author: Millbe, J.

text:
    No. 12,031.
    The State of Louisiana vs. G. C. Moore.
    The court adverts to the trust reposed by the law in the jury commissioners, and. affirms the judicial function to afford relief when in the composition of the array of jurors the right of the accused to a fair trial is infringed.
    The members of an association to aid in the prosecution of a particular class of .offences, and those in sympathy with the association and who contribute money for the purposes of the organization, are not competent jurors to try an indictment for the offence of the class, to prosecute which the association is founded and the money subscribed. 4 Gray, 18; 47 An. 193.
    PPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Richardson, J.

    ill. J. Cunningham, Attorney General, and J. P. Madison, District Attorney, for Plaintiff, Appellee.

      F. P. Stubbs, of Counsel.

      Boatner, Potts & Hudson for Defendant, Appellant.
    Argued and submitted January 22, 1896.
    Opinion handed down February 10, 1896.
   The opinion of the court was delivered by

Millbe, J.

The defendant, convicted of retailing spirituous liquor without first obtaining a license and sentenced to pay a fine sufficient in amount to give jurisdiction to this court, prosecutes this appeal.

There is a motion to dismiss on the general ground that the record is imperfect and the special assignments that the dates of the organization of the court and of the proceedings complained of by the appellant, do not appear in the record. We would not feel authorized to dismiss an appeal for imperfections of this character not imputable to appellant, and our examination of the record fails to disclose any basis to dismiss. The motion is denied.

There are four bills of exception. One is to the overruling of the defendant’s challenge to the array of jurors, based on the ground that the jury commissioners “packed,” to use the word employed in the challenge, the jury, with prohibitionists prejudiced against the accused, the commissioners themselves being members of that party and of its secret executive committee. The testimony to support the challenge was directed not only to show that prohibitionists were on the panel, but that in Monroe, where the offence of violating the law relating to the sale of liquor is charged to have been committed, there was .much excitement, on the liquor question; that the prohibition party had been formed to aid the enforcement of the laws against the sale of liquor, or' as the witness expresses it, all prohibition laws; that the party contributed money for the purpose of its organization, and that an election shortly prior to the trial of the accused had been held to determine whether the sale of liquor should be permitted within the limits of the city of Monroe. It was further proposed to show that the jury commissioners were members of the prohibition party; that they had excluded all Jews, Catholics and negroes from the jury, and composed it of members of the prohibition party to try an offence of a class the suppression of which was the object of the party. All this testimony was excluded by the lower court on the ground of irrelevancy, but comes up attached to the bill of exceptions. There is-also an affidavit, in support of an application for a new trial, that one of the jury commissioners had requested the affiant to furnish him with the names of good prohibitionists to serve on the jury, and there is the testimony of the commissioners that in selecting jurors there was no design to choose prohibitionists or exclude any class. The offer to prove assumed, and • in our appreciation the testimony shows that three of the jury commissioners were prohibitionists, two of them members of the party, had contributed money for its purposes, and one was on the executive committee; that fourteen of the fifteen jurors drawn from Monroe were prohibitionists, and that of the entire panel of thirty jurors drawn to try one of the whiskey cases, as they are termed in the record, twenty-six were members of the party organized to enforce the laws to suppress the sale of whiskey.

The testimony, indicates that which is of notoriety that the sale of liquor, or of the restrictions to be placed on its sale, enters largely into the public contentions of the day, and prosecutions of the character before us are apt to assume a significance as connected with party issues. The organization of the prohibition party in Monroe indicates that the prosecution in this case was invested with importance in its supposed relation to the prohibition policy, the subject of contest recently at the polls in Monroe.

In all jury trials the Constitution and laws propose an impartial jury. In cases of a political character it is especially obligatory the jury should not represent exclusively, any shade of opinion or sentiment apt to expose the accused to prejudice. The composition of the jury with reference to no other test but moral fitness is enforced in strong language in the ease of Rex vs. O’Connell, introduced in the text-books (Thompson & Merriam on Juries 140), and in which it was claimed the jury was organized to convict, and hence made up exclusively of those whose political affinities were deemed unfavorable to the fair trial of the accused. Under our jury statute jurors are not drawn from names taken indiscriminately from the poll list, but are selected by jury commissioners appointed by the court and by the clerk of the District Court. Act No. 89 of 1894. This method of selection substituted for previous systems doubtless, has its advantages, but the great power with which the statute invests the commissioners suggests that their duties should! be discharged with the greatest circumspection. As long as jury trials subsist for the determination of criminal and civil cases, impartiality in the composition of the jury, as far as practicable, is to-be exacted. On this occasion we are called on to enforce the right of a fair trial in a whiskey ease, as it is termed in the record. The-right is as clear in this as in any other class of cases, and the principle involved must be maintained or precedent established calculated to impair the efficiency of the jury system. Whenever, in the selection of juries, the right to a fair trial is infringed, it is for the courts to afford relief, a duty the more imperative in view of the great power of choosing juries vested in the jury commissioners, without restraint, except that afforded by the courts. We say this much in appreciation of the earnest argument supporting the challenge to the array on the grounds that the jurors composing it were-almost exclusively prohibitionists, to try a ease of a class in aid of - the prosecution of which the prohibition party was organized, and its money subscribed, and that the jury were selected by commissioners, themselves prohibitionists, two being members of the prohibition party. On the whole case, as presented to us in testimony and argument, we should have difficulty in overruling the challenge-to the array. But our view on this question arising on another bill, precludes the necessity of any further notice of the objection to the array. The defendant reserved a bill to the overruling of his challenge to one of the petit jury, who responding affirmatively to the question on behalf of the State, as to his competency, stated he had contributed money for the prosecution of the whiskey cases, including that of the defendant. The juror was, in -this respect, the type in sentiment, attested by his contribution, of the entire panel, except four. The public spirit is laudable that prompts the individual contribution to aid in the prosecution of crime. When, however, the contribution is with reference to a particular class of offences, the punishment of which has become the subject of popular discussion, party organization and contest at the polls, it is natural the contributor should share the feeling created by the agitation of the subject. On the question of his competency as a juror to try the case of the "class to prosecute which his money is given, the contribution carries the significance of the feeling that naturally prompts such action, i. e., the desire of convicting that class of offenders. In the attitude of the contributor, it must seem difficult to maintain his fitness as a juror in a case the prosecution of which has enlisted his zeal so distinctly manifested by his money contribution. In the view of the law the juror must be impartial, and if his mind is not in that condition the cause of his bias, whether connected with a proper impulse, ill will or other source, is immaterial. It would seem clear that zeal to convict, though not arising from any preadjudication of the particular case, does not consist with the legal requisites of the competency of the juror. The disqualification of the juror proceeding from his connection with associations formed to aid prosecutions for particular offences and from contributions for the same purpose, has been the subject of adjudication. In a Massachusetts case the disqualification of the contributor seemed to be conceded, but if the contribution was paid, that, in the view of the court, removed the objection. But the contribution unfits the juror simply because of the bias it exhibits, and it is not easy to see how the actual payment of the promised contribution can diminish the force of the bias that itself prompts the payment. An ■impressive statement of the disqualifying bias under consideration' occurs in another Massachusetts decision. “We deem it our duty to say, that in our judgment the members of any association, combining for the purpose of enforcing or withstanding the execution of a particular law and binding themselves to contribute money for such purpose, can not be held to be indifferent*and ought not to be permitted to sit as jurors in the trial of a case in which the question is whether the defendant shall be found guilty of violating that law,” is the language of that decision. 4 Gray, p. 18. See also State vs. Defee, 47 An. 193. The challenge to the juror in this case should, we think, have been sustained, the accused having exhausted his peremptory challenges-and his objection to the juror well founded.

It is therefore ordered, adjudged and decreed that the sentence be set aside, a new trial ordered, the case remanded and the accused be held for that new trial.


source: Caselaw Access Project

author: WATKINS, J.

license: Public Domain

text:
    No. 11,924.
    Maxwell & Putnam vs. Southern Pacific Railroad Company.
    A stipulation in a bill of lading, for tbe transportation of cotton in bales, by steamboat and a railroad as a connecting carrier for hire, that neither shall be responsible for damage which shall be occasioned by fire, does not exonerate either from responsibility from such damage as shall result from fire that is occasioned through the fault or ordinary negligence of the agents, servants or employees of the carrier.
    Notwithstanding such a stipulation in a contract of affreightment, the carrier is bound to use due care and watchfulness in the protection and safe delivery of the goods of the shipper.
    If the care demanded was not exercised the case is one of negligence, and a legal liability is made out when failure is shown.
    APPEAL from the Oivil District Court for the Parish of Orleans. King, J.

      Clegg & Quintero for Plaintiffs, Appellees.

      Leovy & Leovy and J. P. Blair for Defendant, Appellant.

      Howe, Spencer & Cooke, as Amici Curise, submited by brief:
    Article 2751, Oivil Code, subjects watermen and carriers to the same obligations and duties with respect to the safe keeping and preservation of the things entrusted to them as tavern keepers, whose obligations are defined in Arts. 2964 to 2971 inclusive, C. 0.; Bailey vs. Stewart, 1 Rob. 410.
    Art. 2754 0 . 0., is an almost exact reproduction of Art. 1784, 0. N.
    The limitation of liability enunciated by these articles is not in any way a derogation from the general rules applicable to all contracts. O. O. 1938; 0. N. 1148.
    Under the Roman law carriers for hire generally were uot put under any peculiar obligations which did not belong to other bailers for hire. 1 Domat, B. 1, Tit. 4, Sec. 8, Art. 5; Story on Bailments (4th Ed.), Secs. 29, 458, 459, 488.
    By special edict by the Prsetor, ship masters, inn keepers, and stable keepers were put under peculiar responsibility and made liable for all losses not arising from accidental or fortuitous events. The edict in terms did not extend to carriers by land. Hennen vs. Monroe, 11 M. 579; Dig., 5,Lib. 4, Tit. 9, L. 1, Pothier Pand., Lib. 4, Tit. 9, N. 1, 7; 1 Domat, B. 1, Tit. 16, Sec. 1, Art. 4.
    The law of England relating to the liability of common carriers was not derived from the Roman law. Nugent vs. Smith, Law., Rep., O. P. Div., Vol. 1, p. 423.
    When the civil law prevails, the same rules found in the Roman law measure the carrier’s responsibility. Its jurisprudence will not sustain the doctrine that the carrier is the insurer of the things entrusted to him; common carriers are not liable if the loss or damage-resulted from cas fbrtuit or force majeure. 5 Jour, de Palais, 476 (Paris), Vol. 21, 11 An.; 11 Jour, de Palais, 60 (Paris) , Vol. 20, 13 An.; 11 Jour, de Palais, 189 (Paris), Germ. 1, 13 An.; 59 Jour, de Palais, 205 (Paris), 29 Avril, 1820; 59 Jour, des Palais, 217 (Lequesne C. Bonafon), 24 Eev., 1820; Hunt vs. Morris, 6 M. 676; Whitall vs. Brig Henry, 4 L. 223; Bailey vs. Stewart, 1 R. 410; Fisher vs. Brig, 8 N. S., 120; Darrell vs. Southern Pacific R. R., 47 An. 1455.
    Argued and submitted December 6, 1895.
    Opinion handed down February 10, 1896.
   The opinion of the court was delivered by

WATKINS, J.

The plaintiffs sue for the value of one hundred and ten bales of cotton which were destroyed by fire, while in possession of the defendant at its depot, or the vicinity thereof, in New Iberia, same having been delivered to the defendant for transportation over its road from the parish of Vermilion to the city of New Orleans.

The averments of the petition are as follows, to-wit:

“On the 22d of December, 1894, petitioners delivered in the parish of Vermilion, ninety-three of said bales of cotton to the steamboat Alice LeBlanc, to be delivered by said steamboat and connecting carriers to Stewart Bros. & Co. at the city of New Orleans.

“The said cotton was delivered to said steamboat in good order and well-conditioned. That thereafter, the said cotton was delivered by the Iberia & Vermilion Railroad Company and the said steamboat Alice LeBlanc to the defendant, through connecting carriers, at the station of New Iberia; and the defendant received the said one hundred and ten bales of cotton into its possession and custody, and took charge of same for (safe) carriage and delivery to said consignee at the city of New Orleans.

“That the defendant loaded said cotton upon its cars at the station, and negligently suffered same to remain upon its sidings outside of the corporate limits, and the pacific protection of the town of New Iberia near by; exposed to fire, and other dangers, from the 22d of December, 1894, until the 25th of same month.”

That on the 24th of December, 1894, a car load of other cotton in close proximity to that of the petitioners was ignited by fire, thus exposing theirs to danger of destruction by fire; that on the 24th of December, 1894, another car load of cotton in close proximity to petitioners, and upon the side track of defendant’s road, was ignited, thus exposing theirs a second time to destruction by fire; and that, notwithstanding the happening of these two occurrences, “ the defendant negligently and carelessly refrained from forwarding said cotton to its destination, or moving it to a less exposed and safer point.”

“That on the 25th of December, 1894, the cotton of petitioners, which was as aforesaid in the possession, custody and control, and upon the side tracks of the defendant, was ignited and almost entirely consumed by fire; * * * and -¡¡hat thus, through the fault, negligence, carelessness, and the unlawful acts of the defendant, the en tire quantity of one hundred and ten bales of cotton were destroyed and lost to petitioners.”

An itemized statementof the numbers, marks, weights and values of the bales destroyed is annexed to the petition; and judgment is prayed for the sum of $2507.68, as the value thereof.

Defendant’s answer is a general denial, coupled with the following special defence, viz.:

That, on or about the 21st of December, 1894, the plaintiff entered into a contract with the Iberia & Vermilion Railroad Company for the transportation “ by the said company and its connections, from Erath to New Orleans, of fifty-seven bales of cotton; and about said date, delivered to said company the said fifty-seven bales of cotton under and in accordance with said contract, to be carried thereunder.”

Defendant then avers “ that one of the provisions of said contract was, that neither said Iberia & Vermilion Railroad Company, nor any of its connections, or transfer lines, which should receive and transport the said property should be responsible, among other things, for loss or damage caused by delay in transportation, fire, or any cause whatever not due to the company’s negligence; all of which was expressly made a part of the terms and conditions of said bill of lading. And defendant now specially pleads the whole of said bill of lading and all the stipulations above recited * * * as a contract binding on all parties under which * * * it received said cotton.”

That on the 22d of December, 1894, plaintiffs made a similar contract with' the steamboat Alice LeBlane, for the transportation to New Orleans of ninety-three bales of cotton; and “that in said contract of carriage, dangers of fire and navigation were expressly excepted.”

That defendant expressly pleads the whole of said contracts, and specially invokes the benefit of said exceptions in the aforesaid bills of lading as a good and sufficient defence against the plaintiff’s demands.

Defendant admits-that after the receipt of • the one hundred and ten bales of cotton, under said bills of lading, as a connecting carrier, same was entirely consumed by fire — with the exception hereinafter stated.

“Defendant denies that the said cotton, at or before the time of its destruction, was placed in a dangerous position, or was unreasonably or avoidably delayed in transportation; and it specially denies, that it, or its officers, agents or employees, have been at any time guilty of any negligence, fault or omission with reference to said cotton, its placing, transportation, protection or otherwise, in any manner causing or contributing to its damage or destruction.”

The representation 'is then made, that out of said cotton a small amount was rescued in a badly damaged condition; and that, as the best means of protecting the interests of all parties, it caused same to be sold, and it realized the sum of fifteen dollars, which is subject to the plaintiff’s order.

That out of said one hundred and ten bales of cotton there was one bale saved, which was brought to New Orleans and tendered to the plaintiffs, and by them refused; that the same has been sold for the plaintiffs’ account, and it is ready to surrender to them the proceeds thereof when same are ascertained.

On this statement the defendant- claims its complete discharge from the plaintiffs’ demands.

On the trial there was judgment in favor of the plaintiffs for two thousand five hundred dollars and sixty-three cents — the full amount claimed — and after an unavailing effort to obtain a new trial, the defendant appealed.

Thus stated, the question to be determined is, whether the defendant was guilty of negligence vel non — the receipt of the cotton and its loss and destruction by fire, while it was within the defendant’s possession as connecting carrier, in transit, being admitted.

The bill of lading which was issued to the plaintiffs as consignors, by the steamboat Alice LeBlanc, contains the following stipulations, viz.:

“ Shipped in apparent good order by M. and P. on board the steamboat called the Alice LeBlanc. * * * The following merchandise * * * to be delivered without delay, in like good order and condition, at the port of New Orleans (the danger of fire and navigation excepted) unto, as below,” etc. (Our italics.)

This contract bears date December 22, 1894, and calls for ninety-three bales of cotton. Upon this contract is an endorsement that fifty-three bales were loaded on the car thus, viz. :

“ (Fifty-three bales cotton) loaded on car.

“The rest of this cotton covered by other billings, 40 bales cotton.”

Another bill of lading contains the following stipulations, viz.:

“ Received by the Iberia & Vermilion Railroad Company, in apparent good order and well conditioned, of Maxwell & Putnam, fifty-seven bales of cotton. * * *

“It is understood and expressly stipulated that the liability of the Iberia & Vermilion Railroad Company shall cease upon delivery to its connecting lines oi the goods, merchandise and produce mentioned herein, and that this company and its connecting lines are not responsible for damage to any article, etc. * * *

“The company, nor any of its connections or transfer lines which receive and transport said property, will not be responsible for damages from wet or rainfall while upon platform or in transit between points named within .the bill of lading * * * nor for ■damage or loss caused by delay in transportation, fire, or any cause whatever not due to the company’s negligence — all of which is made part of the terms and conditions of this bill of lading.” (Our italics.)

This contract was signed by the agent of the railroad company and by the plaintiffs on the 21st of December, 1894, and the conditions and stipulations therein contained exhibit fully the contractual relations between them.

This is not a suit ex contractu for the enforcement of said covenant; but one ex delicto for the reparation of the loss which plaintiffs have sustained through the alleged negligence and fault of the defendant. Consequently, we can look into the contract only for the purpose of ascertaining the duty of care which the railroad company owed the plaintiffs under the circumstances of the case.

The case stands in the same position as though the contract for the transportation of the cotton had been primarily entered into between the plaintiffs and the railroad company.

An examination of the record has disclosed the following state of facts.

That there were shipped under bill of lading ninety-three bales of cotton by the steamboat Alice LeBlanc and fifty-seven by the I. & V. Railroad Company — one hundred and fifty bales in all, of which forty safely reached their destination.

The cotton was sampled previous to shipment, and sold by sample for two thousand- five hundred and seven dollars and sixty-three cents; and in shipping the value was placed at that figure, less ireight.

At the opening of the ease, the defendant’s counsel sought to show by testimony that on account of one of the company’s bridges over Bayou Boeuf having been broken on the morning of December 23, 1894, a freight blockade at New Iberia was produced, and resulted in unavoidable delay of several days in the transportation of plaintiffs’ cotton.

To the admission of such testimony counsel for plaintiffs objected that the defendant did not plead in his answer “the interruption of its traffic by an act of God, or an accident which prevented the railroad company from carrying out its contract to deliver the cotton;” and the court sustained the objection and rejected the proffered testimony on the ground “ that the defence to this action is that they are exempted from the loss of cotton by ñre, by virtue of a clause in the bill of lading, except in the event that the ñre was caused by their neglect. Testimony is offered to prove that they are not guilty of negligence, from the fact that some bridge was out of order and delayed its cars. That might be admitted if specially pleaded, so as to put plaintiffs upon their guard; although the court considers it as too remote a cause, and not sufficiently ' connected with the accident without putting plaintiffs on their guard.”

Thereupon defendant requested the privilege of filing an amended answer covering the objection urged; but this request was refused and a bill of exceptions retained.

Subsequently, during the progress of the trial, the defendant offered the testimony of certain witnesses, for the purpose of showing the condition of its bridge over Bayou Boeuf, and the oause of the aeccident thereto, but it was objected to by plaintiffs’ counsel, for the reasons above assigned; and they were by the court sustained for the reasons heretofore assigned, and the additional reason that the court considered that the mere fact of placing the cotton upon the sidings imposed upon the railroad corporation, the defendant herein, the duty of using due care and diligence to prevent its catching, or being ignited by ñre; and that the duty of preserving and protecting the cotton from ñre was equally imposed upon defendant,” whether it was detained “ in transit only for a short while, or, the road becoming blockaded from any cause, it was delayed for a great length of time, in order to exclude it from negligence.”

To this ruling defendant excepted and retained a bill of exceptions.

We have intentionally combined these three rulings, as they are germane and essentially the same.

If the judge was correct in disallowing the proffered testimony, the defendant was disentitled to file an amended answer, embracing matter of substance, after the trial had begun. C. P. 419, 420; Gillis vs. Carter, 29 An. 698; Succession of Baum, 11 R. 314; Tucker vs. Lillies, 4 La. 298; Penny vs. Parham, 1 An. 275. Per contra as to immaterial matters. Rio vs. Gordon, 14 La. 418.

We are of the opinion that the defendant’s failure to set out in his answer the existence, duration and cause of the delay in tbe transportation of the plaintiffs’ cotton must necessarily result in the rejection of the testimony offered in support thereof. To decide otherwise would put the plaintiffs at a great disadvantage, and force them, on the spur of the moment, to litigate an important issue of fact for which they were wholly unprepared.

It appears that defendant’s employees had placed the plaintiffs’ cotton on open, or flat cars, and prepared same for transportation to New Orleans in pursuance of the aforesaid contract. In consequence of a freight blockade, or other cause, these freight cars were detained in the vicinity of the company’s depot at New Iberia from the 23d to the 25th of December, 1894, and placed upon side-tracks, when the cotton was ignited by fire and totally consumed. Some cotton of other persons, upon cars of the company adjacent to those occupied by the cotton of plaintiffs, was ignited by fire on the evening of the 24th, but same was extinguished.

On the 25th one car load of plaintiffs’ cotton was ignited and totally consumed by fire, at the hour of 1:30 P. M., and another car load was ignited and consumed at the hour of 6 p. M. of the same day.

The various witnesses for the defendant make the following statements, substantially, of the facts and circumstances appertaining to said fires, to-wit:

The company’s superintendent of transportation says cotton that is loaded on flat cars is considered to be “ exposed freight,” and “ requires greater protection and care in handling” than other freight, and 11 is carried through more rapidly. ’ ’

That at the time the cotton caught on fire the ear stood 600 or 700 feet from the depot.

One witness for the defendant says he saw the fire which occurred at 6 o’clock on the evening of the 25th of December, 1894. That he “was at a private residence about a quarter of a mile west of the depot. Near the side-track where he was there was a car loaded with ‘ exposed cotton,’ and some colored boys were shooting Roman candles, hit the car and set the car on fire.” That “ as soon as some assistance got there he cut the car loose from the box car — the car load of cotton — and, with the assistance of others, he shoved it away from the boxes, to keep it from burning all the rest of the cars.”

That he with others tried to extinguish the fire with buckets of water and by throwing some of it-off, but did not succeed.

That the car was moved out on the salt mine track. Then he was one hundred and fifty feet from the fire when it caught. Had been there probably one hour and a half when the fire occurred.

That “ at the time there were several young fellows out at a place having a good time.” That there was “ quite a collection of people n that neighborhood having a good time — spending the evening, celebrating Christmas.”

That there is a street or roadway near the switch-track where the ears stood, which is much used by pedestrians; and that the track is used as a sidewalk.

That when switching off the burning car load of cotton onto the salt mine track, it was not halted at the water tank near the depot. That the fire department of New Iberia turned out about three-quarters of an hour after the fire began, but before the burning car load of cotton had been moved. That the hose was employed to cool down the fire, so that it could be moved; “and when it got cool enough, they hitched the engine to it.”

Another of the defendant’s witnesses states that he witnessed the fire on the evening of Christmas day. That the cotton was fired by a Roman candle. That he was passing by and saw some parties trying to extinguish the fire, and did not stop to render assistance.

Another witness for the defendant — a section hand — said he saw the evening fire, but lent no assistance. Lived just across the street. That he was sitting on his gallery “putting on his shoes, fixing to go to church,” when “ a boy came running by shooting a Roman candle.” That he said to him, “ You will set that cotton on fire. We have had trouble enough about the cotton. ”

That “just as the Roman candle fired into the cotton, it fired all at once, and he told his wife to bring him two buckets of water sitting in the kitchen, and he threw them on the fire.”

He then makes, substantially, the same statement the first witness did, in reference to the efforts made to extinguish the fire, and the removal of the car.

This man’s wife corroborated his statement throughout; and they both state positively, that if any “ railroad man” was present at this fire they did not see him.

These two witnesses state that there were a great deal of noise and confusion that evening, preceding the fire. Many people were shooting fire-crackers and Roman candles. That there were many drunken people; and that all this could be seen from the depot.

Another of defendant’s witnesses states that as he was riding by he saw “some little boys — a crowd — some on one side of the road and some on the other side of the road, the same side he was on, and they were shooting at each other with fire-crackers. Saw one of them shoot a Roman candle, and saw the ball strike the cotton. That his candle gave out and he threw it out and started to run.” That “he passed by and took his ride around about three squares, and when he got back he saw a great big blaze, and the whole car was on fire. That he saw several persons trying to put the fire out.”

It was the fire on the evening of December 25, 1894, that this witness describes.

Each one of these witnesses testifies to the facts which came under his immediate observation; and the recor.l furnishes no countervailing evidence as to the origin of the fire. And with the exception of one — a section hand — none of these witnesses sustained any relations to the railroad company.

These witnesses, also, speak of having seen the fire which occurred at about 1:30 P. M. of the same day, on which another ear load of plaintiffs’ cotton was consumed, under strikingly similar circumstances to those of the evening fire. This fire occurred somewhat nearer to the depot than the latter one.

The only difference there is suggested between the two relates to the efforts which were made to extinguish the fire — the car of burning cotton first ignited was hauled to the water tank at the depot, and the hose turned on; while at the evening fire the fire department of New Iberia came to the rescue.

One Paul Herbert was called by the defendant and as a witness made the following statement, substantially, viz.:

That in December, 1894, he was a watchman for the defendant at New Iberia; and was, at the same time, a policeman for the town and a deputy sheriff.

That on the 24th and 25th of December, 1894, he saw negroes shooting fireworks, and that he “run a lot of negroes away from around the depot for shooting fireworks.” That he did it several times. That the shooting of fireworks was worse “just outside of the limits of the town of New Iberia” than inside of it. That the town of New Iberia has only two policemen, and he does not think “they afford any protection at all, or very little.” That he saw them about the depot very seldom. That in the performance of his duty he did not confine himself to the city limits, but went up and down the track.

That he was not present when the fire of the afternoon of the 24th of December, 1894, ignited; arrived a few minutes afterward. That it was soon extinguished, and after it was extinguished he hired a negro to watch the car on which that fire occurred.

That he was not present when the fire occurred on the afternoon of December 25, 1894. That he was going home to his dinner, and came back afterward and found the cotton all in flames — the whole car load of cotton was on fire. It was then at the water tank. That he had run off some boys who were shooting fire-crackers about half an hour previously.

That efforts were made to extinguish this fire without avail. That he remained on duty that evening, but was not present.when the fire occurred at 6 P. m. on the 2oth of December, 1894, and did not see it when it started.

States that he arrived at the scene of this fire about fifteen minutes after it began, he thinks.”

That he “was somewhere around the depot when it started;” but he could not tell exactly the place, being “ at first one place and then another.”

But, he says, “the whole car was afire” when he arrived. His statement of the occurrences which subsequently transpired corresponds with the statements of other witnesses.

He says that after the two fires of December 26, 1894, there were two extra watchmen employed at the depot; and that no other fires occurred, but that, at the time of said fires, he was the only watchman that he was aware of — the only one on duty.

He states that the two car loads of cotton which were burned on the 25th of December, 1894, were outside of the corporate limits of New Iberia; while that which was fired on the 24th of December, 1894, and extinguished, was within the limits of the corporation.

That the former were about fifty yards beyond the corporate limits, as nearly as he could judge; the evening fire being still further out.

That there was quite a number of lewd women who lived in that vicinity; and on this occasion some of them were intoxicated. That, it was at this locality that the boys had congregated, and- engaged in shooting Roman candles.

States that he had full authority, as deputy sheriff, to make ar - rests all along the railroad; and had experienced no difficulty in preventing the shooting of fire-crackers, when he was present. That he had authority to arrest idlers and loafers. That the town police afforded no protection, and did not come around the defendant’s premises day or night. That he had no one to assist him; no one to relieve him.

That the shooting of fire-crackers was promiscuous on Christmas Eve and Christmas Day, in and around the railroad premises at the town; but not in his presence. Rather more of it on the outside of the corporation. That it was a disorderly neighborhood where the fires occurred on the 26th of December, 1894 — “ very disorderly.” There were negro dives all around there; all along the west end. That there was no other watchman than himself.

That both sidings and switch tracks were full of cars laden with cotton. “A large amount of cotton.” “The trackwas blocked up.”

That his jurisdiction extends about one mile each way from the depot.

That up to the time of the fires his principal business was “ to look up cars and prevent the stealing of cane ” which was in transit.

The foregoing is a synopsis .of the testimony of the defendant’s witnesses, exclusively; but that of the plaintiffs is only a repetition of many of the same details.

On this- state of facts is the liability of the defendant made out ?

The responsibilities of carriers, as defined in our Code, are as follows, to-wit:

“Carriers and watermen are liable for the loss or the damage of things entrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events.” R. 0. C. 2754 (2725).

And their duties are thus defined, viz.:

“ Carriers and watermen are subject, with respect to the safe keeping and preservation of the things entrusted to them, to the same obligations and duties which are imposed on tavern-keepers in the title of Deposit and Sequestration.” R. C. C. 2751.

And “ an innkeeper is responsible if any of the effects are stolen, either by his servants or agents, or by strangers going and coming in the inn.” R. O. C. 2967.

“ The depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property.” R. C. 0. 2937. And “ the provision in the preceding article is to be rigorously enforced * * * if it has been agreed that he shall have a reward for preserving it.” R. C. O. 2938.

“ When several persons have received the same object in deposit, each of them is bound to restore the whole.” R. 0. C. 2957.

Under the French Code the responsibilities of carriers are thus defined, viz.:.

“ They are responsible for the loss and average of things entrusted to them, unless they can prove that they have been lost and damaged by fortuitous circumstances, or superior force.” C. N. 1784. The responsibilities of the carrier are essentially the same as they are defined in our Oode.

Vide C. N. 1782, as compared with R. C. C. 2967.

The charge of plaintiffs’ petition specially invokes the authority of the foregoing principles as entitling them to recover of the def endant the value of their cotton, which'was destroyed by fire while in its hands under a contract of safe carriage and delivery to their consignees in New Orleans.

They allege that the defendant negligently and carelessly failed to deliver said cotton according to the terms of their contract, and negligently permitted same to remain on its side tracks and switches at New Iberia, for an unreasonable length of time — a period of three days — and that during this delay, “through (its) fault, negligence, carelessness and unlawful acts,” the same was entirely consumed by fire. And the defendant, admitting the receipt and loss of the cotton by fire, avers that the contract exempted it irom responsibility “for loss or damage caused by delay in transportation, fire, or any cause whatever not due to the company’s negligence;” and specially denies that the cotton “ was placed in a dangerous position, or was unreasonably or avoidably delayed ” in transit, or that “ its officers, agents or employees were at any time guilty of any negligence or omission of duty with reference to said cotton, its placing, transportation, or protection, or otherwise, in any manner causing or contributing to its damage or destruction.”

The force and effect of the law, as modified by the contract, is fully alleged on the one hand and admitted on the other. The loss and resultiug damage being admitted, the defendant carries the burden of proving that the loss was “not due to the company’s negligence,” nor to any “omission of duty,” in “any manner causing or ■contributing” thereto.

The conclusion is that the defendant is responsible ex delieto for the loss plaintiff has sustained on account of its failure to preserve .and safely deliver the cotton entrusted to its care, through its neglige ice or want of due care, notwithstanding it was exonerated ex contractu from loss occasioned by fire.

The right of carriers to thus limit their liability has been often recognized in other jurisdictions, and the rule has been adopted and frequently applied by this court.

In Insurance Company vs. Railroad Company, 20 An. 302, a case is reported which, in this respect, is quite similar to the instant one. But, said the court, the carrier, notwithstanding a special agreement relieving itself from liability for loss occasioned by fire, is liaable for losses and injuries occasioned not only by gross but “ordinary negligence;” or, in other words, the carrier is bound to ordinary diligence.

In Roberts vs. Riley, 15 An. 103, it was held that, notwithstanding a special agreement restricting the liabilityof the carrier, it is “liable for carelessness and unskilfulnesss of the crew.” Thomas vs. Ship Morning Glory, 13 An. 269; Price vs. Ship Uriel, 10 An. 413; Oakley and Hawkins vs. Gordon, 7 An. 235; Van Horn vs. Taylor, 2 An. 587; Peters vs. Railroad Co., 16 An. 222.

Recognizing defendant’s right to thus restrict its liability, some of the adjudications of this court on the liability resulting from a contract of safe-carriage will be appropriate.

In Hunt vs. Morris, 6 M. 676, a case is stated of damages for the destruction of goods by fire, after they had been placed on board of a steamboat at New Orleans for transportation to Natchez —said loss being charged to the “ negligence and misconduct of the master and those employed under him.”

The court held that the responsibility of the carrier must; be considered as that of a bailee for hire, and treated as such; he is answerable for “ordinary neglect, which is the omission of that care which every man of common prudence, and capable of governing a family, takes care of his own concerns.”

Carriers “ are excused by accident or overpowering force — cas fortuit ou majeur — whenever the first does not occur by their negligence, and when they do not unnecessarily go in the way of the latter; in other words, if they have used that due diligence in the performance of the contract which the nature of their situation requires.

“It appears, by the expressions of the Oode, that the accident or overpowering force must be proven by the carrier, in order to excuse his failure to perform his underbaking according to agreement. * * * This rule gives to the plaintiff the advantage of implied or presumptive evidence of negligence on the part of the master and owners, which they are bound to disprove by showing due diligence.”

In that case the court found that the fire occurred by reason of an uncontrollable accident, while the boat was proceeding on her way to her destination, “when the master and all his men on board were in the usual performance of their respective duties,” and the defendant, therefore, was guilty of no negligence.

In Fisher vs. Brig Norvall, 3 N. S. 120, the action was for the value of thirty bales of cotton which had been sent to the levee in New Orleans to be shipped on the brig, and received by the captain, and, being suffered to remain on the levee over night following, same was consumed by fire — the cotton having been left exposed without any one to watch and take care of it.

The court held that to have been negligence of the master, and said “that was not the care which a prudent man would take of his own property, and the defendants must show due care to excuse them from the loss which has occurred. Id is'nob a good excuse .to say that it is not customary to place a watch over property such as this.”

The principles announced in those cases have baen frequently applied by this court, and they have been recognized and enforced in the recent ease of Darrell vs. Southern Pacific Company, the present defendant. 47 An. 1455.

In that case we said:

“ Our Oode does not impose on carriers the responsibility incident to the relation under the common law. Rev. C. C. 2754. * * * But we do not understand that the Oode has any tendency to relieve the carrier, if the loss is due to his act. * * * On this same line of defence, we are referred to the stipulations in the bill of lading furnished by the carrier to the plaintiff. That the carrier may, under certain restrictions, modify his liability, is admitted. It is hardly necessary to go into that discussion. * * * But it is presumed it will be accepted (that) no stipulation will avail against a loss due to negligence, or imprudence of the carriers; or, in other words, he can not stipulate against aperil prepared by himself. ” (Our italics.)

“ We have considered, too, the defence, that the plaintiff was familiar with the mode of transportation and took its risks. We think it a more reasonable conclusion that he supposed defendants had assumed the risks arising from the position in which they chose to place the pile cluster, and its method of construction disclosed by the record. The assumption of such risks, even if known to the plaintiff, would, it seems to us, require express proof.”

Our decree reversed judgment for-the defendant, and awarded the plaintiff two thousand eight hundred and sixty-eight dollars.

Applying these principles of law, as controlling the issues involved, it seems to our minds very clear that the defendant was guilty of negligence, and must respond to the plaintiff’s demands. For the proof is clear to the effect that during the delay of the defendant’s freight trains at New Iberia, for a period of more than two days, the safety of plaintiffs’ cotton was imperiled by crowds of noisy, riotous boys, engaged in shooting Roman candles, and firecrackers in dangerous proximity thereto; and through this instrumentality, the two fires by which same was consumed were ignited —these occurrences having transpired on Christmas Day. And it further shows that defendant did not furnish sufficient police protection for this “exposed cotton” — only one man being detailed for that purpose, and he being at the same time a deputy sheriff, a policeman for the town of New Iberia, and superintendent of the defendant’s freight cars, with a beat of one mile each way from the depot.

The proof shows that he was furnished no relief or assistance of any kind, and that for the town of New Iberia there is but one policeman'other than himself, and that this other one at no time comes to the defendant’s depot or switches. It further shows that the policeman, above mentioned, did not witness the commencement of either of the two fires by which the plaintiffs’ cotton was consumed. That notwithstanding heheard the alarm of fire given at the 1 o’clock conflagration on the 25th of December, 1895, as he was going to his dinner, he did not turn back nor return for at least half an hour afterward, when he found the cotton in full blaze and nearly consumed — the car on which the burning cotton was freighted having been, in the meantime, detached from the train and moved down to the water tank at the depot.

And that, notwithstanding he heard the alarm of fire sounded on the evening of that day, at about 6 o’clock, he did not reach the fire for fifteen or twenty minutes afterward — the place where it occurred being between six hundred and one thousand feet from the depot, in the vicinity of which he claimed to have been; though the cotton was fully aflame when he arrived, and sufficient time had elapsed for the fire department of the town to have received notification and sent ¿heir hose down and get it in operation, before he put in an appearance.

These fires were discovered by people who lived close by and had no connection with defendant.

That the company was negligent there is no doubt. The shooting of Roman candles caused the fire and was the proximate cause of same, while the delay of the train at New Iberia was the remote cause. The Zafier may have been beyond the control of the company’s agents, servants and employees, but the former was not. The prevention of the fires was easily within their control by the employment of an adequate police force, and this they did not do.

Some reference has been made to a case decided by the Massachusetts court and one by the Pennsylvania court.

In the former—Denny vs. Railroad Co., 18 Gray, 481—the court said:

“It is said to be an ancient and universal rule, resting upon obvious reasons and justice, that a wrong-doer shall be held responsible only for the proximate and not the remote consequences of his actions,” and held that “the liabilities of common carriers are regulated and governed by it.” Citing 2 Parsons on Con., 456, 457; 2 Greenleaf on Ev., Sec. 256; Story on Bailments, 586; Angell on Carriers, 201; Morrison vs. Davis, 20 Penn. St. 171.

But the facts of that case are quite dissimilar to those of the instant ease.

“The rise in the waters in the Hudson,” said the court, “which did the mischief to the wool, occurred at a period subsequent to this — the storing of the freight at the terminus of the road — and,' consequently, was the direct and proximate cause to which that mischief is attributable.

“The negligence of the defendants was remote; it had ceased to operate as an active, efficient and prevailing cause as soon as the wool had been carried on beyond Syracuse, and can not, therefore,, subject them to responsibility for an injury to the plaintiffs’, property, resulting from subsequent, inevitable aeeident, which was the proximate cause by which it was produced. It is to the latter, only, to which the loss sustained by him is attributable.” (Our italics.)

“ In Morrison vs. Davis, supra, the principle of law maintained was that carriers are answerable for the ordinary and proximate consequences of their negligence, and not for those which are remote and extraordinary; and the court held ‘that the proximate cause of the disaster was the flood, and the fault of having a lame horse was a remote one, which, by cbncurring with the extraordinary flood, became fatal.’ We assume that the immediate cause had the character of inevitable accident; but that this cause could not have affected the boat had it not been for the remote fault of starting with a lame horse.”

While not controlling, those decisions serve to illustrate defendant’s liability in this case — ¡the terms- of the two cases being reversed. For in the instant case the fire was the immediate cause of the destruction of the plaintiffs’ cotton, and it was under the control of the defendant’s agents, servants and employees, and their immediate supervision, and was not, therefore, in the nature of an inevitable accident. The delay in the transportation of the cotton was only the remote cause of the accident; and, for the purposes of this case, it may be assumed that it was in the nature of an unavoidable accident, having been caused by broken bridges.

Accepting the theory advanced by common law authorities, with regard to the responsibility of common carriers, that they are deemed to be “ private individuals, who incur no responsibility beyond that of an ordinary bailee for hire, and' answerable only for misconduct and negligence (Clark vs. Barnwell, 12 Howard 272; Railroad Co. vs. Rives, 10 Wallace, 176; Railroad Co. vs. Lockwood, 17 Wallace, 361), yet we find that doctrine not incompatible with the opinion we have expressed on the subject.

For in Meyer vs. Railroad Co., 41 An. 639, we affirmed a judgment against the company for the destruction by fire of cotton deposited upon its platform, one of its trains having negligently failed to take and carry same to its destination according to contract.

Mr. Cooley puts the proposition thus: “If the care demanded was not exercised, the case is one of negligence, and a legal liability is made out when the failure is shown.” Cooley on Torts, p.

In Liverpool Steam Co. vs. Phœnix Ins. Co., 129 U. S. 397, the-question we have considered was very elaborately examined, and all the authorities compared and digested, and the conclusion of the court was that the stranding of the vessel was the direct result of the negligence of the master and officers of the steamer ” — notwithstanding the limitation of liability under its contract of affreightment, same not exonerating them from the obligation of due care in the performance of their duties. The principles of that ease are' strictly applicable to the facts of this case.

Judgment affirmed.


author: Nicholls, C. J.

text:
    No. 11,991.
    Mme. Julie Aucoin Breney vs. Caffery Central Refinery and Railroad Company, Limited.
    APPEAL from the Seventeenth Judicial District Court for the Parish of St. Mary. Allen, J.

      D. Caffery & Son for Plaintiff, Appellant.

      Howe, Spencer & Coche for Defendants, Appellees.
    Argued and submitted January 9, 1896.
    Opinion handed down February 10, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

This is a suit by the plaintiff in her own behalf as surviving widow and as tutrix of her minor children, for damages for the death of her husband caused by the same accident set forth in the suit of Joseph H. Castille et al. vs. Caffery Central Refinery and Railroad Company, Limited, just decided by this court. Ante, p. 322. The same plea to the jurisdiction of the District Court of St. Mary parish, was made in that case, with the same ruling by the court, the pleadings and issues being identical.

It is hereby, for the reasons assigned in suit No. 11,990 of the docket of this court, ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoi'dfed and reversed, and it is now ordered, adjudged and decreed that defendant’s exception and plea to the jurisdiction of the District Oourt in and for the parish of St. Mary, be and the same is hereby overruled, and the causéis ordered to be reinstated on the docket of that court, and the same is hereby remanded to the lower court to be proceeded with according to law.


author: Wateins, J.

text:
    No. 11,984.
    N. P. Phillips vs. Feliciana Cotton Oil Company and Mente & Co. vs. Feliciana Cotton Oil Company, Consolidated on Rules vs. Steinhardt & Co.
    Creditor and debtor having by written agreement established between themselves the relations of factor and customer, and definitely agreed upon the amount of credit which should be given by the former, and the manner in which the latter should discharge the same by the consignment, and proceeds of sale of products, other and subsequent creditors of the common debtor are without right to complain.
    If, upon ascertaining that the original amount agreed upon was an insufficient basis, and that additional advances of money were necessary to maintain the debtor’s business, the original agreement be supplemented, the advances thereunder made will be protected by subsequent shipments, and the proceeds thereof can be rightfully and legally imputed and applied thereto.
    In case the debtor and creditor enter into a written contract of pledge, and another of mortgage, of contemporaneous date, securing the same obligations’ same must be construed as being component parts of one engagement, so that the whole may have effect.
    . A PPEAL from the Thirteenth Judicial District Court for the Parish of West Feliciana. Brame, J.

      W. W. Leake for Plaintiffs, Appellants.

      Bernard Titehe for Defendants in Rule, Apellees.
    Submitted on briefs January 7, 1896.
    Opinion handed down February 10, 1896.
   The opinion of the court was delivered by

Wateins, J.

Representing themselves, respectively, to be mortgage and judgment creditors of the Feliciana Ootton Oil Company, the plaintiffs in the two aforesaid suits proceeded by rule, in the court of the domicile of their mortgage and judgment debtor, to coerce the defendants in rule, Steinhardt & Co., to cause to be canceled and erased from the mortgage records of that jurisdiction their conventional mortgage against the Feliciana Ootton Oil Company for the sum of twelve thousand five hundred dollars, on the ground that same had been paid, and fully satisfied; and that its retention upon the record would be an impediment to the execution of their judgment and the foreclosure of their mortgage against the Felici-ana Cotton Oil Company.

This proceeding by rule was met on the part of Steinhardt & Co. by the following exceptions, viz.:

1. That they are residents and citizens of the parish of Orleans, and the court of the parish of West Feliciana is without jurisdiction ratione personse.

2. That plaintiffs had no legal right to proceed by rule; and could have alone proceeded by suit in the ordinary form.

3. That the rule discloses no cause of action.

4. That in the proceedings on the part of Steinhardt & Co. against the Feliciana Cotton Oil Company to foreclose their mortgage plaintiffs in rule are seeking to have canceled, the last named filed a petition of intervention and third opposition, claiming the right to be paid out of the proceeds of the sale of the mortgaged property under executory proceedings, the amount of their respective claims; and that they are thereby estopped from contesting the existence of said conventional mortgage.

The court considered said exceptions as an answer to the rule, but permitted them to answer over.

Thereupon they filed an answer denying that any part of the mortgage indebtedness had been paid, and averring that the whole amount was and still is due.

That the entire products which were shipped to them were sold for, and credited upon the open account of the Feliciana Cotton Oil Company in settlement pro tanto of the money they had advanced to the mill, and that in the shipments, when made, it was thus expressly agreed and understood between the parties.

On these issues there was judgment discharging the rule, and plaintiffs in rule have appealéd.

The transcript shows that the oil company executed, contemporaneously, in favor of Steinhardt & Co., an act of mortgage for twelve thousand five hundred dollars, and an act of pledge on the 3d of September, 1894; and that the oil company gave a mortgage and pledge to Mente & Co. for one thousand three hundred and thirteen dollars on the 16th of February, 1895, in settlement of an open .account. That Phillips obtained judgment against the oil company on the 10th of April, 1895, for four thousand five hundred and twenty-nine dollars and thirty-eight cents; and Mente & Oo. also ■obtained a judgment recognizing and enforcing their special mortgage; and these judgments were duly recorded, resulting in judicial •mortgages which are second in rank to that of Sbeinhardt & Oo.

Steinhardt & Oo. foreclosed their mortgage and caused the mortgaged property to be adjudicated to them in May, 1895, for the price •of ten thousand dollars.

I.

With regard to the jurisdiction of the court we think it undoubted.

The creditor had obtained his judgment in the court of West Feli-■ciana parish against the oil company, and had it registered there to operate as a judicial mortgage. He caused an execution to issue under that judgment and the property of his debtor thereon situated to be seized; and finding it encumbered by a prior mortgage which he believed to have been fully paid, he took proceedings before the ■court of that parish for the purpose of procuring its cancellation, because it was an impediment to his execution.

That court was-the proper court to pass upon that issue; and proceeding by rule was a proper one for that purpose. Dutrey vs. Laguens, 28 An. 753; Morris vs. Cain’s Executors, 34 An. 665; Bussiere vs. Williams, 37 An. 387; Leeds vs. Jones, 37 An. 427.

The plea of no cause of action is not good; for, on the theory of plaintiffs in rule, that the mortgage of Steinhardt & Oo. had been paid, there was a cause of action and a right to execution.

II.

With regard to the estoppel raised on the interventions of Phillips, and Mente & Oo. it appears that they did substantially set out and reiterate therein the averments of their rule, to the effect that the ■mortgage which Steinhardt & Oo. are proceeding to enforce against the oil company in their executory proceedings had been paid, and that the writ of seizure and sale had been issued since the filing and service of their rule for its cancellation. That the proceeds which shall be realized from the sale of the property, which is subject to their mortgages, should be. paid to them and applied to the satisfaction of their mortgages.

The situation, as thus stated, is peculiar and exceptional, and must be interpreted in the light of the surrounding circumstances, and the rule which preceded the seizure, to which it was subordinated; and being thus interpreted the plea of estoppel is not good.

III.

On the main issue, the facts are, that simultaneously with- the act of mortgage,which was executed on the 3d of Sepcember, 1894, the oi ■company made and entered into a supplemental written agreement; and therefrom we make the following extracts, as illustrative of the mutual obligations of the parties, viz.:

That whereas, it has become necessary for the Feliciana Oil Company to borrow money for the purpose of 'buying cotton seed and to operate its mill and carry on its business, and, for that purpose, Steinhardt & Co. have agreed and do hereby advance to the said company the sum of twelve thousand five hundred dollars for said purpose, the following agreement is made and entered into, viz.:

Steinhardt & Oo. agree to advance to the oil company twelve thousand five hundred dollars in the following instalments, to-wit: Twenty-five hundred dollars during the month of September, 1894, seven thousand dollars during the month of October, 1894, and three thousand dollars during the month of November, 1894.

That in order to secure to Steinhardt & Oo. the reimbursement of such sums, the oil company is to execute its several promissory notes as follows, to-wit: One for two thousand dollars, falling due on the 1st of February, 1895; one for three thousand dollars, falling due on the 1st of March, 1895; one for three thousand five hundred dollars, falling due on the 1st of April, 1895; and the last for four thousand dollars, falling due on the 1st of May, 1895.

That the oil company agrees to secure the punctual payment of the aforesaid notes by granting a first mortgage on its property, And “said mortgage is to form a part of the present agreement.”

That Steinhardt & Oo. shall have the control and sale of the products of the oil company — “that is, the sale of all the products which shall be made through the said Steinhardt & Co. at the prevailing market prices, etc.”

That the cotton seed which are on hand are to be worked up by the oil company and the proceeds of • sale are to be paid to Stein-hardfc &Co. in satisfaction of said notes, commencing with the one first falling due, and to continue until all are paid. “It being well understood that all sums received by said Steinhardt & Oo. as the proceeds of the sale of any of the products of said company, consigned to them as aforesaid, shall be applied to the payment of the aforesaid obligations of said company in the order of their respective maurities.”

That it is further stipulated that “as a further security for the reimbursement of said sum “the oil company “ hereby pledges to the said Steinhardt & Go. all the seed which it may at any time have on hand, and all the products thereof,” etc.

The following are the stipulations of the act of mortgage, substantially, viz.:

That the oil company is justly and truly indebted unto Steinhardt ■ &Co. in the sum of twelve thousand five hundred dollars, in evidence whereof it has executed its four promissory notes of. even date therewith for the sums of two thousand dollars, three thousand dollars, three thousand five hundred dollars and four thousand dollars, respectively, and maturing on the first days of February, March, April and May, 1895, respectively; and all made payable to Stein-hardt & Oo.

That to secure the punctual payment of said notes at their respective maturities, the oil company executed a conventional mortgage upon its property in the usual form, and caused same to be duly recorded. •

It is quite clear that the foregoing covenants evidence the primary agreements between the parties; Steinhardt & Oo. agreeing to furnish to the oil company the sum of twelve thousand five hundred dollars in money to enable the latter to buy cotton seed, and to operate its oil mill plant advantageously; and the oil company agreeing to execute and deliver their four promissory notes, in the amounts stated, said notes to represent the amounts of cash to be thereafter advanced, and account thereof to be kept.

It is equally evident that the mortgage which was consented by the company secured the payment of said notes, and was a component part of said agreement. The agreement thus stipulates.

The proof shows that Steinhardt & Co. advanced the full amount of the mortgage notes to the oil company and more; and that said additional advances were made in pursuance of a supplemental agreement made in November, 1894, and upon the original act of pledge.

The mortgage notes of the oil company were discounted by Steinhardt & Co., and the proceeds placed on their books to its credit. This sum was drawn out in October, 1894, and the account current shows a net debt balance against the oil company of about three hundred and eighty dollars on November 1, 1894.

During the following months the oil company drew on Steinhardt & Co. for the following amounts approximately, viz.:

In November and December, 1894 .:.$12,488 87

Ill January, 1895. 2,686 27

In February, 1895. 2,130 18

In March, 1895 . 607 83

In April. 1895 . 221 90

In May, 1895. 127 61

Total amount.$28,588 60

This is subject to a credit of about twenty-seven thousand seven hundred and thirty-five dollars and fifty-six cents as the proceeds of oil products the company shipped to Steinhardt & Co., leaving a balance due on account of eight hundred and fifty-three dollars and four cents, and the mortgage notes of the oil company unpaid. This is only an approximate calculation, and it is not intended to control the settlement of accounts of Steinhardt & Co. with the oil company. It is intended only to exhibit the situation of affairs between them relative to the averments of the petition of plaintiffs in rule. The result of this investigation is that the proceeds of the discounted notes were withdrawn early in October, 1894; and that, in pursuance of a supplemental agreement, Steinhardt & Co. made to the oil company large additional advances on open account, to which the proceeds of all the products of the oil company subsequently shipped were to be applied, same having been previously pledged.

Under the original agreement the relations of factor and customer were established, and same were continued under their subsequent agreement, without change or interruption. These agreements are in writing, and were in existence when plaintiffs in rule entered into contractual relations with the oil company.

The parties stand before the court upon their respective contract rights, and against which no charge of fault or fraud is made; and there is nothing in the contract which would justify us in disturbing them.

Judgment affirmed.


author: Waticins, J.

text:
    No. 12.023.
    S. Levy and L. M. Carter, Syndics, vs. A. R. Thompson, Sheriff, et als.
    A probate sale only divests mortgages which have been imposed upon property by the deceased, and not those which have been imposed upon it by his vendors; and no greater right can be affirmed of a sale made by a syndic of an insolvent’s estate.
    A holder of a mortgage first in rank, which was granted by the vendor of the insolvent, may proceed by seizure and sale in its foreclosure, disregarding a previous order of sale, granted in favor of the syndic of his mortgagor’s vendee.
    under the provisions of Act 50 of 1886, actual damages resulting may be awarded in the suit in which the injunction has been dissolved.
    APPEAL from the Second Judicial District Court for the Parish of Iberville. 'Watkins, J.

      A. S. Leonard and D. T. Land for Plaintiffs, Appellants,
    cite: 15 An., 636; 31 An. 116; 32 An. 249; 34 An. 873; 42 An. 118.

      Wise & Herndon for Defendants, Appellees.
    Submitted on briefs January 22, 1896.
    Opinion handed down February 10, 1896..
   The opinion of the court was delivered by

Waticins, J.

Plaintiffs enjoined the sheriff from proceeding with the execution of an order of seizure and sale in the foreclosure of ,a first mortgage on property in their possession as the syndics of the creditors of the insolvent, S. J. Zeigler, on the following grounds, viz.:

That by the cession and surrender of the insolvent and the acceptance thereof by the judge, the District Oourt of Oaddo parish acquired complete jurisdiction over the property; that, in pursuance of the recommendations of a meeting of the creditors of the insolvent, that court granted an order for the sale of all the property surrendered on the 80th of July, 1894; and that, conformably to that order, a writ of sale was issued and placed in the hands of the sheriff, under which the property was seized and advertised for sale.

That, “for good and sufficient reasons,” the sale was postponed by the syndics.

Petitioners aver that the court of Oaddo parish having first acquired jurisdiction of said insolvency and of the property surrendered, and having issued an order for its sale, the subsequent order of seizure and sale in behalf of a mortgage creditor is absolutely nuil and void for want of jurisdiction.

The answer of the defendant Thompson is, that he is not a creditor of the insolvent Zeigler, and, for that reason, was not bound by his cessio bonorum; but he avers that he is a creditor of S. W. Vance, whose indebtedness to him was secured by a mortgage' upon his property, which has since been conveyed cum onere bo Zeigler.

That this mortgage contains the stipulation of the pact de non alienando, and imports a confession of judgment, and that these provisions of the act entitle him to proceed against the mortgaged property in whatsoever hands the same may be found without reference to any alienation thereof.

That he has not had any notice of the proceedings in the insolvency of Zeigler, and has a right to proceed without any reference thereto.

He prays for the dissolution of the injunction, with seven hundred and fifty dollars damages, for this, viz.:

For attorney’s fees, five hundred dollars, and two hundred and fifty dollars general damages for the delay and loss of time in the collection of his debt.

On the trial there was judgment in favor of defendants, dissolving plaintiffs’ injunction, and condemning him to pay the sum of four hundred and twenty-eight dollars damages for the issuance of the writ.

The case was submitted and decided upon the following agreed statement of facts, viz.:

That on the 19th of June, 1891, S. W. Yance executed a mortgage upon the lands in controversy in favor of Norman E. Thompson, of New York, the act containing the stipulation of the non-alienation pact.

That subsequently Vance mortgaged the same property to S. J. Zeigler, the act containing the non-alienation clause, also.

That subsequently S. Levy became the owner of the second mortgage notes, which were issued to Zeigler, and foreclosed the mortgage and purchased the property at sheriff’s sale.

That S. Levy then conveyed the property back to Zeigler, who thereafter continued to be the owner, and it was embraced in the schedule of his assets, which was filed on the 3d of July, 1894.

That on the 14th of July, 1894, a meeting of the creditors of the insolvent was convoked, and they recommended a sale of all the real estate which had been surrendered — directing that all property mortgaged should be sold upon the terms and conditions their recommendations specified.

That, conformably to said recommendations, an order of sale was granted by the judge directing the sale to be made by the syndics, and a commission was duly issued and the sales were advertised to take place on December 1, 1894.

That the sale was postponed by the syndics and they have retained the aforesaid commission, the sale order remaining unrevoked.

That the property was seized.by the sheriff under a writ of seizure and sale taken out by Thompson on the 23d of March, 1895, under an order of seizure and sale which was granted on the 14th of March, 1895.

That prior to the order of sale in the insolvency of Zeigler the children of Zeigler brought suit in the parish where part of the property is situated to recover one-fourth interest therein, and this suit is still pending and undecided.

Under this state of facts we are to determine whether the writ of seizure and sale was_ legally issued.

It did, unquestionably, unless the power to order a sale had been exhausted by the allowance of the previous order of sale, in the insolvency of Zeigler.

The seizing creditor, Thompson, was not a creditor of the insolvent, and was neither party, or privy to the insolvency proceedings of Zeigler.

His mortgage was granted by Vance, who subsequently mortgaged the same to Zeigler.

Bach of those acts contained the pact de non alienando.

Thfreafter Levy acquired the mortgage notes last secured, foreclosed, purchased and conveyed to Zeigler, retaining a mortgage.

Zeigler surrendered the property, and the syndics procured an order for its sale.

It has been repeatedly held that a probate sale of succession property only divests it of the mortgages which have been imposed upon it by the deceased, but not those which had been imposed upon it by his vendors.

Johnston vs. Bell, 6 N. S. 384; Swindler vs. Peyroux, 5 La. 468; Succession of Triche, 29 An. 384; Powell vs. Hayes, 31 An. 789.

Certainly no greater power can be affirmed to exist in the syndic of an insolvent.

On this view of the law, a sale made by the syndic under the order granted in the insolvent proceedings would not have the effect of divesting the defendant’s mortgage; and it follows, necessarily, that he had a right to proceed with the seizure and sale of the property, disregarding the order in the insolvency altogether.

The right of such a mortgage creditor to proceed, by executory process, against the succession representative of his deceased debtor, during the period of administration, is well recognized; and there is ample authority in our jurisprudence for an executory creditor to procure an order of seizure and sale after an order of sale has been obtained in the succession under exceptional circumstances.

A familiar illustration of this rule is found in Succession of Adam Thompson (42 An. 119), wherein all of the authorities pro et eon are collated.

But as the question presented in the instant case is dissimilar, we need not go over the authorities again. We consider it of no practical importance that the creditors of the insolvent had ordered sale to be made on precisely the same terms as those contained in Thompson’s mortgage, inasmuch as we are of the opinion that a sale made under the order in the insolvency would not discharge his mortgage. Troendale vs. DeBouchel, 33 An. 753; Succession of Vancourt, 11 An. 383.

We are of opinion that the judge a quo correctly dissolved the plaintiff’s injunction.

The allowance of four hundred dollars attorney’s fees is ample.

The controversy was hot an animated or protracted one; and the mortgage provides for attorneys for the collection of the debt.

We must decline to increase that allowance.

The twenty-eight dollars allowed cover the expenditures..

Such damages are in their nature actual, and do not come within the purview of C. P. 304.

They may be awarded in the injunction suit. Act 50 of 1886.

Judgment affirmed.


text:
    No. 11,973.
    H. Jewell Daigre and Mrs. M. A. Jack vs. Julius Levin & Co. and Blaise Hooper.
    A petitory action admits defendant's possession.
    In a suit of trespass title is only considered incidentally, as fixing tlie character of the possession. 2 Hennen, Offences and Quasi-offences, II (e31, No. 4, p. 1057; 4 N. S. 136; 6L. 559 ; 2 An. 223; 14 An. 34; 14 An. 732.
    A right of action against one as a trespasser is in him who is in possession as owner.
    APPEAL from the Tenth Judicial District Court for the Parish of Rapides. Andrews, J.

      W. II. JaeJe, II. L. Daigre and H. IT. White for Plaintiffs, Appellants.'

      White & Thornton for Defendants, Appellees.
    Argued and submitted December 20, 1895.
    Opinion handed down January 20, 1896.
    Rehearing refused February 24, 1896.
   .The opinion of the court was delivered by

Nicholls, C. J.

Plaintiffs allege that they are owners in indi-visión, and have been for more than twelve months past in continuous possession of certain property described in their petition. That said property is good pine timber land and that defendants are co-trespassers on the same, and have wrongfully cut and removed by their co-trespassing a great portion of said timber, and still continue to cut and remove said timber, though they have been specially warned not to do so by petitioners. That' they are now trespassing and have been so doing since August 1, 1894, well knowing that said lands were not their own, but the property of the plaintiffs, and they have conspired together to cut and haul away, and have cut and have caused to be cut and hauled away to the saw-mill of Levin & Co. or elsewhere, timber to the amount of eight hundred pine trees of a value of two dollars per tree, aggregating the sum of sixteen hundred dollars, and have damaged plaintiffs by said trespass in the further sum of five hundred dollars. They pray that they have judgment against defendants for the sum of twenty-one hundred dollars — sixteen hundred dollars for the timber and five hundred dollars for damages, and that they be decreed to be the legal owners of the land, and that they be quieted in their possession of the same. The parties made defendants are Julius Levin & Co., alleged to be a lumber firm, composed of Julius Levin, Jacob Levin, Charles Goldenberg and Augur Seiss, and J. H. Hooper, known as Blaise Hooper.

The defendant, Hooper, filed a general denial, following which he specially denied that plaintiffs are, or ever were, the owners of the land described in plaintiffs’ petition, or that they have ever been in possession of the same. He averred that the land belonged in in-división to his minor children, Adelia C., Alice J., Edna C., Paul A. D. and John H. Hooper, to whom it was devised by the late Dr. John Oasson, who died in the early part of 1892, in Rapides parish, and that he was placed in possession of' the same, as the father of his children, by order of the District Court for Rapides parish, as shown by the records in the succession of John Casson. That John Oasson acquired the land by devise from his late wife, Mrs. Adelia Casson, and that Mrs. Casson acquired the same in the year-by inheritance from her deceased children, the issue of her marriage with her first husband, E. H. Flint, who acquired it by purchase, in 1853, from the Canal Banking Company, of New Orleans, who acquired it, in 1846, in a suit on the docket of the District Court for Rapides parish, entitled Canal Banking Company vs. Lytleton Bailly.

Defendant averred that from 1846 up to the present time his authors and himself, as father of his children, have been the owners of this land in good faith and by a just title, and during all that time have been in continuous, uninterrupted, peaceable, public and unequivocal possession of same, and he pleaded the prescription of ten and thirty years in support of his own and in bar of plaintiffs’ title. He further averred that the registry of the. conveyances from the sheriff to the Oanal Banking Company and from the Canal Banking Company to E. H. Flint were destroyed by the burning of the court house of Rapides parish in 1864. He further averred that, as the father of his said children (minors), the owners of this land, he contracted to sell to Julius Levin & Co. (co-defendants) standing timber thereon for the price of fifty cents per thousand feet stumpage, that being the regular market price for the same, and that under said contract Julius Levin & Co. had-cut four hundred and forty-eight trees, aggregating the amount of 277,853 feet of lumber, and in no event could he be held liable for a greater amount. He prayed that the demands of plaintiff be rejected, and that there be judgment decreeing his minor children the owners of said land and quieting them in their possession.

Julius Levin & Co. adopted the allegation of Hooper, and prayed that plaintiffs’ demand be rejected.

The court rendered judgment in favor of defendants, Julius Levin & Co. and J. H. Hooper, and J. H. Hooper, called Blaise Hooper, and against the plaintiffs, H. Jewell Daigre and Mrs. M. A. Jack, rejecting plaintiffs’demand. It further ordered, adjudged and decreed that the minor children of J. H. Hooper, viz.: Adelia C., Alice J., Edna 0., Nettie E., Paul A. D. and John H. Hooper, were the owners of the land in litigation, and that their father in his capacity of tutor of his said children be quieted in the possession thereof.

Plaintiffs in their brief, referring to defendants’ pleadings, say that thereby they have transformed this suit into a petitory action and assumed the relations of plaintiff in such a proceeding; therefore, in order to defeat the plaintiffs’ demand for damages, it devolves on them to make good their pretentions over plaintiffs’ authentic and recorded deed by preponderance of proof.” Citing Clarkson vs. Vincent, 32 An. 613; Gay vs. Ellis, 33 An. 249; Millaudon vs. McDonogh, 18 La. 103; Cross on Pleadings, 219 and 220; Code of Practice, Art. 44.

Plaintiffs, in their petition aver that for more than twelve months prior to the institution of the suit they had been in continuous possession of the property referred to therein, and that Julius Levin & Co. and J. H. Hooper had trespassed upon the same by cutting and carrying away timber. These parties are made defendants on a moneyed demand for twenty-one hundred dollars’ damages, Hooper being made a defendant; not as tutor of his minor children, but individually. In Hooper’s answer, so far from claiming either ownership or possessing in himself individually, he disclaimed both, and affirmatively stated that the ownership of the property was in his minor children; that they were in possession of the same through him as their tutor under decree of court.

Neither the plaintiffs nor defendants, therefore, admit Hooper’s possession of the same. Plaintiffs deny it absolutely, and defendant asserts possession in Hooper for his minor children- as tutor, in which capacity he is not a party to the suit. Under such circumstances the action is evidently not a petitory one. The question of ownership can not be passed upon and determined in this suit. If it were true, as plaintiffs claim, that they have been in continuous possession of the property, and that defendant, Hooper, has been out of possession, he, as being charged with trespass, would not be permitted to justify by setting up title to himself. It would be an improper issue in the case. If title were considered in such a suit it would only be considered incidentally as fixing the character of the possession. II Hen.: 3) No. 4, p. 1057; Davis vs. Taylor, 4 N. S. 136; Peytavin vs. Winter, 6 La. 659; LeBlanc vs. Nolan, 2 An. 223; McCulloch vs. Weaver, 14 An. 34; Gardiner vs. Thibodeau, 14 An. 732. We are of the opinion plaintiffs’ allegation as to possession being in themselves is not only not borne out, but that it has been established beyond question that this property has, for many years, been in possession of the defendants’ children, and those under whom they claim. If defendants were trespassers the right of action against them as such would lie, not in the plaintiffs, but in the parties in possession as . owners. Possession in the children held adversely to plaintiffs defeats plaintiffs’ action of trespass. In order that plaintiffs should settle claims of ownership to this property they will have to advance them in a direct petitory action directed against the defendants in possession. A petitory action admits defendants’ possession. If the plaintiffs had been in actual possession of this property for years under claim of ownership, and had, while so in possession, cut and disposed of timber upon the same, they would scarcely admit that defendant Hooper could either individually or as tutor, by charging them with being trespassers, and praying damages against them as such, drive them in defence to an establishment of their title. They would have the right to stand upon their possession and the legal rights flowing from it. They would be entitled to be considered provisionally as owners. 0. 0. 8454. That which they could successfully have resisted as defendants they can not successfully advance as plaintiffs.

We are of the opinion that in rejecting plaintiffs’ demand the judgment was correct, and it is affirmed.