author: Bkbaux, J.

text:
    No. 11,651.
    E. E. Meteye vs. Times-Democrat Publishing Company.
    Plaintiff claimed damages for a defamatory publication. The defendant pleaded that the publication was made without malice and privileged.
    The committee of the Common Council, whose proceedings were accurately published, met at the instance of the Mayor to investigate charges of mismanagement of the Leper Hospital.
    The report published was prepared by a writer regularly employed upon the paper. The report gave the contents of a letter road before the committee and an account of a personal statement of the author of the letter, supplementing the contents of the letter, and the publication also contained an account of the visit of the committee to the hospital. None of these reports were of matter treated at the time as of a private character.
    The author of the letter was under contract with the city authorities and received from the city money for the maintenance and treatment of persons afflicted with leprosy.
    During the investigation before the committee it happened, unfortunately, that the name of plaintiff was given as one afflicted who was roaming at large.
    The newspaper was at least one remove from the utterer. Although the report involved matter defamatory of plaintiff, not a party to the proceedings, it is still privileged if accurate and impartial
    Reports of proceedings and transactions of State Legislatures and their committees and of the town councils are privileged under certain conditions. The principle applies also to the committees of the council in proceedings in open meetings pertinent to any inquiry or investigation properly pending or proposed before them.
    The heading given to the report in the newspaper was not,per se, of a libelous character; it was pertinent to the article and referred to the inquiry or investigation of the committee.
    Such articles generally are published under headings. Leprosy was the subject of inquiry; the head-lines called attention to that subject.
    The subject of inquiry was not given greater publicity than the occasion required
    The second publication, about one month after the first, was not a repetition of the first, and contained no allusion that the public could reasonably construe as applying to plaintiff.
    PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Harry L. Edwards and Henry J. Rhodes for Plaintiff, Appellant:
    The meeting of the committee on charities was called for the sole purpose of investigating charges of mismanagement of the Leper Hospital by Dr. Beard. It was not for the purpose of ascertaining whether there were lepers in the city of New Orleans other than those under the .care of Dr. Beard. It .was not for the purpose of inquiring into the health of the city or the prevalence of any diseases within its limits.

      Therefore, the defamatory statement of Dr. Beard, with reference to Meteye, was irrelevant and not pertinent to the issue, formed no part of a legislative or councilmanic proceeding, and therefore its publication was not privileged. Cooley on Torts, 257; Merrill, 182, 183;. Wait’s Actions and Defences, 2d Ed., Vol. 4, p. 809; Cooley on Const. Lim. 448; Belo vs. Wren, 63 Texas, 686; Coffin vs. Coffin, 4 Mass. 1; Newell, etc., p. 421, Sec. 23; 8 How. (U. S.) 266, White vs. Nicholls.
    Report of a proceeding before a town council not privileged, especially when published of some person not amenable to the council. Odgers on Libel, etc., 259 et seq.; Newell, etc., 559, Sec. 168; 10 An. 231, Miller vs. Roy; 34 An. 134, Wallis vs. Bazet.
    The publication of the proceedings, to be privileged, must be confined to the persons interested, and given- no greater publicity than the occasion requires. The greater importance of one matter over another can not affect this rule, which is unflinching and inexorable. Merrill, etc., 219, 220; 19 N. Y. 173; 39 Mich. 378, Poster vs. Scripps; Odgers on Libel and Slander, 287; Townsend, 2d Ed., 431; 36 An. 378, State vs. Bienvenue.
    The evidence shows that the reporter of the defendant paper sought Dr. Beard privately, after adjournment of the committee, out of the presence of the committee, and got the correct name and spelling of Meteye.
    “Thou shalt not bear false witness against thy neighbor.”
    In Louisiana there is no distinction between words actionable per se and words not actionable per se.

    Neither a committee of a council nor the council itself has any jurisdiction to confine or isolate lepers. The mode is pointed out by Act No. 85 of 1892, p. 109, which provides that they must be proceeded against in the Oivil District Court by petition and affidavit, in the manner provided for the interdiction of insane persons.
    Publication of the proceedings of a court, or an assembly without jurisdiction, is not privileged. Merrill on Newspaper Libel, pp. 182 and 183; Wait’s Actions and Defences, Vol. 4, p. 309.
    “For the publication of proceedings of a quasi-judicial character (and hence quasi-legislative) to be privileged, they must have-transpired before a body having the power to hear and determine the matters submitted to its jurisdiction. It must have authority not only to hear, but to decide matters coming before it, or redress grievances.” Cooley on Const. Lim., p. 448; 63 Texas, 686; Newell on Defamation, Slander and Libel, p. 420, Sec. 21.
    “The public is not regarded as having such an interest in proceedings embodying defamatory matter as will outweigh the necessity of protecting the character of individuals, unless the proceedings are of a legislative and judicial character.” Cooley’s Const. Law, p. 658; 63 Texas, p. 686.
    For the publication of matter otherwise libelous to be protected as a privileged publication, on account of its being part of a legislative proceeding, the proceeding must not have been preliminary and ex parte. A publication of a proceeding before a legislative committee appointed by a Legislature to investigate land frauds, they being ex parte, is not privileged. Belo vs. Wren, 63 Texas, 686.
    A report of any proceeding in the Legislature, Congress or Parliament is privileged. “.No other reports are privileged. If any one publishes an account of the proceedings of any meeting of a town council, board of guardians, or vestry, of the shareholders in any company, of the subscribers to any charity, or of any public meeting, political or otherwise, and such account contains expressions defamatory of the plaintiff, the fact that it is a fair and accurate report of what actually occurred will not avail as a defence.” Is not privileged. Odgers on Libel and Slander, p. 259, “ Other Reports;” Miller vs. Roy, 10 An. 231: Newell on Defamation, etc., p. 82, par. 5, and p. 559, Sec. 169; Lewis vs. Fenn, Anth. (N. Y.) p. 75; Wait’s Actions and Defences, Vol. 4, pp. 309 and 310.
    A paper which publishes a false accusation, giving to it an air of authenticity, is liable for libel, even though it would not have been liable but for the air of authenticity given to it by the heading or caption' to the article. 27 An. 219, Cass vs. New Orleans Times; 15 An. 492, Cade vs. Redditt. “ The manner of thejpublication may take it out of the privilege.” Newell on Defamation, etc., p. 477, Secs. 66 and 67.
    Even where the publication is privileged, anything added to the report, either in the body of it or as a heading, infects and destroys the privilege. 27 An. 219; Merrill on Newspaper Libel, pp. 182, 188, and 265; Edsall vs. Brooks et al. (New York Evening Express), 17 Abbott’s (N. Y.) Practice Reports; 2 Robertson (N. Y.), 474; Merrill, etc., pp. 170 and 171; 30 Minn. 41, Dr. Pratt vs. Sb. Paul Pioneer Press Co.; 11 La. An. 206, Tresca vs. Maddox; Oooley on Torts, 2d Ed., 257 (219), 259 (220).
    Even where the publication is privileged, the privilege becomes lost, unless it is limited to the persons interested. If it be published, as in this case, to the whole world, instead of having . been confined to the city of New Orleans, the privilege is lost. Townsend on Slander and Libel, 2d Ed., pp. 431 and 432; 36 An. 378-383, State vs. Bienvenu.

      Buck, Walsh & Buck and Lamar C. Quintero Attorneys for Defendant, Appellee.
    The proceedings of legislative bodies and their committees are absolutely “privileged.” White vs. Nicholls, 3 How. 287; Cooley on Torts, 210; Terry vs. Fellows, 21 An. 375; Wallis vs. Bazet, 34 An. 131; Smith vs. Higgins, 11 Gray, 251.
    “Privileged communications” are classed into “absolutely” and “ conditionally” privileged; in the former, no action can arise under any circumstances; in the latter, an action may arise if the publication or utterance be both false and expressly malicious. Am. and Eng. Ency. of Law, Vol. 13, p. 406; Hageman on Privileged Communications, 191; Cooley, 210 et seq.

    This class of privilege (whether absolute or conditional) extends to * * * proceedings in legislative bodies and to all who in the discharge of public duty or honest pursuit of private right are compelled to take part in the administration of justice or in legislation.
    In this class of privileged communications the occasion is an absolute privilege, and the only question is whether the occasion existed and whether the matter complained of was pertinent to the occasion. Gardeman vs. McWilliams, 43 An. 456.
    The publication of such proceedings (legislative, etc.) by a newspaper, in the due and regular course of its business, comes under the protection of the “conditional” privilege; that is, “the occasion rebuts the presumption of malice, essential to libel,” but “ leaves the party liable, if both malice and falsehood are shown,” or if “ the occasion has been used to gratify malice or ill will.” Cooley, 210; Newell, Chap. 19, p. 384, etc.; Merrill on Newspaper Libel, 22, 23, 191; Townshend, Secs. 209, 210, 217, and authorities cited.
    The “Common Council ” of the city of New Orleans, as created by Act No. 20 of Acts of the Legislature of this State of 1882, and acts amendatory thereof, is a “ legislative body ” in the sense of the law and definitions, defining and according “privilege” to proceedings of legislative bodies and those of their regular committees.
    It being shown that the proceedings of all regular and special committees of the City Council take place in open session, at stated times, in the presence of the reporters of the daily papers, the publication of the proceedings, by fair and accurate account, of such committees, is “conditionally privileged,” and no liability arises except on allegation and proof of express malice. Special or express malice is neither alleged nor proved in this case.
    The law imposes on a party injured by breach of contract or tort, the active duty to render the loss as light as possible. Sutherland, Vol. 1, p. 148.
    Future gains or profits, in a business, can only be recovered when their loss is the direct, natural proximate result of the injury; and they must be distinctly proven, as due to such injury and made certain as to amount. Sedgwick, Vol. 1, Sec. 176; Reading vs. Peck, 6 An. 491; Harrison vs. R. R. Co., 30 An. 265; Schlieder vs. Dielman et al., 44 An. 642.
    Argued and submitted March 30, 1895.
    Opinion handed down April 8, 1895.
    Rehearing refused May 6, 1895.
   The opinion of the court was delivered by

Bkbaux, J.

The plaintiff, the proprietor of a barber shop in this city, claims of the defendants twenty-five thousand dollars for damages sustained by him in consequence of a libel published by the defendants.

The defendants allegejthat the publications complained of by plaintiff were made in good faith, from proper motives, and that they were privileged publications.

The facts are that the Mayor deemed it proper to address a communication to the chairman of the committee on charitable institutions (a standing committee of the Oity Oouncil), calling attention to the rumored mismanagement of the Leper Hospital, and suggesting that his committee, with the committee on public health, should investigate and find out if there was any truth in the rumors circulated and the newspaper articles published on the subject.

A meeting of the committee on charitable institutions was publicly held in compliance with the Mayor’s suggestion.

. There was a reporter of the defendant present whose duty it was to attend the meetings of the council and of the committees, and report their proceedings for publication.

The physician with whom the city had contracted for the mainten- ■ anee and treatment of persons afflicted with leprosy was also present; although not regularly summoned, he had been notified of the proposed investigation. A letter sent to the committee by this physician was read, in which he characterized as calumnious the reports circulated about the management of the hospital in his charge.

He supplemented the contents of his letter by verbal' statements of difficulties surrounding him, because his contract with the city had expired; he said that persons afflicted with leprosy were roaming about the streets at will. He mentioned a barber who had been employed in a shop on Oustomhouse street between Bourbon and Royal streets, whose name was Meteye. There was another leper, he said, employed at a store, the name and locality of which was given; also two girls afflicted with the disease at a designated rice mill, and he had heard of another leper going into a saloon and taking his lunches with a number of other persons.

Although the physician was not under oath and examined as a witness, the names and the information were given by him in answer to questions propounded by the committee.

After adjournment the committee repaired to the Leper Hospital for the purpose of examining into its affairs and management.

The secretary kept a brief record of the proceedings, showing by what authority the committee was called together and in general terms the purpose for which it had convened.

His minutes of the proceedings further show that the committee adjourned to visit the hospital, and on the day following, to meet the committee on health to report the investigation.

The reporter made a complete and accurate statement, “a true report” of all the actual proceedings of the committee. It was published by the defendant company, with the heading “The Lepers”- and head-lines:

“ De. Beard Testifies Bbfobe a Council Committee.”

“ He Invites a Pull Investigation of His Hospital.”

“ He Says He Has No Contbact With the City,” etc.

The plaintiff, Meteye, complained to the manager of the newspaper, who stated to him that the publication was privileged, but that an explanation would be published, as there was no intention to injure him.

The evidence discloses that instructions were given by the manager to publish a statement, and that by inadvertence it was not published.

About a month later the defendant published an editorial headed: A National Leprosy Hospital,” commenting upon the harmful effect of rumors of leprosy in Louisiana.

The writer of the editorial quoted freely from an article in the New York Sun. Prom that quotation we extract the following:

“ A year ago the people of New Orleans indulged in a short scare over the information that quite a number of lépers were at large in the city and State, working at various trades, one even plying the vocation of barber.”

Previous to the second publication a demand had been made of defendant, and had been referred to counsel for the defendant.

The judge of the District Court held that the publication was privileged, and rejected plaintiff’s demands. Prom the judgment the plaintiff prosecutes this appeal.

IF NOT PRIVILEGED AN EXPLANATION WOULD ONLY HAVE MITIGATED THE DAMAGES.

The testimony informs us that it was owing to the neglect or oversight of one of the employés that the correction promised was not published.

This would have been only an act of justice to the plaintiff; the fact, however, remains that if the first publication was not “ privileged,” as is contended by the plaintiff, an attempted reparation by the defendant would have offered no escape from liability; it would only have, possibly, mitigated the damages. Cass vs. New Orleans Times, 27 An. 214, 219.

Plaintiff’s complaint upon this point is somewhat, if not entirely, neutralized by bis counter contention that the publication was not privileged.

In short, however unfortunate the failure to make the publication of the promised correction, the injury would not have been condoned by an attempted reparation. With or without attempted correction, if not privileged, damages are due.

CONDITIONALLY PRIVILEGED.

From the foregoing it follows that the only question for our determination is whether or not the publication was a privileged publication to the extent of precluding any presumption of malice.

Legislative proceedings are privileged.

“Every fair and accurate report of any proceeding in either House of Parliament, or in any committee thereof, is privileged, even though it contained matter defamatory of an individual.” Odgers on Libel and Slander, 257.

Mr. Cooley, in his valuable work on Torts, par. 214, says: “ It is customary in American institutions to declare this exemption from responsibility in positive terms, but it exists independent of such a declaration as a necessary principle in free government.” It exists without statute. Under this principle the privilege would protect a member of a Louisiana Legislature, even without the present constitutional enactment upon the subject; as it protected as privileged the proceedings of a congressional committee years ago. Terry vs. Fellows, 21 An. 375.

Municipal corporations are endowed with subordinate legislative functions, and it follows that under guarded limitations, “ the members of their council are sufficiently protected for whatever is said by them which is pertinent to any inquiry, or investigation pending or proposed before them.”

They are, however, “accountable when they wander from the subject in hand to assail others.” Cooley ubi supra.

From the text of Newell on Slander and Libel, p. 542, we extract:

Report of the proceedings and transactions of the State legislatures and their committees; of town councils, etc., are privileged in the same manner as reports of judicial proceedings.”

By our own court it was decided that the proceeding of a. town council may be reported under the protection of privileged publication.” Wallis vs. Bazet, 34 An. 131.

The Oity Oouncil has authority to appoint committees for the public advantage.

Proceedings looking to the preservation of public health are not foreign to the duties of the council or one of its committees, and the proceedings of the latter are as much entitled to protection as the council itself, particularly as the inquiry was regarding the mismanagement of the Leper Hospital, and into charges that persons afflicted with leprosy were roaming at will. The defendants are, at least, one remove from the utterer of the alleged slander, and published his statement as part of the proceedings of the committee.

The physician was under contract with and received pay for his services from the city; the investigation of his case was a proper subject of inquiry and gave to the proceedings a public character.

THE HEADING- OE THE REPORT DID NOT ENDORSE THE UTTERER’S STATEMENT.

The “ heading ” of the publication of which plaintiff complains, “Lepers,” characterized the proceedings and directed attention to the subject matter of the investigation. ' It was not directed against the plaintiff, and added nothing to the proceedings; it did not, as it was used, give evidence or authenticity to the statement itself.

In distributing the meaning of the word at the head of the column it applies alike to all that was done, and can not be made to bear against the plaintiff as being, in the'opinion of the publisher, afflicted with leprosy. It was a “heading” pertinent to the report.

THE SECOND PUBLICATION.

We have no dissent to express from the principle announced by text writers, and sustained by authority, that thejsecond publication of a libel, as evidence of malice, will enhance the damages. Merrill on Newspaper Libel, 257.

Here the publication was not of the same matter a second time. It was not a repetition of the libel. The last publication, about one month after the first, does not relate to the first. The word “barber,” in the quotation from the New York Sun, is a generic word and does not refer to any one. There is no allusion whatever to the plaintiff in the second publication.

PUBLICITY NOT GREATER THAN THE OCCASION REQUIRED.

The proceedings, as the evidence shows, were regarding a matter in which the whole public was interested, and conducted with open doors in accordance with usage; the report could not be limited to a locality nor to certain persons. As it was a matter relative to public health, and “ privileged,” it was not proof of malice to publish the proceedings. The limit upheld by Townshend in his work on slander as applying to a candidate for election to an office, and the case of. State vs. Bienvenu, 36 An. 378, in which a church congregation was concerned, are without application in a large city when there are rumors of a dreaded disease.

It is clearly shown that no one in plaintiff’s shop was afflicted with the dreaded disease.

The press is not without its shadows.

It is fortunate that its great force can have but temporary effect against conduct and services however humble; against the energy of good conscience and the just pride of having nothing to reproach oneself.

The authorities have classed publications of legislative bodies under a qualified privilege.

We deem it proper to adhere to the principle and to affirm the judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 11,622.
    Edward Smith vs. The Crescent City Railroad Company.
    One who, in the night-time especially, and of his own choice, walks on the track of a street car, with the full knowledge the car may come at any moment behind him, is bound to use his senses to avoid the car; and if by the exercise of ordinary care he would have been apprised of the advancing cars in ample time to leave the track, and fails to do so, he can not recover damages if run over, it not being practicable, with any reasonable diligence, for the driver to avoid the accident. 1 Harris on Damages-by Corporations,-Secs. 220,260; 1 Thompson on Negligence, 449; Schexnaydre case, 46 An. 248.
    APPEAL from the. Civil District Court for the Parish of Orleans. Rightor, J.

      Gilmore & Baldwin for Plaintiff, Appellee.

      John M. Bonner for Defendants, Appellants.
    Argued and submitted March 12, 1895.
    Opinion handed down April 22, 1895.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from the judgment following the verdict of a jury for five thousand dollars damages, caused, it is alleged, by the negligence of defendant’s driver in running over plaintiff, the wheels of the car crushing his left leg, rendering amputation necessary.

The accident was on Sunday morning, about 4 o’clock, while it was yet dark. The plaintiff’s account is that he was walking on and up the track used by the cars in ascending Magazine street; that, without warning, the car came on him, the dash-board coming in contact with his back, knocking him down, and his left leg was crushed under the wheels. The down track of the cars is alongside of the ascending track, on which the defendant, by his own account, was walking. There are no sidewalks on that street where the accident occurred, and, in testimony and argument, this is urged as the reason why plaintiff was on the track.

The plaintiff’s statement places him on the track, walking in the same direction as that of the ascending car, his back toward it, and with the full knowledge, as the testimony shows, that it was about the time of its approach; this position, too, is of choice, on his part, for he could have walked on the track adjoining, on which the descending car would have come toward, and not behind him. In this position plaintiff neither looked behind nor heard the noise of the advancing car, nor saw the car mule that passed him before he was struck. At that hour of the morning there were no sounds to prevent any man using his senses hearing a car behind him. It is a neighborhood not in proximity to markets or resorts for people, but devoted to dwellings. With nothing to interfere with his hearing or sight if he had chosen to look, the plaintiff had no consciousness that the car was near, nor of the mule by his side, until struck in the back and thrown on the track. His inattention is more impressive from the fact he had parted with a companion a square or so below where the accident occurred, and knew his companion was waiting for the up car then expected, and that car under the wheels of which he, the plaintiff, permitted his leg to be crushed. He thus knew that the car might come along at any moment behind him, as it did.

The street car must run at night and on dark nights. If the defendant had been seen on the track, the driver might well have assumed he would get out of the way. It is not exacted the car shall be stopped because a man is ahead on the track; the reasonable expectation is, that the pedestrian using his faculties will heed the approach of the ear and leave the track. Schexnaydre vs. Railroad Company, 46 An. 248. We find no basis to attribute negligence to the driver for not stopping his car, not exacted except under extraordinary circumstances, none of which are present in this case. Nor do we perceive any ground to impute such negligence, because it is claimed the driver was conversing with a passenger. It was obligatory on plaintiff in the position he placed himself to exercise prudence for the a\ oidance of the coming car behind him; it is the inevitable conclusion that with ordinary care he could have heard the noise of the mule with tinkling bells, and of car and mule moving over a plank road, and easily, with ample notice, have left the track, escaping all danger. His neglect is overshadowing and leaves no room to consider other asserted causes of his trouble. So much for the case on plaintiff’s own showing, even if it could be accepted.

But there is another aspect of the testimony. The plaintiff spent the night preceding the accident in a beer garden. The police officer found him asleep on a bench and awakened him a short time before he started home walking the track. He was not seen walking the track by the driver or passenger on the platform of the car, nor was there any outcry, apt to occur if the plaintiff had been knocked down by the car, yet there were passengers in the car as well as the driver and passenger in front, all apt, if not certain, to hear the natural shriek or exclamation from one walking the track struck by the car. All this indicates to our minds that plaintiff was not walking. There was grass on the side of the track pressed down as if laid upon, plaintiff testifies, caused by his rolling after his leg was crushed, not probable, to say the least. We are inclined to think the beer garden, the potations of plaintiff there, true, not enough, it is claimed, to affect him, the weariness of a man going home in the early morning after a night thus spent and after he was disturbed in his sleep on the bench, had their connection with the accident. We -find it difficult to account for the accident if the plaintiff had his senses, and a natural solution is his sleep on the bench was renewed on (he track. In every aspect we find no basis for the verdict.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and that plaintiff pay costs.


text:
    No. 11,781.
    State of Louisiana vs. William Nixon.
    Although*the cross- examination of the witness for the State is closed, the defendant’s counsel should be allowed to question the witness as to contradictory statements by him, so as to afford the basis to introduce proof of such statements, aud thus impeach the witness’ credit, the witness being at hand, and on the stand, and the exercise of the right claimed on behalf of the prisoner operating no delay or injury to the State. 1 Greenleaf on Evidence, Sec. 462; 8 Robinson, 562.
    A PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      M. J. Cunningham, Attorney General, and R. F. Broussard, District Attorney, for Plaintiff, Appellee.

      David Todd and W. H. Todd for Defendant, Appellant.
    Argued and submitted on briefs April 13, 1895.
    Opinion handed down April 22, 1895.
   The opinion of the court was delivered by

Miller, J.

The defendant, sentenced to imprisonment under a conviction for manslaughter, prosecutes this appeal.

Our conclusion is controlled by the bill of exception to ,the ruling of the lower court, refusing the right claimed by the counsel for the prisoner of propounding to one of the State’s witnesses the question whether he had made contradictory statements different from, those made on the stand. The Witness had testified to the guilt of-the accused. One of the modes of discrediting testimony is proof of contradictory statements by the witness. To offer such proof the basis must first be laid by questioning him as to such statements so as to afford him an opportunity to deny or admit, and explain the supposed contradictory statements. Without such basis first laid, no proof of the statements is admissible. It is the right of the accused to offer such proof, and, of course, to lay the basis requisite. This right was asserted, and denied by the lower court on the ground stated in the bill. 1 Greenleaf on- Evidence, Sec. 462.

The witness for the State had been examined, tendered to'defendant, cross-examined and dismissed. When the case was resumed after'a short recess, the counsel for the prisoner asked to have the witness recalled; he was brought back to the stand, and the question as to the contradictory statements was then propounded. On the State’s objection that the witness had been cross-examined and dismissed, the court sustained the objection, denying the prisoner the asserted right to lay the basis for the proof of the statement.

We can understand that there may be cases when the ruling would be proper, as, for instance, where the witness had left the court room, and delay would be the consequence of the assertion of the right claimed for the prisoner in this case. Here the witness was on the stand. The appropriate time for questioning the witness as to contradictory statements is on his cross-examination. But we think it would be straining a general rule to deny to a prisoner on trial for his life the opportunity to put such questions, merely be - cause his counsel bad concluded his cross-examination, the witness being at hand and on the stand. We no not think so rigid an application of the rule is supported by the text-books or adjudicated cases, recognizing, as they do, the legal discretion in respect to the subject of the trial judge. In this case, too, the prisoner’s counsel' stated he had learned of the contradictory statements only after the • cross-examination. The relaxation of rules as to the-order of introducing - and method of examination of witnesses in criminal Cases has received frequent illustration, and we think the counsel for the defendant should have been allowed to ask the questions excluded by the ruling of the lower court. State vs. Duncan, 7 Rob. 562; State vs. Colbert, 29 An. 715; State vs. Baker, 30 An. 1135.

It is therefore ordered, adjudged and decreed that the sentence of ohe lower court be set aside and avoided; that a new trial be had, and the defendant be held in custody to stand said new trial.


author: Watkins, J.

text:
    No. 11,752.
    Succession of Thomas Barry.
    Without adequate proof of judgment of divorce a vinculo matrimonii having been signed by the judge, the claim of a woman once married legally can not be disregarded in a controversy between her and the public administrator, relative to appointment of an administrator.
    In such controversy the title of the opponent is not put at issue, and the court only deals with the prima facie validity of her claim to the estate of the deceased.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Chretien & Southon .for Public Administrator, Appellant.

      Oliver B. Sansum and Charles Louque for Opponent cite: 23 An. 262; 3 An. 482; 24 An. 259, 518; 45 An. 1382; 35 An. 630; 8 Paige, 574.
    Argued and submitted April 10, 1895.
    Opinion handed down April 22, 1895.
   The opinion of the court was delivered by

Watkins, J.

This record presents a controversy over the appointment of a legal representative to the succession of Thomas Barry, deceased, between the public administrator and Mary Barry, as the surviving widow..

Thomas Barry departed this life, intestate, in the city of New Orleans, on the 10th of July, 1894, and soon afterward the public administrator presented a petition to the court praying to be appointed administrator — alleging that the deceased left no heirs and died intestate.

This application was opposed by Mary Barry, on the allegation that she was the surviving spouse of the deceased and entitled to administer his estate.

Judgment having been rendered in her favor, she qualified a once and received letters of administration.

From that judgment the public administrator has appealed.

In her original opposition, Mary Barry simply alleged that she was “ the lawful widow of said Thomas Barry, deceased;” and she was thereafter ruled by the court to supplement her opposition by setting out the date of her marriage to the deceased, the place when her marriage was celebrated, and the name of the officer officiating at the marriage.

In response to the aforesaid order of the court, the opponent filed the following amended opposition, viz.:

That she was married to the deceased on the 6th of October, 1874, in the city of New Orleans, by the Very Reverend J. Raymond, vicar general, in the presence of three witnesses, and immediately thereafter established their matrimonial domicile in the city of New Orleans.

That they lived together as man and wife until the 15th of March, 1875, when she and her said husband separated from each other and lived apart for about seven months next ensuing. That while thus living separate and apart, opponent and her husband consented and agreed to renew their marital relations; but before thus renewing the same, she and her husband repaired to St. Mary’s Church, where they were first married, and, on the 2nd of November, 1875, again renewed their marriage vows, the aforesaid Very Rev. J. Raymond, vicar general, officiating In the presence of witnesses. That at said time and place they made known to the vicar general their intention to be, to thereafter live together as man and wife; and that opponents and said Thomas Barry received the usual and customary benediction of the church.

That immediately thereafter, opponent and her husband established their matrimonial domicile in the city of New Orleans, wherein they subsequently lived and cohabited together as man and wife.

On these issues testimony was taken, with the result of sustaining the averments of the opposition, as far as they go; but it furthe shows that intermediately between the date of the marriage of Thomas Barry to opponent and the aforesaid renewal of their nuptial vows in the presence of a Catholic priest, a suit was brought by the. husband against his wife for a decree of final and absolute divorce.

But the proof disclosed that the record had absolutely disappeared from the archives of the court, without any trace thereof remaining,. except that afforded by the minute book kept by the clerk of the court.

The minute book shows that the divorce suit was filed and subsequently submitted on the 30th of June, 1875; that a judgment of divorce was rendered on the 1st of July, 1875, and that a motion for a new trial was filed on the 3d of July, 1875.

It further shows that the motion for a new trial was withdrawn on the same day and date.

All of this proof leads to the supposition that there was a judgment rendered, but there is absolutely nothing to show that any decree was ever signed by the judge, or that the minutes of the court were signed by him.

The public administrator offered in evidence what appears to have been a certified copy of the judgment rendered in that case as of the 1st of July, 1875, as same appears in the New Orleans Republican newspaper of contemporaneous date; but on objection by opponent’s counsel same was rejected as inadmissible in evidence on the ground that the signature of the judge can not be eked out in this manner. “That before this notice can be received as competent evidence in the case witnesses must be called who saw the judge sign it or saw the decree of divorce after it issued with the judge’s signature to it.”

To this ruling no exception was taken on the part of counsel for the public administrator, and that paper is not properly before us.

Independently of the presumption which is raised on this emasculated record, various isolated circumstances are pointed out, the apparent tendency of which is. to confirm the reputed divorce »i- • < Thomas Barry and wife.

While, on the other hand, it is earnestly contended that the separation of the spouses was brought about by. the cruel treatment by Thomas Barry of his wife subsequent to their reconciliation and renewal of marital vows on November 2, 1875.

■ The administrator’s counsel’s further contention is, that several years'subsequent to. the alleged divorce proceedings, Thomas Barry was married to one Margaret' Skarda, the marriage ceremony having been; performed by a justice of the peace on the 12th of May, 1879, sais-shown by a certified copy of the act of marriage.

But the opponent, on the other hand, insists that she was never aware of the existence of any such marriage, though she had been for years aware of the fact that Thomas Barry was openly living, as she supposed, in adultery with another woman.

But the point which strikes our minds with greatest force is that we are called upon to give effect to an alleged decree of absolute divorce a vinculo matrimonii, without either the production of even secondary evidence of the averments of the petition exhibiting Thomas Barry’s claim to such a decree, or of the signing of such a decree by the judge. In so far as the proof that is furnished by the minutes of the court is concerned, the character of the action is left undetermined.

If we are to be guided alone by the presumption that is raised on the proof furnished by the record, it would apply quite as well to a decree a mensa et thoro as one a vinculo matrimonii.

More substantial proof is necessary to justify a judgment sustaining a decree of absolute divorce betweén Thomas Barry and wife.

But even if the proof on that question were more satisfactory, the proof of the legal resumption of marital relations between Thomas Barry and Mary Barry, in accordance with the canons of the Catholic Church, and of their subsequently living and cohabiting together, would justly attach to that union the sanctity of a putative marriage, at least.

In this case, however, there can be no definitive judgment pronounced on the opponent’s title, as we are at present dealing only with the prima facie of her claim. The title is left at large.

Viewing this litigation in that light, our decree must be

Judgment affirmed.


author: Nicholls, 0. J.

text:
    No. 11,634.
    Mrs. Clara C. Godwin vs. F. S. Neustadtl.
    Wliere property having been ostensibly sold by public act the vendor subsequently seeks reconveyance to himself on the ground that the sale was simulated, and the act was resorted to, to place the'ptoperty under cover from the possible consequences of an unjust lawsuit then pending, the vendee defeats the action through his answers'to interrogatories on facts and articles propounded to him, in which he declared the reality of the sale; the latter can not, when the vendor sues him upon the notes, defeat the second' action by plead-, ing that the original transaction was against good morals, nor by Invoking estoppel against the vendor, based upon the allegations in the first suit that the notes were without consideration, and the, sale simulated. A party is not estopped by pleadings unsuccessfully urged.

      Where interrogatories on facts and articles, propounded to a defendant in aid of •til® special issue involved in a particular suit, are broadened out beyond the 'strict necessities of that issue, the defendant can not avail himself of his answers thereto in another suit involving new issues.
    Where no claims having been registered against a succession under Art. 3275 of the Civil Code, no separation of patrimony asked for, nor administration sought, the heirs have been placed in possession, the holder of an unliquidated -claim against the succession can not have it judicially established contradictorily with a universal usufructuary, whose usufruct has been constituted by the last will of the deceased. He must proceed against the heirs. Such a ^usufructuary is not directly bound for the debts (Civil Code, 533) and the property has become the property of the heirs.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, ./.
    The present suit is the sequence of one brought by the plaintiff against the same defendant, which terminated in a judgment of this court rendered in May, 1890, which will be found reported in 42 An. 737. In that suit the plaintiff sued to recover certain immovable property which had been conveyed to her by an authentic act of sale to the defendant, on the ground that said sale was a simulation, executed for the purpose of protecting the property from a seizure under a judgment which might be rendered against her in a suit then pending.
    . Plaintiff in that suit attached to her petition interrogatories on facts and articles addressed to the defendant designed to probe his conscience as to the truth of the facts alleged. Defendant answered, setting up an entirely different state of facts from that propounded by plaintiff, denying the simulation of the transfer, and averring that it was a real transaction, intended to secure the legitime of defendant’s wife as forced heir of her father, and with the understanding that he (defendant) was ultimately either to convey the property to his said wife or to sell it and devote the proceeds to her benefit.
    Defendant filed several exceptions, among which was one of no cause of action. After trial the court rendered judgment maintaining this particular exception, and from this judgment plaintiff appealed. On appeal the judgment was affirmed for the reason that the answers given to the interrogatories were held destructive of the cause of action.
    Plaintiff then, instituted the present action, in which she alleges that she is the holder and owner of two promissory notes, executed by the defendant, payable to his own order and by him endorsed in blank, dated January 2, 1888, each for the sum of one thousand dollars, payable in one and two years, and bearing interest at the rate of eight per cent, per annum. That said notes represent part of the purchase price of certain property described in an act annexed to her petition, which on the 2d of January, 1888, she sold to' the defendant. That in said act to secure payment of these two notes in capital and interest, as well as attorneys’ fees, fixed at five per cent, on any amount for which the property might be seized, or for which judgment might be rendered, the purchaser specially mortgaged (with vendor’s privilege retained) the property purchased, the said attorneys’ fees and costs to be collectible on the same process and at the same time as the principal claim.
    An order of seizure and sale was granted plaintiff, and under the same the property was seized by the sheriff, but the sale was stayed by an injunction which issued upon the petition of the defendant.
    In his petition for injunction defendant alleged that the notes on which the writ of seizure and sale issued were made and executed by him without consideration. That the want of consideration was specially shown by his answers to the interrogatories on facts and articles propounded to him in the first suit, particularly in his answer to the third interrogatory, said answer to that interrogatory being that the act of sale referred to was drawn up and the property placed in his name for the purpose of partially securing the rights or legitime of his wife as one of the forced heirs of her deceased father, David R. Godwin, the husband of the plaintiff, all of whose property had been received by her.
    That it was distinctly understood at the date of the execution of the act of sale that the two notes given therein were not to be used or negotiated by the plaintiff, but were to be returned to him upon judgment being rendered in the suit of H. T. Foote vs. Mrs. Clara C. Godwin; that he was then to convey the property to his wife, clear and unincumbered, or sell it and turn the proceeds of sale over to her. That in the meantime the rent of the property was to be applied coward the payment of taxes, insurance and repairs, and to be collected by the plaintiff, Mrs. Godwin. That he had been expecting to have the notes returned to him, and to be placed in absolute possession of the property, all of which would fully appear by reference to ■ his answers on facts and articles, and plaintiff’s petition in the former suit. That the allegations • of plaintiff in her present suit are inconsistent with those contained in her petition in the other case. That if the allegations in the first suit are true, those in the second are necessarily false. That in the first suit she distinctly alleged that she was the owner of- the property, which she had caused to be seized under executory process in the- present suit, and she can not be permitted' to claim judicially the ownership of the property, and also to be the holder and owner of the alleged mortgaged notes existing against the same, which she declared in the first suit to be of no value, and issued without consideration, while in the latter they are declared to be legal and valid obligations. That the positions assumed in the two suits are inconsistent with, contrary to and exclusive of each other, and that she is estopped by her own judicial acts from asserting that the mortgage notes are legal and valid. That the former case was appealed to the Supreme Court, and that tribunal held his answers to interrogatories to be conclusive against Mrs. Godwin. That such being the fact, and the suit of H. T. Foote vs. Mrs. God-win having been determined adversely to Foote by final judgment, he was entitled to have the two notes returned to him as having been given without consideration, and in order that he have the inscription of the mortgage, apparently securing the same, erased.
    The widow and heirs of one John Eaton intervened in the suit. They set up the existence of a contract between David R. Godwin and John Eaton, by which Godwin agreed to give Eaton, payable on the collection of the same, one-fourth of the net proceeds of one hundred and fifty hogsheads of the lot of sugar purchased by God-win from W. G. Betterton, a claim for which was before the Claim Commission at Washington, D. C., on condition of Eaton giving' him his assistance in getting the claim. They alleged that the claim was realized by Godwin, who collected from the Government, May 2, 1887, the net proceeds of the claim, eleven thousand three hundred arid twenty dollars, of which two thousand eight hundred and thirty dollars were held in trust by Godwin for Eaton — that Eaton, before ■ his death, and the heirs of Eaton and' his widow in community, after his death, made demand of payment of Godwin for the same, who failed to inform them of the fact that the claim had been realized, but on the contrary informed them that he had not succeeded in realizing upon it. That Godwin having died, his universal legatee and widow, Mrs. Clara 0. Godwin, the plaintiff herein, accepted his succession purely and simply, and was put. in possession thereof. That the widow on the 2d January, 1888, made a fraudulent and simulated sale to the defendant Neustadtl of the .property in litigation herein; that the alleged payment of five hundred dollars cash therein recited was not true, that the two notes executed were not bona -fide, but were executed by both parties for the purpose of covering up the property from the pursuit of creditors, both parties being aware of the fact that the vendor was insolvent, and that the only property out of which intervenor could be paid was the property in question. Intervenors asked for judgment against them for the sum of two thousand eight hundred and thirty dollars, with legal interest from May 2, 1887; that the act of sale of 2d January, 1888, be set aside and annulled, and that it be sold in due course to satisfy their judgment. prescription of ten years in bar of their demand. The court rendered judgment in favor of the intervenors against plaintiff, Mrs. Godwin, and defendant, Neustadtl, decreeing that inter-venors recover from Mrs. Olara O. Godwin two thousand eight hundred and thirty dollars, with legal interest from judicial demand; that the sale from Mrs. Godwin to Neustadtl be set aside and annulled as a fraudulent simulation, and that the property purporting to have been sold therein be seized and sold in due course to satisfy the judgment then rendered in favor of the intervenors against Mrs. Godwin. It further ordered that the provisional injunction be made perpetual, prohibiting the seizure and sale of the property under the executory process issued by virtue of the notes and mortgage and vendor’s privilege declared on.

      To the intervention, the plaintiff in injunction, Neustadtl, excepted.
    1. That it disclosed no cause of action.
    2. That the validity and reality of his title attacked had been finally recognized by, and declared by the Supreme Court, and inter-venors were without right or authority to attack the same.
    3. That intervenors’ right of action, if any they had, was the re-vocatory action, and, as against the demandas such, the prescription of one year was pleaded.
    The intervenors then filed a supplemental petition, alleging that the date of collection of the claim by Godwin was in 1878, and not in 1877. That since the date of the collection thereof, inter-venors had applied to him yearly for several years for information, and that he invariably replied that he considered the claim lost; that, on the strength of his repeated assurances to that effect, and his fraudulent suppression of the fact that he had made the collection, they were induced to believe that they had lost all their rights in the premises, and ceased to make further inquiry, until recently (in the year 1890) information was received by them accidentally, through report of the suits before referred to. Defendant Neustadtl, under reservation of this exception, answered the intervention, pleading the general issue, and the

      Plaintiff, Mrs. Olara Godwin, appealed from the judgment, and pleads in this court the prescription of ten years against inter-venors’ demand. Neustadtl did not appear, but “for answer to the appeal taken by Mrs. Godwin asks that the judgment rendered in favor of the intervenors should be amended and reversed in so far as it recognized the claim of intervenors and decreed the sale to him a fraudulent simulation, and that in so far as it perpetuates the injunction it be affirmed.

      Branch K. Miller for Plaintiff, Appellant:
    A claim of ownership unsuccessfully made in a suit does not estop the plaintiff, in a subsequent suit, from setting up a claim upon the same property as mortgagee. Ohaffe vs. Heyner, 31 An. 594.
    All defences available against the real party to a suit are likewise available against the nominal party. 4 N. S. 155; 6 R. 17; 2 La. 264.
    The husband can not give testimony for or against his wife, and if admitted without objection must be disregarded by the court. Answers to interrogatories on facts and articles given by the husband are testimony, and within the rule of exclusion. 32 An. 643-1174; 38 An. 106-195; 40 An. 273; 21 An. 652, 681, 682; 20 An. 422.
    Verbal admissions of a deceased person are the weakest of all evidence. 12 An. 401; 36 An. 631; 10 An. 29; 8 An. 278; 35 An. 1007; 37 An. 97.

      Parol evidence to prove interruption of prescription or to take an obligation ut of prescription by verbal statements of the deceased debtor, or to prove an interruption of prescription of an obligation evidenced by writing after prescription has run, is inadmissible. If introduced without objection such testimony must be disregarded. 84 An. 548, and authorities there cited.
    In the prescription operating a release from debt good faith is not required. A fiduciary debt forms no exception to this rule. 0. C. 8580, 8550; 3 An. 46, 183.

      Horace E. Upton and R. H. Lea for F. S. Neustadtl, Defendant and Appellee:
    Answers to interrogatories on facts and articles stand as a part of the pleadings, and can not be contradicted by anything but a counter-letter. If they are destructive, of plaintiff’s action, an exception of no cause of action will lie. Mrs. Godwin vs. Neustadtl, 42 An. 735.
    The verity and reality of authentic sales can be assailed by the parties thereto only in two ways, viz.: First, by means of a counter-letter; second, by the answers of the other party to interrogatories on facts and articles. 11 La. 418; 9 R. 379; 12 R. 215; 10 An. 704; 27 An. 266; 36 An. 100; 38 An. 154; 6 N. S. 206; 4 La. 1, 169, 351; 3 R. 441; 6 R. 443; 8 R. 102; 11 R. 270; 3 An. 153; 4 An. 487; 42 An. 738.
    The strongest character of estoppel is that of acknowledgments or declarations in judicial proceedings. Such averments are the highest evidence against the party making them, and can not be contradicted nor denied. Were the rule otherwise, the integrity of judicial proceedings could not be protected. 6 M. 280; 2 An. 269; 5 An. 18; 4 An. 416; 6 An. 719; 11 An. 710; 40 An. 189; 23 An. 765; 18 An. 141; 31 An. 564; 30 An. 1309; 32 An. 962, 979; 33 An. 1370.

      Martin Voorhies, G. S. Kellogg and Albert Voorhies for the heirs of J. Eaton, Intervenors and Appellees:
    The identity of the sugars in controversy is established.

      Bona fide creditors can intervene in suit between vendor and vendee to have the whole transaction declared a simulation in fraud of their rights. Distinction between revocatory action and one en déelaration de simulation.

      Appellant, having admitted in answer to interrogatories on facts and articles that the sale she ostensibly passed to her son-in-law was a pure simulation, is estopped from questioning the judgment, which recognizes her as the owner of the property.
    In contract of mandate the ten years of prescription begins to run, not from the date of the contract, but from the time when suit could have been brought.
    Defendant and intervenors are co-appellees. As between them the judgment must stand. Nor can his answer, asking amendment of judgment be “ received,” even as regards plaintiff appellant, because filed on the very day of argument, instead of three days before. C. P. Art., 890; Converse vs. Steamer, 15 An. 433; Barrett vs. Donovan, 17 An. 182.
    Plaintiff did not except to petition of intervention. The only exception filed and tried was defendant’s. There is no omission in that respect in the transcript. If plaintiff desires, we tender him our consent to probe this matter at any time without resort to certiorari.

    Plaintiff, instead of excepting, at once joined issue on the merits, and readily answered our interrogatories on facts and articles.
    Besides, the intervention was not filed in the executory proceedings; but we intervened in the ordinary injunction suit brought by defendant against plaintiff, who ratified this proceeding by freely joining issue and answering interrogatories.
    The question is not whether prescription was interrupted, as argued by plaintiff, but whether it was suspended under the operation of the equitable rule, Contra non valentem agere non currit prsescriptio. See Boyle vs. Mann, 4 An. 170; Reynolds vs. Baston, 11 An. 729, sustaining in such cases the suspension of prescription. Harvey vs. Pflug, 37 An. 906; Rabel vs. Pourcian, 20 An. 132; Murphy vs. Gutierrez, 20 An. 407.
    Plaintiff and defendant, upon their own showing, should be denied the help of the court for relief, which they respectively ask. Ex turpi causa non oritur áctio.

    Godwin contracted with Eaton personally. Godwin’s heirs can not, without fraud, retain this fund from Baton’s heirs on any pretext. C. C., Arts. 2950, 2959, 3005.

      Mrs. Godwin is universal legatee by her husband’s will, and also with the written assent of the heirs she was, by solemn judgment of court, confirmed as universal legatee, and, as universal legatee, formally put in possession of the estate.
    Even as the universal usufructuary, creditors of her husband under the jurisprudence of 0. 0., Art. 585 (579), have an actual legal interest to intervene in order to protect the property of the estate against tortious alienation to the prejudice of their rights. See Succession Sinnott, 3 An. 176; Succession Fitzwilliams, 3 An. 489; Succession Bringier, 4 An. 389.
    Argued and submitted March 16, 1895.
    Opinion handed down April 8, 1895.
    Rehearing refused May 20, 1895.
   The opinion of the court was delivered by

Nicholls, 0. J.

We may say at once that NeustadtI, not having himself appealed, is not authorized to ask an amendment of the judgment obtained by intervenors.

We think a determination of the issues presented to us will be disposed of by taking up first the situation between the plaintiff and defendant without reference to the intervention which has been filed. As between those parties the issues are within narrow compass. Without assigning any reason for its judgment to that effect the District Court perpetuated the injunction which NeustadtI had caused to issue, restraining his vendor from proceeding to enforce the notes representing the price of the sale to him, and the enforcement of the mortgage and vendor’s privilege securing the same. In our opinion the judgment is erroneous.

The contention by the defendant that the plaintiff, Mrs. Godwin, is estopped from enforcing the notes she holds, because in the former suit she declared the sale to be a simulation, designed to protect her property from the consequences of a judgment which might be rendered in a certain suit brought by one H. T. Foote against her for her husband’s debts, and sought to have the act of sale set aside on that ground, because the answers he gave to certain interrogatories propounded to him in that suit conclusively bind her in the present one, and because the placing of the property in bis name, under the circumstances it was done, was contrary to good morals, and should cause the doors of the courts to be barred against her, are none of them tenable.

The issue in the first suit was simulation vel non. The plaintiff asserted the simulation of the act of 2d January, 1888; the defendant denied it, and on being subjected to examination on facts and articles, answered in a manner to cause the issue to be determined adversely to the claim for simulation.

The answers of the defendant in that suit to interrogatories on facts and articles fulfilled their purpose, and caused the act to be maintained as an act of sale.

The interrogatories propounded to him were all asked in support of the charge of simulation, and their effect must be limited to that particular issue.

What the actual relations of the parties were (upon the hypothesis of the sale being a reality) was immaterial for the purposes of that suit, and foreign to the subject matter being investigated, and anything and everything in the answers outside of what was strictly necessary, for the decision of the particular issue involved in it was, so far as any future advantage to Neustadtl in a future suit involving other issues was concerned, utterly worthless. It would be a convenient and easy method of settling rights of parties if the defendant in a case, when interrogated on facts and articles, were authorized to broaden out his answers not only to meet the exigencies of the case before the court, but to meet possible exigencies of cases to arise in the future. We give effect to his answers to the extent of establishing the fact that the sale to him was a reality, not a simulation — further than that he can not ask. If the sale being real and apparently absolute and unconditional, there existed really covered limitations, conditions and purposes not stated on the face of the act, and they are susceptible of proof, that proof has to be made here through original competent evidence.

The plaintiff in this suit is not estopped, because in the former suit she pleaded that the act of sale was simulated. She tendered that issue to the defendant, who met it by alleging and, through his own answers, proving its reality. The decision of the court closed the question of simulation favorably to defendant, but in doing so it carried with it the disadvantage to him of being subsequently forced to meet the obligations which he assumed in the act, then declared to be real. If there be estoppel in this case it is he, not Mrs Godwin, who is estopped on the issues as now presented. Parties are not bound by allegations unsuccessfully pleaded. Eng. and Am. Ency. of Law, Vol. 7, p. 3, note 2; McQueen’s Appeal, 104 Pa. St. 595; Appeal of Susquehanna Ins. Co., 105 Pa. St. 615.

The plaintiff in this suit was legally authorized to sue upon the notes and enforce the mortgage, and the situation of affairs is not such as to warrant the defendant invoking against her the doctrine of a want of morality in the bringing of the suit. The case' falls directly under the principle announced in Greffin’s Ex’r vs. Lopez, 5 Martin, 166, in which the executor was seeking from Lopez the reconveyance of property which had been transferred to Lopez by Greffin upon the ground that the act was a simulation, and the suit was met by the objection urged here. The Supreme Court said: “In the present case the plaintiff sought to avert the consequences of threatened or impending prosecutions, covered his property, and, re integra, died. We find no instance in which a plaintiff similarly situated was denied relief, except under the common law of England, which declares fraudulent conveyances binding on the parties.

“ But neither the principle of the common law of England nor the disposition of the statute of Elizabeth are known to be laws of this State, and we are bound to disregard them.” In the case at bar the sale was resorted to for the purpose, let it be admitted, of protecting the property of Mrs. Godwin against the special claim of one Foote, who had brought suit against her to make her and her property liable for the debts of her husband, as she believed unjustly. The suit in question resulted in establishing the fact of her non-liability, and she would have been entitled to a reconveyance had not Neustadtl’s answer blocked the way. It is a mistake to suppose that she is in this suit seeking to enforce an immoral contract; on the contrary, it is the defendant who is seeking to enforce the contract or arrangement which he declares reprobated by good morals. If this property were to remain in defendant’s ownership, the creditors of Godwin, if such there be, would be placed at great disadvantage and possibly cut off by prescription, while by enforcing the sale with the light thrown on this transaction by the lawsuits which have occurred, will place an easy remedy within their grasp. If the object was immoral, it is much more likely to be frustrated through this suit than by letting matters stand as they are. Antoine vs. Smith, 40 An. 566.

There is no evidence in this suit of the existence of the state of facts which NeustadtI declares as being those under which the act of sale was passed. He depends upon his answers to the interrogatories propounded to him in the other case. They do not serve him here. There is a great improbability that such a state of facts existed. If Mrs. Godwin’s intentions had been such as defendant declares, she would scarcely have sought to retain the hold on the property which was evidenced by the notes and mortgage which were given; besides this, the wife of NeustadtI is only one of four of the children, issue of Godwin’s marriage with plaintiff, and it is not at all likely that she would have secured the legitime of one child, without reference to that of the others. We think the condition of Godwin’s succession was such as to make it very doubtful whether the children had any legitime to be secured. Godwin in his will acknowledged an indebtedness to his wife of twenty thousand dollars. With his succession liable for the payment of that debt, the legitime of the heirs would be little if anything, and Mrs. NeustadtI has been shown to have received already quite a large amount from her 'father’s succession.

We think the plaintiff entitled to have the injunction which issued set aside, and to have judgment in her favor, as asked for by her, in her petition.

We now come to the demand of the intervenors, which was sustained by the lower court. It was based upon a contract between the husband of the plaintiff and John Eaton, the husband of one of the intervenors, and father of the others, by which Godwin bound himself to pay Eaton a certain portion of a claim which he (Godwin) was then prosecuting before the claims commission at Washington, D. C., provided Eaton would give his assistance toward procuring the claim. Eaton died in 1877 or 1878. Godwin died in 1888, leaving a will, in which he bequeathed to h.s wife, Clara C. Godwin, in usufruct during her life, what would remain of his estate after the payment of his debts. The will was probated, and the widow and heirs placed in possession by judgment of court of the 25th day of January, 1887. No application was made by any one for a separation of patrimony, nor is there any evidence before us that either the claim of the widow and heirs of Eaton, or any other claim, was registered, as required by Art. 3275, C. C. The succession as such, and the property, as succession property, has long since ceased to exist. The property in litigation in this suit stood in the name of the wife of Godwin, and was sold (or apparently sold), by her to Neustadtl as her property. She appears to have been separate in property from her husband, who, in his will, recognizes his indebtedness to her in the sum of twenty thousand dollars.

It is true that in Godwin’s will this particular piece of property is placed by him among the assets of his estate, and referred to “ as standing in the name of the wife,” coupled with the declaration “ it was to be deducted out of the twenty thousand dollars due her at what it was worth, or may bring at sale, or she can take it at my valuation, worth to-day five thousand seven hundred and fifty dollars.” But the statement of the husband did not divest the wife of the ownership of the same, if, in point of fact, it belonged to her.

It is not alleged in the petition of intervention that it either now or at any other time belonged to Godwin. Intervenors deal with Mrs. Godwin as the universal legatee of her husband, and, as such, bound for all his debts. Godwin left a number of children, who are not only his legal but his forced heirs, and intervenors are in error in supposing her to be her husband’s universal legatee and bound for his debts. Article 583 of the Civil Code declares: “ The universal usu-fructuary, or usufructuary under a universal title, whose usufruct has been constituted by act of last will, is not directly bound for the debts of the testator; that is to say, the creditors of the succession have no action against him to force him to discharge the debts out of his own estate, saving their rights to cause to be seized the effects -of the succession, and to proceed against the heir of the testator to obtain payment.”

The heirs of the testator are not parties to this suit, and Mrs. Godwin is not the proper party against whom and contradictorily with whom this unliquidated claim has to be brought to judicial recognition. They are the real parties interested in the matter, assuming this property to have ever belonged to Godwin, or to still belong to a “ succession.” It certainly could not be seized or ordered to be seized until the debt for the satisfaction of which it is to be seized has been legally established contradictorily with the parties owing the debt and owning the property. We do not think the judgment can stand. The view we take of the situation relieves us from examining the question whether the intervenors, holding an unliqui-dated claim, had the right to come in the case at all for the purpose of having it therein liquidated, and whether intervenors would be entitled to a judgment, if the proper parties were before the court, under the evidence.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the District Court, appealed from, be and the same is hereby annulled, avoided and reversed in its entirety, and that the petition of intervention and demand in intervention of Marie C. Landry, widow of John Eaton, of Marie I. Eaton, wife of H. T. Laroque, of M. 0. Eaton, wife of G. I. Yoorhies, and of Gabrielle Eaton, wife of F. E. Voorhies, be and the same is hereby dismissed, the rights of the intervenors to proceed and make available whatever rights they may have under the contract, declared on by them against the proper parties, in some other proceeding, being expressly reserved.

It is further ordered, adjudged and decreed that the injunction which issued in this case, upon the petition of the defendant, Frederick S. Neustadtl, be and the same is hereby set aside, with the right of the plaintiff herein, Clara C. Godwin, to sue for damages for the issuing of the same being expressly reserved.

It is further ordered, adjudged and decreed that the sheriff of the parish of Orleans be and he is hereby ordered to proceed to the advertisement and sale of the property by him ordered to be sold, under the order of the judge of Division “ E ” of the Civil District Court for the parish of Orleans, bearing date July 1, 1890, and rendered upon the petition of Clara Godwin, widow of David R. Godwin, in the suit entitled Mrs. Clara C. Godwin vs. F. S. Neustadtl, number thirty thousand five hundred and forty-eight of the docket of the Civil District Court for the parish of Orleans; intervenors to pay costs of their intervention in both courts, defendant, Neustadtl, to pay all other costs (including the costs in the injunction proceedings) in both courts.


author: Nicholls, O. J.

text:
    No. 11,655.
    George K. Pratt et al. vs. The Manhattan Life Insurance Company of New Orleans.
    The mere fact that a policy has been made “ payable to the assured, his executors, administrators or assigns,” does not authorize an insurance company to insist that the succession of the deceased policy holder should he placed in the hands of an administrator in order to make payment to him, when the heirs have been placed in possession by order of court, unless special circumstances shown, which would make a payment to the heirs dangerous.
    A receipt from the major heirs, and the tutor of the minor heirs, would ordinarily protect the debtor of a succession when the heirs have been, by orders of court, placed in possession.
    PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

    The defendant company issued to Dr. Samuel Logan two policies of insurance, one for the sum of five thousand dollars, and the other for sixty-seven dollars; the terms of both being substantially alike.
    In each it was declared that “the company promised and agreed to and with the assured, his executors, administrators or assigns, well and truly to pay, or to cause to be paid to the said assured, his executors, administrators or assigns, within ninety days after due notice and satisfactory evidence of the death of said Samuel Logan, and proof of the just claim of the assured under this policy.”
    The assured died in New Orleans on the 12th of January, 1893. He left as his heirs seven children — George King Logan, Elizabeth Young Logan, wife of James McConnell, Jr., and five minors, of whom Dr. George K. Pratt was confirmed the tutor on the 13th March, 1893.
    On the 19th of September, 1893, George K. Logan, Elizabeth V. Logan, and the five minors under the tutorship of Dr. Pratt, were recognized as the sole heirs of Samuel Logan, and ordered to be placed in possession of his succession as such.
    The insurance company having called in question the right of the two major heirs and the tutor to receive payment of the amount due under the policy, the present suit was instituted against it on January 12, 1894, for the recovery of the same, with legal interest from May 1, 1893. The demand was first met by an exception of no cause of action, and an exception that plaintiffs were without capacity or right to institute the proceedings, and these exceptions being overruled, defendant answered, pleading the general issue. Judgment was rendered in favor of the plaintiffs for five thousand and sixty-seven dollars, with legal interest from 1st of May; defendant appealed.

      James McConnell, Jr., for Plaintiffs, Appellees, cites: 43 An. 248; 43 An. 316; 30 An. 93, 388; 36 An. 744; 34 An. 39; 36 An. 826; 45 An. 737; 31 An. 235.

      Dinkelspiel & Hart for Defendants, Appellants, cite: C. C., Arts. 1764, 1963, 1967; 3 An. 502; 45 An. 736.
    Argued and submitted March 27, 1895.
    Opinion handed down April 8, 1895.
    Rehearing refused May 20, 1895.
   The opinion of the couit was delivered by

Nicholls, O. J.

Only two questions are submitted to us by the appellant.

It insists, first, that the policies declared on having been made payable “ to the assured, his administrators or assigns,” it has the right to insist that an administrator should be appointed to the succession of Samuel Logan, to whom it can make payment, claiming that a payment to plaintiffs in this suit would not give to it the absolute protection which it was entitled to have under its contract; and, second, that if plaintiffs be entitled to a judgment, interest is recoverable only from December 19, 1893, that is, ninety days after the heirs were recognized and placed in possession.

We find in the record a correspondence between James McConnell, Jr., the husband of one of the heirs, and the attorney of the succession and heir's; Ferd. Marks, the Louisiana agent of the de-‘ fendant company, and Dinkelspiel & Hart, the company’s attorneys.

The first letter bears date October 25, 1893, and is written by Mr. McConnell to Perd. Marks. The writer declared that it appeared to be impossible to collect from the company, without a lawsuit, the amount claimed by the heirs under the policies; that demand had been made upon it by the tutor of the minor children, who was administering the Logan succession in that capacity; that he wrote to inquire whether it would pay the amount, and when; that unless paid without farther delay, legal proceedings would be taken for its •collection; that the heirs offered to give the company the receipt of the tutor as administering the succession, or his receipt as the representative of the minors, coupled with that of the major heirs, or an order of court, directing the company to pay the amount to the tutor, or all of them combined.

On the 31st October the company telegraphed Marks that it forwarded that day “ draft of Logan claim.”

On November 3 Mr. McConnell wrote Marks that he supposed from this dispatch, which had been shown him, that the draft had been then received. That the amount due was five thousand and •sixty-seven dollars, with legal interest from May 1, 1893, and he would like to know whether the claim would be paid that day. Marks replied that the check was in the hands of Dinkelspiel & Hart, and to call upon them.

On the same day, November 3, the latter wrote Mr. McConnell that they were at last in possession of the papers from the defend-' ant company in the matter of the claim, and suggested that they meet and prepare a rule in the matter to be tried on the next Monday.

On the 7th they wrote another letter to him, regretting that the interview suggested had not taken place, and requesting that they meet so as to have the rule tried and judgment rendered on the next Monday; that they had the draft ready to turn it over when judgment, such as they desired, was rendered. On the next day Mr. McConnell wrote them to know what it was they required before paying over the amount. On the 9th of November they replied that they would turn over to him the draft of the company on payment of the policy upon the rendition of a judgment ordering the •company to pay to Dr. Pratt, tutor of the minor children, and agent •of the major heirs. That they required this because the policy, they understood, in terms, made it payable to the administrator; that he might take the rule in the succession of Dr. Logan; that they would accept service; that all the proof this required could be made by ex parte affidavits; that the proof was as to the name and ages of the children, and that there were no descendants of predeceased children; that they would turn over the draft as soon as the judg-mentwas rendered without any delay.

On the 2lsfc November McConnell wrote Mr. Marks that Dinkel-spiel & Hart stated to him that they were authorized to pay only the face value of the policy without interest, and would pay only on obtaining a receipt of payment in full upon their turning over the principal; that he protested against this action, and insisted upon the payment of the interest, then amounting to about one hundred and twenty-five dollars. On the 4th December Dinkelspiel & Hart wrote to McConnell that the letter of the contract being that the money was not to be paid except to an administrator, they did not see how the company was liable for interest until a demand had been made upon it by an administrator, and they would be obliged to defend any suit that might be brought.

The present action followed.

No question has been at any time raised as to assured having a joint claim under the policy. Notice and evidence of death were furnished to the company on or before the 1st of February, 1898. The policies became payable on the 1st of May, 1893, and interest was due on them from that time. No tender of payment is shown. The tutor and major heirs were authorized to receive payment at the maturity of the debt. We find no force in the position taken by the defendant, that by virtue of its “ contracts ” it had the right to insist that the succession of Dr. Logan should have been placed in charge of an administrator in order that payment should be made to him alone. The addition of the words “his executors, administrators or assigns ” alter the word “ assured ” making the policies payable “ to the assured, his executors, administrators and assigns,” left the contracts precisely in the condition they would have been had those words been left out with payment to be made to the heirs, the executors or the administrators, as the one or the other would properly and legally represent the succession.

There is nothing in the decision of this court in Moise, Tutor, vs. Mutual Reserve Fund Life Association, 45 An. 736, which would warrrant a contrary opinion. In that case the assured lived and died in Kentucky, the place of his domicile — the contract of insurance was made there with an insurance company having its domicile in New York. It so happened that some of his minor children were in Louisiana at the time of the father’s death, to whom a tutor was appointed in the Civil District Court for the parish of Orleans. The tutor brought suit upon the policy, against the company, by service upon an agent who represented it in Louisiana, evidently for Louisiana business alone. We held that the tutor was not authorized to bring the suit; that the domicile of the deceased was in another State, his succession opened there, the situs of the claim upon the policy was where the succession was opened, and that it was not a Louisiana asset falling under the administration and control of the Louisiana tutor. The facts of that case are entirely different from those in the present case. The domicile of Dr. Logan was in this State, the tutor of the minor children was properly appointed here, the contract sued on was made in Louisiana, the situs of the claim is here, and the company is properly represented by a Louisiana local agent.

If defendant’s legal position be correct, then the debtor, upon any claim whatever, would have the right equally with the defendant to force the succession to which the debt should be due into the hands of an administrator for the purpose of receiving payment. Any debtor Would be entitled to the same “ absolute protection ” against contingencies which the defendant would have, and, therefore, successions without debts, with assets amounting to hundreds of thousands of dollars, would have to be subjected to administrators’ commissions, advertisements, court charges, and the other expenses-necessarily incidental to placing of an estate under administration, simply to satisfy the groundless fear of a debtor owing the estate a hundred dollars. It is difficult to imagine that the defendant really and seriously maintained such a proposition.

It is not suggested even that under the facts of this particular case there is danger to be apprehended from defendant’s making payment to the plaintiffs. No attempt has been made to show the existence of any fact which would go to weaken the finding made by the District Oourt that the plaintiffs are the sole heirs of Dr. Logan. The succession was opened by the death, on the 12th January, 1893, and the heirs were recognized and placed in possession as long ago as September 19,1894, and yet no one has made a move in the direction of having an administrator appointed. We have no reason to suppose the succession owes any debt, or that any fact exists which makes such an appointment necessary or advisable. All that defendant can ask, is that it be protected against a double payment. Payment to the plaintiffs herein, under the judgment herein rendered in their favor, will in our opinion be a perfectly safe payment and defendant had no grounds for thinking otherwise.

We think the judgment.correct, and it is hereby affirmed.


author: McEnery, J.

text:
    No. 11,692.
    John Henry Shoe Company, Limited, vs. Gilkerson-Sloss Commission Company, L. & A. Scharff.
    Where an attachment on a just debt has been obtained against a debtor, which is maintained and a final judgment rendered lor the amount demanded, creditors who were not parties to the litigation, on discovering that the attachment was fraudulently and collusively obtained by an agreement between the creditor and debtor, can not have the final judgment set aside solely on the ground of collusion in obtaining the attachment, as this assertion cou d only serve to dissolve the attachment, which could not prevent the final judgment on the amount demanded.
    A PPEAL from the Fifth Judicial District Court, Parish of More-house. Vaughan, J. ad hoc.

      F. G. Hudson aud E. T. Lamkin for Plaintiffs, Appellants.

      Newton & Hall and G. H. Ellis for Defendants, Appellees.

      Gunby & Sholars for Intervenors, Appellants.
    Argued and submitted March 29, 1895.
    Opinion handed down April 8, 1895.
    Rehearing refused May 20, 1895.
   The opinion of the court was delivered by

McEnery, J.

To a proper understanding of this litigation reference is made to Gilkeson Sloss Commission Co. vs. Bond & Williams, 44 An. 841; to Yale & Bowling vs. Bond & Williams, 45 An. 998, and Williams et als. vs. Gilkeson-Sloss Co., 45 An. 1013.

In the first suit attachments were issued again'st the defendants, and the attachments were met by interventions to dissolve them, among other reasons that the plaintiffs in attachment, and the defendants, fraudulently agreed and colluded between themselves that the attachments should issue against defendants, in order to place their property beyond the reach of other creditors.

The motion to dissolve the attachments was overruled, on the ground of the failure of intervenors to prove their charge of fraudulent collusion. The affidavits for the several attachments were accepted as prima facie evidence of the grounds of the attachment, which was sustained by proof on the trial.

The plaintiffs in the instant cases, who were not parties to that litigation, bring this suit to annul all the proceedings under the attachment proceedings— the sale of the personal property which was made pending the litigation under an order of court and by consent of the parties, the final judgments and the sale of the immovable property under writs of fi. fa. issued in the several judgments obtained against the defendants, Bond & Williams.

In the two other suits alluded to there are many facts passed upon by this court adverse to the contention of plaintiffs, but they were decided upon the state of facts presented in the first suit.

Since these cases were decided the plaintiffs here have discovered evidence which conclusively shows that the allegations of inter-venors in the first suit were true. Had the evidence now before us been then presented, the ruling on the motion to dissolve the attachments would have been different, and they would have been set aside without a moment’s hesitation.

But the charges of fraud and collusion only could be urged as a means of dissolving the attachment. The dissolution of the attachment could not retard the pursuit of the defendants in the debts upon which the attachments issued. They were only conservatory remedies to hold the property until the final judgments were obtained. The personal property sold and purchased by the defendants during the pendency of the suit was subject to the final judgment. In the event of failure to obtain the judgment, the sale would be binding, and he would only be compelled to restore the price if he was permitted to retain it to await the result of the judgment.

Yale & Bowling and Baldwin & Co., who resisted the attachment of the commission company in their interventions, also attached the same property. The proceeds of the sale of the personal property were prorated among the attaching creditors. Yale & Bowling and Baldwin & Co. also obtained judgments against the defendants, Bond & Williams. Their attachments were honest pursuits of their debtors. Their claims’ were legal and valid. Execution issued under the judgments of Yale & Bowling and Baldwin & Co. and the Gilkeson-Sloss Commission Company, and the immovable property pursued by plaintiff was seized and sold and purchased by the last named judgment creditors, who had purchased the claims of the Monroe banks, which, it is alleged, colluded'with the plaintiff in the first suit in obtaining the attachment. The bank claims were valid, and we have no serious doubt as to the amount due the commission company. There may have been some items against which there were defences, but the apparent confusion of accounts and conflicting claims were, in a measure, due to the efforts of the commission company to assist Bond & Williams in relieving them from debt. The main item of five thousand nine hundred and twelve dollars, which figured in the account of indebtedness, is fully explained in the cases in the 45th of Annual Reports referred to above.

The grounds alleged by plaintiff could only go to the dissolution of the attachment, and not to the dismissal of the suit, and not affect the validity of the judgment obtained by the commission company against Bond & Williams.

The plaintiffs assert no privilege on the personal property which the proceedings of defendants, by attachment, interfered with. They were ordinary creditors, and the attachments being out of the way they are like any other creditor, who must lose by the prior suit of a creditor who obtains a judgment and subjects his debtor’s property to the payment of his debt. All the immovable property acquired by the commission company at the judicial sale was seized under the three writs, under the judgments mentioned, and the company had a mortgage on the property, or nearly all of it purchased at the sale. The company also held a lien on all the crops, and the cotton shipped to it was, in fact, subject to this lien and privilege.

This fact was noted in the case of Commission Company vs. Bond & Williams, 44 An. 841.

There is no question as to the validity of the judgments of Yale & Bowling and Baldwin & Co. The property purchased by the defendants was sold under writs issued under these judgments, as well as that of their own. Conceding that there is just cause of complaint to the last named judgment, and that it is an absolute nullity, this would not prevent the defendants from purchasing the property at the sale under the other judgments. At all events he had to pay the price of his bid. What part of the price he retained in his hands was probably more than covered by the amount of the mortgage claims he held against the property. Bond & Williams were insolvent, and there were not assets sufficient to pay ordinary creditors. Our impression is that plaintiffs and intervenors were not injured by the sale of the property, and therefore have no cause to complain. In making this statement we will observe that we have not deemed it necessary to marshal the assets and liabilities, and definitely ascertain the extent of the insolvency, the amount of assets and the privileged debts.

The other reasons assigned are sufficient to reject plaintiffs and intervenors’ demands.

It is therefore ordered, adjudged and decreed that the judgment of the lower court, in favor of plaintiffs, and against defendants and intervenors, be affirmed.