author: Nicholes, C. J.

text:
    No. 12,161.
    James A. Chalaron vs. Insurance Company of North America.
    The statement to the reinsurer made by the original insurer in obtaining the reinsurance, “ we carry our line,” no amount of the line specified, will not be deemed falsified, if in point of fact the insurer does bear a part of the risk, i. <?., to the extent not reinsured.
    Nor in respect to another risk, part of which was reinsured, is the reinsurance avoided for fraud because of such statement in obtaining the reinsurance, although it turned out the insurer bore no part of the risk, owing to the fact the insurer did not put on board the entire cargo agreed to be insured by the orignal insurer, he believing, when he effected the reinsurance, such cargo would be at risk, in which case he would have borne a part of the risk. 3 Kent, 28i\ Wood on Insurance, Sec. 290 et seq.

    The reinsurance may be for the whole or part of the risk taken by the original insurer, and the effect of reinsurance is to bind the reinsurers to make good to the original insurer the ¡loss up to the amount reinsured. 3 Kent, p. 276; Elliott on Insurance, Sec. 3; Biddle onlnsurance, Sec. 378.
    Reinsurance not to take effect except above a stated amount of loss, a contract of a special character can not be inferred from the mere statement of the original insurer in effecting the reinsurance, “we carry our line,” least of all, when the written contract of reinsurance is in the ordinary form of insurance against loss to the extent of the amount specified in the policy.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

    O. B. Sansum (Percy Roberts of Counsel) for Plaintiff, Appellant.

      Saunders & Miller for Defendant, Appellee.

      George Wharton Pepper and J. Bayard Henry on the same side, submitted a brief.
    Argued and submitted June 6, 1896.
    Opinion handed down December 14, 1896.
   The opinion of the court was delivered by

Nicholes, C. J.

The plaintiff, suing as representing several of the New Orleans insurance companies, seeks to recover money claimed to have been paid in error by them on their contracts reinsuring maritime risks of the defendant, the Insurance Company of North America.

In 1862 the defendant insured the cargo of the bark Yorkshire for sixty thousand dollars, reinsuring with three of the plaintiff companies for seventeen thousand five hundred dollars, and for twenty-seven thousand five hundred dollars in other companies, majring the total reinsurance forty-five thousand dollars. On this risk there was a loss of fifty one thousand six hundred and one dollars collected by defendant from the reinsuring companies — the New Orleans companies paying the seventeen thousand five hundred dollars for which they reinsured, other reinsuring companies paying their portion, and the residue, amounting to twelve thousand five hundred dollars, was paid by the defendant as part of the risk they carried, that is without reinsuring. In the same year the defendant insured the cargo of the bark Budstiken, the proposed risk being thirty-five thousand dollars, but only a part of the cargo was laden on board. The reinsurances on that cargo were ten thousand dollars with four of the plaintiff companies, and like amount with other companies, making the total reinsurances twenty thousand dollars on that risk. On that risk there was a loss nearly equal to the amount of the reinsurances, and defendant collected the ten thousand dollars from the plaintiff companies, and a like amount from the other reinsurers.

In 1883 defendant took a risk on the cargo of the bark Adele of one hundred and fourteen thousand dollars. There were reinsurances in five of the plaintiff companies for fifteen thousand dollars, in other companies for forty-six thousand five hundred dollars, making sixty-one thousand five hundred dollars reinsurances. There was a loss on the cargo put on board of nineteen thousand three hundred and nine dollars, all of which was collected.by defendant of the reinsurers.

Plaintiff claims that the understanding in effecting these reinsurances was that the defendant was to carry its line and reinsurance excess, by which we understand that defendants were to retain part of the risks and to reinsure to the extent of that portion of the risk it did not propose to bear. Under bills of exception reserved, they introduced evidence for the purpose of establishing this understanding, and to establish that it was a custom in the city of New Orleans for the reinsurer to carry part of the risk.

Following the negotiation between the parties the plaintiff companies issued certificates, which, on their face, are certificates of unconditional insurance, to cover loss on the cargoes of the Yorkshire, for seventeen thousand five hundred dollars; on that of the Budstiken ten thousand dollars, and on that of the Adele for fifteen thousand dollars. Defendant maintains that the obligation of the plaintiff companies was precisely that expressed in the certificates- to pay the losses sustained up to the amounts distinctly stated. Plaintiff, on the contrary, insists that the contracts are to be deduced from the testimony, and that the testimony shows contracts' of an entirely different character.

On his theory the companies he represents, with the other reinsurers, were liable for only sixteen thousand six hundred dollars on the loss of fifty-one thousand six hundred and one dollars on the cargo of the Yorkshire — that is, for the excess of fifty-one thousand six hundred and one dollars over thirty-five thousand dollars, the asserted line of defendant — that they were bound for no part of the loss of nineteen thousand dollars on the cargo of the Budstiken, as the loss was under defendant’s line — that on the general average loss of forty-seven thousand dollars on the cargo of the Adele, the plaintiff companies, with the other reinsurers, were only liable for twelve thousand dollars, the excess of loss over defendant’s assumed line of thirty-five thousand dollars — the defendant being liable also, it is insisted, for a general average contribution. The issue of fraud made by the petition that defendant intended reinsuring the entire risk and failed to disclose it, declaring they retained a line, when it is averred they retained none, is not formally waived, but the contention in this court is mainly that plaintiff’s liability was only for the loss over defendant’s asserted lines.

The case is before us on the certificates. We_must accept them as the written contracts of the parties. We first direct our attention to the preliminary question raised by defendant to the introduction of testimony to establish any custom or any understanding to contradict, or vary the contracts of unqualified insurance expressed in the certificates. In view of the allegations of the petition we will consider the evidence, giving due weight to the certificates. When the written contract is assailed as not embodying the intentions of the parties, testimony to that end should carry conviction of the error.

The petition imputes fraud in the defendant in effecting their reinsurances. It charges concealment of the reinsurance of the entire risk and misrepresentation implied by the alleged custom, and by the statement of defendant’s agent, “ we carry our line.”

We have been referred to the decision in 13th Annual (Louisiana Mutual Insurance Company vs. New Orleans Insurance Company, 13 An. 246). The case was one of reinsurance of sugar, in which the insurer stated in his application that he had a risk on the building, when, in fact, he carried none. The court held that the representation was material and its falsity avoided. The syllabus in the case declares that, in regard to reinsurance, the custom among underwriters in the city of New Orleans is to divide the risk and not take the whole of it — that when the application is silent this is always understood.

We do not think that an argument seeking to maintain that any custom determines the amount of the risk the original retains in effecting reinsurance is sustainable. Reinsurances necessarily vary in amount, according to the nature of the risk, the judgment of the insurer as to the extent it is judicious to reinsure, and the amount the reinsurer is willing to accept. Reinsurances depend entirely on the stipulation of the parties — a reinsurance without specification of the amount reinsured is not one on which it can be supposed business men would enter. Reinsurance is, as one of the witnesses expresses it, “fluctuating.” Each company determines its own line. We can not accept as correct the proposition that in New Orleans custom divides reinsurances between the insurer and the reinsurer. We must take judicial cognizance of reinsurances for any and all amounts according to the views of the parties. There is no division of risks sought here — that kind of an apportionment would not benefit plaintiff, and it has no relation to the issues. Witnesses often mistake for custom their impressions, individual experiences or methods of business, and not infrequently deem that to be custom in its legal sense which is merely the course of business the law itself enforces.

Reinsurances, while they may be of the entire risk, are ordinarily of such portion of the amount the insurer deems proper to reinsure. 1 Kent, S. p. 278. Hence it may be said in reinsurances the general rule is the original insurer retains part of the risk, and in the event of total loss, to that extent of the amount retained, shares the loss with the reinsurers.

If this is not the reinsurance desired, but the reinsurance of the entire risk, for obvious reasons good faith exacts that that purpose should be stated to the reinsurer. All that any custom would enforce was implied by the expression of defendant’s agent. He announced, as was customary, that the entire risk was not to be reinsured, but the insurer bore part. All that can be said of any usage bearing on this controversy is that in reinsurances the original insurer, without express statement to the contrary, retains part of the risk, and that amount no custom fixes. We are not dealing here with reinsurances of the entire risk, as the petition alleges, and the argument in some of its aspects seems to maintain. The testimony shows that on each of these risks the insurer proposed to bear part. On the Yorkshire risk of sixty thousand dollars, the reinsurances were only forty-five thousand dollars, and defendant paid its part of the loss of fifty-one thousand dollars. On the Adele risk of one hundred and fourteen thousand dollars, the property actually put on board being ninety-one thousand dollars, the reinsurances were sixty-one thousand dollars, and a total loss would have been borne partially by the defendant. As neither the negotiation nor any custom fixed the amount of the risk on those cargoes to be retained by the defendants, and as it did bear a part of the risks, we do not see, in any aspect of custom or fact, any basis for plaintiff’s allegation of concealment and misrepresentation.

There was no reinsurance of the entire risk, hence there was no concealment — there was in each case a part of the risk borne by the defendant, hence there was no misrepresentation in the use of the expression “ we carry our line.” There is no more basis for avoiding the reinsurance in the case of the Budstiken than in that of those we have just considered. Avoiding an insurance for alleged concealment or misrepresentation is a question not for any custom to solve, but one of law for judicial determination. The custom, if any bearing on the subject, may be an incident in the investigation, but the law alone is to ascertain the influence and effect of the supposed misrepresentation. The obligation of a faithful disclosure of all facts material to the risk resting on the reinsurer, the same as on the original insurer, is to be understood in a reasonable sense. The rule exacts the communication of facts, not contingencies. If the information is stated as opinion, expectation or belief, it does not affect the policy if given in good faith — in such case the insurer takes the risk of the statement — if made in bad faith it will avoid the policy. 3 Kent, S. p. 284. When reinsurance on the Budstiken was effected, the l'isk accepted was thirty-five thousand dollars. Of that risk defendant proposed to bear fifteen thousand dollars, hence the reinsurauce was twenty thousand dollars; ten thousand of which was with the plaintiff companies. But the assured failed to get the expected cargo of thirty-five thousand dollars, but placed on board goods to the extent only of twenty thousand dollars on which the loss was sustained, and the reinsurers paid. We can not hold that this reinsurance of ten thousand dollars was made void by the unforeseen failure of the insurer to put on board cargo of equal value to the amount of the risk sought and accepted. The authorities cited in this connection relate to statements of facts that had no existence, made to induce the acceptance of the risk by the insurer. Thus the representation that the insurer was a man of pecuniary responsibility when he was not— that other insurances had been obtained, a fact tending to show that other insurers deemed the risks good, when there was no such other insurances, and the ease from our own court, of reinsurance of sugar obtained upon the false representation that the insurer itself carried a risk on the building when it did not do so, are all instances of false representations as to facts claimed to exist, but which had no reality. These decisions and the principles on which they rest have no application here. The representation in this case that defendant carried its line on the cargo the insurer was to put on board had the prospective significance that the unforeseen, against which none can guard, might prevent the complete loading. The subsequent event, that the cargo to the full amount was not put on board, can not stamp as fraudulent representations, made in all sincerity and truthfulness at the time. Another test might be applied. Suppose the defendant, with a prescience not of men, had foreseen •the contingency of the failure to deliver the expected cargo, and indicated that possibility to the plaintiffs, is it to be supposed the reinsurers of ten thousand dollars on a much larger risk, part of which the insurer expected to bear, would .have been declined, because of the possibility of the failure to del.ver a full cargo which would leave no part of the risk for the original insurer. That bare possibility, in our opinion, would have exerted no influence on the reinsurer, otherwise fully content to reinsure. We think the reinsurance on the cargo of the Budstiken, as on that of the Yorkshire and the Adele, must stand. 3 Kent, 284; Wood on Insurance, Sec. 290 et seq.

We now turn to an examination of the extent of the liability of the companies.

We are asked to substitute for the contracts of unconditional reinsurance expressed in the certificates the contract of the different character claimed to be established by the testimony of the officers of the companies. If these insurances were of the special character to cover losses only above the amounts placed before us in plaintiff’s argument, it is strange there should have been no specification of these amounts in the negotiation or application. In insurances of that character the minds of the parties are necessarily directed to the fixed amount above which the assured seek indemnity, and below which the insurer is resolved to incur no liability. Plaintiff insists the companies insured only the amount of loss over defendant’s line. We find a general statement from some that defendant’s line was understood to be forty or fifty thousand dollars. How does that statement fix defendant’s line on these risks of thirty-five thousand dollars, sixty thousand dollars and one hundred and fourteen thousand dollars? One witness states that the “ line ” is proportioned to the capital of the company; another that the “ line ” of a company is the amount not reinsured; another that the “ line ” fluctuates 10 be determined by the company. If, in these cases, the line was to be fixed by the reinsurances, whatever the amount, then the risk of these companies was dependent entirely on the disposition or ability of the original insurer to effect reinsurances. If the reinsurer proposes to restrict his liability as contended for by plaintiffs, it is inconsistent he should leave his responsibility entirely uncertain or contingent. In a litigation between an insurance company suing defendant on grounds similar to those urged here the insurance policies had the endorsement to apply to excess over fifty thousand dollars. The litigation failed because the limitation was held not to affect the defendant (North America Insurance Company vs. Hibernia Insurance Company, 140 U. S. 572). But the explicit statement of the policies of no liability, except for losses over the specific amount, is suggestive of the character of the reinsurances in this case on which no definite amount above which loss is to occur is found either in the negotiations or the applications. On the contrary the written contracts are unqualified reinsurances up to seventeen thousand five hundred dollars, ten thousand dollars and fifteen thousand dollars. If that sort of indemnity contended for by plaintiff had been intended, it would seem it would have been explicitly stated in the negotiations and applications. There is no such testimony, and the written contracts are of an entirely different character.

We have examined the testimony relied on to show that these reinsurances were not “ flat,” but “ excess ” reinsurances accepted with reference to a “line” of original insurance taken out by the company seeking reinsurance. We find no evidence in the record which would justify us, in our opinion, in adopting plaintiff’s contentions. We find no evidence which would warrant us in holding that these reinsurances were to cover losses on one of the risks only above thirty-five thousand dollars; on another above twenty thousand; on the other above thirty-five thousand dollars. On what part of the testimony, as to negotiations or applications, could contracts of that character be sustained? The testimony is indefinite; is based in part on impressions, and in some respects manifestly consists of deductions of the witnesses. The conclusions drawn from the testimony, in support of plaintiff’s case, are directly opposed to the written contracts in which all discussion and negotiations usually end. The expressions attributed to defendant’s agent, with slight variations, are “we carry our line;” “we offer the excess of our line,” or others equivalent thereto. In everyre insurance not of the entire risk, the original insurer carries part of the risk and insures to the extent of the residue, which maybe expressed as the excess of his line. The expressions attributed to defendant’s agent, and from which plaintiffs deduce special contracts, simply announce, in our view, that which is implied in every reinsurance except the rare instance of reinsurance of the entire risk. When the original insurer does not reinsure for the full amount of the risk, in the event of a total loss he pays that part, but when the loss is not total, he goes on the reinsurer the object of all reinsurance. American and English Encyclopedia, Verbo Insurance.

The effect the plaintiff’s argument gives to the expressions of defendant is a reinsurance operative only on loss over a fixed amount, i. e., defendant’s line. No such limitation is expressed and none is is implied. It seems to us the expressions are perfectly consistent with the usual import of reinsurance, which is, that the insurer seeks indemnity not for loss over a certain amount, but for any and all loss up to a certain amount. The plaintiffs now exclude the insurer from indemnity except for loss over certain amounts. That is not usually the purpose of reinsurance. Of course the contract may be modified, but it is difficult to supply the modification from the fact the reinsurance uses language which might well be employed by any one seeking the ordinary benefit of reinsurance. Reinsurance is indemnity to the insurer for the loss up to the amount, whether for the whole or part of the risk stipulated, and for which the premium is paid. It is a contract as put by the books by which the original insurer procures another to insure him against loss by reason of the original insurance. Again, it is a contract where the insurer, to lessen bis own liability, reinsures or transfers the insurance he has agreed to carry, in whole or in part, to a new insurer, who, thereupon, occupies the same position as the original insurer does to the original insured, or still again: when the loss has happened the rein-surer must pay to the first insurer the amount of the loss within the policy. He must pay the entire sum reassured, and has no concern with any arrangement between the first insurer and his creditors. 3 Kent, Sec. 278, foot-note; Elliot on Insurance, Sec. 3; Biddle on Insurance, Sec. 7, 378. We think it clear from the record that the satisfaction now insisted on by plaintiffs under the contracts was not the indemnity the defendant sought. When defendant insured to cover loss over fixed amounts, as it seems was done in some of the companies, that kind of indemnity was stipulated in the policies. This answers, we think, the suggestion in the briefs, why a different form of indemnity was required from these companies. The contracts differed — the measure of indemnity accorded with the contracts. With these plaintiff companies the certificates were for unconditional reinsurances. With that appreciation, when the losses occurred the demands were for payment of the entire amount re-insured, as the contracts in our opinion required. Prompt compliance without question followed. The light thrown backward years after disclosed to plaintiffs (che petition alleges) that the companies paid in error, and this suit was brought to revoke the payments. With all possible allowance for the alleged ignorance of the facts connected with these losses the payments carry a significance the mind can not easily resist. A demand of payment on insurance intended only bo cover loss up to a fixed amount would naturally suggest to the reinsurer, called on for payment, the inquiry of the amount of the total loss. If under these contracts the plaintiffs were bound for no loss under a certain amount it is difficult to conceive that payments would have been made without the rendition of ah account or some investigation, or, at least, an inquiry of the total loss. But we fail to find that any account was rendered or asked, or that there was any investigation or inquiry on the subject. The amounts of the reinsurance were paid in full, as we infer, on the simple notification of the losses. In the confidence of commercial intercourse, such payments might well be made under unqualified contracts of indemnity, but, in our view, would be entirely out of the ordinary course of the reinsurances as now contended for, called for no payment whatever, unless the loss exceeded the amount stipulated and to be deemed prominent in the mind of the reinsurer.

The claim of a payment in error naturally suggests how the error occurred. No false representations are suggested unless a call for payment is to be deemed fraudulent. The call affirmed the liability for the amount of the reinsurances. If there was only a qualified liability, as now contended for, an inquiry would have dis'closed no obligation in one case, and in the other two, only for amounts below those claimed. But we are confronted with the fact that with no such inquiry or the faintest suggestion from plaintiffs, they paid the full amounts of the reinsurance, perfectly consistent with the idea of liability for loss up to the amount reinsured and repugnant, we think, to any other appreciation of their obligations!

In this case we are asked by the plaintiffs to displace the clearly defined liability arising from the ordinary contract of reinsurance. Instead of unqualified reinsurance of seventeen thousand five hundred dollars, ten thousand and fifteen thousand dollars, the plaintiffs’ argument is the substitution of special contract only to cover losses over certain amounts which his argument adopts as those intended. On the reinsurance of ten thousand dollars the defendant is to have no indemnity for a loss of nineteen thousand dollars. On an other reinsurance of seventeen thousand five hundred dollars the plaintiffs are only to contribute to make good sixteen thousand dollars of _ a loss of over fifty thousand dollars, and in another case, with sixty-one thousand dollars of reinsurance, defendants are to bear the whole loss of forty-seven thousand dollars, except twelve thousand dollars. This construction strips defendant of all benefit in a reinsurance of ten thousand dollars and sensibly reduces the advantage proposed by premium paid by defendants for reinsurances of sixty-one thousand dollars and fifteen thousand dollars. This construction we are to adopt on the significance plaintiffs attach to expressions of defendants’ agents and conversations from which plaintiffs deduce their appreciation of the contracts. Our examination leads us to the conclusion that the expressions of defendant’s agent were consistent with the indemnity of the ordinary contract of reinsurance. We think the conduct of the parties accords with that contract. With statements and expressions relied on by plaintiffs for a significance to which we can not assent and opposed by plain written, qualified flat reinsurances, in our opinion, the certificates must stand as expressing the obligations of the plaintiffs, and in fulfilment of those obligations the plaintiffs made the payments now sought to be revoked.

For the reasons herein assigned the judgment appealed from is hereby affirmed.


source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 11,813.
    John Snider vs. New Orleans & Carrollton Railroad Company.
    In a suit for damages for personal injuries received from a collision with the car of an electric car company, proof that the company may have failed in its duty in the employment of a particular motormau, or in furnishing to a particular car its proper equipment, is not sufficient for a plaintiff to recover. The proof must show that the accident was caused by reason of these particular breaches of duty. 42 An. 1153; 44 An. 694.
    It is a recognized rule that before attempting to cross the track of an electric car a person should look to ascertain whether prudently the crossing should be attempted. The rule contemplates that this should be done at a time and place when the reason upon which it is founded could be made effective. When the law requires steps of diligence and caution it will not be satisfied by the , substitution therefor of vain and useless acts.
    A PPEAL from the Oivi] Monroe, J. District Court for the Parish of Orleans.

      George L. Bright for Plaintiff, Appellant.

      John M. Bonner for Defendant, Appellee.
    Argued and submitted May 23, 1895.
    Opinion handed down November 18, 1895.
    Rehearing refused January 6, 1896.
    Plaintiff demands a judgment for fifty thousand dollars damages, for an injury received by the wheels of one of the cars belonging to and operated by the defendants running over and crushing his foot, thereby necessitating the amputation of his leg.
    The plaintiff had been for many years a plumber and gas fitter in the city of New Orleans. The defendants were engaged in running a line of street ears, propelled by electricity from Oanal street, on Baronne street and St. Charles avenue, to a point in the Seventh District of the city of New Orleans. On the morning of March 22, 1893, plaintiff, driving a wagon, attempted to cross the tracks of defendants’ road at Josephine street to the river side of St. Charles avenue, and whilst so attempting he was run against by the electric car of the defendants; his horse was seriously injured and damaged, his wagon was broken, himself thrown to the ground and the car ran over his right foot and mashed it. He was taken to the hospital and there, on the same day, his leg was amputated near the knee. The plaintiff declares that he suffered great mental and physical pain and would continue to suffer for a long time, and had been very helpless and would be unable thereafter to follow his occupation and trade of a plumber and fitter of gas fixtures. That he had incurred great expense for medicines, medical and surgical attendance. That he was thus injured and damaged without any negligence on his part; that the injury, damage and accident was caused wholly by the want of care, the ignorance, negligence, unfitness and recklessness of the defendants and their emyloyees, who’ were in charge of the car at the time, and also by the imperfect and defective equipment of the car; that the persons in charge of the car could have avoided the accident had they used proper care and diligence.
    The case was four times tried — three times before a jury and finally before the court without a jury. On the first trial the jury, not being able to agree, were discharged. On the second trial a verdict for plaintiff for ten thousand dollars was returned, the jury standing ten to two. A motion for a new trial, on the ground that the verdict was contrary to the law and the evidence, having been granted, the jury on the third trial, by a vote of nine to three, found a verdict for fifteen thousand dollars for the plaintiff. This verdict was, on motion, set aside by the court on the same grounds as were assigned against the second verdict.
    Plaintiff then waived a jury and judgment was rendered by the court on the fourth trial in favor of defendants, and plaintiff appealed.
   The opinion of the court was delivered by

Nicholls, O. J.

The defendants own and operate aline of electric cars in the city of New Orleans, with double tracks. The tracks, which commence at the intersection of Baronne and Oanal streets, turn to the left toward the Mississippi river at Delord street, continue on that street until they reach St. Charles avenue, when they turn into the avenue and extend to what was formerly the village of Oarrollton. In connection with the main line are two branches, one at the intersection of St. Charles avenue and Jackson avenue, the other at the intersection of St. Charles avenue and Napoleon avenue. All the cars in going up — that is, from Canal street to Carrollton— run up the right hand track, and in coming down to Canal street they take the other or left hand track.

The cars which go through to Carrollton are painted green; those which turn off at Jackson avenue and go to the river on that avenue are painted red, and those on the Napoleon avenue branch are yellow. The branch cars do not simply make connection at Jackson and Napoleon avenues, but run through to Canal street. St. Charles avenue is made up ol two streets, separated from each other through their length by a strip of land of some width, known as the neutral ground.” Defendants’ double parallel tracks are on this neutral ground. The side of St. Charles avenue next to the right hand track going toward Carrollton is known as the “ Lake ” or Woods Side ” of the avenue, that next to the left hand track is known as the “ River Side.” Jackson avenue crosses St. Charles avenue at right angles, or nearly so, the streets parallel to Jackson avenue, and just below it are, first, Josephine street, then St. Andrew, St. Mary and Felicity. At Felicity the avenue curves somewhat, and by so curving causes the cars when below that street to pass out of the view of persons standing on the Josephine street crossing of St. Charles avenue. The squares or blocks of the city are usually about three hundred feet in length. State vs. Berard, 40 An. 172; State vs. Natal, 42 An. 613.

Plaintiff’s version of the accident is that he was driving his wagon down on the lake side ” of St. Charles avenue, intending to crossover to the-“river side” at Josephine street, and continue down the avenue on that side. That when between Jackson avenue and Josephine street, facing down town, he looked down the track to see if any car was coming up, and saw none. That he then looked to his right and rear to see whether any car was on its way down, above Josephine street. That he noticed a red car was moving down between Jackson and Josephine streets — that, from its distance and speed, he was satisfied he could turn into the crossing at Josephine street and pass over, without danger from that car. That he accordingly placed his wagon on the crossing, and was moving across, when the red car, contrary to custom and to regulations, coming directly opposite to him, came to a dead stop upon the crossing itself, in order to take on two ladies as passengers. That the car, being in front of him, his further way across was blocked. That, when matters were in this situation, his attention was drawn to the noise of the wires above his head; and looking down town, or to his left, he saw about four hundred feet from him a green car coming on the uptown track with great speed toward him. That, recognizing the danger of his position, he immediately endeavored to withdraw his horse and wagon from the track. That he was unable to do so in ! time to avoid a collision, by reason to a very great extent of the asphalt at the Josephine street crossing having been dug up, and the planking between the railroad tracks removed, and of the further fact that the rails projected ab ive the ground, and there were deep ruts on the lake side of the right hand traek3. We have examined the testimony on the subject of the position of the red car at the time of the accident with the greatest care, and it establishes overwhelmingly the fact that the red car had not reached the Josephine street crossing when the collision occurred; that it was above Josephine street at that time; that when it did stop it was not for the purpose of taking on passengers, but enabling those already upon it to go to the scene of the disaster; that if at any time it blocked the crossing (which is very doubtful) it only partially blocked it, and that was after the accident; that the lady who was referred to by several witnesses as having gone into the red car at Josephine street w as Mrs. Howe, a passenger in that car, who returned to it after having left it to go to the assistance of the wounded man. Defendants’ witnesses, by whom these facts were sworn to, are of the highest respectability, entirely without interest or bias in the matter in respect to which they testified, and having exceptional opportunity and occasion to observe and to know of what they speak.

We substantially quote some of this testimony.

E. W. Rodd, sworn, said that at the time of the accident to the plaintiff at the corner of Josephine street and St. Charles avenue, he was standing on the lower river side crossing waiting for a car to go down; he saw a car coming; it was the ear he was waiting for; it had just come around the curve at Jackson street, and was stopped out of the curve; it was the nearest ear to him; that standing at the lower street corner, he was, at the immediate moment of the accident, looking up in the direction of the red car, which he was waiting for, and did not notice at all the green car coming up. All of a sudden he saw this wagon across the street, and almost simultaneously this green car came up the street and scruck the horse. It knocked the man and boy, who were on the wagon, off their seats, and as well as he could see, the man struck the telegraph pole and fell between the telegraph pole and the track, and the car was stopped then, at this pole. As soon as he saw the accident he ran over and saw the man was badly hurt. He went over to Ballejo’s grocery and made them telephone for the ambulance. He returned then, and took the car, and went down. The green cár was moving at a very rapid rate — the ordinary speed, he supposed. It was just on the other side of-the crossing when this wagon started to cross the street and struck it. He judged the motorman had only a part of the distance of the crossing of Josephine street to stop his car in order to avoid a collision. The wagon cr horse occupied a portion of the crossing. * * * The moment the horse stepped on the track the green car had reached the lower crossing of Josephine street — the passage way for a walk across. He could not see how the man on the wagon could, in the face of that car coming right down on him, attempt to cross the street, because the car was certainly not over, he thought, fifty feet from him when he attempted to cross, and as the car was coming from the opposite direction, in which he was driving, he could not see how he could miss seeing it. When he saw that, he saw that an accident was inevitable. The red car was then about midway, he thought, between Jackson avenue and Josephine street. It was not near the crossing. There was nothing on the crossing in front of the plaintiff to prevent him from going across— he had a clear track. * * * The red car stopped before it got to Josephine street. He was watching the red car coming down.

Sheppard, the motorman on the red car, said it (the red car) was going down St. Charles street; it had just come out of Jackson street behind a green car. He met a green car at the intersection of the St. Charles avenue corner and stopped to let it go down. He was eoing slowly behind it in order to let it get five hundred feet ahead of him before going at his regular speed; of course that brought him a little distance into the intersection of Jackson and St. Charles. He saw the accident. When he had got possibly two-thirds of the distance down the block, may be half the distance down the block, his attention was diverted from the green car immediately ahead of him to the up-town track, and the first thing he saw was a wagon and horse hitched to it. He did not notice the man particularly at first, but he saw the horse. The horse was then ten or fifteen feet from the outer rail of the up-town track. He looked over the horse’s head and about the same distance from the centre of the crossing where the horse was headed to, he saw the green ear. The horse and the driver were headed rather toward the witness than directly across the street. The driver (the plaintiff) was looking at the witness, and witness was just about to turn his current on and increase his speed when he saw the man. He did not turn the current on because he thought he would allow the man to pass him. Then he saw the green car coming up. It struck him immediately there' was danger there, and the man came on and the green car came on and the collision took place. * * * The green car struck the shaft rather between the rump of the horse and the forewheel; the concussion threw plaintiff over the dashboard. He struck the. telephone box and rebounded from the box to the side of the car and witness’ car (the red car) approaching, the witness, passed out of sight, because the red car passed down alongside of the green car. Everybody in the car that saw it jumped up and exclaimed this, that and the other. Witness did not want to run the risk of anybody jumping out of the car, so just above Josephine street— just above the crossing — he brought his car to a stop with the tails of the two cars together. He pulled the gate open and stepped out on the grass, and Mr. Holy land (the conductor) in the meantime had run up to the little boy. The red car (his car) stopped before it got to Josephine street, just above the foot walk, or possibly two feet of it. He was half way between Jackson and Josephine when he saw the plaintiff watching him. On cross-examination he said that his car stopped above Josephine street; that he stopped after and not before the accident; that he did not stop to take on passengers at Josephine street; that if any ladies got on his car at Josephine street they got on while he was off.

Mrs. Howe testified that she was a passenger on the red car. She was sitting on the lake side of the car, looking out of the window. She saw the accident. When the accident happened, the red car had not got to the crossing. She knew this, as she was looking out of the window before the car stopped, and she saw the boy lying there, and she got out and put her hand on him and saw that he was senseless. The red car stopped just before it got to Josephine street, almost opposite to where the parties were lying. She was looking out of the window, and saw the plaintiff lying on the grass, then the car stopped, and witness got out and went to him. The red car had not got to the crossing at all. She was as positive of that as she was of her living.

William Palfrey, cashier of the New Orleans National Bank, testified he was a passenger on the red car going down — he did not see the accident itself, but saw only the effects of it. The red car was going down town. At the time of the accident, it was above Josephine street. When he . saw the wounded • man lying on the street above Josephine street, the red car had stopped above Josephine street.

Simon Weiss testified he was a passenger going down town in the red car — he did not see the accident itself, but was in the car at the time — he heard the crashing and the shouting — at the time of the accident the red car was, he imagined, about sixty feet above Josephine' street, and stopped a few feet before it reached that street — it stopped on the up-town side of that street, between it and Jackson street. It did not occupy any part of Josephine street. He was positive of this, because when he got up to see the result, when the car stopped, he saw the man lying on his back on the grass, arid the car was at a stand-still, and that was very nearly opposite his own (position). It could not, according to the space and distance, have crossed over Josephine street, when the car was stopped there. — -he was positive that the car stopped before it reached Josephine. This was not a supposition on his part, but a positive fact.

G. Westerfeldt testified he was walking down St. Charles avenue, opposite to the Howard Place, when the accident occurred — saw plaintiff when he attempted to cross Josephine street. There was no car blocking that street when he started to make the crossing.

Edgar H. Farrar testified that at the time of the accident he was walking down St. Charles avenue, reading a newspaper, when some one called out in an excited manner that some one was hurt at the corner. He looked up at the corner. There had just occurred a collision between a wagon and a green car, coming up the street. He went to the corner., The tail of the green ear was just at or just above the upper crossing of Josephine street. There was another car. There was a red car on the other track, coming down — that car stopped about opposite the green car — it stopped on the upper side of Josephine street.

J. Tourtarel, conductor on the green car, testified that the red car stopped about fifteen feet above Josephine street; that the tail end of the cars were about opposite to each other when the red car stopped.

The testimony of these witnesses is fully supported by that of a number of others, which it would serve no useful purpose to particularly refer to.

We have examined carefully the testimony relied on by plaintiff and find it not only directly at variance with the great mass of testimony, but plaintiff's principal witnesses, Roos and Holyland, are both evidently hostile.

The witness White was, by his own account, a passenger on the yellow or Napoleon avenue car, and a block and a half away from the place of the accident at the time it occurred. His statements are entitled to no weight; he claims entirely too much knowledge of affairs for the opportunities which he had for ascertaining the facts.

Jones, one of defendant’s main witnesses, on this branch of the ■case, declared he saw the accident. He was on a wagon on Josephine street, behind the plaintiff. The plaintiff went across; a red car coming down stopped on the middle of the crossing instead of on the far side. Plaintiff had plenty of time go to over if that car had gone by. Being blocked, he could not see the .green ear when he went to start over. The green car ran up on him, hit the foot-board of the wagon, jammed ■it up against the post, threw Snider out, and his feet fell across the track. The bell did not ring until the man had been run over. No effort was made to put on the brake until after the accident had happened; the green car ran to within fifteen feet of the Jackson street switch. Witness saw the red car stop at Josephine stréet and block the crossing. Snider was at the time on the asphalt, waiting for the red ear to go over. Snider was going over the track when the green car hit him. If the red car had not stopped there Snider would have crossed over. On cross-examination, in fixing his own position at the time of the accident, he repeated that he was on a wagon on Josephine street, behind the •plaintiff, his wagon heading to the woods; he was on the river side of St. Charles avenue, and he was going toward the woods. Snider’s "wagon was directly in front of him, standing on the middle of the ■asphalt, with just room enough for a wagon to come behind him. Snider moved on at the same time the red ear moved on. As the •car moved across the crossing Mr. Snider whipped up his horse to ■drive across behind the car. Witness was looking at the red car at the time. As' soon as the car started he (witness) looked up town ■to see if another car was following the red car. There being none, he was going to drive over too, but he saw the green car, but Snider did not. The car was coming from down town at the rate of twenty-three ■or twenty-five miles an hour. When the green car was twenty feet ■above St. Andrew street, Snider was just across the track. His horse’s head was between the two tracks; he was on the river side track and had not yet reached the wood side track. He was hitting his .horse, trying to cross the track. He was not heading to the woods, but was going to head up town. He had not seen the green car blocked by the red ear. Had Snider looked up and down the track, as witness did, he could not have seen the green car, as the red ear was right blockading him and he could not see it. Snider was sitting on Ms wagon in the middle of St. Charles avenue on the asphalt, and he started across to the woods as soon as the red car moved across the crossinn — he could look up the track but could not look down, because the car moved on and hid the car — the green car — he went across covered by the red car. On re-examination the witness stated that he had reached Josephine street from Coliseum street — he came from Coliseum, between Sixth and Washington — he was on the river side on Josephine street to clear the crossing — he had gone down Josephine street headed toward the woods — he came out Coliseum street to Jackson, on Jackson to Prytania and as St. Charles and Jackson were blocked, he took Prytania, to Josephine street. Snider had come down Josephine street headed to the woods. Witness saw Snider before he (witness) got to the corner of Josephine. He saw him within thirty feet of the corner. He was ahead of the witness. Plaintiff attempts to explain this testimony by saying the witness was a stranger in the city, and did not know exactly the description to give to places, but the minute statements made by him as to where he came from and where he was going, does away with the possibility of any mistake by the witness. Jones’ account differs so radcally from that of all others, that it should be disregarded entirely in reaching conclusions in the case.

Having determined that the position of the red car at the time of the accident did not enter as a factor in the case, we have now to examine the other grounds uponjwhich plaintiff seeks to recover.

He claims that the injury received by him was caused wholly by the want of care, the ignorance, negligence, unfitness and recklessness of the defendants and their employees, who were in charge of the car at the time, and also by the defective and imperfect equipment of the car; that the persons in charge of the car could have avoided the accident had they used proper care and diligence.

In his supplemental petition he says: “If the red car had not blocked the crossing at Josephine street, and the green car had not been running at an extraordinary and dangerous speed, and if its motorman had been efficient and competent and careful, and if its brakes had been in good working order, and properly and timely applied, the accident and damage to petitioner would not have happened, and defendants and their agents could have avoided the accident.’'

A mass of testimony was taken to establish the fact that Sanders, who was acting actually as a motorman upon the green car, had not yet been received and paid as such by the company, but was, at the time, merely being taught the duties of the position by Roos, the regular motorman, and that he was inexperienced and inefficient; that the shoes of the green car were worn out, and by reason thereof it could not be quickly stopped, and that the car was being run at a dangerously rapid rate. The conclusions we have reached as to the actual cause of the collision would make it unnecessary for us to express any opinion as to whether Sanders was inexperienced and inefficient or not; whether the shoes of the car were worn or not, and whether the rate of speed was dangerous or not, for however reprehensible it would have been in the defendant company to have permitted cars to be run upon their road with defective appliances, to have allowed incompetent persons to serve as motormen, and to have their cars run at improper rates of speed, they would not have become liable by the mere existence of that condition of things to every person who might receive personal injuries by collision on their road. In order that these facts could have a legal bearing in this case it should appear that the injury received was the result of the breach of duty (Nivette vs. New Orleans and Lake Shore Railroad Company, 42 An. 1153; Clements vs. Electric Light Company, 44 An. 694). In our opinion the question of the experience of the motorman, the condition of the brakes and the speed of the ear had nothing whatever to do with the collision, for had the motorman been perfectly experienced and careful, the brakes in thoroughly good condition and the ear running at an unquestionably proper rate of speed, th s collision would none the less have inevitably happened. The plaintiff has received painful injuries which will permanently disable him from p operly attending to the discharge of the labor on which he relied for a livelihood, but we are forced to say that the blame for his situation rests upon himself. He imprudently and recklessly placed his horse and wagon across the track of the defendant company, directly in front of an approaching ear, and when it was so close upon him that nothing could have saved the situation (Blakeslee vs. Consolidated St. Railway Co., 63 N. W. Rep. 401, 402). We think it proper to say that there is nothing in this record going to show a want of proper care and vigilance on the part of Sanders, in discovering the danger of the situatior, or a want of timely effort on his part to avert it. Ryan vs. Railway, 44 An. 809.

We are of the opinion that the danger was seen as soon as it was possible to see it, and that the motorman, on seeing it, made instantly every exertion to avert it. In our opinion escape from the collision was impossible. The plaintiff says that before venturing across the crossing, he looked down the track and saw no car coming up, but it is evident that he must have done so a considerable time before he actually crossed, and that he must have directed his attention, after he had once looked down, exclusively to what was occurring above Josephine street, on what is known as the ■down town or river side track upon which the red car was approaching. The curve by which the view below upon the lake side track is masked is at Felicity street, two blocks below Josephine street, and therefore the green car must have been below that curve when plaintiff last looked in that direction. It is a well recognized rule that a person before attempting to cross the track of a steam or electric car should look to ascertain whether prudently the crossing should be attempted (Blakeslee vs. Consolidated Ry. Co., 63 N. W. Rep. 401, 402). The rule contemplates that this should be done at a time and place when the reason upon which it is founded should be effective. When the law requires steps of diligence and caution, it will not be satisfied by the substitution therefor of vain and useless acts. Plaintiff might as well have not looked down the track at all as to have done so when the green car was masked by the Felicity street curve (Howe vs. Minneapolis, St. Paul & S. S. M. R. Co., 64 N. W. Rep. 103). The gong upon the car is shown to have been properly ■sounded. The motorman upon the car had no reason to anticipate that plaintiff would attempt to cross the street under existing conditions, while plaintiff knew perfectly well that the moving car was bound on its regular trip up to a point above that street on a fixed line, and must therefore inevitably cross the path he was taking as he moved across. The motorman upon a moving car may well have ■doubts as to whether the driver of a wagon might intend to cross his track or not, but the driver of the wagon can not but know that the purpose of the motorman is to carry his car across the street onto its destination unless there should be some reasonable ground for his stopping or slacking his speed.

There was nothing in this case to place the motorman upon his guard or make him suppose that plaintiff would seek to cross.

Plaintiff cites the case cf N. O. & Texas Ry. Co. vs. French, 69 Miss. 1.1 (12 Southern Rep. 338), as going to show that although railroad companies may be allowed to run their trains at a given rate, yet itis a question determinable by circumstances whether that speed be consistent with caution. We do not question the correctness of that proposition; on the contrary, we unhesitatingly declare that authorization or permission given to a company to run its trains aq. a certain rate of speed would be no protection to it for running at that rate when circumstances would make its doing so inconsistent with proper care and caution. The defendants’ car was not, in this case, being run above the authorized speed, and there was nothing in the circumstances connected with the Josephine street crossing which would call for its running at slower rate than it was then doing.

We have examined the testimony in this case with special care. We think the judgment appealed from is correct, and it is therefore affirmed.


author: Brbaux, J.

text:
    No. 11,875.
    Hypolite Laroussini vs. Philip Werlein.

      Prematurity — A breach of contract being alleged, the suit -was not premature.

      No cause of actions — It there ivas a contract as alleged plaintiff had no cause of action to compel the defendant to sign a deed of lease and accompanying notes.
    The remedy ivas on the contract for rental or for damages and not for specific-performance to coerce the obligor to sign notes and act.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Henry Denis and Branch K. Miller for Plaintiff, Appellant,
    cite: C. N., Art. 1142; Demolombe, Vol. 24, p. 486; 85 An. 1182; 85 An. 1221.

      Merrielc & Merrick for Defendant, Appellee,
    cite: 24 An. 50 and 433; 6 N. S. 585; 3 M. 349; 1 N. S. 421; 4 La. 77; 30 An. 110, 321 C. 0. 1927; 44 An. 67; 46 An. 713, 903. No suit can be brought in restraint of personal liberty, and a citizen can not be forced to sign ■an authentic act and twelve promissory notes. Laurent, Yol. 6, p. 256; Duranton, Yol. 474, Sec. 453; Marcadé, pp. 413, 414 (Art. 1142) ; Pothier, Yol. 1, Part 1, Ohap. 2, p. 79, Sec. 157.
    Argued and submitted November 20, 1895.
    Opinion handed down December 2, 1895.
    Rehearing refused January 6, 1896.
   The opinion of the court was delivered tqr- ^ , ¡X' ’ ;./•'.' ;,‘i.

Brbaux, J.

The defendant excepted s)$fj6 ,<p ground that it is premature, or if not prdnja'túr^'^líát'i'plajiiiti^'fe' petition discloses no cause of action. .^¡r $$ff,. „;;v';■ .'V,-

The plaintiff alleges that the defendant was his ¡leípseefof a stord and premises since July 1, 1890, at a monthly repta! of seven hundred dollars, to September 30, 1895; that prior to the expiration of the term of the lease, he and the defendant entered into a verbal contnct of renewal of lease for the term of five years, from October 1; 1895; that it was completed, closed and binding; that for the sake of reducing the contract to writing, to serve as evidence, and not to make it depend upon the deed, it was agreed to endorse the renewal upon the original lease, or to sign a deed similar in all re pects to the lease about to expire, save as to the dates and amount of rental.

That when requested, on the 5th day of April, 1895, to sign the renewal, the defendant declared that he had changed his mind, refused to sign, and added that he had no objection to sign a lease fox-one year.

The District Oourt passed upon the plea of prematurity and dismissed plaintiff’s demand for the recognition and' enforcement of the lease, and, on the ground of no cause of action, rejected plaintiff’s demand to compel the defendant to sign a written renewal of the lease and accompanying rent notes.

Under the allegations, which must be taken as true, for the purpose of the trial on the exception, the contract was complete, and when the defendant was called upon it was manifestly his obligation to sign the deed in accordance with alleged agreement. He refused and offered to substitute another contract.

He ignored the agreement to sign the deed, and in addition declined to hold himself bound as lessee at all, save upon terms not previously mentioned. The defendant was in possession of the property. While it is true that the original lease had not yet expired, it was not too early to enter into a contract at the time alleged, for a renewal and continuance. Moreover, it was the agreement, regularly entered into, by which the defendant positively refused to be bound. The breach of the contract, under the allegations, dates from this refusal to sign and to be bound by any of its terms and conditions. A suit to compel compliance with the alleged obligation was not premature; that is, if there was any such obligation, a fact admitted for the time being. We do not think it was necessary, in order to avoid the plea of prematurity, to postpone all judicail demand until the defendant’s breach of contract by a refusal to pay the rent. Under the rules relating to pleadings, there is no necessity of retarding the progress of the action with the view of ascertaining whether the defendant will hereafter persist in not holding himself bound.

We pass from the ground of prematurity, which we do not think we are authorized to sustain, to the plea of no cause of action.

Our reading of the petition is that there is a contract of lease between the plaintiff and the defendant. But this court has never, by any decision, held an obligor to the specific performance of signing a deed or note.

The first decision cited by the defendant (Levine vs. Michel, 35 An. 1121) clearly announces that specific performance “ should be guided by that respect for individual liberty which is an ennobling characteristic of our remedial system.”

The second cited case, Wilberding vs. Widow Daniel Maher, 35 An. 1182, is not at all determinative of the issue here. It does not seem that it was ever contemplated to confine an obligor to coerce him to sign an authentic act and notes. This suit would inevitably lead to such action in the event of defendant’s refusal to sign.

The unwillingness of the alleged obligor to sign at once suggests constraint and compulsion. The principle is appealing that in the matter of the discharge of obligations by the debtor personally, he can not be compelled to act against his will; that his liberty must be respected.

“L’homme esfc libre de ne pas remplir ses engagements, sauf a. supporter les conséquences de cette inexécution; on ne peut pas lui. enlever cette liberté en employant la violence.” Laurent, Yol. 16, p. 268.

The plaintiff is not left without remedy if his rights are as alleged.

The plaintiff urges that no action for damages or rental can be an adequate compensation for the right to a written act of lease with the lessor’s privilege.

To sustain that ground and take the ease out of in ordinary cases” stated in the Oode, Art. 1926, and treat it as one in which there would be inadequate compensation, we would have to assume that the lessor would, beyond all question, find property affected by his privilege. The lessee may not have any property at all.

If he should own property affected by the privilege it does not follow that he can not recover damages amply compensating him arising from the failure of the defendant to comply with his obligation.

The judgment maintaining the exception of no cause of action is affirmed.


author: McEnery, J.

text:
    No. 11,808.
    Finlay & Brunswig vs. Leo C. Peres and Mrs. Mary J. Finnegan, His Wife.
    A party wlio permits another to buy property in his name and for his benefit at a tax sale, and takes a counter letter, and afterward for a consideration, instructs the party, in whose name the title is vested, to retrocede the property to the tax debtor, and is present when the deed is made, will be estopped from asserting claim to the property.
    A judgment creditor of the heir of the deceased can not, under such a state of facts, subject the property to the payment of his debt, on the ground that no title ever passed from the purchaser at tax sale, as evidenced by the counter letter.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      B. B. Forman, Jr., and Benjamin Riee Forman for Plaintiffs, Appellants.

      Charles F. Claiborne for Opponent, Appellee.

      Argued and submitted November 6, 1895.
    Opinion handed down November 18, 1895.
    Rehearing refused January 6, 1896.
   The opinion of the court was delivered by

McEnery, J.

But if it be conceded that the tax title was valid, when the judgment was rendered and recorded the title to the property stood on the records in the name of intervenor. He purchased the property ■from Mrs. Ledig on December 9, 1857. She had previously, for the consideration of twenty-five dollars, obtained from Mrs. C. P. Winn a retrocession of the property.

August Baab, the husband of Mrs. Ledig, after it was discovered the property had been sold for taxes, went to Finnegan to get the property back. Finnegan went with him to see Miss Winn, in whose name Finnegan had placed the property. It was agreed that for twenty-five dollars — fifteen cash and ten on credit, a deed of the property would be made to Mrs. Ledig. The deed for the cash price was executed before a notary public, in the presence of Finnegan. A note was executed by August Baab, the husband, for the sum of ten dollars, the balance due. Finnegan brought suit on this note against Baab and wife, Mrs. Ledig. There was judgment against both defendants. The judgment was satisfied so far as Finnegan was interested.

The intervenor gave eight hundred dollars for the property and put on it improvements to the amount of two thousand dollars.-

It is contended by plaintiffs that there is no written evidence that Finnegan sold the property, and that the counter letter stands on the record as evidence of his title, which the judgment debtor in herited.

He had placed the property in the hands of Miss Winn and verbally instructed her to make title to Mrs. Ledig. He was present when the deed was made, and received the price of the retrocession of the property.

We see no difference in this case and that where a party stands by and sees his property sold without objection. Finnegan, if he were living, would be estopped from asserting title to the property. His heir has no greater rights than he had, and certainly the creditors of the heir have no superior rights. Finlay & Brunswig are not to be likened to inocent third parties, who are deceived by the records or by the acts of the parties.

Every consideration of right and justice demands an affirmation of the judgment.

Judgment affirmed.


author: Miller, J.

text:
    No. 11,900.
    Union National Bank of New Orleans vs. J. G. Grant.
    Whether the endorser of a note is the surety or endorser in the strict mercantile sense, he will be released if, without his consent, the holder releases the maker of the note. Story on Notes, Secs. 423, 424; Civil Code, Art. 8061.
    Nor is such defence of the release of the maker at all affected, because, at the maturity of the note, the endorser waived demand, notice and protest.
    The vote of the holder of the note at the meeting of the creditors of the insolvent maker, in favor of his discharge, releases the endorser. Civil Code, 2170,2177; 7 Martin, N. S. 13; 4 La. 295; 42 An. 640.
    Such discharge is not that of the law, but results from the voluntary action of the creditor. Ibid.

    APPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J.

      Oarleton Hunt for Plaintiff, Appellant.

      W. S. Parlcerson for Defendant, Appellee

      Argued and submitted November 23, 1895.
    Opinion handed down December 2, 1895.
    Rehearing refused January 6, 1896.

      Carleton Hunt, on application for rehearing:
    There is error to the prejudice of plaintiff bank in the opinion heretofore herein rendered.
    Because said opinion wrongfully holds that the discharge of the insolvent debtors, H. Kern & Sons, in their oessio bonorum, discharged defendant endorser, J. G. Grant, from his liability on their notes, whereas said discharge was and is merely personal to their debtors. Const. U. S., Art. 1 Sec. 10; Rev. O. 0., Art. 2177; 10 Rob. 43; 8 Rob. 204; 4 An. 359; Pothier on Obligations, Yol. 1, No. 381; 3 N. S. 28; 42 An. 540; 12 Wheat. 554; 6 How. 283; 5 Maclean 353; 5 Rob. 514; 8 An. 323.
    Because said opinion wrongfully holds that said discharge was the act of plaintiff bank, creditor of H. Kern & Sons, whereas said discharge took place by operation of law, and left defendant endorser, J. G. Grant, duly bound to plaintiff on his endorsement of said notes of H. Kern & Sons. Rev. O. O. 2173, 2174, 2177; Story on Promissory Notes, Sec. 428; Decolyar on Guaranties, 363, 364; 7 Pick. 295; 122 Mass. 500; 9 L. R. (O. R.) 216; 10 L. R. 10; 10 L, 212; 103 U. S. 301.
    Because said opinion wrongfully holds that the defendant endorser, J. G. Grant, is not bound under his waiver of demand, protest and notice of protest on said notes of H. Kern & Sons, whereas he bound himself absolutely for the payment of said notes, . under and by virtue of said waiver, and is held under a new contract, and his obligation in favor of plaintiff bank, holder of the notes, can not be affected by the alleged discharge of said H. Kern & Sons, makers of the notes. Parsons on Billsand Notes, Vol. 2, 244; 28 An. 921; 33 An. 303.
   The opinion of the court was delivered by

Miller, J.

This suit seeks to make a defendant liable as endorser on notes. The defence is that the plaintiff has discharged the maker o£ the notes. From the judgment in favor of defendant plaintiff appeals. •

The notes were to the order of the makers, by them endorsed, and defendant’s name is on the back of the notes following the payee’s endorsement. In that condition the notes were acquired by the plaintiff from the makers. When the notes matured defendant, at plaintiff’s request, waived demand, protest and notice.' The makers applied for the benefit of the insolvent laws, making the surrender of their property. At the meeting of their creditors plaintiff, as holder of the notes, voted in favor of a discharge of the insolvents.

It is strenuously contended that defendant is to be viewed as an endorser in the commercial sense. Prima faoie, that is his position, enforced, it is claimed, by his waiver of demand, protest and notice. If an endorser, it is argued that his waiver deprives him of any defence, based on the discharge of the maker of the notes. We are not aware that this effect has ever been attributed by our courts to a mere waiver' of demand, notice and protest, unless the case of the Union Bank vs. Lee, 33 An. 303, is to be accepted as such authority. In that case the endorser pleaded he had been discharged because the plaintiff had permitted prescription to accrue in favor of the maker, thus preventing any recourse of the endorser, if made to pay. The defence failed. The court seems to have attached importance to the fact that the endorser had paid interest on the note. The payment was before any prescription had accrued, and it is not easy to see the bearing of that payment on the defence of the after-acquired prescription in favor of the maker, of which the endorser sought to avail. The court, in that case also relied on Story and Daniel, to support the conclusion of the effect of the waiver. The texts cited affirm the waiver as dispensing with the preliminary steps of the holder to fix the liability of the endorser, but do not touch the effect of the discharge of the maker by the endorser. Story on Notes, Secs. 271, 273 ; 2 Daniel, Sec. 1090. The endorser’s liability is conditional, based on demand, protest and notice. If these are waived, he becomes unconditionally liable, and in this sense, after such waiver, he becomes, as is affirmed by the authorities cited by plaintiff, the unconditional debtor. Story, See. 198. But though liable in this sense, the endorser is still entitled to his defence, arising from the subsequent discharge of the maker. Story, Secs. 423, 424. We can not perceive on principle or authority that a mere waiver of protest, notice or demand deprives the endorser, when sued, of the defence that by the act of the plaintiff he is stripped of all recourse against the maker of the note, nor, in our view, does plaintiff’s argument on this branch of the case And support in the passage cited from Parsons on Contracts. These waivers are frequent. Even as applied to demand, protest and notice, the waivers are strictly construed; in some cases it having been held that waiver of on of these requisites did not waive others. “ Agreements of this sort are always construed strictly, and not extended beyond the fair import of the term; thus a waiver of notice shall be no excuse for want of due presentment.” Story, See, 272. We can And no basis, therefore, to extend the waiver in this case so as to relinquish a defence not at all connected with the subjects of the waiver.

It is in evidence the notes were endorsed by defendant for the accommodation of the maker known to the bank. That testimony puts the defendant in the position of a surety. In our view the capacity of defendant on the notes is not material. If an endorser, in the commercial sense, he is discharged, if, by an act of the holder, the maker is released, and if a surety he is entitled to the same de-fence. Civil Code, Article 3061.

This brings us to the consideration of the discharge pleaded, based on the vote of plaintiff at the meeting of creditors. The plaintiff contends that the discharge was only of the person of the debtor, but did not discharge the obligation. In support of this argument, the plaintiff relies on the text-book3 and an array of authorities based on the bankruptcy legislation of the United States and the English statutes of bankruptcy. The passage from Story epitomizes the law, the subject of these authorities. He observes the discharge of the joint maker or endorser, under an insolvent or bankrupt act, will not operate to discharge any other party to the note from liability, but operates as a bar or discharge of the insolvent personally.' The reason is, it is the act of the law. Story, Sec. 428. The text is fully sustained in the cases cited by plaintiff, and without any adjudications would command ready assent. These authorities do not undertake to discriminate as to the remedy left against the insolvent. No such discrimination is possible. The discharge under the Federal bankrupt act is complete as to person and property of the debtor. Revised Statutes of the United States, Sec. 5115. The purport of the authorities cited is that when the discharge of the maker of the law the discharge is personal to the insolvent, not of the other parties to the note. If these authorities are cited to sustain the contention that a discharge in bankruptcy under the Federal legislation on the English statutes leave intact the personal obligation of the insolvent, they fail of the pnrpose. But that which is involved here is: the effect of the discharge under the insolvent laws of Louisiana. Under the Oode such discharge is a complete release of the debtor in person and property, save and except as to the property surreundered, and if he comes to better fortune the insolvent may be compelled to make a new surrender. Civil Oode, Articles 2170, 2177, et seq.; Goicochea vs. Ricarte, 4 La. 45; Glenn vs. Dunbar’s Administratrix, 10 An. 253.

Under our law, the assent of the majority of the creditors in number and amount is requisite for the discharge of the insolvent. Without that assent he remains bound, and the whole effect of the proceeding is to distribute the proceeds of the surrendered property to his creditors. • For such a discharge, the plaintiff, as holder of the notes, concurred with others in giving to the maker of the notes on which defendant is now sought to be held, as endorser. It is immaterial, in our view, that others voted for the discharge. It may be that without plaintiff’s vote, enough would have voted for the release. It is enough, we think, that plaintiff concurred in the discharge. As it is put in one of the cases cited below, in answer to the proposition, that without the vote of the creditor for the respite, it would have been granted. “We do not think we are permitted to go into that question. What would have been the effect of the appellants refusing the indulgence, we do not know. The effect of a positive act can not be destroyed by speculation as to what would have been the situation of the parties, if the act had not been done.” The court held that the vote of the holder of the note for the respite, discharged the maker. Nolte vs. Their Creditors, 7 Martin N. S. 13; Lobdell vs. Niphler, 4 La. 295; McGuire vs. Wooldridge, 6 Rob. 47; Succession of Latchford, 42 An. 540. It seems to us that a discharge of the insolvent maker of a promissory note by the votes of the creditors can not be deemed the act of the law. It is that of the creditors. Under the Federal bankrupt act, it is the law alone, independent of any action of creditors, that grants the discharge. Under our law, the action of the creditor is requisite, and binds them with respect to the endorser, quite as effectively as any other form of discharge. The discharge of the maker by the holder is the release of the endorser.

We have given attention to the cases cited and elaborately reviewed by plaintiff’s brief. The court, in one of the cases, passing on the cashier’s power to vote a discharge to the maker on the notes held by a bank, found a reason for sustaining his vote, in the fact that the discharge left in force the right of the bank to compel a new surender under the circumstances stated in the Code. Another case maintains that the vote that the insolvent’s property be sold on time was not injurious to the endorser, and would not discharge him. Another decision is rather to the contrary, and on the same line, is yet another of those cited. In our view, the discharge to the endorser, resulting from the release by the holder of the maker, is none the less effective, because the possibility of compelling a new surrender is left intact, and if voting for terms of credit for the sale of the insolvent’s property may not, in some cases, and in others will, discharge the maker as affirmed in these decisions, with greater reason will the vote of the holder for a discharge of the maker accomplish the result.

. It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, costs to be paid by appellants.


author: Breaux, J.

text:
    No. 11,834.
    Michael McLaughlin vs. The New Orleans & Carrollton Railroad Company.
    While it is held that it is the duty of those in charge of a car, at crossings particularly, to he careful and watchful, those who use street crossings must exercise a reasonable degree of care and watchfulness.
    The motorman had a right to suppose that plaintiff’s son would not, after warning, attempt to cross immediately in front of the car at a distance too near to prevent the accident.
    While no one should be held to a degree of care and caution beyond his years, a boy of eleven years and four months of age can not be relieved from the exercise of all care and prudence. ’ I
    PPDAL from the Civil District Court for the Parish of. Orleans. King, J.

      Bernard Titehe and B. L. Tullís for Plaintiff, Appellee.

      John M. Bonner and Henry P. Dart for Defendant, Appellant.
    Argued and submitted November 6, 1895.
    Opinion handed down December 2, 1895.
    Rehearing refused January 6, 1896.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff claims damages caused by the death of his son, aged eleven years and four months, occasioned, he alleges, by the negligence of a motorman in charge of an electric car owned and operated by the defendant.

In September of last year Michael McLaughlin; Jr., petitioner’s son, was proceeding out of Melpomene street, in this city, driving a-hoop with a stick or small rod he held in his right hand, and in so doing was crossing St. Charles avenue at its intersection with Mel" pomene street. While in the act of crossing the track of the defendant company, at this intersection, he was struck by one of the cars of the company and carried a distance of several feet, crushing and lacerating his body. He survived about an hour, suffering excruciating pain and agony.

The testimony of the witnesses who saw the accident is conflicting regarding the sounding of the gong on the colliding car and giving the alarm, and regarding the cutting off of the electric power and attempting to stop the.car by applying the brakes. It is also a'question whether the boy stopped at all on arriving at the track of the defendant or continued across, also as to whether he was facing toward the car or in an opposite direction when he was struck.

The first witness (who . saw the accident) on behalf of plaintiff testifies that the boy was bent, and rolled his hoop; that it seemed a little heavy, and caused him occasionally to pause; that his 'face was in the direction of the advancing car; that he rolled the hoop near to the centre of the track, immediately in front and near the car, when the car struck him; that he was carried about thirty feet, and the car rah on about two lengths further; that as the car ad-vaneed upon the boy the motorman seemed dumbfounded and confused, and made no movement to prevent the accident.

At the time of the accident there was a passenger on another car ascending that met the colliding car about the centre of Melpomene street. This passenger, as a witness, says that he saw the boy approaching the car track, and not seeing him across the avenue after the car on which he was had passed, he immediately jumped off and ran back to the car they had just passed, and found the boy on the ground. He states that the rear end of the colliding car was about twenty-five feet below the boy.

A woman also testifies, who corroborates, in some respects, the testimony of the first witness. In other respects her testimony was entirely at variance from that of other witnesses; for instance, she says that the boy had taken up his hoop and hung it on his arm to go across the crossing when he was struck.

Without further comment than that in the main, the other witnesses who testified for plaintiff agree with the testimony of these two witnesses; we take up the testimony for the defendant.

The only passenger who was on the car with the asserted offending motorman testified that at a short distance from the corner of Melpomene and St. Charles streets he noticed a boy rolling a hoop, and that when the car on which he was arrived near the intersection of these two streets the boy stopped, at the same time the brakeman moderated the speed of the car; that upon the boy stopping he again loosened the brakes; a moment after, the car struck the boy as he was attempting to cross; that it was impossible to stop the car in time to prevent the accident.

This witness also testifies that it carried the little boy some twenty feet, after striking him, before stopping. .

The motorman and the conductor of the car corroborate this witness. The plaintiff, in support of his charge that the motorman was an inebriate and incompetent, refers to the acknowledgment of the motorman, as a witness, that three years prior to the trial he was discharged from the police for drunkenness.

The witness added, that he had not since indulged in drink to excess, and that while on duty he did not drink.

With reference to the inebriety charged, the question is whether or not the motorman’s acts at the time of the accident came to the requirement of the care devolving upon him.

We are not inclined to accord the least indulgence to one under the influence of liquor while in the discharge of duty; in justice, however, the inebriate condition charged can not be assumed. The only evidence is that of the motorman, who denies that he drinks largely, and asserts that on duty he is always sober.

The inquiry relates to the motorman. The plaintiff insists that he was incompetent and derelict in the performance of his duty when his son was killed.

The authority of Railroad Company vs. Gladmon, 15 Wallace U. S. 401, 405, is greatly relied upon at the bar as applying to the facts of the case.

In the case cited the facts were that one of the drivers of the defendant company, instead of looking at his horses, turned his face, and was conversing with some one near him, when a child seven years old attempted to run across the track in front of the horses. Before he got across he turned to come back again and was severely injured. The record showed no testimony but that of one witness, who mentioned the chief facts above stated, and testified “ that if the driver had not been looking at his companion he could have checked the horses in time to have prevented the accident.”

Here the facts, as shown by the weight of evidence, are that the boy came hastily and unexpectedly on the track, at a time when the car could not be arrested, under circumstances that the motorman could not control, with care, however watchful; in other words, that the car could not be brought to a stop speedily enough to prevent the accident.

The gong of the ear was sounded by the motorman.

It is true that this fact is denied by several witnesses. The affirmative testimony of the witnesses, near the accident, that the gong was sounded and alarm given, is, we think, entitled to weight and credence.

Witnesses for the plaintiff have found fault with the motorman, because, as they assert, he failed to timely apply the brakes and turn down the controller.

The witnesses for the defendant were near the place of the accident ; their view was not obstructed by anything.

After weighing their testimony with all the attention we could command, we have concluded that its weight is with them, and that it sustains the defence.

It is true that children are to be held responsible for such a degree of care, as may usually be expected of them, taking due account .of their age, and the particular circumstances of each case. But it is equally true that no act constitutes negligence unless there has been a want of ordinary ea.re on the part of the person charged with negligence.

Judged by that test, we must conclude that the verdict allowed damages in error, and that justice requires that it be reversed..

It is therefore ordered, adjudged and decreed that the verdict and judgment appealed from be reversed, avoided and annulled, and that there be judgment for defendant, rejecting plaintiff's demand at his costs.


text:
    No. 11,893.
    State of Louisiana ex rel. John T. Shaw vs. F. A. Monroe, Judge of the Civil District Court for the Parish of Orleans.
    II errors be committed in setting cases for trial, or irregularities arise in fixing the cases to be heard before the District Court, the question not being one over which the court has no jurisdiction, the writ of prohibition is not the proper remedy»
    The case being appealable, the relators have an adequate remedy by appeal.
    P’PLICATION for a Writ of Prohibition.

      Dinkelspiel & Hart for Relator.
    Submitted on briefs November 4, 1895.
    Opinion handed down November 18, 1895.
    Rehearing refused January 6, 1896.
   The opinion of the. court was delivered by

Breaux, J.

The relator in his petition for a writ of prohibition alleges that the case against him, though listed on the call docket, was not fixed for trial in the manner required by Art. 23 of the Act of 1882 — in other words, that it was fixed for trial without calling.

In his answer the respondent avers that the order for trial as issued gave to the relator all he asks or could have asked.

That the case is not one for the issuance of the writ of prohibition; his jurisdiction ratione personae et ratione materias is unquestioned, and the injury, if any, was remediable on appeal.

The relator has not favored us with a brief.

The writ of prohibition should not issue unless it is made evident that the relator is entitled to the remedy. It will not be issued in case of doubtful right. It does not lie where the question of jurisdiction is involved in uncertainty, nor to correct mere errors or irregularities.

The court had not usurped jurisdiction or exceeded its authority in so far as the pleadings show. The fact whether the court acted rightly or not in the manner adopted to fix the case for trial is not open to inquiry in this application for a writ of prohibition.

In order to authorize the writ the petition should clearly show that the matter is one over which it has no jurisdiction.

It should also appear in order that the writ may issue that there is no remedy by adequate proceeding.

The allegation regarding relator’s right of appeal made by the respondent is not traversed by the'relator.

Having the right of appeal, prohibition does not lie.

“The case being appealable, the relators are not entitled to the interposition of the prohibitive authority of the Supreme Court.” State ex rel. Follet vs. Judge, 32 An. 1182.

The writ is therefore refused at relator’s cost, and the rule nisi is recalled and set aside.