text:
    No. 10,470.
    Alphonse LeBlanc et al. vs. William Robertson et al.
    1. An action brought by parlies claiming to own umlividod interests in an immovable. against parties possessing and claiming to own in indivisión the whole immovable, and asking judgment decreeing their ownership and for partition, combines the double chavactor of a petitory action and an action for partition.
    2.- To the petitory action defendants are entitled to plead the prescription of ten years, although an action for partition is only haired by thirty years.
    3. Presenting titles adverse to, and exclusive of, the title sot up by plaintiffs, the defendants are not governed by Articles 1304 and 1303 R. C. O., regulating prescription and the possession required as between co-heirs and eo-owners.
    4. Joint possessors in indivisión under titles-covering the whole property, are entitled to plead the prescription of ten years and to support it by proof of joint or common possession, and aro not required to show separate possession by each co-owner of a defined part of the property.
    o.Pinding the case of defendants to present all the. elements required to maintain the prescription of ten years, that plea is sustained.
    APPEAL from the Twenty-first District Court, Parish of Iberia. Monton, J.

      F. O. Flanker for Plaintiffs and Appellees :
    1. Oo-heirs as well as eo-owners have a right to enjoy and possess the hereditary property left to them by their ancestors. Aud when one of said co-heirs seeks to acquire any portion thereof by prescription, without title, he must prove conclusively that he has possessed the exact separate portion, which ho seeks to acquire, during 30 years--separately and as owner. 11. O. O., 1304, 1305.
    2. One claiming hy possession alone, without title, must show possession by enclosures, be. yond which his claim will not extend. í) M 43, 174,1 R. 159, 19 La. 251.
    3. Where the locus in quo is so uncertain that it is impossible to determine over which particular portion of tlie land liis possession extended, he cannot acquire by prescription against his co-owner. O. O., 1305,
    4. Possession by digging a canal or occasionally felling trees or grazing cattle on iminclosed land, cannot serve as the basis, for the proscription of ten, twenty or thirty years. 9 M. 43, IR. 159; 19 La. 251.
    5. In order to acquire against his co-owuor under Article 1305. R. (!. 0., the possession must-be under the conditions and in the manner set forth under Articles 3500 and 3501 and • affecting tlie acquisition of property, which severs that separate portion from the community which operates as a transfer of tliaf particular tract; but- not as a bar to plaintiff’s action. 6 M. 410. "
    O. A sale of so many acres of land to be taken from a tract of land of greater dimensions, owned in indivisión by vendor and others, wherein the boundaries of the larger tract alone are recited, does not convey any defined portion of said larger tract of hind, and therefore it cannot support the ten years prescription. 2R.,220; 10 La., 276; 11 R., 436,
    7. The action of partition cannot be prescribed against, as long as the thing remains in common and this community is either acknowledged or proved. The only reason why. under Article 1305, It. C. C., the co-lieir, who has separately possessed, can successfully oppose the suit of liis co-lioirs for a partition, is that having- acquired that separate portion under Article 3500, etc., of the It. C. U., it becomes severed, from the community.

      8. A sale of ainuidividod interest in a tractof land held in common between the vendor and others will not support the plea of ten years prescription. 12 Ann. o; C. C. 3479: 2 R. 220.
    9. A vendor having* no possession, actual or civil, can transfer none to his vendee, who must prove a corporeal possession in himself to begin with. 11 Ann. 87 — Ann. 393.
    10. Although by the Civil Code of Louisiana this tradition of an immovable is always considered as accompanying the act, this x>resuinption does not relievo the vendee from the necessity of x>roving* corporeal possession as the basis of x>rescription. 15 Ann. 323.
    11. Possession by a tutor of x>roperty belonging to him and to his wards, is possession for such minors. C. C. 337.
    12. A sale not recorded in the parish whore the laud lies, cannot support prescription. 11 La. 340; 11 R. 50; 2 Ann. 809; sec do. Ann. 2, 5, 6, 7, 15 and 15 1-2.

      Bréeme cG Renoudet, and J. B. Ker for Defendants and Appellants:
    1. Where a party to a suit introduces in evidence a written document, without qualification of object, be is bound by all that is recited therein. 39 Aun. 1089 ; 33 Ann. 801 ; 0 Ann. 109.
    2. The tutor is the legal representative ol‘ the minor in all matters of a judicial nature, and any admissions made, or acts done by him during the course of such proceedings arc binding upon the minor from necessity of the case; anda judgment rendered against the latter on account of such admissions will be binding upon him. O. P. 615.
    3. Where the administrator of an estate, in winch the minor interested as heir, files his tableau of distribution, notifying all interested parties to show cause, within the legal delays why it should not be homologated, and the tutor of the minor signs the tableau, lie does an act which the law authorizes him to do, and after the homologation of the tableau the judgment of homologation will he binding upon the minor. C. P. 615.
    4. Where the tutor of the minor in such a case signs the tableau, ho admits the correctness of all the previous steps taken by the administrator in inventorying the property, distributing the funds, etc.
    5. If the tutor of a minor does an unauthorized act, susceptible of ratification by the latter after attaining the ago of majority, and the minor allows lour years to elapse after majority without repudiating* suoli act his ratification may bo prosumod. 3 Ann. 328; 3 M. 457; 8 3M. 032; 10 M. 735; 101.717; 6 La. 606; C.P. 635.
    6. It is true that oven whore one claims under the prescription of ten years he must show actual possession in the boginning; but whore he purchased by public act, recorded in the parish in which the property is situated, liis possession is presumed to follow liis title. It is only where a person purchases by private act, not recorded in the parish in which the property is situated that ho must prove affirmatively his actual possession. 2 Ann. 787, 868; 6 Ann. 772; 14 Ann. 417 ; 37 Ann. 417.
    7. There is quite a difference between a sale that imports to transfer only the right, title and interest of the vendor such as it may be, and. one which purports to transfer unconditionally a certain x>ortion of ammdivided tract, such as a third or a fourth.
    8. The princix>le laid down in 3 R. 220: 10 R. SO; 11 R, 436, and 4 Ann. 219, that- where the vendee purchases only the right, title and interest of the vendor, without general warranty, ho cannot acquire by ten years prescription, only applies to the good faith of the vendee and not to the title itself. If the interest of the vendor was set forth and warranted generally, the vendee would have a just right to believe that lie was acquiring the properly from the true owner.
    9. It is good faith alone which jjurifies the title of its defects and causes the possessor under a just title to be preferred to the true owner, who has remained so long neglectful of his rights. The good faith required by law consists only in the belief that tiie person, whose rights we acquire, was the real owner of the property sold. 4 E. 205 ; 3S Ann. 885 $ 37 Ann. 417.
    ^ 10. A universal legatee caunot prescribe where the testator was in bad faith because he succeeds to the obligations as well as the rights of the latter; but it is different with particular legatees or purchasers who are not charged with the obligations of their authors. They acquire a new possession, independent of that of their authors and can bopossossors in good faith, though their authors may have been in bad faith. Griffon vs. Blanco, 12 Ann.; 5 Troplong on Pres. No. 436.* •
    11. A person cannot possess an uncertain part of a thing, but he can .possess an undivided portion of a certain thing. Troplong on Pres. Nos. 250, 244 and 721.
    12. Co-owners of undivided property are presumed, in the absence of contrary proof, to possess for each other as well as for themselves; from which it follows that their posses- ■ sion extends over the whole tract, to a part of which they have title. Troplong on Pres. Nos. 375, 360, 493 and 528; 40 Ann. 109.
    13. Their possession in this respect, is similar to that of partners to the partnership effects, during the continuance of the partnership. Each possesses for himself and as mandatary of his co-ownors or copossessors under title.
    14. Prom these principles it follows, that after a partition between partners or joint owners, under titles, the partition, in so far as their possession is concerned, has a retroactive effect’, and each is presumed to have always had possession of the particular portion illotted to him from the time he entered into the community or partnership ; and never lo have possessed the other portions except as mandatary of Ms co-ownors or co-partners. During the continuance of the community if he has held under a just title, he has not -been in doubt as to his 2‘ight of ownership, but only as to the location of the particular portion to which he had title. Marcadó on Pres. pp. 196 and 197; Troplong on Pres. Nos. 363 and 886.
    15. It is by the state of things anterior to the community that the effects of each co-owner’s - possession is regulated. If he was in good faith at the time of entering into the community, ho can claim the prescription of ten years; in the contrary case he can only invoke the thirty years prescription. Marcadó on Pres. p. 196.
    16. Co-possessors who hold under titles adverse to one who claims to have title to an undivided jmrtiou of the land, cannot be presumed to possess as co-owners with him. It is only where the titles of the co-owners are consistent with each other that they can be presumed to possess for each other. Troplong on Pres. Nos. 244 and 245.
    17. "Where, two possessions conflict the one which is merely intentional yields to the one which is manifested by public acts of enjoyment. Troplong on Pres. No. 245 j 4 "Wheaton 213 ; 5 Peters 319.
    18. "Where a person acquires title to one-fourth of au undivided thing, he acquires title to one-fourth in every part of the thing; andas possession is presumed to follow the title he is presumed to possess one-fourth in every part of the thing.
    19. "Wliore the whole of an undivided thing has been adversely held by several persons for move than ten years, against the true owners, the latter not having had possession of any portion of the tract during that time, have no interest.in knowing which particular portion each one has possessed. That is a matter, that concerns the co-possessors alone, since taking them altogether, they have had possession of the whole.
    20. A person who holds under an adverso, though defective title, without fraud, cannot be presumed to have possessed as trustee of the real owners. Gaines vs. Li^ardi, 1 Wood 56.
   The opinion of the Court was delivered by

Fenner, J.

This suit presents the double character of a petitory action and an action for ijartition. Plaintiffs claim to be the owners, by virtue of inheritance from Norbert LeBlanc, of an undivided interest in a certain tract of land; they aver that the whole tract is in possession of the defendants, under claim of ownership; they ask for a decree recognizing them as owners in indivisión in the proportions claimed by them, and also decreeing a partition of the land between themselves and the defendants who are admitted to be part owners.

The defense is levelled exclusively against the petitory feature of the action. Defendants claim exclusive ownership of the land; they deny the ownership of plaintiffs and also plead the prescriptions of four, ten and twenty years.

The land in controversy was originally a tract of 28 arponts front on Lake Peigneur by 40 arponts in depth.

Plaintiffs present as their muniment of title a 'deed of sale of said tract from Mrs. Dubuclet to their father, Norbert LeBlanc, Sr., passed in 1841.

The father died in 1849, and no written transfer by him is produced.

Nevertheless, the defendants prove that, prior to his death, the land possessed and held by Norbert LeBlanc, Sr., and certain others under .claim of undivided ownership in the following proportions: Norbert LeBlanc, Sr., 6 arpents front by 40; Simonette LeBlanc, 6 by 40 ; James Dillon, 6 by 40 ; Drauzin LeBlanc, 6 by 40 ; Norbert LeBlanc, Jr., 2 by 40; and Godefroy Provost, 2 by 40.

It further appears that at the death of Norbert LeBlanc, Sr., his succession was opened, and an inventory was taken of his estate, upon which his interest in this land is set down as 6 arponts front by 40 in depth in a tract of 28 by 40 which is ‘'undivided and possessed by divers persons. ”

At the taking of this inventory, plaintiffs, then minors, were duly represented by their tutor, and the other heirs of Norbert, Sr., also assisted therein.

Simonette LeBlanc was the tutor of plaintiffs and also administrator of their father’s succession.

The property was sold on terms fixed on the advice of a family meeting called in the interest of the minors. The undivided six aipents front was duly sold, and the proceeds of that and other property were divided among the heirs, the share of plaintiffs being received by their tutor, and the administrator received his final discharge.

Not long after, Norbert LeBlanc, Jr., died, and in Ms succession, Ms interest in this land was inventoried as two arpents by forty, and accordingly sold and proceeds distributed.'

At the majority of plaintiffs, their tutor made a full and final settlement with them and was duly discharged more than twenty years ago.

The land has always been held and dealt with by the parties above indicated as owners in division.

Their respective interests have been, at various times, sold and conveyed to third persons, who have held, possessed and administered the laud.

In 1879, the then co-owners made a partition of the land, to which one of the plaintiffs, who had become the purchaser of a certain interest, was a party.

During all this time, no claim for or on behalf of plaintiffs was ever urged or heard of, until 1887, when discovering the deed to their father of 1841, and the absence from the records of any conveyance by him during his life, they instituted the present suit.

If there was ever a case in which innocent third persons, _holding under ancient titles, should he quieted by prescription, surely this is one.

There is not a suggestion of any intentional fraud by any one, made in either the pleadings or the evidence in the case. On the contrary, such of the plaintiffs as testify on the point expressly exonerate Simonette LeBlanc, tlieir tutor and administrator of their father’s succession, from any intentional wrong.

The case is so clearly with the defendants under the ten years prescription that it is unnecessary to discuss any other point.

The good faith of defendants cannot admit of question. They hold under a title legal and, valid in point of form, and sufficient to transfer the property if made by the true owner, which is all that is required, and which is certain and fully proved. R. C. C. 3479, 3486.

They have shown a possession, during more than ten years, in fact and in right as owners, continuous, uninterrupted, peaceable, public and unequivocal. R. C. C. 3479, 3487.

They do not hold by any title of inheritance from Norbert LeBlanc, Sr., but by titles exclusive of and adverse to him and to Ms succession. They do not hold as co-owners with plaintiffs, but by titles exclusive of and adverse to any ownership by the latter. Therefore articles 1304 and 1305 of the Civil Code relied on by plaintiff have no application.

As amongst co-heirs or co-owners it is true that an action of partition is only barred by thirty years, and can only be supported by a separate possession of a particular part of the common property, under the above articles. But prescription is not here pleaded against the action of partition, it is pleaded against the petitory action. It is not set up against the right of a co-owner to provoke a partition ; but against the claim itself of co-ownership, which plaintiffs are bound to establish before their right to partition can arise. The proposition that joint possessors in indivisión under titles covering the whole property cannot plead prescription against a claim of adverse title by third persons, without showing separate possession, by each, of particular and defined portions of the property, finds no support in reason or authority. It would mean that joint possessors in indivisión could never prescribe, and that prescription could not begin until after partition. There is nothing in the law which prevents joint titles being acquired by prescription or joint possession being the basis thereof. On the contrary, the law is clear that joint owners can possess in common the thing belonging t6 them in indivisión and that they may prescribe against the true owner by such a possession for the required length of time. Troplong, Pres. Nos. 244 and 250.

The judge a quo fell into error in applying to this case the rules regulating the prescription between co-heirs and co-owners laid down in R. C. C., 1304, 1305.

The contention of plaintiffs that the titles of defendants are too equivocal to he the basis of good faith is untenable. They quote certain decisions (8 Rob. 220; 10 La. 276; 11 Rob. 436, etc.) which hold'that a title whereby the vendor only sells his rigid, title and interest in the thing, such as they are, and without warranty, indicates a defective title and bars the good faith necessary to this prescription. These decisions have no application to the titles of defendants, which convoy the right, title and interest of the vendor in the whole undivided tract, but fully describe the extent of those interests as being so many arpents thereof,' and which, besides, presents full covenants of warranty.

For these reasons, we feel hound to reverse the judgment appealed from.

It is, therefore, ordered and decreed that the judgment appealed from ho avoided and reversed ; and that there he judgment in favor of defendants and rejecting the demands of plaintiffs at their cost in both courts.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 10,152.
    Mrs. Michael McGuire vs. William B. Ringrose.
    !•. The owner of an animal is answerable for the damago ho has caused.
    2. “When a master has turned loose a dangerous and ferocious dog, ho must pay for the harm lie has done.
    3. It is the clear duty of the master in loosing his dog for his own advantage, to see to it that lie does not injure innocent passers on the public street; and to that end ho is hold to the exercise of the greatest possible care, and must repair the damage occasioned by his neglect.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Charles Carroll for Plaintiff and Appellee:
    Defendant is responsible in damages for the injury inflicted upon plaintiff while on the public highway by defendant’s dog. C. C. 2316, 2317. 2321.
    The fact that the dog was chained during the day and loose at night, justifies the presumption that defendant know the vicious character of the animal. Buckley vs. Loonard, 4 Denio, 500.
    The owner of an animal must keep him so that ho shall not commit injury; and when such an animal .does damago, the owner is liable, although it be shown that the animal had never before evinced any fierceness. Basazzio vs. Harris, 1 Foster and Tomlinson nisi prius, 92 ;* 1 Comstock, 515: 8 Barb. 630; 38 Barb. 14; 14 Cal. 138; -35 Ann. 1094, and cases there cited.
    In assessing the damages, #not only mental and bodily suffering are to be considered, but the trouble aud oxpeuso to which plaintiff has been put by the wrongful act of dofendaut are to be taken into account. Among the expenses, reasonable attorney’s fees should properly be included. 29 Ann. 218; 5 Ann. 5, 21, 22.
    Under the evidence in this case, iilaintiff should bo allowed the full amount claimed in her petition. t

      Andrew J. Murphy for Defendant and Appellant.
   Tlip. opinion of tlie Court was delivered by

Watkins, J.

Tlie plaintiff is a washerwoman, depending for her living, and that of one minor child, upon her daily earnings, who occupied a rented room of a boarding- bouse on St. Charles street, in the City of New Orleans, and which has an entrance on Church street that passes immediately in the rear. Nearly opposite this entrance are the defendant’s stables, where his horses are kept; and his residence is only two doors from the boarding-house.

On tlie morning of the 14th of November, 1885, plaintiff left her place of abode on her way to her daily work, and liad only walked a short way down Chureli street, when she was set upon and severely bitten by a ferocious dog belonging to the defendant, and this action is for the recover/ of damages for the suffering, loss and expenses sustained, and which she places at the sum of $2225, itemized as follows, viz :

Dr. Yeazie, medical and surgical attention...................$ 60 00

Dr. Angelí, medical and surgical attention................... 30 00

Mrs. Reynolds, board two months while plaintiff was confined to her room and disabled............................... 40 00

Mrs. Grady, washing during same period.................... 7 00

Drugs and medicines...................................... 18 00

Wages, six months...............’.......................... 90 00

Suffering, pain, fever, sickness, fear, etc..................... 1,000 00

Yindictive damages........................................ 3,000 00

Total................................................$2,225 00

There was a judgment in the court below in plaintiff’s favor for $500, and defendant lias appealed. In this court plaintiff lias answered the appeal, and asked that she have the allowance increased to the full amount claimed.

The proof is that the plaintiff was bitten in the groin by the dog, she receiving then severe wounds, which were treated by two physicians. Prom these wounds fever resulted, and she remained under treatment very nearly two months, and during her confinement suffered great pain and anxiety of mind. At the time of the occurrence, plaintiff was in good health and physically strong. At the time of the trial she had not fully recovered her strength, and for a long while was necessitated to employ assistance in the performance of her work.

The dog' was a vicious one, and was usually chained during the day and released at night. He had previously bitten one person and attacked another in the street, anterior to this occurrence.

The code provides, that “the owner of an animal is answerable for the damage he has caused, ” and “ when the master has turned loose a dangerous or noxious animal * * he must pay for all the harm done. ” R. C. C., 2321.

This case is quite similar to that of Montgomery vs. Koister, 35 Ann. 1092. The plaintiff was attacked and injured by two dogs of defendant, ■while walking in the public street at night, on arriving opposite an alleyway opening into defendant's premises. The court say: “These were watch-dogs kept by defendant for the protection of his premises, and their dangerous character, and knowledge thereof by defendant, may be inferred from their size, their actual conduct, the admitted purpose for which they were kept, and the very care exorcised in their custody; for it appears that it was his practice to chain up the dogs every mornings at daylight, and to release them at night * * It was defendant’s clear duty, in loosing his dogs at night for his own advantage and protection, to see to it that they should not escape and injure innocent passers on the street, and, to that end, to exorcise the highest care. * * *

“The rule at common law is ancient and well settled, that one keeping a dangerous or mischievous animal, with knowledge of its propensities must, at his peril, keep him up safe from doing hurt, for, though he use dilligence to keep him up, if he escape and do harm, the owner is liable to answer in damages. * * 8 Our law does not furnish a more lenient rule. ”

It appears to us unnecessary to add to this any additional authority. We think the defendant is clearly liable in damages to tlie plaintiff for the actual injury suffered, and a suitable allowance for her loss of time, pecuniary outlay, and pliysical suffering; but we are disinclined to award any vindictive damages. Tt is not a proper case for that.

In the case just cited the judge below awarded the plaintiff $500, and this amount was considered by us satisfactory. Hence, we conclude that a like sum awarded by the judge a quo is not excessive.

Judgment affirmed.


text:
    No. 10,394.
    Mrs. Mary Cline, Individually and as Tutrix, vs. Crescent City Railroad Company and City of New Orleans.
    1. AY hen in the petition of plaintiff it is averred that two corporations — one municipal and tiro other private — are liable m solido for damages, tlie question raised by an exception of mis-joinde.r is whether, as matter of fact, defendants’ solidarity of obligation is alleged, and not whether, as matter of law, it exists.
    2. The liability of municipal corporations for the. acts of their agents is a general rule of law, too well settled to be seriously questioned.
    3. In the absence of an express statute imposing the duty and declaring the liability, municipal corporations having the powers ordinarily conferred upon them respecting bridges, streets and sidewalks within their limits, owe to tbe public the duty to keep them in a safe condition for use, in the usual mode, by travelers, and are liable in a civil action for special injuries resulting from neglect to perform this duty.
    4. In case the defective condition of a public street is caused by the fault or neglect of a street-ear company in the manner in which its track is laid, or in its failure to keep the streets traversed by its track in good repair and safe for use by the public., such corporation must answer for the consequences.
    ">. Obligations are in solido, on the part of the debtors, when they are all obliged to the same thing, although one of the debtors he obliged differently from the other to the payment of the same thing.
    O. Obligations in solido are either perfect or imperfect. They are said to be imperfect when obligors hind themselves to the same thing by different acts, or at different times.
    7. It is the im%)lied and not the contractual liability of natural, as well as of artificial porsons, which is treated of in tlio chapter of the code entitled “Offenses and Quasi Offenses ” and it is founded on fault, negligence, imprudence and want of skill, and constitutes the act illegal, and the obligation of the participants solidary.
    APPEAL from the Civil District Court for the' Parish of Orleans. Monroe, J.

      B. B. Forman for Plaintiff and Appellant:
    1. It is the legal duty of the City of New Orleans to keep its streets in repair; Act 20, 1882, §7 and §86, pp. 20 and 30; and is liable in damage to a person injured by a dangerous place in a public street. O’Neil vs. New Orleans, 30 Ann. 229; JPonnimore vs. New Orleans, 20 Ann. 124; Dillon, Yol. 2, §788 and §789.
    2. It is the legal duty of a street railway company traversing with its tracks and cars the public streets of a city, to keep its rails, tracks, the space between the rails and contiguous thereto in good order and repair and safe so as not to obstruct or render dangerous tlio free use of the street, and is liable in damages to a person injured by a breach of that duty. Dominguez vs. Orleans Railroad Company, 35 Ann. 751.
    3. When two persons are under the same legal duty todo or refrain from, doing the same thing and at the same time and place, are guilty of a breach of that legal duty, they are ' together guilty of a quasi offense and may be joined in the same suit for the injury done.

      John M. Bonner for Defendant and Appellees :
    1. An obligation arising from the operation of law is different from an obligation arising purely from contract, and two defendants having no privity of interest or contract should not be joined in tlio same action. 14 Ann. 181; 15 Ann. 502; 24 Ann. 614; 32 Ann. 1165.
    2. Where a contract contains no stipulation pour autrui, a third person who is neither party nor privy to the contract cannot sue thereon. 14 Ann. 246; 84 Ann. 1123; 48 Conn. 525; 40 Ann. 460; 38 Ann. p. 1 and note; Keokuk vs. Independent District, 53 Iowa; Loeber et al. vs. N. O. and Car. R. R., not reported.
    3. Where a petition is general and indefinite, and fails to give certain details of information necessary to enable defendant to make a proper defence, exceptions, wlioso object is to elicit the information withheld, arc well taken and should bo sustained.
   Tlie opinion of the Court was delivered by

Watkins, J.

This action is for the, recovery of damages against the defendants in solido, for having negligently caused the death of John Cline, husband of the plaintiff Mary Cline, and father of her daughter Kate. In the petition it is charged that “on or about January 21, 1889, John Cline * * was driving upon Calliope street, between St. Charles avenue and Prytania street, and while in the exercise of duo care and caution, and without negligence on his part, ignorant of the dangerous condition of the street, his vehicle got into a hole in the street by the side of the railroad track, and ran against a loose rail of said Railroad Company, and suddenly and unexpectedly was stopped thereby, and * . * was violently thrown upon the loose rail and spike of said Railroad Company, and liad liis skull broken. He suffered great pain .and agony of mind and body, and then died.”

The City answered, but the Railroad Company filed several exceptions, the first of which was sustained by the Judge of the Court below, and the suit dismissed quoad said company, and from that judgment the plaintiff appeals.

1.

The exception which was sustained is as follows, viz:

“ The plaintiff has no right to join tho City of New Orleans and this defendant, in the same action, and sue them in solido in tho same shit.”

This exception puts on trial tho adequacy of the averments of plaintiff’s petition, and hence we quote them :

“ The petition of Mrs. Mary Cline in her own right, and as tutrix other minor daughter Kate Cline; respectfully shows that petitioner resides in this city, and that the Crescent City Railroad Company, a corporation of which William J. Behan is Presidtnt, and which is domiciled in New Orleans, and the City of'New Orleans are indebted in solido to your petitioner in the sum of $30,000 damages for this, to-wit:
It is the legal duty of the City of New Orleans to keep its streets in good order and repair and safe for use by the inhabitants. Calliope street is a public street, paved many years ago between St. Charles avenue and Prytania street with square blocks of granite at the expense of the abutting proprietors.
The said Railroad Company by virtue of the city ordinances and contracts by which it acquired the franchise to lay its tracks and run its cars through the public streets, including- Calliope street, between St. Charles avenue and Prytania street, is bound to keep the streets through which its tracks are laid and its ears run in good order and repair an-d safe for the use of the people and is so hound as a part of its duty to the public independently of its contract. The said City and said Railroad Company were both guilty of a gross breach of their duty as above set forth from the 1st to the 21st of January, 1889, during which time Calliope street, between St. Charles avenue and Prytania street,was in a very had and dangerous condition, which fact was well known to the officers and agents of the said two corporations, whose duty it. was to keep the said street at that place in repair and safe for the use of the inhabitants. There was a deep hole by the side of the track of the said Railroad Company, a loose rail and a spike which were to the knowledge of the officers of the said two corporations dangerous, and which had previously to the 20th January, 1889, caused injury to various persons lawfully traversing said street at said i>lace. Said bad and dangerous condition of said street was due to gross carelessness and negligence of tlie said two corporations.”

The question, therefore, is whether, as matter of fact, defendant’s solidarity of obligation is, in legal affect, alleged, and not whether, as matter of law, it exists. To decide the latter, would be, in great measure, to decide, the law questions in the case, before the merits are reached; while, in adhering to the former, we assume that the allegations of plaintiffs’ petition are. proved, and judge of the, prima, fades of the case.

The view taken of it by defendant’s counsel is — quoting from bis brief at page 3 — that “ if these defendants be bound to repair, and keep in repair the public streets, the obligation to do so arises from two entirely different sources. In the case of the City of New Orleans, the obligation arises from the act of the Legislature, and is an obligation imposed entirely by law. Rut,-on the part of the Crescent City Railroad Company, the obligation grows out of its contract with the city, and is purely contractual in its nature.. There is, therefore, no solidarity of obligation.” (Italics, except the last, are ours.)

Now, if his proposition be conceded, it only serves to demonstrate what the sources of the defendant’s obligations are, and not wliat they are alleged to be. Rut tlie plaintiffs’ petition not only avers it to be “ the legal duty of the City of New Orleans to keep its streets in good order and repair, and safe for the use of its inhabitants; ” and that “the railroad company, by virtue of the city ordinanc.es and contracts, by which it acquired the franchise to lay its tracks and run its cars through the public streets, * - * is bound to keep the streets through which its tracks are laid and its cars run, in good order and repair, and safe for the use, of the people; ” but the additional averment is made that the railroad company “ is so bound, as a part of its duty to tlie public, independently of its eoniraet. ” (Italics ours.)

It is also avered that “the said city and said railroad company were both guilty of a gross breach of their duty, as above, set forth, from the 1st to the 21st of January, 1889, etc. ”

It is also avered that “ there was a deep hole by the side of the track of the railroad company, a loose rail and a spike, which were, to the knowledge of the officers of ihe said two corporations, dangerous, * * and (hat said bad and dangerous condition of said street was due to the gross carelessness and negligence of ihe said two corporations.

From all of these averments it appears that plaintiffs’ chief reliance, for the establishment of the solidarity of the. defendants’ obligations, does not rest upon the stipulations of tlie city charter, and that of the railroad company, so much as upon their breach of a public duly, and their yross carelessness and negligence, which are alleged to have been mutual to both, and caused the fatal accident to Cline.

It is made the .duty of the city “to open and keep open and free from obstruction all streets, public squares, etc., * * and to keep the streets and crossings * *■ clean and in repair, etc. ; ” and the Council are required to pass such ordinances as may be necessary aud proper for that purpose, and to see to their faithful execution. Secs. 7 and 30 of Act 20 of 1882.

In the contract between the city and the Crescent City Railroad Company, there is a provision to the effect “that the streets through which f.he road will be built shall be kept in repair, from curb to curb, during the continuance of the term embraced in its charter,- at the expense of said company. ” Jewell’s Dig. (1887), p. 257, .Art. 328.

'Pile foregoing provisions embrace, substantially, the contractual relations between the city and the public, and the Crescent City Railroad Company with the city, towards the public — treating the city charter as a contract-merely for the purposes of argument. For it is a recognized principle, that “municipal corporations, as respects the property which lliey hold, control and manage for the benefit of their citizens, are governed by the same rules and subject to the same liabilities as individuals are.” Cooley’s Const. Lim., p. 276.

Then, let us see whether there is any substantial foundation in law for the averments in the petition, that it is the legal duty of the two defendants to keep the streets of the city through which this railroad passes “in good order and-repair and safe for the use of the people;" and that the railroad company “ is so bound independently of its contract. ”

1.

We will first consider the obligations of the city. In a well reasoned opinion, and upon a careful review of authority, our predecessors maintained the doctrine of implied municipal liability, in O’Neill vs. The City of New Orleans, 30 Ann. 220, and said :

“ By the twenty-sixth section of its charter, the City of New Orleans is bound to keep iu repair its paved and unpaved streets, and — though not an insurer against accidents — it is liable for those injuries which result from its neglect to maintain, in a safe condition, the sidewalks and bridges within its limits. ”

This doctrine has been constantly maintained in a variety of cases through* a long series of years. In Johnson vs. Municipality, 5 Ann. 100, it was substantially stated that the liability of municipal corporations for the acts of their agents is a general rule of law, too well settled to he seriously questioned.

This case was preceded by similar opinions' in McGary vs. City of Lafayette, 12 R. 668; Chose vs. Mayor, 9 La. 343; Ware vs. Barataria Canal Company, 15 La. 168; Mebie vs. Canal Bank, 11 La. 86.

It was also held to be a correct exposition of law in a recent and conspicuous case, State ex rel. Folsom vs. Mayor, 32 Ann. 716, in which the court had under consideration two judgments against the City of New Orleans for damages done to the property of relators by a mob or riotous assemblage. In treating of this subject, wo said :

“ We are, however, unable to perceive any distinction between the obligations arising under section 2453 of the Revised Statutes and those arising under the articles of the Civil Code relative to offenses and quasi offenses. It merely expressly extends to municipal corporations that responsibility for damage occasioned by their fault or negligence, or by the fault or negligence of their servants or overseers, which rests upon natural persons, under Articles 2315, 2316 and 2320 of the Civil Code. It has been a subject of frequent judicial discussion, and of contrary decisions, whether or not such responsibility would not attach even in the absence of such special statute, on the grounds that powers are granted to municipal corporations especially designed to enable them to preserve peace and order, and that it is their duty to exorcise such powers as to afford adequate protection to property against mobs and riots. It cannot be doubted that these principles are the underlying reasons of the statute. But, whatever may be the source of those obligations, it is plain, they do not spring from contract. ”

Mr. Dillon instances as an actionable defect ” arising from the implied liability of a municipal corporation, “a hole, or excavation in a traveled path, or so immediately contiguous as to make the highway unsafe. ” 2 Dillon’s Munic. Corp. (second edition) sec. 788.

And he expresses the opinion that “it may be fairly deduced from the many cases upon -this subject, referred to in the notes, that in the absence. or any express statute imposing the duty, and declaring the. liability, municipal corporations proper having the, powers ordinarily conferred upon them respecting bridges, streets and sidewalks within their limits, owe to the public the duty to keep them in a safe condition for use in the usual mode by travelers, and are liable in a civil action for special injuries, resulting from neglect to perforin this duty. Such a duty and liability are considered to exist without a positive statute, when the following conditions concur:

“1. The place in question, whether bridge, sidewalk, or street, must be one which it is the duty of the corporation to repair or keep in a safe condition. * *
“2. This duty, or burden must appear upon a fair view of the charter, or statutes, to be imposed, or rest upon the municipal corporation as such. * *
3. The power to perform the duty of maintaining the streets in a safe condition, by the authority to levy taxes, or impose local assessments for the purpose, must be conferred upon the corporation. ” Ibid, sec. 789.

Upon a fair interpretation of plaintiffs’ petition these three conditions may be assumed to concur in the instant case; and, in Davies vs. City of New Orleans, 40 Ann. 806, it was substantially decided that the power existed in the city to raise revenue for such purposes.

But, in order to make this proposition perfectly plain and free of ambiguity, the same author further says :

“When the duty to keep streets in repair is, in terms, enjoined upon the corporate authorities, and they are supplied with the means to perform it, there is little difficulty, we think, in holding the corporation liable, on the general principle of law, without an express statute declaring the liability to a civil action by any one specially injured by its neglect to discharge this special duty.” Ibid, same section.

For the present purpose we need not determine — and, at this juncture, could not — whether, as matter of fact, the city is furnished with adequate means to keep the streets in repair; nor whether, as matter of law, the city could relieve herself from pecuniary liability to strangers, on the plea of inadequacy of means for such purpose, owing to the existing constitutional limitation upon the city’s exercise of the taxing power. We may content ourselves with saying that a review of adjudicated cases and text writers on this question, while they have been questioned and criticized by some judicial opinions of ability, seem to favor the implied liability of municipal corporations in cases like this.

II.

The contractual obligation of the railroad company is to keep in repair from curb to curb, the streets of the city through which its road is built, during the continuance of its contract, and at its own expense; its implied liability — if such exists — is for the reparation of such damage as may be occasioned through its fault, or neglect, in not keeping stich streets in repair, and safe for the ordinary purposes and uses of the public, and its own tracks in like safe condition, so that the public may not be imperiled by their use.

' In State ex rel. New Orleans vs. Railroad Company, 37 Ann. 589, we declined to compel tlie defendant, by mandamus, to put Jackson street in repair, “from curb to curb, ” as the obligation of the company “is and could be nothing but a contract obligation, ” and could not be enforced by such extraordinary means.

In Loeber vs. New Orleans and Carrollton Railroad Company, 40 Ann. —, unreported, we held that the contract of defendant with the city contained no stipulation pour autrui that private citizens could enforce. But it has nowhere been held that the implied liability of a corporation could not be enforced by strangers and third persons. Nor in the case relied upon by defendants’ counsel, Delaney vs. Rochereau & Co., 34 Ann. 1123, was it so held. In that case no corporation was a party ; and the court simply decided that “an agent is not responsible for any negligence in the performance of duties devolving upon him purely from his agency, since he cannot, as ayenl, be subject to any obligations towards third persons other than those of his principal. Those duties are not imposed upon him by law. ”

But, in a more recent case the implied liability of a street railroad company was enforced by a decree of this court, upon quite a similar state of facts to the one presented here. The court, in speaking of the causes of plaintiff’s injury, said :

“ One of the rails had become loose. The spikes were out of place, and the end of the rail was elevated, pointed upwards. The wheel of the wagon struck it plump, the vehicle leaped in air, and he was thrown violently to the ground. The wheel passed over his legs and chest, producing bruises and contusions. ”

In applying the law to this state of facts, we said : The defendants’ counsel can scarcely be serious in contending that, as the accident was caused by the defective condition of the street, the city alone is responsible. The defendant made the defect in the street. The defendant, for its convenience and profit, had iron rails (laid) on the street, and its rails occasioned the injury. It must answer for it. ” Dominguez vs. The Orleans Railroad Co., 35 Ann. 751.

Eurtlior citation of authority on this head need not be given.

III.

Defendants’ counsel argues that “ when two persons are guilty of aeyliyenec, each is responsible for the consequences of his own acts; but where two or more persons wilfully wrong another, they become co-trespassers and are responsible in sólido under the very letter of the law; citing R. O. C. 2324. Continuing, he says :

“.But, as ''an obligation i)i solido is not presumed, and, as tins rule ceases to prevail only in cases where ail obligation in solido takes place of right, by some provision of the law, and as no provision of law has been cited that authorizes the defendants in this case to be snedm solido, the exception of inis-joinder should be sustained.” R. C. C. 2093, Brief at page 8.

But the Code provides that “there is an obligation in solido on the. part of the debtors when they are all obliged to the same thing. ” R. C. C.2091. It also provides that “the obligation may be in solido, although one of the debtors be obliged differently from the others to the payment of one and the same thing.” R. C. C. 2092.

It has been held that solidarity may be perfect or imperfect, and that it is imperfect when “ obligors bind themselves to the same thing by different acts, or at different times.” Gay & Co. vs. Blanchard, 32 Ann. 500; 12 R. 183; 2 Ann. 332, 792; 15 Ann. 168; Marcade, vol. 4, p. 509.

And the rule announced in R. C. C. 2093, is supplemented by another which is contained in R. C. C. 2107, which declares that “ there arc many contracts in which the obligation is declared by law to be in solido, without any express stipulation to that effect; these will be found in the. different chapters which treat of such contracts. ”

Some of these may be found in the chapter which treats of “ offenses and quasi offenses,” and in which is found article 2324, cited above.

It declares that “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” R. C. C.' 2315.

That “ (“very person is responsible for the damage he occasions, not merely by his act, but by his negligence, his imprudence, or his want of skill.” R. C. C. 2316. That “ we are responsible, not only for the damage occasioned by our own act, but for that which is caused by tin; act of persons for whom we are answerable, or of the things which we have in our custody.” R. C. C. 2317.

That.“mastersand employers are answerable for the damage occasioned by their servants and overseers in the exercise of the functions in which they are employed.” R. C. C. 2320.

All of these obligations have been recognized as being solidary in effect, though 3iot so stipulated.

In Yates vs. Southwestern Brush Electric Light and Power Company, 40 Ann. 467, they were held to be applicable to a private • corporation. They were, likewise in Knoop, Hanneman & Co. vs. Blaffer, 39 Ann. 23, and in City of New Orleans vs. Southern Bank, 31 Ann. 566.

In all such cases it is the implied and not the eontractval liability, of natural persons or of artificial beings that is treated of, and it is founded on fault, negligence, imprudence, or want of skill, and constitutes the act an offense, or quasi offense, and the obligation of participants, solidary.

In all such cases, the right of the plaintiff to join in one suit, all parties to the reprobated act, may be regarded as elementary.

We do not consider the case of New Orleans Insurance Association vs. Harper, 32 Ann. 1165, as applicable. In that suit the sheriff incumbent, and the successor of the sheriff ex-officio, were sued in solido for damages sustained in the loss of property seized by the latter, and taken possession of by the former when he acceded to the sheriff’s office. The court said : “The defendants cannot be liable in solido, for they must each have participated equally in the act, or omission that caused the loss. This was impossible, for during tine time that Harper was under responsibility growing out of his charge of the property as sheriff, Waggaman did not, and could not share the responsibility, for he was but a private individual, having no connection with the matter,” and visa versa.

In Holzab vs. Railroad Company, 38 Ann. 186, a question was presented of an improper joinder of the Carrollton street-car company with the Illinois Central railroad company as defendants, and which was excepted to on the ground that the latter was sued for damages for a tort, in the same action wherein the former was sued for damages resulting from a breach of its contract of safe-carriage, and the Court held, on the authority of Arrow Smith’s case, 17 La. 419, and Sere vs. Armitage, 9 Mart. 394, that such joinders of action was not objectionable, but indicated that a severance on the trial would be admissible.

Riggs & Bro. vs. Bell, 39 Ann. 1030, was confessedly a “suit based on a oonlracl, as to certain defendants, and upon a lorl as to others,” and the Court said: “ If they had the right thus to sue the principal and sureties, although liable for different causes and for different amounts, it is impossible to discern why they could not bring in the alleged instigator who may be held liable for the same reason that the principal can be * * * for the wilful perpetration of a wrong, from which damages have resulted,” etc. The right of severance was again recognized.

Williams vs. Pullman Palace Car Co., et al, 40 Ann. 417, was a suit against the Pullman Car Company and the Louisville New Orleans and Texas Railway Company insólido, for damages for personal injuries received at the hands of the porter of the former. On motion made in the Court below separate trials were granted, which resulted in a verdiet in favor of tlie plaintiff and against tlie Palace Car Company, and against tlie plaintiff and in favor of tlie Railway Company; but in tliis Court, eacli judgment was reversed. Vide pp. 87 and 417.

In Weymouth vs. The City of New Orleans and Aycock, 40 Ann. 344, claim was made against both defendants in solido for damages resulting from the death of two little children by falling into a well situated in a market-house, and which was alleged to have been caused by negligence and want of skill on tlie part of the city and Aycoclc, their servants and agents. A plea of no cause of actiou as to the city was sustained, and no appeal was taken therefrom.; and, in this Court, judgment in favor of Aycock was reversed, .on the ground that lie did not lease the market, hut tlie privilege or francliise of collecting and appropriating the revenues, and that the city held and owned the market house as a locus qmhlicus, subject to her own control and police authority.

All of these cases serve to show why tho policy of the law should he in favor of permitting the joinder of all parties in one suit who are charged with participation in an offense, or quasi offense,’whereby damage results, and whose obligations are averred to he in solido, reserving their rights to sever on the trial.

We think the lower judge should have so ruled.

It is therefore ordered and decreed that tho judgment appealed from he annulled, and the cause re-instated, and remanded for further proceedings according to law and the views herein expressed, the cost of appeal to he taxed against tho defendant and appellee, and those of the lower court to await the final determination of the cause.


author: McEnery, J. Fenner, J. Bermudez, C. J.

text:
    No. 10,358.
    George Wilson vs. Great Southern Telephone and Telegraph Company.
    Where a telephone and telegraph company has a right to oroct x>oles and secure tho .same, it is negligence to so secure them by guy wires as to endanger the safety of tho public.
    Where a city ordinance forbids tlie use of the neutral ground on a street to vehicles, the prohibition does not authorize a tolograph or telephone company which has permission to erect poles and put wires thoroon, to so place tho wires as to endanger human life.

      A driver of a fire engine has tlie right to cross the neutral ground at xioints between crossings, if it is for the purpose of arriving speedily „at a fire.
    Although a proprietor may do with his ostalo whatever he ideases, still he cannot make any ■work on it, which may deprive his neighbor of the liberty of enjoying bis own, or which may be cause of damage to him.

      APPEAL from the Civil District Court for the Parish of Orleans. VoorMes, J.

      B. Ji. Forman for Plaintiff and Appellee :
    1. A private corporation has no right to erect poles ancl string wires through the public streets of New Orleans, without tlie consent of the City Council, expressed by an ordinance promulgated and produced in evidence, (Act 124 of 1880,) and is a trespasser and guilty of a public nuisance.
    2. Even if it had such a grant of franchise from the City Council, it had no legal right to impede or obstruct the free use of a public street and highway. (Ib.)
    3. Defendant was guilty of gross negligence and breach of duty, when it erected and maintained a guy wire along a public street much used and driven upon, within six feet of the roadway, liable at any moment to cause severe personal injury in direct violation of the express provisions of City Ordinance Ho. 519, C. S.
    4. Such a dangerous obstruction to a public and much used street, was gross and criminal negligence, even if there had been the grant of a franchise bv the City Council, and the general police ordinance Ho. 519 had never boon passed.
    5. In assessing damages where there is gross negligence and a flagrant breach of public duty, it is proper to blend the interests of society and of the injured individual, and to allow suoli damages as would not ouly fully compensate the injured person for his injuries, his pain and his sufferings, hut also such as would prevent a repetition and serve as a warning. Black, vs. R. R. Co., 10 Ann. 40.
    Merely compensatory damages allowed in following cases: Chopin vs. R. R. Co., 17 Ann. 19, loss of a leg, $25,000 ; .Summers vs. R. R. Co., 34 Ann. 139, broken elbow, $7,500; Ketebum vs. R. R. Co., 38 Ann. 777, loss of arm, $10,000 ; Wardle vs. R. R. Co., 35 Ann. 202, shock to spine, $5,000 ; Peniston vs. R. It. Co., 34 Ann. 778, broken leg, $6,000; Barlcsdell vs. R. R. Co., 23 Ann. 180, loss both logs, $15,000; Domingues vs. R. R. Co., 35 Ann. 751, bruises, $1,500 ; Spring Co. vs. Edgar, 99 U. S. 645, bruises, $6,500 ; City of Panama, 101U. S. 453, broken arm, $15,000; R. R Co. vs. (Madman, lo Wall, 401, $9,000; R. R. vs. Stout, 17 Wall, 657, injured foot, $7,500 ; R. R. Co. vs. Herbert, 116 U. S. 642, loss of leg, $10,000; R. R. Co, vs. Mares, 123 TT. S. 710, loss of both legs, $20,000; Miller vs. Hervcs, 1 Woods 363, broken ribs, $8,000; R. R. Co. vs. Drysdale, 51 Ga. 644, broken arm, $3,000; Westerville vs. Ereeman, 66 Ind. 255, broken hip, $2,000; R. R. Co. vs. Donahue, 70 Pa. 119, loss of toes, $5,216 66; Campbell vs. Portland, 62 Maine 552, $9,500.

      Bayne, Denegi-e & Bayne for Defendant and Appellant:
    By Act 124 of 1880 (City of New Orleans vs. Telephone Co., 40 Ann. 42), the Telephone Oompany had the right to erect such piers, poles, abutments, constructions, etc., as might he necessary.
    The company erected a guy wire ou the middle or neutral ground of St. Charles avenue.
    This guy wire was necessary.
    The middle or neutral ground was, by city ordinance, prohibited to horses and vehicles.
    The Telephone Company erected the wire at a sufficient height to avoid iiossibility of damage or danger to pedestrians.
    Lt was not negligence on the part of the company that the guy wire was not sufficiently high to avoid damage to vehicles and equestrians entering upon and using ground the use of which was prohibited by city ordinances.

      The plaintiff having injured liinnseir, in consequence of a violation of the city ordinance, cannot recover.
    The allowance by juries of excessive damages must be discountenanced. Peyton va. T. &. P It. II. Co., 41 Ann. 861.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff sues the defendant company for ten thousand dollars damages for injuries sustained by a guy wire erected for the purpose of supporting the posts of said company. I-Ie alleges that the wire was erected and maintained by the defendant company with gross carelessness and negligence so as to be dangerous to the lives of people using the public highway, and that said guy wire was placed at a less distance from the ground than required by the city ordinance.

The answer of the defendant is a general denial, and avers that if the plaintiffs suffered any damage, that the same was due to his own negligence and carelessness. The case was tried by a jury, and there was a verdict in favor of the plaintiff for $1750, upon which judgment was rendered, from which the defendant company appeals.

The guy wire had been erected about three days before the accident to plaintiff, in order to sustain and strengthen the posts of the defendant company, placed on the neutral ground on St. Charles avenue. The posts are situated about three feet six inches from the street, and the guy wire was some six or seven feet above the ground, not high enough to he clear of vehicles passing on the neutral ground. Outside of the asphalt pavement, and inside of the neutral ground, about throe and a half feet from the edge of the pavement there was located a fire plug, where the accident occurred.

The plaintiff was the driver for an engine company, and on the 21st of July, 1888, between 1 and 2 o’clock A. M., an alarm of ñre was sounded and he was driving his engine to the fire. He was proceeding along St. Charles avenue at the usual speed with which ñre engines travel to a fire. He passed the ñre plug, where an engine would supply itself with water to play upon the ñre in the neighborhood. In attempting to turn his engine, which had passed the fire plug only a short distance, it partly went on the neutral ground. The driver, the plaintiff, was struck by the guy wire and severely, if not seriously injured.

The telephone and telegraph company had the undoubted right to erect its poles and to secure them. But this permission does not authorize them to put them up and to secure them by wires strung so as to endanger human life. The city ordinances forbid the use of the neutral ground on St. Charles avenue to carriages and other vehicles, hut this prohibition did not authorize the defendant company to erect its wires so as to injure any one who might be trespassing upon the neutral ground. No one oven to protect himself against trespassers lias a right to erect death traps on his premises. The posts were placed in dangerous proximity to the street, and ordinary prudence and a due regard for the safety of the public would have dictated that the guy wires should bo placed beyond the possibility of injuring any one. Hooker vs. Miller, 18 Ann. Rep. p. 18.

A person using the street without any intention of violating the city law, might by accident be driven with a vehicle on the neutral ground. In a case of that kind it would hardly be considered that he contributed to his own accident if he should be injured by the wire.

In the instant case the plaintiff was engaged in a lawful and a laudable purpose. There is a commendable rivalry among firemen as to who shall arrive early and do the first service. This has been often encouraged and on the approbation of the public it has become the unwritten law of the city to that extent, that what might be considered furious driving under ordinary circumstances, is regarded with favor and without penalty.

The evidence shows that the engine driven by plaintiff could not turn in less than thirty-five foot space. The plaintiff had slackened his pace and was with deliberation getting his engine in position when he encountered the defendants’ wire and was injured. The fire plug was placed for use iu its position on the neutral ground. It was the plain tiff’s duty to go to it with as little delay as possible. He exercised reasonable care in approaching it. We fail to ascertain from the record that he contributed by his negligence to the accident.

In comparing damages allowed in previous cases similar to this for injuries suffered from accidents inflicted by railroad and other agencies, with the amount allowed by the jury in the instant case, we think the amount is excessive. The judgment appealed from is therefore amended so as to allow $1000 damages instead of $1760, and as so amended it is ordered affirmed in all other respects. The cost of appeal to be paid by plaintiff.

Dissenting Opinion.

Fenner, J.

I cannot consider that a case of juridical negligence has been established against the defendant.

The city, by its ordinances, has assimilated the neutral ground on St. Challes avenue to a park and has prohibited horses and vehicles from going on it.

Defendant’s telcjdione poles and tlie gay wires supporting them are located on the neutral ground. It is shown and the majority opinion concedes that they are placed there under competent legal authorization.

The testimony shows that guy wires are essential to the support of telephone poles bearing the weight of so many wires.

' The complaint is simply, that in their erection care was not taken to make them safe for the passage of horses and vehicles.

The place was not a highway for horses and vehicles which were prohibited by law from passing thereon.

I think the defendant was not bound to provide against injury resulting from such use.

I must not be understood as blaming the gallant fireman for driving across the neutral ground in order to roach a fire more quickly* Neither should I blame him if, from the same motive, he had driven across vacant private land lying along the avenue, but, in either case, he was bound to know that he was driving on a place not destined for such use, and on which obstacles thereto might lawfully exist, and, however praiseworthy his motive, I think he took upon himself the consequent risk.

I, therefore, dissent.

On Application por Rehearing.

Bermudez, C. J.

The defendant company claims the right to erect such piers, poles, abutments, constructions, etc., as might be necessary, under the provisions of Act 124, of 1880, p. 168, which is a general statute, but a reference to that legislation shows that whatever be the privileges it accords to the corporations mentioned, they are coupled with the proviso that the ordinary use of the ways through which the same may be exercised shall not be obstructed.

By being allowed the right of using the neutral ground for their purposes, the company was not therefore permitted to obstruct the same, but on the contrary was bound not to interfere with its ordinary uses, one of which as is testified to, was to be driven across in cases of necessity for the extinguishment of fires.

It will not do to say that the city ordinances have prohibited the use of the middle ground to horses and vehicles, and, therefore, that the crossing in the circumstances mentioned in the opinion was illegal.

The ordinances referred to general and continual uses and in no way to special and accidental uses, demanded for public safety.

It is error to suppose that the company would have done as it 1>1 eased in relation to its poles and wires on that middle ground, without any control by law or regard to the rights of others. The company did not become the owner to any extent of that ground which is public property and the title of which could not be and was not divested in its favor.

Even had the company something of a real right in or to the same, its negligent action which has entailed such grievous injury on the plaintiff could not on that account be excused.

It is written in the law, in emphatic language: “ Although a proprietor may do with his estate whatever ho pleases, still lie cannot make any work on it which may deprive his neighbor of the liberty of enjoying his own or which may be cause of damage to him. ” R. C. C. 667, 505.

Hence the maxim : Sie títere iuo, tit aliemim non I aulas.

The company ought to have foreseen possible injury by laying the guy wire as it did. It is in fault alñnitio. It could have laid it higher, so that, happening the occurrence which has taken place, no injury would have resulted.

Fenner, J., adheres to his original dissent.


author: McEnery, J.

text:
    No. 10,368.
    Red River and Coast Line vs. C. H. Parker, Tax Collector.
    The amount o£ property as to description and valuation cannot be attacked in any other mode or within any other time than those jirescribed by the statute.
    APPEAL from the Civil District Court for the Parish of Orleans. .Ellis, J.

      W. 8. Benedict for Plaintiff and Apx>ellant.
    ■ Walter II. lingers, Attorney General, and Wynne Rogers for Defendant and Appellee.
   The opinion of the Court was delivered by

McEnery, J.

Plaintiff alleges that notice was served at the domicil of the company in the city of New Orleans, to pay taxes due upon steamboats or water crafts owned by the conrpany, amounting with interest to $2,274 80, and that the tax collector threatens' to seize and will sell, unless enjoined from so doing, tlie movable property of the company consisting of steamboats running in the port of New Orleans, with merchandise and engaged in commerce and navigation on the inland waters of Louisiana.

The plaintiff alleges that said company is not liable for the taxes assessed against it upon the movable property specified in the assessment rolls of the Board of Assessors of the Parish of Orleans for the years 1885 to 1887 inclusive, for the reasons that the property is not set forth in detail; that it does not designate the property upon which said demand for taxes is made, and that it is impossible to ascertain from said assessments what special property or properties, movable or movables, water crafts or vessels of any nature are to be designated by said assessment, .and that it is null and void for uncertainty, and that any proceedings tending towards the seizure of the property threatened to be seized will be illegal and improper, null and void

An injunction issued as prayed for. On the trial it was dissolved without damages.

On the assessment rolls for the several years for which the property was assessed, it is described under the name of “ Taxable Persons,” “Red River and Coast Line, 46 Camp street,” and under the blank for description of property — “ cash value of stock or interest in all steamboats, steamships, ships and all other water craft in and out of the State,” — the assessment is for the year 1888, $45,000; and for the years 1887, ’86, ’85, for $85,000. The revenue acts of each of the years under which the assessment was made, provides the manner in which the tax payer can have the errors as to description and valuation corrected. If the tax payer fails to avail himself of the provisions of the law for his relief, after having been duly notified of the assessment, he cannot complain of the errors of description and valuation after the assessment rolls have been definitely closed for examination and correction. State vs. V. & A. Meyer & Co., 39 Ann. 206; 32 Ann. 157.

The plaintiff took no proceeding, either in the mode or within the time provided by the revenue laws of the years under which assessments were made, to correct the description or to object to the valuation of the property.

The jn'operty was placed on the assessment roll in 1885, and no objection having been made to the description of the property, the assessors ’might well presume that the plaintiff had no objection to urge against the description. The plaintiff acquiesced in it by long silence.

The objections herein urged have been repeatedly presented and as repeatedly held that the assessment could not be attached in any other manner than that prescribed by statute.

Tlio plea of three years prescription, against the tax of 1885 can not avail the plaintiff as the assessment was made under the revenue act OÍ1882, amended in 1834, which Axes the time of prescription at five years.

We see no reasons to allow damages or attorneys fees for the dissolution of the injunction, and the reconventional demand of defendant is rejected.

Judgment affirmed.


text:
    No. 10,432.
    H. B. Claflin & Co. vs. D. A. Mayer.
    Where an agen!, in Now Orleans, for non-residenÍ, dealers, has authority only to exhibit samples and receive orders which lie communicates to his principal for acceptance or rojee lioni held that an order so transmitted was similar in every respect to an order to purchase sent direct by the buyer to the seller, and when accepted and filled and tlio goods delivered to the carrier and insured by the buyer that it was a contract whore said order was accepted and fillod and tlio goods delivered.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Percy Jioberis for Appellants.

      W. 8. Parlcerson, Andrew II. Wilson, George O. Walshe and James G. Moise for Appellees.
   On Rule to Rank Creditors.

The opinion of the Court was delivered by

McEnery, J.

The plaintiffs, íl. B. Claflin & Co., attached the merchandise and stock of goods of the defendant, in the city of New Orleans. Other creditors proceeded against the defendant, some by attachment, and others sequestered Ms stock, claiming a vendor’s privilege thereon.

On a rule to rank the creditors taken by Claflin & Co., there was judgment sustaining the privileges of the creditors who sued out writs of sequestration. Prom this judgment the other creditors have appealed. The question presented in this'appeal is whether the creditors who sued and sequestered and claimed tlie vendor’s privilege, executed their contracts here or elsewhere, out of the State of Louisiana.

It is conceded that under the law in the States where the creditors reside there is no vendor’s privilege resulting from the contract. Hence, the privilege springs from the law of Louisiana, and if the contracts were executed in this State the vendors have a privilege on the goods sequestered and identified by them.

The only creditors who have identified the goods sold by them to-defendant are Geo. A. Plummer and the Metropolitan Knitting Company. All goods were unpacked and mixed with defendants’ general stock, and had been so mixed for several months. There is no evidence identifying the goods of the other creditors. And in relation to the contract for the purchase of goods from these creditors, Mayer, the defendant, says he bought some by letter, some through an agent of his in New York, some by sample, and others personally in New York. He was unable to identify those purchased by sample. The sheriff’s return shows which goods were seized under the writs and sold upon- which the sequestrators claimed their privilege, but the goods were not identified with that certainty that the law requires. Mayer, in his evidence, states he saw them taking out goods which were not purchased from these plaintiffs and others for which he had paid. This plainty establishes the fact that the evidence upon which the plaintiff relied for identification was unsatisfactory. Admitting that the contracts of these creditors were completed in Louisiana, which is very doubtful, they clearly have no privilege on the goods sequestered, because they have not been identified.

Plummer and the Metropolitan Knitting Company had agents in New Orleans, who exhibited samples to the defendant, from which he made selections and based Ms orders. These orders were communicated by these agents to their principals. It appears from the evidence-their authority was confined exclusively to soliciting orders, without any power to bind their principals, who could accept or reject the offer to buy which they received through their agents in New Orleans. The completion of the contract, the acceptance of the price and conditions depended entirely upon the non-resident creditors. AYhere the agent exhibited the samples, under their restricted authority, and transmitted the orders to their principals, there was no obligation created which the buyer could enforce. AVliere the proposal to purchase as forwarded by the agent, was accepted by his principal, there was then a contract created which the buyer in New Orleans could enforce.

There was no stipulation for delivery in New Orleans, and the presumption is that the goods were to -be delivered in New York, where tliey were situated. They were delivered to a carrier at defendants’ risk, as ho had under an open policy insured the goods. Had they been lost or destroyed in transit, he would have undoubtedly been the proper party to collect the insurance.

Several cases are relied upon by’the plaintiffs in the sequestration suits, to which they refer.

In Onerend, Garny & Co. vs. Robinson & Olroyd, 21 Ann. 728, the goods were shipped to an agent in New Orleans with special instructions not to deliver them to the defendant until the latter should have complied with certain specified conditions about furnishing security. The sale was completed in Louisiana, and became a Louisiana contract.

In Millard vs. Nihoul, 21 Ann. 412, the sale was made by sample exhibited, the goods selected and the seller by his agent in New Orleans promised and agreed to deliver IheminNew Orleans. The agreement was made in New Orleans, and the goods delivered in New Orleans, and it was executed in New Orleans and became a Louisiana contract. And to the same effect is the doctrine declared in McIllvane & Spiegal vs. Segavre & Godchaux, 36 Ann. 359. The contract clearly stipulated that the boilers jmrchased should be delivered on the idantation of defendant, Legasse. The acceptance of the boiler by Mr. Legarre was a suspensive condition, stipulated for in the c'ontract “under which it could not be executed before delivery of the tilings sold in Louisiana.”

The warranty resulting from a sale by sample of the manufacturer for instance, against secret defects of manufacture and the merchant as to quality, are not of the essence of a contract or essential to it.

This warranty in fact is implied in every sale, and may be modified, or renounced at the will of both parties without changing the character of the contract or destroying its effect. R. C. C. Art. 1764, sec. 2.

There is also in a sale by sample an implied condition that the buyer shall have a fair opportunity of comparing the bulk with the sample, and a refusal to allow this, will justify the buyer in rejecting the contract. Benj. Saies-Bennett, Ed., sec. 649.

This implied condition, unless expressly stipulated and renounced as a suspensive condition preventing the executing of the contract before delivery, cannot prevent the execution of the contract at the place of final acceptance of the proposal to buy.

If the sale had been in New York by samples exhibited there, and the price paid and goods delivered immediately without opportunity to examine them immediately before shipment, the implied condition for inspection at Now Orleans would still exist. If the goods were not accord" ing to quality as represented,-the buyer could sue for a dissolution of the sale or return the goods to the seller.

This implied conditions in a sale by sample is not the view and trial to the satisfaction of the buyer, contemplated in Art. 2460, R. C. C., which operates as a suspensive condition of the sale.

In the instant case there is no difference between the proposal to purchase forwarded by the agent and one transmitted through the mails by the buyer. It is not doubted that purchases by order by the buyer himself, become contracts of the place where the order is filled. The agents’ authority here was limited and restricted. He could not bind his principal and his sole duty was to exhibit the samples, receive and forward orders for goods. In this ease the order was filled, the goods delivered where the contract was consumated, and the goods insured by the buyer. The title to the goods was in the defendant the moment (he goods were set aside and placed at Ins risk.

There seems to be no opposition to the general privilege for clerk’s hire, presented by A. Costenado. The judgment appealed from is therefore amended by rejecting the vendors privilege on the goods sequestered by the Metropolitan Knitting Company, Wachunitt’s Shirt Company, George A. Plumner, Noyes, Smith & Co., James Talcott, aud in other respects it be affirmed, the appellee’s herein to pay costs of appeal.