author: Breaux J. Breaux, J.

text:
    No. 11.092.
    M. C. Randall and Wife vs. New Orleans and North Eastern Railroad Company.
    The judgment was signed on plaintiffs’ motion, in order that they might exercise their right of appeal.
    They did not thereby acquiesce in the judgment.
    The motion to dismiss the appeal on the ground of acquiescence is overruled.
    Any regulation the carrier may adopt, the effect of which would be to unjustly release him from that utmost care and diligence the law requires, is nugatory.
    The conditions of a ticket may be waived by an authorized officer.
    The written extension of the time to return on a ticket endorsed before it had expired will be given effect unless it is established that the extension was subject to certain conditions or contingencies.
    The company had no right to eject the passenger.

      In order that there maybe a foundation for an action, the wrong and damage must be in sequence; if not in sequence the damage will not follow from the wrong, the wrong and the damage not being sufficiently conjoined as cause and effect.
    Damages are allowed for the ejectment only.
    As to the other causes alleged, it is rejected.
    APPEAL from fche Oivil District Court, Parish of Orleans. Voorhies, J.

      W. S. Benedict and James D. Séguin for Plaintiffs and Appellants:
    1. Every means of defence, such as payment, release, novation, etc., which goes to show the extinguishment of an obligation admitted orproved to have onoe existed,must be pleaded specially, and can not be urged under the general issue. New Orleans Gas Co. vs. Hudson et al,, 5 R. 4S6; 9 R. 256; 6 L. 457; 6 An, 778; 30 An 1210; 33 An. 748.
    2. Evidence to prove such special defence, not specially plead, is illegally admitted ; and a charge of the court direeting the jury to consider such defence and inquire into the same is improperly given. Canton vs. Torry, 8 M. 207 ; 3 L. 420; 9 R. 476; 14 An. 139.
    3. Where the charge of the district judge is such as to have misled the jury upon the facts, or upon the legitimate scope of their inquiry into matters of fact under the pleadings, the Supreme Court will set aside the verdict and render such judgment on the appeal as evidence justifies. Holier vs. Grauehe. 16 An. 43.
    4. Masters and employers are answerable for the damage occasioned by their servants and overseers in the exercise of the function in whiohthey are employed. Rev. C. 0., Art. 2320 (2299).
    5. In cases involving the responsibility of a common carrier, such as a railway company, all employes on the company's train are considered as its servants and employes, and their negligence, or the negligence of any one of them, is the negligence of the company. Williams vs. Pullman Palace Oar Oo., 40 An. 417; 102 U. S. 451; 76 N. Y. 402.
    6. The failure of a railroad company to introduce the testimony of its official or employe, in whose presence the accident occurred, or under whose management the breach of contract was produced, raises a presumption of negligence against the company. Day vs. Railroad Co., 35 An. 694.
    7. Under the law the measure of damages for breach of contract is at least such damages as will fully indemnify the creditor whenever the contract has been broken by the negligence of the debtor. Rev. O. C., Art. 1934 (1928), See. 3.
    S. Indemnity for damages actually sustained should covernot only pecuniary loss and actual expense incurred, but also reparation for mortification, annoyance and vexation suffered. Byrne & Oo. vs. Gardner & Oo., 33 An. 6; 37 An. 881; 39 An. 963.
    !! Punitory or exemplary damages, over and beyond the full limit of mere indemnity, are now recognized as allowable under the civil law of Louisiana; and this is specially true where the allowance tends, as a warning and example, to the greater safety of the public at the hands of public corporations. And to such damages common carriers are properly subjected in clear eases of gross negligence. Dirmeyer vs. O’Hern, 39 An. 963,964; Bannou vs. Balt. & Ohio Railroad, 24 Md. IOS; Id. 271; 25 Md.378; Redfield on Railways, II, 305 (Note 2); Id. 309.

      It). Under the well settled jurisprudence o£ the country, railroad companies are held to the greatest care and diligence both in regard to the machinery and equipments of the road, and the conduct and acts of their officers, agents and employes. Hanson vs. Railway (to., 38 An. 144; 10 An. 38; 14 flow. 436; Am. and ISng. Railroad Casos, VI, 002.
    11. Whore two causes co-operate to produce the damage resulting from a legal injury, the proximate cause is the originating and efficient cause which sets the other cause in motion. 5 Otto 130, 131; Sherman & Redfield, 310; Sedgwick, I, p. 00 (Note 7); Ib., II, p. 362 (Note 6); Lapleine vs Railroad Co., 40 An. 661.
    12. When by broach of contract or quasi contract, or by offence or quasi offence, duty is violated and injury results, the measure of damages is the injury done, even though such injury might not have resulted but for the peculiar physical condition of the person injured, or may have been aggravated thereby. Thus where the damage done to a person by wrongful ejectment from a railway train appears to be aggravated by a latent disease which had never exhibited - itself before the ejectment andmiglit never have developed but for it, the party in fault will be held for the entire damage, as the result of such wrongful ejectment. Lapleine vs. R. li. Co., xupra cit.

      Harry H. Hall for Defendant and Appellee:
    1. A party litigant can not appeal from a judgment rendered upon a jury verdict when such judgment has been rendered upon the party’s own motion. 6 An. 723; 15 La. 450; 33 An. 1277.
    2. It is lawful for a common carrier to make with a passenger a contract limiting the former’s liability. 51 N. Y. 166; 112 II. S. 331; Am. and ling. Kneyc. of Law, Vol, 2, pp. 315,318; 35 An. 15; Hutchinson on Carriers, Sec. 237.
    .3, So a stipulation is valid in a signed contaict for carriage, by which, in consideration of a reduced fare, a passenger agreed to use his ticket within a certain specified period of time. ,
    4 And when such contract expressly stipulates that no agent or employe of the railroad company shall have power to waive any of the conditions of said contract, an extension of said limit of time granted'hy a local ticketjagent, after the expiration of the limit, is void.
    5. When a local agent, who is applied to to extend a limited ticket, doubts his power to do so, and so informs the applicant, who voluntarily assumes the risk of ejectment, no recovery can be had of the railroad company in case of ejectment.
    6. It is frivolous to aver that for a young, robust man, in perfect health, to cross a railroad platform from a warm car to a comfortable station house, a distance of thirty feet, with the temperature at 40 deg. If., is an exposure sufficient to produce death.
    7. Typhoid fever can not he contracted or engendered by any degree of exposure to cold. It is a genu disease, the micro-orgaulsm of which can only take effect after introduction into the stomach and intestinal canal.
   The opinion of the court was delivered by

Breaux J.

The plaintiffs sue to recover damages on account of the death of their son.

They allege that their son purchased from the defendant company a tourist ticket from Cincinnati to New Orleans and return on the 8th day of February, 1890, which expired by limitation on the 28th of February, 1890.

That he arrived in New Orleans on the 10th of February.

That his business having detained him, he obtained an extension of his ticket, from the proper officer, to the 5th March, 1890, and left on the afternoon of the 1st March, 1890, in the enjoyment of his usual good health, strength and mental vigor.

That at Slidell, a station on defendant’s line, he was unjustly ejected by the conductor, in the night in freezing weather, and left in a forlorn and helpless condition in an uncomfortable place.

That whilst suffering and exposed to the inclemency of the weather a freight train of the defendant company came along, at a late hour of the same night, from the conductor of which he obtained permission to return to New Orleans, where he arrived chilled and sick from his exposure, having engendered in his system the illness of which he died.

That he was furnished by the division passenger agent, who had extended his ticket, with a letter instructing the conductor to acknowledge his extended ticket.

That without adding anything to the extended ticket which had been refused on March 1, he took passage on defendant’s train for Cincinnati on the evening of March 3, 1890, and arrived at his destination on the night of the 4th March, 1890; still quite ill from the effects of the severe cold settling on his lungs, dating from this ejectment.

That he continued in the performance of his duties up to the 17th March, 1890, at which time he was forced to his room, on account of his illness contracted during his exposure to the weather and his ejectment on the night of March 1.

That the illness resulted in his death on the 30th March, 1890.

That they have been damaged by the loss of their son in the sum of $25,000.

That “ he suffered injury and damage to his feelings in the pain he endured, in the expenses necessarily incurred and the necessary loss of his support during his illness, in his anxiety of mind, the great suffering he was compelled to undergo, in the sum of $25,000, and that same has of .right descended to them.” In its

Answer,

the defendant pleads the general denial.

It admits the issuance of a ticket; that it was about to expire by limitation, and that as an act of personal consideration and favor it was extended.

That the extension not being usual and the late R. B. Randall, plaintiff’s son, not identified, the conductor under his general instruc - tions not to recognize such tickets so notified him.

That he was treated with courtesy and was provided with comfortable and free transportation back to New Orleans.

That upon his return he expressed his satisfaction at the extension of his absence from his business.

The case was tried twice before the court a qua. The first verdict was for plaintiff in the sum of $6000. Upon defendant’s motion, alleging erroneous instruction by the court to the jury, a new trial was granted. The second verdict and judgment therein were for $1 and costs. From this judgment the plaintiffs appeal.

The Facts.

¡5 The decedent’s health prior to his last illness had been excellent. He”was not addicted to any bad habit. He was a good son and in every respect a worthy young man. He was the holder of a ticket bought as alleged.

It was printed on his ticket that in consideration of the reduced rates at which it was sold, he agreed that it should be void at the expiration of twenty days from the time it was issued; that he would not hold the line liable for damages on account of any statement by any employés not in accordance with the contract, and that no agent had any power to alter, modify or waive any of these printed conditions.

On the 12th day of February, 1890, the general passenger agent issued instructions to the conductors not to honor tourists’ and other tickets stamped across face, extending the limit. '

This was followed on the 27th oj the same month by a circular informing the conductors that the previous instructions, those of the 12th current, relative to tickets stamped across their face extending the limit, did not refer to those bearing indorsements made with the autographic signature stamp of the general passenger agent, but referred to endorsements made with stamp not; bearing such signature.

Young Randall’s ticket was genuine. The time was extended on the 28th February by an officer duly authorized.

This officer states that he was on friendly terms with the young man, and the limit of the ticket was extended, as an act of accommodation and favor; that he informed him that it was not customary and exposed him to its refusal, for there were scalper’s tickets in circulation.

The witness states that the young man said he would assume all responsibility.

That upon his return, the day after he had been ejected, he met thé witness and spoke of the matter lightly, as one to which he did not attach any importance.

The officer handed him a letter addressed to the conductor, directing him to honor the ticket in question.

On the day the young man left for Cincinnati the second time, he accompanied him to the station and personally introduced him to the conductor, who became willing to honor the identical ticket he had refused on the evening of the 1st of March as being a scalper’s ticket —i. e., the conductor who had said to this young man as a passenger that he could get off at Slidell, and that he would write a request to the south-bound passenger train to return him to New Orleans, and who also said bo him that he believed he held a scalper’s ticket.

The young man, on the night that he was ejected, remained at the station house at Slidell about an hour.

The depot agent at that place testifies that the room was comfortable ; that he was with him the whole time; that he did not suffer from exposure.

The young man returned to New Orleans as a passenger in the caboose of a freight frain.

Witnesses differ in their testimony, both about the station house accommodation and that of the caboose.

The train left Slidell for New Orleans at 6:35, and made the usual time between the two places.

The young man was at his parents’ home at about 10 o’clock.

It was a cold night.

He complained of chilliness.

The two days following he complained of cold and of indisposition.

He left New Orleans on Monday, the 3d day of March, and reported to his employer for duty on March 5.

His cold was severe; he complained of illness.

One of his employers states that a few days after his return he spoke to him at his desk; that he was suffering. He remonstrated. The young man answered he would feel better at work, particularly as his work had accumulated during his absence, and that he decidedly preferred to continue busy.

His ailment increased from day to day until the 17th of March, he left work and remained in bed to the day of his death, March 30, 1890.

Dr. J. T. Whitaker, of Cincinnati, was the first physician called.

By his testimony, and that of the other witnesses, who testified upon the subject, it is proven that the patient died of typhoid fever, and that that fever prevails in Cincinnati every fall and winter.

There were no reported cases of that disease in New Orleans or Slidell at that time.

This physician testifies that he saw the patient the first time; he took it to be at the end of the first week of the disease.

“ If that be true,” he adds, “ he must have received the poison of the disease two weeks previously. This is the period of incubation, during which time the patient is still able to go about, at the end of which time the symptoms become so marked as to confine him to his bed.”

In a letter to the father, plaintiff in this case, he states: “Your son had the disease in him when and before he started on his journey here;” i. e., before he left Cincinnati for New Orleans.

“ The’patient had been in bed a day or two before I saw him.”

Two other physicians gave medical attention to the deceased. Their testimony is to the same effect as that of Dr. Whitaker.

The witness above named slates [as his opinion that the disease was contracted in the ordinary way — that is, by drinking water contaminated with typhoid poison, and that it was not the result of exposure to cold or to the weather.

Another of the attending physicians, Dr. Robert W. Stewart, testifies : When I first saw Mr. Randall he was in the second week of typhoid fever, greatly prostrated, indifferent to his surroundings, with low muttering delirium, high and continuous fever, weak and rapid pulse; in short his condition was such as to make me give a “ probably fatal ” prognosis upon my second visit. I knew nothing about “ exposure ” until some time after his, death. He had an un-, doubted attack.of typhoid .fever, and died of the exhaustion consequent upon this disease.

Question by plaintiffs on cross-examination. “Assuming as a fact that a young man, holding a through ticket to a point of destination designated thereon, was ejected from a passenger, train of cars of defendant, and forced to remain hours at a station not lighted nor heated, and then by sufferance enabled to return to his point of departure when the thermometer was below the freezing point, and then on account of business arrangement, after having obtained such, additional authority as could not be obviated by any conductor of a passenger train, proceeding on his way on the following day to Cincinnati, what would be the effect of said exposure under the circumstances upon a young man, when typhoid fever was prevalent at the point of arrival or place of his destination?” ,

A. “ None at all. It could have no effect at all.”

Dr. J. T. Davis, another attending physician, says:

“Exposure may have a tendency to make the disease more dangerous.”

He does not refer to any exposure or to any symptoms establishing that, in the case, there was any evidence'or symptom of exposure which acted as an aggravating cause of the disease.

Those physicians who testified as experts limited their testimony to the causes of typhoid fever, and to exposure to the weather as aiding or not the disease in its development.

All except one of the number state that it is a germ disease.

Dr. Stanford E. Chaillé states that the disease is due to special causes located in a germ.

In reference-to the effect of exposure the witnesses do not greatly differ; only a few attach some importance to it as an aggravating cause, without however tracing any of the symptoms of the case to exposure of the weather.

Dr. J. B. Elliott of the exposure says:

“My opinion is he couldn’t have typhoid fever unless he had the germ in him before. If he was a healthy man at the time I shouldn’t think the exposure sufficient for the development of fever.
“My experience is that a man in a healthy condition is not affected by those exposures and don’t, as a general rule, injure him.
“ I repeat again that a man in perfect health that an exposure of that sort, in my opinion, would not certainly produce disease.”

Q, “What would it produce?”

A. “It would have no effect whatever, in my opinion.”

There is other medical testimony in the record, of which the above is a general outline.

Motion to Dismiss the Appeal.

The date of the verdict is June 3, 1891.

It was followed by a motion for a new trial on the part of defendant.

The judgment was signed, on motion of counsel for plaintiffs, and on his producing the verdict rendered in favor of plaintiffs, on the 2d day of July, 1892.

The defendant moves to dismiss on the ground that plaintiffs have acquiesced in the judgment.

No action had been taken upon the verdict during more than a year.

The plaintiffs desired to avail themselves of their right of appeal.

A right it was not possible to exercise without the judgment.

They, through counsel, moved to have it signed.

Immediately after the judgment had been signed they moved for the appeal and obtained the order of the court.

They directly applied for the signature of the judge, which they might have obtained indirectly without any question of acquiescence.

By thus applying they have not subjected themselves to a dis nissal of the appeal.

Nothing shows that the purpose was to execute the judgment, to acquiesce, or to do aught save to appeal.

In N. O. City R. R. Co. vs. Crescent City R. R. Co., 33 An. 173, the appellant acquiesced in the judgment by executing it.

He took up the record to the United States Circuit Court and moved for the dissolution of the injunction in that court, and thereby acquiesced in the order removing the case to that court.

In Barnwell vs. Hosmer, 6 M. 722, the jury found the issues submitted by the defendant and on his motion the judgment was entered.

These cases, relied upon to dismiss the appeal, do not present the question of the signing of a judgment only to exercise the right of appeal.

The motion is overruled.

The Ejectment from the Train.

There was an error committed in ejecting plaintiff’s son.

With his ticket, the limit of which had been duly extended by an officer of the company, he had acquired the right of a passenger on the train of the defendant company.

Extending the limit of the ticket was a matter of business.

Favor can play no part and is of no avail to lessen defendant’s responsibility.

The willingness of the young man to incur risk of passing on the ticket at the time he applied for the extension, as expressed in conversation with the agent here, is not of such a character as to change the relations of the parties. “ But where a person rides free at the invitation of an agent of the carrier, although the agent has violated his duty by inviting him, yet if there is no collusion on his part with the agent to defraud the company, he is not deprived of his rights or remedies as a passenger as to injuries received through the negligence of the company.” Wood, R. R. Law, p. 1039.

The written extension endorsed on the ticket was conclusive of the holder’s right.

The general passenger agent issued a circular to conductors notifying them that these tickets should be honored, and that previous instructions were never intended to apply to such tickets as the one in question.

The local agent testifies that he was authorized to extend the time of return.

Not only his authority is not denied, the allegations lead to but one conclusion — i. e., that he was duly authorized.

The answer of defendant admits the issuance of a round trip ticket as set forth in plaintiff’s petition, and that the ticket was to expire by limitation.

Not only the defendant does not disavow the said authority of its agent, but in reality approves this act in extending the ticket before the limit had expired.

Passing over all possible differences in relation to the facts upon this point, and conceding all that the local passenger agent stated, the following propositions have arrested our attention:

1. The defendant did not in its pleadings rest any part of its defence upon any assumed responsibility of the passenger.

2. The local passenger agent was duly authorized to extend the time. The company is bound by his action.

3. The instructions did not refer to the ticket in question... It was. properly stamped and endorsed.

Having reached this conclusion in matter of the expulsion, we will affirm the jury’s finding of facts in this respect.

The amount óf the verdict shows that it must have been limited to the ejectment.

The verdict will be amended so as to increase the damages for the ejectment exclusively.

There was nothing harsh about the ejectment, no indignity nor force. The passenger was given passage to return.

The Cause oe Death Is Not Traced to the Ejectment from the Train.

All the experts, except one, testify that it is universally established that the cause of typhoid fever is a specific poison — a micro-organism known as the typhoid bacillus.

The infection can be produced by the air we breathe and by the water we drink.” Ziemssen, Vol. 1, p. 56.

That it is insidious in its attacks.

The course of the disease is characterized by certain stages.

There is a stage of incubation, or the period elapsing between the reception of the fever poison into the system and the special manifestation of the disease.

The evidence clearly shows that exposure will not produce typhoid fever.

That in a case infected with the typhoid poison or germ the period of incubation may be affected by accidental causes, such as exposure producing cold, pneumonia and other kindred diseases.

It may increase the predisposition, and we are led to infer that, in certain cases, it may be, that without these causes the poison would not take effect.

But it would be going too far to hold that the poison would not have taken effect in this case without the exposure, which was not great.

The attending physicians do not testify that there was the least manifestation of disease resulting from exposure, or that there was the least weakening of the system from any other cause than typhoid fever.

We will not assume that the exposure was an inciting cause, without testimony connecting the disease, in its course, with such a disease as exposure may produce, or without the least showing that exposure had a lowering effect upon the system, or predisposed him to take the disease.

If he had received the typhoid poison previous to his return to Cincinnati, the conditions on his return were not such, so far as the evidence discloses, to favor its development.

They were not “assisting causes.”

The case of Lapleine vs. R. R., 40 An. 661, is relied upon by plaintiff’s counsel as in point. In that case the court found that the child was struck and hurt by the lumber which fell from a running car; that up to the accident she had been a bright, intelligent, active and thoroughly healthy child.

That from the moment she was struck she became and has remained a constant invalid, seriously affected in mind and body, her nervous system shattered, subject to headaches, to attacks of nausea and vomiting, to frequent and sudden fainting or falling fits, emaciated, indisposed to physical or mental exertion, dragging her limbs in walking, and otherwise afflicted.

But for the accident, says the court, she might never have suffered from the latent constitutional taint — that is, the inheritance of hysterical diathesis, if it existed. It is very certain that the child had never exhibited the slightest symptoms of hysteria or the constitutional taint prior to ijjie accident.

The court traced the disability to the. blow she received.

The effect of a wound is generally traceable to its cause.

In the ease at bar the death is traced to one cause, with which it does not appear that any other combined.

Death, caused by typhoid fever, Ziemssen says, p. 132, may occur in any stage of the disease; in cases not actually complicated it happens by far the most frequently toward the end of the third or the beginning of the fourth week; it rarely happens as early as the second week in uncomplicated cases.

(This work is highly recommended by the members of the medical ■ profession.) '

Considering that typhoid fever was prevalent at Cincinnati where the young man died ; that there is no' evidence that the disease was engendered at the time he was ejected from the train; that damages must be.the legitimate sequence of the wrong committed, we are forced to the conclusion that the ejectment had no real share in producing the disease or in predisposing him to receive typhoid poison.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by increasing the amount of the judgment of the lower court from $1 to $250 damages for the wrongful ejectment of plaintiff’s son from the train, and that in every other respects the judgment is affirmed at appellee’s costs.

On Application for a Rehearing.

Breaux, J.

The application for a rehearing is confined to demand for damages on account of the ejectment of plaintiff’s son from the train.

The testimony does not bear out the charges of plaintiff against defendant presented in the application for a rehearing.

The statements of defendant’s witnesses, not contradicted, are consistent with truth.

The relations between the local passenger, agent and the young man Randall were friendly.

As a favor his request was complied with, and the return extended.

The agent expressed apprehension that it would not be honored, as there were worthless tickets in circulation that might cause his act in thus extending the ticket to be discredited.

It is not proven that the conductor was rude in examining the ticket on the train.

He, in error it is true, declined to honor the ticket.

The holder said he would return to the city and apply to the local agent.

He was offered facilities to return to New Orleans, which he accepted.

Meeting the local agent on friendly terms, the occurrence was referred to without the least reproach.

He called upon the agent socially, at his residence, the night before leaving for Oincinnati.

The next day the agent accompanied him to the depot and introduced him to the conductor of the train, upon which he returned to his home in Oincinnati.

The jury evidently concluded that an error had been committed in not honoring the passenger’s tickfet — not attended, however, with aggravating circumstances.

We have reached a similar conclusion.

The application for a rehearing and for a larger amount for damages caused by the ejectment is denied.

Rehearing refused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 11,146.
    W. H. Henderson et al. vs. A. Meyers & Bro. A. Meyers & Bro., Limited, Intervenors.
    The lessors’ rights are not affected.
    The lessees of plaintiffs organized a corporation, limited.
    They transferred their stock in trade and their business establishment, on the premises leased, to the company, limited.
    Upon the change from a partnership to a corporation, of which the partners were the owners of seven-eighths of the shares, they gave no notice to their lessors.
    It is not proven that the lessors knew that the corporation was the snb-tenant.
    The corporation is not entitled to the rights of sub-tenants.
    They were third persons and their goods were covered by the lessors’ privilege.
    The corporation, while occupying the property leased, alleging their financial exhbarrassment, applied to liquidate its affairs.
    Liquidators were appointed and an order was granted by the court authorizing liquidation.
    Immediately after, plaintiffs obtained a writ of provisional seizure. The corpora - tion intervened.
    The provisional seizure legally issued and is maintained.
    Plaintiffs were not bound to intervene in the liquidation proceedings, to prevent the removal of the goods and to assert their rights as lessors.
    Before defendants had answered plaintiffs’ suit the corporation discontinued its liquidation proceedings and resumed business under its charter.
    The corporation, as intervenors in 'plaintiffs’ suit and provisional seizure, furnished a forthcoming bond to the sheriff, and received possession of the goods from-that officer.
    The bond represents the goods.
    The judgment is amended by allowing execution for the amount due at the time will issue, and for the balance payable from month to month, in accordance with the terms of the lease.
    The fee of attorney stipulated in the contract of lease is due, also interest as allowed in the judgment of the lower court on the amount actually due and unpaid.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Henderson, Spencer & Fenner, for Plaintiffs and Appellees,
    cited: O. C., Art. 2705-2707; Baudry-Lacantiniere, Vol. 3, p, 639; 5 An. 712; 2 N. S. 229; 13 La. 193; 11 Rob. 107; 20 An. 539.

      Farrar & Leake, for Defendants and Appellants,
    cited: Laurent, Yol. 25, Sec. 232; C. C., Art. 2167; 15 An. 175; 15 Wall. 600; 32 An. 348; 41 An. 227.

      Lazarus, Moore & Lemle on the same side.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs, domiciled in Kentucky, leased for the period of five years, beginning October 1, 1890, to the defendants, A. & J. Meyers, clothiers, the premises in which they conducted their business, at;an annual rental of $5250, payable in monthly instalments, for which they furnished sixty promissory notes of $437.50 each, and obligated themselves to pay 5 per cent, attorney’s fee in case of suit.

The lease contains the stipulation that the lessees should not sublet the property without the consent of the lessor.

It was also stipulated that in ease of the non-payment of one of the notes at its maturity the whole rent would become due.

• A corporation was organized in 1891, the capital stock of which amounted to $32,000.

The defendants owned shares in the company to the amount of $28,000.

In August of that year the defendants, A. Meyers & Bro., sold and delivered to the corporation styled A. Meyers & Bro. Company, Limited, property consisting of clothing, of cloths, gentlemen’s furnishing goods, etc., on the leased premises, and assumed the obligations of the firm of A. Meyers & Bro., and continued the business as successors of the firm.

The agents of the plaintiffs, in this city, deposited the rent notes in bank for collection.

The Meyers & Bro. Company, Limited, paid those due monthly, from the date of their possession, August, 1891, to July, 1892.

The agents received the collections from the bank, and the member of the agent firm, who testifies, says that they gave themselves no concern as to who paid the rents.

He answers as follows the questions propounded to him as a witness :

Q. You are generally familiar with the business of those who occupy stores on that street, are you not?

A. Yes, sir.

Q. Then, for some time prior to the suit, you were aware of the fact, were you not, that A. Meyers & Bro. Company, Limited, were occupying and doing business in these premises?

A. Yes, sir.

Q. You were aware that they were paying the rent?

A. Well, that I don’t know.

Q. You don’t know?

A. As long as the rent was paid I did not inquire who paid it.

Q,. You did not care who paid it?

A. I did not care1 who paid it; I went to bank on the fourth of every month and inquired of the amount that had been paid.

Q. And you were told at each time, up to date of 'filing of this suit, that they had been regularly paid?

A. That they had been regularly paid.

Since the month of August, 1892, the monthly rentals, as they became due, were tendered to plaintiffs’ agent, who refused to receive them.

In July, 1892, the above named corporation, setting forth that they were unable to meet their obligations, applied for the appointment of commissioners, with authority to sell' the property and liquidate, the affairs of the company. . ¡

The order was granted, and the commissioners-and liquidators assumed the discharge of duties devolving upon them.

In August, 1892, the liquidating proceeding were discontinued, the property was turned over by the liquidators to the company, and the company was authorized to resume business under its charter.

Pleadings.

A few days after the application had ¡been made, as above mentioned, to liquidate the affairs of the corporation, plaintiffs brought suit upon the rent notes, and obtained a provisional seizure against the defendants, A. Meyers & Bro.

• The plaintiffs, in an affidavit not objectionable as to form, averred apprehension of the removal1 of' the property aWay from the premises. • ■ • ;

The defendants interposed the plea of no cause of action and prematurity ; and that no rent being due, the liquidating proceedings had been discontinued, and the corporation had resumed business. .At the time the liquidators were no longer in possession.

The exception was referred to the merits on plaintiffs’ motion.

'The corporation of A. Meyers & Bro. Co., Limited, intervened, and •alleged that they are the sub-tenants of the defendants, had paid the rent, and being the owners of the property are entitled to its release, upon the execution of a forthcoming bond.

In compliance with the court’s order they furnished bond to the sheriff’s order, and took possession of the property.

The defendants in their answer plead the general denial.

Admitting the sale made by them to the intervenors and that the latter assumed their obligations and continued to occupy the premises leased, they allege that immediately after the sale they assumed the position of sub-tenants of the premises.

They also allege that plaintiffs have accepted payment of rent of A. Meyers & Bro. Co., Limited, and recognized them as sub-tenants; that they are estopped, and can not repudiate said corporation as sub-tenants.

That there has been tendered to plaintiffs the amount of rent •due and unpaid.

They allege further that plaintiffs had no good reason to believe that the defendants would remove the property out of the premises.

That instead of resorting to a provisional seizure plaintiffs’ remedy should have been sought by intervening u'm re liquidation of A. Meyers & Bro. Co., Limited, of the docket, by rule or third opposition in the liquidation proceedings.”

That the rent does not become due until a failure to pay the rent •of any one month.

Plaintiffs filed a supplemental petition, setting forth that since the suit was instituted the defendants and the A. Meyers & Bro. Oc., Limited, have removed the property from the store.

They claim interest and fee of attorney.

The defendants objected to the supplemental petition on the ground that it came too late, after issue joined, and that it contradicts the allegations of the original petition.

' The judgment of the court a qua condemns the defendants, A. Meyers & Bro., individually and in solido, to pay the entire rent, interest and fee of attorney, and decrees that plaintiffs’ lessor’s lien and privileges for the amount be recognized and enforced.

The intervention of A. Meyers & Bro. Oo., Limited, is dismissed.

Prom the judgment the defendants and the intervenors appeal.

Bill op -Exceptions.

The objections to the amendment Of plaintiffs’ petition, as reserved in defendants’ bill of exceptions,' present themselves preliminarily for decision.

Iu reference to the stage of the proceedings, at which it was filed, the judge a quo may exercise a broad discretion.

He may allow the amendment after issue joined, and the ease is fixed for trial if no injury be done.

“The general rule that governs even the strictest practice of the courts of Great Britain, on the subject of amendments, is that they shall be granted, or refused, as they may best tend to the furtherance of justice, with these exceptions only, that the amendment must be not wholly foreign to the case, that the plaintiff has not been guilty of any unusual delay, or vexatious practice, that the defendant be not surprised or oppressed.” Aston vs. Morgan, 1 M. 178; Vavasseur vs. Bayon, 11 M. 640. Abot vs. Bayon, 4 N. S. 818. Gasquet vs. Johnson, 4 L. 433. Succession of Rougan, 7 R. 436.

The nature of the action was not changed by the amendment. It was only setting out facts of removal of the property not inconsistent with the petition.

We therefore think that the court did not err in allowing the amendment.

On the Merits.

The following are the issues propounded by the defendants and by the intervenors:

1. The property was in custodia legis, and the plaintiff had no reason to believe that it would be removed.

2. The intervenors are the sub-tenants of the property and not third persons.

3. The terms of payment not having matured, the plaintiffs are not entitled to the payment of the whole rental.

The defendants, we have seen, had transferred all of their goods, on which plaintiff had a lessor’s privilege, to a corporation of which they were the principal organizers and of which they owned at the time seven-eighths of the shares.

This corporation, in its application to liquidate, alleged its embarrassed condition.

It applied for an order to sell the property: ; This involved its removal.

The plaintiffs were not bound by the proceedings in liquidation.

The sale of the liquidators of a partnership, or of a corporation, with the view of settling its-.-affairs; pan not; have the effect of compelling the lessor to resort to a rule or third opposition to assert his rights.

It does not affect the lessor’s right,to, keep the thing pledged until he be paid. It detracts nothing from the lessor’s right Jo distrain them for rent.

It was not such a custody of the law as to bring to an end the exercise of all privileges upon the goods, save as against the liquidators and commissioners. They are to be looked upon as goods removed.

When the corporation petitioned to discontinue the proceedings in liquidation, A. and I. Meyers were the owners of 268 of the 820 shares, the entire number.

They had a controlling interest.

They could not as owners of this controlling .interest make a disposition of property to the prejudice -of, their, firrp or personal indebtedness.

The corporation was a separate entity, but these shareholders did not, because of a separate juridical being, escape alljtheir obligations as debtors.

They sought through the agency of the corporation the removal of the property; in thus seeking they became subject to the provi - ssional seizure that was issued.

This brings us to the second proposition, that, relating to rights of the lessor against third persons and to the rights of a sub-lessee.

If the corporation of A. Meyers, & Bro. Company, Limited, was the sub-lessee, it devolved upon it to disclose the title on which it oc- : cupied the premises.

It does not satisfactorily appear that the corporation-was the subtenant.

There is nothing in the proof directly defining the relations between this company and the defendants. The former succeeded,to the business, continued as the successors of, the latter.

It is1 not stated in evidence that they, by contract- or stipulations of any kind, became the sub-tenants of the vendors of the, goods.,

The fact that a person other than the lessee is found in possession of demised premises is presumptive evidence that he is an asr signee and not an under-tenant, especially if he has paid rent to the original landlord.” Wait’s Actions and Defences, Vol. 4, verbo Lease.-

There was-a prohibition -in the lease to sub-lease.

The lessor has the right to renounce the prohibition expressly or even tacitly.

As to the latter, if the property had been sub-leased to the knowledge of the lessor and he had approved the sub-lease, this directly implies his consent to renounce the prohibition. But the mere silence of the lessor will not have that effect.

The lessor in this case has remained silent, but has not either directly or indirectly given consent to any sub-lease.

Our attention is directed to the case ' of Ereeland. vs. Hyllester & Oo., 24 An. 450.

The'record of the case in the clerk’s, office discloses that the defendant, by contract in writing, had sub-leased the property to Vintén, the intervenor, to which the plaintiff consented, and, after having consented, directed his agent to suggest to the sub-lessee the propriety of holding the rental subject to his order.

The intervenor was therefore a sub-tenant.

The intervenors in the case at bar were not sub-tenants, with the consent either expressed or implied of the plaintiffs.

This right of pledge affects third persons, when their goods are contained in the house or store by their own consent, express or implied. O. O. 2707.

Without the consent of the owner the premises could not be subleased, and the proprietor was not bound to take any action further than necessary for the protection of his interest. .

This court, interpreting the concluding clause of Art. 2696, holds that the prohibition to sub-let is always construed strictly against the lessee. Cordeviolle vs. Redon, 4 An. 40.

Considering these propositions, supported as they are by a number of decisions of this court,-we conclude that plaintiffs’ action -was properly maintained.

The plaintiffs’ claim that all the rent is due; that defendants’ action has the effect of changing the indebtedness to a cash basis.

In deciding this point we take into consideration the circumstances of the abandonment, some time after the suit had been instituted; the facts that the goods were sold under an order of court and the payment of rent as they became due.

They are not sufficient to defeat or lessen any of plaintiffs’ rights to prosecute his claim against the defendants and maintain an action in 1‘e.m, against the property subject tojtheir lease in the possession of the intervenors, but present good grounds not to change the terms of the indebtedness and to let them remain as stipulated in the lease.

The intervenors furnished bond accepted by the sheriff as good and solvent to produce the property to meet the judgment of the court or pay its amount. This bond represents the goods.

In decreeing recourse upon this bond the obligations remain until payment, and plaintiffs’ right remains unaffected until payment. We do not desire by our ruling to weaken the authority of Christy vs. Casenave, 2 N. S. 451; Raumager vs. Blatmer, 11 R. 170; Ledous vs. Jones, 20 An. 539.

The state of facts in these cases are not in all respect similar to the facts of the case under consideration. The abandonment in the eases just referred to was complete and no bond to secure the claim was on file.

As precedents Reynolds vs. Swain, 13 L. 193, and Prieur vs. Depouilly et al., 8 An. 399, apply.

The terms of payment in these cases remained the same as they were before judgment was pronounced.

In reference to the fee of attorney, to which objection is urged, it having been stipulated in the contract of lease, as one of its conditions ; the difference between the parties justified the proceedings to secure plaintiffs’ rights.

We think the fee-is due.

Tt is therefore ordered and decreed that the judgment appealed from be amended, by allowing execution to issue as decreed in that judgment for the sum actually due at the time the writ of fl. fa, will be applied for, and that for the balance a writ of a fl. fa. to issue from month to month until the judgment is all paid.

• The judgment is also amended by allowing, as in the judgment of the court a qua, interest on the notes due and demandable as to payment and rejecting all demand for interest on the notes not matured.

The judgment is also amended by setting aside the order of dismissal of the court a qua, and it is further amended by rejecting intervenor’s demand, without prejudice, however, to their liability and that of their sureties on the forthcoming bond for the restoration to the sheriff of the property seized or for the satisfaction of plaintiffs’ judgment.

After amendment as above the judgment appealed from is affirmed at appellees’ costs.


author: Nicholls, C. J.

text:
    No. 11,212.
    W. F. Keenan vs. J. N. Baham et als.
    a. As against a defendant whose claims in a petitory action are found to rest only on possession and proscription under it, plaintiff need not show a title perfect in all respects; one apparently good will suffice.
    2. "Where the officers of the United States in the matter of relocation of a cultivation and settlement right have dealt with a person as the holder of the same-under a derivative title, he will be entitled to hold such position prima facie as against a person contesting it collaterally as a defendant in a petitory action* in which action he does not show title but has to rely upon possession.
    s. Where, in consequence of an erroneous survey of a cultivation and settlement right which called for a location of six hundred and fifty acres on the Tangipahoa river, the land has been located in wrong sections,township and range, and by wrong numbers far to the east and away from the river, the owner in granting a mortgage on the property described it as a tract of six hundred and fifty acres on the Tangipahoa river, but assigned to it the numbers of the sections, township and range given in the survey, the error was not fatal, and when subsequently on discovery of the error the government resurveyed and properly located the land, the resurvey and new location bound the owner and inured to the benefit of his mortgage creditor. There was in this no change in the thing mortgaged, no substitution of one tract for another, but a mere yielding of some incorrect calls by replacement to bring them to conform to others which having been correct all the time, were not altered butiadhered to by the-government.
    Parole evidence to establish identity is allowable, as is likewise parole evidence-of possession in aid of a defective or ambiguous description of land in an act of sale, but this is only where there is a sufficient body in the description to leave the title resting substantially on writing and not essentially on parole. A written title with a reasonable degree of certainty of description has to be produced.
    The extent of the rights of the husband and father regulate those of the widow and heirs, who succeed to all his rights and those of the community, but they are transmitted with all their defects as well as their advantages, the change-in the proprietor producing no alteration in the nature of the title or possession.
    An act of partition is not an act “ translative ” of but only “ declaratory ” of property — it does not create a new title or give a new possession, and it does, not serve as a basis for the prescription of ten years.

      7. The prescription of ten years requires good faith as its basis, and the owner sufficiently shows bad faith in proving that the present possessors hold the property as heirs and widow in community of another who was not himself in legai'good faith. The widow claiming community rights is not a third person. quoad the community.
    8. Under its exceptional legislation relative to property bank mortgages, it was the intention of the Legislature to protect those mortgages against any adverse right of ownership or possession subsequent to their date and up to their maturity or enforcement.
    APPEAL from the Sixteenth District Court,. Parish of Tangipahoa Thompson, J.

      Henry P. Dart for Plaintiff and Appellant :
    1. Stock mortgages in favor of the Clinton & Tort Hudson E. R. Co. did not mature until demand for their enforcement, and prescription began to run only from that date. Clinton & Port Hudson R. R. Co. vs. Bason, 11 An. 816; Acts of 1831, pp. 116,119, Charter.
    Consequently, prescription was suspended against a possessor without title of the mortgaged property, and did not begin in his favor until the foreclosure of the mortgage, and as thirty years have not run since that event a title by possession has not been established in favor of the squatter.
    2. A trespasser can not create a just title in his own favor, and at his death his widow and heirs represent him with no greater rights in that respect than he had. Consequently, where such heirs by a private writing transfer without price and without intervention of justice their rights to their,'mother, the widow of the trespasser, she does not thereby receive such a just title translative of property from one whom she really believes to be owner as will base a title by the ten years’ prescription.
    The action of the heirs affects only their share — the half interest which she receives as widow in community comes by operation of law, and can not be eked out by that writing. Beer vs. Leonard, 10 An. 816; Stille vs. Shuel, 11 An. 816.
    3. Possession of a tract of 670 acres is not established by proof of occupancy at different times of less than one-tenth of the whole; the possession of a smaller quantity by other trespassers during the same time does not aid the defence, as to whom plaintiff need not show a title good against the world. (Sardere vs. Blanton, .35 An. 811; Stille vs. Shuel, 11 An. 820.

      Stephen D. Ellis for Defendants and Appellees.
   The opinion of the court was delivered by

Nicholls, C. J.

This is a petitory action begun December 2,1886, in which plaintiff claims the ownership of 638 77-100 acres of land in the parish of Tangipahoa, being section forty-one (41), township five (5) south, range seven (7) east, and section thirty-nine (39), township five (5) south, range eight (8) east, Qreensburg District.


author: Nicholls, C. J. McEnery, J.

text:
    No. 11,488.
    State of Louisiana vs. George Bates and Peter Ramp.
    l. It is a rule subject to special exceptions that when a person is on trial for one offence evidence of another and extraneous crime is inadmissible. Such evidence is dangerous and calculated to lead to conviction upon a particular charge made by proof of other acts in no way connected with it, and to uniting evidence of several offences in order to produce conviction for a single one.
    2. To make one criminal act evidence of another, a connection between the two must have existed linking them together. If the court does not clearly perceive the connection between the two offences (as to the commission of both of which evidence is tendered) it should give in the special ease the benefit of the doubt to the prisoner.
    APPEAL from the Criminal District Court, Parish of Orleans. Moise, J.

      M. J. Cunningham,, Attorney General, and Jno. J. Finney, Assistant District Attorney, for the State:
    Evidence of other crimes of similar nature to that on trial is admissible to prove system, intent and guilty knowledge on part of accused in acts proved against him in a ease on trial. Citing Knobloch Orim. Dig. 173, et seq.-, Wh. Or. Ev., pars. 32, 33, 34 (note 2), 35, 36 (note 6), 37-40 (note 4), 43-44 (note 1), 45 (note 2), et seq.; Bish. Or. Pro., pars. 1065 (note 4), 1066 (note 1) ; Greenleaf on Ev. 4th Ed., ¡¡Vol. 1, p. 80 ,(note b) ; 15 Mo. 168; 48 Iowa, 677; 34 An. 1083; 16 An. 376; 30 An. 600.

      Paul W. Roussel Attorney for Defendant and Appellant:
    The invariable rule in this State and in England is that where inadmissible evidence has been allowed to go to the jury in a criminal case, over prisoner’s objection, he is entitled to relief. Reg. vs. Gibson, 16 Cos, C. C.; State vs. Monie et al., 26 An. 513; State vs. Perry, 16 An. 444; State vs. Gruso, 28 An. 592; State vs. Gregory, 33 An. 743; State vs. Mullen, 33 An. 159; State vs. Von Sachs, 30 An. 943; State vs. Carroll, 31 An. 861; State vs. Tucker, 38 An. 791; State vs. White, 33 An. 97; State vs. Molise, 38 An. 384; 3 Wharton O. L., 6th Ed., Secs. 3689, 3090. 54
   The opinion of the court was delivered by

Nicholls, C. J.

Only one question is presented to us in this case. Defendant was convicted in the lower court upon an information for. petty larceny and sentenced to imprisonment in the penitentiary for six months. ‘

He complains in this as he did in the District Court of the ruling of the judge a quo in allowing, over his objections, the introduction of the testimony of several witnesses, which evidence he claims was to show that he was guilty of another separate and distinct larceny, committed at a different time and place, and of property belonging to a different owner.

His position is set forth in the syllabus of the brief of his counsel as follows:

“On trial of an accused charged with larceny, it is not competent for the State, in order to show the intent with which the act was committed, to prove him guilty of another larceny committed at a different time and place. State vs. Johnson, 38 An. 686, 688; State vs. Palmer, 32 An. 565; Schaser vs. The State, 36 Wis. 429.
“ On the trial of an indictment for larceny evidence of distinct thefts committed at other times and places than the one for which defendant is on trial is incompetent. William vs. State (Texas), 6 S. W. Rep. 318; English vs State (Texas), 15 S. W. Rep. 649.
“Evidence must be confined to the point at issue and the facts proven must he strictly relevant to the particular charge and have no reference to any conduct of the prisoner disconnected with the charge. Hudson vs. The State, 3 Cold. (Tenn.) 355; People vs. Sharp, 107 N. Y. (Ct. App.) 427.”

The general rule is that when a man is put upon trial for one offence he is to be convicted, if at all, by evidence which shows that he is guilty of that offence alone and that other offences committed by him are wholly excluded,-'therefore, the introduction of collateral evidence of extraneous crimes to show intent, motive, guilty knowledge, are exceptions to this general rule, and in order that this evidence be admissible at all it must bear directly and materially upon and have some connection with the issue before the jury. People vs. Sharp, 107 N. Y. 427; Hudson vs. State, 3 Cold. (Tenn.) 355; English vs. State (Texas), 15 S. W. Rep. 649; Commonwealth vs. Jackson, 132 Mass. 16, and authorities cited therein.

There is no doubfbthat for certain purposes and under certain circumstances evidence is admissible of the perpetration by the defendant of a crime other than the one with which he is charged. The general rule, however, is against the introduction of such evidence and the exceptional circumstances, which justify a departure from the rule, should be clear and very convincing. This statement of the proposition shows that each case must, to a great extent, be passed upon in view of its own special facts. The subject is treated of at length in Rice on Evidence, Vol. 3, Chap. 25, Secs. 153 et seg,, and specially as to larceny in Chap. 42, Sec. 453.

The author in Sec. 157 says: “It is a dangerous species of evidence, not only because it requires a defendant, to'meet and explain other acts than those charged against him and for which he is on trial, but also because it may lead the jury to violate the great principle that a party is not to be convicted of one crime by propf that he is guilty of another;” and in Sec. 153 he says: “ The indictment is all that the defendant is expected to come prepared to answer. Therefore, the introduction of another and extraneous crime is calculated to take the defendant by surprise, and to do him manifest injustice by creating a prejudice against his general character. * * * It would lead to conviction upon the particular charge made by proof of other acts in no way connected with it, and to uniting evidence of several offences to produce conviction for a single one.”

In the bill of exceptions reserved by the defendant to the action of the court in permitting the testimony of Dominecq, Chaplain and Kennedy to go to the jury, to show the intent of the accused (Bates) at the time of the larceny of the pool balls, charged to have been stolen on the 30th of September, 1893, the testimony of those witnesses is stated by him “ to have been substantially as follows:

“ That George Bates, in company with one William Daly, alias Chickens, did, on the day previous, enter the place of one J. P. Dominecq, and that after their departure five balls were found missing, which balls were subsequently found at Louis Chaplain’s, where they had been sold by the said George Bates. That the said five balls, or any of them, were not the ones alleged to have been stolen from the place of M. Schultz on the -30th of September, 1893, for which the accused was then being tried, but the property of J. P. Dominecq, for which larceny the said George Bates stood charged upon an information pending before the said court.”

The judge’s statement at the foot of the bill is as follows:

Bates was tried alone, his co-defendant, Ramps, having escaped. The following facts were established: That the prisoner, accompanied by his co-defendant, entered the billiard room of the prosecuting witness, M. Schultz, and they were seen leaning against a billiard table upon which a set of fifteen pool balls was lying; that after remaining there awhile they took their departure together. Immediately thereafter two balls were missed from the table against which the defendants had leaned, and the proprietor, suspecting them of the theft, pursued and came in sight of the men several squares from his saloon. Ramps fled, while Bates was caught. Three pool balls were found in his possession, two of which were identified as belonging to the prosecuting witness, and the other unaccounted for and belonging to a different set. Bates’ explanation was that the balls were given to him by Ramps and that he knew nothing of their theft. The State then offered to prove the larceny of other pool balls by this same defendant under similar circumstances and within a few days of the larceny charged in this information to prove system and intent. The evidence was admitted for those purposes. The jury was specially charged that no man should be found guilty of an offence charged against him by proof of his having committed another offence of the same nature; that if they found beyond a reasonable doubt that a larceny of other pool balls other than those charged in this information had been committed by the prisoner at the bar, that such evidence must be confined" strictly to the question of ‘ intent. ’ This charge was given at the time the evidence objected to was admitted, and afterward in the general charge with explanations to make the principle clear.”

The objection urged to the testimony was “ that it was irrelevant and formed no part of the res gestee; that it formed no connection with the' case .at bar and was part and parcel of another crime for which the accused stood charged and untried and had happened at a different time and place.”

We find in the record a statement of facts made by the judge in connection with his action in overruling a motion for a new trial, but it is not embodied in any bill of exceptions, and we do not feel warranted in making use of it. We think it sufficiently appears from the record that the guilt of the accused, Bates, or his guilty connection with the first larceny referred to in the bill of exceptions, is still a matter in pais, and doubtless bad that case gone first to trial the evidence bearing upon the larceny charged in the present one would have been sought with equal propriety to have been introduced therein in either case to the great danger of “uniting evidence of several offences in order to produce conviction for a single one.”

In Shaffner vs. Commonwealth, 72 Va. 60, 13 Am. Rep. 649 (Agnew, J.), it was said: “If the evidence be so dubious that the judge does not clearly perceive the connection (between the two offences), the benefit of the doubt should be given to the prisoner instead of suffering the minds of the jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt. ”

The same judge, in the same case, very properly said: “To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor linking them together for some purpose he intended to accomplish. * * * Without this obvious connection, it is not only unjust to the prisoner to compel him to acquit himself of two offences instead of one, but it is detrimental to justice to burden a trial with multiplied issues that tend to confuse and mislead the jury. The most guilty criminal may be innocent of other offences charged against him, of which, if fairly tried, he might acquit himself. Erom the nature and prejudicial character of such evidence, it is obvious it should not be received unless the mind plainly perceives that the commission of the one tends, by a visible connection, to prove the commission of the other by the prisoner.” We understand that the present case rested entirely upon circumstantial evidence, as would also the first larceny charged. There would be less objection than there is to the testimony which was received had Bates been “ convicted ” instead of being merely “ charged” with the commission of the first offence. We do not plainly see the connection between the two offences. The admissibility of the testimony is not clear to us, and we deem it our duty, in this special case, to give the benefit of the doubt to the accused.

It is therefore ordered, adjudged and decreed that the verdict of the jury be set aside, and the judgment of the court rendered therein be annulled, avoided and reversed, and the case remanded for a new trial.

On Application for Rehearing.

McEnery, J.

The Attorney General and the district attorney for the parish of Orleans have filed an elaborated brief for a rehearing in this case.

The evidence as to the larceny of other pool or billiard balls was intended to prove that the defendant had a tendency to steal pool or billiard balls, and, as the brief says, to remove any doubt of his having committed the offence charged. It is stated in the brief, that without this evidence no jury would convict the defendant. Mr. Wharton says it would be in entire variance with the usual view of the common law if a man’s having been guilty of other offences, or having atendency to commit them, should be received as evidence to rebut the . presumption of his innocence of a particular charge.” Wharton American Criminal Law, Sec. 640.

The only exception to this general rule that we are aware of prevails in the case of forgery, where the prosecutor is allowed to produce evidence of other instances of his having committed the same offence for which he is indicted.

There is a fundamental distinction between acts which may be proved to show malice or scienter, and the fact that the defendant had a tendency to commit the particular crime charged.

When the scienter or quo animo is requisite to, and constitutes an essential part of the crime with which the person is charged; and proof of such guilty knowledge or malicious intention is indispensable to establish his guilt in regard to the transaction in question, testimony of such acts, conduct or declarations of the accused on trial, to establish such knowledge or intent, is competent; notwithstanding they may constitute in law a distinct crime. Id., Sec. 649. And where several felonies are so connected together as to form an entire transaction, upon an indictment, for the one the other may be proved to show the character of the transaction.

The offence charged against the defendant had no connection or relation with the other offence. They were entirely distinct and separate acts, and the first could not explain the character of the second.

Rehearing refused.


author: McEnery, J.

text:
    No. 11,549.
    State of Louisiana vs. William Hobgood and Wiley Stafford.
    The right of the trial judge to discharge a juror in ease of evident moral and physical necessity before the panel is completed, or before evidence is introduced on the trial, is now a part of the.fixed jurisprudence of this State.
    Possession of property and an apparent ownership are sufficient to support the charges in an indictment for robbery and larceny. It is therefore immaterial whether the party from whom the goods were tafeen had placed them on the assessment roll.
    The fact that the prosecutor had made oath to the assessment roll and left off the same, the money alleged to have been stolen, is not admissible in evidence to impeach his testimony for truth and veracity.
    It is inadmissible, in order to attach veracity, to prove the bad character of a female witness for chastity, or to show that she is a prostitute.
    Testimony that the accused brofee jail is admissible testimony.
    A side remarfe made by the assistant prosecutor sotto voce to the associate counsel that he willmafeeno further objections to what the witness says is not a comment on the testimony of the witness, and is not of that character to affect the rights of the defendant. When no ruling of the court is asfeed, it is not apparent to which a bill in such a case applies.
    Matters in the course of the trial which should be at once excepted to and bill reserved can not be urged in motions for a new trial.
    APPEAL from the Sixteenth Judicial District Court, Parish of Liv ingston. Reid J.

    ' M. J. Cunningham, Attorney General, and B. Edwards, District Attorney, for the State,
    cite: 35 An. 764; 43 An. 365, 995; 44 An. 976; 30 An. 889; 19 An. 395; 38 An. 480; 33 An. 1410; 34 An. 392, 489; 39 An. 868; 37 An. 165, 576; 34 An. 919, 991; 41 An. 1067; 44 An. 160.

      Jos. A. Reid Attorney for Defendant and Appellant:
    Bad character may be proved against a witness for the purpose of impeaching his credibility, though the witness who testifies as to his character fail to state that his character or reputation is such that he would not be believed when testifying on his oath. Mitchel vs. State (Ala.), 10 So. 518; State vs. Jackson, 44 An. 160; 7 An. 83.
    In discrediting a witness the inquiry is not limited to his general reputation for truth, but may be extended to his general moral character. State vs. Raven (Mo. Sup.), 22 S. W. 376; S< Houx, 109 Mo. 654; People vs. Harrison (Mich.), 53 N.' 93 Mich. 594.
    It is error in the court and prejudicial to the accused to allow proof of a different crime to be introduced — e. g., to allow proofs of jail-breaking on a trial for robbery, no connection existing between the two.
   The opinion of the court was delivered by

McEnery, J.

The defendants were indicted for the crime of robbery, convicted and sentenced to hard labor.

They appealed.

They present eight bills of exception, including two for overruling separate motions for a new trial.

Bill No. 1 was taken to the ruling of the trial judge in discharging a juror who had been sworn and accepted, but discharged for cause before the completion of the panel.

The juror’s wife was related to the accused. She was their second cousin, and this was sufficient for the dismissal of the juror from the panel. The right of the judge to discharge a juror in case of evident moral and physical necessity, is now a part of the fixed jurisprudence of this State, established by a number of decisions. In this case the jury had not been completed, and no evidence had gone to the jury. Reason and authority sustain the action of the trial judge. State vs. Costello, 11 An. 283; State vs. Diskin, 34 An. 919; State vs. Moncla, 39 An. 868; State vs. Nash and Kid Barnett, 46 An. 194, and cases and authorities cited therein.

Bill No. 2. The question was asked the prosecuting witness for the State on cross-examination if he had sworn to his tax assessments for the last few years. The object of the testimony was, as stated in the bill, to impeach the credibility of the witness, and also as tending to destroy the allegations of ownership of the property in said witness. The witness had testified that he had accumulated the money said to have been stolen before, during and since the war. For neither of these purposes was the testimony admissible. The fact that he did not swear to his assessment, or that he did, has no bearing in the case and was not by itself competent testimony. The fact that if he swore to the assessment, and failed to place the money alleged to have been stolen on the assessment rolls, would not r- ,j destroy his actual or apparent ownership of the proper».. possession of the money without title would he sufficient' to suj. uhe charge in the indictment. But the effect of the objection was done away with when the trial judge in his ruling permitted the introduction in evidence of such an oath if made. It was not offered in evidence.

Bill No. 8. The witness, Sophenia McLin, having been sworn for. the State, to impeach her testimony, a witness was asked on cross-examination, “ Do you know what the general reputation for chastity of Sophenia McLin is in the community in which she lives?”

On the objection of the prosecuting attorney the trial judge ruled against the admission of the testimony.

The defendants reserved a bill. They rely upon the case of State vs. Parker, 7 An. 88; State vs. Jackson, 44 An. 160, and McInerny vs. Irwin, 7 So. Rep. 841. The practice in our courts has been settled in the first case cited, but it goes no further than to allow the introduction of evidence as to general bad character, so as to show such moral turpitude in the witness that no one would be justified in believing him under, oath. In such a case it is not necessary to restrict the inquiry to reputation for truth and veracity, but to show, his character was such that the witness would not, from its viciousness, believe him under oath.

. The inquiry must be into general character of the witness and.not as to any particular act or any particular line- of conduct, although after the general reputation is established the witness may, as in the case of State vs. Parker, state the disreputable lines of conduct of the witness, thathewas “idle, dissolute, had a notorious character for act-' ing fraudulently and falsely,” of extorting money by force and cheating the unwary and feeble, and had no means of support and lived. among lewd and abandoned women. Prom such vices; it is an: inference, that no truth can spring.

In the case of State vs. Jackson, 44 An. 160, the testimony received was as to the habits of the witness in associating with lewd and abandoned women. On appeal to this court, we said the inquiry was restricted, and therefore did not come within the reasons statéd in the case of State vs. Parker, 7 An. 88.

In paragraph 486, Wharton’s Criminal Evidence, it is stated, and supported by reference to many cases in the several State reports,, that “ it has been held inadmissible, in order to attack veracity, to prove the bad character of a female witness for chastity, or to show that she is a prostitute, or to prove habits of intemperance which do not affect the perceptive or narrative powers.”

In the case of McInerny vs. Irwin, 7 So. Rep. 841 (Supreme Oourt of Alabama), the rule as to general reputation to impeach the credibility of a witness is, in all essential respects, similar to the rule here. In that case, in reference to the impeachment of a female witness fcr chastity, the court said: “In refusing to permit the witness to be impeached by evidence of her alleged bad character for chastity and virtue, or by showing that she was a common prostitute, the Gircuit Oourt but followed the settled rule of law announced by this and other courts on the subject.”

Bill No. 4 is the same in effect as No. 8, and the reasons stated there for the sustaining of the ruling of the trial judge will apply to this bill.

■■ Bill No. 5 was reserved to the ruling of the trial judge in the admission of testimony to show that the defendant, J. W. Stafford, subsequently broke jail. In his statement to the bill the trial judge says the testimonyjjwas offered “ to prove flight by the accused and admitted by the court to show guilt, if unexplained.”.

• The testimony was admissible. State vs. Beatty, 80 An. 1266; 31 An. 804; 37 An. 77.

Bill No. 6. The defendant, Wm. Hobgood, was on the witness stand and was ordered to give a certain conversation, which was admitted over the objection of the State. ' W. B. Kemp, assisting the prosecution, remarked aloudtthat he would not thereafter object to anything which Mr. Hobgood might choose to say. The defendant reserved a bill of exceptions to said remarks. .It does not appear from'the bill that the trial judge was called upon to make any ruling, and we do not see to what the bill is applicable. There was nothing in the remark to throw discredit on the testimony, and it was addressed to the associate counsel,[who had jiist urged an objection to a question to the accused by his counsel. ' “The remark,” says the judge, “was made soffo voce.” The objection was frivolous. .

Bill No. 7 is reserved to the overruling of the motion of the defendant, J. W. Stafford, for a new trial.

There was no testimony taken on the' motion for a new trial, and it will not, of course, be necessary to notice that part of the formal allegation that the verdict was contrary to the law and the evidence.The motion alleges that the “ assistant prosecuting attorney and district attorney argued to the jury and led them to consider evidence which had been ruled out by the court, as to the defendant, and further inducing the jury to base their verdict upon the testimony so ruled out.”

The defendant’s counsel made no objection to the argument at the time it was made, and called for no ruling of the court, upon which he could, if adverse to him, have reserved his bill. It is too late to make the objection in a motion for a new trial. And this statement will apply to objections to the charge of the judge to the jury in the motion. Objections to it should have been made in season. It can. not be presented in a motion for a new trial.

Bill No. 8 is taken to the overruling of the motion of the defendant, Wm. Hobgood, for a new trial.

A motion for a new trial solely on the ground that the verdict is contrary to the law and the evidence is not entitled to notice by this court. This has so often been decided that its discussion here is wearisome.

Judgment affirmed.


text:
    No. 11,492
    State of Louisiana ex rel. John Ward vs. Board of Assessors.
    Property leased for manufacturing purposes is not exempt from taxation under Art. 207 of the Constitution.
    The word “ employed” used in said article means invested.
    The lessor not having invested said property in the manufacturing interest for which he leased it, the property so leased is not exempt from taxation.
    PPEAL from the Oivil District Oourb, Parish of Orleans. Monroe, J.

      Oharles Louque Attorney for Relator, Appellee:
    Under Art. 207 the property employed in the manufacture of machinery is exempt from taxation, even when leased by the owner to a manufacturer.

      E. A. O’Sullivan, Oity Attorney and Henry Renshaw, Assistant City Attorney, for Defendants and Appellants:
    The relator employs his property for a renting purpose, not for a manufacturing purpose. The manufacturer may claim exemption because of the meritorious employment he makes of his property, to-wit, its use in manufacture. The relator, however, employs his property to obtain a rent; he makes no such use of his property as justifies him in claiming the favor of the State, but he vicariously pleads the merit of his tenant.
   The opinion of the court was delivered by

McEnery, J.

This is a mandamus proceeding to compel the canceling of assessments against relator’s property for the year 1898.

Its exemption from taxation is claimed under Art. 207 of the Constitution, relieving the capital and machinery employed in certain manufactories from the payment of taxes.

The relator was formerly engaged in the manufacture of machinery, and his property engaged in said business was exempted from taxation under the provisions of Art. 207 of the Constitution.

He sold his tools and machinery to other parties, and leased to them the lot and building. They continued the same business.

Relator claims exemption for the lot and building, because this property is still employed in the production of machinery.

It is an invariable rule that exemption laws must be construed strictly. They must be confined within the limits intended by the law-givers.

The object of the article in the Constitution is to encourage the production of certain articles mentioned in the article. The exemption was intended to induce the owners of capital and machinery to employ them in the manufacture of said articles.

The exemption was based upon the ownership or interest in the •capital, machinery and property employed in the enterprise and an interest in the products. It is addressed to manufacturers — those who would have an interest, by the investment of capital, in the products of manufacturing establishments.

The relator has no interest in the manufacture of the machinery by his tenants. He is an utter stranger to the enterprise, and has no capital invested in it. He is the lessor of the property in which the manufacture is conducted, and because it is leased for the purpose of carrying on a manufacturing establishment can not, by any possible reasoning, convert it into capital or property invested or employed in the industry conducted by his tenants.

The article of the Constitution is very plain. It says: “ The capital, machinery and other property employed in the manufacture of * * * machinery shall be exempt for twenty years from taxation.” The word employment means invested as used in the article.

Under the' interpretation of the article asked by relator, every species of property not owned by the manufacturer but used about the premises or in the manufactory would be exempt. Carts and wagons employed in hauling to depots for shipment, and to bring materials to the factory, would be exempt, notwithstanding they are hired to it by other parties, who pursue a distinct and separate calling. The article does not intend to exempt these, nor does it intend to exempt the lessors of property who happen to find a tenant who is a manufacturer and uses the property in his special calling.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and it is now ordered that the rule granted herein be discharged at relator’s costs.