author: Brsaux, J.

text:
    No. 10,979.
    Mrs. Stamati Covas et al. vs. G. B. Bertoulin et al.
    The defendant not being subject “to an habitual state of imbecility, insanity or madness” could stand in judgment in partition proceedings, and the title acquired under a sale authorized by the judgment is legal.
    The proceedings haying been fairly conducted, the fact that the notary who took the inventory and held the family meeting' was the agent of one of the owners-is not ground to annul the sale.
    In partition proceedings minors may he represented by a tutor ad hoc instead of n> curator ad hoc.

    The judgment of partition must be read with reference to the pleadings, and is mere clerical omission in the name of a defendant will not he of any avail when it is made manifest by them that it was owing to an absolute oversight.
    The decree of partition protects purchasers notwithstanding that the citation was-defective. The court had jurisdiction. The property sold for a fair value, and the citation was not so defective as to give cause to annul the sale after the judgment had been enforced without objection.
    The defendant upon whom the defective citation was served has not'assailed the-judgment. The adjudicatees are without right, and should accept the title-tendered.
    APPEAL from the Civil District Court for the Parish of Orleans* Ellis, J.

      Henry Denis for Plaintiffs and Appel ees:
    1. Minors unprovided with tutois may be represented in a partition suit by curators ad hoc or by special tutors. The difference is merely in the terms. C. 1' 116,195 and 946; C C. 313; Code oí Practico oí 1S26-; 2» An. 55; 2S.An. 163.

      2. a clerical error or omission in the name of a defendant in the judgment does not affect the val .¡ity of said judgment, which should he read hy the light of the pleadings. 42 An. 66
    3. Difference between want of process and defective or irregular process. Jn the hitter case the judgment is valid if defendant did not complain in time. Freeman on Judgments, See. 126, and notes; Black on Judgments, Vol. 3, Secs. 228, 245,263; 2 How. 340; 4 Peters, 477; 110 U. S. 188; 4 Rob. 258; 2 Woods, 37.
    4. A judgment can not be attacked collaterally unless it is void on its face. Black on Judgments, Vol. 1, .Sec. 246; 42 An. 369; 38 An. 812; 30 An. 947; 25 An. 125; 10 Wall. 283; 16 Wall. 366; 20 Wall. 249.
    5. Degree of insanity at which interdiction can be obtained. Same test to annul the acts or contracts of parties as to provoke their interdiction. 38 An. 547; 35 An. 441; 31 An. 757; 29 An. 302.
    6. Article 402, C. C., under which the acts anterior to interdiction arc annulled in cases of notorious insanity, only applies when there has been a subsequent interdiction. Laurent, Vol. 5, p. 374; 32 An. 93; 32 An. 171; 29 An. 302; 26 An. 464.
    7. Same Art. 402 applies only to voluntary acts of the insane, not to judicial acts, such as citations and notices. Demolombc, Vol. 8, p 425; Laurent, Vol.5, p. 378; Baudry Lacantiniere, Vol 1, Sec. 1181; Fuzder-Hermann, O. O., Vol. 1, Art. 508 No. 6.
    All men arc presumed to be sane until the contrary is shown. 32 An. 1056; 39 N. H. 163; 27 Ill. 395; 12Minn. 538; 108 Pa. 305; 63 Ala. 307.
    9,A judgment against an insane person not interdicted is perfectly valid, in the absence of fraud. Freeman on Judgments, Sec. 152; Black on Judgments, Secs. 205 and 265; 48 Pa. 70; 48 Mich. 234; 15 Neb. 295; 50 Md. 214; 21 Ala. 797; 31 Ohio, 247; 14 Mass. 207; 33 Me. 114; 29 N. II. 299; 81 Mo. 610.
    10. An insane person in Louisiana must be cited through himself, and not through a curator ad hoc, even for the purpose of interdiction. 28 An. 27; 16 La. 67; 1 Martin, N. S., 551.
    11. Insanity'can not be pleaded by a defendant unless a suit for interdiction has been previously instituted. C. C., 1788, No. 4.
    12. Irregularities in the proceedings are cured by tlio judgment, which protect» the purchaser. 38 An. 518; 25 An. 55; 2 How. 319: 2 Wall, 216: 3 Wall. 406; 16 Wall. 366; 101 r. S. 417.

      Jerome Meunier on the same side.

      White, Parlange & Saunders and Farrar, Jonas & Knottsehnitt for Defendants and Appellants:
    1. A notary public who is himself a defendant in a partition suit, either in liis own behalf or as agent for one of the co-owners of the property, can not hold family meetings on behalf of minor co-owners of the property sought to be partitioned. •
    2. Non-resident minors must be represented by curators ad hoc, and not by special tutors. Code, of Practice, Art. 116.
    Any legislation contained in the Civil Code contradicting this article of the Code of Practice must yield to the Code of Practice under Sec. 514 of the Revised Statutes.

      ?, a citation which does not state the number of days allowed to defendant to file his answer is null. Kendrick’s Case, 19 La. 36; Dupuy vs. Arceneaux, 21 An. 629.' Such a citation can not form the basis of a valid judgment.

      4. The Louisiana law, differing from the French law, allows any one to provokv the interdiction of an insane person, and further allows the appointment of an administrator pro tempore as soon as the interdiction proceedings are filed. O. O. 391, 394.
    Under this state of the law, which differs .entirely from the French law, a person having a c.laim against another notoriously insane must provoke his interdiction and the appointment of an administrator pro tempore, against whom h«? can proceed conti'adietoi-ily to assert his rights. Any other theory of the lav would lead to inhuman and appalling consequences.
    5. The provision of Art. 17S8 of the Civil Code, that no contract of an insaue man can be annulled unless his interdiction has been decreed, and that no exception of insanity can be set up unless interdiction lias been applied for, applies solely to the heirs or other representatives of the insane man, and not to third persons, whose exception is based upon the proposition that interdiction pro* eeedings may at any moment be filed and the validity of the acts of the interdict thus put at issue to their prejudice.
    ■fi. The title tendered to an adjudicatce at public sale in order to compel his acceptance must be a full, clear and unencumbered title in fee simple, and not a clouded title, even if it be one which will bo pronounced valid by a court of justice after a trial. Bachino vs. Coste," 35 An. 572, and authorities there cite d
   The opinion of the court was delivered by

Brsaux, J.

Ajulgmenb of partition was obtained and property was ordered to be sold to enable the owners to divide the proceed# in proportion to their respective interests.

The adjudieatees of the property sold under said judgment refuse-to consummate the sale.

The pending rule was filed to compel them to accept the title tendered.

The judgment of the District Court made the rule absolute.

The adjudieatees appeal from that judgment.

In their answer to the rale they present eight different grounds of defence.

The first has been abandoned by them; the second, as numbered, is argued under the fourth head. The questions being virtually th* same will be considered together.

We will discuss in the first place the issues under the allegation# that the defendants Narcisso Lopez Sigur, (owner of the one-thirtieth part of the property) is and was, at the time suit was brought for a partition, of insane mind; that his mental condition was well known btj Ms acquaintances and relatives and by those who conversed with him.

That he refuses to have anything to do with any business matter; to read or to sign any business paper; that he could not take notice of the said partition proceedings, and was not represented, and that they-■-we null and void.

For the sake of some brevity, we will not set forth at length the facts bearing upon this point, but state our conclusions after having ■considered the evidence.

It is proven that in 1880, and prior, this defendant was a young practising physician of some promise'at Morgan City.* He, about the ■end of said year, losChis wife and child.

The severe and depressing affliction caused him to leave the place, .and brought about a marked change in his .life.

He is intensely religious, and avoids all business affairs and conversation on the subject of business.

It is shown that he has refused to read a letter of advice of a small amount collected for his account, and indorse a draft it inclosed, that .it might be collected.

'Small sums have been collected for him, which he refused to receive, and have by those who made the collection been placed to his •credit in bank.

At times his utterances on the subject of religion are extravagánt and unreasonable.

He was called upon once by a physician whose testimony is of record. The defendant, before he saw the physician, who approached him unaware, conducted himself as if he imagined he saw some one with whom he conversed and suggested mysterious questions he pretended to answer.

These are the unfavorable symptoms in the defendant’s case.

They were not shown to be the prevailing condition of his mind.

The hallucinations were not permanent; immediately after the presence of the physician, who came upon him without his observing, he desisted and was quite rational.

He conversed, and the physician as a witness testifies that there was no cause for interdiction.

He met him several times and conversed with him. He says that he is a “well read” and “ learned man.”

Three other physicians of defendant’s neighborhood, who have testified, do not state that the defendant is of unsound mind.

His sister, with whom he resides, testifies that he is sane.

He has taught her children and the young son of a neighbor English, French and to calculate. In their sickness he prescribed .for and nursed her and her children. He reads most of the time.

The defendant is not permanently affected with a delusion upon any subject.

He has ample will power to control himself, as proven by the fact that immediately after he discovered he was observed by a physician, he at once resumed his self-control and conversed intelligently.

It is not proven, with reference to business, that owing to unsoundness of mind he refuses to give it concern.

If it be more than intense eccentricity on his part it is not shown by the evidence.

These eccentricities have not resulted in any loss to him.

To annul the judgment the evidence should be as conclusive of insanity as is required to justify a decree of intei’diction.

<! II ne suffit pas qu’il y ait aliénation, il faut que cet état soit habituel. * * Oe n’est pas sur quelques actes isolés qu’on

s’avisera de décider qu’un homme a perdu le sens et la raison; telle est la triste condition de l’humanité, que le plus sage n’est pas exempt d’erreur. Mais lorsque la raison n’est plus qu’un accident dans la vie de l’homme, lorsqu’elle ne s’y laisse apercevoir que de loin, tandis que les paroles et les actions de tous les jours sont les paroles et les actions d’un insensé, on peut dire que c’est un état habituel de démence; c’est alors le cas de l’interdiction.” Laurent, Yol. 5, p. 289.

The acts and words of the defendant, as disclosed by the record, are not those of a person insane.

We are confident of the correctness of this conclusion.

If, however, defendant’s mental condition were as contended by the defendants in rule, the objections urged by plaintiffs in rule, based on Art. 402, O. C.., that the defendant has not been interdicted, and that no petition for his interdiction has been filed, and that his insanity was not generally known by the persons who saw and conversed with him, are well founded.

No attempt has been made to interdict the defendant Sigur.

Those nearest to him, and who well knew his mental and physical condition, testify that he is not insane.

Therefore, the cause for “ interdiction did not notoriously exist.” C. O. 402. ' .

Th ird persons not near the defendant are protected by the said article.

Third. The notary who took the inventory and held the family meet - ing was agent, it is alleged, of one of the owners.

The facts bearing on the point are, that the property was owned by Hellen Gottschalk, Marco Gianovich and the he!rs of Auguste Roche, each in the proportion of one-third.

James Fahey was the agent of Hellen Gottschalk and Marco Gianovich.

Intakiag the inventory they were represented by N. B. Trist, who-acted in place of the agent.

The family meeting in the interest of the minor heirs of Auguste Roche, deceased, was held by Fahey, notary.

The proceedings were conducted, the judgment was obtained and the sale made without the least objection.

If there was any ground of objection it was not timely made.

The purchasers of the property have no cause of action on the said ground. Not the least wrong or influence is suggested.

The notary was duly appointed and acted in compliance with the-court’s order.

In the absence of complaint on the part of those directly interested, the court will not annul proceedings on that ground after judgment and sale. .

Fourth. The minors, absentees, were represented by special tutors and not by curator ad hoc, is another ground upon which the adjudieateesrefuse the property.

The record shows that special tutors were appointed, and not curators ad hoc.

Article 116 of the G. P. directs that the former shall represent the-minor, who has no tutor.

Article 964 of the same Code directs that persons having claims against a minor or a person absent, in pursuing the same, in their petition must pray the court to which it is addressed to appoint a tutor or curator ad hoe to defend the minor or absent person in the action.

Under Art. 195, O. P., service may be made on the tutor or curator ad hoc.

The qualifications and the functions of the tutor ad hoc and of the curator ad hoc are the same. The same rule and responsibilities, apply to each.

Article 116 of the C. P. is not- the only article on the subject.

If it were, it would prevail over the Art. 313 of the C. C.

The articles quoted, i. e., 964 and 195, O. P., authorize the appointment of a tutor ad hoc.

These two articles and the articles of the Civil Code do not conflict, and, construing them together, we conclude that a minor maybe represented by a tutor ad hoc, as authorized by Arts. 964, O. P., and 313 of the C. C. .

It is further contended, under this head, that no provision is made for the representation of a minor by a special tutor, save and except in case the several minors have the same tutor, when it becomes-necessary to appoint separate representatives to each of them.

While it is always preferable to qualify the legal representative of a minor with the technical words of the law, and the words ad hoc, applied to a tutor, should not be omitted nor supplied by the word “special” or any other; the difference between the two, “special” and ad hoc, will not justify the annulling of judgment and a sale-made in compliance with the judgment.

That the tutor was “ special ” instead of ad hoc is not a cause of nullity. The difference is in the name; the meaning of the word is the same.

This conclusion on this point does not lessen the necessity, constantly manifesting itself, of clear and distinctive technical names in jurisprudence.

Sixth. Objection is made that judgment was taken against Narcise Lopez, instead of against Narcise Lopez Sigur.

In the petition, in the citation, the name is properly written. Service was made on the said Sigur.

It happens that by clerical omission the name is not written in full in the judgment.

The terms of the judgment referring to the proceedings made it conclusive that it was a mere omission.

This point is disposed of under the authority of the Succession of Corrigan, 42 An. 65. In partition proceedings the judgment of partition must be read with reference to the pleadings.

The next objection is grounded on the fact that judgment was taken by default against the said defendant, on a citation which did not state as required by the O. P. that he must file his answer within ten days; adding one additional day for every ten miles from his residence to the court house.

The defendant resides in Iberville parish, and was cited to answer in ten days. He liad, as a matter of fact, the required delay to answer, although not expressed on the face of the citation.

The citation is defective beyond all question; it remains for us to determine whether it has had the effect of giving the court jurisdiction.

The title to the property is clear and undisputed. The issue is strictly one relating to partition.

The proceedings are in their nature in rem and the property represents the owner.

They are summary. O. O. 1328; O. P. 1024, 1025.

The parties in interest had an absolute right to a partition of the property.

The defendant was cited, the service was personal, except as relates to the delays not expressed; the citation was in legal form. An inventory was taken; default was entered, and all the proceedings are in due form, except in the one particular complained of.

The court, having acted within the scope of its authority, is presumed to have acted rightly in entering the judgment of partition.

The intendment of the law favors the maintenance of such judgments.

In the case of Kendrick Heirs vs. Kendrick, 19 La. 36, referred to by defendants in rule, the plaintiffs -proceeded against the widow in community, for a settlement and payment of the community debts: to recover from her the separate property of their deceased ancester, and for a partition of the estate. The action, except as to the partition, was in personam. The defendant, in limine, excepted to plaintiff’s petition on several grounds, among them that the service of citation was illegal.

The exception was maintained, as it would have been in the pending case if Sigur had excepted before judgment.

The other case referred to was also in personam.

The citation‘Vas defective, and the defendant had not been legally cited.

On appeal between the parties to the judgment it was annulled. Dupuy vs. Arceneaux, 21 An. 629.

A number of concurring acts in matter of partition may bind a defendant, despite an -illegal citation. He has remained silent while third persons bought the property for a fair consideration on the faith of proceedings among joint owners.

He is estopped • from assailing a judgment of partition after his virtual acquiescence in the results.

With reference to partition we quote, as applying from, “Black on Judgments:” “And where such proceedings are regularly prosecuted, and there is nothing showing any fraud or collusion, a person cited only in the class of unknown owners 1 is concluded, although in reality at the time he was in possession claiming in severalty, because by his silence he admits the tenancy in common and the right of the petitioners to have partition.”

The judgment was valid as to those who acquired rights under the sale it ordered. It is not assailed directly or indirectly by the defendant. The record shows that the sale was regular.

With the exception of the illegality in the form of the citation, the defendant would have had no defence had he chosen to answer.

“ The nullity of a judgment rendered against a party without his having been cited * * :i may be demanded at any time, unless tjie defendant were present in the parish and yet suffered the judgment to be executed without opposing the same.” C. P. 612.

The defendant was not in the parish where the property is situated.

For the purpose of the partition, however, he was within the jurisdiction of the court.

The court in construing this Art. 612 has safeguarded the rights of defendants, from which we do not depart in holding that in partition proceedings the defendant being under the law within the jurisdiction of the court which rendered the judgment can not have a judgment annulled on the grounds alleged in the rule in the pending case, and much less can the adjudicatee have a sale declared void after the defendant has “suffered the judgment to be executed without opposing the same.”

Lastly: Objection is made that the judgment by default against Nar■cise Lopez Sigur was taken prematurely.

This objection is not supported by the facts.

The full delays had elapsed before the default was taken.

The adjudication was legally made. There is no good reason why the title tendered should not be received and the sale consummated.

Judgment affirmed at appellants’ costs.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 10,925.
    Dennis Clements and Wife vs. Louisiana Electric Light Company.
    The violation of a duty specified by law is negligence; therefore, when a city ordinance under which an electric lighting company is'operated requires it to have the “ splices ” on its wi.res perfectly insulated, the failure to do so is negligence.
    A person whose occupation brings him in proximity to the company’s wires has a right to believe that the wires have been insulated and the ordinance complied with. I-Ie is required to look for patent defects in the insulation only. If not aware of a latent defect he comes in contact with the wire and is injured without fault on his part, the company is responsible.
    When the action of both parties must have concurred to produce the injury, it devolves upon the plaintiff to show that he was not himself guilty of negligence.
    This proof need not be direct, but may be inferred from the circumstances of the case.
    Whore an electric Wire is stretched over a roof and a party goes on the roof to repair it, and the wire is of that height above the roof that the chances are that he will come in contact with it by going under it or stepping over it, it is not negligence to pursue either mode of crossing if he exercises all necessary and prudent care to protect himself in proportion to the danger.
    When a person is employed in the presence of a known danger, to constitute contributory negligence it must be shown that the plaintiff voluntarily and unnecessarily exposed himself to the danger.
    APPEAL from the Oivil District Court for the Parish of Orleans. King, J.

      J. R. Beckwith and J. B. Fisher for Plaintiffs and Appellees

      Farrar, Jonas & Kruttschnitt for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

Joseph Olements was killed on the 4th day of October, 1890, by an electric current from the wires of the defendant company while engaged in repairing the gallery roof at the corner of Gravier and Camp streets, in the city of New Orleans.

The plaintiffs, the father and mother of the deceased, sue the defendant company for damages for the death of their son.

There was judgment for the plaintiffs for §5000, and the defendant appealed. ,

Joseph Olements was a tinsmith by occupation. He had been employed to go on the roof of the gallery to repair the same by a contractor.

He was accompanied by another young man, Alfred Anderson.

In half an hour after they went on the roof, Clements was killed by coming in contact with the defendant’s wires. Two of defendant’s wires run up and down Camp street over the roof of this gallery.

They were two feet four inches above it. They were some seventeen inches distant from each other, and the inside wire was about four feet from the Camp street edge of the gallery.

The wires were fastened to a support or “horse” on the gallery, and the inside wire, to prevent its contact with other wires, was secured to the horse by a piece of telephone wire.

Between the horse and the Gravier street side of the gallery there was, on the inside wire, a joint covered with insulating tape. To all appearances it was in good condition, but had been worn by the exposure to the weather, and had evidently lost some of its insulating properties.

The defects, however, were not visible, but.were exhibited during a storm, as shown by the testimony of S. W. Bennett. From his testimony it is shown that the insulating tape had been defective for a considerable time. He occupied a room fronting on the roof, and forbid his employees from going on it on account of the want of proper and safe insulation over the wires.

Clements and his companion were engaged in cleaning the roof, the first in sweeping and the other in carrying off the dirt.

The fatal injury to young Clements was rapid in its results, so quick in execution that no witness, not even the witness who was on the roof with him, was able to state with precision his position when he received the shock from the wire. But we think, from all the attendant circumstances, that he was either stepping over the wire or going under it. It is probable that he came in contact with both wires, making a short circuit, increasing the energy of the electric force. The unprotected or uninsulated places which were not visible on the splice in the wire came in contact with his body under the right shoulder blade.

The wires were so close to the roof that to pass from where Clements was first seen sweeping to the gutter, he must either have stepped over or crawled under.

From the distance of the wire above the roof, to step over would in all probability have brought Clements’ body in contact with one or both wires. He was only of medium height, and to step two feet four inches would require not only exertion, but some skill .to keep^ clear of touching the wires.

It is in evidence that about the time the accident occurred there was considerable leakage on defendant’s line of wires, and this is urged as evidence of neglect on the part of defendant because it showed defective insulation.

But the general defect along the defendant’s line can not be evidence of want of due diligence and care. It must be shown that the accident was occasioned by some defect at the point where the injury was inflicted. Nivette vs. Lake Railroad Company, 42 An. 1153.

We are aware of the difficulty which confronts the defendant company in keeping its many wires passing over a large territory to great distances, in a condition of perfect insulation. Parts of the line will necessarily become uncovered, and all that can be expected is that the company .will inspect its lines and repair defects as early as practicable. The particular defect in insulation in this case which is complained of was one of long standing, and by a careful inspection of its lines it would have been brought to its notice.

By city ordinance 806, Council Series, the legal duty of the defendant is specified.

Section 8 of the ordinance provides “that all splices or joints, wherever the same may occur, shall be thoroughly soldered after such joint or splice is made, and in addition thereto shall be well and thoroughly wrapped with kerite tape or other insulating material, so as to produce perfect insulation at such joint or splice.” This ordinance was a contract with each and every inhabitant of the city. The defendant’s standard of duty was fixed by it, and it is the same under all circumstances, and its omission is neglect.

The first requirement of the plaintiffs was to .show the existence of this duty which they alleged had not been performed, and having shown this, they must show a failure to perform the duty, and thus establish negligence on the part of the defendant.

It is an affirmative fact, the presumption being until the contrary appears, that every person will perform the duty enjoined by law or imposed by contract. Cooley Torts 659, 661.

In many cases evidence of the injury done makes out a prima facie case; for instance, where a bailee returns in an injured condition an. article which has been loaned to him, or where a passenger on a railway train is injured without fault on his part.

The city ordinance does not specify at what particular localities splices shall be perfectly insulated. On all parts of the line of defendant company where they occur the duty is specified.

The wire of defendant was spliced, and was not insulated as required by the ordinance. It passed over a roof, to which people in adjoining rooms had access, and where in the course of time mechanics must, go to- make repairs, or laborers to sweep off or clean the roof.

It was the duty of the company, independent of any statutory regulation, to see that their lines were safe for those who by their-occupation were brought in close proximity to them.

In this respect and in this particular case we are of the opinion that the defendant’s negligence caused the death of Clements.

But notwithstanding this fault of defendant, if the evidence show?, that the plaintiff himself was guilty of negligence, contributing to the injury, he can not recover.

The question is whether the act of the party injured had a natural tendency to expose him directly to the danger, which resulted in the-injury complained of.

If the plaintiff could, by the exercise of reasonable care at, or just before the happening of the injury to him, have avoided the same he can not recover damages for the injury.

When the action of both parties must have concurred to produce the injury, it devolves upon the plaintiff to show that he was not himself guilty of negligence.

He must show affirmatively that he was in the exercise of due and* reasonable care whenjthe injury happened. 40 An. 787; 83 Ill. 354;, 19 Conn. 566; 78 N. Y. 480; 101 Mass. 455.

This proof need not be direct, but may be inferred from the circumstances of the case. 104 Mass. 187; 41 An. 964; 2 Thompson. Negligence, 1178.

The deceased Clements was lawfully on the gallery roof. He was. engaged in a service that necessarily required him to run the risk of' coming in contact with defendant’s wires, either by stepping over-them or going under them. It is probable that the latter mode was. the most convenient, and there is no evidence that in so doing he incurred any greater risk.

The wires were visible and to all appearances were safe.

The great force that was being carried over the wire gave no evidence of its existence. There was no means for a man of ordinary education to distinguish whether the wire was dead or alive. It had all the appearance of having been properly insulated. From this fact there was an invitation or inducement held out to Clements to risk the consequences of contact.

He had a right to believe .they were safe, and that the company had complied with its duties specified by law.

He was required to look for patent and not latent defects. Had he known of the defective insulation and put himself in contact with the wire, he would have assumed the risk.

The defect was hidden, and the insulation wrapping was deceptive. It is certain, had it been properly wrapped, Clements would not have been killed. His 'death is conclusive proof of the defect of the insulation and the negligence of defendant.

He exercised reasonable care in going under the wire in the performance of his duty, as he had a right to believe, from external appearances, that the wire was safe. His action was such as not to tend to expose himself directly to the danger which resulted in the injury. ' In fact there was no apparent danger.

But it is urged that Clements was cautioned to keep away from the wires by his employer, Brady, and his failure to do so was gross .carelessness on his part.

The evidence on this point is as follows:

Q,. Did you call Clements’ attention to the wires?

A. No, sir; I cautioned him to be careful of the wires. Every ■man goes over a roof must keep away from the wires.

Q. It is the business of a man who goes over a roof to keep .away from them?

A. Yes, sir.

Q. Did he understand that business?

A. Yes, sir.

Q. Did you caution him that morning to keep away from the ■wires ?

A. Yes, sir.

Clements’ attention was not directed to any particular danger from the wires. No apparent defect was pointed out to him.

The admonition to him was only of a danger which he knew ta exist, according to the statement of Brady, before he advised him to be cautious of going near the wires, or to keep away from them.

There was only that instinctive dread of danger which overtakes one when he approaches a railroad track. The track in itself is nob dangerous, and is only made so by the passage of a train of cars over it. They announce their approach, and hence a person before he attempts to cross a track must exercise great caution, stop and listen, and look up and down the track. Having done this, if a train approaches silently without the accustomed signal and injures him, he would be entitled to recover damages for the injury. Curley vs. Railroad Company, 40 An. 817; Browne vs. Railroad Company, 42 An. 350.

The electric wires gave no signal of danger. Listening would not have revealed any danger. It is hidden and silent. But they are disarmed of danger if properly insulated. By looking one can see if there are evidences of insulation.

If there are evidences of *it, and no defects are visible after careful inspection, one whose employment brings him in close proximity to the wire, and which he has to pass, either over or under it, is not guilty of contributory negligence by coming in contact with it, unless he does it unnecessarily and without proper precautions for his safety.

It can not be said that when Clements went on the roof to repair it he went into the presence of known danger and assumed the hazards of the employment.

The employment was not dangerous. The wires, if properly insulated, as above stated, would have been harmless. It was only a remote danger, which he had to risk, and this depending upon the fact whether or not the defendant company had done its duty as specified by law. The external appearances, the only indication of performed duty to which Clements’ attention could be fixed, were guarantees that the defendant company had done its duty. These appearances assured him that in the performance of his work in sweeping the roof it was not dangerous for him to risk going over or under the wire. Bomar vs. Railroad Company, 42 An. 983.

Even in the presence of a known danger, to constitute contributory negligence it must be shown that the plaintiff voluntarily and unnecessarily exposed himself to it, unless it is of that character that the plaintiff must assume the risk from the very nature of the danger to which he is exposed.

From the appearances of the wire, its wrappings with insulated tape, and the known duty of the defendant to protect the insulation at this particular splice or joint, Clements had no reason to anticipate danger, except from the fault of the defendant company.

This fault was the cause of his death, and his act in passing under or over the wires was too remote to give it the character of contributory negligence.

This suit was brought under the provisions of Act 71 of 1884 amending Art. 2315 Civil Code.

The plaintiff therefore can only claim such damages as the deceased Clements could have done had he survived the injury. These would have been for mental and physical suffering, and actual pecuniary loss.

The deceased was almost instantly killed, and no damage can be awarded for suffering. The next inquiry is, what have the plaintiffs suffered pecuniarily by the death of their son in the loss to them of his contribution* to their- support? The evidence does not show that the plaintiffs were dependent for their support from his earnings, which were not very large, varying, $1.50 to $2.50 per day.

The parents, although their domestic relations were pleasant, lived apart, each with a child.

The deceased’s father says that when he wanted anything he asked him for it and he, if he had it, willingly gave it.

From the facts as to the amount contributed by the deceased to the support of his parents, we conclude that the verdict of the jury, awarding $5000 damages is excessive.

Two thousand dollars, we think, would be a most liberal award.

The judgment appealed from is amended so as to fix the amount of the damages for plaintiffs at $2000, and in other respects it is affirmed.

Appellees to pay costs of appeal.


author: Breaux, J. Fisnnjgr, J.

text:
    No. 10,928.
    City of New Orleans vs. Metropolitan Bank.
    This court will consider the written evidence of settlement; and payment of the judgment appealed from, when the genuineness of the receipt showing payment is not questioned by the appellee.

      The amount paid in the settlement of its tax, made by defendant with the City Council, having been placed in the treasury of the corporation; no action having been taken toward sotting aside the settlement, and no tender having been made of the [amount received in settlement, the plaintiff is without right to prosecute its suit for taxes settled, for an amount less than claimed as shown by the receipt produced,.
    APPEAL'from the Civil District Court for the Parish of Orleans. Monroe, J.

      E. A. O’Sullivan, City Attorney, and E. T. Elorance for Plaintiff and Appellee.

      Buck, Dinkelspiel & Hart for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

In March, 1891, plaintiff brought suit against the defendant for the sum of $2413 for taxes assesssd in the year 1878 against the “ Metropolitan Loan and Savings Bank,” a corporation which has since changed its name to “The Metropolitan Bank,” under which it now does business.

The defendant pleaded the exception of no cause of action, which was referred to the merits.

In its answer the defendant pleaded the general issue, and especiallydenied that any legal or valid assessment of its property had been made for said year; it alleged that it had paid all taxes for that year legally assessed; that no demand had ever been made for said tax, and that the defendant was never advised of any assessment.

The case was tried in June, 1891.

On the trial plaintiff introduced in evidence the tax bill numbered 5863,-and the assessment roll on which said tax was levied.

Judgment was rendered against defendant on 19th June, 1891, for the said sum of $744.23, together with 10 per cent, interest per annum, from March, 1878, and costs.

The defendant obtained a suspensive appeal to this court, and had its transcript of appeal filed in due time. Plaintiff answerecLthe appeal, and prayed in its answer that the judgment be amended by increasing the amount to the sum claimed in its petition.

The defendant moves this court to dismiss the appeal on the ground that it has settled plaintiff’s claim in full, and annexes to its motion the original tax bill of the city of New Orleans, No. 5863, with the receipt endorsed and a copy of the ordinance under which the settlement was made. The said ordinance numbered 5665 shows that on the 9th day of October, 1891, the Oity Council directed the city treasurer to receive the sum of three hundred and fifty dollars in full settlement of tax bill No. 5863 of the year 1878 in the name of the said bank.

In compliance with this ordinance the said treasurer received the said sum in full settlement, as evidenced by the said receipt.

Both parties to the appeal complain of the judgment of the District Oourt.

The plaintiff objects to the evidence offered on the grounds that the issue presented is a new issue, not raised in the court a qua, and that no new evidence can be considered on appeal; that is to say, the city of New Orleans objects to any evidence of the ordinance authorizing its treasurer to accept $350, and of the city treasurer’s receipt thereunder.

The genuineness of the receipt is not denied, nor is it averred that the Oouncil has not adopted the ordinance offered.

Objection is urged to the consideration of evidence to show a fact occurring subsequent to the appeal.

The payment having been recently made (since the case is pending on appeal), the District Oourt had no jurisdiction at the time it was made.

The question arises as to whether or not the appeal can be maintained?

It would not serve any useful purpose to remand the case to the District Oourt to admit the evidence offered of a fact not denied.

This court has considered such evidence in a number of cases and determined whether the appeal should be dismissed.

Recently, in the case of I. K. Ober et al. vs. Excelsior Planting and Manufacturing Oompany, Soria, Receiver, ante, p. —, the question came up on the right of a third party to appeal whose interest had not been established contradictorily in the lower court, and which interest was denied in this court, it was decided that, “ although our practice is to remand the issues in such cases for separate trial in the court below, it being apparent on the third party’s own showing that he is without right, remanding would be useless. ’ ’

It is manifest; the conclusion is unavoidable, that the objection is directed against the legal effect of the ordinance and the receipt, and not against the evidence per se as establishing the fact of payment as alleged.

In other words, ihere is no issue of fact between the parties.

In New Orleans City Railroad Company vs. Crescent City Railroad Company, 33 An. 1277, referred to by the appellees, the court, under a misapprehension in the first place, referred the question of acquiescence to the court a qua.

On the rehearing, it having been ascertained that the issue of fact was not “ disputed or doubtful,” the appeal was dismissed on the ground of acquiescence in the judgment.

In the other case, to which we are referred, Tanneret vs. Merchants’ Mutual Insurance Company, 32 An. 667, this court declined to decide certain questions of fact, which were controverted on appeal and which presented questions of “ original jurisdiction ” which properly vests in another tribunal.

It involved the legal existence of a corporation and questions of the extension of its charter; also questions of estoppel as grounds of dismissal of the appeal, of which the court 'states: “We have no knowledge at this stage of the proceeding and under the showing made.”

The said case can not have the weight of an applying authority, as it presented issues entirely unproven, upon which the court’s decision was sought.

The point under consideration presents one issue, that of payment, vel non, of a certain amount, under the authorization of the Council, which is not denied.

The fact that the payment was made, as alleged, can be considered on appeal when shown by a receipt, the authenticity of which is not questioned. White vs. Ramsey, 14 An. 329.

Plaintiff, in the alternative, contends, should the court consider the evidence tendered, that the ordinance offered and the act of the city treasurer thereunder are unconstitutional and ultra vires, and absolutely null and void.

The principles of law argued by plaintiff’s counsel in opposition to the motion to dismiss, that the city council of a municipal corporation can not bind the corporation by any act which is beyond the scope of its powers, is not at issue in this case, nor have the propositions with reference to the power under its charter to remit, compromise, or commute taxes, any bearing, nor can any right of the Board of Liquidation, be considered at this time.

The plaintiff instituted this suit to recover an amount alleged to be due by the defendant for taxes assessed.

Only a part .of the amount assessed was allowed.

It was received in settlement and placed in the treasury of the corporation to its credit.

If it be conceded for the discussion, that, the Oity Oouneil is an agent and has only such power as the plaintiff states, the fact remains that the principal has received the amount which it now holds.

It can not retain an amount which it received in settlement of a tax and at the samé time recover a judgment as if no settlement and payment had been made.

Should the motion to dismiss be overruled, the defendant would be placed in the attitude of having executed the judgment and of being bound in every respect, while plaintiff would be entirely relieved, although holding the amount paid as before mentioned.

There are no rights involved other than those set forth by plaintiff.

The Board of Liquidators is not a party to the suit; no evidence has been introduced to prove any right it may have.

The Oity of blew Orleans, represented by its attorney, who is the •'legal adviser of the corporation, in all matters in which his advice may be necessary, has made the settlement. Sec. 27 of Act. 20 of 1882.

It has received and retains the amount paid. Without any action whatever on the part of the city authorities, and while retaining the said sum, the counsel of plaintiff arehvithout legal authority to have decided questions they present against the binding effect of the said settlement.

The city treasurer having given the said receipt the appeal must be dismissed.

The motion to dismiss is sustained and the appeal is dismissed at appellant’s cost.

On Application for. Rmi-iearing.

Fisnnjgr, J.

In the brief for rehearing counsel say:

“ This honorable court in dismissing the appeal herein seems to have understood that the city admits the facts as recited by the court.

“ In this the court is under an erroneous impression.

“ So far from admitting, the city denies them and ask’s an opportunity of disproving them.

“The Oity of New Orleans denies that it has passed any ordinance whereby the treasurer of the city is authorized to accept $350 in settlement of the tax due by the Metropolitan Bank, sued for herein. The Oity of New Orleans denies that the treasurer of said city has received payment of said tax.”

In their original brief, on which the case was submitted for decision, the same counsel said, as part of their statement of facts:

“ The city passed the ordinance in evidence (if it be considered by the court) authorizing the city treasurer to accept $350, in settlement of the whole claim, and the treasurer accepted same.”

Rehearing refused.


author: McEnery, J. Watkins, J.

text:
    No. 11,014.
    Jos. L. Herwig vs. Richardson & May.
    The doctrine announced in Pugh vs. Moore, Hymns & Go., ii An. 209, affirmed.
    A PPEAL from the Civil District Court for the Parish of Orleans. I 1 King, J.

      W. H. Rogers and Speneer & Fenner for Plaintiff and Appellee.

      Bayne & Denégre for Defendants and Appellants.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff alleges that he bought from the defendants, May 29, 1888, ¡ten bonds of the State of Louisiana known as consolidated bonds of the State, each bond being for the sum of $1000, bearing 4 per cent, interest; that said purchase was made through the firm of Seixas & Brown, brokers, acting for and representing the defendants; that said bonds are worthless, as they are of a number of 196 bonds issued under Act 3 of 1874 in favor of the Agricultural and Mechanical College of this State to be held in trust for said college by the treasurer of the State, but which were afterward declared null and void by Art. 223 of the State Constitution, which ordered through the Legislature the destruction of said bonds; that these bonds were stolen from the State treasury by the treasurer, E. A. Burke, and negotiated by him. The prayer of the petition is for the delivery to plaintiff of valid bonds of the State, such as he intended to purchase, and in default of such delivery that the defendants be ordered to pay him the sum of $9112.50, with 4 per cent, interest from May 29, L888. By an amended petition the prayer is altered, demanding 5 per cent, interest on the moneyed judgment asked for in the alternative.

The 'defendants in answering say that they sold, through Seixas & Brown, stock brokers, on the 28th day of May, 1888, 50,000 4 per cent, consolidated bonds, and-delivered said bonds to said brokers on the 29th day of May, 1888, and have no knowledge of the names of the purchasers of said bonds, and they deny that they ever sold any worthless bonds.

Of the 50,000 sold they have heard of no complaint, except from the plaintiff in the beginning of the year 1891; that the bonds sold by defendants through Seixas & Brown .were negotiable bonds of the State of Louisiana which passed current in the market, and were received and delivered at the Stock Exchange in this city (New Orleans), and to and by all persons, and were unquestioned; that defendants had no knowledge or suspicion that any of the bonds of the State of Louisiana were of doubtful validity, and neither defendants nor any one else even had a suspicion against the validity of said bonds until late in the season of 1888; that they were b.ona fide holders of said bonds before maturity of all the bonds delivered by them to Seixas & Brown; all of said bonds bore date in 1874, were payable in 1914, and were purchased in open market and for a valuable consideration, and defendants are not liable in any manner and under any circumstances to the plaintiff.

That said bonds were issued by the State in 1874, and were by her put in circulation, and under the commercial law, adopted and prevailing throughout the United States aud this State, there is no liability on their part to plaintiff, even if defendants had sold him the bonds as alleged in his petition; that said bonds pass daily from hand to hand without other warranty than the genuineness of the signatures to them; that as bona fide holders of said bonds for value received before maturity defendants’ rights can not be impaired without violating the Constitution and laws of the United States.

There was judgment for the plaintiff and the defendants appealed.

The record establishes by conclusive proof that the bonds described in plaintiff’s petition and offered in evidence were purchased by the plaintiff from Richardson & May. The bonds were originally consolidated bonds of the State of Louisiana and belonged to the Agricultural and Mechanical College fund, and were held by the State' and were deposited in the treasurer’s office for the use of said fund.

In the Constitution of the State, adopted in 1879, the entire debt of the State due said college was assumed by the State as a perpetual loan, which was placed to the credit of said fund, upon which 5 per cent, interest is to be perpetually paid. The consolidated bonds of the State held by the State for the use of said fund were declared to be null and void after the 1st day of January, 1880, and the State was prohibited forever from making any provision for their payment and they were ordered to be destroyed. Constitution, Art. 223.

Those bonds were not destroyed, but remained in the office of the treasurer until some time after the 1st day of January, 1880, when they were by him taken from the treasurer’s office and disposed of.

The bonds purchased by plaintiff were a part of those stolen from the treasurer’s office.

The issues in this case are identical in every respect, except as to the identity of the bonds purchased from defendants with those presented and decided in the case of Pugh vs. Moore, Hyams & Co., 44 An. We have not been convinced that there was error in the decree in that case.

We are asked by defendants to postpone our decree in this case until the final disposition of a case involving similar issues now pending in the Supreme Court of the United States; otherwise, should the decree of the United States Supreme Court be contrary to this, the fate of the holder of these bonds will be a matter depending upon the accident of citizenship, not upon principles of law.”

In declining to postpone our decree herein, we adopt as the reasons therefor the following part of the concurring opinion of Mr. Justice Fenner in the case of Pugh vs. Moore, Hyams & Co.:

“ It is within the power of the State to destroy the negotiability of all paper and to withdraw from commerce such things as it may deem proper.

Sun Mutual Insurance Company vs. Board of Liquidation, 31 An. 175; State vs. Board, 29 An. 77. These decisions are, for us, the highest of all judicial authority as to the subject matter of which they treat; higher even than that of the Supreme Court of the United States, unless it can be shown that they involve some federal question, on which we acknowledge the paramount authority of that high tribunal. We can discover no federal question in those cases or in this. Nobody would seriously question the power of the State to modify, repeal or abrogate the law merchant, except, at least, in so far as such action might impair contract rights existing at the date of such legislation; and, inasmuch as the rights here involved necessarily arose after the date of the legislation and after the facts which gave effect thereto, this possible exception can not apply.”

Defendants complained of the rate of interest allowed in the judgment for the amount ordered to be paid by defendants if they do not deliver the bonds.

The amount due plaintiff is a debt owing by the defendants if they fail to carry out the original contract and deliver to plaintiff valid consolidated bonds of the State. The judgment is, therefore, correct in allowing 5 per cent, interest. Revised Statutes, 1883.

Judgment affirmed.

Dissenting Opinion.

Watkins, J.

This is, in every respect, a parallel case to Pugh vs. Moore, Hyams & Co., recently decided, and I adhere to the views expressed in my dissent therein.

This is a suit by a purchaser of several bonds, known as Agricultural and Mechanical College bonds, forming part of the consolidated bonds of the State of Louisiana, which were declared, by Art. 233 of the Constitution of 1879, to be null and void after the 1st of January, 1880; and which were by him purchased of the defendants, in May, 1888, as valid, without any knowledge of same being void, and on that account he demands of them the restitution of the purchase price.

In my opinion it is indisputably well settled that all persons who deal in commercial paper, negotiable obligations of every kind, are, pro hac vice, bound by the provisions of the law merchant — the precepts of the Civil Code in relation to “ the assignment or transfer of credits and other incorporeal rights” having no application thereto.

The bonds declared upon are genuine consolidated bonds of the State of Louisiana, properly signed by the officers designated in the funding act of 1874; and same were, on the 30th of November, 1874, issued by the Board of .Liquidation, in exchange for Agricultural and Mechanical College bonds, which were of undoubted validity primarily.

These bonds were drawn payable to bearer at forty years from the 1st of January, 1874, regularly numbered, and bearing interest at the rate of 7 per cent., payable semi-annually, evidenced by interest coupons annexed thereto, and duly signed by the Treasurer and Auditor.

Apparently, and from a physical examination of them, they are clean and free from blemish, and are invested with the fullest, possible sanction that could be given to any paper a State could issue and put upon the markets of the world.

In the same year in which the funding law was enacted there was a constitutional amendment proposed which declared that the consolidated bonds, thus authorized and issued, created a valid contract between the State and [each and every holder of said bonds, and which the State should by no means impair.

This amendment was adopted and became a part of the organic law prior to the date of the issuance of said consolidated bonds, and so remained until the adoption of the Constitution of 1879.

Manifestly, it was upon faith of these laws, statutory and constitutional, that the public creditors of the State — the Agricultural and Mechanical College among the number — accepted such consolidated bonds and gave in exchange other valid obligations therefor.

I take it to be a settled principle of law that the government of a State, like that of the United States, when she makes herself a party to negotiable paper, incurs all the risks and responsibilities of an individual maker or indorser of such paper, under like circumstances; and in the hands of a bona fide holder for value, before maturity, the validity of such paper can no more be questioned than similar paper of an individual maker or indorser could be.

That when a State borrows money or contracts a debt, and therefor issues her promise to pay at some future time, in. the form of a bill of exchange or promissory note, in pursuance of statutory provision and constitutional behest, she does not act as sovereign but descends to the lev.el of ordinary individuals, and the same meaning is to be given such contract as is ordinarily given to contracts between private persons.

“ Hence,” as the Supreme Court had occasion to say, “instead of there being, in the undertaking of a State or city to pay a reservation of a sovereign right to withold payment, the contract should be regarded ■as an assurance that such a right will not be exercised.” . 21 Wall. 138.

As was appropriately and justly observed by the Supreme Court in Louisiana vs. Jumel, the terms of the consolidated bonds show unmistakably a design to make (them) so far contracts that their obligation would be protected by the Constitution of the United States against impairment.” 107 U. S. 711.

In view of these established precepts of law, in reference to State obligations of the kind described, that is to say, that in the execution and issuance of negotiable instruments a State does not act in her capacity of sovereign, but as an individual, and is to be dealt with accordingly — a bona fide purchaser for value gets just as good a title as he would obtain to the commercial paper of an ordinary individual, under like circumstances, and would acquire a right to the same remedies and safeguards for the protection of his title as he would in case of his acquisition of private paper.

The sole foundation of plaintiff’s demand is thatthe bonds in question were rendered absolutely null and void by the constitutional article from and after the 1st of January, 1880, and not that their execution and issuance was the result of any fraudulent or illegal acts of any State officer or agent, who, under the Constitution and the law, was entrusted with their execution and issuance.

For it is conceded that the bonds were primarily valid when issued in 1874 in exchange for other valid bonds, and it is specifically averred that they only ceased to be valid and became void through constitutional instrumentality after the 1st of January, 1880.

On this hypothesis it seems perfectly obvious that if this court were dealing with obligations of an individual maker or indorser, there could be no question of the duty being imposed upon plaintiff to show by a fair preponderance of proof that they were «of extant in the hands of a bona fide third possessor at the time their nullity was promulgated; and that failing to administer such evidence he could take no judgment against a party from whom he had obtained them for restitution of the price paid.

And it being a settled principle that in such case a State occupies the same contract relation toward her creditors as an individual does toward his creditors; identically the same test must be applied to one as to the other.

Applying this principle to the case under consideration, and what is the result? In my opinion the proof in the record is insufficient to exonerate the State from responsibility on the bonds under consideration, and plaintiff’s right to relief depends upon that fact being established.

At the time of plaintiff’s acquisition of said bonds — May, 1888— there had been no separation or segregation of the so-called Agricultural and Mechanical College bonds from the general series of $12,000,000 of State consolidated bonds above described. At that time there was no official record, data, or information of any kind, extant or available to the defendants, whereby they could have known or been made aware of their possible invalidity. There is’not now, nor has there ever been, any thing apparent from simple inspection of the bonds in controversy whereby they could be identified as Agricultural and Mechanical College bonds, and segregated from consolidated bonds by purchasers in open market. Having been issued by the Board of Liquidation in 1874, and given the form of all .other consolidated bonds — as the funding act required — there was-nothing to hinder their free circulation or restrain their negotiability.

Notwithstanding the constitutional declaration that the consolidated bonds of the State now held by the State for the use of said fund shall be null and void after the 1st of January, 1880,” and its-further requirement that they ‘ ‘ shall be destroyed, in such manner as the General Assembly shall direct,” the $196,000 of Agricultural and Mechanical College bonds were never separated from the mass of consolidated bonds for destruction by the General Assembly, or destroyed so far as the proof has disclosed.

Prom this fact one of two’propositions is clearly established, (1) that the bonds in question were not in possession of the State on the-1st of January, 1880, "find were on that account unaffected by the constitutional fiat; (2) or if they were, the State, through her General Assembly, was at fault in not causing them to be destroyed and placed beyond the reach of the thief and embezzler, and failing to cause them to be destroyed she would be estopped from urging the-consequences of her fault to the detriment and injury of honest people dealing in such securities, particularly in view of the fact that her fiscal agents were paying interest coupons up to the date of defendant’s sale of the bonds to the plaintiff, thus giving them faith and currency.

That the identity of what are called Agricultural and Mechanical College bonds was not ascertained prior to 1888 is a well established fact — even so far as the State treasurer and auditor are concerned. Por, on the 11th of March, 1889, the treasurer’s official statement of the bonded debt of the State, made to the secretary of the New York Stock Exchange, omits mention of the reprobated bonds; but in his subsequent report, made under date September 29, 1889, the information was, for the first time, vouchsafed to that body that certain consolidated bonds had been declared null and void by the terms of Art. 233 of the Constitution of 1879, and that they were numbered respectively and consecutively from 710 to 905, and were of the denomination of one thousand dollars each.

Subsequently to the date last given, an investigation was set on foot by the auditor and treasurer, which disclosed the fact that a large number of reprobated bonds were in circulation.

Replying to an interrogatory propounded by the New York Stock Exchange, as to “the days and dates” when the information previously communicated designating the numbers of the- fraudulent bonds was first promulgated, the treasurer stated, in a letter of the 29th of October, 1889, that it was promulgated on the 29th ultimo.

It is true that in 1879 there was a report made by the treasurer, which contains a statement of $196,200 Agricultural and Mechanical College bonds and their numbers; but that report was made antecedent to the adoption of the Constitution of 1879, and erroneously makes reference to the act under authority of which they were issued as Act No. 3 of 1879 instead of 1874. And the Constitution itself speaks of these bonds in general terms as the consolidated bonds of the State now held, by the State for the use of said fund ” — meaning the Agricultural and Mechanical College fund — and designates their amount to be $182,313.32, instead of $196,200.

Just here the question arises as the efficacy and sufficiency of the notice which said report and constitutional article convey. They certainly conveyed none to the auditor and treasurer of succeeding years, as their official report shows. If they did, why did the State’s fiscal agent continue the payment of interest coupons on all consolidated bonds alike, until the year 1889, subsequent to the plaintiff’s acquisition of the bonds from the defendants? If notice was thereby conveyed, such a course of dealing was most inexcusable. But if notice was not thereby conveyed to officers of State who had possession of the public records, who were the successors in office of those whose dereliction of duty caused the issuance of the illegal bonds, and who are perfectly familiar with all the official data on which-this complaint is founded, as far as that information goes — by how much the less was notice conveyed to the general pubiic thereby.

Not only is it conclusively proven by the official reports of the present auditor and treasurer and their sworn evidence that notice was not conveyed, but it is even better established by the general course of the markets here and elsewhere, and by the prices paid for the bonds.

It seems to my mind to be a perfectly clear proposition of law that, in dealing with her own promises to pay, the State is placed under exactly the same obligation of duty toward persons holding them as an individual debtor would be toward his creditor; and that, forsooth, she is a sovereign does not entitle her to arbitrarily repudiate her obligations.

I take it to be settled by the weight of authority that the fraud which shifts the burden of proof of bona fide title upon the holder must be in the original consideration or representations used in obtaining the execution of the instrument, and not in the after breach of trust, in diverting it from the uses for which it was intended; because the possession of a negotiable instrument- before maturity carries with it a title that is fully protected against-charge of fraud or theft, or failure of consideration, as between antecedent parties; and this rule of property is so strong that such a holder can convey to another a valid and indefeasible title, notwithstanding the latter knew of its inherent defects.

In view of the foregoing precepts of law, I do not think the bonds of the State, in the hands of such a holder, can be held absolutely void.

Conceding the largest latitude and liberty of action to the State, acting through the mediation of a constitutional convention in respect to the creation of commercial paper, and restricting its negotiability while in her possession or under the control and custody of her authorized officers, yet I can not conceive of any reason, and am unaware of any legal principle, on which she can be recognized to have the power to thus control and restrain it in the hands of a bona fide holder.

For, let it not be forgotten that the constitutional amendment of 1874, which authorized and sanctioned the issuance of consolidated bonds, in terms declares that they shall be “ a valid contract between the State and every holder,” and “which the State shall by no means-impair;” and that the Supreme Court, in treating of these bonds, declared that “the language employed in this instance shows unmistakably a design to make these promises and these pledges so far contracts that their obligation would be protected by the Constitution from impairment.” 107 U. S. 711.

The court evidently considered that the constitutional precept, quoted was read into the contract as a governing principle, and such being the case the bonds were in the hands of innocent purchasers, entirely beyond the reach of statutory or constitutional impairment.

In dealing with the power of a State to recall bonds once issued, and of her power to withhold payment, the Supreme Court said, on the contrary, that her “ contract should be regarded as an assurance that such a right will not be exercised.” 96 U. S. 432.

The theory upon which the opinion of the majority of the court in Pugh vs. Moore proceeds is analyzed in the opinion refusing a rehearing, and the purport of it is that the law merchant is not applicable to cases arising ip the State of Louisiana, except in so far as it does not conflict with the statute law of the State or some constitutional provision; and that the State has full and plenary power of modifying or amending it at will. That the constitutional provisions •herein cited were intended to repeal and abrogate the law'merchant in so far as it applies to the bonds in question. That the rights asserted by the defendants arose subsequent to its adoption, and must be governed by it and not the law merchant. That in this-manner the bonds in controversy.lost their quality of negotiability, and became assignable as choses in action only. That the courts of this State are bound to apply these principles of law and enforce the mandates of the Constitution.

I will at once concede the correctness of each of the foregoing propositions, and yet the serious question is not disposed of, and that is the right of a purchaser, in good faith, of bonds of the character referred to, which were in circulation at the time of the promulgation of the constitutional flat, depriving Them of the incidents of negotiability under the law merchant. For it has been demonstrated beyond peradventure of a doubt that these bonds were originally issued for a valid consideration, and were thereafter continuously circulated as valid obligations of the State until the year 1888, when plaintiff bought of the defendants.

That the rights of the defendants arose subsequent to the adoption of the Constitution makes no difference; first, because there was nothing appearing on the face of the bonds, or upon the records in the offices of the auditor and treasurer, to put them on their guard by identifying the fraudulent bonds; second, because the good faith of the first taker of a piece of commercial paper passes to subsequent purchasers.

In so far as the cases of The Sun Mutual Insurance Company vs. Board of Liquidation, 31 An. 175, and State exrel. Durant vs.Board, 29 An. 77, are concerned, it is indisputable that they, and other similar cases cited on the same side, only apply to bonds, warrants and, other obligations of the State which were not yet funded into consolidated bonds, but which the Board of Liquidation has declined and refused to fund into consolidated bonds.

It was to State creditors holding such State obligations, and seeking to compel the Board of Liquidation to fund them into consolidated bonds, that the court said in those cases: You have submitted yourselves to the operation of the funding laws, demanding the right to surrender obligations of the State in exchange for consolidated bonds, and must be conclusively presumed to have accepted the grace of those statutes upon the terms they have extended, coupled with the right of the State to question the validity of the obligations tendered for exchange. These statutes have merely given permission to you to sue the State under the conditions imposed, and it is only through the channel thus pointed out that you can reach the courts. It is made a condition precedent to the maintenance of such an action that you shall establish the good consideration and valid issue of the obligations you offer to surrender. It is to this law, and not to the law merchant, that you must look as a guide.

But it is evident to my mind thatthose decisions have no possible applicability to the present controversy, because we are dealing with consolidated bonds that were issued on the 30th of November, 1874, prior to the enactment of the supplemental funding act of 1875, under the provisions of which the Sun Mutual Insurance Company and Durant cases were brought and decided.

The bonds in suit were issued in exchange for previously existing and unquestionably valid bonds of the State, and without question or suit. They were put into circulation as all other consolidated bonds were, and without anything to indicate. that they-were not commercial instruments. Nothing happened until the adoption of the Oonstitution of 1879 — six years after their execution and issuance conformably to the funding act of 1874 and the constitutional amendment of 1874 — to indicate impairment of their credit.

Confronted with this situation, I feel constrained to express my dissent from the proposition that the State can change the status of her obligations whilst they are in the hands of innocent tim'd holders for value and before maturity.


author: Breaux, J.

text:
    No. 10,883.
    The Natchez and New Orleans Packet and Navigation Company vs. Louisville Underwriters et als.
    The steamer having been reduced to a -wreck, an abandonment was made under the marine insurance laws.
    The share that the insurers are to have in the abandonment has the same proportion to it that the sum insured has to the total value of the steamer.
    The insurance being for two-thirds of the value as fixed in the policies, the interests of the insurers is two-thirds in the wreck; that of the owner for the remaining one-third not insured is one-third in the wreck.
    The assured is his own insurer with respect to his uncovered interest.
    He is in some manner a partner with the insurers; he comes into concurrence with them on the portion saved for his uninsured interest.
    Agents while acting to the extent of and in proportion to the interest insured must necessarily act for the common interest of all concerned, being undivided.
    By means of the the abandonment the insurers arc obliged to pay the amount for which the property is insured.
    Under the laws regulating salvage the recovery of the effects wrecked is made for account of all parties concerned for whom the agents act.
    Their acts can not affect part of the interest insured to the detriment of the other, as each shares in the property saved in proportion to the interest insured.
    It being stated that there was an agreement made with the agent relative to salvage, the date and particulars of which are not given, and it not being alleged that it was a distinct obligation arising over and above the policies, whatever rights plaintiffs may have under a separate agreement are reserved.
    APPEAL from the'Civil District Court for the Parish of Orleans. Ellis, J.

      B. B. Howard and Branch K. Miller for Plaintiff and Appellant:
    If the total loss insured does not equal the value of the thing insured, the owner is his own insurer for the difference, and is entitled to a pro rata share of the proceeds of the wreck. 11 An. 459; 6 O. St. 200; 9 Cushing (Mass.), 802; 4 Peters, U. S., 144; 2 Woods, U. S. C, C., 490.
    After a valid abandonment, the master of an insured vessel is solely and exclusively the agent of the underwriter. 8 Iient Com. 322; 13 Mo. 527; 9 Johnson (N. Y.), 25; 7 Johnson (N. Y.), 519; 17 An. 46; 19 La. 270-271; 6 Oranch, 272.

      J. R. Beckwith for Defendants and Appellees:
    1. If in a valued policy of marine insurance the policy only covers two-thirds of the agreed or stated value of the vessel insured, and in case of constructive total loss the owners are held to be insurers for themselves of the one-third not covered by policy, there can be no general abandonment that will carry the entire property and title to the insurer having a policy on the vessel insured for partial value. Abandonment in such case would only carry title pro tanto to insurer as per rate of interest covered by policy, leaving one-third title to'the owners as their own insurers. Philips vs Insurance Company, 11 An. 459; Cincinnati Insurance Company vs. JDulfield, 6 Ohio St. 200.
    2. In maritime insurance, in case of actual or constructive total loss of a vessel, even when the entire agreed value of the vessel is covered by policy or underwritten, the owners and master from the time of attempted abandonment to the insurer as total loss become the agents of the insurer, and are bound to faithful discharge of duty as negotionm gestores to safeguard and save all property and wreckage, and can not charge the insurer with any loss resulting from their own negligence or want of energy or care in rescuing property from destruction, and it is their duty to stand by the wreck and save property until' they can physically turn the wrecked vessel over to the insurers after actual acceptance of the abandonment by the insurer. Garderevs. Ins. Co., 7 Johns. 514; Collett vs. Ins. Co., 1 Wend. 561; 4Wend.75; Gordon vs.Ins. Co., 2 Rick. 249; Mellon vs. Bucks, 17 Martin, 371; Robertson vs. Ins. Co., 19 La. 227,
    3. Where the loss is not total or absolute, but only a disabling or stranding of the vessel, it is the duty of the assured to act with the same energy, and use such means to save the vessel as a prudent man would do under the same circumstances if not insured; he is honestly to use all such means as are at his command to save the vessel or any part thereof that can be saved from destruction. Copelin vs. Insurance Company, 46 Mo. 211; The Sarah Ann, 10 Sumner, 215; Hundhausen vs. Insurance Company, 17 S. W. Rep. 152; Robertson vs. Insurance Company, 17 La. 227.
    4. If the owners of the Natchez were insurers for themselves of one-third of the vessel at the time of the stranding, no abandonment could relieve the master and owners from the duty of preserving or saving the vessel or any part thereof that could be saved from loss as joint owners in common undivided title; in the event of valid and effective abandonment of insured interest the master, in the absence of the owners, was the agent of the owners for that purpose. Robertson vs. Insurance Compny, 17 La. 227.
    5. The petition discloses no right in the assured to abandon the vessel generally to all of the defendants collectively, there being no contract relation existing between the defendants by which they could take title in common by general abandonment. The interest of each insurer being several, the abandonment, if made, should have been several, to the extent that the several insurers would take interest by virtue of risk underwritten by each.
    6. The judgment prayed for being a judgment in solido against all of the defendants, the petition does not disclose a cause of action unless it discloses in solido liability.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs claim of the defendants the sum of twenty eight thousand dollars, and in support of their claim allege that they were the owners of the steamer Natchez, insured in the defendant companies.

That for insurance it was valued at $30,000, although it was really of the value of $90,000.

That on the 1st of January, 1889, the steamer struck a hidden obstruction and became a total loss by sinking in the Mississippi, at or near Lake Providence, La.; that the loss was covered by the policies issued.

That the defendants were notified on the day of the loss, and the steamer was at the time abandoned to the agents of the defendant companies, who accepted the same, having authority to take custody and control of the wreck.

That it was their duty and their agreement to proceed immediately to the' salvage of the wreck of said steamer for the benefit of themselves and of petitioners, who were the owners of the wreck, to the extent of the value of the uninsured portion of the steamer.

That in violation of their duty and in collusion against petitioners the said agents delayed and neglected to take any step whatever toward the salvage of the wreck.

That by not acting in time, as they should, the wreck went to pieces, and the salvage was made impossible by the rising waters.

It is argued by plaintiffs’ counsel that plaintiffs are entitled to recover, under the terms of the policies, and in the second place that the insurers had, under an agreement, undertaken an additional liability, as we understand it, over and above the insurance properly so called and of a different nature.

These propositions will be taken up separately hereafter in discussing the issues and in reaching a conclusion.

The policies are not annexed to the petition.

It is only alleged that “certain policies of insurance against loss by river peril on the steamer Natchez” were held by plaintiffs.

The clauses are not set forth.

The defendants filed the plea of no cause of action.

In support of this plea they submit the propositions that abandonment in marine insurance does not convey title to insurers of interest uninsured and still held by the owner m the property abandoned.

That the owners and master, from the time' of the attempt at abandonment to the insurer as total loss, became the agents of the insurer in safeguarding and saving the property and wreekage until a physical delivery of the wreck has been made.

That it is the duty of the assured, where the loss is not total, to use the same means as a prudent man would use to save his property if not insured.

That if the owners were their own insurers of one-third of the steamer, an abandonment did not relieve the master and owners from preserving and saving the vessel, or any part thereof; being owners in indivisión with the defendants.

That for the purpose of effecting the abandonment the master was the agent of the owners.

That an abandonment could not be made to the defendants collectively, there being no contractual relations among them with plaintiffs by which they could be vested with title in common by general abandonment.

There being no plea of misjoinder, the last proposition will not be considered.

The proportion of ownership in the wreck and the rights of the parties is one-third by the plaintiff, and two-thirds by the defendants.

This is the ratio between the insurance, $20,000, and the value of the property, viz.: $30,000, as agreed upon under the policy, and which must be taken as a basis in establishing the interest of insurers and of the assured in the property saved.

The District Judge in a clear and elaborate opinion, propounds the questions: “ Why should defendants, holding two-thirds interest in the wreck vested in them, after the sinking of the boat, by notice of abandonment for the purpose of affixing their liability for the whole insurance, be held to a higher standard of duty than plaintiffs, who carried one-third the risk, and who in consequence remained owner to that extent? Why should the defendants be held to the duty of prompt wrecking and salvage and plaintiffs be released in full therefrom, they having a common agent, i. e., the master in charge?”

In maintaining .the exception of no cause of action • the court answers these questions as follows:

“They were joint owners for one-third and two-thirds respectively, by the legal effect of abandonment. The contracts of insurance were the only bonds between them, and fixed their relationship to each other, and this plaintiffs can not change by allegation of avalué different from that set forth in thelpolicies.

“Thus contractually related, theyi had, as common agent, after the notice of abandonment, i. e., the master of the boat, and he was on the spot, whereas defendants’ accustomed agents were in this city (New Orleans), and only constructively in possession in virtue of the notice of abandonment. Plaintiffs’ master and crew were in the boat at Lake Providence, near the '^Arkansas line, and, although legally and technically he was defendants’ agent as well, yet, in truth, defendants’ agents were hundreds of miles away. That officer represented, after the notice of abandonment had been sent, the defendants for two-thirds and the plaintiffs for one-third. The effect of the neglect charged was to lose to defendants their two-thirds, which, by contract, they must pay to plaintiff without possibility of recovery from salvage of the boat. Its effect as to plaintiff was the loss only of one-third interest, and this loss was the act of their agent. The fact that he was also defendants’ agent does not alter the case.”

We are referred by plaintiffs’ counsel to the case of plaintiffs against said defendants, 42 Fed. Rep. 169, District Court, Eastern District of Louisiana, in which it recovered judgment for premium on its policies, leaving plaintiffs’ claim obviously one for a proportion in property lost by the negligence of defendants’ agent in not safe-guarding the wreck after the abandonment alleged.

The assured may give the underwriters notice that he abandons the wreck to them, and claims for a total loss when the vessel is converted into such a wreck that it would cost more money to repair her than she would sell for when repaired. Arnould on Marine Ins., p. 14.

The steamer was a complete wreck and not repairable.

The form of the notice of abandonment and the time at which it was given, are not subject of controversy.

In making the election whether to treat the loss as total or not so treat it, to repair or abandon, the plaintiffs in electing the latter expressly retained their interest in the wreck.

The notice, it is alleged, was given to one agent as representing all the companies.

“ A total loss,” says Chancellor Kent, Vol. Ill, p. 413, “ within the meaning of the policy, may arise either by the total destruction of the thing insured, or, if it specifically remains, by such damages to it as renders it of little or no value. * * * In such cases the insured may abandon all his interest in the subject insured and all his hope of recovery to the insurer, and it falls upon him to pay as for a total loss.”

Plaintiffs alleged that they were the owners to the extent of the value of the steamer not insured.

Whoever insures a part of his property, in case of its abandonment, under marine insusurance, is owner of the remainder.

The portion saved, after payment of the expenses, is divided in proportion to the interest of each.

This court, in a well considered decision, held, where part of the valuation was insured, that the owner becomes his own underwriter for the rest. 11 An. 459.

The insurer has the right to claim abandonment “ in proportion to the aliquot part insured.” Emerigon, p. 728.

Plaintiffs contend, under the first proposition, that it was the duty of the defendants to take steps toward the salvage of the said wreck, and that they are responsible for the negligence of their alleged agents.

The character of the agency alleged, and the principals represented and their interests, must be considered.

First, as to the master, in an emergency he- acts for all concerned.

In taking steps with the view of the abandonment he is the agent of the assured.

After notice of abandonment, if accepted or if made on good ground, whether accepted or hot, the ownership of the abandoned property is vested in the insurer and he becomes their agent in all acts done by him from that time “within the scope of the authority given to him by the policy to sue, labor and travel, for the defence, safeguard and recovery of the subject insured.” Al’nould, p. 864.

The negligence oi the common agent can not be taxed to the companies, and not to the assured, while acting under his general authority.

Why should the assured have a right of action against his co-principals?

The master represents his interests as completely as he does that of any of the other insurers.

The master being on the spot and not advised by the companies, the insurer, was not exclusively their agent, under the clauses oí the policies, as alleged, and can not by his negligence make them responsible in damages.

“ For his uncovered interest the assured is considered as insurer to himself; he is in some manner a partner with the insurers.” Pro reliqua parte non qsseeurata, ipse dominus mereium dicitur sui ipsius assecurator, vel asseaurationis soeius. Emerigon, p. 723.

The agent of the quasi partnership, acting under its articles, will not bind one in damages to the detriment of the others.

“ Since the effects shipwrecked or arrested continue until abandonment, to belong to the assured, and it is equitable that he should assuage, as far as possible, the fate of his insurers.” Emerigon, p. 688.

No question of negligence of the master, either previous to or subsequent to the loss, is raised in the case. As he was a worthy officer in charge, it must be presumed that he did all that good conduct required in the interest of the assured and of the insurers.

“ The abandonment is one thing, and the account of what is saved another.” Emerigon, 691.

The notice of the abandonment was received by the common agent.

The interest of plaintiffs’ is not distinct from those of the defendants and these alleged agents in matter of abandonment and saving the property, represented the interest involved of the partnership, quoad the wreck.

Salvage after abandonment is not entirely for account of the companies. They are not responsible for the acts of agents not specially theirs.

The agreement, briefly alleged, was not as a distinct and direct promise made to take physical possession of the wreck and to proceed to save as much of the property as possible.

Dates and particulars are not given.

The alleged agencies seem to spring from the clauses of the policies.'

It is not considered as part of a right over and above the insurance policies.

This inference will not prejudice any claim plaintiffs may have if they received a special promise under an agreement, the violation of which caused damages.

All rights under an agreement undertaken as an additional liability are reserved.

After reserving rights as before mentioned, judgment is affirmed at appellee’s costs. •• ■ ...