author: Nicholls, C. J.

text:
    No. 13,479.
    Mrs. Mary S. Downing vs. Morgan's Louisiana and Texas Railway and Steamship Company.
    Syllabus.
    1. The parties in charge of a railroad train do not perform their whole duty, under all circumstances, by pursuing the regulation method of giving notice by the ringing of a bell or following out1 any prescribed mode of giving warning. The precautions to be adopted and the steps to be taken in aid of safety increase as the danger of accident and injury is Increased, and their sufficiency is to be guaged by what is called for by the circumstances of each ease.
    2. Where a working train upon a railroad backs down upon a rarely used side track, towards a point in a village street which its people have for years 1 used for crossing the street, simultaneously with the passing of a freight train through the same street along a parallel track, the trainmen on the working train are bound to know of the probability of there being persons detained at or near the side track or in the vicinity of the crossing by reason of the passing of the train on the main track; of the danger of their having- their attention directed to that train; of the great probability of their not bearing or noticing signals which, under ordinary circumstances, might have sufficiently warned persons of the approach of a train on the side track; of the danger of these signals being mistaken, for signals from the train on the main track. They, therefore, should be specially and exceptionally careful to guard against dangers arising from this special situation.
    If they back the train down to the crossing, without giving warnings properly called for by this situation, and in so doing run over and kill a man, stand
      ing at or near the crossing whom they were almost forcedly called upon to see i£ they had been looking in front of them, the railroad company is responsible for damages for their act.
    APPEAL from the Twenty-Fourth Judicial District, Parish of St. Mary — A Hen, J.

      Milling & Sanders and John B. Roberts for Plaintiff, Appellee.

      B. Oaffery & Soil for Defendant, Appellant.
   The opinion of the court was delivered by Nicholls, C. J.

Nicholls, C. J.

This suit is brought by Mrs. Mary S. Downing in her own right and as tutrix of the minors, issue of her marriage with Isaac E. Downing, deceased.

Her demand is based upon allegations that the defendant company owns and operates a railroad which runs through the parish of St. Mary and through the populous village of Berwick in said parish, and runs through its principal street from east to west, dividing the town into that portion lying north of said railroad, and that portion lying south of said railroad; that the principal business of the town is carried on in that portion lying north of the railroad, and that all persons living south of said railroad in said town are compelled to cross the said railroad when going to the p’ostoffice, to the market, and when going to the business portion of said town to transact their ordinary affairs of business; that the railroad company has established a certain crossing for pedestrians over the said railroad in said town, which was accepted and used by the public in a certain way which shall be shown on the trial hereof, and that the same as thus accepted and used was acquiesced in by the said railroad company.

That on the evening of the 25th day of February, 1899, at fi'om six to seven P. M. o’clock, Isaac E. Downing, the husband of the first named petitioner and the father of the other petitioners, the minor children aforesaid, was returning from that portion of the town lying north of the railroad, where he had been on business, to his home in that portion of the town lying south of the railroad, where ho resided with his family; and that while attempting to cross the said railroad at the public crossing and to cross the side tracks used in connection with said railroad, the said Isaac E. Downing was run over by a freight or construction train belonging to the said railroad company, with the result that his body was frightfully torn and mangled; that after suffering intense agony and pain for the period of from four to six hours he was unable to longer bear up against the frightful injuries sustained as aforesaid and succumbed to them and departed this life, leaving a widow and three minor children, petitioners.

That the death of the said Isaac E. Downing was caused by the wanton, gross and criminal negligence of the servants and employees of the said railroad company for this reason, that the employees of the said railroad company backed a freight or construction train, consisting of engine-and cars, into the side track on the northern side of tlie said railroad in said town, without having an employee stationed on the approaching end of said train to give alarm in ease of danger, that the train was thus backed into the side track without ringing the bell to give alarm or displaying any alarm signal or lights, and without any notice whatever of the approach of said train being given, and that the train was thus backed down the incline of the side track and approached noiselessly; and that at the time when the said train was being backed into the side track aforesaid, the entire train was running backwards, and all the employees of the said railroad company on the said train, were at or near the engine, which part of the train was at the greatest distance from the said Downing, and that no one was on or near the approaching end of the said train, which end was the nearest to the said Downing, where they should have been, to give alarm of the approach of the 'said train; and that, at the particular time when, and the place where the said Downing was killed, the said railroad company was running another train, a freight train, over the main line of their track, and the engine of the said train was emitting large quantities of black smoke, which on account of the atmospheric conditions, the blowing of the wind, and the suction created by the rapid approach of the said train, curled above and enveloped the said Isaac E. Downing, to such an extent as to obscure his vision very greatly, all of which prevented the said Isaac E. Downing from crossing over the main line as soon as he reached it, and that exercising due. care and precaution in getting out of the way of the train, running on the main line, thereby, as he supposed, avoiding danger and not in any manner contributing to the negligence of the said employees, he was run over by the train which was approaching him along the side track, and of whose approach on account of the wanton and criminal negligence of the employees of said railroad company, as aforesaid, he had no knowledge and no warning.

That this village is thickly settled, and that the public are continually crossing the said railroad at its said crossing, and that it is neecssary, customary, and the law required said railroad company, to place an employee on each end of the moving train, that was then being backed in, on the side track, to give alarm in cases of danger. That had the requirements of the law been observed, and these precautions, as aforesaid, taken then, the said Isaac E. Downing would not have lost his life, as aforesaid.

That the said Isaac E. Downing was only fifty-four years of age, was a stout and able bodied man, in perfect health, and that there existed no apparent reason why he should not have lived twenty or twenty-five years longer. That he was an engineer by trade, that he made from twelve hundred to fifteen hundred dollars per annum, from which income he supported his family and educated his children, petitioners; and of which support and maintenance and education they were deprived, and are still deprived, for the reasons that the minors being girl children, of the ages above mentioned, are too young to make a living, by their own efforts, and that their mother is unable to support, maintain and educate them, and at the same time to support and maintain herself.

That by the death of the said husband and father, caused as aforesaid, by the wanton and criminal negligence of the servants and employees of the said railroad company, they have suffered great damage, and have been damaged as follows, to-wit:

That they have been damaged in the sum of one hundred and eighlyfive dollars for funeral expenses and doctor’s bills.

Mrs. Mary S. Downing shows that she has been damaged in the sum of seven thousand five hundred dollars in the loss of his support and maintenance, and two thousand five hundred dollars in the loss of his society, love, and tender care, and for the great mental suffering caused her by witnessing his death, accompanied as it was, by such pain and suffering on his part.

The minors aforesaid represented herein by their tutrix aforesaid, have been damaged in the sum of twelve thousand dollars in the loss of the support and maintenance of their father, and of (he education he could and would have given them, had he not been killed, as aforesaid; they show that they have been damaged further in the loss of the society of their father, and in the loss of his influence, care and protection, and in the great grief and mental anguish experienced by them, in seeing their father in the mangled condition aforesaid, writhing in the agonies of death, in the further sum of three thousand dollars.

Further — that they have been damaged jointly in the further sum of five thousand dollars for the intense pain, anguish and mental agony, suffered by the husband and father aforesaid, such pain and anguish and mental agony having been caused by the injuries sustained, as aforesaid, by the wanton and criminal negligence of the servants and employees of the railroad company aforesaid. They aver amicable demand, without avail. They aver that they are entitled to a trial of the issues herein by a jury. ,

The prayer of the petition is for service hereof and citation on the Morgan’s Louisiana and Texas Railroad and Steamship Company, and on final trial, they pray for judgments for the amounts and items of damage as above set forth, aggregating the sum of thirty thousand one hundred and eighty-five dollars, with five per cent, per annum interest thereon from judicial demand until paid, and for all costs. They further pray for a trial of the issues herein by a jury.

Defendant, after pleading an exception of “no cause of action”, subsequently answered. After pleading the general issue it averred that it was solely through the imprudence, negligence and want of ordinary care, on the part of the deceased, that the accident, which is alleged to have occasioned his death, occurred, and further, that if there was negligence on the part of its employees and officers, which was denied, that same was not the proximate cause of said accident, hut that the negligence of deceased, contributing thereto, was the proximate cause thereof, and that, hut for such negligence, on the part of deceased, the accident would not have occurred.

In view of the premises defendant prayed that plaintiff’s demand bo rejected and her suit dismissed at her cost, and for general and equitable relief. ,

The issues were tried by a jury which returned a verdict of ten thousand dollars against the defendant. The court rendered judgment in conformity with the verdict and defendant appealed.

Opinion.

I.

It is conceded that Isaac Downing, the husband of one of the plaintiffs and father of the others, was injured by being run over by a train of cars operated by the defendant or parties for whose acts it is responsible, and that from and by reason of that injury he came to his death.. The disputed, points are the facts and circumstances under which the injury was received. The defendant claims that at the moment of the injury Downing was a trespasser upon its right of way, or at best a licensee; that he was guilty of contributory negligence in standing at the place he did when deielndant’s working train was passing down the side track on the way to its proposed local station for the night; that employees were all in their proper positions at the time; and did everything that was necessary and proper to he done by them as the train approached the crossing, near which the deceased was struck; that the hell was rung and the whistle sounded, and the train was moving' slowly, and that nothing' but Downing’s own imprudence, gross inattention, and want of care, gave rise to the accident.

The injury occurred a little after six o’clock on Saturday, the twenty-fifth of February, 1899, on one of the streets of the village of Berwick City. Downing was taken from under the third car of the train (which was moving), one of his legs was severed from his body and he was otherwise severely hurt. lie died the same night at ten o’clock, having been unconscious except for a very short time after having been taken to his home.

Berwick City is an unincorporated village of about one thousand inhabitants. It lies on the side of Berwick Bay, furthest from New Orleans, and opposite to the town of Morgan City. The defendant company’s railroad, after passing through Morgan City, crosses Berwick Bay by a railroad bridge and passes through, on its way to Patterson-ville, Franklin, New Iberia, and Lafayette, one of the streets of the, village referred to. Prior to the building of the bridge, transportation across the bay was by means of a ferry. The lands adjacent to the ferry, on the Berwick City side, were level, and the tracks of the company on that side approached the ferry landing from Pattersonville or Franklin on a descending grade. When the bridge was built, the situation having' changed, a new raised track had to be constructed by the; side of the other, and cars passing through Berwick City to the bridge from Franklin, on their way to New Orleans, had to pass ihrough the village to the bridge upon an ascending' grade. The old track was nor torn up, hut was permitted to remain to be used as a side track for switching' purposes, or for parking cars and depositing rails and ties down on the level ground next to the old ferry as occasion might require. ,

The two tracks are almost parallel on the village street, one, however1, being considerably higher than the other and the two together taking up almost in its entirety the width of the street. Under what circumstances and conditions the defendant company came to occupy this street with their tracks does not appear. There is no evidence of any expropriation proceedings having ever been taken out, and whether the right of way through the village is through ownership of the fee — under a servitude acquired for a consideration or simply by acquiescence or gratuitous permission — we do not know. We are not informed under whom and from whom the defendant holds or claims, nor from what time their claims or rights date relatively to the right of passage by the public over and through the said street. The new or present main track, as parties stand upon it, looking towards Patterson or Franklin, is the left of the old track — now side track. The latter is referred io throughout as the noith track, and the main line as the south track. The population on the north and south sides of these tráete is almost equally divided.

So far as the evidence in the case goes, the street has been a thoroughfare for the villagers from the time of the creation of the village. It is just as likely that the general public was already in possession of a light of way through and over this village street wheii the defe3idant’s tracks were placed thereon, as, that this right of passage by the public should have arisen subsequently to the occupancy of the street by the defendant’s road.

We cannot assume that the village was only built after the construction of the road. •

On the afternoon of the twenty-fifth of February, 1899, a working train of the defendant company, which was working at or near Pattersonville, left that place to be placed in position for the night at Berwick City; the sleeping cars and cooking cars of the workmen having been left there from about the eleventh of February. The engine of the train was at the Franklin end of the train and it, therefore, backed its way down to Berwick. At about half a mile before reachisrg Berwick it stopped at the point where the side track, which we have referred to, made its extreme westernly connection with the main liire. The switch was opened a3id the trai3r backed in until the whole of it had passed on to the siding and the engine had reached a point from twenty to thirty feet from the main line. There it stopped to enable the brakeman to close the switch. The train then hacked again until it reached a point on the side track, at which certain arrangements had been made, so as to enable trains on that switch to pass again, if desired, on to the main line, or to continue down the side track on to what is called the “spur track” into the streets at Berwick. On this particular occasion the working train passed down into the village on the spur track.

At or near the store of one Henry Jacob, a little frame building on the north side of the street, and facing the side track, there was another switch by moans of which cars on the siding at that point could be made to be run down to the old ferry landing on one of three or four tracks.

The portion of the side track between the first westernly switch (the switch nearest to Franklin) and the next switch to the east (that by means of which a train on the siding could be made to pass again upon the main track), is generally spoken of in the testimony as the “side track” while the portion between the second switch and Jacob’s store is referred to as the “spur track,” and we shall so distinguish them.

It appears that the market and the principal stores and places of business are on the north side of the street on which these tracks are constructed, and that the people of Berwick have constantly, for many years, crossed the tracks going from one side of the village to the other. They could not well do otherwise. We have stated that the tracks occupied almost entirely the width of the street. We should add' that in making the roadways and embankments thereof, the defendant had taken the earth from the street itself, leaving ditches on the right and left of the same. At different intervals these ditches are crossed by bridges to enable parties to pass over on to the tracks and from one side of the street to the other. One of these bridges is in front of the residence of a Mrs. Thompson, who lives upon the north side of the street, facing the side track, and nearer to Franklin or Pattersonville than Jacob’s store. Along the front lines of the properties, between Jacob’s store and Mrs. Thompson’s and between these front lines and the ditch, there is a banquette or sidewalk -which, under the evidence, is not at all in a good condition, and sometimes impassable. The slope of the embankment of the spur track, between Jacob’s and Mrs. Thompson’s, seems to constitute the outer line of the ditch, which is not so wide at J acob’s store as it is nearer to Mrs. Thompson’s. Between the ends of the ties of the spur track at Jacob’s store and the side of the ditch at that point and for some fifty or sixty feet or more west towards Mrs. Thompson’s, there is sufficient space for a person to walk between the ties and the ditch, but at that point or distance the space becomes so narrowed by the widening of the ditch that its outer edge runs practically up to the ends 'of the ties, and a person leaving Jacob’s store and walking by the side and on the outer edge 'of the ties, is forced at this point, in order to proceed further in that direction, to reach the crossing in front of Mrs. Thompson’s, to pass upon and along the spur track itself. The evidence shows that while it is feasible to walk alongside the ties up to what may be called “this turning off” point, yet in point of fact the spur track itself, from in front of Jacob’s up to the Thompson crossing, is the usual route followed, though there is sufficient walking along the edge to have caused a well defined and visible path.

On the afternoon in question, Isaac Downing, who lived on the south side of the street, went to the market on the north side to obtain his family supxilies. Having done so, he started homewards. Going to Jacob’s store he crossed to the side of the spur track, there turned and went westward in the direction of the Thompson crossing, near which, but on the opposite side of the street, his residence was. It is a disputed point whether, when he turned at the track, he immediately went on and walked upon it until he was struck, or whether he walked along the path by the side of the track, up to the “turning off” point and then went inside of the rails of the spur track, or upon the edge of the ties.

Be this as it may, he did not reach the usual point of crossing at Mrs. Thompson’s, for a freight train passing on the main track, on its way to New Orleans, seems to have caused him to stop and await its passing. While so standing, the working train .backed down through the side track, into the spur track, struck and ran over him and injured him, as before stated. This occurred a little after six o’clock in the afternoon. Defendant does not pretend that there was any light upon the end of the caboose as the train backed down upon the spur track, nor that any signal was given to the engineer to stop, either by the conductor or the brakeman, until after Downing was struck. Defendants witnesses the conductor, the engineer, the fireman and the two brakemen upon the train, all admit that they did not know of Downing’s presence at or near the track, and testify that they did not see him until after the accident. Just so soon as it occurred, the conductor signalled the engineer who stopped the train at once as promptly, after receiving notice, as we think he could have done. There is no blame to be attached to the engineer’s conduct on the occasion.

We have, therefore', to look to the conduct of Downing himself and to that of the conductor and the brakemen. Downing is dead and never recovered sufficiently to give his own version as to how the accident occurred. We think it well established that he was taken entirely by surprise by the near approach of the ear; one or two witnesses say that he became aware of its approach just prior to being struck, and made a motion to escape, but we think this very doubtful in view of statements of other witnesses. We do not think that the question as to whether there should have been a light at the rear end of the caboose, as the train backed down, plays any part in the decision of the case.

In the first place we think it was not sufficiently dark, when the accident occurred, to have called for the placing of a light at that hour upon the end of the car, even if it had been upon the main track, as objects were distinctly visible at the time; and, in the next place, the train upon the siding was to be stopped in a few moments for the night, and that particular method of giving a warning was then scarcely required. The only witnesses who speak of Downing’s position at the time of the accident are those of the plaintiffs, who place him standing, at the time, on the edge of the ties outside of the rail, on the north side of the spur track (the rail next to Jacob’s store and the Thompson residence), and facing the main track, his attention evidently directed to the passing freight train. It is easily understood how Downing may not have seen the working train or known of its approach, but it is difficult to understand how neither the conductor, ivho declares that he was in the side door of the caboose, at the right hand, and looking in the direction towards which the train was backing, nor Houghton, the brakeman, who declares that he was on the top of the caboose, left hand side, and also looking in the direction towards which the train was moving, should have failed to see Downing.

There was -certainly enough light to have seen him, and the space within which he wras bound to have been almost forcedly brought him within the line of vision of one or the other of these persons. If either liad declared that he had seen him somewhere in the neighborhood of the track, though not upon it, and that his position, when struck, must have been the result of a sudden unanticipated movement of Downing from the side, we could understand the situation, but that neither Casey nor Houghton should have seen him at all, can be accounted for only by the fact that one or the other, or both, were not looking, at the time, in the proper direction. Neither Casey nor Houghton attempt to explain why they did not see Downing. Plaintiffs’ counsel assert that they did not see for the very simple reason that they were not in their proper places, and not in a position to see, but we do no I think this position maintainable. We think that Casey and Houghton were each, at the time of the accident, in the places wffiieh they respectively testified to having been, at at that time, but the mere fact of their having been at those places, would amount to nothing unless they performed the duties for which they were placed there. There were strong reasons calling for exceptional vigilance on their part. The spur track below Berwick had been used, it is true, as a camping ground for the working train of the defendant since the 11th of February, a portion of the cars being left there all day and all night from that date, while another portion would go out in the morning, return at noon, and again go out to return at dark, but, none the less, it had been for a long while seldom used, so seldom as to have caused its presence to have ceased to give rise to any suspicion of probable danger.

IL

The track had been used both for a crossing and for walking along in order to reach the crossing, so generally and for so long a period, that the fact must necessarily have come to the knowledge of the company, and it could not ignore that fact in the handling and management of its trains. On this particular afternoon, the working train backed down the spur track simultaneously with the passing along opposite to it, and upon the main track, of a heavy freight train, the ringing of whose bell, as it passed along, together with the inevitable noise resulting from its moving, were bound to some extent, at least, to conceal the approach of another train on the other line of track. Of this fact the conductor of the working train must certainly have been aware and he should have been specially and exceptionally careful to guard against the danger arising from this special situation.

He must have known of the likelihood of there being persons detained at and in the vicinity of the' crossings by reason of the passing of the train upon the main track; of the danger of their having their attention diverted to that train; of the great probability of their not having noticed or heard signals, which, under ordinary circumstances, might have sufficiently warned persons of an approaching train on another line, or of these signals being mistaken for those of the freight train. He must have known that the end of-his train, when it commenced moving back through the second switch, was almost within striking distance of any one at or near the crossing, and that their opportunity for discovering the approaching cars and avoiding danger, was very little, and both he and Houghton should have given their fixed and undivided attention to what was just behind their train.

They could not possibly have done this. It is more than probable that, forgetting how much might happen in a few seconds of time, the attention of one or the other was directed for a little while to the freight train, and that short period of inattention or carelessness is responsible for the accident.

It will not do to say that the bell was constantly rung from the time of entering the first switch; that this was sufficient, and that if Downing did not hear it, it was simply his misfortune and that of his family; that the trainmen had nothing to do with the train on the main line. It is a mistake to suppose that by pursuing the regulation method of giving notice by the ringing of a bell, or following out any particular prescribed mode of giving warnings, parties in charge oí a railroad train perform their whole duty under every contingency or on all occasions. The precautions to be adopted and the steps to be taken in aid of safety increase as the danger of accident and injury is increased, and their sufficiency is to be gauged by what is called for by the special circumstances of each case. It is very true that the conductor and brakeman of the working train were under no responsibility for the handling of the train upon the main line, but it does not follow from this that the management of their own train was to be totally independent of what other trains might be doing, or where they might be, particularly those belonging to the same company.

A number of witnesses testify that the fireman of the engine on the spur track rang his bell constantly; a number of others deny that fact. Casey, the conductor, says he heard it from where he was standing in the side door of the caboose, while Houghton, the brakeman who was on the top of the caboose, testified that he did not hear it. We think he did ring it, but that it was probably confounded with the ringing of that of the freight train, or that its noise was drowned and confused by other noises. The whistle of the train was not blown after it entered upon the spur track, or, indeed, after it entered into the switch proper. We think it would have been a proper precautionary measure to have blown it just before or as the train passed on to the spur track. The mere presence of a train of cars above on the switch proper was not calculated to give notice that the train would come upon the spur track. There were trains upon that switch constantly passing on and off the main track, but the going down of a train upon the spur track was exceptional.

The most effective method of avoiding this particular accident would have been for Casey, from the side of the caboose, or Houghton, from the top, to have called to Downing from their respective places. He. might have been forced, for safety, to have jumped, into the ditch, but he would have been saved, by so doing, from bodily injury.

Defendants say it was as much Downing’s duty to have seen the approaching train, and to have gotten out of the way, as it was the duty of the trainmen to have seen him and avoided the accident. They argue the case from the standpoint of Downing’s having been a trespasser on their track, and at best a licensee, and assert that they were under no obligation to keep a lookout for any one at the place he chanced to be. It has, indeed, been sometimes said that trainmen are under no obligation to keep a lookout for trespassers, but that statement is entirely too broad. Parties in charge of a railroad train are under an obligation to keep a lookout all the time, though they are not held to as rigid a lookout for trespassers, where they would not reasonably be expected to be found, as they are where their presence would not only be a possibility, but a probability. Though the contractual relations between carrier and passenger and the relations between employer and employees affect, to some extent, the question of the care which trainmen must exercise, it cannot be contended that they arc absolved from all duty to trespassers prior to the time wlien they are actually discovered at or near the tracks in a position of peril. Our Code, Article 666, declares that “the law imposes upon proprietors various obligations towards one another independent of all agreements.” On the same principle are imposed upon railroad corporations various obligations to the general public, independently of all agreements or special relations.

In Nave vs. A. G. S. R. R. Co., 95 Ala. 294( referred to in Provost vs. Railroad Co., 52 A. 1902), the Supreme Court of Alabama declared that “to run a train at a high rate of speed and without signals of approach where trainmen have reason to believe that there are persons in exposed positions on the track, as over an unguarded crossing in a populous district of a city, or where the public are wont to pass on the track with such frequency and numbers, facts known to those in charge of the train, those in charge will be held to a knowledge of the probable consequences of maintaining great speed, without warnings, so as to impute to them reckless indifference in respect thereto, and render their employees liable for injuries therefrom, notwithstanding there was negligence on the part of the injured and no fault on the part of the servants, after seeing the danger. The doctrine is not based on the idea that they ought sooner to have observed the danger, however, but on the ground that they Imew of its existence, of the presence of people in positions of peril as a matter of fact, without seeing them at all in the particular instance.” ,

It would not be necessary to bring about the liability that the Alabama Court here refers to, that the producing cause of injury should be the running of a train at a high rate of speed, coupled with an utter absence of signals. Though a train might have been running slowly, and though there may have been signals given of some kind, the railroad company should not be relieved of responsibility, under the circumstances, if the signals were manifestly insufficient to have met the requirements of a proper warning; if the cars, even running at a slow rate, would, for want of a proper warning, have inevitably run over and injured the persons at the crossing. The defendant argues this ease from the standpoint of Downing' having- been a trespasser or, at best, a licensee, upon their property. We are not prepared, under the evidence in this case, to say that this argument is justified by the facts, and that Downing, at the time of the accident, occupied quoad the defendant the position of either a trespasser or a licensee.

As matters stand, and as we view them, we are authorized to dispose of the issues before us fro mthe standpoint of equality of rights and reciprocity of obligations, modified and controlled by the course which each party was .called upon to pursue under the exact conditions of the particular case. In this instance the necessity of rapid transit, an elemeirt frequently referred to as calling for subordination in the use of streets or highways by individuals, to their use by railroads, was not present, for the accident took place upon a rarely used side track by the action of a working train which was going into quarters for the night, the work of the day having' been completed. It could well have been held up after its entrance through the first switch until the train upon the main line, with its attendant confusing' noises, had passed by. It is contended that Downing was not justified in “standing” or “loitering” upon either the track or the crossing, and that he should have “stopped, looked and listened,” before passing upon or crossing the track. There is nothing in the record to show that he may not have done this, and the distance between the point where the train passed from the side track to the spur track up to the-point where the accident occurred, was too short, under the circumstances of this case, to have caused a failure to look again while the train was moving over that space, to create a presumption of negligence. It is true that streets and crossings have been declared no proper places for stopping and. loitering, bnt the stopping of Downing was the result of the blocking of his way by one of defendant’s passing trains.

We do not think that the fact that the accident occurred some feet short of a crossing makes any material difference in the situation, from what it would have been had it taken place directly at the crossing. Downing was as plainly visible at the point where he was standing, and injury to him was as easy of avoidance as if he had been directly at the crossing. We do not think the particular place at which he was standing, relatively to the crossing, was the proximate cause of the injury in this case. lie would, unquestionably, have been killed had he been at the crossing. The defendant cannot complain of his having to cross upon the track to reach the crossing from the path along the side of it, as it had cut off further extension to the path by the widening of the ditch at that point, and bringing its side next to the rails up to the outer edge of the ties.

We coincide with the jury in opinion, and the district judge, that the injury to Downing and his resulting death, were due to the fault of the defendant and this conclusion carries with it its legal liability to repair tire damage resulting from it (Civil Code, 2315).

We have, therefore, to consider what that damage is and to whom it is due. The article of the Code, which we have just cited, declares that “every act whatever of man that causes damage to another, obliges him by whose fault it happened, to repair it,” and that “the right of this action shall survive in case of death in favor of the minor children and widow of the deceased, or either of them.”

In this case the deceased lived for several hours and has left surviving him a widow and four minor children (daughters).

In Castello vs. Caffery Refinery, 48 Ann. 330, we had occasion to refer to this surviving action as one “ex delicioIn Article 1934 of the Civil Code it is declared that “although the general rule is that damages are the amount of the loss the creditor has sustained, or the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss or the privation of pecuniary gain to the party; where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality, or taste, or some conveniences or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule. In the assessment of damages under this rule, as well as in cases of oA'esnees, gti&si-offences, and gmsi-contracts, much discretion must be left to the judge or jury, while in other cases they have none, but arc bound to give such damages (under the above rules fixed by preceding clauses of the article) as will fully indemnify the creditor whenever the contract has been broken by the fault, negligence, fraud, or bad faith of the debtor.”

Though, under the provisions of this article, exact indemnity is not to be. made the test of damages due for an offence or gwasi-offences and much has to be left to the discretion of the judge or the jury, they should not act 'arbitrarily in this matter. We think it, therefore, proper that the parties should be permitted to introduce testimony as to “compensatory” damages, not to the end of fixing conclusively thereby the measure of damages, but affording some guide in the ascertainment of what would be a reasonable and judicious exercise of the right of assessment (61 Pacific Rep. 609).

The deceased was a man between fifty-two and fifty-four years of age, exemplary in his habits and in perfect health. Pie was energetic, laborious and prudent, a skilled mechanic earning from twelve to fifteen hundred dollars a year; he was a kind and affectionate husband and father, supplying his wife and children to the full extent of his ability with everything needful for their comfort and good. No tables of mortality were introduced in evidence, but witnesses declared that he could reasonably have looked forward to “reaching a ripe old age.” The wife had and still has some little property of her own, but not near enough to support either herself or the family.

We are of the opinion that the verdict of the jury and the judgment therein rendered are correct, except as to the amount of the damages awarded to the plaintiffs. We are of the opinion that that amount is too large, and that it should be reduced to six thousand five hundred dollars.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is amended by reducing the amount for which judgment is rendered in favor of plaintiffs against defendants, from ten thousand dollars to six thousand five hundred dollars, and that as so amended the judgment be affirmed.

Costs of appeal to be paid by appellees.

Rehearing refused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,521.
    John Paul Hecker vs. Mrs. Elizabeth Brown, Widow of Daniel Holderith.
    Syllabus.
    In a suit to compel the defendant to accept the title offered to her by one who was bound to transfer to her a good title, it appearing that the proceedings which led to sales of minor's property were not conducted in accordance with the requirements of law, in that the proceedings of a family meeting held in the minors’ interest were never homologated, and, in addition, that an attempt was made cm parte to annul proceedings of a date anterior to the holding of the family meeting that pioved of no avail.

      Held: That the order looking to the homologation of the proceedings of the family meeting and to authorize the sale, not having been signed, left tho title in such a state that a third person could not he compelled to accept It when tendered. The order homologating a family meeting is not interlocutory and is not effective without a judgment of the court. It is a final judgment decreeing the disposition to be made of minors’ property and must be signed, particularly when it includes an additional order directing that a sale to effect a partition be made.
    PPEAL from the Civil District Court, Parish of Orleans — King,

      George G. Kronenbergcr and James Boyd Grinage for Plaintiff and Appellant.

      Joseph F. WaUon and John A. Woodville for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

This suit was brought to compel the defendant to accept the title offered. The property was sold by plaintiff to defendant on the 22nd day of May, 1899, for the sum of $4550.00.

Plaintiff's author purchased this property from Mrs. E. C. McGraw and her three minor children, named John Wilson McGraw, Lilian Theresa McGraw, and Michael Edmund McGraw. Mrs. MeGraw’s first husband was Charles Stoll, Sr.

Beginning our review of the facts with a reference to the first title attacked by the defendant, we find that the property, the title to which is tendered to the defendant, was purchased during the existence of the community which was dissolved by the death of the first husband of Mrs. McGraw in 18*76, who left two children, Charles Stoll, Jr., and Philomene Stoll, issue of her marriage with Charles Stoll, Sr. Charles Stoll, Jr., died in 18*78, after the second marriage of his mother, Mrs. E. C. McGraw, to Michael R. McGraw, and after the birth of his brother of the half-blood, John Wilson McGraw; and Philomene Stoll died after the birth of her two brothers of the half-blood, John Wilson McGraw and Michael Edmund McGraw, and her sister of the half-blood, Lilian Theresa McGraw, all issue of the second marriage. We also find that Mrs. E. C. McGraw, survivor in community, after the second marriage, had the community property, of the first marriage adjudicated to her at the price of appraisement in 1881. This adjudication was made after the death of Charles Stoll, Jr., issue of the first bed.

The defendant urges that the adjudication was irregular and illegal, for the reason that the evidence shows that Philomene Stoll and John Wilson McGraw were not represented in these proceedings as the law requires. In these proceedings, it appears that the minor, John Wilson McGraw, having no tutor, was represented by Charles Kirsch, who was appointed undertutor ad hoc, and Mrs. McGraw as tutrix and her husband as co-tutor represented Philomene Stoll. Philomene Stoll died on the third of July, 1882, leaving' her interest in her property to her mother and minor brothers and sisters.

In the chain of title, we come to another transfer as shown by the record. Mrs. McGraw, averring' her ownership in indivisión with her three minor children, John Wilson McGraw, Lilian Theresa McGraw and Michael Edmund McGraw, in March, 1893, filed a petition in court in which she alleged that a partition should be made of the property, and, further, that her husband, Michael McGraw, being the guardian of their three children, and as their father, was authorized to represent them in the proceedings. That under Art. 222 C. C. it was necessary for her to obtain the authorization of the court to proceed against him in that capacity. She prayed for a partition to he made of the property of the succession of Charles Stoll, Jr., and of Philomene Stoll, both deceased; for an inventory to ho made, and a family .meeting to be called to advise regarding the interest of those minors, and touching a compromise to which some reference is made.

Her prayer was granted, and Charles Kirsch was appointed under-tutor ad hoc of the minor, John Wilson McGraw; Jacob'Petz unclertutor ad hoc of the minor, Julian Theresa McGraw, and Paul Granger, undertutor ad hoc of the minor, Michael Edmund McGraw. Michael R. McGraw alleged that ha was guardian of his children, and joined Mrs; McGraw, his wife, in the proceedings. The family meeting was held, and, after referring to the legality of previous proceedings which had been questioned, they recommended a partition, and a sale of the property to that end, either at public or private sale in order to cure all defects in the title.

A motion was made by the parties in interest to have the proceedings of the family meeting homologated. The order accompanying the motion, written for the judge to sign, was never signed. On the margin of the page on which the order was written, only the initials of the judge are written. There is an entry in the minutes of the court setting forth that the family meeting was homologated, but there is no judgment in evidence’ duly signed.

On the 27th day of May, 1893, the parties before named as owners, appeared before Frank Zengel, Notary Public, that is Mrs. Elizabeth O. Kirty, widow by first marriage of Charles Stoll, Sr., and by second marriage of Michael R. McGraw; Michael McGraw appearing as guardian of his minor children, John Wilson, Lilian Theresa, and Michael Edmund McGraw; Jacob Halts, undertutor ad hoc of the minor, Lilian Theresa McGraw; Paul T. Granger, undertutor ad hoc of the minor, Michael Edmund McGraw, and Charles Kirsch, undertutor ad hoc of the minor John Wilson McGraw, and set forth at some length that the title, because of the irregularity of the proceedings before recited, and particularly because the minors had not been represented in the proceedings as the law requires, had been left in doubt, uncertainty and confusion, and with a view of putting an end to the uncertainty and confusion, they advised the annulment and cancellation of the adjudication to Mrs. McGraw and of all the proceedings connected with the adjudication.

On the 7th day of August following, Mrs. McGraw and her minor children, represented as heretofore mentioned, in other acts sold the property to John Joseph Ilecker, who is plaintiff’s vendor. Defendant also questions the regularity of this sale and the proceedings leading to it on-a number of grounds.

The notary, in the deed, declares that a duly certified copy of the judgment is annexed, authorizing the sale to effect a partition, but no document is annexed at this time. We take up, in their inverse order, the points raised for review and decision.

The regularity of the sale by the McGraws to John Joseph Ilecker, dated August 7th, 1893, is the first in the order just stated requiring attention.

Plaintiff points to two orders of the court authorizing it in order to effect a partition, one signed and the other not signed, and as to the latter, if, as we take it, plaintiff contends, it is not signed as required, the want of signature is cured by the proceedings to which wc will refer later. Now as relates to the order of May 4th, 1893, the plaintiff’s insistance is that it is a formal judgment decreeing a partition of the property by licitation. We take it that it was not the intention directly to authorize a partition, for it orders the holding of a family meeting to recommend terms and conditions of the sale in so far as the minors are concerned. The order, without a family meeting, could not be of any effect. The recommendation of a family meeting is a necessary prerequisite. The language of the statute is plain enough. The partition is to be ordered on the advice of a family meeting duly convened. If the family meeting does not choose to recommend the sale, appraise the property, and fix the terms, the order of sale by the judge of an anterior date is without the support the law contemplates. In other'words, it would be to order property to be sold at private sale before any recommendation had been made by a family meeting. Moreover, the proces verbal of the notary sets forth that the family meeting was held under another order dated March 24th, 1893, in which no mention is made of a partition by licitation, save such as the family meeting might recommend. In any event, considered from any point of view, the recommendations of the family meeting must be homologated in order for it to have legal effect. We have noted that it was not regularly homologated. The order of homologation was never signed. The initials to which we have before referred are not the signature to be looked to in proceedings having in view the disposition of minor’s property. Homologation is a confirmation, an approval. “To homologate is to say the like, similiter clicere’’ Without it, the recommendations of a family meeting are wanting in legal effect.

We are equally as convinced that the order of homologation has never been held as an interlocutory order which is effective without the signature of the court. Interlocutory decrees, in the course of judicial proceedings, need not be signed. This does not include orders of the court homologating the proceedings of a family meeting of which a record must be kept. The judgment by the court of original jurisdic-' tion is final and directs in a final manner the steps to be taken to disposo of tlio property. Filial judgment, in tlie order of thing's, cannoi have effect without an order duly signed by the judge.

liavmg arrived at the conclusion that the order authorizing the sale and partition, not having been signed, is an irregularity sufficiently serious to aftcct the title to the property, we will not pass upon the other irregularities urged by the defendant.

For the reasons assigned, the judgment appealed from is affirmed.

Rehearing refused.


author: Watkins, I. Blanchard, J.

text:
    No. 13,450.
    W. S. Benedict et al. vs. John Holmes.
    Syllabus.
    The fee of the attorney of the wife who has successfully prosecuted to judgment a suit for separation from bed and board, and separation of property against licr husband, is a just and valid charge against the community, and may be recovered on a quantum, meruit.

    IN RE W. S. Benedict et al. Applying for Certiorari, or Writ of Review, to the Court of Appeals, Parish of Orleans, State of Louisiana.

      Robert G. Dugue for Petitioners.

      Parkemon & Tobin for Respondent.
    On the application for rehearing by Blanchard, J.
   The opinion of the court was delivered by

Watkins, I.

The object of the suit in the respondent court was a recovery by the plaintiffs of the sum of two thousand dollars from the defendant, as the amount of their attorneys fees incurred by his wife in a suit for separation from bed and board and of property against him, and wherein she obtained a final judgment of this court on both of her demands; but the result of that suit was adverse to their claims and pretentions, the same having been disallowed by the respondent court on the ground that the wife had not the power, or legal right, to charge the legal community between her and her husband with the fees of counsel rendered in her behalf, and against his will as head and master of the community, but she is bound separately therefor.

It appears that in 1896, Mrs. Avaline Ober Holmes, wife, filed.suit against her husband, John Holmes, for a separation from bed and board, and demanded a dissolution of the community.

The defendant answered, denying the plaintiff’s allegations and demanded that her suit be dismissed; and by way of reconvention, he demanded a separation from bed and board from his wife and a liquidation and settlement of the community.

On the trial in the District Court, the demands of the plaintiff were rejected and those of the defendant sustained; but on the plaintiff’s appeal her demands were sustained and those of defendant rejected at his cost.

After that decree became final, John Holmes and his wife made a compromise and extra-judicial liquidation and settlement of the judgment and of the community, by his malting a payment to her of the sum of $6000.00, in consideration of which she waived, renounced and abandoned all of her interest in the community and in said judgment; and she subsequently removed from the State without the knowledge of the relators, and without making any payment for their services.

Thereupon the plaintiffs instituted their suit against the defendant, John Holmes, husband, as head and master of the community, for the professional services they had rendered his wife; and on the trial in the District Court their demands were rejected and the respondent court affirmed its judgment.

The question for us to determine is whether the judgment thus rendered is in violation of law, and the settled jurisprudence of this court; or, in other words, is the fee of the wife’s counsel in a suit successfully prosecuted against her husband for a separation from bed and board and the liquidation of the community, a legal charge against the community.

The respondent court relied, exclusively, upon Tucker vs. Carlin, 14 Ann. J44, as its authority for the rejection of the plaintiff’s demands.

In' that ease, the plaintiff brought suit against husband and wife, jointly, for the recovery of his fee as attorney for the wife in her suit against the husband for a divorce, and in the District Court he obtained judgment against both; but on the husband’s appeal that judgment was reversed. - ■

The contention of the appellant was “that as the services were rendered to the wife alone, they ought to be paid for out of her separate estate, and not out of the community,” whilst the appellee “contended that the debt was contracted during the existence of the community, and is a debt of the community.”

The court held (1) that inasmuch as the law has given the husband, as head and master of the community, “absolute control over the debts and ■ contracts of the community, and no one can pretend to a debe against the community * * * in virtue of contract, without his consent,” the wife was without power to enter into a contract with the attorney for compensation for his professional services, and bind the community therefor; (2) that the plaintiff, as attorney of the wife, could not claim under a gwasi-contract, on the ground that she had, in instituting a divorce suit against her husband, so managed the business of the community as a negotiorum gestor as it had been benefited thereby, “because she acted directly against his will and intended to injure and destroy the community.”

But in the original case of Trowbridge vs. Carlin, 12 Ann. 882, the court found both parties in fault, and rejected the respective demands of both parties for a divorce.

Under such a state of facts, it may well be that the wife did not bind the community by her contract with her attorney; and that she could not make claim against the community for his services on the score that it had been benefited thereby — her suit having failed of its purpose, and the community having remained intact; and the engagement having been made against the husband’s will.

But relators’ counsel contend that no such state of facts exists in the instant case, but an altogether different one. That the wife brought suit for a separation, and her husband resisted her demand and claimed a judgment of separation against her.

That the district judge rejected her demand and sustained his; but on the wife’s appeal the terms of the,decree were reversed, and judgment was pronounced in favor of the wife and against the husband, decreeing a separation and a dissolution of the community,

That the community having been judicially terminated through the instrumentality of her suit, the fees of her counsel are a legitimate charge against the community and must be liquidated by the husband ■out of its assets.

That proposition is strengthened by the fact that both the husband and wife made reciprocal demands for a separation, and dissolution of the community; and each, in turn, had obtained a judgment to that effect in his and her favor, respectively.

Both the husband and wife are conclusively bound by their judicial admissions, to the effect that a separation and dissolution of community were both desirable and necessary.

ITad the wife withdrawn her demand after that of the husband had been filed, or had she prosecuted no appeal, there would have still existed a valid judgment of separation and dissolution of community at the husband’s request against the wife under an authorization of the court.

Such being the case, it cannot be reasonably contended that the expense of the proceedings should be borne by the wife out of her separate estate.

It is quite true that the wife is without power to contract debts that will bind the community during its existence; and it is for that cause she does not become personally bound for community debts which have been contracted by the husband — she being permitted to make a renunciation after the dissolution of the community.

Hence, the court held in Tucker vs. Carlin, that the husband was not bound either contractually or quasi-contractually, for the payment of the wife’s attorney’s fees in a divorce suit she had unsuccessfully prosecuted against him — the community not having been dissolved.

The wife has a recognized legal right to institute against her husband a suit for divorce or separation of property upon grounds that are specified in the law; but if she cannot charge her attorney’s fees and cost against the assets of the community in the event she obtains a decree of separation and dissolution, the right is practically a barren one, if she possesses no separate property.

If the husband’s course of conduct be such as to justify the dissolution of the marriage and the dissolution of the community, on the petition of the wife, it would seem that, in such case, the cost and attorney’s fees incident thereto, ought to go against the community assets in the course of its liquidation, or against the husband personally if he takes the same to himself.

In the instant case, the husband paid his wife, subsequent to the rendition of judgment, $6,000.00 in compromise and full satisfaction of her community half interest; but the proof shows that her interest was really much larger than the sum she received.

But in any event, no extra-judicial settlement could conclude or bar the rights of community creditors, especially when, as in this case, the husband must have known of the services of his wife’s attorneys.

In Tucker vs. Carlin, swpra, the court gave the following illustration of the view they entertained, thus:

“Again: the fees of the attorney may be assimilated to the costs in this class of cases, which, where the wife fails in her action, are generally decreed against her and not against the community.
* * -* * * * *
“If she can be made responsible for the costs, in like manner she may be responsible for the services of her attorney rendered without contract. For the one is a debt contracted during the existence of the community as well as the other.”'

Accepting the theory of the court in that case, in which the wife was unsuccessful, and for that reason she could not charge the- fees of her attorney against the community for the reason that she could not tax it with the costs of court, and the necessary legal consequence would appear to be that, in ease she is successful she can charge the community with her attorney’s fees as she can tax it with costs.

Hence, the argument that was employed by the court in support of its rejection of the plaintiffs demand in that case, comes to the support of the plaintiff’s demand in the instant case.

A similar view was entertained by this court in Suberville vs. Adams, 47 Ann. 70, from which the following is extracted, viz:

“In reversing the judgment in defendant’s favor on her recon ventional demand, our judgment taxed her with the costs of appeal, as a matter of course, just as a similar decree would have taxed any other litigant' against whom a judgment was amended or reversed. * * * It is quite plain that the indebtedness represented by the costs of suit is that of the matrimonial community existing between the plaintiff and the defendant and cannot be adjusted between them until it is finally liquidated and settled.”

And the parallel instituted by the court in Tucker vs. Carlin is further exemplified in Delpit vs. Young, 52 Ann. 1071, m which our opinion makes this observation, viz:

“The judgment in the original case was against the plaintiffs, rejecting the husband’s demands, for the nullity of the marriage. It, therefore, continues to exist, and during the existence of the marriage, the wife has no right of action against the husband to recover a debt.
“Presumably, a community of acquets and gains exists between them. That is the necessary result of the marriage — -unless a contrary stipulation had been made by a marriage contract. In this situation of affairs, the defendant has no claim that she can assert in a court of-justice against her husband as plaintiff in the suit for the fees incurred in the employment of counsel in her defence.”

Notwithstanding the husband had failed in his suit to annul the marriage, against the consent of his wife, yet the court held that the wife had no claim for the recovery of her attorney’s fees, because the community had not been dissolved, and she could not appear in court against it.

We considered the fact of the continued existence of the community as conclusive against the assertion of the wife’s right in her own name; but we did not hold, or intend to decide, that the wife’s attorneys did not have a right of action against the husband as head and master of the community upon a quantum meruit, if not on a contract.

In Breaux, Fenner and Hall vs. Francke, 30 Ann. 336, our predecessors held that the fee due the plaintiffs as lawyers for having successfully defended a wife in a suif prosecuted by her husband for her interdiction was a valid debt of the community.

The court, in the course of their opinion, said;

“It may be said that, without the husband’s consent, no debt can be contracted against the community, and that inasmuch as plaintiffs have acted, not only without his consent, but in direct opposition to the husband himself, to his wishes and demands, the community cannot be held liable for the fee. This is the general rule; but in the interdiction suit, the husband’s action rendered indispensable the services of counsel, and if the wife had not selected those by whom she was represented, it would have been the duty of the judge to have named for that purpose,” etc.

Thereupon the court gave judgment for the attorneys’ fees of the wife, in favor of 7ler attorneys, upon a quantum meruit, notwithstanding the community was not dissolved.

In the Interdiction of Beech, 45 Ann. 194, the principle announced in the Breaux case was approved and applied to a case similar to the instant one as follows, viz:

“In the case of Breaux, Fenner and Hall vs. Francke, 30 Ann. 336, this court held that the fees due the lawyers for successfully defending a wife in a suit for her interdiction brought by her husband, is due by the community.
“For similar reason the community, primarily, is responsible for the fees of an attorney who prosecutes a suit and obtains a judgment of interdiction.”

The authority of that decision was re-announced and affirmed very recently, in Succession of Bothick, 52 Ann. 1863, in which the Chief Justice, speaking for the court, approvingly said:

“Counsel announces, as an invariable rule, that the costs of the proceedings taken for the interdiction during marriage of a husband, which terminate in a judgment for the plaintiff, is a debt due by the separate estate of the husband, and hé cites Article 387 of the Civil Code in support of that position; but this court held otherwise in Interdiction of Leech, 45 Ann. 197.
“The rule, subject to special exceptions and modifications is, that these costs are a community debt. They accrue during the marriage, and fall under letter of Article 2403 of the Civil Code. The husband being head and master of the community, it is specially to the interest of the community that a personal administration which might ruin it, should be brought to an end. The law-maker, in enacting Art. 397, O. 0., were evidently providing for cases of interdiction generally, and were not considering the question as between the separate estates of the husband and the community. Exceptional cases have frequently to be read out of and excluded from broadly written law, because if so enacted by the legislators, it was, as Marcade says, ‘evidemment parceque ils se sont preoccupes des cas les plus ordinaires.’ ”

In our opinion, the fees of the attorney of the wife who has successfully prosecuted against her husband a suit for separation from bed and board, and a separation of property, has a right of action against the latter as head and master of the community for the payment of his fee, as it constitutes a charge against the community, and is payable from its assets.

On the foregoing authorities, we have reached the conclusion that the relators have made their claim clear, and that the judgment of the respondent court is erroneous.

But, we think the amount demanded is excessive and should be reduced to the sum of one thousand dollars, and that only half of that sum be taxed against the husband, and payable by Him. See R. C. O. 1371; 2409.

It is, therefore, ordered and decreed that the judgment rendered against relators be annulled and reversed, and also the judgment of the District Court which it affirms; and it is further ordered and decreed that the relators, as plaintiffs, do have and recover of and from the defendant, John Holmes, the sum of five hundred dollars ($500.00), with legal interest from judicial demand and all costs.

On Application for Rehearing.

Blanchard, J.

Defendant files an application for rehearing and in an earnest argument, submitted by brief, his counsel combats the view entertained by the court, which resulted in holding that where, as in this case, a wife successfully prosecutes against her husband a suit for separation from bed and board and of property (in which suit he, by reconventional demand, prayed similar judgment against her), the fees of her counsel are a charge against the community.

We have given the case careful reconsideration without being- able to arrive at a conclusion different from that announced, and, accordingly, the application for rehearing is refused.

Plaintiffs, on the same day, filed a petition for amendment of the judgment heretofore handed down.

They do not complain of the amount of one thousand dollars as a proper compensation to them for their services as the wife’s attorneys in the suit instituted for separation, but do complain of the opinion and decree in so far as the same held that only one-half of amount qf the fee is recoverable as against the defendant.

Their position is that the court having decided the debt was a claim against the community, it stands on the same footing as any other debt of the community, and the husband, who was its head and master, is bound for the whole, regardless of any settlement he may have made with his wife, subject only to his recourse against her, if he have any, for the recovery of one-half.

They further contend that it is evident from a reading of the act of settlement and compromise between this husband and wife, found in the record, that he intended to give, and Mrs. Holmes to receive, the six thousand dollars (mentioned in that act) net for her share of the community.

It is now considered that the first of these contentions is sound in law and that the second is supported, at least, by the strongest probability. But the first suffices.

The former decree of the court should be amended so as to charge the defendant with the payment of the whole of the one thousand dollars.

It is, accordingly, ordered and decreed that plaintiffs do have and recover of the defendant the sum of one thousand dollars, with legal interest from judicial demand, and all costs — with reservation to him of recourse, if any he have, against Mrs. Avaline O. Holmes for recovery of the one-half part thereof.

Breaux, J., dissents in this case, for reasons assigned in a separate opinion.


author: Monroe, J.

text:
    No. 13,466.
    John B. Warner vs. New Orleans and Carrollton Railroad Company.
    Syllabus.
    Actions for damages resulting from offences or awasi-offences are prescribed by one year.
    APPEAL from the Civil District Court, Parish of Orleans— Bilis, J.

      Benjamin Bice Forman for Mrs. John B. Warner, Plaintiff, Appellant.

      Dari & Kernan for Defendant, Appellee.

      Charles H. Brownlee for Mrs. Ida Kinkaid and Robert Kinkaid, Intervening and Appellants.
   The opinion of the court was delivered by

Monroe, J.

This is an action in damages for personal injuries ■alleged to have been sustained by the wife of the titular plaintiff through the negligence of the defendant’s servants. The petition was filed December 21, 1895, and alleges that on or about the 26th of December, 1894, the “petitioner’s wife desired to get on the car of said “ company on Jackson street, at the corner of Constance, and gave the “ signal to stop the car; that she put her foot 'on the step and was about “ to step on the car, when the conductor negligently gave the signal for “ the ear. to go on, * * * and he did not allow her a reasonable “ time to get on, but caused the car to move forward rapidly while she “ had one foot on the step and the other on the ground, whereby she was “ thrown with great violence to the ground, and suffered grievous bodily “ injuries,” etc.

To this, upon December 31, 1895, defendant excepted, on the ground that the allegations were vague and insufficient. On December 15, 1898, the plaintiff moved to fix this exception for trial, and it was, accordingly, fixed, tried, and maintained, January 6, 1899, in so far as-to direct the amendment of the petition. Thereafter, the petition having been amended, the defendant filed a plea of prescription and a general denial. There was a trial upon the merits, and judgment for defendant, and plaintiff has appealed. In the meanwhile, and after the filing- of the amended petition, the original plaintiff died, and his wife was substituted in his stead, and thereupon a question was raised as to her right to stand in judgment, and the daughter (by first marriage) and heir of the husband made herself a party to the suit, joining the plaintiff in her demand. A decision of the question which is thus presented by the change of parties is, however, waived, and the case will be otherwise determined.

According to the theory of the plaintiff and the tendency of the evidence in support of the claim, Mrs. Warner, who was a very heavy woman, with one foot sprained and the other with a bone broken, and who was then about sixty-five years of age, some time in December, and before Christmas, 1894, hailed a ear on Jackson avenue, with a view to riding to St. Charles avenue and Philip street. She states, and she is the only witness to the accident, that as she attempted to board the car it moved suddenly and that she was thrown to the ground; that a gentleman assisted her to her feet and that she got into the next car, and, without further aid, though with some difficulty, having some little distance to walk, reached home. Thereafter, she appears to have gone on with her music teaching- and other occupations as usual. So much so that her friend, Mrs. Bruff, who visited her on Christmas, neither heard, nor found, anything unusual as to her condition. On the 28th of December, however, Mrs. Warner had a slight stroke of paralysis with which she was laid up for a month or two. During that time, she was visited frequently by her pastor, but he testifies that he heard nothing to the effect that the paralysis was attributable to a fall from a car. She was also visited by a physician, but he was not called as a witness, and we understand from her testimony that he was not told that she had had such a fall.

It appears, from her testimony and from that of Mrs. Bruff and Mrs. Brooke (the latter being also a friend of, and a witness for, Mrs. Warner), that the car accident happened before the middle of December, 1894, and certainly did not happen on the 26th of that month as stated in the petition. This testimony, considered in connection with that of one or two physicians who were examined as experts, and considered in connection with the fact that the physician who attended Mrs. Warner was not called or examined at all, in our opinion, leaves the question very much at large as to whether the accident described in the petition caused the paralysis or had anything to do with it. Be that as it may, neither Mr. Warner nor his wife made any complaint of the matter at the time nor until Mr. Warner, having met with an accident himself, consulted counsel upon the subject of bringing suit for damages, when it was decided to make the accident to his wife the basis of such a suit. This suit was not filed, however, until December 21, 1895, whereas, the accident, we are satisfied from the evidence, as was the judge a quo, occurred at some time anterior to December 21, 1894, or more than twelve months before such filing. The prescription of one year was, therefore, well pleaded and properly sustained.

Judgment affirmed.


author: Niciiolls, C. J.

text:
    No. 13,875.
    State ex rel. Charles A. Green vs. Hon. Charles V. Porter, Judge et als.
    Syllabus.
    The Supreme Court will not, under its supervisory powers, review in a crimina’ case the correctness of the conclusions of the judges as to the admissibility and force and effect of evidence.

      ^ PPLICÁTION for Writs of Certiorari and Prohibition.

      Betties S Teer for Relator.
   The opinion of the court was delivered by

Niciiolls, C. J.

Relator sets out in his application to this court for writs of prohibition and certiorari, that he was indicted and convicted in the Parish of Red River for having violated Section No. 910 of the Revised Statutes; that he applied for a new trial and filed a motion in arrest of judgment, relief as to both of which was refused; that he had been sentenced to pay a fine of one hundred and fifty dollars and in default of payment to an imprisonment of sixty days. That his case is unappealable.

lie avers that he was convicted, notwithstanding there was no evidence on which to found the verdict of guilty. lie recites what he claims to have been the testimony adduced on his trial, and urges that the jury and court in holding him guilty of violating the statute for and on account of the acts done by him, as shown by that evidence, misconstrued the law and misapplied the facts.

Tie sets out in his petition what he avers to be a copy of the indictment. lie avers that a great wrong has been done him and that he Is entitled to a writ of prohibition and certiorari to be issued under the supervisory powers of the Supreme Court, that it might pass upon the evidence adduced at the trial, to the end that it might examine if the district judge had not gone beyond the evidence in applying the law and erroneously construing the law. Iiis prayer is that the district judge, the district attorney, and the district clerk, be commanded to take no further action in the ease, and that the record of the case, with a statement of facts, be sent up so that the Supreme Court may x>ass on the regularity, legality and validity of the judgment of conviction; that upon a trial of the issue the court declare that relator was not guilty, for the reason that there-was no sale made by him in the Parish of Red River, and that his conviction of the offence charged against him be declared illegal and void and that he be dismissed from further custody of the court, and that on final trial the writ of certiorari be sustained.

Relator urges no complaint against the legality of any of the proceedings in the ease; he does not pretend that the court did not have jurisdiction of the premises; he does not set forth any act of omission or of commission by the court striking the verdict or the judgment of court with nullity; he makes no showing whatever as to the insufficiency of the indictment in law. What he seeks is to have this court “review” the case merely as to the correctness of the ruling of the District Court, and the conclusions that the court, upon the admissibility and sufficiency of the evidence, adduced. We cannot do this.

Our power of “review” is derived from Article 101 of the Constitution and is limited to judgments rendered on appeal by the Court of Appeals, and not to judgments rendered by District Courts in the exercise of their original jurisdiction. We do not understand relator to predicate his application upon that article of the Constitution, but upon the supervisory powers vested ill this court by Article 85. Our authority, under the latter article is a “supervisory” not a “revising” power; misapplication of law to any given state of facts is not excess of jurisdiction, but error. (45 Pac. Rep. 104).

Wo had occasion in State ex rel. Satcho vs. Judge, 49 Ann. 231, and State ex rel. Kockritz vs. Justice of the Peace, 49 Ann. 1221, to discuss the powers of this court under our supervisory jurisdiction in respect to criminal proceedings. To the opinions in those cases -we refer. The application made herein is refused.


author: Monroe, T.

text:
    No. 13,699.
    State of Louisiana vs. Donat Breaux, et als.
    Syllabus.
    'i. When the transcript shows that the trial court duly opened on a certain day ; that the grand jury, in open court, reported a true bill for murder, and that the bill was filed as of that date by the cleric, the time at which the grand jury acted is sufficiently shown.
    2. The ruling of the trial judge, In rejecting a juror who is challenged for cause by the State, affords, of Itself, no legal ground of complaint to the accused.
    3. In the trial of several accused, jointly, the peremptory challenges of the defence cannot be said to be exhausted as long as any of such challenges are left to one or more of the accused.
    4. Where several persons are charged with murder in the same indictment, and are on trial at the same time, one of them cannot be a witness on behalf of his co-defendants, and that he should be wanted to testify to something forming part of the res yestae does not affect the question. The testimony may be admissible, but the witness remains incompetent.
    5. A doctor of medicine may testify, as an expert, as to the manner in which, and the character of instrument by which, a wound might have been in flicted.
    APPEAL from.the Eighteenth Judicial District, Parish of Acadia — DeBaillon, J.

      Waller Guión, Attorney General, and William Campbell, District Attorney, (Lewis Guión of Counsel), for Plaintiff, Appellee.

      Veazie & Pavy, (Gustave A. Breaux of Counsel), for Defendants, Appellants.
   The opinion of the court was delivered by

Monroe, T.

Donat Breaux, Emile Breaux, and Louis Breaux, having been indicted and tried together for murder, were convicted of manslaughter and sentenced to twenty years’ imprisonment at hard labor. They have appealed and present to this court a record containing a motion to quash the indictment and several bills of exception, which will be considered seriatim,.

The motion to quash is based upon the grounds that “no date is fixed, showing the time when the grand jury found the said bill,” and, “because said indictment does not charge that the said crime was against the peace and dignity of the State.”

The motion is without merit. The transcript shows that the court met upon October 6th, 1900, and that the grand jury came into open court and then and there reported a true bill for murder against the accused, and that the bill was filed as of that date, by the clerk. The bill, itself, concludes with the formula, “contrary to the form of the statute, in such case made and provided, and against the peace and dignity of the State of Louisiana.”

1. Bill of exceptions Ho. 1 was taken to the action of the court in sustaining the peremptory challenge, by the State, of a witness who stated on his voir dire that he “would not care to decide against the defendants”. The law gives to the accused the right to object to an obnoxious juror, but does not give him the right of selection. lienee, the rejection of a juror by the judge, even if erroneous, of itself, affords no legal .ground of complaint. It appears, moreover, from the recital' in the bill, that when the jury was completed, the accused still had fourteen challenges to their credit, and the fact that one of them had exhausted twelve challenges does not go to show that he was obliged to accept an obnoxious juror, since he and his co-defendants were tried together and were represented by the same counsel. State vs. Shields, 33 Ann. 1410; State vs. Creach, 38 Ann. 480; State vs. Marceaux, et als., 50 Ann. 1139; State vs. Ford ei als., 37 Ann. 443.

2. Bill of exceptions Ho. 2 — was taken to the ruling of the trial judge to the effect that Donat BreaUlx, one of the defendants who had gone on' the stand as a witness, “could give facts touching his own interest, but that he could give none touching his co-defendants, he having no right to testify in behalf of his co-defendants”; to which the objection was made that it was competent to prove by the witness whatever occurred as part of the res gestae, whether it affected the other co-defendants or not. The statement of the judge makes it clear that the witness was allowed to prove, as a witness in his own behalf, whatever was relevant to the case, but that he was not allowed to testify as a witness on behalf of his co-defendants. This ruling was in accord with that approved by this court in the case of State vs. Angel, 52 Ann. 485. In so far as the principle involved is concerned, it makes no difference that it was proposed that the witness should testify to something which, it is said, was part of the res gestae. The testimony was not excluded, as to the witness himself, and was not excluded as to the other defendants because of any quality of its own, but because the witness being on trial with two other persons charged with crime in the same indictment, was incompetent to testify on their behalf.

3. Bill of exceptions No. 3i Counsel for defendants have devoted their argument exclusively to the questions as presented by this bill, which was reserved to the ruling- of the trial judge in refusing to permit the defendant, Donat Breaux, who was on the stand as a witness, to answer the following questions, to-wit:

“Q. Did you see the deceased, Francois Richard, there at the difficulty that day, just before the difficulty took place, and if yea, please state what was his conduct and demeanor on that occasion V’ “Question overruled, and testimony excluded.” The bill of exceptions recites that it was proposed to elicit the testimony suggested by the question for the purpose of showing, “(1) that the defendant had a lawful purpose in going- up to the spot of the alleged fatal encounter, viz: that he wen t “ there to stop his brother, Ternile, who was engaged in a difficulty with “ the deceased; and (2) to show that he was not there to aid or assist his “brother, Ternile, in an attack upon the deceased; and (3) to show all “ the facts and circumstances constituting the res gestae."

The judge a quo gives the following as his reasons for the ruling complained of, to-wit: “The defendant, Donat Breaux, was allowed to tos- “ tify on his own behalf, and his testimony was restricted to him, and “ not allowed in behalf of, or against, his co-defendants. See other bill “ on same subject. The questions and answers propounded on appended “ statement prepared by the clerk were not read to the jury, as they “were excluded.” The questions thus referred to are given above, but, as it appears, the. answers were excluded.

For tlio reasons which have already been stated, the ruling of :he judge was correct in so far as it was intended to exclude, and had the effect of excluding, testimony given by the witness as testimony on behalf of his co-defendants. But, from the recital of the bill, it appears that the defendant, Donat Breaux, was seeking to give certain testimony which he intended should be in his own behalf, as well as in behalf of his co-defendants, and, whilst coming' from him, it was inadmissible from the latter point of view, it was entirely admissible from the former, both to show motive, and to show the very heart of the res gestae, i. e., the conduct of the deceased just before'and at the time of the killing. Wharton’s Cr. Ev., Par. 431; Rice on Evidence, Vol. 3, pp. 122 et seq. 447; A. & E. Eney. of Law (2nd Ed.), Vol. 11, pp. 506-7, 523. The exclusion of this testimony, however, inasmuch as it was competent for him to give it only in his own behalf, did not prejudice the other defendants. If, as is suggested by the counsel for the State, in their brief, the question really decided by the trial judge was nothing more than had been decided before, to-wit: that the witness could not testify in behalf of his co-defendants, it is unfortunate that the bill of exceptions, duly signed by the judge, should make it appear otherwise. As it is, we must be governed by the bill.

4. Bill of exceptions No. 4. The foregoing reasoning and conclusion are equally applicable to the conditions presented by this bill.

5. Bill of exceptions No. 5. This bill was reserved to the ruling whereby the State was permitted to introduce the testimony of a doctor of medicine to the effect that “the wound upon the head of the deceased could have been inflicted” with a certain axe, which was exhibited. We find no error in this ruling. The bill admits that the witness was an expert, quoad the wound, and we are of opinion that he was qualified to testify as an expert as to the manner in which, and the instrument by which, it might have been inflicted.

Underhill on Criminal Evidence, p. 372.

There is a motion for a new trial in the record, based upon the usual general grounds, but no bill of exceptions to its overruling, and it is not mentioned by the counsel for the defendant. We therefore pass it by.

For these reasons, it is ordered, adjudged and decreed that, as to the defendant, Donat Breaux, the verdict and sentence appealed from be annulled, avoided and reversed, and the case remanded, to be proceeded with according to law, said defendant, in the meanwhile, to remain in the custody of the law. It is further ordered, adjudged and decreed that, as to the defendants, Emile Breaux and Louis Breaux, the judgment appealed from be affirmed.

The Oiiief Justice and Mr. Justice Breaux, dissent.


author: Bríeaux, J.

text:
    No. 13,620.
    McGilliard, Neams, et al. vs. Donaldsonville Foundry and Machine Works, Limited. Roberts & Co., and Gibbens and Stream, Intervenors.
    Syllabus.
    The business of the corporation was going to ruin. Two of the stockholders petitioned for the appointment of a receiver, and asked, in accordance with a resolution of the board of directors, for the appointment of petitioner whose name was mentioned. He was appointed. Two of the creditors of the corporation attacked the appointment on various grounds.
    1st. — Because the receiver appointed is a stockholder and has an interest opposed to that of the creditors.

      (a) Interest of a stockholder is not necessarily an objection. In protecting his own interests in a proper manner, he must protect that of the creditors and other interested parties.
    2nd. — Because the receiver has been a negligent stockholder and has not, heretofore, protected his own interests as a stockholder.

      (a) Stockholders are not supposed to assume management and direction of the corporation. Bad management of the officers, with which they had nothing to do, is not to be charged to them.
    3rd. — Because the receiver resides in another parish and at some distance from the works of the corporation. ,
    (a) The law, in matter of the appointment of a receiver, does not seem to contemplate parish lines as an objection. That issue is not raised by the pleadings. ' As relates to distance (of the receiver’s domicil) the court will not assume beforehand that it will be a continuing interference with proper management. Under the law, the District Court is to have an eye to the proper operation of the defendant corporation. The court’s agent has been selected with that object in view. Without a, preponderance of proof of error in naming a receiver, the appointment will not be annulled.
    4th. — The opposing creditors have raised a number of issues regarding the irregularity of the proceedings.
    (c) They have admitted the necessity of appointing a receiver, and thereby cured all defects, if any existed, to the proceedings looking to the appointment.
    APPEAL from tlio Twenty-Seventh Judicial District, Parish of Ascension — Leche, J.

      Bichard McCulloh for Plaintiffs, Appellees.

      Edmund Maurin for Intervenors, Appellants.
   The opinion of the court was delivered by

Bríeaux, J.

This is a suit brought by two stockholders and a creditor of the Donaldsonville Foundry and Machine Works, Limited, for the appointment of a receiver to take charge of the property and business of the corporation, which appointment is opposed by the intervenors and appellants (creditors of the corporation).

It seems that at a meeting of the board of directors of this company, held on the twenty-seventh day of June, 1900, a resolution was adopted setting forth that the corporation was unable to meet its obligations and asking that M. M. Neams, one of the petitioners for the appointment of a receiver, be appointed to that position. The other petitioner is William McGilliard. The creditor who also petitions for this appointment is the Eamsey and Sickemeiar Company, a corporation domiciled in Missouri.

These petitioners for the appointment of a receiver charge that for some time past their rights as stockholders and creditors respectively, of the Donaldsonville Foundry and Machine Works, Limited, have been exposed to total loss by the bad management of its officers; that they contracted many debts aggregating a comparatively large amount beyond the ability of the corporation to meet; that the officers conceal the amount of the indebtedness of the corporation; that at least one of its drafts was protested, and that, in consequence of its embarrassed condition, the business of the company has greatly- suffered; that despite all this the officers are contracting new debts; that the indebtedness already amounts to about ten thousand dollars and absolute insolvency is bound to ensue, unless a change is brought about through the instrumentality of the courts. At the instance of petitioners, proper service was made on the corporation of demand for it to show cause why M. M. Neams should not be appointed receiver. The petition for the appointment is sworn to by the oath of petitioner’s attorney.

Boberts & Co., a commercial firm, and Stream and Gibbens, both creditors of the corporation, filed an intervention praying that a disinterested person be appointed; that some one be appointed who has no interest in the corporation.

The testimony admitted on the trial of the rule shows that since about two years the management had not been satisfactory to the directors and the shareholders. Insolvency was the threatened condition, as the amount of the debts was nearly equal to the amount of the assets. But we will not dwell upon the subjects of mismanagement and insolvency for the reason that they are not formally denied. All concerned agree in averring that the condition calls for the appointment of a receiver. The board of directors unanimously adopited a resolution requesting the court to appoint M. M. Neams.

We have seen that appellants also ask for the appointment of a receiver, but stoutly oppose the appointment of M. M. Neams, one of the appellees, who is one of the stockholders. The grounds of the opposition to this appointment are that his appointment will be detrimental to the interests of the creditors; that he, being interested as a stockholder, will have an eye to his own interest and not to those of the creditors; that he has entered into an agreement with the stockholders of the corporation to secure his appointment adversely to the creditors. These are the allegations of the intervenors. No evidence was introduced to sustain them except of the mere fact that M. M. Neams is a stockholder. This, of itself, is not sufficient to render him incompetent to discharge the duties of receiver.

The appointment of a receiver should stand until it is made evident that he is not a proper person. ITyde on Receivers, p. 65, Sec. 64. Ordinarily, the fact that a receiver has an interest is a recommendation that he will safeguard the interests of his fellow stockholders as well as his own. There may be exceptions rendering it prudent, in a business point of view, not to appoint a stockholder. This case is not brought within any exception. We will not assume, without testimony, that the one appointed is not a proper person exclusively because he is a stockholder.

He was never an officer of the corporation and there is nothing in the record giving color even to appellants’ charge that, as a stockholder, he has taken part in any of the mismanagement of the corporation. We have not found in plaintiffs’ petition and in the resolution of the board of directors asking for the appointment of a receiver, to which we have already referred, the evidence of the collusion between the plaintiffs and defendants for which intervenors and appellants contend. True, one of the petitioners is the vice-president. If he has been negligent in not asserting his authority as an officer to prevent mismanagement, this in no way can affect the rights and interests of the other plaintiff who has nothing in common with co-plaintiff save that they have united in a petition to obtain the appointment of a receiver. We are informed by the testimony that he is a well-known engineer and enjoys a good reputation for capacity as a mechanic, and integrity as a man. It is urged by the appellants that he is not a bookkeeper or accountant. This objection is completely met by the proof that he is intelligent and has been fairly successful in business.

The court is charged to see to the proper administration of the affairs of this corporation. It has selected this receiver as its agent. In this selection it must be vested with some discretion which should remain undisturbed when it has been exercised unless it be manifest that an error has been committed. “And it maj be asserted as a general rule, that, to induce an appellate court to interfere with the decision of an inferior tribunal in the selection of a receiver, it is necessary to show some overwhelming objection in point of propriety, or some fatal objection upon principle in the person named.” Hyde on Receivers, p. 67, Sec. 65, 3rd Ed.

There are no great disputes between the parties, as we take it, but even in case of great dispute, there is support for holding that the fact that one of the parties in interest and to the dispute has been appointed receiver, does not afford ground for reversing the appointment made by the court of the first instance.

The appellants, in their brief, urge as an objection that the receiver heretofore appointed is a non-resident of the parish. The pleadings do not raise the objection. They are entirely silent regarding the residence of the receiver. We will not, therefore, pass upon an objection raised only in argument which should be of no force unless pleaded. We will state, however, that if the receiver resides at a great distance from the property of which he has control, it may prove detrimental to the interests of the company. In the present condition of affairs, however, and with the pleadings and evidence before us, we will not decide the question adversely to the appointment which has been made'. Our brother of the District Court who has the matter in charge is invested with authority to require reports and accounts, and will not, we take it, permit an interest virtually under his control to suffer loss, because of the mismanagement arising1 out 'of the absence of the receiver he has appointed to administer the business of the corporation properly.

Intervenors and appellants have raised technical objections to the proceedings instituted for the appointment of a receiver, such as that the petition is not supported by a sufficient oath, as it does not appear that the attorney took the proper oath for his client in his absence; that the resolution of the board of directors, to which we have before referred, is not such as the law requires; and, finally, that plaintiffs and appellees have no cause of action.

The intervenors and appellants having themselves admitted the necessity of an appointment oí a receiver and having made application for another appointment than that made, are not in a position to urge successfully that the proceedings for an appointment are null, because of defect or deficiency in the pleadings.

As relates to the appointment made, considered as an original question, we think, with the evidence before us, that the appointment of the agent selected by the court should remain undisturbed, as there is nothing to indicate that there will be the least improper management.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from is affirmed.

Rehearing refused.