author: Nicholls, O. J.

text:
    No. 13,418.
    Mrs. Widow Dennis Campbell vs. New Orleans City Railroad Company.
    Syllabus.
    1. An exception to tbe capacity of a mother suing as natural tutrix of a minor child to recover, on Ms behalf, damages for a personal injury can not be pleaded after answer filed. (Montford vs. Schmidt, 36th Annual, 750.)
    2. If an accident happens to a child by its running upon a track in front of an approaching electric car no liability attaches to the motorman or his employer, if the circumstances were such as were not calculated to cause the motorneer in the exercise of proper prudence and caution, to suspect that it would do so, and he takes immediate action to save the situation the moment its intended course is shown. (Gallaher vs. Railroad, 37th Annual, 288. Gannon vs. Railroad, 48th Annual, 1004.)
    APPEAL from the Civil District Court, Parish of Orleans — King, J.

      Frank McGloin for Plaintiff, Appellee.

      Denegre, Blair & Denegre for Defendant, Appellant.
   Statement op the Case.

The opinion of the court was delivered by

Nicholls, O. J.

The plaintiff brought this suit alleging herself to be the natural tutrix of the minor Eaymond Henry Campbell.

She averred that on the 10th of July, 1899, at from five to six o’clock p. m., said minor, of tender years, being in the Coliseum Square, a public park or place of this city, in the course of his play went upon the track of the Magazine street line of electric ears, belonging to and operated by the New Orleans City Eailroad Company, when car number five of said Magazine street line, through the gross carelessness of the motorneer, an employee of defendant, ran upon said child, knocked him down and under the car, causing his right heel and leg to be shockingly mangled, breaking the bone and. leaving the limb hanging only by a shred of flesh, and otherwise bruising and injuring him; that by said injury, said minor was occasioned great and prolonged suffering and pain, physical and mental, and' was compelled to submit to amputation of the injured leg, becoming as a consequence, a cripple for life.

That the said injury was due exclusively to the gross carelessness of the defendant company, and particularly of said motorneer, who was not keeping a proper look out so as to see said infant in time to safely stop his car, and so avoid hurting him; that, had said motoneer kept a ■proper- watch and look out, he could and would have seen said child in 'time to avoid an accident.

. That it was her belief and she so charged, that said car was running ■at a high rate of speed, and beyond that which common prudence would justify and beyond what was allowed by the city ordinances; and that, even though negligent in keeping a proper watch ahead and to the side, still, had said .car been going at a slow and proper speed, it might have been cheeked in time, even by ordinary braking, to prevent an injury so very serious as was done to said minor.

That, in such an emergency, the motorneer should have at once reversed the current, and thereby stopped the car, and so saved the child, or at least occasioned to him less grievous, injury, and that said motorneer neglected to reverse the current.

That said motoneer was nqt competent and careful; and she believed and charged that the brakes and appliances of said car were not in good order and condition, and that the incompetency of said motorneer and defectiveness of the brakes and appliances contributed to the injury complained of.

That, under the ordinances of the city of New Orleans, and under the general obligations ’of defendant to safeguard the public, said car should have been provided with a proper fender; that, as a matter of fact, it was not provided with such fender; that the car struck said child standing, and had a proper fender been on the car, he would have been probably thrown away from and clear off the car and track; that, instead, he was knocked down under the car and under the wheels.

, That said minor was. damaged by the action of defendant company in the full sum of twenty-five thousand dollars, being ten thousand dollars for pain and suffering, physical and mental, and fifteen thousand dollars for loss of leg, whereby he was made a cripple for life, and whereby he was rendered less capable of earning a livelihood during the remainder of his earthly existence, for which sum he was entitled to judgment. She prayed that defendant be cited; that a jury be empanelled to try the cause and that in due course, defendant be condemned to pay said minor, through petitioner as his tutrix, twenty-five thousand dollars, with legal interest from date o'f judgment.

Defendant answered substantially by a general denial.

During the course of the trial defendant offered as pari of its evidence the record in' the matter of the minor Raymond Henry Campbell, on the docket of the Civil District Court for the Parish of Orleans. Plaintiff objected to the offer until some purpose was shown for offering it. Defendant thereafter stated that the suit was brought on behalf of the minor by the plaintiff as tutrix, and the record was offered to show that the proper steps required by law to qualify her as tutrix, had not been taken.

Plaintiff objected to the introduction of the evidence on the grounds:

1st. That it was entirely irrelevant.

2nd. That defendant had not put the question of capacity at issue by an exception filed in limine.

3rd. That the filing of a general denial is a waiver of any objection to the capacity of the party plaintiff.

4th. The defendant had no interest to question here the legality of the appointment by another court of a tutrix to represent this minor child.

5th. Even if defendant had any interest it could not impeach the action of a court of competent jurisdiction appointing the representative of a minor collaterally; that the only manner in which the correctness of the judgment of the court appointing a tutor can be questioned, is by appeal or direct action to annul it.

The court sustained the objection on the ground that an objection to the capacity of the tutrix to sue, must be urged by way of exception before the answer is filed; that the filing of the answer admitted the capacity to sue; that at any rate defendant could be amply protected in the event judgment should be rendered before the payment of the money, to which ruling defendant excepted.

The jury by a vote of nine to three returned a verdict in favor of the plaintiff against defendant, for five thousand dollars.

Defendant appealed.

Plaintiff on appeal prayed that the judgment be amended and increased to cover the full amount claimed in the petition filed.

Opinion.

This suit is brought by Mrs. Albertine Noamie Labauve, widow of Dennis Campbell, alleging herself to be the natural tutrix of the minor Raymond Henry Campbell, to recover for and in behalf of the minor, damages for personal injuries received by reason, it is claimed, of the negligence of defendant’s employees.

During the trial of the cause defendant objected for the first time that the plaintiff had not taken the proper steps to have authorized her confirmation as tutrix, and she was not authorized to appear in that capacity. The court overruled the objection on the ground that the objection came too late, it having been raised by issue joined on an answer, and that defendant would be still in time, if judgment were rendered against it, prior to payment thereof, to see that the legality of plaintiff’s position as tutrix should have been placed beyond the possibility of doubt.

We think the court’s ruling correct. (See Montford vs. Schmidt, 36 Annual, 750.)

The gravity of the injury received, coupled with the fact that the party suffering the same is a little child, has caused us to examine the testimony in this case with the greatest care. There would be no difficulty as to the law of the case with facts established with certainty, but we have found in the present instance, the same looseness of expression and indefinite ideas as to time and place as is found in nearly every suit for damages for personal injuries, where the persons injured and the objects injuring are moving bodies.

It is no uncommon thing for witnesses in a case like the present, to testify in perfect good faith to certain matters as having occurred several “minutes” after each other and of having taken place ten, fifteen and twenty “feet” of a given place, when it is perfectly manifest to a court critically examining the whole that seconds should have been substituted for minutes and inches for feet. There is no class of actions where correct conclusions as to the legal consequences of acts are so dependent upon exact time and exact place of occurrences as that involving railroad accidents. The evidence shows that between five and six o’clock of the afternoon of the 10th of July, 1899, five children of the plaintiff’s — Eva, sixteen, Albert, eleven, Victor, eight, Mollie, ten, and Raymond, between five and six years of age were in Coliseum Square amusing themselves. The youngest child, Raymond, went shortly after this upon the track of the defendant company on Camp street next to the square, and in front of one of its electric ears coming up from Canal street, was knocked down and passing under the car had his leg so injured by one of the wheels as to necessitate amputation near the hip.

Neither the extent of the injury nor the fact that it was received by the child’s having been run over by one of defendant’s cars operated by its employees is disputed. The issue for decision is whether the injury was the result of negligence on the part of the employees giving rise to legal liability for damages by the defendant. We leave out of view any question of contributory negligence on the part of the child itself.

The park in the city of New Orleans known as Coliseum Square is an irregular body of land bounded on the side next to the Mississippi river by a walk fourteen feet wide covered by Schillinger paving; adjoining this walk and nearer still to the river was a space of ten feet running parallel to the walk which is sodded with grass and having trees at different intervals in the centre of the same.

At the outer edge of this grass plot is a curbing forming the inner or what is known as the “wood” side (or line) of Camp street. The defendant has two lines of track upon Camp street. The rail of the track next to the square is at a distance of a little over two feet from the cuibing we have just referred to, so that the distance from the edge of the square proper to the front rail is a little over twenty-six feet. Coliseum Square is itself sodded with grass and in the square about ten feet from the Schillinger walk are a line of small trees and benches. On the afternoon in question an old gentleman by the name of Middleton was seated on one of the benches when these children going into the square seated themselves by him. They soon left him, however, going to another bench which was some distance below and nearer Canal street and possibly a little further back from Camp street than that on which Middleton was sitting.

Some of the children commenced playing a game called “catcher,” which it seems called for a good deal of running about, but whether the youngest child, Raymond, took part in this game, at any time, does not' appear. He finally found his way to the railroad track and was run over as stated.

. The witnesses on behalf of the child were his mother, Mrs. Campbell, his sister Eva, his brother Victor, Louis Beauvais, J. A. McWhirter, M. Switzer, A. E. Marion, and I ames Haney. Of these Ev.a Campbell, Victor Campbell and Beauvais alone claim to have any knowledge of the condition of things just preceding the accident.

Eva Campbell, the oldest of the children, a girl sixteen years of age, testified that she was present on the occasion when a car of the Magazine line injured her brother; she was near the Camp street Side in the square; she gave a description of the Schillinger walk; the grass plot beyond and the situation of the car tracks. She testified that she was (at the time) about five feet from the Schillinger walk (referred to frequently by the witnesses as the “culvert”), that she had her little sister Mollie with her, also her brothel’s Albert, Victor and Raymond; 'that they were all playing at first in the portion of the square lying between Terpsichore and Robin streets (the former being the street nearer Canal than Robin street) and a little nearer Robin than Terpsichore.

Being asked to explain to the court how her brother happened to get in front of the car — how it hurt him, and everything she saw, she said he was running after a butterfly and he had just put his foot on the track when the motorman hallooed to him and he got frightened and the ear struck his head; the board under the car, way under the wheels. Her brother was in the square when he first saw the butterfly up in the tree, and when it flew away from the tree it flew toward the track and he followed it; he went up town; she heard the motorneer halloa and he was struck by the car; she heard the motorneer halloo a few minutes before he was hit; the car was about ten feet from him when she heard the motorneer halloo; about ten feet; her brother was in the track; that was the first halloo she heard; the child was standing when he was struck and he fell down; the child was running slowly up towards Robin street up town and towards the track; he did not run very fast, he was keeping up with the butterfly.

Being’ asked what first called her attention to the fact that her brother was in danger she answered: “Well, she was watching him.” The question was repeated, and she answered: “Well, the motorneer hallooed to him.” Being asked whether she first knew of her brother’s being in danger by the motorneer’s hallooing, she answered: “No, the car was coming so fast he did not have time to get oif the track, but the first time she thought he would be run over was when she heard the motorneer halloo, and the ear was coming so fast he did not have time to get off the track; she noticed how fast the ear was coming- after the motorneer shouted; she was watching him (her brother) all the time; when the children first went into the square they were playing, when her brother commenced going after the butterfly she stopped playing; she was noticing her brother; he was chasing the butterfly, up-town towards Robin streelt; he ran towards the track; she heard the motorneer halloo and at the same time she saw the car coming fast and he (her brother) was immediately afterwards struck by the car; he had not stopped when the motorneer hallooed to him; he had not got very far on the track, when he did so, he got bewildered, he was not struck just-as the motorneer hallooed but sometime afterwards, the child was chasing a butterfly and he ran towards the track.

She was playing on the ground before her brother began to chase the butterfly; she was on the “wood” side of the “culvert” (the Schillinger walk) about the middle of the square, but nearer Robin street; one or two houses above Dr. Levy’s' house on Gamp street. The car was going up town from Oanal street up to Qkrrollton (on the track next to Coliseum Square) ; there were other children playing in the square.

Before passing to other testimony it will be noticed that this' witness, who was the oldest of the children, if not specially in charge of them, places herself at the time of the accident, about five feet inside the square and next the Schillinger walk or the culvert; that she was watching- her brother; that she did not discover he was in any danger until he got upon the track and made no attempt to check or stop his doing so; and that whatever did occur was not a matter of “several minutes.” As she stated, he was chasing a butterfly and in doing so running up town “slantingly” towards the track, but she does not attempt to fix the degree of the slant, nor show that it indicated that the child was about to cross over even to the Schillinger walk, still less to and across the grass plot beyond and over on to the track, and we shall see later by Middleton’s testimony that the child’s course was not such as to give rise to alarm or any apprehension. It was only at the last when he' made a direct turn towards the track that any one would or could have anticipated danger.

Victor Campbell, a child of eight years and brother of the injured boy, was placed upon the stand. His testimony was that he was present when his brother was hurt; that his brother was playing before he got hurt; he was running after a butterfly when he got hurt; he was running up town; ran slanting towards the track, and towards up town, he put one foot on the track, the front of the platform hit him, first, and the plank in front of the wheels hit him afterwards; he fell down; witness heard the motorneer halloo to him when he was about ten feet away. The children were all in the square when his brother began to run dfter the butterfly, on the river side (Camp street side) of the square, on the “wood side” (square side) of the culvert.

He was about ten feet from the culvert. His brother first saw the butterfly in a tree, it flew from the tree going uptown, it flew the same way his brother ran, his brother followed it slanting uptown, his brother was not running fast, only walking fast. Witness did not himself chase the butterfly. Just before his brother saw the butterfly the other children were playing catcher, but not with his brother; he was sitting on the bench.

Witness stopped playing when his brother started to run after , the butterfly; his brother called to him: “Vic, I see a butterfly up in the tree,” and chunked at it, and witness stopped playing and watched him run after the butterfly; witness did not run after it himself. He first knew his brother was in danger when the motorneer hallooed.

There was an old gentleman sitting there on the bench; witness did not hear him tell him not to run towards the track; the bench where the old gentleman was sitting was pretty near to where they were playing; they were playing further uptown than Dr. Levy’s house, the bench is fur (her uptown, he did not know how much. His brother ran about ten feet — from the time his brother started until he got run over he ran about ten feet.

The children were in the square — not on the Schillinger walk, they were near a bench in the square and his brother started to run from there towards uptown and the track; the tree was right at the bench, the bench was leaning against the tree.

Beauvais, one of the witnesses, was a passenger in the car which ran over the child; he occupied one of the front seats of the car on the side next the square, and was looking out of the window. He said there was no difficulty in approaching the place where the accident occurred, in seeing ahead. There were a few trees, but they would not obstruct the view; there was a clear view before coming to the spot.

His version of the accident was that it occurred in the afternoon, a little after five o’clock. Just as the ear got above Terpsichore street he law a child on the street; about ten years of age he judged, and he started to run across the track after a little girl or hoy that preceded him across the track, and when this little fellow started across the track after the little girl or boy he guessed he was about 90 feet from the ear at the time; the boy had started to cross the track, he was going in the direction of Dr. Levy’s house, the accident happened about two doors above Dr. Levy’s house, and the motorman slackened up when he saw the child and rang his bell, and that seemed to startle the child, and he stood perfectly still until the car struck him; witness did not think the motorman stopped the car when he first saw the child because he was quite a distance away. When witness first saw the child the motorneer rang his bell and started to stop the car — ‘that is, slackened his speed, supposing that the child was going to get off the track, and finally put on the brakes to stop the car three or four feet away, then he put the brakes on strong and tried to stop the car; did not know how fast the car was going when he (witness) ’ first saw the child.

On cross-examination witness said that shortly after the car left Terpsichore street he was looking ahead and saw a child.

Q. — You saw a child on the track, did you say?

A. — Yes, sir; he started to cross the track.

Q. — At a distance that you judge to be about ninety feet from the car?

A. — I thought that was about it — I never measured the distance.

Q. — Then the motorneer began to sound his gong and to put on the brakes ?

A. — Yes.

Q. — Just as soon as he became aware that the child was not going to get off the track he did his best to stop the car ?

A. — Yes.

Q. — When he rang the bell, instead of that making him get off the track it frightened him ? It caused him to stop ?

A. — Yes, I think it frightened him, he remained perfectly still until the car struck him. ,

Q. — The hoy was struck just above Dr. Levy’s house?

A. — I believe just two doors above.

Q. — Which way was the boy running?

A. — lie started, to cross the track — right across the track.

Q. — Right across it at right angles? *

A. — Yes, started in the direction of Dr. Levy’s house — that is just across the street.

Q. — Were you looking right straight ahead?

A. — Yes.

Q. — And the first time you saw this boy running was when he started to cross the track?

A. — Yes. '

Q. — Now he (the motorneer) stopped the car almost immediately after striking the boy?

■ A. — Yes, within a few feet.

Q. — He made a very good stop ?

A.' — I don’t know what you mean by a good stop. I suppose he v stopped as quick as he could.

Re-dired.

Q. — You state that- he did not put the brakes on full until he was almost upon the child — when did he put the brakes on full?

A. — I said he put the brakes on when he thought the child was not going to get off the track, and I judged that to be a very short distance before striking the child.

McWhirter, one of plaintiff’s witnesses, was a passenger in the car but seated on the opposite side from the accident. His attention was first attracted by the putting on violently of the brakes and the screaming, the next moment, of the child. It was done almost in a moment; there was no difficulty in seeing the square for some distance approaching it; there were some trees on the grass strip which lies between the culvert (the Schillinger walk) and the street; witness did not think the car had gotten under full headway yet; would not say the car was running at unusual speed, heard the gong_ ring.

Switzer, one of plaintiff’s witnesses, was a passenger in the car, was preoccupied at the time, was startled by the furious ringing of the bell, looked up — saw - the child, from the waist up, in front of the car, he saw the car strike him, saw the motorneer put on his brakes at the time, and heard him say “too late — too late!” It could not have been more than a second from the time he saw the child until he was struck.

Marion, one of plaintiff’s witnesses, was also a passenger in the ear, seated on the side next the square; when the car got near the corner of Eobin street his attention was attracted by the excitement of the motorneer putting on the brakes, at the same moment he saw the child, he could not tell the distance — practically at the same moment, the motorneer was using his best efforts — putting the brakes on quick and hard.

Haney, a witness for plaintiff, was a passenger in the car, did not see the accident, heard the excitement of voices, looked up — saw the motorneer putting on the brakes, he seemed very active. After the accident, stepped off the distance from where he first saw blood on the track to where the ear had stopped, and the child was released from the car; that was thirteen steps, he judged about twenty feet, there was not a trail of blood all along but blood at different paces, he could not say it was from where the child was hurt — he did not see where the child was hurt.

The first witness placed on the stand by the defendant was Middleton, the old gentleman who has been already referred to as sitting on a bench in the square at the time of the accident. After staling that fact he said he saw the children, they were sitting on the same bench he was occupying, but they got up and went further back and took another bench to play on; further downtown.

A few moments after they occupied the other bench, this little boy that got crippled strayed off, at least ran away from his playmates; he started to cross the track and I hallooed to him and told him to come back; that the car would run over him, and he ran sort of diagonally across the track, and when witness hallooed to him he was right on the track. He supposed the child did not hear him, but something or other seemed to attract his attention and he started back, and when he got about the centre of the track he stopped perfectly still, and seemed to be bewildered, and then the car was right on him. When the child started to cross the track he was running.

The motorman rang Ms gong the first thing and put on his brakes, with his left hand; he seemed to be putting on the brakes with both hands, but just before the ear struck the child, he had his right hand loose with his left hand on the motor — on the brake, and the front wheels were sliding and he grabbed for the child. At the time he grabbed for the child witness grabbed for it; when the child fell he fell on his face.

It could not have been over two lengths of the ear when the boy started to cross the track, thirty to forty feet as nigh as he could judge, he never measured the distance, but as near as he could judge; did not know what the length of the ear was, supposed it was about thirty to forty feet.

The bench on which witness was sitting was very close to the culvert, it could not have been more than eight or ten feet. The children were hot playing at the time of the accident, around him. When he sat down on the bench they were playing on that bench, but they all moved further downtown to another bench. They all went down, it could not have been over a hundred feet from one bench to the other, as far as he could judge; in a sort of oblong way, on a line parallel to the bench on which he was sitting.

The boy came and sat on the bench which witness was occupying for a moment, and then he broke off and ran to the bench where the other children were playing, and then he ran back, and stopped a second or two at the bench on which witness was sitting, and he broke right away and ran across the track.

The bench on which witness was sitting was about ten feet from the culvert as near as witness could judge.

Plaintiff's Counsel—

Q.- — You say he started diagonally toward Robin street? — in this sort of a direction, and he only stopped a second or two at the bench at which you were sitting?

A. — He only stopped for a moment and then ran off.

Q. — And then it was practically one run — was it not?

A. — Yes, you could call it one run.

Q. — From the bench below you a hundred feet off which was practically one run?

A. — He checked up for a second or two on the bench where I was seated and then broke off and ran across the track.

Q. — And that was practically no interruption to his run?

A. — No. !

Q. — And then he went directly in a diagonal direction from where you were sitting towards the track?

A. — Yes.

Being asked questions concerning the car witness said he first saw' the car at the street below (Terpsichore street) ; didn’t know whether it checked up, but it seemed to come to a little stop; he noticed it begin to check up when the gong rang, about thirty to forty feet from the child —¡hat is to say, the motorman was thirty to forty feet away, he rang his gong then and put on his brake — could not swear to the distance, but as near as he could judge, it was thirty or forty feet; it might have been something more — something less.

The motorneer put on his brake fast and strong, he could swear to that; he did all he could to stop the car; witness followed the child right up and helped to take the child out. Witness was sitting on the bench when lie hallooed to the child, the distance from the bench to the centre of the track — called to him when he started to cross the track .and told him to come back; that the car would run over him, and he ran sort of right on the track.

Witness did not move from the bench until he called and he (the child) seemed to be perfectly bewildered, and then witness ran as fast as he could, for an old man of his age, and put his hands on him. Witness did not have time to put his hands on him before the car struck him; it struck him before he got to him; witness wagj within eight or ten feet of him when he was struck.

Asked when first he saw the child was in danger he answered: that he saw the child was in danger as soon as the gong rang. As soon as the gong rang he saw the child was in danger, that was about thirty or forty feet off — the car dragged or pushed the child ahead a little, from four to eight feet he should judge; the motorneer put his brake forty-feet or somewhere about that before he struck the child.

Reams, a witness for the defense, was a passenger in the car, seated on the side next the square; he testified that he first saw two boys running across the square, one was a little taller than the little fellow that was run over, and they clasped hands running across the square, and the little fellow broke away from the elder boy and had crossed the track and was pretty near the centre between the two tracks, when he probably got excited at something, and started to run back toward the square.

The motorman put on the brake and stopped the car, but it was too late; he shut off the power and put on the brakes as. quick as he was able and tried to avoid the accident — that was his opinion. The boys were running toward the track, they did not stop — they kept right on running and the little fellow broke away from the elder boy and proceeded to cross the track; witness thought there was, in the meantime, a wagon coming down and he (the child) turned back. The wagon was thirty to forty feet ahead of the car, coming down (Camp street) at a pretty fast rate.

Plaintiff’s Counsel—

Q. — You saw it very plainly and the motorman could have seen it without any trouble, if he had been looking ahead?

A. — I don’t know if he could.

Q. — And this little boy was coming across the track, and when he saw this wagon coming he got frightened and turned back?

A. — Yes.

Q. — You have been giving your opinion that the motorneer could have seen it if he was not blind, and was looking ahead?

A. — Yes.

Q. — If the boy had gone on would he not have been run over by the ice wagon ?

A. — I suppose so. The boy was in front of the ear crossing when I first saw the wagon.

The witness testified that the car stopped at Melpomene street and continued on its way up; that the motorneer saw the boys running towards the track; he put on the brakes also- and slackened up the speed of the ear, and when he had slackened up the speed he put che power on again and continued on his way up. He thought probably the road was clear.

This witness had been examined as a witness on a preliminary examination of the motorneer, Larmieu, before the First City Criminal Court, charged with assault and battery in having run over the child. On that occasion he testified that the boys were running, across the street between Terpsichore and Robin streets. One of the boys was much taller than this little boy, and the motorneer saw him coming along and he cheeked his car up in front of the church, and as he saw the boy had stopped on the grass plot in the square, in front of Dr. Levy’s residence, he stopped there for a moment and then he started off again, and with that the little fellow broke away from his friend, and ran on in front of the ear.

There was a cry and a shout in the car, and a wagon was coming down the street, and in the excitement he noticed the wagon and ran back, and ran in front of the car.

The counsel of defendant who had a copy of this testimony in his possession, read from it in court, calling his attention to differences between his two statements, and asking him which was the correct one. He answered that “the first one was from the standpoint that the child had broken away” — that he had not been well for three weeks and had not thought of the matter.

On cross-examination by plaintiff’s attorney the witness said he saw distinctly between Melpomene and Terpsichore streets the group of children in the square; the motorneer could have seen them had he been looking in .that direction; witness saw two children cross the square, they ran hand in hand across the square, starting from the centre of the square near the fountain, they had their hands joined when he first saw them — about twenty feet from the fountain; they ran hand in hand directly towards the track until they1 came to the grass strip between the culvert and the railroad track, and there they parted hands.

The car was then ten feet away, the car had come up to within ten feet of the boys, who had hands elapsed when they turned loose their hands and ran across the track; the little fellow jerked himself loose and kept right on, and the other boy remained on the side of the track; the ear was running at a very slow gait; the motorneer, he supposes, did not put on the brake until he actually struck the child; the boys were three feet from the track and the car was ten feet away; the little boy kept on running across the track and he turned back and was struck by the car.

Skofield, the conductor of the ear, testified that just above Terpsichore street he gave the signal to stop at Robin street to let Mr. Strouss get out; he did not notice anything until he felt the tightening of the brakes, all of a sudden, and the car all of a sudden came to a sudden stop; it was a good stop, could not have been made better by any one else; the car after it stopped, was backed about a foot to extricate the child and keep it from getting hurt by the life guard.

The motorneer put on the brakes when witness gave him the signal; he felt the application of the brakes and he thought he was slackening up for the corner, and then the car stopped instantly, the car went on about the distance of about fifty feet after he had given the signal, before the brakes were put on quick and fast.

Strouss testified that he had touched the bell to put him off at Robin street and was walking back in the car to get out, when the accident happened; he heard the conductor ring the bell in answer to his buiton call, the motorneer started to slacken up when witness rang the bell, just about the space of time it takes to go a few feet; the interval between the putting on of the brakes and the jolt of the car was nearer two seconds than two minutes.

The testimony of Larmieu, the motorneer, was to the effect that as the ear reached Terpsichore street, he got a bell to stop at Robin street. When he got the bell he turned off the current and checked up the slack of. the brake; when he was about the middle of the square two boys ran from behind the trees; the oldest boy was in the lead and the youngest came right behind him — about five feet; witness halloed to them and the oldest boy managed to get back when he hallooed, but the little fellow did not; witness checked up the brake but it was too late; the car was right on top of him, he made a good stop; when he hit the little fellow the car went thirty or forty feet. Witness (the car) was ten feet from the children when they came on the track ahead of the car; they came from the woods side running towards the river, from the square. Witness was looking straight ahead at the time. The trees he spoke of that the boys came from behind were trees right close to tho track, between Terpsichore and Robin streets. ,

Witness, in answer to a question on cross-examination whether when he passed Coliseum Square he kept looking ahead all the time, said “Yes,” and the question being repeated: “never looked across the square?” replied: “I was looking straight ahead”. Being told that it had been shown by the testimony in this case that this group of Campbell children were in the square, and asked whether he had seen them, he said that he had not, it must have been the trees that kept him from seeing them. The first witness saw of the children (tho two referred to in his testimony) was when they came from behind the trees on the strip of grass between the culvert and the street proper, on a run; “he no more than saw them than they were on the track;” the first thing he saw was the two children running on the strip of grass.

Just as soon as witness got the bell to stop he began to put on the brake, he shut off the current and took up the slack of the brake; the talcing up of the slack does not put the brake on of any consequence; the braking proper hard and fast he put on just as the child was starting on the track, the child was about ten feet ahead on the track when he put the brake on; the ear came to a full stop in between thirty-five and forty feet, the child was dragged some, the car was going at a pretty fair speed. Witness first saw the little boy who was injured coming right from behind the trees to the track, about five feet from the track.

After considering the whole testimony in this case, of which the extracts which have been recited are the most important, we are satisfied that the appliances of the car were such as they should have been, that the motorneer made every possible exertion to stop the car from the time the child commenced crossing to the track from the green on the outer edge of the culvert, and that it was, in point of fact, stopped just as quickly as it was possible to do so with the car running at the rate it was. The crucial questions in the case are — was the rate of speed at which the car was moving too great, in view of its passing a public park, or under the circumstances of this particular ease; and second — • Did the motorman see the child and its danger as soon as proper diligence required, and care called for his seeing him.

Counsel of plaintiff insists that the motorman was guilty of gross negligence in looking as he says “straight to the front”; that prudence and care required that in passing a public square, he should look equally to the sides. We think he holds the motorman down too strictly in his use of the words, he was “looking straight to the front”. He obviously meant the field of vision taken in and included in an ordinary view and he so explained himself, for in answer to the question— whether, when he was looking straight ahead, he could not see to some distance on either side, he answered “Yes.” (See Sciortens vs. Crescent City Railroad Co., 49th Ann. 7, on this point.)

One of the most frequent complaints brought against motorneers is that they are looking to the side instead of towards the front as they should. As to the speed of the car, there is no evidence whatever of its having been run below Terpsichore street (or in fact anywhere) at an unusual or improper rate, and the testimony is that just after leaving Terpsichore street the motorman threw off the current and took up the slack of the brake, not, it is true, as a matter of precaution against possible accidents from passing a public square, but because of the signal given for the putting off of a passenger at the next street (Eobin street).

The fact itself of the slacking up of the speed of the car by the turning off of the current, and not the particular motive or occasion for this being done is what we have to consider here. • It is true that the taking in of the slack of the brake did not carry with it, it is said, any matei'ial stopping of the car — but the motorman was in the exact position needed to take immediate action, in case of an emergency, and this he seems to have done.

We have now to direct our attention to the contention urged that the motorman did not see the child as quickly as he should; plaintiff claims that he made a continuous slanting run of over sixty feet towards the track, that .the motorman should have seen him from the starting point, and had he followed him with his eyes he would have seen immediate prospective peril and danger, but we do not understand the evidence as plaintiff does; it is quite true that the child ran some distance uptown, that is to say, from the second bench to which the children had gone, and the upper bench where Middleton was sitting, but this course was almost parallel to the Schillinger pavement and would give rise in no one to an apprehension that the child would turn to the left, cross the culvert and the grass strip beyond on to ttie track, and this is what he seems to have done. He ran from the lower to the upper bench, stopped there for a moment and then ran across the culvert and grass strip to the track.

We do not think that prior to this action there was any ground for suspicion that he would turn and go upon the track. Neither his sister Eva, nor his brother Albert seems to have entertained any fear on that score, and when the child did turn to the left he moved so quickly and the distance was so short that Middleton did not appreciate the danger until the child got actually upon the track.

We do not think we would be justified in putting the danger point back of the turning of the child to the left from Middleton’s bench, and we do not think there was anything in the situation even then which was calculated to have directed the attention of the motorman at once to the possible action which the child would take thereafter. There is a portion of the evidence which has perplexed us not a little. It is the introduction into the drama of a second boy by Beauvais, Reems and Larmieu. No other witnesses refer to him. Who he could be we can not imagine unless it was. the child’s brother Albert, who for some reason was not placed upon the stand. We leave him entirely out in reaching our conclusions.

We think that the motorman acted as promptly as he could under the circumstances and that this ease shows one of those deplorable and distressing accidents which as to legal consequences are controlled by the principles announced in Gannon vs. Railroad Co., 48 Ann. 1004; Kline vs. Railroad Co., 23 Ann. 729; Montford vs. Schmidt, 36 Ann. 750; Gallaher vs. Railroad, 37 Ann. 288; Schneidau vs. Railroad, 48 Ann. 867; Culbertson vs. Railroad, 48 Ann. 1376; Sciortino vs. Railroad, 49 Ann. 7.

In the first, mentioned case we said: “The car was being driven slowly — the driver had his hand upon the brake prepared to act as soon as anything should arise calling for action.

“It would be utterly unreasonable to exact that the mere presence of a child of five or six years old upon the sidewalk or banquette with a basket upon her arm, should force the driver of a street car to come to a dead halt upon the bare possibility that it would leave the place it was then occupying securely to either walk or run suddenly into danger * * * We can not say, under the evidence, that he did not act as promptly as the occasion called for. ‘ There was certainly little time for action.”

The same remarks find application here. The facts of this ease differ from those in Barnes vs. Railroad, 47 Ann. 1224, and Rice vs. Railroad, 51 Ann. 114, and Nelson vs. Railroad, 49 Ann. 499.

We can not permit our sympathy to control our judgment. We have no alternative hut to reverse the judgment. For the reasons assigned, it is ordered, adjudged and decreed that the verdict of the jury be set aside and the judgment of the court thereon rendered be and the same is hereby annulled, avoided and reversed, and plaintiff’s demand rejected and her suit dismissed.

Rehearing refused.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 13,626.
    State of Louisiana vs. Cole Young.
    Syllabus.
    The assault by shooting at, or with intent to commit murder, admitted of indictment for either, but when constituting but a single act, such offenses may be charged in one count.
    The employment of the word feloniously in an indictment for wilfully shooting at, is surplusage.
    APPEAL from the Twelfth Judicial District, Parish of Vernon— . Lee, J.

      Walter Guión, Attorney General, and Amos L. Ponder, District Attorney, (Lewis Guión, of Counsel,) for Plaintiff, Appellee.

      Egan & Pegues, for Defendant, Appellant.
   The opinion of the court was delivered by

Watkins, J.

Prom a verdict of guilty and sentence to imprisonment at hard labor, under an indictment charging that “with a dangerous weapon, to-wit, a shotgun (defendant), did feloniously make an assault upon Bass Cavanaugh by wilfully shooting at him, said Cavanaugh, and with intent to murder,” he prosecutes an appeal, relying upon two motions in arrest of judgment and a motion for a new trial, to the refusal of the trial judge to grant which his counsel retained bills of exception.

As the motion for new trial rests exclusively on the averment that the verdict of the jury was contrary to law and evidence, we may pass that by, and dispose of the motions in arrest.

The first motion represents that the indictment charges that the defendant “did feloniously make an assault upon Bass Cavanaugh by wilfully shooting at him, said Cavanaugh, and with intent to murder,” and that there can be no felonious assault; and that shooting at with intent to murder is a felony, and the allegation should be qualified by the word felonious, whereas the word feloniously in the information is made to qualify the word assault.

That consequently the information is fatally defective in its most vital part.

Subsequently, another motion in arrest was made, on the grounds (1) that the information does not inform the accused of the nature of the charge against him; (2) that the information is bad for duplicity, and charges two separate and distinct offences in one count, viz: (1) wilfully shooting at; (2) shooting with intent to murder.

The trial judge assigns as his reason for overruling said motions— (1) that the information charges the crime of wilfully shooting at, and that the addition of .the words “with intent to commit murder,” was not essential and surplusage; (2) that it is not necessary that the “shooting at” was feloniously done, and the word “feloniously” employed to qualify the word “assault” was, also, unnecessary and surplusage.

The information was evidently found under Eevised Statutes, See. 792, which reads as follows, viz:

“Whoever shall assault another by wilfully shooting at him, or with intent to commit murder,” etc. (Our italics.)

It has been held that an assault by “wilfully shooting at” and an assault “with intent to commit murder,” as denounced in that section of the Eevised Statutes, were two distinct and separate offences.

State vs. Brady, 39 Ann. 687.

But this court has recently decided that it was permissible for the two offences to be charged conjunctively in one count of an indictment.

State vs. Eomus, 48 Ann. 581.

In the course of its opinion the court said:

“The motion in arrest and hill of exceptions assign, as duplicity, that the indictment under the statute charges two distinct offences in one count.
“The assault by shooting at', or with inlent to murder admitted of an indictment for either, but constituting but a single act we conceive it to be settled that such offenses may be charged in one count.”

The question there decided is identically the samo as the one under consideration and decisive of it. This ground of thei motion in arrest is not tenable; hut equally untenable is the objection to the employment of the word feloniously. It is not found in the statute and might have been omitted.

We find no error in the judge’s ruling.

Judgment affirmed.


text:
    No. 13,632.
    State of Louisiana ex rel. Hypolite Rivoire vs. Hon. John St. Paul, Judge, Etc.
    Syllabus.
    1. The effect of the service of a writ of certiorari is to render void every act which has been subsequently performed by the Judge to whom it was directed, if, when the Supreme Court, or one of its judges, causes a writ of certiorari to be issued to an inferior court, judgment has been already ' rendered and execution sued oirt in the court below, the Supreme Court, or the justice directing the_ issuing of the writ, may arrest the execution by enjoining the party suing it, and the party charged with it,- to proceed no further until the validity of the proceedings has been pronounced upon. Such an order in no sense, is a judgment requiring for its validity the concurrence of three judges under Article 89 of the Constitution. The order operates a suspension not a reversal of the proceedings below. When the execution consists in the actual imprisonment of the relator who has obtained the writ, it, in proper cases, can only be made effectual by the temporary release of the relator. (State ex rel. Behan vs. Judge, 35th Ann., 1075; Constitution of 1898, Ameles 93 and 94, C. P. 130, 863, 866, 877.)
    2. A court is not authorized to sentence a party found guilty by it of contempt of court, to pay a fine of two hundred and fifty dollars, and in default ot payment of the fine to an imprisonment of ten days. Such a judgment is illegal and must, on certiorari, be set aside, leaving to the court below the duty of rendering a new judgment. C. P. 864.
    ON APPLICATION for Writs of Gertiorari, Prohibition and Habeas Corpus.

      Robert J. Maloney for Relator.

      Frank D. Chretien for Respondent.
   The opinion of the court was delivered by

Nicholls, O. J.

Relator’s prayer for the writs sought by him was based upon allegations that, in the proceedings entitled Mrs. Hypolite Rivoire vs. II. Rivoire, her husband, No. 62,060, of the docket of the Civil District Court, for the Parish of Orleans, petitioner was sued by the petitioner therein, his wife, for a separation from bed and board. That pending these proceedings, petitioner was served with a rule to show cause why he should not pay alimony to his wife, which matter, upon being submitted to the court, was adjudicated, and relator ordered to pay alimony at the rate of sixty dollars per month.

That on July 3, 1900, plaintiff filed a rule against relator, alleging that the said alimony had not been paid, and ordering defendant to show cause why he should not be punished for contempt, and incarcerated in the parish prison. That thef said rule came up for trial on August 8th, 1900, before the lion. John St.' Paul, judge of Division “C” of the Civil District Court for the Parish of Orleans, acting for the Hon. T. O. W. Ellis, Judge of Division “A” of the Civil District Court for the Parish of Orleans, absent on leave.

That at the time of the said suit, the said court issued an injunction restraining the defendant herein “from disposing of the following property, to-wit: On Tchoupitoulas street, between State and Webster streets, in this city, and any and all other property belonging to the community existing between yourself and your wife, Mary Surginet (the plaintiff), and you are to so remain enjoined 'and restrained until further order of this court.”

That on the trial of the said rule for contempt, he was placed upon the witness stand by order of the judge of said court, and after being interrogated, testified that he was without means with which to pay said judgment for alimony, and that it was impossible for him to realize upon any of his property for the reason that he was enjoined by the said court from disposing of or in any manner alienating the same. That said injunction was sued out and granted on the petition of his said wife, the mover in said rule.

Eelator further testified that he had given to his said wife for support of herself and her children, the business formerly conducted by him in this city, on Tchoupitoulas street, between State and Webster streets, to-wit: that of gardener, and that, notwithstanding the said testimony, no other proof of any other kind having been offered, he was adjudged guilty of contempt by the said judge, and fined the sum of two hundred and fifty dollars ($250), in addition to the said alimony, and, in default thereof, that he be confined in the parish prison of this parish for the term of ten days.

That the action of the said judge was arbitrary, illegal and uncalled for, and that the statutes of Louisiana expressly prohibit imprisonment for contempt in the case where the party is without the means to pay the said alimony. That by virtue of the said judgment of the said judge he is now confined in the parish prison, in the' custody of the criminal sheriff for the parish of Orleans, relator annexing a duly certified copy of the said judgment together with the testimony taken on the trial of the said rule.

That he cannot, in the ordinary course of proceedings, obtain any relief, and he is compelled to avail himself of the supervisory jurisdiction of the Supreme Court.

That the said judgment and commitment are absolutely null, void and of no effect, for the reason that same is not signed by any judge, is not addressed to any officer, has no caption, and does not in any manner conform to the requirements of the law. That the said commitment is nothing but a judgment on the rule, and the certified copy thereof is all that the criminal sheriff for the Parish of Orleans has for his authority in the retention of relator.

That the civil sheriff for the Parish of Orleans is ordered to take relator into custody and to deliver him into the charge of the criminal sheriff for the Parish of Orleans, and there is no law nor warrant for any judge to commit him to the custody of one officer, to be by him turned over to the custody of another official.

That in the rule filed by his wife for contempt, no fine of any sort is prayed for, and the said judge of the said court had no right to inflict upon relator a greater fine than that which is prayed for by the mover in the rule.

That according to Section 1013 of the Revised Statutes of this Slate, the said commitment must be “made out by the judge and shall be signed by him, ordering the sheriff to keep the person accused in safe and sure custody until delivered by due course of law, and shall substantially set forth the nature of the offense of which said person is accused, which commitment shall be sufficient warrant and justification to the sheriff or his deputy for the detention and imprisonment of the person so charged.”

That by Art. 131 of the Code of Practice “The judges of the Supreme, District and Parish Courts have power to punish all contempts of their authority by a fine not exceeding fifty dollars and imprisonment for a period not exceeding ten days for each offense of that kind”", which Article was amended by Act No. 190 of 1894, which merely adds the following: “Provided that no publication out of court shall be considered to be a contempt.”

This petition was addressed to tire Chief Justice and to the Associate Justices of the Supreme Court.

The following order was rendered upon it:

“Considering the foregoing application and the law, it is ordered that the provisional writs of certiorari and prohibition prayed for be granted and that same operate as a restraining order pendente lite: and that writs be made returnable to this court, on the first Monday of November, 1900, or otherwise according to law.
“It is further ordered that the writ of habeas corpus be granted and made returnable instanter before any justice of this court.
“Done and signed officially this the 9th day of August, 1900.
(Signed) “L. B.. Watkins, “Presiding Justice Supreme Gourt, La.”

Complying with this order a writ of habeas corpus was issued and under it, the criminal sheriff of the Parish of Orleans produced the body of the relator, together with the following return:

“In obedience to writ of habeas corpus, issued herein I have this day produced the body of Hypolite Eivoire before the Hon. F. T. Nieholls, Chief Justice Supreme Court, State of Louisiana, at Thibodaux, La., on August 10th, 1900, and hereto annex and make part of this return the commitment No. 62,060, Civil District Court, Div. A, Parish of Orleans, and also a copy of order of Supreme Court dated Aug. 9th, 1900, and submit the matter to the judgment of the court.”

The paper referred to as the commitment was as follows:

“The rule for contempt filed in this case came up for trial this day, present Frank D. Chretien, Esq., attorney for Mrs. Eivoire, plaintiff in rule, and Eobert J. Maloney, Esq., attorney for defendant in rule: Hypolite Eivoire, himself present in court, at the trial hereof, when after hearing pleadings, evidence and counsel, the law and the evidence being in favor of mover, and for the reasons orally assigned by the court.
“It is ordered that said rule be made absolute, and proof having been made that said Hypolite Eivoire refuses to pay to Mrs. Hypolite Eivoire, the amount of alimony decreed by the court that he was condemned to pay to her.
“It is ordered, adjudged and decreed that the said Hypolite Eivoire be, and he is hereby decreed to be in contempt of this Honorable Court and condemned to pay a fine of two hundred and fifty dollars, and in default of the payment of said fine the civil sheriff for the parish of Orleans is hereby ordered to take the said Hypolite Eivoire into custody and deliver him into the custody of the criminal sheriff for the parish of Orleans, to be by said criminal sheriff confined within the walls of the Parish Prisoji of Orleans, during the term of ten days from the time of delivery to him of the said Hypolite Rivoire.
“And this will be his warrant for so doing, of which he will make due i return.
“John St. Paul.
“New Orleans, August 8th, 1900.”

The following order was thereupon rendered:

“In view of the order rendered by Associate Justice Watkins, ordering that writs of certiorari and prohibition issue herein returnable to the Supreme Court on the first Monday of November, 1900, or otherwise according to law, and that said order operate as a restraining order pendente lite; and in view of the fact that it has been made to appear by the return of the sheriff herein, that notwithstanding said order the applicant, Hypolite Rivoire, is imprisoned in the Parish Prison of the parish of Orleans under a commitment in execution of the order of court, whose validity and legality is called in question, and ordered to be determined under the writs ordered, it is ordered that Remy Klock, criminal sheriff of the parish of Orleans, release the said Hypolite Rivoire from his present imprisonment under said commitment, aird for so doing the present order will be the warrant.
“This done and signed at chambers, at Thibodaux, Louisiana, August 10th, 1900.-
(Signed) “Francis T. Nicholls, Chief Justice.

On the 20th of November the district judge sent up the record in the case of Mrs. Hypolite Rivoire, accompanied by the following return with exceptions:

Relator excepts and submits that before any further proceedings be had in the matter of the habeas corpus proceedings which had issued, the relator should be returned into the custody of the sheriff of the parish of Orleans, under the commitment herein issued, because the relator having been committed by a court of superior jurisdiction, the commitment should not have been set aside, nor the relator released, except by decree of this Honorable Court, concurred in by three of the justices thereof or of judges called for that purpose, as the case may be (Constitution, Art. 89), and on the face of the papers herein, it appears that no such concurrence was had.

But should your Honors hold otherwise, then this respondent says that he has no further return to make to said writ of habeas corpus, for this, that he has not now and never had in his custody, the body of relator, but that, having made out and signed a commitment of said relator, to the Parish Prison, he delivered the same to H. B. McMurray, civil sheriff of this parish, for execution, and knows no more thereof, than what is shown by the return of said officer thereon, by the return made by Remy Hock, criminal sheriff of this parish, to the writ of habeas corpus herein issued, and the action of his Honor, the Chief Justice, thereon, whereby it appears that the body of said relator was duly produced before the Chief Justice, by whom the said relator was released.

Wherefore relator being no longer now either in the actual or constructive custody of any person, respondent submits that said writ of habeas corpus should be dismissed.

And should your Honors so hold and said writ of habeas corpus be dismissed, then this respondent excepts and submits that no further return should be required of him to the writs of certiorari and prohibition herein issued, for this, to-wit: That said writs were herein issued out simply and solely, as auxiliary and supplemental to said writ of habeas corpus, and for the sole purpose of obtaining the same relief as therein prayed for, to-wit: The release of said defendant, which release can only be obtained by habeas corpus.

But, should your Honors hold otherwise, then this respondent submits that your Honors are without appellate jurisdiction in this matter and can not review the finding as to the facts herein, but at most can only enquire whether said facts constitute a contempt for which this court can punish. Ex rel. Phelps vs. Monroe, Judge, 45 A. 1265; Ex rel. Barthet vs. Judge, 40 A. 434; Ex rel. Brown vs. Judge, 36 A. 1114; Ex rel. O’Mally vs. Judge, 35 A. 1195.

And this respondent finds as the facts upon which the said relator was adjudged guilty of contempt, “That in a proceedings for a separation from bed and board, instituted by the wife of relator against the relator, before a competent court, said relator had been condemned to pay to his wife said alimony for her support at the rate of $60 per month, payable monthly, that said decree was still in force, and three installments of said alimony, amounting to $180, were due and unpaid, which said relator had failed and refused to pay; that at the time when relator was condemned to pay this alimony, and at the time when the rule for contempt was taken, as well as at the time when said relator was adjudged guilty of contempt, he had in reac¡y money and. negotiable property means far more than sufficient to, pay the amount of alimcmy then due and which, notwithstanding, he still refused to pay.”

And your respondent submits that the aforesaid facts constitute a coiitempt of court. Ex rel. Huber vs. King, Judge, 49 A. 1503.

In any event, this respondent submits that the record of the proceedings had in said cause No. 62,060, and the oral evidence adduced on the trial of said rule for contempt (reduced to writing) and on file therein, fully justify the conclusion of fact reached by this respondent.

But should your Honors find ^otherwise, then this respondent submits that Act No. 169 of 1898 is unconstitutional, null and void:

Because the object thereof, i. e., to define what shall not constitute a contempt of court, is not expressed in the title thereof, which purports but to limit the power of courts to punish for contempt; and the statute being vbid the uniform jurisprudence of this State from time immemorial and up to the passage of said act, has been that the inability to pay at the time of the issuance of the order constitute no defense. Ex rel. Huber vs. Judge, 49 A. 1503; Ex rel. Hefner vs. Judge, 50 A. 551.

Wherefore respondent submits that under any circumstances said respondent was properly adjudged guilty of contempt.

And now respondent admits that by inadvertence, the fine imposed in the alternative exceeded what he is by law permitted to impose, but he avers that no relief was asked of him in time for any action on his part, Iris attention being called thereto only after the commitment had been made and signed and, at the very earliest, only when this respondent was notified of the intention of the relator to apply to your Honors for relief, which by the, practice prevailing in this court and out of respect to your Honors, has always been accepted by the district judges of this city as withdrawing the whole subject matter from their jurisdiction pending the application to your Honors.

But your respondent further now submits that said excessive fine being imposed only in the alternative, and the said alternative of ten days’ imprisonment being clearly within the power of this respondent to inflict, said relator has no grounds of complaint, nor on that account should the sentence be annulled in toto, for as the respondent might have ilnposed the said last named penalty (imprisonment) without alternative, relator is in the position of complaining of the illegality of the alternative of a fine which he is not necessarily called upon to submit to in order to escape from the other alternative (imprisonment) which is clearly legal, a position which appears to this respondent unsound and untenable, for conceding the fine to be illegal, null and void, it is to be considered as not written and the sentence should be allowed to stand as one of imprisonment without alternative.

But should your Honors think otherwise, then, and in that case, this respondent submits that the relator should not be dismissed, but that the matter should be remanded to the judge of Division “A” of this court, to whom said cause belongs and for whom this respondent acted in his absence, in order that sentence may be imposed according to law. Ex rel. Taquino vs. Arnault, Eecorder, 49 A. 104.

Eespectfully, John St. Paul, Judge.

New Orleans, Nov. 2nd, 1900.

Opinion.

In the return or answer of the district judge the action of the Chief Justice in directing the temporary release of the relator, is referred to. It is claimed that the commitment which the district judge, in this case, issued, should not have been set aside nor the relator released, except by decree of the Supreme Court, concurred in by three of the justices thereof, or judges called for that purpose, as the ease might be. (Constitution, Art. 89.)

The release of the relator up to "the present time is an accomplished fact (under that order) and the subject matter of the same calls for no decree of this court in the premises, but it may be well that this claim should be alluded to.

The district judge is in error in supposing that his order or decree rendered in the matter of relator’s alleged contempt of court, has been set aside; it has been simply suspended until the legality of that order should be brought before us and determined under our supervisory jurisdiction. That particular issue is what we are now about to pass upon. Eelator having applied for and obtained an order from one of the associate justices of the Supreme Court “for provisional writs of certiorari and prohibition — the same to operate as a restraining order, and that the writs be returnable to the Supreme Court on the first Monday of November, 1900,” the law itself fixed the result to follow from such an order and the proper course to be pursued in consequence thereof.

By Article 863 of the Code of Practice, “the mere service of the order to send up the record (by certiorari) renders void every act which may have been subsequently performed by the judge to whom it was directed or by his order”, and by Article 866 of the same Code “when a court of competent jurisdiction issues a mandate for the purpose of inquiring into the validity of a proceeding in the last resort, if judgment has been rendered and execution sued out in the court below, it may arrest the execution by enjoining the party suing it and the officer charged with it to proceed no further until the validity of the proceedings has been pronounced upon, and this, under the same penalties which are inflicted for contempt of court.”

The order of the Chief Justiee was nothing more than a preliminary and temporary injunction against the continued enforcement of the order for relator’s imprisonment and to become effective and operative called, of necessity, for his present release. To have postponed action until the Supreme Court could be brought together would have been to have given a right without any adequate remedy.

The district judge is in error in supposing that the order'of the Chief Justice was in any sense, a “judgment” of the court, which required for its validity, the concurrence of three judges under ijrt. 89 of the Constitution. (State ex rel. Behan vs. Judges, 35 An. 1077.)

The authority for the issuing of the orders which were granted in this case will be found to have been conferred by Articles 93 and 94 of that instrument. By Article 94 it is declared that the Supreme Court shall have control and general supervision over all inferior courts, and that the court or any justice thereof shall have power to issue writs of certiorari, prohibition and mandamus, quo warranto and other remedial writs, and by Article 93 that the Supreme Court and each of the justices thereof shall have power to issue the writ of habeas corpus at the instance of any person in actual custody in any case where it may have appellate jurisdiction.

In addition to this, all judges possess the powers necessary for the exercise of their respective jurisdictions, although the same be not expressly given by law. (C. P. 130-8N.)

The writ of habeas corpus was issued in this ease in aid of the exereise and enforcement of the supervisory powers conferred by Article 94 of the Constitution.

¿We now direct our attention to the contention made by the relator that the order or decree of the District Court under which he was suffering imprisonment was null and void, as being made in excess of the authority conferred by law upon the district judge. Reference to that order shows that therein relator was decreed to be in contempt of court and by reason thereof he was sentenced to a fine of two hundred and fifty dollars, and in default of payment of said fine, to be confined in the parish jail for ten days.

The district judge was without authority to impose that amount of fine. The penalty by way of fine for a contempt of court is fixed by Article 131 of the Code of Practice at fifty dollars.

Inasmuch as payment of such a fine could not be legally demanded of the relator, a decree ordering him to be imprisoned for not doing so was null and void, and an imprisonment for not making such payment was illegal and unwarranted.

We are not called on in this proceeding to examine into the questiofi as to whether or not relator was guilty of a contempt of court in failing to pay the alimony which was decreed for him to pay to his wife.

In referring to the action to be taken by the court issuing a writ of certiorari, Article 864 of the Code of Practice directs that if, upon examining the certified copy sent up, it shall appear to the court issuing the mandate, that the proceedings are null and have not been sanctioned by the party complaining of them, it shall avoid the proceedings and direct the inferior judge to try the cause anew, in conformity with the provisions of the law.

In the present instance no complaint is made of the regularity of any of the proceedings in the case. The complaint urged is against the decree rendered and to that decree we confine ourselves, not going back of it.

For the reasons assigned, it is ordered, adjudged and decreed that the order or decree of the District Court complained of herein, be and the same is set aside, and that in the matter of the rule for contempt of court against relator, the situation be replaced to that existing just prior to the rendering of the decree herein set aside.


text:
    No. 13,462.
    City of New Orleans vs. Comptoir National D’Escompte De Paris.
    Syllabus.'
    The gross profits of the business of borrowing anfl loaning money by an agent or intermediary, are the commissions or charges that are paid by the borrower over and above the amount that is expended in negotiating the loan.
    One engaged in procuring exchange on foreign banks for the use of local customers, and in so doing pays a discount and charges same to the customer, in addition to his commission, is not entitled to any share in the discount, and same constitutes no portion of his gross profits.
    PPEAL from the Civil District Court, Parish of Orleans — King, J.

      Samuel L. Gilmore, City Attorney, (Charles H. LaVillebeuvre, of Counsel), for Plaintiff, Appellant.

      Harry 11. Hall, for Defendant, Appellee.
   The opinion of the court was delivered by

Watkins, J.

On the 29th of December, 1899, the city treasurer proceeded by rule against the respondent for the payment of a license for the year 1899, of $5,500, for pursuing the business of banking- — alleging that its “gross profits in said business for that year were more than $220,000,” and that it was a license delinquent.

Eespondent, in answer to the rule, averred that this court had decided in State of Louisiana vs. Comptoir National D’Escompte De Paris, 51 Ann. 1272, that it was not engaged in a banking business, but was engaged in loaning money and dealing in exchange.

But, if plaintiff’s rule be taken as a proceeding against it as being engaged in the business of lending money, or dealing in exchange, the respondent avers that it has duly paid its licenses to the city and State therefor, and holds proper receipts for same — the sum of one thousand dollars having been paid to each.

It further avers, that having complied fully with all the requirements of Act 127 of 1898, and city ordinance No. 14,872, nothing further is ' due, and the city treasurer should take nothing by his action, and his rule should be discharged.

On the trial in the lower court, the respondent was discharged, and the plaintiff in rule has appealed.

In the case cited by the respondent in its answer, this court decided that it was not engaged in conducting a banking business, and both parties have proceeded on the theory that it is engaged in lending money and dealing in exchange, and the plaintiff’s demand is limited to that issue.

Whilst admitting the payment of a city license by the respondent on the business of lending money and dealing in exchange, the amount paid is not sufficient in amount.

The language of the city ordinance is, “that all banks, banking associations, corporations or companies who may * * * engage in this city, in the business of lending money, or dealing in exchange, shall pay a license of two and one-half per cent, on the gross profits of all money loaned and all exchange bought or sold,” etc.

The principal question is, what are the gross profits of respondent’s business ?

The argument of plaintiff’s counsel is as follows, viz:

“ Mr. Breton, the manager of the Comptoir d’Escompte, and the sole “witness in the ease, testifies that he lends money and deals in ex- “ change. Rec. pp. 9-10. When asked how much interest he collected “ or charged to other persons, and what was the credit of the interest “ account during the year 1898, he said $44,633.01. Again, when in“terrogated as to his revenue from exchange account for the same “year, the response was $16,268.24. Now' these two amounts aggregate “ the stun of $60,906.25 of gross profits, and two and one-half per cent. “ on that amount being $1522.65, there remains due to the city by defendants (they having'already paid $1000) the sum of $522.65.”

On the other hand, the argument of respondent’s counsel is of the following tenor, viz:

“Defendant’s gross profits during the year aggregated $16,946.19— " i. e., $16,286.24 in its exchange business and $677.95 in interest — and “ it paid the minimum license of $1000 upon $40,000 of gross profits.
“ The $677.95 were the gross profits of its interest account. The sum “ was the gross amount which it earned, undiminished by the cost of “ carrying on its business, such as rent, clerk hire, etc. If a man asks “ me to loan him $10,000 at 5 per cent, interest, and I go to a bank and “ agree that such bank may furnish the money needed and shall have of “ the interest 4 per cent, while I shall receive the remaining 1 per cent., “ that 1 per cent., $100, represents my gross profits in the transaction. “ Even if I borrowed in my own name a specific sum of $10,000, paying “ therefor $400, and loaned it for $500, from no possible point of view “ could my profit, gross or net, be more than $100.
“ Because defendant collected $44,060.01 of interest, of which amount “ it had already paid out in discount $43,960.06, counsel contends that “the collection is profit, thereby confounding receipt with profit. “ Profit can never mean anything but gain.
“ If a man adventures $10,000 in a speculation, and there comes back “ to him only his $10,000, this is not. his gross profits, nor indeed any “profit at all. If a man pays out in discounted interest $43,960.06, “ and there comes to him of that transaction, $44,638.01, his gross "profit is $677.95.”

Again:

“ Defendant’s books produced in court show that during the entire “year of 1898, it collected $44,638.01 of interest. Its revenues from “exchange was $16,286.24, which represents its profit in that branch ot “ a business. The $44,638.01 appearing in the ledger interest account “does not represent defendant’s gross profit of interest, but that de- “ fondant’s gross profit was $677.95, being the difference between inter- “ est paid out bsr it and interest received by if.
“ Witness explains that wlien defendant lends money, it draws a bill “of exchange upon which.one of the local banks advances the money, “which defendant pays to the borrower. The bank which furnishes “ the money upon defendant’s bills of exchange, charges defendant in- “ terest for that money, and defendant charges interest to the borrower “ to whom it pays the money. Defendant’s gross profit is its share of “ihis interest.”

The representative of the respondents as a witness, explains its operations, and says, that notwithstanding there was purchased foreign exchange which resulted in the collection of $44,638.01, during the year, yet it expended $43,960.06 in discount, and left only $677.95 as its total or gross profits.

The contention of plaintiff’s counsel, on the other hand, is that the $44,638.00 represents the respondent’s gross profits upon which its license should be calculated.

The manager of the company, in the course of his interrogation, made the following responses, viz:

Q. — Mr. Breton, how much money did you lend out during the year 1898?
********
“ A. — $44,638.01.
“ Q. — What was your revenue from exchange account during that year ?
“ A. — $16,268.24.
********
“ Q. — The exchange account $16,268.24 represents your profit in exchange account?
“ A. — Yes, sir.
“ Q. — The $44,638.01 in your interest account — what does that represent?
“ A. — Amount of interest collected here and elsewhere.
Q. — Does that represent your gross profit ?
“A. — No, sir.
“ Q. — Why not?
“A. — Because, if I borrowed money in New York, or London, they charged me interest. My profit is the difference between the two rates.” (Our italics.)

On the pleadings as interpreted by the testimony of this witness, the question at issue was, by the judge a quo, decided in favor of the respondent, and we think correctly.

While the transactions of the respondent, in borrowing and lending money, were large, yet in the course of' its negotiations abroad, it had to expend large sums, whereby its profits were greatly diminished; and in those expenditures it had no interest.

As respondent was simply an intermediary between the .foreign banks that loaned the money, and its local customers, who were the borrowers, its commissions were small.

We think the case was correctly decided.

Judgment affirmed.

Rehearing refused.


author: Breaux, J.

text:
    No. 13,412.
    William H. Hughes vs. E. A. Mattes and Old Bangor Slate Company.
    Syllabus.

      1. In this action by plaintiff against one of the defendants, to recover the price of slates, the latter, as a witness, admitted owing nearly the whole amount claimed and the remainder of plaintiff’s claim is sustained by the testimony.
    2. The debtor’s note for an open account does not, in the absence of an agreement, norate the debt. In obtaining an extension of time and giving a new note without obtaining a surrender of the old note, there was no novation. The obligation itself has never changed, only the evidence of the obligation has changed.
    3. There is no nation en paiement as relates to third persons unless the property donated in satisfaction of a debt is delivered.
    4. An attachment will be maintained in which the amount of the bond is equal to the amount sworn to, though not equal to the amount claimed.
    APPEAL from the Civil District Court, Parish of Orleans — Titeará, J.

      Benjamin Bice Forman, for Plaintiff, Appellee.

      Dinhelspiel & Hart and F. A. O’Sullivan, for Old Bangor Slate Company, Defendant, Appellant and Appellee.

      Walter B. Sommerville, for E. A. Mattes, Defendant, Appellant and Appellee.

      J. Paris Childress, for J. B. Lee, in his capacity of Curator of Estate of Honora Lee, Interdict, Third Opponent, Appellee.
   The opinion of the court was delivered by

Breaux, J.

This action was brought to recover a judgment in the sum of nine thousand nine hundred and fourteen dollars, with interest; and, in that connection, for a writ of attachment against the defendant to attach and seize property to the amount of four thousand dollars, and for a judgment decreeing that property transferred by his debtor to his co-defendant was made in fraud of his rights as creditor.

In his original petition, plaintiff sets out that, in the year 1885, his father, whose rights this plaintiff, being his only heir, inherited, engaged in quarrying- slate, that he appointed E. A. Mattes, one of the defendants, his agent for the sale of slate in Louisiana, and that Mattes, in sixty days after the receipt of each invoice would settle in cash for the slate at invoice prices, or would give interest-bearing notes.

The terms of the agreement are substantially as follows: Plaintiff, successor of his father, was to ship all kinds, and colors of roofing slates to the defendant before named, as ordered, which were to remain the property of the plaintiff until actually sold and delivered by this defendant. All sales were to be governed by the laws of this State. Sixty days after the receipt of each invoice, this Sagent was to pay its amount in cash or in his own notes bearing interest.

The attachment issued in accordance with .plaintiff’s prayer and certain movable property was attached, also the immovable property which the defendant Mattes sold to his co-defendant, the Old Bangor Slate Company, which sale plaintiff attacks as having .been made in fraud of his rights as creditor.

The Bangor Slate Co. filed an exception to the action. Mattes, the other defendant, filed an answer alleging that the attachment had wrongfully issued and denying all indebtedness to plaintiff and averring the insufficiency of plaintiff’s bond.

The lessor of Mattes intervened in the suit, claiming rental to the amount of three hundred and eighty-five dollars. The exception filed by the Old Bangor Slate Co. was overruled. The cause being at issue, it was taken up for trial. During the trial, Mattes obtained leave from the court to amend his answer and alleged novation of his claim by plaintiff. No amendment pleading novation was filed. At another and subsequent term of the court, plaintiff filed an amendment to his petition setting forth that prior to November, 1896, Mattes was plaintiff’s agent for the sale of his slate; that' the notes described in his original petition were executed by Mattes as' evidence of amount due, but that they did not novate the notes pleaded and included in the first petition.

With reference to the novation in question, the evidence shows that when the first notes matured, as they were not paid, other notes were forwarded.

With reference to the sale attacked, it appears that a sale for cash was made as alleged, but in reality in payment of Mattes’ indebtedness to the Bangor Slate Co. The vendor remained in possession from, the date of the sale, and was in possession years after, when the case was tried. The deed of sale contains a declaration that the property was free from mortgage, although there was a mortgage of about four thousand dollars bearing upon the property.

Plaintiff called for the letters of their agent in New Orleans to the Old Bangor Slate Co. They were not produced and no reason given for not producing them. Plaintiff, also, contends that he has established the insolvency of Mattes, and that this insolvency was known to the agent of the Old Bangor Slate Co. in New Orleans.

We are not of the opinion that the relations between the plaintiff and the defendant, Mattes, were those of principal and agent. No question, but that originally their business relations were those of principal and agent, but in the course of time, they were changed, plaintiff becoming the seller, and the defendant, the buyer. Instead of shipping the slate as a principal to his agent to be sold and the sales to be accounted for to the principal, plaintiff shipped his slate to the defendant and charged him with their value as the price. Plaintiff, as originally intended, looks to the claim acquired by the defendant against his customers for payment. He dealt directly with the defendant himself, who furnished his notes as amounts of his purchases from plaintiff became due, that is, after sixty days after the delivery of the slates as stipulated.

While it is true that the indebtedness is not fiduciary in character and did not arise between principal and agent, yet the error in thus alleging was cured by the amendment filed, to which we have already referred, and by the evidence admitted without objection, which proves that the contract was one of sale, and that the obligation did not arise in carrying out a mandate. The total claimed is evidently due. True, the demand, as relates to the amount, is controverted in the answer; even the defendant, however, in his testimony admitted that all the sum which plaintiff claimed was due, save a comparatively small amount. Other evidence than defendant’s admission in regard to his indebtedness, shows that the small amount not admitted to be due is as due as the amount admitted.

Defendant Mattes, in argument, at least, sets up novation and consequent release from his original obligation to pay to plaintiff, as his vendee, and the claim being novated, that the action should fall. The case was argued here as though the issue of novation had been formally pleaded. Evidence on the subject was introduced without objection, and for that reason we consider the point before us for decision. The open account due by defendant Mattes to plaintiff was closed in accordance with agreement and notes were furnished therefor.

The transaction between the parties does not show the least intention to novate. It was done only to facilitate their business and not with the view of any change in the responsibility of- the parties. There was no novation.

The old notes which the defendant claimed were novated were never surrendered to him. At their maturity, as the defendant did not pay them and as he desired more time within which to pay, they were renewed by executing new notes. It appears that the old notes had been deposited by plaintiff, who chose to use the credit which they represented in his business. At maturity, desiring to retain and safeguard their negotiability and to prevent their becoming tainted as past due paper, they were renewed as before stated and the new notes deposited for plaintiff’s account in his business.

Defendant pleads that one of the notes, the last he executed, being for four thousand eight hundred and fifty dollars, was expressly accepted in payment. Plaintiff endeavors to meet this averment by testifying that whatever acceptance there may have been, if any, was the acceptance of his clerk in his 'absence, and without any authority on his part. Considered from any point of view, we do not gather from the testimony that this clerk or the plaintiff intended to accept this note as a total or a partial payment of the claim. Novation is not easily presumed. To effect it, it must appear so evident that there can be no doubt but that novation was intended. Here there was no new obligation between the creditor and the debtor. The old debt remained; it was only the evidence of the old debt that was changed in order to retain the negotiability of the instruments. The whole was a continuing business transaction with nothing during its continuance showing an intention absolutely to satisfy any of the old notes with new ones. Brinkhaus vs. Pavey, 51 Ann. 1334.

Defendant Mattes complains of plaintiff’s action in suing to revoke and set aside the dation en paiement made by him to his creditor, the Old Bangor Slate Co., in satisfaction of a debt due by him to the latter. The Old Bangor Slate Co. has not, in its pleadings, sought to attack this act of transfer. Mattes alone complains.

The district judge, in a carefully prepared written opinion, held, in substance, that plaintiffs demand to avoid this act was sustained by the evidence; that it was evident that the defendant was insolvent and that Wolf son, the agent of the transferree, the Old Bangor Slate Co., who brought about the dation on paiement, was aware of the insolvency and that it, the Old Bangor Slate Co., is bound by the knowledge the agent had; that it is significant that this agent was not called as a witness by this company to refute plaintiff’s ground in this respect; that the defendant company failed to show or explain why it was that it accepted the transfer of property mortgaged for as much as it is worth, a fact which must have been known to the agent who, none the less, accepted the deed, though it contained the declaration that the property was not burdened by a mortgage, and further, that the presumption against the validity of the act was fortified by the continued occupation of the property by the vendor, Mattes, who was at most a nominal lessee; also by the failure on the part of the Old Bangor Slate Co. and its officers to produce the correspondence called for by plaintiff and by completely ignoring plaintiff’s demand in that respect, that is, the correspondence between Wolf son and the said company and its officers relating to this dation en paiement.

We are not inclined to disagree with the conclusions of the judge of the District Court.

After having considered questions relating to the datíon en paiement in all their bearing, we arrived at the 'conclusion that upon another ground, also, the transfer should be pronounced null as regards third persons, and, upon this ground we will rest our decree on this point. There can be no question but that there was a failure on the part of the transferror to deliver the property, and that the transferree never went into possession. We have already stated that this act between the debtor Mattes and the company in question was a dation en paiement. No consideration passed between them; the transfer was exclusively in satisfaction of a debt. The Articles of the Civil Code are clear enough. Delivery is of the essence. Without it there is no dation as to third persons. C. O. 2656. It only remains for us to apply the plain letter of the law and to decree the sale a nullity as to the plaintiff.

This brings up to the objection growing out of the fact that plaintiff, in his petition, asked for a writ of attachment to issue to the amount of four thousand dollars, with a privilege to that amount on the property attached, and in addition for judgment for the amount of nine thousand nine hundred and fourteen dollars, with interest from the date of each note.

Plaintiff chose to limit his attachment to the amount before stated. If he be entitled to an attachment for this amount only, the fact that he claims a larger amount should not prejudice his right to an attachment' for an amount less than his whole claim.

Attachment was sustained in at least two cases in which the amount of the bond was equal to the amount sworn to and was not to the amount claimed. Johnson & Co. vs. Dickens, 5th Ann. 131; Pope vs. Hunter, 13 La. 308. Moreover, no motion to dissolve was ever filed. Defendant Mattes, in his answer, averred, after having pleaded the general issue, that the attachment had “wrongfully issued without just and legal cause upon an insufficient bond.” An attachment may be dissolved on motion or exception. It is not to be dissolved on motion after having pleaded to the merits. Meyers vs. Pavy, 1 Ann. 372; Enders vs. Clay, 8 R. 30; C. P. 344. The defendant pleaded to the merits and, afterwards, on the ground alleged as before stated, sought to dissolve the attachment.

The plea to dissolve was directed against the alleged insufficiency of the bond and inserted in the answer after the defendant had pleaded the general denial. It does not appear that the District'Court’s attention was ever called upon to decide this plea which defendant chose to. present as part of his answer on the merits. No attempt was ever made by defendant to exercise the right he attempted to reserve.

If the court’s attention was directed to this plea, we have not found anything indicating it of record. We infer from the record that the case was tried'on other issues. We will pass upon and decide the other questions raised and now before us in a separate appeal by plaintiff and in another separate transcript.

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

Watkins and Blanchard, Judges, dissent.