text:
    No. 13,698.
    Hart H. Sandoz vs. Edward P. Veazie.
    Syllabus.
    1. “ Probable cause ” does not depend upon the actual state of the case, in point of fact, but upon the honest and reasonable belief of the party prosecuting.
    2. The question of “ probable cause,” as presented in an action for damages for alleged malicious prosecution, is a mixed one of fact and law, with which a jury, composed of men untrained in knowledge of law, is not unlikely to confuse the question of the guilt or innocence of the person, who, having been acquitted of the charge brought against him, seeks to recover damages for his prosecution.
    3. “ Where a party has communicated to his counsel all the facts bearing on the case of which he has knowledge, or could have ascertained by reasonable diligence and inquiry, and has acted upon the advice received, honestly and in good faith, the absence of malice is established, the want of probab’e cause is negatived, and the action for malicious prosecution will not lie.” And, a fortiori is this the case where, the counsel consulted is the public prosecutor.
    4. Actions of this sort have never been favored; a clear case must be made out of a perversion of the forms of justice to the satisfaction of private malice and the wilful oppression of the innocent, in order to sustain them.
    5. In this case, the evidence shows that the defendant, who is sued for damages for malicious prosecution, acted without malice and with probable cause, and upon the advice of the public prosecutor, before whom he had fairly laid the facts within his knowledge, and the verdict and judgment for the plaintiff are accordingly reversed.
    APPEAL from the Sixteenth Judicial District, Parish of St. Landry, Lewis, J.

      Lewis & Lewis, William G. Perrault, William, J. Sandoz and Percy T. Ogden, for Plaintiff, Appellee.

      Gilbert L. Dupre and E. B. DuBuisson, for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

This is an action in damages for an alleged malicious prosecution. The answer is a general denial.

The case presented by the record is, substantially, as follows, to-wit:

Plaintiff and defendant are natives of the parish of St. Landry, and residents of the town of Opelousas, the former being the tax collector of the town and the latter a member of the bar. At the time of the occurrences out of which this litigation has arisen, the plaintiff was about thirty, and the defendant about fifty years of age. The plaintiff had a wife and three children, the youngest being an infant, barely four weeks old, whilst the household of the defendant consisted of his wife, two daughters (the elder of whom was about sixteen years of age), and Eddie Hudspeth, about twenty years old, who was staying at defendant’s house in order to attend school.

There appear to have been no social relations between the two men, or their families, but the defendant had lived for fifteen years upon a farm adjoining that upon which the plaintiff was reared; had known the latter from his childhood; and had, always, been on perfectly friendly terms with him. Upon the morning of Friday, May 12th, 1899, Miss Celie Dejean, also about sixteen years old, came from her home, some five miles out of town, to pay a visit of a few days to her friend, Miss Ludie Veazie, the elder of the defendant’s two unmarried daughters, and, upon that evening, the entire family went, in separate parties, to an entertainment, given at the Opera House for the benefit of the public schools, and consisting of an amateur dramatic performance, with refreshments, followed by dancing, the two girls being escorted by JohnHarmonson,a distant cousin of Miss Veazie, and Eddie Dejean, a brother of Miss Dejean, Mrs. Veazie, who had charge of the refreshment table, taking her younger daughter with her, and the defendant taking Edd:e Hudspeth. As soon as the dramatic performance was over, the defendant and young Hudspeth returned home, and, after an improvised supper, the latter went to the house of Mrs. G. W. Hudspeth, near by, where, for the time being, he was sleeping for that lady’s protection, and the defendant began his preparations for bed. About that time, the two girls returned, with their escorts, but the latter remained but a few moments, and, upon their departure, the girls retired, only, however, within a very little while, to arouse the defendant, who had fallen asleep, by the most piercing shrieks of distress and calls for aid.

It may be stated that the defendant’s house, as we infer from the testimony, though no witness has described it, is a cottage, situated upon the northwest corner of two intersecting streets, and facing to the South. It has galleries, front and rear, and a yard, or lawn. There are, as we understand it, four rooms and a hall, down stairs, and two rooms upstairs, each of which latter has a dormer window upon its North and South sides, respectively, and, possibly, a window in the gable end of the cottage. There is some lattice about the rear of the house, by means of which it is comparatively easy to reach the roof and to effect ffn entrance, or exit, into, and out of, the upstairs rooms, through the dormer windows upon the North side, and the exit may, also, be effected by jumping from the roof of the back gallery, or back rooms, down stairs, which is said to be about nine feet from the ground. The defendant occupied the front room down stairs, upon the East side, whilst the two girls occupied the room upon the same side of the house, upstairs. This room has, to some extent, the benefit of the street electric light at the corner, the rays from which enter, obliquely, through the front, or South, dormer window. Upon hearing the alarm, as heretofore stated, the defendant sprang up and called loudly for assistance, which brought into the house three negroes, named Smith, Jones and Beauchamp, who happened to be passing, and they accompanied or followed him upstairs. He found the door of the girls’ room fastened upon the inside, and there was some delay in unfastening it, and a further delay, resulting from the fact that the knob of which the defendant had taken hold, came out, with the shaft attached, and was dropped upon the floor of the unlighted landing, outside the door. In the meantime, the indications of distress, inside the room, became, if possible, more pronounced, and the defendant continually assured the inmates that he would be with them in a moment. Finally, after several minutes, he succeeded in getting in, and he found Miss Dejean standing near the door, which she had just unfastened, and his daughter on, or near, the bed, which occupied the middle of the room, whilst the intruder, he tells us, was heard by him, though not seen, escaping through the North dormer window. All the witnesses who were present, with the exception of the negro Smith, who was not examined, concur in the statement that the two girls were crying and sobbing in a state of most intense excitement, and it is not claimed that any connected conversation took place at that moment. Exactly what was said, before, and after, the opening of the door, and subsequently, is regarded as of some importance, and will, a little later, be considered from that point of view. As a matter of fact, almost as soon as the door was opened,, the defendant sent the negro, Jones, to the Opera House to hasten the return of Mrs. Veazie, and the negro, Beauchamp, a boy of fifteen,' accompanied him, whilst the two frightened girls went down stairs, where Robert Ohacere, a neighbor living about a block away, whose family had been alarmed by the outcries, as also his wife and daughter, found them in the hall. The defendant then came down stair, and, feeling impatient for the arrival of his wife, and doubtful, perhaps, as to the delivery of the message which he had sent, went in search of, met, and returned with, her, the girls being left in the meanwhile, with Mr. and Mrs. Chacere and their daughter.

It is necessary, now, to a proper understanding of the situation, that we should go back to a period antedating the evening upon which the above narrated events took place. Miss Ludie Yeazie testifies that for two or three months, the plaintiff had been forcing himself upon her attention in various ways; that he had spoken to, and attempted to get into conversation with, her, on several occasions; that he had followed her on the street; that he attempted to get her to go across the street from her home to an oifiee, which he was in the habit of frequenting, upon the pretence that some one wanted to speak to her through the telephone; that he was in the habit of hanging about, and passing and repassing, her father’s house, and coming to the fence and asking her questions, and trying to converse with her; and that, upon the evening in question, she and Miss Dejean being seated upon the gallery, the plaintiff passed by, and taking his seat upon the gallery of the office opposite, occupied himself with looking over the top of a newspaper at her and her friend until, at the suggestion of the latter, they retired within the house. She further testifies that, later, upon the same evening, in going to a neighbor’s, she found him passing in front of the gate; that, upon her return, he was standing upon the stable bridge “right next to the house,” looking upstairs toward her room; that upon going to her room and finding Miss Dejean dressing her hair, she closed the window; and that he again passed the house, and was so intent upon watching the window that he missed his footing and fell into the ditch, at the corner. She further testifies that she had complained of the plaintiff to her mother, and that her mother advised her to say nothing about it. It is also in evidence that the matter had been brought to the attention of the defendant, by his daughter and by young Hudspeth, and that Hudspeth had suggested that he should speak to the plaintiff, but that defendant said that the banquette was free, and did not encourage him to do so. This testimony is corroborated, in different particulars, and in a greater or less degree, by Eddie Hudspeth, Miss Dejean, and seven other disinterested witnesses. Beyond this, some ten days or two weeks before the night of the 12th of May, Mrs. Veazie brought the matter to the attention of the District Attorney, who, however, attached no importance to it and gave no advice. Whether the witnesses who have testified on the subject were mistaken in the interpretation placed by them on the plaintiff’s conduct, or whether they were .not, the fact remains, that he had so conducted himself as to excite unfavorable comment, and to arouse a feeling of apprehension and distrust in the minds of defendant’s daughter, and her young friend Miss Dejean, as, also, in the minds of other persons, who have testified, and in the mind of the defendant’s wife; and the denial and explanations which have since been made by the plaintiff, to the satisfaction of two juries, had not, then, been demanded, and were still unmade.

Recurring, now, to what was said before, and after, the defendant obtained access to the room occupied by the two girls, all the witnesses concur in testifying that there were cries of distress proceeding from within; that Miss Ludie Veazie could be heard calling, “Papa come quickly, there is a man in the room,” and that the defendant said, repeatedly, “I am coming,” or “I will be with you in a moment.” The defendant and both the girls testify that she, also, said, “You are a white man and I know you,” or words to that effect; and the defendant and his daughter testify that she said, “He is choking me,” whilst Miss Dejean, though not mentioning the use of those words, states that, as a matter of fact, the man was choking her, and that she, Miss Dejean, pulled his hands away from her friend’s throat. As against this, the two negroes, Jones and Beauchamp, say that they did not hear the expression last above referred to.

After the door was opened, the defendant said to Miss Dejean, who was immediately before him, “Where is Ludie?” and, having located his daughter, said, “My children, you are safe, what is all this about, who has come into your room?” and, a moment afterwards, to his daughter, “Wait till your, mother comes.” The defendant testifies that the girls were sobbing and choking and were almost inarticulate, and said little, or nothing, that could be understood. His daughter testifies that she said, “Oh Papa, I know” — -when he interrupted her by saying, “Wáit my child until your mother comes.” The two negroes testify that the defendant asked the girls who it was, and that Miss Veazie answered that she did not know who it was; that he was a tall, slim, man, dressed in black, and that he had a red handkerchief tied over h.'s nose, or tied across his' face.' After the defendant had left the house in search of his wife, there was some conversation between the girls and the Chaceres, who remained with them. Mr. Chaeere testifies that in response to a question propounded by him, as to whether they had any idea who it was, they answered that they did not know, that he was a white man, tall and slim, wearing a blue coat, soft black hat and dark pants, and that he had a handkerchief over his face; that they were very much excited and were crying, and that, when Mrs. Veazie arrived, her daughter, “as soon as she saw her mother, it looked like she wanted to say who she thought it was,” but that her mother told her not to say unless she was certain, “to mention no name,” and that the daughter said, “You know he has a grudge against me, he hates me.” Being asked: “In addition to what you have already stated, I will ask you if she did not say, also, ‘Mamma, it is the man I have been talking to you about,’ or words of the same import?” To which the witness replied, “I don’t remember that.” Mrs. Chacere’s testimony is as follows: “Q. Did they say anything about who it was? A. No, they did-not recognize him; they said he had a blue coat and a slouch hat, that was the expression she used, and that he was a man that did not work; had soft 'hands; said they did not recognize him. Q. You are positive of that, that they both said they did not recognize the individual ? A. Well, I cannot say exactly both, but I know Ludie said it. * * * Q. What conversation took place between Miss Veazie and her mother, after she arrived, in relation lo the person? A. Well, Mrs. Veazie said, ‘My God, Ludie, did you recognize him ?’ And I don’t know what Ludie said — they were all excited. Q. Do you remember what Miss Ludie Veazie said to her mother about the. person? A. She said the same thing she told me; she told me he had a blue coat, slouch hat, and a handkerchief tied about his face. Q. Did she say anything about it’s being a person who had a grudge against her? A. Yes, she told her mother, ‘Mamma, it is the one who has a grudge against me.’ Q. Well, what did Mrs. Veazie do then? A. She told her not to accuse any one unless she was positive; that is all I know. Q. Did she tell her not to mention any names; did you hear her say that? A. No. (Cross-Examination): Q. When you arrived, you found the young ladies in such a state of excitement that it was impossible for them to converse intelligently? A. Yes. Q. When Mrs. Veazie arrived, Ludie Veazie sa’d to her mother, ‘It is the same man who has a grudge against me’ % A. Yes. Q. And her mother replied, ‘Don’t mention anybody, unless you are positive’ ? A. Yes, sir.”

Miss Heloise Ohacere’s testimony is much to the same effect, thus: “They said they did not recognize anybody, but that he was a tall, slim man. Q. Did they say anything about his being disguised? A. Yes sir, said he had a handkerchief tied over his face and a hat pulled over his eyes. Q. Which one of them said that, do you remember, or both of them agreed to that ? A. I know Ludie said that, I am positive she said that. Q. Was Miss Oelie Dejean present when she said that? A. Yes sir. Q. She did not claim to have recognized the man did she ? A. She said she did not recognize him. Q. What did Mrs. Veazie say after she arrived? A. She asked her daughter if she had recognized him? Q. What did she say? A. She said no; she told her mother that she did not recognize him. Q. Well, did she say anything while talking to her mother about the one that had a grudge against her, that hated her? A. Yes sir, said it was the one that hated her, had a grudge against her, at least. Q. Well, what did the mother say or do then ? She told her to hush — told her not to say that.”

It is quite clear that the defendant did not hear what took place while he was absent from the house, looking for his wife, and he denies having heard, upon his return, or at any other time, either of the girls say she had not recognized the intruder. His statement, upon the contrary, is, that when his wife entered the house, she said, looking at her daughter, “what is this?” and that the latter replied, “Mamma, it is the man I have been telling you about,” and that his wife said, “Mention no names.” Miss Dejean positively denies that she ever said to anybody that she did not recognize the assaillant, and asserts, with equal positiveness that the plaintiff was the man, and that she recognized him at the time. Miss Veazie’s testimony, or rather Mrs. Albert Dejean’s, as she has since been married, is to the same effect, and, in testifying as to her conversation with the Ohaceres, she says, “I did not say to them I did not recognize the man, but I did say that he was a tall man, had on a dark coat and hat pulled down over his eyes, and that he was a white man. I never said anything about dark pants and a handkerchief over his face.” She also testifies that she did not say, “It’s the man that has a .grudge against me, you know he hates me,' hut that she did say, to her mother, “Oh, mamma, I know the man, it’s the same man I have been telling you about,” and that her mother i old her to keep quiet.

Eesuming the thread of the narrative, and pretermitting some little conversation between the defendant and his wife, when he informed her of what had happened, to which the objection of the plaintiff’s counsel was sustained: — Upon the arrival of Mrs. Veazie, W. S. Erazee, the sheriff of the parish, was sent for, and the defendant got his buggy, and, calling for Eddie Hudspeth, drove a mile or two into the country, to -Wdlie Burr’s, to get bloodhounds to assist in trailing the miscreant who had entered his house, but was unsuccessful in the effort; and other efforts in that direction were also unsuccessful. Mr. Erazee, the sheriff, responding to the call made upon him, reached the house in about an hour, and states that neither of the girls, at that time, claimed to have recognized their assailant, though they agreed that he was a tall man, wearing a dark felt hat, and a dark coat, with a handkerchief over the lower part of his face, but that, the same morning, having gone home and returned, he asked Miss Veazie “if she did not have some suspicion as to who the person might be,” and he states, “She was patting her foot, and, looking down, remarked, ‘A person may suspect, but '-,’ and, at this point, she stopped — whether some one interrupted her or not, I do not remember.” He also testifies that, early the next morning he examined the roof and lattice, and found no marks indicating that anyone had escaped from the house through the North dormer window, although the roof was covered with dust, upon which the imprint of his finger was plainly visible. He further testifies that, at the suggestion of Mrs. Veazie, he looked for marks, said to have been left by the assailant upon the neck of Miss Dejean, but found none, and, upon the person of Miss Veazie, where he found marks, but he was apparently skeptical as to their origin. Some, days later, Sheriff Broussard of Lafayette, having been called to assist in the matter, he and Sheriff Erazee interviewed Miss Dejean at her home in the country, and they testify as follows with reference to her statements as to the identity of the person who entered her room, to-wit:

W. S. Erazee, examined by commission: “Q. Did not Oelie Dejean tell you and Sheriff Broussard that she identified the plaintiff as the party who entered her room ? A. She said on that occasion that she thought it was the plaintiff, at the time the thing occurred. Q. Did not Oelie Dejean, on the trial of the case of State of Louisiana vs. Hart H. Sandoz, again identify the plaintiff as the party who entered her room? A. She did. Q. On taking the witness stand as a witness, yourself, did you not state that the testimony she had just given, in State vs. Sandoz, was, substantially, the same she had given you and Sheriff Broussard, and did not sheriff Broussard who followed you as a witness, corroborate your testimony ? A. Yes, such is my recollection. She testified on the stand, substantially, the same as she had to us in the country.”

I. A. Broussard, examined under commission: “Q. Please state, in detail, all she said she knew as to the burglary at the Veazie house? A. She stated that herself and Miss Veazie and two young men had gone to the Opera House in Opelousas the night of the alleged burglary. After the play, Miss Veazie was suffering from headache and they went home with their escorts. Mrs. Veazie, who was also at the Opera House, told her daughter that she could go home, as her father was at home. When they arrived at the house, the two escorts left them, and she, Miss Dejean, started to go upstairs to her bed room, when she heard something, that is some noise in her room. She ran down stairs and told Miss Veazie of what she heard. They both went up. When they got in their room they looked around, and saw nothing. They then thought is was, possibly, a cat. They undressed and went to bed, and only a few minutes after they were in bed, Miss Veazie told her that she was going to sleep, that her head hurt her. She said that a few minutes after, she saw a man standing in the window which leads to the.roof of the dining room. She thought at first it was possibly the shadow of a man that was caused by the effect of the electric light. She paused a second before speaking. At that moment the man moved from the shadow of the window out where the electric light reflected on him. But before the man moved into the light, she said to Miss Veazie that there was a man in the room. Miss Veazie answered by saying, “Don’t scáre me, Celie, I have a headache.” When the man moved out in the light, she then screamed. “There is a man in the room! There is a man in the room!” She and Miss Veazie screamed as fast and as loud as they could, calling on Mr. Veazie to come. At the same time the man sprang on the bed and was trying to choke them both. In the scramble she succeeded in getting loose, and started to raise the latch, which was inside the room, so that Mr. Veazie, who was then knocking at the door, could get in. At that moment she heard Miss Veazie wheezing as if being choked to death. She then ran back to the bed, grabbed his hands and pulled them loose from Miss Yeazie’s throat, and then ran to the door and unlatched the door. The man, then, at that time, ran out through the window. Mr. Yeazie then came in and got hold of us and told us not to cry, that ‘ Papa is with you.’ Sheriff Frazee then asked her if she was sure- it was a man. She answered by ask'ng Sheriff Frazee if he thought she was a fool. He said: ‘No, but I once heard of a lady who was dreaming that there was a man in her room, who screamed and created great excitement and when assistance came, it was found that she was dreaming.’ Pie further stated to her that he only asked her this question and made this statement to show her how people could be deceived sometimes and that he did not want to make any mistake. Myself and Broussard are out here this morning in regard to this matter,' and we want you to be sure, as we don’t want to have any innocent man in trouble.’ She said that from the moment she saw the man in the room, she thought it was Hart Sandoz. I asked her how did she know it was Plart Sandoz. She said that when he stepped in the light she recognized him by his build, his clothing. She said she had seen him that evening, just before dark, looking into her room from the street. She said that she had seen him at different times, and very often, and that she knew him well, and that she knew it was Hart Sandoz, and that she was sure she was not making a mistake. She said that she was sure that Miss Yeazie also recognized him.”

There is no doubt that Miss Ludie Yeazie informed her mother, upon the night of the occurrence, that she had recognized Hart Sandoz, and the defendant testifies that he heard the statement, as does also Eddie Hudspeth, and, it is equally beyond question that the same information was imparted upon the next morning, Saturday, May 13th, to the prosecuting ofiicer of the parish. Upon the Monday, following, Miss Dejean returned to her home and told her mother that it was Hart Sandoz who had entered the room. Pier mother warned her that she must not swear that it was Hart Sandoz unless she was sure of it, and she replied, “Mamma, I know it was him.”

The defendant states that, in view of the doubts, which he thought might arise as to the possibility of identification, under the circumstances, he considered it prudent to obtain such further information as he could before bringing a charge, either formally or informally. He therefore offered a reward of one thousand dollars for the conviction of the culprit; attempted, unsuccessfully, to secure the aid of detectives, called upon Sheriff Broussard of Lafayette, and C. C. Duson of Acadia, through Sheriff Erazee, to assist the latter in the investigation, and, for ten days, devoted himself to the inquiry, and that during the whole of that time he consulted with the district attorney, gave him all the information that he was able to obtain, and was governed by his advice.

The District Attorney and Sheriff Broussard reached the conclusion, and so advised the defendant,that the evidence was sufficient to secure the conviction of Hart Sandoz, the present plaintiff. Sheriff Frazee was evidently of a different opinion, but gave no advice. Mr. Duson was unable to give more than superficial attention to the matter, and says: My examination was short, confined to an examination of the room and questions I thought pertinent to the case; one visit only. * * * I told him (Veazie) on this occasion, in my judgment, he could not convict Sandoz, on the information he had given me.” The defendant testifies that, finding that Duson was unable to go into the investigation, he told him comparatively little about the case.

Pending the investigation, which was being prosecuted, it was deemed advisable not to make public the name of the person upon whom suspicion rested, but Miss Ludie Veazie mentioned it to one of her school girl friends; who mentioned it to others, through whom it reached the ears of the plaintiff, that he was the person. He immediately took steps to trace the information to its source and, upon May 19th, wrote to the defendant a letter in which he said, “I denounce as a liar and a scoundrel any man or set of men who use my name in connection with this affair. I don’t know whether you are the author of this rumor or not, but I warn you that unless they are stopped, I shall hold you personally responsible.” To which the defendant replied: “I am neither the author nor the originator' of the statement to which you refer. A full investigation by competent persons is now being made, and, when this shall be completed, every one will know who is suspected, because an affidavit will be made by me, in person. At this time, as I am acting in concert with the law officers, I decline to state what particular person is under suspicion.”

It is also shown that plaintiff was taking steps to bring about a judicial investigation of the matter, when, upon May 12th, an affidavit was made by the defendant, charging him with having, feloniously and burglariously, entered his, defendant’s, dwelling house, in the night, with the intent to commit a further felony, specified in the affidavit, whereupon, he gave bond for his appearance.

The matter was brought before the Grand Jury, at its first meeting thereafter, in the month of September, following, and, upon September 12th, that body returned, “not a true bill.” Thereupon, immediately, the District Attorney, of his own motion, without consultation with the defendant, and, as he testifies, upon the basis of the testimony which had been given before the Grand Jury, filed an information against the plaintiff, reiterating the charge contained in the affidavit of the defendant. The ease was tried in October, the trial beginning on Monday and ending on Saturday night, the defense set up being, the plaintiff’s good stand.ng and reputation in the community, and an alibi, consisting of the fact, supported by the evidence of his brother, who claims to have slept with him, and of a negro woman employed as a nurse for his wife and infant child, that he went home between eight and nine o’clock on the night in question and did not again leave there until the next day. There was some evidence to the effect that the brother was seen at the Opera House after the hour mentioned, and that the defendant was seen upon the street, but the jury evidently believed the witnesses for the plaintiff (defendant at that time), and, after deliberating for forty or fifty minutes, brought in a verdict of “Not Guilty.” In May, 1900, this suit was brought, and, after another protracted trial, there was a verdict and judgment for the plaintiff from which the defendant has appealed.

Opinion.

It is undisputed that the plaintiff was prosecuted, criminally, by the defendant; that he thereby sustained serious damage; and that the prosecution terminated with his acquittal. The plaintiff having thus been vindicated with respect to the original charge, it will be understood that, in recapitulating the facts thereto relating, it has not' been the purpose of this court to question either the eorrecteness or the force and effect of that vindication. The inquiry which now presents itself is, whether the defendant had probable cause for instituting said prosecution.

“As respects a criminal prosecution, the following definition of probable cause is approved by many authorities, viz: A reasonable ground of suspicion, supported by sufficient circumstances, sufficiently strong in themselves, to warrant a cautious man in the belief that the person accused is guilty of the offence with which he is charged.”

Newell on Malicious Prosecutions, 276.

Another definition, which we find in the syllabus of the brief of plaintiffs counsel, reads as follows: “Probable cause for instituting a prosecution, is such a state of facts, known to, and influencing, the prosecutor, as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably, and without prejudice, upon the facts within the party’s knowledge, to believe, or entertain an honest or strong suspicion, that the accused person is guilty.” Still another, found in our own jurisprudence, reads: “Probable cause means the existence of such facts and circumstances as would excite the belief in a reasonable mind that the plaintiff was guilty of the offence for which he was prosecuted. Rumors are not, but the representations of others is, foundation for such belief. And we may add that, when to the representations of others, the plaintiff has, by his own conduct, invited suspicion to himself, the defence is complete.”

Mosely vs. Yearwood et als. 48 Ann. 338.

This court, quoting from Greenleaf, has also said: “Probable cause does' not depend upon the actual state of the ease, in point of fact, but upon the honest and reasonable belief of the party prosecuting.” Barton vs. Kavanaugh, 12 Ann. 334. Plaintiff’s counsel propound the theory that the two young ladies who were attacked and who were the only eye witnesses of the occurrence, were unable, at that time, to identify the assailant, and that they were, thereafter, induced, by the defendant, to swear that the plaintiff was the man. In support of this view, the counsel call our attention to the statements of the several witnesses who testify that both the young ladies admitted that they did not recognize the man. This testimony is, however, to be reconciled with that given by some of the same witnesses to the effect that they, or, at least, Miss Veazie, said: “It is the one that has the grudge against me.” ■ It will he remembered that the Chaceres were the first persons with whom they spoke after coming out of their room, and that each member of that family, whilst testifying to Miss Veazie’s unqualified disclaimer of recognition, nevertheless admitted, in answer to direct and leading questions (propounded to Mr. Chacere only upon cross-examination), that she stated that she knew, or strongly suspected, who their assailant was. Thus, Mr. Chacere testifies, that “it looked like she wanted to say who she thought it was,” but that she was stopped by her mother, who told her to mention no names. He further testifies: “ She said: ‘You know he has a grudge against me; he hates me’; and her mother stopped her right there — that it where it came in — her mother told her not to mention any names.” Mrs. Chacere testifies that she said, “Mamma, it is the one who has the grudge against me,” and that she was stopped by her mother from mentioning the name. And Miss Iieloise Chacere testifies to the same effect; and it seems doubtful whether either of the witnesses heard Miss Dejean make any statement on the subject. If, then, the two young girls were only prevented by the interposition of Mrs. Yeazie from naming, in the presence of others, the person whom they had identified, or whom they suspected, and believed that they had identified, it stands to reason that they became more explicit when the neighbors had departed, or when they found an opportunity of speaking to Mrs. Yeazie alone. And there can be no reasonable doubt that they then gave her the name of the plaintiff, as they did, the next day, to young Hudspeth and to Harmonson and io' Ilebrard, as the person who had entered their room.

The evidence in no manner connects the defendant either with the facts or with the processes of reasoning by which they reached their convictions, and he was confronted with the same problem which was afterwards presented to others, to-wit: whether the two girls had really recognized the plaintiff, or whether they had reasoned themselves into the belief, or had jumped to the conclusion, that it was he, from other circumstances, and apart from such actual recognition. Sheriff Broussard, a gentleman of long experience, investigated the matter thoroughly, interrogated those who were to be summoned as witnesses, as well for the defense as for the prosecution, and concluded that there was evidence sufficient to justify the prosecution. The information, within the knowledge of the defendant, and that which he was able to obtain, was, as we think, fairly laid before the prosecuting officer of the State, and he reached the same conclusion. And so convinced was he of its correctness, after he had heard the case, as presented to the Grand Jury (of course out of the presence of the defendant) that, simultaneously with the return of the ignoramios, and without the knowledge of the defendant, he filed an information reiterating the charge contained in the defendant’s affidavit. In addition to this, it may be remembered that on the Monday following the Friday night in question. Miss Dejean left the house of the defendant and returned to her own home and her own parents, and we find absolutely nothing in the record to justify the inference that either she or they were interested in having her give any testimony to the injury of the plaintiff, and yet, she has appeared before the Grand Jury and two petit juries and has sworn, positively, upon each occasion, that the person who entered the room occupied by herself and Miss Veazie was the plaintiff in this suit. And, in thus testifying, she has been fully and categorically corroborated by Miss Veazie, the only other person claiming to have been an eye-witness to such entering. Under these circumstances, and without discussing the other theories, propounded by the learned counsel for the plaintiff, which we find unsupported by the testimony, we conclude that there was probable cause for the prosecution of which plaintiff complains. We appreciate the fact that the Grand Jury, composed, no doubt, of honest and reasonable men, investigating the same question, reached a different conclusion, but, whether, upon a given state of facts, there is “probable cause,” with respect to a particular prosecution, involves questions of law with which the training of the grand jurors may not have enabled them to deal intelligently. We also appreciate the fact that the plaintiff was acquitted by the petit jury of the charge brought against him, but that is apart from the present question, which is, not whether he was guilty, but whether the defendant had probable cause for believing, or suspecting, that he was guilty. We appreciate, too, the further fact, that the plaintiff obtained a verdict for $3000 in this case; but here, also, the jury was called upon, as was the Grand Jury, to deal with a mixed question of law and fact, and may have confused the question of probable cause with the question of guilt or innocence, and may have assumed that a failure to find a verdict in plaintiff’s favor would detract from his vindication, or would imply that he had been entirely cleared, of the original charge. Such errors are not uncommon, as may be seen from the following, among many, eases, in which similar verdicts have been set aside: Grant vs. Deuel, 3 R. 17; Gerker vs. Viosca, 8 R. 150; Gould vs. Gardner, Sager & Co., 8 Ann. 12; Talbert vs. Stone, 10 Ann. 537; Gould vs. Gardner, 11 Ann. 289; Barton vs. Kavanaugh, 12 Ann. 332; Osborn vs. Moore, 13 Ann. 714; Pellonz vs. Bullerdieck, 13 Ann. 274; Blass vs. Gregor & Wilson, 15 Ann. 421; Murphy vs. Redler, 16 Ann. 1; Robertson vs. Spring, 16 Ann. 252; Hopkins vs. Garthwaite, Lewis & Miller, 28 Ann. 325; Dearmond vs. St. Amant, 40 Ann. 374; Sibley vs. Lay, 44 Ann. 936.

In conclusion, it may be said, in the language of Manning, Chief Justice, in Staub vs. VanBenthusen, 36 Ann. 470: “Actions of this sort have never been favored, and, in order to sustain them, a clear case must be established, where the forms of justice have been perverted to the gratification of private malice and the wilful oppression of the innocent.” See, also, Lavile vs. Bigueneaud, 15 Ann. 605; Godfrey vs. Soniat, 33 Ann. 919; Monroe vs. Lumber Co. et als., 50 Ann. 147; Davis vs. Stewart et als., 47 Ann. 383; Garnier vs. Barnard, alias Dumontier, 45 Ann. 1270; Brelet vs. Mullen, 44 Ann. 199.

For these reasons it is ordered, adjudged, and decreed that the verdict appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of the defendant rejecting the plaintiff’s demand with costs in both courts.

Provosty, J"., takes no part.

Eehearing refused.


source: Caselaw Access Project

author: Breaux, J. Blanchard, J.

license: Public Domain

text:
    No. 13,600.
    Mr. & Mrs. W. G. Salaun vs. Their Creditors.
    Syllabus.
    The court reviewed the different grounds raised in opposition to the account filed of the insolvent’s estate and found no ground upon .which to set aside the judgment brought up for review under its supervisory jurisdiction, except in one particular.
    The fee of attorney Is allowed, to the extent, strictly, that the services of the attorney were rendered in having the property sold. The amount allowed does not cover all the services rendered in the insolvency proceedings (not immediately connected with the sale of the property).
    IN EE Mrs. Caroline Cotonio et als., applying for certiorari, or writ of review, to the Court of Appeal, Parish of Orleans, State of Louisiana.

      Theodore Cotonio, for Applicant.

      Dirikelspiel & Hart, for George Esscouse, Eespondent.
   The opinion of the court was delivered by

Breaux, J.

The purpose of the relator, as expressed in the petition, is to have a judgment of the Court of Appeal annulled, on the ground that the costs and charges allowed for settling the insolvent estates of Salauns, husband and wife, were excessive, and not entitled to preference over her claim as lessor.

Relator seels to have this judgment annulled on the further ground that she was not allowed the whole amount due her as lessor.

In the District Court, Mrs. Ootonio (the relator) opposed the syndic’s account and some of the items of the account were reduced. The opponent (relator here) appealed to the Court of Appeal, and other amendments were there made.

The first item objected to in the District Court originally amounted to fifty-one dollars and thirty cents. The following is an excerpt regarding that item- from the carefully prepared and elaborate opinion of our learned brothers of the Court of Appeal: “Iiem 2. — It is not disputed, that this item, must be reduced from, fifty-one 30-100 dollars to sixteen 50-100 dollars, and it was so decreed by the lower court, and it is a proper reduction.” Our study of the case has led us to the same conclusion. No brief has been filed by the relator. If there was error in this, as averred in her petition, she has failed to point it out.

Relator further urges that the syndic in his account charged twenty-four 30-100 dollars fees of sheriff, an item which she contends should not have been charged to her prejudice as a lessor. Relator avers that “the court has also allowed an item of sheriff’s fees which was not necessary to the sale of the property.”

There was no objection made to the sale of the insolvents’ property. It became necessary to sell. In consequence, the fee of the sheriff was due by the syndic. It is part of the costs and law charges necessary in the administration of the insolvents’ estate. It was to the interest of all concerned, including the lessor, who, we judge, was quite willing that the property be sold in order to recover her rental.

Relator also wishes to have stricken out of the accounts the items for advertising the property for sale. This objection has less merit than the one upon which we have just passed. In complying with the law’s requirements regarding the disposition of the property, an advertisement was essential. It could not be disposed of without advertisement, and costs unavoidably follow an advertisement.

There is an item on the account of five dollars for printing a brief and another for forty-eight 20-100 dollars, to which no objection is urged. We are informed by the opinion of the Court of Appeal regarding the facts that they were “expenses incurred in the matter of the proceedings inaugurated at the instance of the opponent and for his benefit and advantage, looking to the ejectment of the Salauns from the occupancy of the upper floors of the leased premises, and consequently to be borne by the opponent.” Taking this statement as correct (we have no reason to conclude that it is not, there being no evidence to the contrary), these charges are correct.

The item for insurance, to which relator also objects, amounts to six and 35-100 dollars. The objection is that it is excessive, as it covers insurance for a longer term than should have been allowed. There is not the least evidence before us on the subject. We will not, on the mere allegation of the relator, assume that it is excessive.

The next complaint, in the order in which the complaints are urged, is that the court allowed the fee of attorney for the provisional cyndic in the sum of fifty dollars over lessor’s privilege. This item was rejected by the Court of Appeal, but on rehearing the court reconsidered that part of its decree and held that “since the Supreme Court has had occasion to pass upon the question as to whether attorney’s fees prime the vendor’s privilege as a necessary part of the expenses incurred in selling the property, and that that court has resolved the question in the affirmative, that hence there is error in our former opinion and decree subordinating item 13 on the syndic’s account, being item for attorney’s fees, fifty dollars, to the vendor.” This contention is well founded. In Succession of Aristide Negueloua, 52 Ann. 1495, held to the effect stated.” The court reinstated this item to its original rank on the syndic’s account. The rule should be the same whether a vendor or a lessor be concerned.

Under the Code of 1808, the vendor’s privilege was postponed to the law charges (5 M. 478). Under the new Code, the vendor is entitled to be paid from the proceeds of the property upon which he has the privilege in preference to the privileged claims, except those for affixing seals, making inventory, and others, which may have been necessary to procure the sale of the thing on which the privilege rests. 3256, 3257 C. C. The vendor having permitted the property to be sold by the syndic, was held liable for the syndic’s commission, and only such of those charges as were necessary to effect the sale. Monrose vs. His Creditors, 2 Rob. 280. Further, the question is whether the immovable subject to the vendor’s- privilege must contribute, under Art. 3267 C. C. where the remaining assets are sufficient to pay costs. Charges necessary to procure the sale of the thing, held to include syndic’s commission, sheriff’s, clerk’s, and attorney’s fee. Marsh vs. His Creditors, 11 Ann. 469.

Taking up the ease of Succession of Negueloua, 52 Ann. 1495. The court in that case expressed no difference, as relates to the application of the rule, between the vendor’s and the lessor’s lien. It arrived at the conclusion that if the sheriff’s, clerk’s, appraiser’s,, and notary’s fees, and the commission of the syndic, are to have preference to the extent only that their services were required in matter of selling the property, it followed that the ,. attorney at law whose services were necesary in order to put the court’s action into motion should also be recognized as priming the lessor and vendor only to the extent that the services were necessary in matter of the sale of the property.

While there is not the least disposition to reduce the fee of the attorney, which was reasonable, when taken in connection with the settlement of the entire insolvent proceedings, the court concluded, in order more particularly to accentuate its views, to reduce the fee to an amount adequate strictly for obtaining the order of sale. The papers showing the extent of the services were before the court, and therefore, the amount of the fee is fixed without remanding the case.

We do not. differ with our learned brothers of the Court of Appeals regarding the principal involved. We only reduce the amount to a sum corresponding with our views. Upon leaving the subject, we again state that the fee of the attorney for services rendered to obtain the sale of the property subject to the vendor’s or lessor’s privilege primes the privilege of the vendor or lessor.

Relator avers that the costs and charges should not have amounted to more than forty-five dollars. We have not been favored with an argument on the subject or the least statement, save the general averment in the petition, going to show how it could have been possible to limit-the whole expense to that amount.

The lessor, relator here, claims an amount for four months’ rent. It was reduced to two months preceding the sale at which the opponent bought the property. Before this foreclosure at the instance of the opponent, the property was sold. The contents of the store of the insolvent were bought by the opponent, relator here, and the occupancy, by a relative of the opponent and relator, with her consent. After the sale of the contents of the store and the right of occupancy thereof, and after relator had taken possession, or at any rate, consented to her relative taking possession, there remained no more right in the opponent or relator to claim rental from the estate of the ex-lessee who had surrendered his property.

It is, therefore, ordered, adjudged, and decreed that the fee of attorney be fixed at twenty-five dollars for services of attorney strictly necessary to obtain order to sell the property, and that this amount be secured by priming the lessor’s privilege.

It is further ordered, adjudged, and decreed that the judgment of homologation of the account of the insolvency of Salaun and wife remain unchanged, except as reduced above from fifty dollars to twenty-five dollars. Costs before this court are to be paid by the insolvent estate.

Blanchard, J.

dissents on the authority of 11 Ann. 469; 3 Ann. 704; 4 R. 366; 1 R. 44S, holding that the lessor’s privilege and right of pledge on the proceeds of the movables subject to his claim yields only to funeral charges and the actual expenses of effecting the sale, such as costs of advertisement, sheriff’s fees, eto.


author: Blanchard, J.

text:
    No. 14,217.
    State of Louisiana ex rel. B. and M. Collette, Applying for Habeas Corpus.
    Syllabus.
    1. Construing Article 12 of the Constitution of 1898 and Section 1007 of the Revised Statutes together, it is held it is only where persons convicted of crime shall have been sentenced to death, or to imprisonment at hard labor, that such persons are to be kept in confinement, notwithstanding an appeal taken in their case.
    2. Where the sentence pronounced is not that of death or Imprisonment at hard labor, the convict is entitled, upon application, to be released on bail pending the appeal.
    8. But where an accused party, has been convicted of an offense the sentence for which, yet to be pronounced, may be imprisonment at hard labor, he is not entitled to ball between the time of his conviction and that when sentence Is to be passed.

      4. The term, “ imprisonment at hard labor,” where used In Article 12 of the Constitution and in Section .1007 of the Revised Statutes, means Imprisonment at hard labor in the penitentiary. It does not mean the work on public roads, bridges and other public works authorized by Article 292 of the Constitution.

      A. TS. & O. 8. Livaudais, for Petitioner.

      Walter Guión, Attorney General, and Albert Estopmal, District Attorney, for Frank O. Meyers, Sheriff of the Parish of Plaquemines, Respondent.
   The opinion of the court was delivered by

Blanchard, J.

The relators were convicted of petit larceny and sentenced, under Section 8 of Act No. 124 of 1874, to five months’ imprisonment in the parish jail, and to work during that sentence on the public roads and other public works of the parish — the latter pursuant to the direction of Article 292 of the State Constitution.

From this sentence they prosecuted an appeal to this court and the case is on its docket awaiting determination.

After taking the appeal, they applied to the trial judge for release on bail from confinement pend’ng the final judgment of this court on their appeal.

Being denied bail by the judge a quo, they apply for it here through the pending writ of habeas corpus, and that is the question which this proceeding presents.

Ruling — Section 8 of Act 124 of 1874, after defining what constitutes petit larceny, declares the same to be punishable by imprisonment in the parish prison, or in the penitentiary, at the discretion of the court, for not more than two years.

Nothing is said about hard labor, though the possible confinement in the penitentiary carries with it, as a consequence, that result. Article 12 of the Constitution of 1898 declares that:—

“ All persons shall be bailable by sufficient sureties, unless for capital offenses where the proof is evident or presumption great, or unless after conviction for any crime or offense punishable with death or imprisonment at hard labor.”

This provision is found in all the Constitutions of the State as far back as the year 1852, including the Constitution adopted in that year.

Following the adopt'on of the Constitution of 1852, the Legislature, in 1855, enacted Act No. 121 of that year, entitled “An Act Relative to Criminal Proceedings,” the 32 Section of which is now Section 1007 of the Revised Statutes.

It reads:—

“In all eases where persons convicted of crimes shall be sentenced to death, or to imprisonment at hard labor, it shall be the duty of the sheriff of the court, where the sentence has been pronounced, immediately to take the person convicted into custody, and to keep him confined in the parish jail, notwithstanding any appeal or reprieve, until the final action of the Supreme Court on the appeal, or of the Senate on the reprieve.”

This section of the Act of 1855 was, doubtless, passed in furtherance of Article 104 of the Constitution of 1852 — now Article 12 of the present Constitution of the State.

Construing the two together — the constitutional provision and the statute — we hold it is only where persons convicted of crime shall have been sentenced to death, or to imprisonment at hard labor, that such persons are to be kept in confinement notwithstanding an appeal taken in their ease.

It follows that where the sentence pronounced is not that of death or imprisonment at hard labor, the convict is entitled, upon application, to be released on bail pending the final determination of his case on appeal. See State vs. Anselm, 43 La. Ann. 195; contrast Article 108 of Constitution of 1845 with Article 104 of the Constitution of 1852; see Ex parte Longworth, 7 La. Ann. 248.

But where an accused party has been convicted of an offense the sentence for which, yet to be pronounced, may be imprisonment at hard labor, he is not entitled to bail between the time of his conviction and that when sentence is to be passed upon him. State vs. Vion, 12 La. Ann. 688.

The term “ imprisonment at hard labor,” where used in Article 12 of the Constitution and in Section 1007 of the Eevised Statutes, means imprisonment at hard labor in the penitentiary. It does not mean the work on public roads, bridges and other public works authorized by Article 292 of the Constitution.

It is ordered that the sheriff of the Parish of Plaquemines take goo$ and sufficient surety from the prisoners, Baptiste Collette and Meyer Collette, each in the sum of three hundred dollars, conditioned to abide the judgment of this court on the appeal they have prosecuted from the verdict, and the sentence pronounced against them thereon, as shown by the record of the said appeal, Mo. 14,201 on the docket of th:s court, entitled State of Louisiana vs. Baptiste Collette and Meyer Collette, and to execute the said sentence by undergoing the punishment thereof in the event of the affirmance by this court of the judgment appealed from.

It. is further ordered that upon furnishing such bond and security the prisoners be released from the present custody of the sheriff of the Parish of Plaquemines, to be again taken into custody by him in the event of judgment adverse to them on the pending appeal.

It is further ordered that the bonds so taken by the sheriff be returned to the court a qua.


author: Provosty, J.

text:
    No. 13,841.
    In the Matter of the Minors Frank George Fried and Tobias Fried.
    Syllabus.
    Where a family meeting has recommended a person for appointment as tutor, and while proceedings for the homologation of said family meeting are pending, an application for the holding of a second family meeting to recommend the appointment of a tutor and an order on said application, are null and void.
    APPEAL from the Twenty-eighth Judicial District, Parish of Jefferson — Gaudet, J.

      James B. Rosser, Jr., for Henry Peter, Plaintiff in Buie, Appellant.

      Alfred B. Billings, for John C. Tillotson, Notary Public, Defendant in Buie, Appellee.
   The opinion of the court was delivered by

Provosty, J.

This appeal involves a contest over the appointment of a tutor and of an undertutor to the minors, Frank George Fried and Tobias Fried. Upon the joint petition of the said minors’ sister and of her husband a family meeting was held to recommend a suitable person to be.appointed tutor. At this meeting one of the members of the meeting, Henry Peter, a maternal uncle of the minors, the appellant in the instant case, protested against the holding of the meeting; the ground of his protest being that the meeting was not composed of the relatives of the minors, although there were relatives’ living in the parish, but of mere friends and strangers. Afterwards a petition was filed praying the homologation of the proceedings of the meeting, and praying that the person recommended by the meeting for appointment as tutor be appointed. The said Henry Peter was cited to answer this petition. After trial the proceedings of the meeting were homologated. Thomas Bhodes, the person recommended by the meeting, was appointed tutor, and he qualified.

The meeting was held on the 11th of October, 1900; the petition for homologation was filed on the same day; the case was tried and judgment rendered on the ljth of November, 1900; the tutor qualified on the 23rd of November, 1900. On the 15th of October, four days after the filing of the petition for homologation, the same Henry Peter filed a petition praying that a family meeting be held to recommend suitable persons to be appointed tutor and undertutor to said minors. In this petition no reference was made to the proceedings related above. On this petition the clerk of court, in the absence of the judge, made an "order for the holding of a family meeting as prayed. The clerk directed this order to himself. The meeting thus ordered was duly convoked, but after its convention the said clerk refused to proceed with it, assigning as a ground for his refusal the fact of a meeting having already been held to recommend the tutor, and the further fact of the pendency of proceedings looking to the homologation of the proceedings of said meeting. Thereupon the same Henry Peter, the appellant herein, on the 2nd of November, 1900, took a rule on this clerk to show cause why the holding of said meeting should not be proceeded with. From a judgment dismissing this rule the present appeal is taken.

So long as the proceedings of the first meeting had not been vacated the second meeting was superfluous, and: the proceedings had for the purpose of causing the same to be held were null and void.

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


author: Monroe, J.

text:
    No. 13,790.
    Alcee Foreman et als. vs. Thomas Hinchcliffe et als.
    Syllabus.
    It appears in this ease that the tutor of the plaintiffs, having authority from a competent court, based on the advice of a family meeting, to sell the land in question, of which his wards were the owners, for cash, adjudicated the same to a third party, and recorded the proces verbal thereof, but, at the same time, took a counter-letter from the adjudicatee, showing that he made the purchase for the benefit of the minors and paid nothing. This counter-letter was not recorded; the adjudicatee died; and the land was assessed to his estate; sold for taxes, and purchased by the defendant, who acquired possession, paid taxes, subsequently assessed, and expended some money in improvements. Thereafter, the counter-letter mentioned was recorded, and, later still, this suit was brought, by and on behalf of the original owners, attacking the adjudication by their tutor, and also attacking the tax sale, and claiming from the defendant, as a possessor in bad faith, the rents and revenues of the property from the beginning of his possession.
    1. The adjudication by the tutor is held to be valid in so far as concerns the rights of the purchaser at the tax sale, who acquired without knowledge other than such as was disclosed by the proceedings in court and the public records. But as between the plaintiffs and the original adjudicatee, there having been no sale of the property, the plaintiffs are entitled to stand in the shoes of the latter, or his heirs, for the purposes of the attack upon the tax sale, with the same rights, no greater and no less, than such adjudicatee, or his heirs, would have had if he had purchased the property, in good faith for himself.
    2. The notice to the delinquent tax-payer (in this case, the estate of the adjudicatee, which appeared upon the public records as the owner to whom the property had been assessed) not having been given as required by Article 210 of the Constitution of 1879 and Act 85 of 1888, under which law the sale was made, the sale of the property for taxes and the title thereunder are null. And the action to recover the property is not barred by the prescription of five years, under C. C. 3542, nor by the prescription of three years, under Act No. 105 of 1874.
    3. The defendant was not a possessor in bad faith up to the judicial demand, and Is liable for rents and revenues only from that date. He is entitled to recover the amount paid for the property, with the penalty of twenty per cent., as in case of redemption, and with legal Interest on said amount from the date of payment. And he is also entitled to recover taxes paid prior to the beginning of his possession, with like interest. But taxes paid during his possession are compensated by the revenues which he received and retained. He is also entitled to recover, for Improvements, retained by the owners, to the extent of the enhanced value of the land, as admitted.
    APPEAL from the Eighteenth Judicial District, Parish of Acadia— DeBaillon, J.

      Philip Sidney Pugh and Thomas Rutland Smith, for Plaintiffs, Appellants.

      Thomas H. Lewis and Hamden Story, for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

This is a petitory action brought on behalf of three minors, represented by their undertutor, and a fourth, who have been emancipated by marriage, appears in person for the recovery of 516.87 acres of land, situated in the Parish of Acadia, and valued at about $15,000, which the defendant, Hincheliffe, acquired by purchase at tax sale.

The case, as presented by the record, is as follows, to-wit: The land in question was acquired by the plaintiffs December 23, 1889, as the result of a partition,' between them and their co-heirs, of the estate of their maternal grandfather. In March, 1890, their father, as natural tutor, presented a petition to the District Court, alleging that said property was unproductive, and that it was necessary that it should be sold in order to provide means for the support and education of the owners, and praying for the convocation of a family meeting to advise upon the subject. A family meeting was accordingly held, and it recommended that the tutor be authorized to sell the property at auction for cash, and the proceedings were approved by the undertutor and homologated by the court. Thereafter the tutor advertised the property, and, according to the recitals of the proces verbal, which is in evidence, upon May 3, 1890, adjudicated it to Joseph L. Stutes for $1596.02 cash, and said proces verbal, signed by the tutor, attested bv the mark of the adjudicatee, and duly witnessed, was recorded May 7, 1890. Upon the day of the sale, however, the adjudicatee executed an instrument reading as follows, to-wit:

“This writing, made this 3rd day of May, 1890, witnesseth: That, “Whereas, at the public sale of the property of the minors Aleee, “ Samuel, Emma and Nathan Foreman, made this day by Horace Fore- “ man, natural tutor of said minors, I became the purchaser of all “ the property (real estate) sold. Therefore be it known that all of said “ property was not actually bought for my account, but for the benefit “ of said minors, and I hereby agree to pass a deed of sale or other “ conveyance of said property to whichever purchaser, or other con- “ tractor, the said Horace Foreman shall find for the whole or part of “ the same, and all the proceeds of said sale, conveyance, or other con- “ tract, shall go into the hands of said Horace Foreman for the bene“fit of said minors. his
“(Attested) Joseph L. X Stutes. mark
“Witnesses:
“P. J. Chappuis.
“Edward L. Wells.
“This is to certify that I have not paid anything for the property described on the reverse side hereof.
“(Attested)
his Joseph L. X Stutes. mark
“(Signed) P. J. Chappius.”

This instrument was not recorded until July 29, 1897, but Stutes did not, at the date of the adjudication or at any subsequent period, up to the date of his death, which occurred in April, 1891, attempt to take possession of the property or to disturb the possession of the minors and their tutor. After the death of Stutes the property was assessed for the taxes of 1891, in the name of the “Estate of Joseph L. Stutes,” and in September, 1892, it was sold for said taxes, interest and costs, amounting to $19.15, to Thomas Hinchcliffe, one of the defendants. Within the year following this sale, as we think the evidence shows, though there is some attempt at denial by Hinchcliffe, the tutor called upon that gentleman for the purpose of redeeming the property, and was told that he could do so by paying $100, or in the alternative, that he would be paid $100 to let the matter stand as it was. He declined both propositions, and, applying to the sheriff for assistance, gave that official $50, with which to effect the redemption. The sheriff thereupon called on Hinchcliffe and told him that he had the money for the purpose mentioned, but did not, for some reason, not clearly explained, accomplish that purpose. He therefore returned the money to Foreman. It does not appear that either Foreman or the sheriff made an actual tender of the amount necessary to redeem the property, nor does it appear that Hinchcliffe was, at that time, informed of the existence of the counter letter from Stutes. Upon the other hand it does not appear that he objected to receiving the money, which Foreman and the sheriff were ready to pay him, on the ground that the former had no interest in the matter, and the conclusion that we reach is that he was disposed to hold on to what he naturally considered a profitable investment. Horace Foreman, the father and natural tutor of these plaintiffs, appears to have been lacking in both intelligence and decision of character, and without further effort to clear the title to the property in question, he voluntarily moved off of it in the autumn of 1893; and about that time the defendant, Hinchcliffe, sent a surveyor there to do some leveling and to find the corners, and, perhaps, went himself, after which, in 1895, he leased said property or part of it, and has since then, excercised other rights of ownership.

Such being the situation, the present suit was brought, upon January 31, 1899, as has been stated by three of the minors, Foreman, represented by their undertutor, and by the fourth, who has been emancipated by marriage, acting in his own behalf. The petitioners set up their title by inheritance and partition, and charge that the transaction, purporting to he a sale to Joseph L. Stutes, was a “fraudulent, simulated and empty formality to cover the secret object and purposes” of their tutor and the said Stutes; and that the subsequent assessment of the property, in the name of the estate of said Stutes, was illegal, and the sale thereunder null. And they further allege that said tax sale was null and void for the further reasons:

1. That the least quantity of land necessary to pay the tax was not sold or offered for sale by the sheriff.
2. That the constitutional and other requirements as to notice were not complied with.
3. That the property was not sold for the full amount of the taxes due, with interest and costs.

They allege that Hinchcliffe acquired the property with full knowledge of all the facts, and is a possessor in bad faith, and that he owes them rents and revenues to the amount’of $1500 a year. And they pray for citation of their tutor, of the heirs of Joseph L. Stutes, and of said Hinchcliffe, and for judgment declaring the pretended sale to Stutes to be fraudulent, simulated, null and void, and the tax sale to said Hinchcliffe to be also null and void, recognizing them as owners and restoring them to possession of the property, and condemning Hinchcliffe for rents and revenues. The tutor and the heirs of Stutes accepted service of the petition, but have not defended the suit. The defendant, Hinchcliffe, by way of exception and on the merits, sets up the following defense, to-wit:

1. That the sale to Stutes was made pursuant to the advice of a family meeting, called for a legitimate purpose, and to a judgmenthomologating the same; that the proces verbal, showing the title to have passed to Stutes, was duly recorded, and that Stutes, having died, the property was assessed to his estate, in which name it stood upon the public records for the year 1891; that it was acquired by the defendant at a sale made under such assessment, and that it is incompetent to attack said judicial proceedings collaterally, or to call in question the sufficiency of the tax title acquired upon the faith of those proceedings and of said public records. And the defendant pleads the prescription of five years, under C. C. 3542, and of three years, under Act. No. 105 of 18J4.

The tax title wa3 made out upon a printed form, with blanks filled up here and there, containing a number of general and sweeping assertions of compliance with the law, and, among others, the following, to-wit:

“The tax rolls for said State and parish taxes for the year 1891 having been deposited in the office of the tax collector of said parish for the collection of taxes, and a notice to each delinquent tax payer on said roll having been mailed to each of said delinquents after the second day of January, 1892, as directed by said Act No. 85, and after the expiration of twenty days, counting from the day on which the last of said notices was mailed or delivered, said property on which said taxes were due or delinquent, having been duly listed and advertised for sale at public auction, the necessary publication thereof having been made in the Crowley Signal, a weekly newspaper published in said parish, said advertisement having been made on the 13th day of August, 1892, and in each issue of said paper, each week, commencing with the issue of said date, 13th of August, 1892, and continuing up to and including the issue of September 13, 18'92, that being the third Saturday in said month, and being the day on which said sale was advertised to take place at the door of the court house in the town of Crowley, La., in said parish, and all the formalities required by law, as specified in said Act, in reference to said notices, advertisements and sales having been complied with, and after more than thirty clear days’ advertisement of said sale, as aforesaid, I did, after reading aloud said public advertisement, containing a list and description of the property and the name of the owner to whom assessed, showing taxes due thereon, each tract separately and terms of sale — offer for sale, at public auction, for cash, without appraisement, on said seventeenth day of September, 1892. within the hours prescribed by law for judicial sales, on said day, al the front door of the court house of said parish, said property being included in said advertisement, having been reached in its regular order, as advertised and described, as follows, to-wit:
“Eour hundred and eighty-nine and 56-100 acres of land, and being the N. % and S. W. % of Section 32, Township 10, S. R. 1, W. Twenty-seven and 31-100 acres, lying and being in the Southern portion of Section 29, Township 10, R. 1, W.
“And the tax debtors not having pointed out any particular portion of said property to be offered for the taxes due on the whole of said property, and having received no bids for any portion of said property, I proceeded to offer the whole of said property, for the State and parish taxes, interest and costs, due by the Estate of Joseph L. Stutes, owner thereof, according to the assessment roll on file, when Thomas Hinchcliffe, residing in the town of Crowley, La., being the last and highest bidder, the said property was adjudicated to the said Thomas Iiincheliffe for the price and sum of nineteen and 15-100 dollars, which amount is equal to the sum of all taxes, interest and costs due upon said property, and which I acknowledge to have received, in cash, from said purchaser, in full satisfaction of the following taxes, interest and costs upon said property, to-wit:
State taxes 1891......................................... $6.30
Parish taxes 1891...................................... 9.00
Cost of advertisement and notice........................... 2.00
Sheriff and ex-officio tax collector’s fees..................... 1.50
Eecorder’s fees........................................... 1.25
Total ........................'.......................$19.15”

Notwithstanding the formal declaration to the contrary, as thus contained in the act, the evidence shows, as we think, conclusively, that the notice to the delinquent tax payer, as required by Article 210 of the Constitution of 1879, and by Act No. 85 of 1888, was not given, c mailed. Joseph L. Stutes, up to the moment of his death, lived in the Parish of Lafayette, adjoining the Parish of Acadia, and only nine or ten miles from the parish seat of the latter parish, and his family have continued to live there up to the present time within a half mile of Dusson, where they send to the postoffice nearly every day and receive their mail regularly, and did in 1891 and 1892. But his widow swears that she received no notice of the proposed sale of the property in question, and his father, who was, and is, a member of the family, living in the same house, swears that he never heard of such a notice being received. Moreover, the deputy sheriff, who had charge of the issuing of such notices in the Parish of Acadia, testifies that no such notice was sent, and both he and the then sheriff and ex officio tax collector testify that if any notice had been sent it would have been addressed to the “Estate of Joseph L. Stutes.” And so, notwithstanding the recital of the deed, being part of the printed form which reads, “And having received no bids for any portion of said property sufficient to cover the taxes on the whole,” it appears from the testimony of the tax collector that he did not offer the property otherwise than in globo. As to the amount for which the sale was made, it appears, from the face of the deed, that, by reason of an error in the addition, it was made for one dollar less than the aggregate of the taxes, interest and costs which were dne. We conclude this resume of the facts and pleadings in the case by saying that no actual fraud is shown to have been intended by the father of the plaintiffs, or by Joseph L. Stutes, in the matter of the adjudication of the property in question to the latter. The probability, as it seems to us, is that the arrangement was made in order to enable the tutor to sell the land to better advantage, since it is not unlikely that, at that time, such a body of land, sold at auction, would have brought little or nothing. This does not excuse the irregularity of the course adopted, which was in fraudem legis, but that is a different matter from an attempt to defraud the minors of their property, and we think that the father of the minors and his deceased co-conspirator are entitled to the benefit of the difference. We may further remark that there is no evidence in the record tending to show that the defendant, Hinchcliffe, knew, at the date of his purchase, of the existence of the counter letter, or that he had any reason to suspect that the title to the property was vested in anyone else than the “Estate of Joseph L. Stutes,” which appeared upon the public records to be the owner.

Opinion.

The plaintiffs make no attack, collateral or otherwise, upon any order or decree of the District Court, and, as there is no proof that the adjudicatee at the tax sale was aware that the previous adjudication of the property to Stutes was a mere shadow, without substance, and, as between the parties thereto, conveyed nothing, he is entitled to the benefit of the presumption, arising from the proceedings, orders, and decrees, which led up to that adjudication, that Stutes became the lawful owner of the property, and that it belonged to his estate when it was offered for sale for taxes. And, hence, if the estate of Stutes could not recover in this case, neither can the plaintiffs, who, quoad the defendant, must take the position as they find it. Upon the other hand, it being shown that whatever rights the estate of Stutes appeared to possess in the property in question are, as between that estate and th-‘ plaintiffs, vested in the latter, it does not lie in the mouth of the defendant, Hinchcliffe, to object that the pláintiffs, and not the estate of Stutes, are asserting those rights.

As between the plaintiffs and the defendant, Hinchcliffe, we hold the sale to Stutes to have been a valid one, but as between plaintiffs and Stutes and the heirs of Stutes, we hold it to have been no sale at all; since the counter letter declares that the nominal purchaser was not buying for his own account, “but for the benefit of the minors,’’ who were already the owners of the property. The result is, that, for the purpose of the attack upon the tax title, the plaintiffs stand in the shoes of Stutes, with the rights, no greater and no less, that he, or his heirs, would have had, if he had purchased the property for his own account, and any defense, predicated upon rights acquired by the holder of the title whilst he was in ignorance of the existence of the counter letter, and which would be good as against Stutes or his heirs, would be good as against the plaintiffs.

We pass, then to the tax title, which the defendant admits that Stutes, or his heirs, would have had the right to attack, if he had been, as the defendant was authorized to presume that he was, the real owner of the property, and which right, we hold, upon the case as presented to be vested in the plaintiffs, who are the real owners.

The evidence shows, as we have stated, conclusively, that the notice of the proposed sale of the property for taxes as required by Article 210 of the Constitution of 1879, and by the act of the General Assembly, under which it purports to have been made (Act No. 85 of 1888) was not given to those who appeared upon the face of the records to be the owners and delinquents. It is true that the value of the testimony of the ex-deputy sheriff and collector is materially affected by the fact that it was shown that he had an interest in the result of the litigation, but that value was not entirely destroyed, and, being strongly corroborated by that of the other witnesses, including the sheriff and tax collector himself, we entertain no doubt as to its verity. The article of the Constitution required that the property should be advertised and sold, in the manner provided for judicial sales, and, quoting, “after giving notice to the delinquent in the manner to be provided by law (which shall not be by publication, except in the ease of unknown owner).” The law, applicable to this case, providing the manner in which th:s notice should be given is to be found in Sections 50 and 51 of Act 85 of 1888, and reads as follows, to-wit:

“See. 50. That on the second day of January, 1889, and each subsequent year, or as soon thereafter as possible, the tax collector or sheriff shall address to each tax payer who has not paid all the taxes which have been assessed to him on immovable property a written or printed notice that his taxes on immovable property must be paid within twenty days after the service of (or) mailing of said notice, or that said property will be sold according to law,” etc.
“Sec. 51. That the tax collector or sheriff shall either deliver to each tax payer, in person, or shall leave at his residence or place of business, in the Parish of Orleans, one of said notices; but, in the other parishes, he shall mail to him, by postal card, addressed to the postoffice of said tax payer one of said notices, as required in Section 50 of this act,” etc.

We are of opinion that it is affirmatively established that those provisions of the constitutional and statutory law were not complied with in the matter of the tax sale which is here attacked, and the consequence is that the sale and the title claimed thereunder were, and are absolutely null and void, and that the nullity is of so radical a type as to take the case from within the bar of the prescription of five and three years which the defendant pleads. Breaux vs. Negrotto, 43 Ann. 426; Parish of Concordia vs. Bertron, 46 Ann. 356; Montgomery vs. Land and Lumber Co., Ib. 403; Finlay & Brunswig vs. Peres et als.. 48 Ann. 17; Johnson vs. Martinez, Ib. 52; Hodding et als. vs City, Ib. 982; Hoyle et als. vs. Southern Athletic Club, 50 Ann. 879; Genella vs. Vincent, Ib. 957; Marmion vs. McPeake, 51 Ann. 1635; Kohlman vs. Glaudi, 52 Ann. 703; Welch vs. Augusti, 52 Ann. 1949; Geddes vs. Cunningham, 104 La., 313; Milaudon vs. Gallagher, 104 La. 713. The conclusion thus reached renders it unnecessary to consider the other grounds of attack upon the title set up by the defendant. We do not, however, find in them, or elsewhere, sufficient reason for holding the defendant to be a possessor in bad faith. Neither the failure of the tax collector to give the notice, nor his failure to offer the least quantity of the property, are defects which are patent upon the face of the title. And the error of one dollar, in the addition, to which our attention is called might very well have escaped observation. Under these circumstances, the following language is applicable to the question presented: “Tax titles carry the prima facie weight attached to them by the constitution. We are not disposed to attribute bad faith to a purchaser at a tax sale, unless a very clear basis exists.” Font et als. vs. Land Imp. Co., 47 Ann. 275. See, also, Davenport vs Knox, 35 Ann. 486; Hickman vs. Dawson, Ib. 1087; Giddons vs. Mobley, 37 Ann. 417; Stafford vs. Twitchell, 33 Ann. 520; Hopkins vs. Daunoy, Ib. 1124.

The defendant, Ilinehcliffe, as a possessor in good faith, is liable for rents and revenues from judicial demand. C. C. 503; Nicholson and Wife vs. Tax Collector, 44 Ann. 76. The amount is fixed, by the admission of the parties, at $2.00 per acre, or $1033.74 per annum for all the land.

He asks to be reimbursed:

1. State and parish taxes, paid by him from 1891 to 1899, inclusive, amounting to $190.16, with 20% penalty, and 10% interest thereon from the date at which said taxes were paid, respectively.
2. Increased value given to land by wire fencing, $200.
3. Increased value-given by levees and drains, $450.
4. Barn erected on tract, $600.

So far as the taxes from the date of defendant’s possession are concerned, they are compensated by the revenues, and his possession may, reasonably, be fixed as having begun upon <7anuary 1, 1894. Nicholson and Wife vs. Tax Collector, 44 Ann. 76. The plaintiffs, however, owe the purchase price of the property, being the taxes of 1891, amounting, with penalties paid by the defendant, to $19.15; the taxes of 1882, amounting to $14.40, and the taxes of 1893, amounting to $24.80, together with 20 per cent, penalty on said $19.50 and interest, at the rate of 5 per cent, per annum on said several amounts from the dates of payment. The admission to which we have referredVreads, in part as follows: “It is further admitted that the improvements placed on the land by the defendant have enhanced the value of the land up to $650, $200 being for the enhancement caused by fences, and $450 for the levees and drains. It is admitted, as to the value of the barn claimed by the defendant, that the barn itself has been placed on the property since the institution and service of this suit.”

But there is no evidence in the record as to the cost of the barn, and whilst, even regarded as a possessor in bad faith from the filing of the suit, the defendant is entitled to recover its value, if the plaintiffs elect to retain it, there is no basis of proof upon which judgment can be rendered concerning it. Nor does it appear at what time the other improvements were made.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is further ordered, adjudged and decreed that the plaintiffs, Alcee Foreman, and the minors Samuel, Emma and’Nathan Foreman, herein represented by their undertutor, Joseph Hebert, be and they are hereby recognized as the owners, in indivisión of the land herein sued for and described as as 489.56 acres being the N. % and the S. W. % of Section 32, Township 10, South, Range 1, West; and 27.31 acres, being the southern portion of Section 29, Township 10, South, Range 1, West — all in the Parish of Acadia — and that they he put in possession thereof. And it is further ordered, adjudged and decreed that there be judgment in favor of said plaintiffs and against the defendant, Thomas Hinchcliffe, the present possessor of said land, for rents and revenues thereof at the rate of one thousand and thirty-three dollars and seventy-four cents ($1033.74) per annum from January 31, 1899, until he shall have 'surrendered such possession to the plaintiffs, subject, however, to the following credits, to-wit: The sum of $19.15, with interest thereon at the rate of 5% per annum from September 17, 1892, and with 20% additional; the sum of fourteen dollars and forty cents ($14.40), with interest thereon at the rate of 5% per annum from March 14, 1893; the sum of twenty-four dollars and eighty cents ($24.80) with like interest from March 8, 1894, and the sum of six hundred and fifty dollars ($650) with like interest from judicial demand.

It is further ordered, adjudged and decreed that the rights of the defendant with respect to the claim herein set up for $600, as the value of a barn said to have been built by him on the land in question be reserved.

It is further ordered and decreed that the defendant pay the costs in both courts.

Rehearing refused.


text:
    No. 13,902.
    F. H. Cowden vs. Shreveport Belt Railway Company.
    Syllabus.
    1. Not to look to see If a car Is coming before, attempting to cross the track of an electric car, is negligence such as will preclude recovery for injuries caused by a collision with the car, in the absence of proof that the persons In charge of the car by the use of ordinary diligence might have avoided the collision.
    2. Held in this case as a question of fact that the motorneer was not negligent, and that he could not have avoided the collision by the exercise of ordinary care.
    APPEAL from the First Judicial District Court, Parish of Caddo— Land, Judge.

      Shepherd & Pleasants, for Plaintiff, Appellee.

      Wise & Herndon, for Defendant, Appellant.
   The opinion of; the court was delivered by

Provosty, J.

The plaintiff’s wife and daughter, and another lady and plaintiff’s eighteen-year-old son, were returning home about nine o’clock at night, in an ordinary farm wagon, drawn by two horses at a brisk trot, in the City of Shreveport. They drove down Marshall street and straight on to cross the track of the defendant company on Crockett street, when one of the electric cars of the defendant company struck the wagon between the front and hind wheels, dragged it about thirty feet, upset and broke it, and threw the occupants to the ground, injuring the plaintiff’s wife and daughter.

Plaintiff sues for damages for these injuries, but he cannot recover. It is but another case of people venturing to attempt to cross a street car track without looking to see whether a car is coming. Measurements and experiments as to the reliability of which there can be no question, show that a person standing in the center of Marshall street, thirty-four and one-half feet from the track, on Crockett street, can see one block up Crockett street, and that a person standing on the property line of Crockett street, thirty and one half feet from the track, can see two blocks up Crockett street, and that a person standing on the line of the outer edge of the sidewalk can see four or five blocks up Crockett street. The same experiments show that the view from the outer edge of the sidewalk is unobstructed, and that from the inner edge of the sidewalk, or the property line, it is practically unobstructed. Bearing this in mind, it is impossible to read the testimony of the inmates of the wagon without coming to the conclusion that they attempted to cross the track without looking to see whether a car was coming, and this, under our settled jurisprudence, is contributory negligence, which precludes recovery. Snyder vs. Railroad, 48 Ann. 1; Hoelzel vs. Crescent City Railroad Company, 49 Ann. 1302; Webster vs. N. O. C. & L. R. R., 51 Ann. 299; Farrar vs. R. R. Co., 52 Ann. 410; Dieck vs. Railroad Company, 51 Ann. 265; Posano vs. St. Charles Street Railway, 52 Ann. 245.

(Extract from the testimony of Mrs. Cowden) :—

“Q. — Who was the first to discover the approach of the car ?
“A. — We all discovered it at the same time.
“Q. — Was or not the car lighted up ?
“A. — It was lighted up.
“Q. — -You knew that the railroad cars ran there constantly and that “ it was a dangerous place ?
“A. — We frequently crossed the track at the place and knew it was a “ dangerous place, so checked up.
“Q. — And knowing it was a place of danger, the horses were checked “ before you got on the track, into a walk ?
“A. — Yes, sir.
“Q. — You could not see any car and then you went across?
“A. — Yes, sir.
“Q. — In what gait ?
“A. — We went just in a walk across the track.
“Q. — The car was just a car length away when you started to cross “ the track ?
“A. — I should think so, because you cannot see the car there; it was “ just a short distance.”
(Extract from the testimony of Miss Grace Cowden):—
“Q. — Do you know whether his horses’ heads were near the track or “ on it ?
“A. — The horses’ heads were close to the track or over it when I saw “ the car.”
(Extract from the testimony of Owen Cowden) :—
“Q. — Plow far did you say the car was from you when you first saw “it?
“A. — Ten or fifteen feet.
“Q. — Where was your wagon ?
“A. — The horses heads were on the track.
“Q. — Before the horses’ heads got to the track how far were you from “the car?
“A. — I didn’t see the car at all before they were on the track.”

Plaintiff argues that granting contributory negligence, defendant had time in which to discover the danger and by ordinary care avoid it; and ought to have done so, under penalty of full responsibility, notwithstanding the contributory negligence. Between that doctrine and the total nullification of the doctrine of contributory negligence, the middle ground is so narrow that it seems difficult to occupy it without a straddle; and the query is whether courts had not better take up apothecary’s scales and weigh the respective negligence of the parties, as is done in France and in admiralty, or else firmly apply the broad doctrine of contributory negligence. But this is saA merely in passing, for even under this mild form of nullification of the doctrine of contributory negligence, the defendant in this ease is not responsible.

Given two streets intersecting at right angles, wide sixty-six feet from property line to property line, and forty-two feet from curb to curb, the sidewalks being of twelve feet, and an electric car moving ■in the center of one of the streets at a speed of ten miles an hour, and a wagon coming down the center of the other street at a speed of not less than five miles, and probably much more, an hour, and keeping straight on its course, and the car and wagon meeting at the intersection — evidently no ordinary care of the motorneer can prevent a collision.

It is exceedingly doubtful if extraordinary care of the motorneer could prevent a collision, and by extraordinary care we mean care extraordinary even for a motorneer, whose ordinary care comprehends utmost vigilance. The alertest and nimblest motorneer takes more or less time in which to go through the movements required for putting on the brake and reversing the current, and the best geared electric ear takes more or less time to overcome the momentum imparted by a speed of ten miles an hour; we doubt that these results can be accomplished in five seconds, which is the time required by the wagon to traverse the space between the property line and the track.

Taking the hypothesis propounded in plaintiff’s brief, that the wagon was moving half as fast as the car, and that the ear was moving at a speed of ten miles an hour, and that the distance from the property line to where the horses were when the ear struck the wagon, is forty-seven feet; it took six and one-half seconds for the wagon to pass from behind the corner house and be upon the track. “The brief space of eight seconds,” says the court in the case of Hemingway vs. Railroad Company, 50 Ann. 1087, “was too short a period to render his (the motorneer’s) efforts available.”

But this motorneer did not have full six and one-half seconds. He cannot be supposed to have been looking in the direction of Marshall street; he must be supposed to have devoted his entire attention to Crockett street. The side streets being opposite to each other he could not turn his face in the direction of one without turning his face away from the other; he had therefore to divide his attention between the two; which means that he had to devote his entire attention to the street he was traveling on. In other words, he, unlike the occupants of the wagon, could not keep a sharp lookout at the comer. And even after the horses had fairly emerged from behind the corner building, say when their heads had reached the sidewalk line, he was not bound to divine the intention of the wagon to make straight for the track, and so divining have recourse at once to heroic measures for stopping the car; the natural assumption in such case was that the wagon would stop or turn aside. If a motorneer must, under penalty of negligence, or worse, assume that every vehicle or every pedestrian he sees moving towards the track will keep on the even tenor of their way and acting upon such assumption, must at once put on brake and reverse current — what becomes of rapid transit in cities? Taking these things into consideration, as must be done, it is seen that some deduction must be made from even the six and one-half seconds.

The preponderance of the testimony is that the gong was sounded. The motorneer and the conductor so testify and they are corroborated by a passenger on the car. Also by another witness, but this witness is impeached. Gontra, there is the testimony of three of the occupants of the wagon; also of a lady and of Mr. Hoyer. The testimony of the lady is on its face unsatisfactory. That of the occupants of the wagon amounts to nothing at all, since experiments demonstrate that the noises produced by such a wagon coming down Marshall street at a trot would drown completely the sound of the gong of a car coming down Crockett street. Mr. Hoyer is positive that the gong was not sounded until just before the collision, and we are satified that he is sincere in making the statement; but Mr. Hoyer may well not have noticed the sound until his attention had been attracted to the car by the danger of the collision; besides, standing as he was, as near to the wagon as to the car, the noises of the wagon may have rendered less audible to him the sound of the gong.

The same lady who testified to the gong not having been sounded, testified to the conductor’s having had his face turned toward her house, and not straight ahead of the car. The motorneer and the conductor deny this; and, as stated above, this lady’s testimony is unsatisfactory on its face.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be set aside and that the plaintiff’s suit be dismissed with costs in both courts.

Rehearing refused.