or river side of the street. The child had been playing on the banquette on the left, or wood side, and at or near the lower corner of Constantinople street. Leaving the banquette in his course to the opposite side, the child had strayed to a point in the street close to the line of rails nearest the wood side of the street of the descending track, and about ten feet below the lower bridge or crossing from one to the other side of Constantinople street. At that point the child came in contact with the side step, near the front of the descending car, was thrown to the ground, his legs drawn under the wheels on the left side of the car, and crushed so as to require the amputation of both, the car running at its usual speed and going about a length beyond the spot of contact before its motion was arrested.

The defendant has produced the testimony of passengers in the car at the time of the accident, some seated on the side of the ear where the accident occurred. From these witnesses, or those that could see we have the statement the child coming out from the wood side ran into the car; one testifies she saw him run into the side of the car, and felt, to use her words, as if she could stoop and pick him up. All these witnesses speak to the promptitude with which the motorman applied the brake.and brought the car to rest in, say, forty feet from the lower] crossing of Constantinople street. Passengers, even if seated so as to see ahead, are not apt to bestow attention on objects near the tracks in their front. The witnesses testify to the preventive measures to stop the car, but this prevention was exerted when their attention was attracted by the cry of the motorman, an alarm, however, not given, and hence could not have •been heard until the car was close to the child, we conclude about the upper crossing, and the child was struck, say, ten feet from the lower crossing. That the application of the brake was too late to avert the accident is demonstrated by the accident itself, and the fact the car went about its length beyond the point of contact. The passenger testimony does not, in our view, materially aid in the solution of the important question whether before the brake was applied the child should not have been perceived, and in time to spare him. Another witness for the defence testifies his attention was first attracted by hearing “Look out for the child!” The witness looked up and saw the child coming out near the second post below the corner; he ran out just below the crossing, when witness first saw the child; he was across the gutter and in the street; he kept going up and ran against the side step of the car. We conclude it was the cry of the motorman to which the witness refers, and that when the attention of the witness was thus attracted, the car was then about the upper crossing, the point, too, where the motorman puts the car when the child was first perceived. This witness was seated on the steps of his residence about one hundred and fifty feet below Constantinople street, on the river side of Magazine street, and his opportunity of observation was the space, or-rather moment between the cry that called his attention and the quickly succeeding contact; his view, too, was soon shut off by the-car in its motion intervening between the witness and the child thrown down on the side of the car furthest from where the witness was seated. The motorman’s account is, in substance, the car was-about the upper crossing when he first saw the child; that he hallooed to a woman on the banquette come and take or catch that child, the witness’ hand then on his reverse and brake; that the child made a “ bulge” right across the street and hit the car on the step, and the witness locates the child about ten feet below lower crossing. Another witness for the defendant was on the riverside of Magazine street, about fifteen feet from the Constantinople corner, watching the children playing on the opposite banquette; he testifies he saw the child leave the second post from the corner and “shoot ” across the street; the car, the witness states,, was then crossing Constantinople street with its fender on the down side, and he puts the child about twenty or thirty feet below the lower crossing; the witness was at once impressed with the child’s danger when he saw him “ shoot ” across the street, the car so close at hand. The witness, we think, is mistaken in the distance he puts the child below the crossing. In another aspect his observation strikes us as inaccurate. He puts the car fender on the lower crossing when he saw the child “ shoot across the street.” A swift moving car, not called for any passenger to stop on the corner, moves-through ten or even twenty feet in an almost unappreciable point of time. The witness’ theory assumes that a two-year-old child, in that instant of time, could traverse say fifteen feet from the post on the banquette to where he was struck just outside the descending rail. The statement is, in our view at least, improbable. It must have been the mere glance on which the witness relies to state the relative position of the child and the car. His testimony would convey the inference the child could not have been seen, or that his-movements not begun until the fender was on the lower crossing. But the concurrent testimony of the passengers when the motorman gave the alarm and his own testimony is that the car was on or about the upper crossing when the child was first perceived. There is other testimony for the defendant, not presenting, however, any phase materially different from that indicated by the motorman and the witnesses whose statements we have condensed as of leading importance.

The plaintiff has produced the testimony of three witnesses, pres - ent at the time of the accident, one of whom, with greater particularity, testifies in effect, he observed the conduct of the motorman before he reached the corner of Constantinople street, say one •hundred feet above that street; that his attention was not directed to the track in front until the car had gone nearly fifty feet beyond where witness first observed him; that witness heard him halloo and throw up his hands as if agitated; witness then looked for the cause of the motorman’s halloo, and perceived the child coming across the street walking very slow, and he puts the child below Constantinople street, about twenty-five feet. The witness further testifies the motorman did not apply his brake promptly after his halloo, and places the distance from the point of the halloo to where the child was struck at sixty-two feet. The two other witnesses, observing the transaction from the same point as the first witness, gave confirmatory testimony. The deep significance of this testimony against defendant is obvious. It puts the child approaching the track close to which it was struck in full view of the motorman before he reached Constantinople street, and in ample time to stop the ear, and the testimony places on him the responsibility for using no preventive means to arrest the car until he had gone the .distance stated by the witness, with the result of striking the child sixty feet from the time his presence near the track or crossing the street was perceived by the motorman and aroused his alarm. The testimony has been assailed. The reason given by the witness for close observation of a motorman has been questioned. His statement of the conduct of the motorman hallooing and throwing up his hands has been contrasted with the testimony of the car passengers to his prompt action. The distance of the car from the child; that traversed by the ear after the child was struck, the movement of the child and other particulars stated by the witness, it is urged on us are materially variant from the indisputable facts and the other testimony. It is insisted the testimony shows the witness was not in the position he indicates in describing the accident; that he introduced the child’s father to counsel, and, in other modes, aided the prosecution of this suit, all of which, it is contended, militates against his testimony. To all this urged in depreciation of the testimony we have given attention. We think the witness accounts f or-the notice of the motorman’s movements, and we can not assume the cause he assigns, is fabricated. In connection with the variance of the witness’ testimony and that of the car passengers to the conduct of the motorman, it weighs with us that the witness and the two-others were in the motorman’s front and the car passengers behind him; the attention of the passengers was attracted by the motorman’s halloo; these witnesses for plaintiff state their observation preceded that alarm given by him. There is a discrepancy of the testimony of these witnesses for plaintiff and the other testimony as-to distances, the movement of the child and in other respects, but-witnesses with equal opportunities of observation are apt to differ as-to such details, and yet be truthful in purpose. Between the witness’ statement he was present and the contradiction on that point from one of the defence witnesses he was not, we must, it seems to-us, adopt the affirmative statement. An eye-witness of a railroad accident injuring the child, due as the witness thinks to the carelessness of the motorman, is apt to have his sympathies enlisted and his-interest aroused in the prosecution of a suit brought for the child. The part taken by the witness, in connection with or in aid of this litigation, does not, in our view, do more than create, perhaps, a partisanship for the side on which the sympathy of the witness exists, and that possible bias we have considered in connection with the testimony. But these witnesses stand before us, as they did in the lower court, unimpeached for veracity, the judge of the lower court taking occasion to declare his conviction of the failure of the attack on the-testimony. Their testimony must, therefore, have the weight before us, with due allowance for variances in details, and attaching appropriate weight to the testimony in substantial respects.

There is besides the testimony of four persons seated on a bench on the lower side of Constantinople street in a position to see the-child and the approaching car, at least, from the moment it appearedat or near the upper crossing of Constantinople street. The scream-of a girl on the corner first attracted their attention. One of these-witnesses testifies in effect, he turned at the scream, saw the child' crossing the track, the dash-board of the car coming round (or to) the corner, the child was on the crossing, but along with this last, statement, is that the child was picked up ten feet from the crossing. Another testifies, in effect the child was in the street crossing, and in another place, in between the tracks and the car just coming from the up-town corner, but on a previous occasion he had stated the car was five feet away; another testified in effect, he saw the little one go (or walk) across the track, in another place he puts the child between the tracks, at that moment the car close by, he does say sixty or seventy feet away, but this is manifestly a mistake; as, in our opinion, from the witness’ position he could not have seen the car at that distance; another of these bench witnesses states in substance, when the scream attracted his attention the car was on the up-town side, the child below the plank walk or bridge just about on a line with the property line, or three feet below, with the car in the position stated by him, the child was in between the tracks, the child looked back at the scream. There are other witnesses who testify to the course of the child, the point it had reached and the position of the car at the upper crossing. In our examination of the testimony, quite voluminous, we have been guided by its general bearing irrespective of minor variances and have applied by the correction afforded by the facts. The substantial concurrence of these bench witnesses is that the child was in the street on its course to the opposite side when they first saw him, and their testimony, we think, establishes with reasonable certainty he had neared, if not reached, the spot where he was struck, when the car was at the upper crossing. If the child had made that progress when the car reached the upper crossing there is an obvious support to that testimony which puts the child in the street before the car had reached that crossing. If so there is no satisfactory answer why he was not seen and the brake applied before the motorman states he first saw the child. Again, if the child had gone as far as indicated by the bench witnesses, at the moment the car reached the upper crossing, it is fatal to the theory of the sudden bulge across the street when the motorman on the upper corner first saw the child, and certainly leaves no room to suppose the child left the second post and “shot across” the street when the fender of the car was on the lower crossing. To our minds the testimony carries a persuasion difficult to resist that the child was in the street at or close to the spot he was struck before the motorman saw him,.and our conviction based on the whole testimony is that the child could and should have been seen by the motorman in time to avert the accident. The presence of a child of tender years within the plain view of the motorman, on or approaching the tracks under circumstances indicating the great danger of the child, imposes on the motorman the duty of prompt preventive measures to save the child. We have indicated our ■conclusions of the failure of this duty.

The case comes to us fortified by the verdict of the jury and accompanied with the opinion of the judge of the lower court refusing the new trial, evincing his careful consideration and conclusion that defendant is liable. The record exhibits questions of the credibility of witnesses and the weight of evidence, the solution of which is presumed to be aided by the better opportunities of the jury and judge befere whom the witnesses testify. While this court has felt constrained in many cases to set aside verdicts manifestly erroneous and oppressive, still, in cases like this, it has been the rule not to disturb verdicts supported by the opinion of the lower judge, merely because of the conflict of testimony, or unless the verdict is palpably wrong. In view of the importance of the case and the earnestness with which it has been argued, we have nob felt at liberty to rest on the weight due in a case of this peculiar character to the verdict or the opinion of the District Judge. The case has received, at our hands, the most careful consideration, and our .appreciation is, that the judgment of the lower court, except as to amount, must stand.

The damages for an injury to the child deprived by the act of defendant’s agent of both legs should be proportioned to his sufferings, and to that helplessness or dependence to which he is reduced and must endure to the end of his yet young life. As in all cases of damages for the loss of life or limbs, the measure of damages is a subject of difficult appreciation. We have considered the cases cited by defendant, and with an earnest desire to award suitable compensation, without oppression to the principal called on to answer for an agent’s acts, we have reached the conclusion the judgment should be reduced to twenty thousand dollars.

In Ketchum vs. Railroad Company, 38 An. 778, for the loss of an arm this court allowed ten thousand dollars damages. In Peniston vs. Railway Company, 34 An. 777, for broken leg, six thousand dollars. In Barksdull vs. Railway Company, 23 An. 180, for both legs, fifteen thousand dollars. In other cases of injuries, far inferior in character, allowances have ranged from fifteen hundred to seventy-five hundred dollars. In Choppin vs. Railway Company twenty-five thousand dollars was allowed for the loss of leg. In the Federal courts, for an injured foot, seventy-five hundred dollars was allowed; ten thousand dollars in another case was awarded for the loss of a leg, and in another case twenty thousand dollars were given for the loss of both legs. Railway Company vs. Stout, 17 Wall. 657; Railroad Company vs. Mares, 123 U. S. 710; Railway Company vs. Herbert, 116 U. S. 642. Guided by the circumstances of this case, and in the light of cases of injuries to limbs, it seems to us the damages we give can not be deemed excessive.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiff, W. R. Nelson, for the use of his minor child, recover of the defendant, the Crescent City Railroad Company, twenty thousand dollars and costs.

Dissenting Opinion.

Breaux, J.

In view of the many decisions of this court, allowing amounts considerably less in suits pari maierim, I am of the opinion that the amount allowed in this case is excessive, and therefore, as relates to the amount, I dissent from the decree.