author: Eustis, C. J. SniDEim, J. Rost, J.

text:
    I. Clement Camp v. The Church Wardens of the Church of St. Louis and J. P. Kirwan.
    The Wardens of the Church of St. Louis employed Kirwan to rebuild the cathedral, under the direction and superintendence of their architect, according to plans agreed upon. Kirwan employed the plaintiff as his master bricklayer Owing to some defect in the plan, work or materials, and without any fault of plaintiff, a tower fell and indicted on him a severe injury. He sued both Kinoan and the Church Wardens for damages, and a jury rendered a verdict against defendants, in solido, for $2500. On appeal, the verdict was sustained.
    The general rule of law is, that a principal is liable to third persons for the torts, neglects and omissions of duty of his agent, in the course of bis employment.
    Those provisions of law which render the owner of a building liable for the damage occasioned by its ruin, resulting from a vice in its original construction, or from neglect to repair it, are entirely independent of the general rules concerning the responsibilities of masters and employers 5 they are evidently founded in an enlightened view of public necessity; they protect the neighbor and the passenger in the street, and it would be singular, indeed, if the men at work on the building were excluded from their just and salutary operation. Per Eustis, C. J.
    In an ordinary case, where a landholder makes a contract with an undertaker to erect buildings on bis land, and in the performance of the work, by the undertaker, an accident occurs to an individual, whether a passerby or a person laboring at work; the landholder who has not resumed possession, and who has used reasonable diligence to select a discreet and competent undertaker, is not answerable to the person injured. Whatever responsibility there may be for such accident, is thrown upon the undertaker, by the article 2739 of the Civil Code.
    I3ut, where the landowner retains a continuous and active direction and control over the work, he is answerable for an injury sustained by a workman, in consequence of its defectiveness. Per Slidell, J.
    The responsibility which articles 2299 and 2302 create against the master and house-owner, is of the same nature and degree. As a general rule, under these articles, the master and house-owner are alike responsible for slight neglect.
    The plaintiff having been employed as master mason, by the contractor, Kinoan, stands towards the house-owners and contractor as if ho had been employed by themselves. They were bound only to use ordinary diligence in the selection of their architect and their builder; and as the men selected had been long engaged in those pursuits, and had the reputation of beingpersons every way competent to the task, due diligence was used; an action, therefore, cannot be maintained against them.
    A master is not responsible to his servant, for an injury sustained by such servant, in consequence of the negligence of a fellow servant, provided the servant injured was, at the time, acting in his master’s service, and the servant causing the injury was a person of ordinavy skill and care. Per Rost, J., Preston, J., concurring.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Cy fríen Qufour and P. G. Owvellier, for plaintiff.
    The plaintiff contends that bbth defendants are responsible, jointly and in solido, unto him, for the damage which ho has sufferod, and he bases his action upon the following propositions: 1. Every act whatever of man that causes damage to another, obliges him by whose fault it happened, to repair it. C. C. La. art. 2294. C. N. art. 1382. 2. Every person is responsible for the damage he occasions, not merely by his act, but by his negligence, his imprudence or his want of skill. C. C. La. art. 2295. C. N. art. 1383. 3. We are responsible not only for the damage occasioned by our own acts, but for that which is caused by the act of persons for whom we are responsible, or of things which we have in our custody. C. C. La. art. 2296. Masters and employers are answerable for the damages occasioned by their servants and overseers, in the exercise of the functions in which tliey. al'e empleó- c- c- La. art. 2299. C. N. art. 1384. 4. The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction. C. C. La. art. 2302. C. N. art. 1386. 5. Corporations are bound by the acts of their agents, when these do not exceed the limits of the administration which it entrusted to them. C. C. La. art. 430.
    In addition to the articles herein cited, the counsel for plaintiff beg leave to call the court’s attention to the following list of authorities: Toullier, liv. 3. lit. 4. Des engagements qui se forment sans convention. Domat, Lois Civiles, liv. 2, tit. 8. Delvincourt, tome 2, p. 452. Dalloz, verlo Responsabilité. Duranton, tome 13, No. 729. Malleville, sur Particle 1386. Favard, verbo Debts and quasi Debts. Pothier, Obligations, No. 116 a 453. Starkie on Evidence, verbo Nuisance. Merlin Réportoire verbo Quasi, 10. Ib. Dommage. Journal du Palais, vol. 10 (1812) page 908. Power — c.—Moreau. As to tho measure of damages the counsel refer to : Greenleaf on Evidence vol. 2, verbo Damage ; to the case of Brown v. Ponchartrain Railroad Company, 8 R. R. 45, and to the case of Carnatz v. The Mexican Gulf Railroad Company, lately decided by this honorable court and not yet reported.

      Durant and Roselius, for Kirwan.

    What was the relation of the partiesen this suit. The Church Wardens were the owners, and the employers of Kirwan, directing and binding him to build their cathedral under the superintendence of Depouilly, architect. Camp, plaintiff, was employed by Kirwan. Now, admitting that, under the legal principle here laid down, Kirwan is liable for all damages caused by the act of Camp in discharging the duties of a bricklayer, to whom is he liable ? What does the law moan 1 Why, clearly, that he is liable to third parties for the injuries Camp may do to them, but not to Camp for tho injuries he may do to himself. Under this principle of Jaw, it must be contended that Kirwan is liable either for the act of Camp or that of Depouilly ; but if Camp chooses to pull the tower down on his own head while Kirwan is away, why should Kirwan suffer for it in payment to Camp, when Kirwan knew nothing of what Cnmp was about, and himself suffers severely in the loss of his money, materials and contract ?

      Wigmore v. Jay, see Boston Law Reporter for December, 1850, pp. 380, 393, 394 : “ A party who had contracted to erect a building, employed some bricklayers for the purpose, and it being his duty to provide the proper scaffolding, entrusted the care of this to his foreman. The foreman having used bad material in tlie construction of the scaffolding, it broke, and one of the bricklayers was killed : Held, that in the absence of proof, that the foreman was a person deficient in skill or improper to employ for that purpose, no action, under the 9 and 10 Vic., c. 93, was maintainable by the personal representative of the party killed against the common employer.”

      Benjamin and Micou, for the Church Wardens.
   The court was equally divided in opinion.

Eustis, C. J.

The plaintiff obtained a verdict against the defendants for the sum of twenty-five hundred dollars, damages lor injury to his body and limbs, caused by the falling of the central tower of the cathedral of St. Louis, in New Orloans, on the 19th of January, 1850. On this verdict, judgment was rendered. An application for a new trial, was refused by the judge. Wo infer, from his reasons given for refusing the new trial, that he acted rather with a view to a final determination of the cause by this court, than from any strong convictions of the correctness of the verdict. The defendants have appealed. The amount allowed the plaintiff, has not been contested in this court, the argument being confined to the right of the plaintiff to recover any damages against either of the parties defendant. The amount of the injury received by the plaintiff, and the fact of the accident being assumed, the cause of action is thus stated for the plaintiff:

The plaintiff is a master mason and bricklayer, and was employed by Kirvjan, who was the contractor, for the rebuilding of tho cathedral, as his foreman brickíayor; lie was at work on the tower when it fell, and fell with it. It is alleged in the petition, that the plaintiff was employed by Kirwan, under his contract with the Church Wardens, and a clause in the contract is relied upon as fixing the responsibility on the corporation of the church. The clause provides, that the said Kirwan binds himself to execute, in a good and workmanlike manner, with the best materials to be provided and paid for by. him, under the direction and superintendence of Mr. J. N. Depouilly, the architect appointed by the wardens; or, in his default, of any other person appointed, &c., all the works described in said contract. The petition charges, that the fall of the tower was the consequence of capital defects in the plan on which the rebuilding of the edifice was to be effected, and also the unskillfulness, neglect and imprudence of Kirwan in his work. The plaintiff was employed by the defendant, at the rate of sixty dollars a month, and when he came to the building, Kirwan pointed out to him, Depouilly, who was architect of the wardens, and designated him as the person under whose directions he was to act.

The opinions of two witnesses, whose testimony was taken on the trial, concur in assigning for the fall of the tower, three principal causes: 1st, that the work was advanced too rapidly and in bad weather; 2d, that the new work had not been sufficiently anchored or secured with the old work; and, 3d, the removing of the centre from under the arch. The height of the tower when it fell, was seventy-eight feet; the span of the arch was sixteen feet. On the 16th of January, the centre or wooden frame upon which the arch had been turned, was removed by the orders of Depouilly, and on the 19th following, in the morning, the tower fell.

I do not think the evidence discloses any negligence or fault on behalf of the plaintiff, which contributed to the accident, and would, if established, defeat his action under the rule recognized in the cases of Myers v. Perry, 1 Ann. 372 Carlisle v. Holten, 3 Ann. 48, and Murphy v. Diamond, ib. 441.

The wood frame was removed from the arch fifty-one days after the arch was completed ; and the removal was made by Camp, the plaintiff, by the positive order of Depouilly, who superintended the work, as the architect, according to the requisitions of the contract with Kirwan.

I think the evidence establishes clearly, that the removal of the wooden frame from the arch, was the immediate cause of the accident. But we think it equally clear, that the tower would not have fallen, had the arch been properly constructed, as to workmanship and materials, and the superincumbent weight been properly distributed according to the rules of art. The primary cause, vve have no means of ascertaining, the evidence on that point being altogether unsatisfactory. We shall proceed to consider the liability of each of the parties defendant, under the state of fact which 1 think the evidence presents.

By his contract with the Church Wardens, Kirwan’s work was to be executed in a good and workmanlike manner, with the best materials, under the direction and superintendence of Depouilly, the architect appointed by the wardens, or some other architect by them selected, and agreeably to the plans and drawings to be furnished by him, the said Depouilly, in accordance with the plans annexed to the contract. Accordingly, Depouilly used to visit the building two or three times a day; examined and inspected the work as it progressed ; and on the 12th of January, four days before he directed the removal of the frame which supported the arch, he gave Kirwan an order for the payment of $2500, being the tenth installment duo according to the contract, which order was paid on that day. It appears, that Depouilly’s superintendence was aided by a building committee, appointed by the wardens, according to the contract; and it was upon their written orders, as well as Depouilly’s, that the several installments were paid.

In this connection, it is proper to remark, that so far as third persons are concerned, the work must be considered as'having been delivered as paid for. Code 2732. I find nothing in the law or the facts of the case, which relieves the Church Wardens from the liability imposed by law on the owners of buildings which have fallen down. In regard to that liability, it is not material to scrutinize the evidence as to the original cause of the falling of the tower. Whether the cause was in the plan or in its execution, it fell, and caused the plaintiff damage ; and it results from the evidence, that there was some defect in plan, work, or materials ; no other cause for its falling, having been made out in the evidence or shown in the argument.

The general rule of law is, that a principal is liable to third persons for the torts, neglects and omissions of duty of his agent, in the course of his employment. The rule is founded upon public policy and convenience; for, were it otherwise, there would be no safety to third persons in dealings with him, through the medium of agents, and no protection against injuries caused by the careless and reckless selection of incompetent or worthless agents. Pothier on Obligations § 121, § 453. Droit civil de Toullier, book 2, tit. 8 § 284, vol. 11.

It is contended, on behalf of the Church Wardens, that the facts in evidence bring this case within an exception to the rule, which is, that the relation of principal and agent, master and servant, creates no contract, and, consequently, no duty, on the part of the principal, that the agent or servant shall suffer no injury from the negligence of others employed by him in the same business or service; and that in such cases the servant and agent takes upon himself the hazards of any such business or employment, and the case of Hubgh v. The Carrollton Railroad, recently decided, but still under advisement, is referred to as recognizing this exception. The application of the rule was recognized in that case. The principle, or one of the principles upon which that case was decided was, that no party is entitled to reparation for an injury, to which he has contributed by his own fault or neglect; a rule which we have frequently enforced in cases of injury, from causes which are dangerous and affect the public safety. And, in the present case, if from the evidence, I thought the plaintiff was in that category, I should conclude that his action would fail on that ground. He was employed as foreman of the bricklayers, and I do not find that any fault or neglect on his part has been established, although my impressions on the argument of the case were otherwise. An examination of the testimony has satisfied me, that the finding of the jury ought to be undisturbed as to this part of the case. The decisions cited by counsel in support of this exception to the general rule, have gone to the extent contended for, and it may be considered as the established law in England. In the United States cases ofits application, in dangerous works, are constantly occurring, There is no necessity in the present case, of determining to what extent these decisions would be recognized as authority, under our jurisprudence. The principal cases are Priestly v. Fowler, in the Exchequer, 3 Meeson and Welsby, 1. Hutchinson v. York Railway Company, Law Reporter of February last, vol. 3, No. 10, 587, and cases there reported. Farewell v. Boston and Worcester Railway Company, 4 Metcalf, 49. Murray v. South Carolina Railway Company, 1 McMullan, 385. Winterboltan v. Wright, 10 Meeson and Welsby, 109. Strange v. McCormick, Law Reporter for April 1851, decided in the district court of Alleghany county, Pennsylvania. Daniels v. Mann, 10 Meeson and Welsby, 546.

The Court of Cassation, in 1841, recognizes no such exception to the general rule, of the responsibility for the acts of servants in the business of their employment, and held, that no such exception existed under the Code Napoleon. Reygasse v. Plazen, Dalloz R. 1841, 1st part, 271.

The case is one of the falling of the wall of an unfinished edifice, in the centre of a populous city, and on the line of one of the principal streets. The protection of the public against accidents of this kind, has been specially provided for by the former and present laws of Louisiana.

The Roman law, which guarded with so much care, the safety of the citizen and the protection of his property and- person, gave the right to the neighbor of a building, which threatened to fall, to demand security from the owner or possessor against the impending damage, cantío damni infecti. If the security was not furnished, the prator was authorized to put the complainant in possession of the building. Law 40, f. de darmo infecto, 39, 2. The laws of Spain and of France have ample provisions on this subject. Partida 3, tit. 32, laws 10,11. Doinatlib, 2, tit. 8, § 3. Toulliervol. 11, 317. Our code gives the neighbor a right of action against the proprietor, to compel him to demolish or prop up a building which threatens to fall. Art. 667.

The art. 666 provides, that every one is bound to keep his buildings in repair, so that they neither fall, nor any part of the materials, composing them, may injure the neighbors or passengers, under the penalty of all losses which may result from the neglect of the proprietor in that respect.

The owner of the building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair, or when it is the result of a vice in its original construction. Art. 2302. The damage caused, is not always estimated at the exact value of the thing destroyed or injured ; it may be reduced according to circumstances, if the owner of the thing has exposed it imprudently.

That these provisions are entirely independent of the general rules concerning the responsibilities of master and employers, and not in any manner connected with their relations, is shown conclusively by their place in the code. These articles are in the same chapter, and follow immediately that which provides for the latter, which is numbered 2299. They are evidently founded in an enlightened view of public necessity. They protect the neighbor; the passenger in the street; and it would be singular, indeed, if the men at work at the building wore excluded from their just and salutary operation,

It seems to me obviously to follow, that the undertaker, who puts up to the danger of the public a building defective in plan, materials, or work, is equally liable, in principle, with the owner, for damage occasioned by its falling down. Indeed, a stronger moral responsibility exists on his part. The owner is rendered liable from the policy of the law alone. He rarely knows any thing about the security of the work, either resulting from the plan or its execution. On the other hand, in the eye of conscience, the undertaker is the responsible man.

I do not find any legal reason, which can exempt Kirwan from his responsibility with his co-defendants. It is said, that the frame was removed 'by the order of Depouilly, during the absence of Kirwan from the building. This fact is not proved, and if it had been, would not have altered the case. The fall of the tower did not take place until the third day after the removal of the frame, and front the testimony, and from the duties of Kirwan, the jury were authorized in acting on the knowledge and approval of Kirwan, of the ramoval directed by Depouilly, which was clearly within his powers of direction end superintendence conferred on him by the contract.

The undertaker is responsible for the deeds of the persons employed by him. Code 2739.

The judges of the court being equally divided in opinion in this case, the judgment óf the district court is therefore affirmed, with costs.

SniDEim, J.

I consider the verdict of the jury as finding these facts: 1st That there was no negligence or fault on the part of Camp, contributing to the disaster by which he suffered. 2d. That there was fault on the part of Kirwan, which did contribute to it. 3d. That there was also fault on the part of the corporation, through its building committee, (composed of its own directors,) and its selected superintendent, which contributed to the disaster.

I think the evidence in the cause authorized this finding.

It does not seem to me to be the duty of a jury or court, to measure the comparative degrees of negligence and fault, on the part of the respective defendants, so far, at least, as the plaintiff is concerned.

I think that in an ordinary case, where a landholder makes a contract with an undertaker, (as he is termed in our code) to erect buildings on his land, and in the performance of the work, by the undertaker, an accident occurs to an individual, whether a passer by, or a person laboring at the work, the landholder, who has not resumed possession, and who has used reasonable diligence to select a discreet and competent undertaker, is not answerable to the person injured. It seems to me, that whatever responsibility there may be for Buch accident, is thrown upon the undertaker, by the article 2739 of our Civil Code. But the Church Wardens took their case out of the ordinary category, by retaining a continuous and active direction and control over the construction of the work. By reason of the exercise of this discretion and control, they, in my opinion, are answerable to Camp for the consequences of the defectiveness of the work, and especially for the premature removal of the frame work, in the absence of Kirwan, and without, at all events, his contemporaneous concurrence.

I concur with the chief justice, in the conclusion, that the judgment should be affirmed.

Rost, J.

The plaintiff was employed by J. P. Kirwan, as master mason, in the reconstruction of the Church of St. Louis, which the said Kirwan had undertaken, under a contract, with co-defendants.

When the tower of the church had been raised to the height of seventy-eight feet, it fell suddenly. The plaintiff was at work upon it at the time, and fell with it. The injuries he received by the fall, are of a serious and permanent character.

This action is brought under art. 2299 of the code, which provides, that masters and employers are answerable for the damages occasioned by their servants and overseers, in the exercise of the functions in which they are employed ; and also, under art. 2302, which makes the owner of a building answerable for the damages caused by its fall, when that fall is the result of a defect in its original construction.

The defendants pleaded the general issue; and the church wardens further averred, that the building was in possession of Kirwan, under a contract, at the time of the accident, and that they were not responsible for it.

There was judgment against both defendants, in solido, for $2500, and they have appealed.

Before going into an examination of this case, it is necessary to premise that, so far as the two articles of the code relied on, apply to this case, the responsibility which they create against the master and house-owner, is of the same , . . a , , - , , , nature and degree. As a general rule, under these articles, the master and house-owner are alike responsible for slight neglect.

The policy of those provisions of law is not denied, and if the plaintiff was a stranger to the defendants, his right to recover would be undoubted. But, the facts being found in his favor, by the verdict of the jury, this case again presents the question so much discussed in the case of Hubgh v. The New Orleans and Carrollton Railroad Company, whether the rights of servants, against their master or employer, in such cases, are the same as those of strangers.

It is a singular fact, and one which, in my opinion, is not withont weight against the pretensions of the plaintiff, that although the institution of master and servant is the most ancient of social institutions, and cases, such as this, must have occurred in every country from the beginning of time, they have not, until within a few years, formed the subject of judicial adjudication. This clearly shows, that whatever the law may be, the common sense of mankind is against the maintenance of such actions. Of late, however, many such actions have been brought in England and the United States, and we have been favored with one decision of the Court of Cassation on the same point. Hutchinson v. The York, Newcastle and Berwick Railway Company, 14 Jur. part 1, p. 837. Wigmore v. Jay, 14 Jur. part 1, pp. 837, 838, 841. Priestly v. Fowler, 3 M and W, p. 1.

The decision in France is directly adverse to those made in England and the United States. It places servants, in all cases, on the same footing as strangers, while the English and American courts hold,- as we did in the case of Hubgh, that the master is not responsible when the servant, by whose fault the injury occurred, was a person of ordinary skill and care. Those countries being governed by different systems of jurisprudence, it might, at first sight, be supposed that the conflict in the decisions of their courts, arose from different legislation. But their disagreement is not to be explained in that way. The decisions made on both sides, show that the law, so far as it protects strangers, is the same under the two systems, and it will- be conceded that in both, the contract of hire, of labor and services, is considered as arising from natural law, and subject to precisely the same rules. Story on Bailments, par. 454.

The civil and the common law being the same, there must be error on one side in the interpretation of it. In France, we find but one case which does not appear to have been fully argued. In England and in this countiy, the question has been viewed in all its bearings, and thoroughly examined in a series of uniform adjudications. Under those decisions, the exemption, from responsibility in the master, has not been limited to cases where the employment of the servant was of a dangerous kind. The greater or less danger, attending the particular employment could not be converted into a rule of law, and if it could, the present case would not come under it, as there are few employments more dangerous or more trying to the nerves, than the building of a high tower.

The English and American cases have been put upon the broad ground, that the servant undertakes, as between himself and his master, to run all the ordinary risks of the service, and that this includes the risk of accidental negligence, on the part of a fellow servant, while in the discharge of his duty.

It would be a great error to suppose this to be an arbitrary rule. It is deducible from elementary principles of law. There is no contract between tho owner of the house and the neighbor or passenger, which can at all modify the fundamental rule, that every man is bound to use his own property, so as to cau3e no ™julT t0 others; and he is accordingly held responsible to them for slight neglect, in the use or' care of it. The case is different, however with regard to servants and overseers. As to them, there is, either in fact or in legal intendment, a contract under which the owner receiv.es labor or services, and the servant their value. They are both under obligation, no doubt, to execute the contract in good Faith. But it is a contract of mutual benefit, in which ordinary diligence only is required from either. Pothier, Traite du depot, No. 23. Story on Bailments, par. 429.

The plaintiff having been employed as master mason, by the contractor Kirwan, stands towards the other defendants as if he had been employed by themselves. They were bound only to use ordinary diligence in the selection of their architect and their builder, and as the men selected had been long engaged in these pursuits, and had the reputation of being persons every way competent to the task, I am of opinion, that due diligence was used, and that this action cannot be maintained against them.

If it should be true, in fact, that the architect and builder were unskillful or habitually negligent, the plaintiff, who was working with them, and under them, had a much better opportunity of discovering their deficiencies, than the religious corporation whom he sues. After agreeing to do the work of one of them, according to the directions of the other, he could hardly be permitted to allege their habitual negligence or total want of skill. The injury which he has suffered would, in that case, have been the result of his own imprudence.

I believe that the architect and builder were such, as a prudent father of a family would have been justified in employing. This is sufficient to exempt the corporation from liability,.

The claim against Kinoan, is equally unfounded ; no want of ordinary skill or prudence on his part has been shown. The plaintiff agreed to work exclusively by the directions of Depouilly. He was working under those directions when the work fell, and he sustained the injury for which he claims reparation. If the plan which Depouilly gave, or the manner in which he caused the work to be done,'were defective, Kirwan did not assume towards the plaintiff the risks arising from those defects. He is protected against them by the directions he gave the plaintiff, and by the fact, that Depouilly was reputed a skillful architect. If, on the other hand, the manner of doing the work under the direction of Depouilly was defective, the plaintiff so far from having an action against the defendants, is responsible to them for the loss they have sustained.

The distinction established by the English courts, between the responsibility of the master to servants and to strangers, is clearly established by article 666 C. C., which being in pari materid, cannot be considered otherwise than as limiting the application of article 2302, to neighbors and strangers, and leaving the responsibility of the master to his servant, to the operation of the contract between them and the laws applicable to that contract. It is in consequence of overlooking this express limitation, that the Court of Cassation, in the case cited, held the master answerable to his servant, for slight neglect, in violation of elementary principles.

I adhere, therefore, to the principle deduced alike from the decisions of the English and American courts, and from the rules to which the contract of letting and hiring labor and sorvicos, is subject under our law, that a master is not responsible to his servant for an injury sustained by such servant in consequence of the negligence of a fellow servant, provided the servant injured was at the time acting in his master’s service, and the servant causing the injury was a person of ordinary skill and care.

Preston, J. I concur in the opinion delivered by Mr. Justice Rost in this case.

Benjamin and Micou, for a re-hearing. The questions of law presented by the case are the following:

1. Is an owner of property liable for an accident happening to a third person, by the fall of a building, which is in the hands of a contractor, by the job or plot, before the delivery of the building to the owner?

2. If responsible to third persons, is there or not an exception to this responsibility with regard to the workmen employed on the building.

I. On the first question it is to be observed that, according to all the authorities, the responsibility of one person for the quasi cUlits of another is exceptional; that it is to be confined strictly to the special cases enumerated in the law, and is not to be extended by construction. This view of the subject is supported by the plainest dictates of justice, for in the absence of a contract, it is only in case of fault that one man can be morally bound to pay money to another.

The general principle is laid down in the clearest terms in our code, in the art. 2294 : “Every act whatever of man that causes damage to another, obliges him by whose fault it happened, to repair it.

Then comes the exception to the rule, which confines the responsibility to the author of the injury done.

Art. 2296. “We are responsible not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” Plain, definite, and not to be,, misunderstood. “Persons for whom we are answerable,” and things which we have in our custody.” Was our contractor a “ person for whom we were responsible?” Was the cathedral “a thing in our custody?” The art. 2296, however, contains this additional clause, in speaking of the responsibility of one man for the acts of another: “This, however, is to be understood with the following modifications.” Here follows a series of articles describing the modifications: 2297 contains those resulting from the duties of father and mother, tutors and curators of minors; 2298, those of curators of the insane; 2299, those of masters and employers; 2300, those of owners of slaves; 2301, (hose of owners of animals ; 2302, those of owners of buildings.

Now, it is perfectly apparent from this collocation of these seven consecutive articles, that the last six are, in the language of the lawgiver-, “ the modifications” of the first; that they form one whole to be taken together, and that in determining the meaning of the six separate species enumerated, we must look to the genus which comprises them all. It is, therefore, a sound conclusion that these several responsibilities result, because, as is stated in art. 2296, they arise in cases where the parties charged are either “answerable for others,” or are “in custody of the thing.” 2297-8 and 9, are cases of “ persons answerable for others,” 2300-1 and 2, are cases “of persons having custody of things.”

Now, the article 2302, under which it is said we are liable, provides, “that the owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.” But the ground of this responsibility is found in the previous general art. 2296. It is because the owner “is in custody” of the building. If, however, he is not, if the custody has not yet been given up to him, if the building, as in the present case, was at the risk of the contractor, as provided in art. 2729, then the reason for the responsibility does not exist, and the maxim applies cessanie ratione, cessai etiam lex.

It was on this view of the law that we based our plea denying the legal responsibility, under the averment that we had delivered up possession to the contractor, and that the building “ was not in our possession norunder our control and, indeed, the opinion of liis honor the chief justice appears to admit, that this construction of the law is sound, and that, until delivery to us, the responsibility on our part could not arise. The opinion contains this passage:

“In this connection it is proper to remark, that so far as third persons are concerned, the work must be considered as having been delivered as paid for. Code ° l

, ,. , , , ,, „ , , , , . . We believe this to be the first time such a construction has been given to this art. of thq code, and feel satisfied, that a more rigorous examination will convince the court, that neither the letter nor the spirit of the art. will admit of this interpretation. The stipulation of the contract, as to payments, is, that the contractor is to receive for the whole $77,000, “payable in manner following, to wit: thirty thousand dollars during the progression of the work, at the rate of twenty-five hundred dollars per month, on the certificate of the architect, stating that the work done warrants the saidpayment; and the balance of $47,000 at two, three, four, five, six, seven and eight years, from the date of delivery and acceptance of the work, in bonds, &c.”

Now, let us compare with this stipulation the language of art. 2732: “If work be composed of detached pieces, or made at the rate of so much a measure, it may be delivered separately, and that delivery shall be presumed to have taken place, if the proprietor has paid to the undertaker the price due for the parts of the work which have already been completed.”

Surely no argument is necessary to prove, that the cathedral is not a work composed of detached pieces, and as little is required to establish that, when a gross price is agreed to be paid for an entire work, this work is not “ made at the rate of so much a measure.” Our contract is clearly that which is defined by law as onecer aversionem.

The language of the court is, that this delivery has taken place “so far as third persons are concerned.” As the law makes no distinction of the kind here suggested, and as there is nothing, in the evidence, to give rise to any idea that third persons have been deceived by any apparent delivery, we submit, that it is unnecessary to examine whether cases might not possibly arise, authorizing a distinction between a delivery quoad the parties, and one quoad third persons, and that it suffices to say that, there is nothing peculiar in the mode of payment or the manner of making it, as provided by the present contract. The payment of part of the price, as a building progresses, and the balance on delivery, is not only the common but the universal usage of the country, and we doubt if a single contract for building can be found in the State, which does not contain a stipulation similar to that inserted in our agreement.

The French Code, art. 1791, is the same as the art. 2732 of our Code. When the French Code was submitted for discussion, the Court Royal of Toulouse gave it the same construction, as is given in the opinion of the chief justice in this case, and therefore objected to the article as being unjust towards the owner. Troplong explains the error of that court. If its construction of the article had been correct, the article would have been rejected; but it was retained in the French Code, because that construction was erroneous. Troplong says : “ La cour de Toulouse ne faisait pas attention & un point important dans l’article 1791. 'C’est qu’il n’est pas du tout dans sa pensée de considérer eomme une présumption de vérification, des á comptes donnés avant le commencement des travaux, ou méme des á comptes payés dans le courant du travail, mais sans imputation sur telle ou telle partie ; l’article 1791 a pris soin d’expliquer sa portée par ces mots trés significatifs : si le maltre payé l’ouvrier en proportion de l’ouvrage fait, ce qui veut dire que le payment n’éléve une fin de non-recevoir contre les plaintes du maítre, qu’autant que l’á-compte a été donné avec la volonté de l’affecter á telle ou telle portion de l’ouvrage déja terminé. Autant il est raisonable entendu en ce sens, autant il serait absurde, si on lui donnait la signification que la cour de Toulouse apercevait en lui. Troplong, Echange et Louage, vol. 3, No. 990.”

It may not be improper in this connection to remark, that the whole chapter, which Troplong devotes to this interesting subject, from No. 959 to 1030, show the French law to be in entire harmony with that of England and the United States, and we respectfully refer to it to establish also the additional principle, that where the work falls to ruin during its progress, the presumption of law is, that it is the fault of the builder, and that the whole burthen of proof is thrown on him with such severity, that it is not sufficient for him to show that “force majeure ” caused the damage; he must also show, that his fault did not contribute to it. See specially the paragraphs Nos. 987-8 and 9, 995, &c.

We have thus far examined the subject only in reference to those dispositions of the law, which render the owner of a thing responsible for the injury caused by that thing whilst in his custody. Let us now regard it in. another aspect, that of the person responsible for damages occasioned by the fault of those “ for whom he is answerable.” The only article in the code applicable by possibility to the present case, is the 2299th: “ Masters and employers are answerable for the damage occasioned by their servants and overseers, (lews domestiques; et préposés,) in the exercise of the functions in which they are employed; teachers and artisans, for the damage caused by their scholars and apprentices, while under their superintendence.

“ In the above case, responsibility only attaches when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.”

Let us for the sake of argument grant, that Depouilly was our overseer, (pireposé,) that the fall of the wall occurred by his fault, that it is logical to say, that the cause of the fall was not the defect of the work, but the taking out of the centre, and that the plaintiff was injured by the fault of Depouilly ; we still assert, with entire conviction of the truth, the position that the wardens are not responsible under the law.

It is a curious and instructive fact, that the authors of our code have reversed the rule of the French law, in talcing this aticle fnom the Napoléon Code. The French lawgiver, acting upon the principle, that the responsibility for faults of others was exceptional, limited by art. 1384, the liability of fathers and mothers to the cases where they might have prevented the damage, and have not done so. But it left the responsibility of masters and employers unlimited. Our code reverses this disposition. It limits the responsibility of the master and employer, and leaves that of the parent unlimited. The French law on this point follows the doctrine of Pothier. Treatise on Obligations, No. 121.

Now we aver, that even under the French law, with the unlimited responsibility of the employer, the plaintiff, in this case., would fail in his action.

In the case of Platel v. Pichon and Omaere, Sirey 42, 2, 49, the Court Royal of Douai, held in the case of a workman employed on a roof, who had caused damage by letting a piece of wood fall on a person in the street, that the art. 1384, which made employers liable for the acts of their overseers or préposés, is not applicable to the case of work confided to a, person of a known and definite profession or calling, foreign to the knowledge and personal habits of the owner. That it is only applicable to cases where the workman or overseer, is supposed to be placed as a substitute to replace the owner; and the distinction is a clear and reasonable one. If I employ a man to see to the removal of my furniture out of my house ; he replaces me as a substitute. I could do this myself, but choose to put another in my place, and I respond for him. But if I employ an architect, who is a professional man, to superintend a building, the case is no longer the same; I am unable to do it myself from want of knowledge of the art of a builder. He is not doing for me as a substitute, what I could do for myself, but he is hiring to me his professional skill, in the same manner as the builder hires his. Such was the opinion of the Court of Cassation, which says, that if the doctrine of the plaintiff were admissible, there is not a case in which a man employing a workman could escape responsibility, and that such a construction is inadmissible, because a law which imposes on one man liability for the act of another, is an exceptional law, to be restrained instead of extended.

II. The second question which we proposed to discuss was this, whether the owner of the property, even admitting his responsibility to third persons, could be liable to one workman or servant for the quasi-délet of another workman or servant, employed in a common work or service.

The opinion of the Chief Justice on this point, concedes that the rule for which we contend, “ may be considered as the established law in England.” It goes on to say, “that in the United States cases of its application in dangerous works are constantly occurring. There is no necessity, in the present case, of determining to what extent these decisions would be recognized as authority under our jurisprudence.”

As the rule of the English law is not conceded to exist to its full extent in the United States, we desire first to show that the limitation of that rule to “ dangerous works,” is without foundation in reason, and derives no countenance from authority. It is introducing a new, unsatisfactory and indefinite element in the solution of these questions already sufficiently embarrassing in their nature. If the rule is admitted in any case, it will be found on an investigation of the principles which support it, that the greater or less degree of danger does not at all a^'ecf: <Iuesti011- What is a dangerous work ? The insuperable difficulty of defining such a limitation of the rule; the impossibility of applying it with certainfy, except in extreme cases, would be sufficient reasons for refusing to adopt it in any jurisprudence.

In one of the cases from England cited by us, that of Priestly v. Fowler, 3 Meeson and Welsby, p. 1, where a servant of a butcher sued him for injury suffered by the breaking down of a van or cart, driven by a fellow servant, in which van the plaintiff was carrying the defendant’s goods, by orders of the latter, Lord Abinger, the organ of the court, gave the reasons at length on which the defendant was exonerated. Not one of them is based on any technical doctrine of the English law, but on the nature of the contract between master and servant. He says, in the course of his judgment, that if the plaintiff’s action could be maintained, the principle of liability would be carried to an alarming extent. He cites a number of supposed cases, and amongst them says, “that under such a rule, the master would be liable for the negligence of the builder, for a defect in the foundation of the house, whereby it fell and injured both master and servant by the ruins.” He continues, “ The inconvenience, not to say the absurdity of these consequences, affords a sufficient argument against the application of this principle.”

It is a singular example of the diversity of human judgment, to find a rule upheld by a judge in Louisiana as a salutary rule of public policy, and denounced by another, in England, as inconvenient and almost absurd in its consequences, Both judges bring to bear on the question a large experience and profound knowledge of the law: both consider it without reference to authority, and roason on it as res integra, and their examination leads them to conclusions diametrically opposite to each other.

It is to be observed, however, that the judgment of the English Court was the unanimous opinion of the Exchequer Bench, and has been approved, commented on, and adopled by every State in the Union where the question has been discussed; not one case is cited to the contrary; and, we repeat, this has been done not with reference to any special legislation or technical rule pecular to the common law, but on the eternal and all-pervading principles of natural reason and of justice.

In Farwell v. Boston and Worcester Railroad Company, 4 Metcalf, 55, Chief Justice Shaw delivered the unanimous opinion of the court, and begins by stating, that the question is of new impression, and involves a principle of great importance. The plaintiff was an engineer on a steam car of defendants; one of his fellow servants, in the employ of the company, turned the switch the wrong way, from negligence and carelessness, whereby the plaintiff was thrown off the car and injured. The case is stated by the court to be brought, on the ground of quasi delit; it is admitted in the case, that the act done by the servant, in the course of his employment, is considered in contemplation of law, so far the act of the master, that the latter shall be answerable civililcr. But the court go on to say, on the question now under consideration: “ But this pre-supposes that the parties stand to each other in the relation of strangers, between whom there is no privity; and the action in such case is an action sounding in tort. The maxim, respondeat superior, is adopted in that case from general considerations of policy and security.' But this does not apply to the case of the servant bringing his action against his own employer, to recover damages for an injury arising in the course of that employment, where all such risks and perils as the employer and the servant, respectively, intend to assume and bear, may be regulated by the éxpress or implied contract between them, and which, in contemplation of law, must be presumed to be thus regulated.”

We again quote from the decision, because in the opinion given in our case, the Chief Justice says that public policy is just the reverse, but the reasons are not .given; whereas the Supreme Court of Massachusetts gives the following in, support of its view:

“ We are of opinion that these considerations,” (i. e. of public policy,) “ apply strongly to the case in question. Where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his_ appropriate duty, each is an observer of the conduct of others, can give notice of any misconduct, incapacity or neglect of duty, and leave the service if the common employer will not take such precautions and employ such agents as tlie safety of the whole party may require. By these means, the safety of oach will be much more effectually secured than could bé done by a resort to the common employer for indemnity, in case of loss by the negligence of each other.”

In New York, the decision of the Supreme Court of Massachusetts is adopted to its fullest extent. Brown v. Maxwell, 6 Hill, 593. This was an accident, happening to a stone-cutter, by removing a stone from a pile so carelessly that another stone fell and broke the plaintiff’s leg. The act was done by command of defendant’s foreman, in the absence of defendant.

This was no case of a “dangerous work.” In Pennsylvania, the same rule prevails as held in the case of Strange v. McCormick. Law Reporter for April, 1851. The court reviews the decisions, and places its own opinion on the ground that the action arises ex contractu, and not ex delicto. In South Carolina the law is the same. Murray v. South Carolina Railway Company, 1 McMullan, 385.

But the opinion of the Chief Justice in our case, cites the decision in Reggasse v. Plazen, Dalloz, 1841, 1, 271. This citation is certainly in point, to show that the distinction referred to was not recognized in this particular case. The case was an appeal from the Court Royal of Toulouse. The judgment of that court recognized the exception and discharged the defendant. It was the case of two servants, setto work by the masterto trim a hedge, and one was wounded by the negligence of the other whilst they were at work together.

Now, although in this special case of a house' servant (domestique) the Court of Cassation did refuse to recognize the distinction, yet in the case of fellow-workmen it was fully established in the same court. In the case of Pittet v. Montague, Sirey 1838, 2, 70, the Court Royal of Lyons in deciding against plaintiff, whose claim was based on the negligence and unskillfulness of a fellow-workmen in running certain machinery, say, “l’accident aurait été causé par la faute personelle d’un préposé, vis-á-vis d’un autre préposé pour le méme travail, et 1’article 1384 n’est pas applicable á ce cas, parcequ’il y a de la part de celui qui consent á fournir, assistance salariée ou officieuse pour un travail quelconque, acceptation des chances de danger qu’il peut présenter, &c.

The Court of Cassation, in confirming this judgment, gave the following reasons:

“ Que lorsque des ouvriers sont occupés ensemble au genre de travail qui leur est special, l’imprudence d’un d’eux peut bien ouvrir contre lui une action en responsabilité, mais ne saurait donner lieu á la garantie de l’ouvrier contre le propriétaire pour lequel ils ont travaillé: que les risques que peut présenter leur travail sont eompensés vis-á-vis du propriétaire par salaire spécial de leur genre d’occupation.”

Hence, we find two Courts Royal and the Court of Cassation combined against one stray decision of the latter court about household servants. But all the decisions in the French courts, recognize the exemption of the owner from liability for the negligenee of one mechanic, or his want of skill, when causing damage to a fellow-laborer on the same work.

And the law of Louisiana, article 666, expressly limits the responsibility of the owner to cases of damage to “ neighbors and passengers,” resulting from the neglect of the proprietor to keep his building in repair.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    A. and J. Denistoun & Co. v. James Payne.
    A mortgage claim had been reduced to judgment in Mississippi, suit was afterwards brought upon the claim in Louisiana. The court held, that the claim was merged in the judgment, and that the action should have been on the latter and not the former.
    The petition alleged indebtedness on a claim; asupplemental petition alleged, that the claim had been reduced to judgment, thus showing, that the ground of action in the original petition, was extinguished. The plaintiff could not so amend, for it changed the cause of action, and altered the substance of the demand.

      APPEAL from the Fourth District Court of New Orleans, Slrawbridge, J.

      E. Briggs, for the plaintiffs.

      J. L. Mathewson, for defendant.
   By tho court:

Rost, J.

The judgment dismissing the plaintiffs’ petition in this case, is in conformity with the settled jurisprudence of this court.

Their mortgage claim against the defendant, who is a resident of the State of Mississippi, had been merged in two judgments, rendered in their favor, against him in that State. As was held in case of McKee et al. v. Cairnes, 2 N. S. 604, those judgments had the same effect as if they had been rendered in Louisiana, The mortgage claim was merged in them, and no action can be maintained upon it.

The amendment contained in the supplemental petition, was the same which this court held to be inadmissible in the case of Oakey v. Murphy. 1 Ann. 372.

The allegation in tho supplemental petition, that the plaintiffs have obtained judgments on their claim, shows their original ground of action to be extinguished, and we think now, as we did in Oakey’s case, that an amendment entirely changing the cause of action, alters the substance of the demand, within the meaning of art. 419. C. P. This is a rule of practice, which, once settled, ought to J>e adhered to, unless manifestly wrong.

We doubt not, as stated by the plaintiffs’ counsel, that the time for the service of the petition was short, and that he had not at hand the documents necessary to bring the action in another form. This is a misfortune against which we cannot relieve his clients. There are hard cases in the application of all rules of law.

Judgment affirmed, with costs.


author: Slideli,, J. Preston, J.

text:
    Keane v. Fisher & Co.
    The claim was for more Ilian $500, and proved by only one witness. The application of defendants to the court, to instruct the jury on certain questions of law, as set forth in the record, cannot be construed into an admission of fact by the defendants, and treated as a circumstance corroborating the testimony of the single witness.
    The affidavit by which the plaintiff obtains the arrest of the defendants, will not be received as a circumstance corroborating the testimony of a single witness, in an action to recover of the defendants 'a claim of over $500.
    The defendants asked the charge of the court to the jury on many points, twelve of which implied a sale from tho plaintiff to the defendants, and each therefore was a circumstance corroborating the positive testimony of the witness to the plaintiff’s claim. Per Preston, J. dissenting.
    THIS case was tried by a jury before the'Fifth District Court of New Orleans,

      Buchanan, J.

      Race and Foster, for plaintiff.

      J. Ad. Rozier, for defendants.
   By the court:

Slideli,, J.

I find only one witness to prove the claim, and I do not discover any corroborating circumstance established by any other testimony or evidence. I do not conceive that the application of the defendants to the court, to charge the jury on certain questions of law, as set forth in the record, can be construed into an admission of facts by the defendants, and so be treated as a circumstance corroborating the testimony of the single witness.

I do not concur in the opinion of the district judge, that the oath of the plaintiff, annexed to the petition, by which he obtained the arrest of the defendants, can be treated as a corroborating circumstance; nor, in his opinion, that the plea of the defendants involves an admission of the purchase of the sugar.

In my opinion, therefore, the judgment should b'e reversed, and the case remanded for a new trial, the costs of the appeal to be paid by the plaintiff.

Eustis, C. J. and Rost, J. We concur in this opinion.

Preston, J.

dissenting. The plaintiff brings this suit for the price of a quantity of sugar sold to the defendants. He alleges that it was a sale for cash; that the defendants had failed to pay any part of the price, and yet had disposed of the sugar, so that he was unable to make the price out of the sugar. For which reason, he prayed thatthe defendants might be arrested and punished under the 10th section of the act passed in 1840, to abolish irhprisonment for debt.

The defendants filed a general denial as to the debt, and specially denied the fraud charged, alleged that the charge was slanderous, for which they reconvened for ten thousand dollars damages. The case having been tried by a jury, they found a verdict for the amount claimed by the plaintiff for the price of the sugar with interest, but could not agree as to the charge of fraud. A judgment was rendered against the defendants for the amount of the verdict, with interest and costs, and they have appealed:

It is contended that the claim was proved by only one witness without corroborating circumstances, and being for an amount exceeding five hundred dollars, the evidence was insufficient, and the judgment should be reversed. The district court, in overruling the defendants’ application for a new trial on this ground, mentioned several circumstances corroborating the testimony of the witness. Without adverting to them, it may be stated that the defendants asked the charge of the court to the jury on many points, twelve of which implied a sale from the plaintiff to the defendants, and each, therefore, was a circumstance corroborating the positive testimony of the witness to the plaintiff’s claim. It is immaterial, therefore, whether the court charged the jury correctly or incorrectly as to the effect ofthereconventionaldemand, as the plaintiffs’ claim is satisfactorily proved, and the judgment as to it should be affirmed.

, A motion was made for a new trial, on the ground that the jury had not the right to pass rrpon the question of indebtedness without, at the same time, rendering a verdict upon the question of fraud, and on the reconventional claim for damages. The coiu't, in overruling the application, gave the following reasons: “ This cause has been submitted to two juries. The first jury was discharged after being out all night, having signified to the court, through their foreman, that they could not agree. But the subject of their disagreement could not have been the fact of the indebtedness of the defendants to the plaintiff as charged in the petition, because that fact was fully and repeatedly admitted by defendant’s counsel in argument to the jury on that trial. On both trials, the court charged the jury that there were two questions to be decided by them, indebtedness and fraud, and that upon their decision on the question of fraud, depended still a third question, to wit, damages ; when, therefore, it was intimated to the court by the foreman, in presence of the jury, at a late hour in the evening, after the jury had been several hours locked up, that the jury were agreed upon the question of indebtedness, but that it was impossible for them to agree upon the question of fraud and damages, the court consented to receive their verdict upon the first point, being of the opinion that it was not necessarily connected with the other questions, and the cause would thereby be simplified, for the action 0f a third jury, in case there should be a third trial. That verdict has met the justice of the case as far as it goes, and I am not disposed to disturb it.

These reasons are satisfactory. Every reasonable effort had been made to obtain a verdict, as to the charge of fraud and reconventional demand, by the same jury that passed upon the debt; and such efforts should be made in all similar cases. ButI do not consider the issue, as to the debt, so inseparable from the other issues, that the claim of the creditor should be unreasonably delayed, because of the inability to obtain a decision upon the other issues.

I think the judgment of the district court ought to be affirmed, with costs.


text:
    William Hopkins et al. v. John G. Pratt & Co.
    A shipment made under a contract, that the proceeds should be applied to reimburse advances made on it by the consignee, and to pay certain named creditors of the consignor, creates a right in favor of the consignee and those creditors on the proceeds, superior to that of an attaching creditor.
    Intervenors, who sustain their pretensions, will not bo entitled to recover counsel fees, where the attaching creditor, who resisted their claim, was in good faith prosecuting what he deemed a legal right.
    APPEAL fromthe Fourth District Court of New Orleans, Strawbridge, J.

      Wolfe and Singleton, for plaintiffs.

      E. Rawle, for intervenors.
   By the court:

Rost, J.

The evidence satisfied the district judge that Buchanan, Harrington Sf Co., in consideration of the consignment to them of the cotton in controversy, by Jacob Barkman, in the State of Arkansas, where the firm is established, advanced to him the amount claimed by them, and assumed to pay out of the proceeds of the cotton, the sums claimed by the intervenors, M. H. Cooper Sf Co. and Slavic, Day, Stauffer 8f Co.; and we have no reason to doubt the correctness of the conclusions to which he came.

The plaintiffs’ counsel objected to the parol evidence offered to prove the contract between Barkman and Buchanan, Harrington 8f Co., on the ground that it appeared by the testimony of one of the witnesses, that there was an agreement, in writing, in relation to it. The written evidence hero alluded to, is a receipt signed by Barkman in the receipt book of Buchanan, Harrington Co.

The witness, Lafayette Buchanan, has annexed to his answers an exhibit, showing the cash advances made and the amounts assumed by Buchanan, Harrington Sf Co, and has stated in his testimony, that the receipt of Barkman, in the books of the firm, was for the cash advances made in pursuance to the verbal agreement. We do not understand the witness, Hardy, to state any thing moro; his saying that the receipt corresponds with exhibit A annexed to Lafayette Buchanan's testimony, evidently means that it corresponds with it, so far as the cash advances are concerned. We are satisfied that there was no written contract, and that the evidence offered was the best that the nature of the case admitted of, and was, therefore, properly received.

The cotton was shipped to New Orleans, subject to that agreement, and the attachment levied upon it on its arrival here, cannot defeat the rights acquired by the intervenors. This caso capnot be distinguished from that of Oliver v. Lake, 3 Ann. 78. And under the authority of that case, the intervenors must be paid by preference, out of the proceeds of the cotton attached. We think there is error on that part of the judgment which allows them counsel fees. The plaintiffs sued out their attachment in the just exercise of their legal rights, and the judgment decrees to them the balance remaining, after satisfying the claims of the intervenors, of which they were probably ignorant. They acted in good faith and are not liable in damages. Hill v. Noe, 4 Ann. 304.

It is therefore decreed, that the judgment of the district court be amended, by striking therefrom the allowance of $75 to Buchanan, Harrington Sf Co.; $40 to M. D. Cooper 8f Co.; and $25 to Slark, Bay, Stauffer Sf Co., as counsel fees; and that, in other respects, the judgment be affirmed: the costs of the appeal to be paid by the intervenors.


author: Slidell, J.

text:
    Slark, Day and Stauffer et. al. v. Broom and Caughlin.
    In ordinary cases, a captain signing a bill of lading, is considered as signing as the agent of tbe owners of the vessel, and being an act done within the scope of his authority as master, his contract is binding upon the owners. The contract, under the bill of lading, is, to transport the goods safely to the place of destination, and there deliver them to the consignees or their order. This duty must be performed, unless its~performance be prevented by the happening of the excepted perils. If under the pressure of extreme necessity, a sale of the cargo becomes necessary, still the proceeds of sale, after deducting the contributive share for general average and other lawful charges, must be accounted for, to the owners of the goods, by the captain and owners of the vessel.
    A bill of lading, by legal implication, announces the liability of the owner of the ship, and this liability cannot be excluded by an extrinsic fact, not communicated to the shipper. Where, therefore, the shipper received bills of lading in the usual form, in the absence of evidence to the contrary, he may justly be considered as looking to the usual responsibility, to wit, that of the captain, the ship and the ship-owner.
    By the Court: “We think it clearly results, that it (the charter party) was a contract to carry, for a stipulated reward, all such goods up to the extent of the ship’s capacity, as the charterer should furnish, and such passengers, up to a certain number, as he should furnish; but that the possession, command and navigation of the ship, remained in the owners, through the master and mariners appointed and paid by them; and that the responsibility for the safe delivery of the cargo, saving such losses as might arise from excepted perils, rested upon the master and the owners/7
    Where, therefore, the vessel was stranded, and the master sold the cargo, and appropriated a part of the proceeds forthe maintenance of the passengers, and for their transportation, under what he regarded the authority of the passsengers act of 12 and 13 Victoria, it was held, that the ship-owner was liable to the freighter.
    Although the freighter may have a privilege on the vessel for a non-delivery of the cargo, he has no privilege on the insurance money due under a policy covering the vessel.
    Where the privilege claimed is one resulting from the nature of the obligation, it pertains to the merits, and maybe tried with them.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Hite and Gaither, for plaintiffs.

      Benjamin and Micou, for defendant.
    On the whole case, we conclude that the contract of affreightment of the plaintiffs, was made only with the charterer's. To them they entrusted their goods, and of them only, they have the right to demand them. Between the plaintiffs and the owners, there is no contract and no privity, and consequently no action has accrued. Agricultural Bank v. Barque Jane, 19 L. R. 8.

      In this case the ship was lost, and the plaintiffs claimed a privilege upon her insurance money, and sequestered it in the hands of the insurers. Even if it -were true, that the plaintiffs had by their shipment acquired a lien on the ship, that lien does not extend to the insurance money. It has been so expressly decided in Thayer v. Goodale, 4 L. R. 222.
   By the court:

Slidell, J.

The object of this suit, is to recover of the defendants, as owners of the ship Cato, the value of certain goods shipped on board that vessel at Liverpool, under bills of lading, in the usual form, signed by her captain, and which were not delivered at New Orleans, the port of destination.

The Cato, an American ship, belonging to the defendants, was chartered at Liverpool, by the captain, to James Browne 8f Co., by a charter party, in these words:

“ Memorandum for charter, Liverpool, 25th January, 1851: It is this day mutually agreed, between Captain Robinson, of the good ship or vessel called the Cato, of the burthen of 655 tons, or thereabouts, now at Liverpool, whereof is master, and Messrs. James Browne Sf Co., of Liverpool, merchants and freighters of the other part, that the said ship, being tight, staunch and strong, and approved of by the surveyors appointed by the government, as being eligible to carry passengers, shall, with all convenient speed, be made ready, and receive and take on board a cargo of lawful merchandise, and such steerage passengers, as the charterers may procure, not exceeding the legal complement, 275 ; charterers to find provisions according to law, berths, water-casks, water, fuel and cooking grates, and pay the hospital and commutation money, at the port of delivery; the vessel not to be loaded deeper than seventeen and a half feet aft and seventeen feet forward, and to be dispatched at the expiration of fifteen days after she obtains a proper loading berth, and is ready to commence loading in Waterloo or Victoria Dock, or sooner, at the charterers option. In all, not exceeding what she can reasonably stow and carry, over and above her cabin, tackle, apparel, provisions and furniture ; and being so loaded, shall therewith proceed to New Orleans, or so near thereunto as she may safely get, and deliver the same agreeably to bills of lading; and so end the voyage. (Restraints of princes and rulers, the dangers of the seas and navigation, fire, pirates and enemies, during the said voyage, always excepted.) The ship to be provided by the owners, with proper boats, ventilators, two life-buoys, houses over the hatchways and camboose, and a passenger’s cook.

“And the said charterers do hereby promise and agree, to load the said vessel, with said cargo, at Liverpool, and to pay freight as follows : For the hire of the vessel, as above mentioned, the sum of eight hundred pounds. The freight and primage, as per bills of lading, to the extent of this amount, to be taken in payment at the port of delivery, at four dollars and eighty cents per pound ; the deficiency, if any, to be paid in Liverpool, before sailing, in cash, deducting insurance on passage money. Demurrage, if detained by the charterers beyond the above time, to be paid at the rate of seven pounds, British sterling, per day; but the vessel not to be required to remain on demurrage longer than ten days; but if head winds prevail at the expiration of said laying days, preventing vessels of similar size and draft from sailing, then the vessel to continue taking cargo and passengers, to the extent herein named, without the charterers being liable to demurrage.

“The vessel is to be consigned to charterer’s agents at New Orleans, allowing them two and a half per cent commission. Penalty for the non-performance of this agreement, £800. (Signed) J. W. Robinson and James Browne & Co.”

The vessel received her cargo and passengers under this charter party, and proceeded on her voyage; but having met with a disaster at sea, by striking and being stranded, entered the port of Nassau in distress; and there, after survey, being pronounced incapable of proceeding, was abandoned, and the passengers and cargo landed. The cargo was then sold at Nassau, for the benefit of whom it might concern; and by the adjustment of the average made by an adjuster, under the direction of the defendants, it appears, that after the proper contribution for paying salvage, expenses, &c., there remained the sum of $7780, which was received by the captain. Of this sum, about $1000 was paid, by the captain, into the hands of the defendants at New brleans p the balance of the sum, was expended by the captain for the maintenance of the steerage passengers at Nassau, and in conveying them, by other vessels, thence to New Orleans.

There is, in evidence, an act of parliament, 12 and 13 Victoria, entitled an act for regulating the carriage of passengers in merchant vessels. The 24th section enacts as follows : And be it enacted, that in case any “ passenger ship” shall be wrecked or otherwise destroyed, or shall by any other cause whatever, be prevented from landing her passengers at the place they may have respectively contracted to land; or in case such ship shall put into any port or place in a damaged state, or shall not, within a reasonable time, according to the circumstances of each case, but not exceeding six weeks in any case, be ready to proceed with her passengers on her intended voyage, after having been first efficiently repaired, and in all Respects, put into a sound and seaworthy condition; then, in any of such cases, such passengers respectively, shall be provided with a passage, by some other equally eligible vessel, to the port or place at which they respectively may have originally contracted to land; and in default thereof, such passengers respectively, or any emigration officer on their behalf, shall be entitled to recover, by summary process, as hereinafter mentioned, all monies which shall have been paid by or on account of such passengers, or any of them, for such passage, from the party to whom the same may have been paid, or from the owner, charterer, or master of such ship ; and also, such further sum, not exceeding five pounds, in respect of each such passage, as shall in the opinion of the justices of the peace, who shall adjudicate on the complaint, be a reasonable compensation for any loss or inconvenience occasioned to any such passenger, or his or her family, by reason of the loss of such passage: provided, always, that no policy of assurance effected in respect of such passages, or of such passage and compensation monies, by any person hereby made liable in the events aforesaid, to provide such passages, or to pay such monies, shall be deemed to be invalid by reason of the nature of the risk, or interest sought to be covered by such policy of assurance.

There is also the testimony of two captains, who state, that they have made many voyages between New Orleans and Liverpool; and that they have made similar charter parties. They testified that, on such contracts, they retained possession, control, management, and navigation of the ship ; that the expenses of the navigation were incurred by the owner, such as wages of captain, crew, port-charges, and victualling of the ship; that, in such contracts, the universal custom of Liverpool, as understood by the witnesses, among ship-owners, masters, and merchants, was, that the master of the ship should retain exclusive possession, control, and navigation of the ship, for the owners’ account and benefit; and that the owners incur the expenses of navigation, and that the charterer has nothing to do with the navigation and control of the vessel after she proceeds to sea; that the manner in which the stipulated price of the ship is paid, is by taking the amounts of freight to the extent of the freight bills. If there be a deficiency, the charterers pay the deficiency; and, if there is a surplus, the charterers take that surplus, and that ends their relations with the charter. Under a contract of that kind, the captain and owners become responsible for the transportation of the goods. On cross-examination, by defendants, these witnesses testified that, under a charter party like this, the charterer makes the engagements for the freight; that they never had a case under a charter party like this, in which the question arose, whether such a loss would fall on the charterer or the owners.

The question presented for our decision, under the state of facts above presented is, whether the owners of the ship are liable to the shippers in a personal action for the money so received and expended by the captain. The district court gave judgment for the plaintiffs, and the defendants have appealed.

It is contended, for the defendants, that the act of Parliament imposed upon the captain the duty of selling the cargo, in order to accomplish the transportation of the passengers. But, we find no such duty imposed by the statute in the section above cited; nor does it seem to us to be reasonably inferrible from other portions of the law. If there was any power in the master to sell, it rested upon the general law.

We must look, then, to the charterparty, the bills of lading, and the attendant circumstances, in order to arrive at a solution of the question.

If we look simply to the bills of lading, there can be no doubt that the defendants are liable. As we have stated, they are in the usual form, and signed by the captain. In ordinary cases, a captain so signing, is considered as signing as the agent of the owners of the vessel; and being an act done within the scope of his authority as master, his contract is binding upon the owners. The contract is, to transport the goods safely to the place of destination, and there deliver them to the consignees or their order. This duty must be performed, unless its performance be prevented by the happening of the excepted perils. And if, under the pressure of extreme necessity, a sale of the cargo becomes necessary, (and the present cause, under the meagre evidence before us, can be considered as exhibiting a case of such necessity,) still, the proceeds of sale, after deducting the contributory share for general average, and other lawful charges, must be accounted for to the owners of the goods, by the captain and owners of the vessel.

But, are the rights of the plaintiffs against the owners, under the bill of lading, affected by the fact of the charter party ?

In the first place, it must be observed that no knowledge of the existence of the charter party is brought home to the shippers. If we infer that Browne 8f Co. personally sought out the shippers, and made the engagements for freight with them, non constat, that the shippers were informed whether they were acting as charterers or as consignees of the vessel. The shippers received bills of lading in the usual form, and in the absence of evidence to the contrary, may justly be considered as looking to the usual responsibility, to wit, that of the captain, the ship and the ship-owners. It seems unjust to deprive a party of the usual guarantees which attach to such a contract as he is making, unless there be something to warn him that other guarantees are to be substituted for them. The matter here, so far as the knowledge of the shipper is concerned, rests upon the bill of lading, which, by legal implication, announces the liability of the owner of the ship; and yet the shipper is told that this liability is excluded, by an extrinsic fact not communicated to him.

Independently, however, of the absence of notice, what was the character of the charter party, and its legal consequences under the fair scope of the decided cases 1 For, in a matter of this grave commercial importance, authority is of great moment. If the present charter party is really controlled by a well settled current of authorities, both shipper and owner may well be considered as acting upon them, and are not to lose relief or escape liability by a recurrence to abstract principles, ingeniously deduced from the general law of contracts.

In McIntyre v. Brown, 1 Johns. 229, the court said: the true distinction was, that, where, by the terms of the charter, the ship-owner appoints the master and mariners, and retains the management and control of the vessel, the charter is rather to be considered as a covenant to carry goods; but, where the whole management is given over to the freighter, it is more properly a hiring the vessel for the voyage ; and, in such case, the hirers would be deemed owners, pro hoc vice.

We believe this opinion of a very learned court, which was given many years ago, has ever since received a substantial concurrence in the United States. In Marcadier v. Chesapeake Insurance Company, 8 Cranch, 49, we find the Supreme Court of the United States following the same rule : “A person,” says Mr. Justice Story, in that case, “may be owner for the voyage, who, by a contract with the general owner, hires the ship for the voyage, and has the exclusive command and navigation. Such is understood to have been the case of Vallejo v. Wheeler, Cowper, 143. But, when the general owner retains the possession, command, and navigation of the ship, and contracts to carry a cargo or freight for the voyage, the charter party is considered as a mere affreightment sounding in covenant, and the freighter is not clothed with the character or legal responsibility of ownership. Such was the case of Hooe & Co. v. Groverman, in this court, 1 Cranch, 214. In the first case, the general freighter is responsible for the conduct of the masters and mariners during the voyage; in the latter case, the responsibility rests on the general owner. On examining the charter parfy in the present case, there can be no doubt, from the terms and stipulations, that it falls within the latter class of cases. The master, who was the general owner, retained the exclusive possession, command, and management of the vessel, and she was navigated at his expense during the voyage.”

At a later day, that eminent commercial lawyer, Mr. Justice Washington, observed, in Palmer v. Gracie, 4 Washington, 122: “ The general rule is, that where the owner employs, pays, and supports the master and crew, retains the control and navigation of the vessel, by means of the former, and is answerable for his conduct, a special ownership and possession do not pass to the charter,er, although the ship is let and hired, and although the freight reserved be a gross sum.” We refer to this case, as containing a learned and elaborate review of the decided cases in England and the United States.

Now, in applying these principles to the contract in question, which we are to interpret, not upon any single, isolated clause, but upon its entire language and provisions, we think it clearly results, that it was a contract to carry, for a stipulated reward, all such goods, up to the extent of the ship’s capacity, as the charterer should furnish, and such passengers, up to a certain number, as he should furnish ; but, that the possession, command, and navigation of the ship remained in the owners, through the masters and mariners appointed and paid by them; and that the responsibility for the safe delivery of the cargo, saving such losses as might arise from the excepted perils, rested upon the master and the owners.

It must be acknowledged, that there are some of the English cases which seem to militate against tile conclusion to which we have come in this case. There is an apparent want of harmony in the decisions of the English courts, which, perhaps, is really attributable to the imperfect manner in which some of the cases are reported, leaving us in the dark as to the terms of the particular charter party. But, although the question in English jurisprudence seems to rest upon grounds somewhat uncertain and varying, we are inclined, on the whole, to believe, that this case would be decided there in favor of the plaintiffs.

In their petition, the plaintiffs allege that they had a privilege for their claim upon the ship Cato, and that the vessel having been lost, they have a privilege upon the amount of insurance effected upon her; they obtained a writ of sequestration, which was levied upon a sum of §5000 in the hands ofthe Crescent Insurance Company. The district judge, in giving judgment in favor of the plaintiffs against the defendants personally, gave also a judgment of privilege upon the property sequestered. It would seem that the district judge supposed the vessel had been sequestered,‘for, in his written opinion containing the reasons for'judgment, he speaks ofthe right ofthe plaintiffs to ajudgment, “with privilege on the ship.”

Although the plaintiffs might have had, for the non-delivery ofthe goods, a privilege upon the ship, had she arrived within our jurisdiction, we know of no provision of our laws which gives them a privilege upon the insurance money. That no such privilege can be claimed, was decided in an analogous case, Thayer v. Goodale, 4 L. R. 222; and in Eymar v. Lawrence et al., 8 L. R. 42, it was held, that the privilege of the master for his wages does not extend to the insurance money, received by the owner’s agent from the underwriters, upon the vessel which was destroyed by perils of the sea.

But it is said, that the defendants have lost the right of inquiring into that matter, because they did not take a rule to set aside the sequestration before an answer was filed, and the cause put at issue on its merits. A similar position was unsuccessfully assumed in the case last cited. It may be, that the defendants lost the right of questioning the regularity of the sequestration in point of form, by pleading to the merits without objection.

But the privilege claimed was a privilege resulting from the nature of the obligation ; not, as in cases of attachment, a privilege resulting from the judicial proceedings. The question of the existence of a privilege seems, therefore, one pertaining to the merits, and to be determined with them. See also the remarks of the court, in Eymar v. Lawrence, upon art. 724, C. P.

The case of Watson v. McAlister, 7 M. R. 369, was a case of attachment. See also Myers v. Perry, 1 Ann. 373.

It is, therefore, decreed, that so much only of the decree of the district court, as adjudges a privilege on the property sequestered, be reversed, and said claim of privilege is hereby rejected. And it is further decreed, that said judgment, in other respects, be affirmed,^he costs of the appeal to be paid by the plaintiff.


text:
    James Penn, for the use of, &c. v. John W. Crockett and W. H. Garland.
    The wife, upon a valid claim, obtained judgment against her husband, and also judgment for separation of property; he made a sale in payment of her rights, under the judgment, and the fairness of it was not impeached. The sale was held to be valid.
    APPEAL from the Fourth District Court of New Orleans, Strawbñdge, J.

      A. N. Ogden, for plaintiffs.

      Hamner and Hays, for W. H. Garland.

   By the court:

Rost, J.

The plaintiff, who is a judgment creditor of W. H. Garland, caused properly, in possession of said Garland, to be seized under execution.

Garland, as tutor of his minor children, filed a third opposition, praying that the seizure be set aside and the sale of the property enjoined, on the ground, that it was the separate property of his wife, in her lifetime, and, at her death, descended to her children. The under-tutor has also made himself a party to the proceeding, for the purpose of representing the minors, so far as their interest may conflict with that of their father.

The plaintiff answered the third opposition, alleging the simulation of the title set up by the heirs of Mrs. Garland; and, further, that the property was purchased during marriage, with the means of Garland, in the name of his wife, to screen it from the pursuit of his creditors. That the wife having brought no dowry into marriage, could not sue for a separation of property, and the judgment, decreeing the dissolution of the community, was an absolute nullity. That eveu if Mrs. Garland had any claim against her husband, it was for a small amount, and she never had the means to purchase the property seized.

The district judge sustained the opposition, and the plaintiffhas appealed.

In the case of Davoc v. Darcy, 6 R.R. 342, it was held, that the wife could, in certain cases, obtain a separation of property, although she had brought no dowry into marriage, and had no actual claims against her husband which could be endangered; and we have had occasion since, to affirm that principle, but the present case does not come within its operation, and is covered by the very letter of art. 2399 Civil Code.

Mrs. Garland had a claim against her husband, which the evidence shows to have been well founded, and this litigation is sufficient proof that it was endangered by the derangement of her husband’s affairs. The judgment she obtained was for the amount of that claim.

We think that hers was a proper case for a separation of property, and as there is nothing to impeach the fairness of the sale, made by her husband to her, of his furnituro, in payment of her rights under the judgment, that sale is valid and binding upon the plaintiff. See Civil Code, 2402.

The evidence adduced, to prove the origin of the means with which Mrs. Garland purchased the other property seized, is not satisfactory to a majority of the court, and if it should be true that the price paid for those purohases, was paid by the husband, the sales might well be considered as simulated. In deference to the opinion of the district judge, we will remand the case to be tried before a jury-

In making this disposition of the case we will remark, that it is unnecessary t0 exanaae tb© question, whether Mrs. Garland was bound to contribute, after the separation of property, to the household expenses, and to those of the education of her children — because, admitting that she was, this would not give the plaintiff the right to seize her property, as he has done.

It is ordered, that the judgment so far as it sustains the third opposition of the heirs of Mrs. Garland, in relation to the movables transferred by W. H. Garland to her, in satisfaction of her judgment against him, be affirmed. It is further ordered, that the judgment be otherwise reversed, and the case remanded for trial before a jury. It is further ordered, that the costs of this appeal be paid by the third opponent and appellee.


author: Peeston, J.

text:
    Deneufbourg v. Didion, Romer et al.
    Where mortgage property is sold at the instance of a creditor, a previous mortgage creditor is, entitled tobe paid, by preference, out of the proceeds, unless the seizing creditor prove that the defendant has other property of sufficient value, to satisfy the claim of the prior mortgagee.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Robert Preaux, for plaintiff.'

      Miles Taylor, for Caffm.

   By the court :

Peeston, J.

This case differs from that of Young v. Municipality No. One, 5 Ann. 736, only in this, that in the former case the defendants had sufficient property to satisfy the claims of the opposing creditors, while, in the present case, the defendants are insolvent, and the property seized and sold under the plaintiff’s mortgage, is the only asset out of which the previous judicial mortgages existing upon it can be satisfied. Under the dispositions of articles 301 and 403 of the Code of Practice, the court ordered the previous judicial mortgages to be paid out of the funds in the hands of the sheriff, and allowed the seizing creditor whatever surplus might remain.

The plaintiff prosecutes this appeal, but we are unable to perceive upon what ground he expects a reversal of the judgment.

It may be true that the note upon which he obtained judgment, was originally given as part payment of the price of the land sold by the sheriff; but the note bears date in 1840, and the rank of the vendor’s privilege had been lost for want of reinscription within ten years, when the sheriff’s sale took place on the 18th October, 1851.

Judgment affirmed, with costs.


author: Eustis, C. J.

text:
    James Davern v. Merchants and Planters’ Insurance Company.
    The insured who violates the conditions of his policy, cannot recover from the underwriters.
    APPEAL from the First District Court of New Orleans, Larue, J.

      Lamb and Geo. Eustis, Jr., for plaintiff.

      E. Raiole, fordefendant.
   By the court:

Eustis, C. J.

The plaintiff had insurance against fire, on a building described in the policy as a two story, double tenement, frame house, and on the kitchen belonging thereto. After the insurance, a grocery was established in the house, in which articles denominated hazardous, in the memorandum of the policy, were sold. The building was destroyed by fire. According to the conditions of the policy, by this act on the part of the insured, the insurance terminated.

The district judge gave judgment for the defendants, and we concur in his opinion.

The judgment of the district court is therefore affirmed, with costs.