text:
    No. 12,079.
    New Orleans & Western Railroad Company vs. Bartholomew Morere.
    When the plaintiff in an expropriation suit avails itself of the permission of the statute and deposits the amount of the verdict in the hands of the sheriff, subject to the owner’s order, it becomes entitled at once to the right, title and estate of the owner in and to the land described, in the same manner as a voluntary conveyance could do; and in this manner it can deprive an appeal by it prosecuted of a suspensive effect. And in the event of any alteration being made in the judgment on appeal the plaintiff is bound only to pay the increased allowance, or it will be entitled to recover back the surplus paid, as the ease may be.
    More than usual credit is attributable to the verdict of a jury in an expropriation suit, and it will not be set aside unless manifestly erroneous.
    A PPEAL from the Twenty-first Judicial District Court for the l i_ Parish of Jefferson. Rost, J.

      Farrar, Jonas & Kruttsehnitt for Plaintiff, Appellant.

      Q. V. Soniat for Defendant, Appellee.
    Argued and submitted April 7, 1896.
    Opinion handed down April 20, 1896.
    Rehearing refused June 25, 1896.
   The opinion of the court was delivered by

Watkins, J.

This is an appropriation proceeding and for the purposes of convenience and accuracy of statement we have made the following extract from plaintiff’s brief, viz,:

“ Statement of Case.
“This is an expropriation proceeding. The plaintiff railroad company was organized January 17, 1895, by act before H. T. Gurley, notary public, for the purpose of constructing a railroad with allproprer turnouts, side tracks, switches and spurs, from some point on the Mississippi river in the parish of Orleans, or St. Bernard as the Board of Directors might elect, through the parishes of Orleans and Jefferson to some point on the east bank of the Mississippi river in the parishes of Jefferson, St. Charles or St. John the Baptist, most convenient for crossing said river; thence to the western boundary of the State by the most direct, convenient and approved route to be selected by the Board of Directors, there to connect with a line of road to be constructed in the State of Texas direct to, Dallas in said State.’ The object of this action is to expropriate a right of way through defendant’s property for a short line switch or connection with Southport, which in the joint terminal of the Yazoo & Mississippi Valley Railroad Companies in the parish of Jefferson, about one mile from plaintiff’s main line.
“ The petition avers plaintiff’s incorporation and exhibits its charter; that its line is under construction and exhibits a map showing its location and construction on the east bank of the Mississippi river; that at what is known as Southport, on the Mississippi river, immediately above the parish of Orleans and in the parish of Jefferson, is situated the terminus of the Yazoo & Mississippi Valley Railroad Company, which is also used as a terminus by the Illinois Central Railroad Company, and that the necessities of commerce and your petitioner’s business require that your petitioner should have a short-line switch or connection from its main line to the tracks of the Yazoo & Mississippi Valley Railroad Company, so as to make immediate connection with Southport, and that this switch is laid off upon the map marked Exhibit B and indicated by the blue line thereon; that said switch leaves the main line of your petitioner’s road in the property belonging to the estate of Peters, thence through the property belonging to the Yazoo & Mississippi Valley Railroad Company, and thence through a small piece of land «containing about one and one-tenth acres belonging to Bartholomew Morere, who resides in the parish of Jefferson, as will more particralarly appear by plat annexed. The petitioner then describes the Band minutely and the right of way, 100 feet wide, through it. It avers that it is a low, marshy piece of swamp, containing about one and one-tenth acres, lying between two parallel lines of railroad, the Illinois Central and the Yazoo & Mississippi Valley Railroad, without improvements or fences, which has never been cultivated and is entirely unfit for cultivation, and has never been utilized by. said Morere or his vendors for more than thirty years. The right of way asked for is averred to contain 0.550 of an acre and to be worth about fifty dollars; that in order to avoid litigation plaintiff had tendered defendant two hundred and fifty dollars, which he refused, and that defendant demanded the outrageous and exorbitant sum of four thousand five hundred dollars.
“ Being unable to agree with defendant, plaintiff prayed for the condemnation of the land by a special jury of freeholders and for the notification of defendant according to law. Proper order was granted on this petition, the special jury was summoned, and the defendant was served with a copy of the petition and order, and notified, as the law directs, that the special jury to assess the value of the land and damages would be empaneled on January 15, 1895, at 11 o’clock, at the court house in Gretna.”

The defendant first plead a variety cf exceptions which were overruled, followed by a motion to quash the venire, which was denied, and then he tendered an answer pleading specially that plaintiff did not need his land because it could easily connect at other points with the roads mentioned; and that it was not needed for the lawful purposes of the plaintiff nor for a general use, or a public purpose. And finally he averred that in the event the land should be expropriated, the land was worth four thousand five hundred dollars, on account of the interference the proposed railroad would cause to his drainage, and other inconveniences.

On the trial there was a verdict of the jury and a judgment condemning the land to the uses of the plaintiff, and fixing the value of same at eight hundred dollars; and it decreed that the plaintiff shall not have the right to enter upon or take possession of said land, until it shall have paid the aforesaid sum to.the defendant; and that in case of an appeal from said judgment by the plaintiff, it shall deposit said sum in the hands of the sheriff, subject to the order of the defendant.

It was necessary that this statement should be made, in order to gain a clear idea of the appellee’s motion to dismiss plaintiffs’ ap-. peal, which is grounded on the following objections, viz,:

1. That plaintiff voluntarily acquiesced in the judgment, in that it did not apply for a new trial, and deposited the amount of the judgment, and demanded and obtained a conveyance and possession of defendant’s land by an order of court on the 18th of January, prior to the finality of same on the 31st of said month; and that by this means it virtually debarred him from asking for a new trial, or of obtaining any other redress whatever.

2. That the appeal has lapsed, because the transcript of appeal was not filed in this court in time.

3. That the appeal was not demanded by the appellant, and made returnable according to law, in that it should have been made returnable within fifteen days after judgment, whereas it was made returnable more than thirty days after the verdict and judgment through the fault of the appellant.

To the first objection it is sufficient answer to say that the defendant tendered in the lower court no motion for a new trial, and has not answered the appeal of the plaintiff and requested any amendment of the judgment by this court; and it is thus made evident that he has suffered no injury on account of the prematurity of the petition for an order of appeal.

The other two grounds may be taken together.

The section of the Revised Statutes (R. S., Sec. 709) on which the defendant relies for making an appeal in expropriation cases, returnable “within fifteen days,” is not applicable to this case — it being governed by the provisions of Sec. 702.

The section defendant relies upon has exclusive reference to injunction suits restraining proceedings for the expropriation of landi which are referred to in the preceding section. R. S., Sec. 708.

The order of appeal makes the appeal returnable on the 17th of April, 1896, and the transcript was filed on the 20th of that month. It was in time.

The motion to dismiss is denied.

Under the law there is, in our opinion, nothing remaining for our consideration but a question of fact relative to the value of the land; for it provides that no appeal in such case shall suspend the execution of the judgment, “ but the payment of the amount of the verdict by the company to the owner, or the deposit thereof, subject to the owner’s order, in the hands of the sheriff, shall entitle the corporation to the right, title and estate of the owner in and to the land 'described in the petition in the same manner as a voluntary conveyance would do.

“ But in the event of any change being made by the final decree in the decision of the cause the corporation shall be bound to pay the additional assessment or be entitled to recover back the surplus paid, as the ease may be.” R. S., Sec. 702.

Notwithstanding counsel for the plaintiff has characterized the testimony of the defendant in the most unauthorized and remarkable manner, as that of a “would-be blackmailer of this corporation” (brief, p. 9), we are disposed to give full effect to the testimony upon which the jury of freeholders founded their verdict for the sum of eight hundred dollars, as the value of the property. They were selected from the vicinage of the property, and were acquainted with its location and advantages; and more than usual credit is attributable to their verdict. Jurors in such cases are, in a limited sense, experts, and the verdicts they render will not be altered, except when manifestly erroneous. New Orleans & Fort Jackson Railroad Co. vs. McNealy, 47 An. 1298; New Orleans & Fort Jackson Railroad Co. vs. Rabasse, 44 An. 178; Telegraph Cable Co. vs. Railroad Co., 43 An. 525; Railroad Co. vs. Dillard, 35 An. 1045.

Judgment affirmed.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 12,156.
    A. Lehman & Co. vs. Romanta T. Hart. Goodbier et als., Intervenors.
    The intervenor in a suit in which the plaintiff claims less than two thousand dollars, the intervenor’s demand also being under our appellate jurisdiction, has no appeal to this court.
    APPEAL from the Fourteenth Judicial District Court for the Parish of Iberville. Talbot, J.

      Hebert & Hebert for Collet, Louis Lozano for Lehman & Gogreve, Plaintiffs, Appellees.

      Edward N. Pugh and Paul Leche for Intervenors, Appellants.
    Submitted on briefs May 23, 1896.
    Opinion handed down June 22, 1896.
   The opinion of the court was delivered by

Miller, J.

This is an appeal from the judgment dismissing the intervention of the appellants attacking the judgment and attachments of alleged creditors of the defendant.

The petition of intervention referred to these suits alleged the plaintiffs were precluded from instituting their proceedings by reason of an alleged respite theyhad granted the debtor; alleged also collusion with him to give their creditors a fraudulent preference, prayed that the respite be set aside and that he be ordered to make a surrender of his property. The court sustained the exceptions of the plaintiffs, and we think it well to say, if we could take cognizance of the appeal the grounds of relief seem to be covered by our judgment in a previous phase of this controversy, in which intervenors occupied the same relation to the debtor and his creditors as that of the intervenors in this case, and who relied for relief on the same allegations we find in the petition of intervention in this case. 48 An. 660; State ex rel. Marchand vs. Judge.

But we have a motion to dismiss the appeal. The suits against the debtor Hart were not consolidated. The appeal was taken from the judgment in a suit in which the plaintiff claimed an amount below that required for an appeal to this court. The claims of each of the intervenors joined in the petition as well as the aggregate amount of their claims is less than two thousand dollars. In our view the motion to dismiss must be maintained. We have no brief from the appellants on the motion to dismiss and find no ground to sustain it.

It is therefore ordered that this appeal be dismissed.


author: Nicholls, C. J.

text:
    No. 12,103.
    State of Louisiana vs. Upsey Tibbs et al.
    A refusal to allow a peremptory challenge will not ayail a defendant when it is not claimed that in consequence of the judge’s ruling defendant had been compelled to accept an obnoxious juror. 38 An. 480.
    An exception to the charge of the judge, that it was calculated to injure the party accused, is entirely too general and sweeping.
    The judge properly refused to charge the jury on abstract questions of law.

      A PPEAL from the Nineteenth Judicial District Court for the Par' 1A. ish of Iberia. Voorhies, J.

      M. J. Cunningham,, Attorney General, R. F. Broussard, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      Todd & Todd for Defendants, Appellants.
    Argued and submitted May 28, 1898.
    Opinion handed down June 1, 1896.
    Rehearing refused June 30, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

Upsey Tibbs, Ike King and Almond Wilkerson were indicted for robbery, tried, found guilty and sentenced to three years’ imprisonment in the peniteniiary.

They have appea’ed, relying upon three bills of exception.

In the first bill it is stated that on the trial of the case, while the petit jury was being empanelled, the sheriff drew from the box a slip of paper with the name of A. G. Bernard upon it; that on calling this name and no one answering to it, it was found that one A. G. Barrow was in the court house and had been regularly selected by the jury commissioners, and being summoned on the venire for the week previous to the trial, A. G. Barrow answered to his name when the venire was called in court. That thereupon the judge presiding allowed A. G. Barrow to be sworn on his voir dire as competent to serve, contrary to the objections of defendant, and, that subsequently, Upsey Tibbs had to peremptorily challenge said A. G. Barrow; that said Tibbs subsequently exhausted his peremptory challenges before the completion of the. jury; that to said ruling admitting the said Barrow to be so called and sworn on his voir dire, defendants excepted and tendered their bill of exceptions to be signed.

The second bill states that on the trial defendants had offered two witnesses who had testified to their good character in the community, whereupon the judge charged the jury as follows on the point of character: “ Evidence of the character, that is to say of the reputar tion, the accused has in the community is always competent, and it often occurs that it proves to be a great benefit to him. It tends, under many important phases of a case, to create a doubt which but for such evidence would not have existed in favor of the. party charged with crime. Evidence of character should therefore be looked upon by the jury as part and parcel of the whole evidence submitted to their consideration. But however satisfactory or precise it may be it must not be allowed to destroy the tangible effect of direct evidence, or of the uncontradicted statement of witnesses, and still less must it outweigh in the scale of justice and do away with, or annul, any conclusive evidence of actual guilt. Evidence of character is entitled to the serious and honest consideration of the jury, not less but not more than any other legal evidence adduced on the trial. It is from that evidence, as well as from all other before them, that the jury are expected to form their final conclusions.” That defendants excepted to said charge, as it was calculated to do them injury, and they reserved a bill.

The third bill states that on trial of this cause, in which an affray between negroes and Italians was shown, and after the District Attorney in addressing the jury on the case spoke of the disturbance of what might he termed (since six persons were engaged in the transaction) as a riot, the following charge was asked by the defendants :

“ If several persons engage in a riot and an offence is committed by one of them, which offence is not in pursuance of the common object of the rioters, and foreign to the same, that each of the persons engaging in said riot should not by reason of their presence there be held guilty of such offense;” which charge was refused as not applicable to the facts of this case, because accused were charged with robbery, and not with creating a riot and disturbance. To which ruling defendants excepted and tendered their bill for signature.

In defendants’ brief, referring to the first bill of exceptions, it is said: This bill presents the question as to whether any one whose name is not served on the accused before trial can be forced upon the accused as a juror. The list of jurors served on the accused contained a name — A. G. Bernard] When the jury was empaneled A. G. Bernard was called, and, as the bill recites, no one answered to the name. There was one A. G. Barrow in the court house, and he was instructed to come forward as a juror. He was objected to, on the ground that there was no authority for calling him as a juror. The defendant Tibbs was finally compelled to challenge this juror peremptorily. Tibbs subsequently exhausted his peremptory challenges. We submit that the ruling allowing Barrow as a juror, and causing Tibbs the necessity of challenging him peremptorily, was without authority of law, and unfajr to the accused. ‘ The names of the jurors,’ says the law, ‘ must be drawn from the box.’ In this case it was not done.”

The bill is obscurely drawn. It is difficult to know from it the grounds of defendant’s complaint. They say that when Barrow was presented as a juror, Tibbs objected that “ there was no authority for calling him,” but they do not inform us either of the actual circumstances under which Barrow was drawn as a juror or the particular facts upon which they based their idea that there was no authority to call him as such, or of the grounds on which the State tendered him. We infer that it was claimed that the name “A. G. Bernard” on the jury list served upon the accused was a clerical error; that the real name upon it should have been “ A. G. Barrow” (that of the juror tendered), and that the variance in the name was held immaterial by the court, but we can not deal with bills of exceptions by reaching objections by inference. Assuming, however, as correct that the court should have at once ordered Barrow to stand aside and have not compelled Tibbs to peremptorily challenge him, we find no resulting injury, for it is not claimed that “in consequence of the judge’s ruling defendants had been compelled to accept an obnoxious juror.” State vs. Creech, 38 An. 480. Counsel of defendants complain greatly of that sentence of the judge’s charge in regard to the weight to be given to testimony as to the character of persons accused of crime,, in which he stated that evidence of good character, however satisfactory or precise, should not be allowed to destroy the tangible effect of direct evidence, or of the uncontradicted statement of witnesses. He says the effect of such instruction was to convey the idea to the jury that they were forced to accept as true uncontradicted statements of witnesses or, at all events, to give to such statements when weighed in the balance as against uncontradicted testimony of good character a controlling force.

It is true that uncontradicted statements of witnesses may be conceived of a character such as might justify a juror to disregard them or to give them little force, and that, therefore, this particular statement given to the jury might have been more guardedly stated for some special case, but we scarcely think that taking the instructions as a whole, the jury was misled. The jury was clearly told that evidence of character was entitled to the serious and honest . consideration of the jury — not less, but not more than any other legal evidence adduced on the trial. That it was from that evidence and all other before them that the jury are expected to form their final conclusions. “That proof of good character did not per se ‘ destroy ’ the other evidence in the case.” It is fair to assume that the instruction inserted in the bill was only part of the general charge, and that the jury was fully informed as to their power of full control in passing upon the credibility of witnesses and weight and force of all evidence before them, and construed the judge’s statement as he intended it should be construed, as being made subject to their plenary power of discriminating and weighing evidence. But if counsel thought the instruction was one liable to be misconstrued, they should have called the court’s attention to what they conceived or claimed to have been wrong, and asked for a correction, or for a modification, and not contented themselves with simply excepting that the charge was “ calculated to do their clients an injury.” It is almost impossible for a judge on the trial of a case to gange every word he uses, and it is not only justice to him, but it is, we think, a reasonable requirement at the hands of counsel in aid of the proper administration of justice that they should not hold in reserve as objections, to be used after conviction, and on appeal, matters within their power of correction at the time of their happening. An exception to a charge that it was calculated to injure the party accused is entirely too general and sweeping to be held as an attempted correction made at the time.

We are of the opinion that the District Court correctly refused to give the special charge, the refusal to give which is made the subject of complaint in the third bill. The matter, as it appears in the record, was simply a request of the District Judge to charge the jury upon an abstract proposition of law. There is no statement in the bill from which it would appear that there was anything in the testimony in the case or of the facts Of tbe case with which this requested charge had any legal connection or to which it could be legally made applicable. We have no reason to suppose that either one or all of the defendants were present at a riot between negroes and Italians, and that their mere presence at the same had been made the basis for their prosecution for a robbery which occurred during the riot, or that their conviction rests upon such a condition of evidence or fact. Defendants did not ask the court to charge the jury that if they found such and such facts established by the evidence (which facts we will assume would, if established, make the requested charge a pertinent or relevant one) that then the charge asked would be the law governing the case, but took up an extract from some decision or author in which certain facts were assumed and the law as resulting from that state of facts announced and sought to have the announcement so made declared a correct exposition of law. The court was fully justified in refusing to give the charge if it had no legal bearing on the case, particularly in the form it was asked. The court declares that it had-no bearing on the case, and defendants have neither made nor attempted to make a showing to the contrary. Finding no grounds upon which a setting aside of the verdict of the jury and an avoidance of the judgment based thereon could be asked,' it is ordered that the judgment appealed from be affirmed.


text:
    No. 12,107.
    State of Louisiana vs. J. G. Calkins.
    The Supreme Court will not consider bills of exception unless signed by the judge before whom the case was tried.
    When counsel for defendant present bills of exception to the judge for his signature and the judge refuses, it is the duty of counsel to except to such refusal. Unless this is done, this court will decline to review tbé action of the judge in refusing his signature.
    A PPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      M. J. Cunningham,, Attorney General, Charles A. Butler, District Attorney, and John J. Finney, Assistant District Attorney, for Plaintiff, Appellee.

      M. Marks for Defendant, Appellant.

      Argued and submitted April 25, 1896.
    Opinion handed down May 4, 1896.
    Rehearing refused June 29, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant appeals from the sentence of the District Oourt (based upon the verdict of the jury) to suffer imprisonment at hard labor in the penitentiary for the term of eight months. It appears from the note of evidence found in the record that during the trial objections were made by the accused to questions propounded to different witnesses, which were overruled; that upon cross-examination of certain witnesses questious propounded by the defendant were not permitted to be asked by reason of objections urged by the State, and that to these rulings defendant “excepted and reserved the right to file a bill of exceptions;” also, that the defendant having gone on the stand as witness in his own behalf, the State, during cross-examination, propounded questions to him and proposed to offer in evidence certain letters; that defendant objected; whereupon the court ruled three of said letters admissible; that to this ruling counsel for defendant “ excepted, and with consent reserved the right to file a bill of exceptions;” and that the letters were read to the jury.

We find copies of these letters in the transcript; also the testimony of several witnesses taken on the trial.

Defendant, having been found guilty, moved for a new trial on the grounds stated. This motion was formally abandoned and his counsel asked that sentence be pronounced. He was accordingly sentenced on the 5th of March, 1896. On the 10th of March defendant moved for an appeal, and at the same time offered and filed for the signature of the judge three papers purporting to be bills of exception reserved during the trial. The court refused to sign the bills, assigning the following as its reasons:

“Rule XV of the Criminal District Oourt, adopted January 2, 1894, as shown by the minutes of that date, provides: All bills of exception must be presented to this court for signature before the filing of a motion for a new trial or before sentence.’ The rules of the court are printed in large type and placed at the bar of the court in a conspicuous place, coavenienrly subject to the inspection of all attorneys practising in this court, and there is no reason why any lawyer should plead ignorance of them. The verdict was rendered January 20,1896; amotion for á new trial was filed January 27, 1896, and on February 4 following was abandoned, and counsel for defendant asking for sentence and pleading for leniency on behalf of his client. The matter was taken under advisement and the prisoner sentenced March 6, 1896. There was, therefore, ample time to prepare bills and submit them to the court for its signature, and no excuse for any negligence in the matter.” The court ordered the appeal. No exception was taken to this action of the court. We find copied in the record, but unsigned, the bills thus tendered for signature. Matters come before us in that shape. Counsel for defendant urges upon us that his failure to tender the bills sooner than he did was because of the failure of the stenographer to file in court the testimony which had been taken. He says the delay can not be laid at his door. We do not see the necessity of having had such testimony filed in order to frame the bills. Counsel must have known substantially what it was and he could have recited it in his bills. He knew precisely his grounds of objection and those of the State, also the reasons assigned by the court for its rulings. If counsel had desired, for greater certainty, to annex to the bills the copy of the testimony taken, he could have stated in the bill that it would have been so annexed (when filed) as part of the bill. The court would, doubtless, have consented that this should be done had counsel asked such consent. The testimony, when filed, could by proper verification, with consent of the court, have been identified with the bill. Counsel not only did nothing of the kind, but he did not except to tho judge’s refusal, and no attempt has been made by mandamus to test the propriety of his action. We have, on this appeal, to take the record as we find it. So taking it there are no bills of exception before us and nothing upon which we can predicate error.

The judgment must be and it is hereby affirmed.


text:
    No. 12,049.
    Augostino Corso & Co. vs. New Orleans & Northeastern Railroad Company.
    It would be an extreme ease wliicli would justify a refusal by a consignee to receive freight when notified.
    It is the duty of the consignee to receive the consignment and test the liability of the carrier for damages, if any had been sustained.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Farrar, Lealce & Lemle for Plaintiffs, Appellants.

      Harry H. Hall for Defendants, Appellees.

      Denigre, Blair & Denigre for Baltimore & Ohio Railroad Company and Baltimore, Ohio & Southwestern Railroad Company, Defendants, Appellees.
    Argued and submitted March 25, 1896.
    Opinion handed down June 15, 1896.
    Rehearing refused June 25, 1896.
    Action is brought against the Northeastern Railroad Company, the Alabama Great Southern Railroad Company, the Cincinnati, New Orleans & Pacific Railway, the Baltimore & Ohio Railroad Company, and the Baltimore, Ohio & Southwestern Railroad Company for the sum of five thousand two hundred and forty-two dollars and sixty cents, with legal interest.
    Plaintiff’s claim is based upon two shipments of fruit from New Orleans to Pittsburg — one made on May 30, 1892, the other on June 27, 1892, under bills of lading identical in the two cases. In respect to the shipment of 30th of May, 1892, plaintiffs say, that on that day they shipped from New Orleans by the New Orleans & Northeastern Railroad Company, a carrier by railway, on New Orleans & Northeastern’s fruit car No. 15,159 (said car being built specially for the transportation of fruit), with proper ventilators and gratings, two hundred and ninety-seven boxes of choice lemons and sixty-eight boxes of choice oranges (three hundred and sixty-five boxes in all), consigned to Augustino Oorso, of Pittsburg, at the through rate made by said carrier, with its connecting lines to destination, of fifty cents per hundred-weight; that the said Northeastern Railroad Company, in and by its undertaking in the receipt of said shipment of oranges and lemons, then and there agreed and promised for itself and for each of its connecting lines of railway to properly carry forward, transport and deliver in fruit ears to the consignee at destination, the said shipment of oranges and lemons, in good order, with reasonable care commensurate with the value and perishable,nature of said shipment at the rate of freight charged thereon, but that in violation of their undertaking, and owing to the fault,-negligence and misconduct of each of said carriers, the said shipment of oranges and lemons reached Pitts-burg on or about June 5, 1892, and was sold by the Baltimore & Ohio Railroad Company, the same being so badly damaged and' decayed that the consignee refused to receive the same; that it was at the time the said shipment was made and it still is the legal duty and uniform custom of all common carriers by railway, and particularly the New Orleans & Northeastern Railroad Company, and each of said railroad companies, made defendants in the case, connecting carriers, forming together a through line from New Orleans to Pittsburg, to ship fruit in regular fruit cars, with ventilators and gratings, and to carry through, from point of shipment to destination, all shipments of perishable fruits in the same car or ears in which the same was loaded, in order to avoid the handling of the same, and that plaintiffs, when said shipment was made, were led to believe from the custom prevailing among common carriers, and of the defendant companies in this suit, and from the representations of the agent of said New Orleans & Northeastern Railroad Company, that the said fruit ear No. 15,159 with ventilators and gratings, loaded with their fruit, would go through to destination; but that owing to the carelessness. and negligence of each of said defendant companies, and in violation of their duty to petitioners, said fruit while in transit was, at some point unknown to plaintiffs between New Orleans and Pittsburg, carelessly and roughly transferred from said fruit car to an ordinary box car, and reached Pitts-burg in a broken, damaged and decayed condition, as before stated; that the transfer from said fruit car with ventilators and gratings into said closed box car caused the said fruit to become mature and overripe, and to decay and become worthless, and that by the carelessness and rough handling of said oranges and lemons from said fruit car into the box car the boxes in which said fruit was packed were broken and smashed, and the contents thereof scattered, mashed, damaged and decayed as aforesaid, the same having become a total loss.
    The allegations in reference to the second shipment on June 27, 1892, are, that on that day they shipped by the Northeastern Railroad Company from New Orleans to Pittsburg, in Alabama Great Southern fruit cars Nos. 9490 and 9224 (said fruit cars being specially built for the transportation of fruit with ventilators and gratings), seven hundred and fifty boxes of choice lemons and seventy-one half boxes of choice oranges consigned to Augustino Corso at Pittsburg; that in violation of their undertaking (which was set. forth in the same terms as in regard to« the first shipment), and owing to the fault, negligence and misconduct of the defendant companies, the said shipment of oranges and lemons was delivered in Pittsburg on or about July 14, 1892, in such a damaged or decayed condition as to make the same a total loss. They averred that they received the fruit at destination and paid the freight under protest. Plaintiffs make the same averments as to the custom relative to shipments of fruit which they did in relation to the first shipment, their reliance upon the custom and as to their reliance upon the representations of the agent of the Northeastern Railroad, that the fruit would go to destination in the cars Nos. 9498 and 9224, in which they were loaded. They charge also, as they didin the matter of the first shipment, that owing to the carelessness and negligence of each of said defendant companies, and in violation of their duty, the fruit while in transit to destination was, at some point unknown- to plaintiffs, carelessly and roughly trans - ferred from said fruit cars to two ordinary closed box cars of the Louisville & Nashville Railroad Company, and said fruit was deliv- . ered in Pittsburg by the Baltimore & Ohio Railroad Company, in said box cars, in a broken, damaged and decayed condition; that transfer from fruit cars, with ventilators and gratings, into closed box cars, caused the said fruit to become mature and overripe and so to decay and become worthless, and that by the carelessness and rough handling of said fruit from said fruit cars into said box cars,' the boxes in which said fruit was packed were broken and smashed and the contents thereof scattered, smashed, damaged and decayed, as aforesaid.
    The Baltimore & Ohio Railroad Company and the Baltimore, Ohio & Southwestern Railroad Company answered, and averred that if the damages to the fruit, alleged in the petition, were sustained, which they denied, such damages were not due to any fault or negligence or dereliction on the part of either or both of them, or any of their officers or employees. They claimed the benefit of each and every stipulation contained in the bills of lading.
    The other defendants admitted that by bills of lading of May 10 and June 27, 1892, the New Orleans & Northeastern Railroad Company received three hundred and sixty-five boxes of lemons and seven hundred and fifty boxes of lemons and seventy-one half boxes of lemons, as would appear by said bills of lading, for transportation over its lines and over the lines of connecting carriers for delivery in Pittsburg. They averred that said fruit thus received by them was safely and properly, and without other loss than was due to inherent defects of said fruit, conveyed by them and delivered in due time and without unnecessary delay in Cincinnati, Ohio, to the Baltimore, Ohio & Southwestern Railroad Company, a connecting line over which these respondents had no control; that no change was made by respondents, while said fruit was on their lines of the cars in which it was being carried, but that said cars containing said fruit as packed in New Orleans were by them safely and well, and under all the conditions of the bills of lading, delivered to said connecting lines of these respondents; that if any change was made or any damage or loss was occasioned thereby it was made and occasioned after said fruit cars had been delivered to said Baltimore, Ohio & Southwestern Railroad Company. They specially averred that as. appeared by the bills of lading it specially agreed and contracted between the shippers of the fruit and respondents: ‘ ‘ That articles agreed to be transported to points beyond the line of their company may be delivered to connecting lines for transportation to their destination, and that upon such delivery the responsibility of this company shall cease, except as to the guarantee of the rates to be charged thereon,” That by this express limitation of the liability and by reason of the facts as set out they were in no wise responsible for such loss or damage as complained of in the petition.
    The court rendered judgment in favor of the defendants, and plain - iffs appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

The record shows shipments of fruit from Ne ^ Orleans to Pittsburg, Pa., at the dates mentioned in the petition. The bills of lading were issued from the office of the Northeastern Railroad Company. They acknowledge receipt by that company from the shipper in apparent good order of the packages mentioned therein (contents unknown), to be transported and delivered in like good order to their place of destination, subject to conditions noted in the bills. The conditions were:

1. That the freight and charges thereon shall be paid by the consignee upon the delivery of the same in lots, or parts of lots, and within twenty-four hours after their arrival at their destination.
2. That articles agreed to be transported beyond the lines of the company may be delivered to connecting lines for transportation, and that upon such delivery the responsibility of this company shall cease, except as to guarantee of the rates of freight to be charged thereon.
“ 3. That this company and connecting lines shall not be liable for any breakage of glass or leakage of liquids, or for loss or injury resulting from the perishable nature or inherent defects of said packages or their contents.
“ 4. That this company and connecting lines shall be responsible as warehousemen only and not as common carriers, for the safety of said packages and their contents, while in the depot after arrival at their terminal stations.
“ 5. Claims for loss or damage must be made at the time of delivery of the goods to the consignee.
“ 6. Double the rate in the bill of lading will be charged on all excess in weight over that given by shippers.”

Across the face of the bills of lading are stamped the words: “ Leakage,” Breakage,” Wastage,” “ Decay, Chafing and Wet. Owner’s Risk.”

The bill of lading for the first shipment called for three hundred .and sixty-five boxes of lemons, instead of two hundred and ninety-¡seven boxes of lemons and sixty-eight boxes of choice oranges.

The fruit was shipped in fruit ventilator cars, not in ice or refrigerator cars. There is no charge in the petition that the cars were in bad •order at the time of departure from New Orleans, or that any defect .in the same or in their appliances which developed during the trip to Cincinnati, was attributable to any fault of the company. The car a were seen by the shippers and accepted, and one of their witnesses stated they were good cars. It is quite probable they knew nothing beyond the fact of their general appearance, for the report of their inspection at Cincinnati shows them to have been old cars in general bad condition, particularly car No. 2924, which was one of the two cars in which the second shipment was made, which was found to have a wrong pair of wheels, two wrong oil boxes, broken centre plates and broken draft timber bolts. The draw bars in both of the cars were liable to pull out, breaking the train in two and causing an accident.

The New Orleans & Northeastern Railroad Company, the Alabama Great Southern Railroad Company, and the Cincinnati, New Orleans & Texas Pacific Railroad Company are roads south of Cincinnati. The other roads appear to be separate, distinct corporations. What their special business arrangements with the other roads were does not appear. They acted as connecting companies on the occasion of these shipments, and seem to have for some time previous frequently transferred red cars, loaded with fruit, from Cincinnati to Pittsburg, but one of the witnesses testified that the companies south of Cincinnati had no authority to make contracts with shippers at New Orleans, binding the Baltimore, Ohio & Southwestern Railroad Company and the Baltimore & Ohio Railroad Company to carry fruit between Cincinnati and Pittsburg in any particular kind of car.

The Baltimore, Ohio & Southwestern Railroad Company has occasionally, not regularly, special fruit cars at their command. The testimony shows a tacit understanding resulting from custom between the New Orleans & Northeastern Railroad Company and shippers- of fruit from New Orleans northward, that the fruit would go on to destination in the car in which it was shipped without transfer, but with the understanding also that transfer should be made when cars break down, if they can not be repaired so as to run through.

The different roads at Cincinnati have at that point a joint inspection bureau for the purpose of inspecting cars brought there for the purpose of determining whether their condition is such as to justify their going forward. Under the rules the car is delivered to the connecting road, and if found in bad condition, not repairable in twenty-four hours, its contents are transferred to another car, and the defective car is returned to the company from which received.

When the cars in question (those of both shipments') reached Oincinnati they were found to be in defective condition, needing repairs before they could go further. They were accordingly transferred to another track for repair. The nature of the repairs was such as to require a detention of several days.

This fact carried with it the necessity of transferring their contents to other cars. When the first shipment reached Oincinnati the Baltimore, Ohio & Southwestern Railroad Oo. (the company which received it at that point and transferred the same to the Baltimore & Ohio Railroad Company), having no “ fruit ventilator’ ’ car to which the transfer could be made, ran an ordinary box car on a track parallel to that on which the New Orleans car was standing, threw a plank or planks across to make connections between the cars, and transferred the boxes of fruit over to the box car. The doors of the box ear were left partly open and slatted for ventilation, and on this car and on the same evening the fruit was shipped forward.

The difference between an ordinary box car and a ventilated fruit car is that the former, when closed, has no ventilation, while a fruit car is provided with ventilators on the sides of the car near the ends and ventilators in the door. When the second shipment reached Oincinnati the fruit was removed in boxes from the fruit cars in which they were, to cars of similar make, and in the same manner as the first shipment had been transferred, and after being so transferred were forwarded on the same evening to Pitts-burg. No “ delay” occurred in either of the shipments from the transfer's made or at any time from the defective condition of the cars. The usual time taken for the delivery of fruit from Oincinnati to-Pittsburg is about forty-eight hours. The first shipment reached Pittsburg on the morning of June 5. The consignee was notified of its arrival between seven and eight o’clock on the same morning. He called for the goods on the same day, but, according to the testimony of the local freight agent of the Baltimore & Ohio Railroad Company at Pittsburg, when the car was opened he objected, claiming that the fruit had started in an ice car from New Orleans, and as it had been transferred en route, it was damaged; that the fact that such transfer had been made had damaged the fruit. He refused to receive the lemons, and would not have them until he had communicated with the shipper at New Orleans. He left the station. The agent called on him the day following, but was unable to get any further information from him, and was compelled to leave the matter as it stood. The consignee claimed that owing to the fact that the fruit had been transferred to an ordinary box car it was made more susceptible to decay. The consignee and several of his employees examined the fruit. He refused to receive it upon first inspection, and declined to have anything to do with it, or give any instructions as to its disposal, or to aid, in any way, to take care of the fruit. It was unloaded from the car to the platform on the second day after its .arrival (June 7) and put in safety in the warehouse. After the consignee’s refusal to accept the fruit the company was compelled to dispose of the same at a forced sale, to the best advantage possible, in order to make out of it as much as possible. The Pittsburg Produce Commission Company sold the lemons and obtained gross receipts amounting to five hundred and eleven dollars and seventy-five cents. The expenses, drayage and commission amounted to seventy-three dollars and thirty-eight cents, leaving a net balance, which was paid to the company, of four hundred and thirty-eight dollars and thirty-seven cents, from which it deducted the freight charges, one hundred and fifteen dollars and fifteen 'cents, leaving a balance of two hundred and eighty-three dollars and twenty-two cents, which the company deposited in bank. The original cost of this fruit at New Orleans was five hundred and ninety dollars and thirty cents. The condition of the fruit of this shipment at Cincinnati was not shown.

The second shipment reached Pittsburg July 3. Eppleheimer (the local freight agent, whose testimony, in regard to the first shipment, we have just quoted) testified that the consignee wa9 notified the same day between seven and eight o’clock in the morning. The same day the consignee called and claimed that the fruit had been transferred from ice cars to fruit cars, and was, consequently, damaged. The consignee finally, on the 5th of July, took away the fruit. He claims that he did so under an agreement between some of.the employees of the Baltimore & Ohio Railroad that he should be permitted to do so; sell it to the best advantage he could, and be paid for whatever loss should be shown to have been suffered by reason of the condition of the fruit when received, but this is positively denied by the defendant and is not established. The fruit was, however, received under protest. The consignees sold the fruit at different dates at private sale, sometimes by the box, sometimes by the dozen. They introduced testimony to show that a large part of it had to be thrown away when in their hands by reason of its decayed condition. The dates of sales and names of purchasers are not given. It is shown that a part of the fruit was in their hands a very considerable time after they received it. The amount received from the sales amounted to five hundred and ninety dollars and ninety cents under the testimony.

Plaintiffs after receiving the fruit wrote the following letter to the Baltimore & Ohio Railroad Company:

To B. & O. Freight Agent:
Dear Sir — We shipped from New Orleans two car loads of seven hundred and fifty-seven boxes of lemons and seventy-one half boxes of oranges. This fruit was shipped from New Orleans direct to Pittsburg in cars Nos. 9224 and 9889. In place of that we received the fruit in a bad condition, the fruit having suffered from being transferred to other cars; we having received them from cars 15,794 and 15,064. Therefore we now claim one dollar on each box. We have lost much more, but we will be satisfied to arrange it that way, because if fruit had been shipped as per agreement it would have come in good order, as moving it is what spoils it.
Augustino Corso & Co.

In the examination of this case our attention was first directed to the claim of the plaintiff as against the Baltimore, Ohio & Southwestern Railroad Company and the Baltimore & Ohio Railroad Company. We find no liability on the part of either one of those companies. Plaintiffs’ pleadings show that they did not expect of the companies connecting with the New Orleans & Northeastern Railroad Company any duties other than that of receiving at Cincinnati the cars in which the fruit was packed at New Orleans and of transporting the same on to destination.

Plaintiffs themselves made no direct contract with those companies in regard to these particular shipments and the terms and conditions under which these various companies did business, among themselves, are not shown. It is shown, however, that the New Orleans & Northeastern Railroad Company had no authority to make contracts on their behalf with shippers at New Orleans, binding them to carry fruit between Cincinnati and Pittsburg on any particular kind of car. We think that the companies beyond Cincinnati, in their dealing with the companies south of that city, looked generally to hauling the latter’s cars and not to furnishing any of their own. That if called on to furnish cars of their own, it would simply be in some exceptional case or cases where a transfer of the contents of the cars of other companies to those of their own would become necessary, in consequence of the defective condition of those in which they arrived at Cincinnati. Cincinnati is not an initial shipping point for fruit going North or East, and the companies leading out of that city to the East are not called on to provide themselves with, and keep on hand, what is known as fruit ventilator cars, to meet the possible contingency of an accident, creating a special call for cars of that description.

When, on its being ascertained at Cincinnati that the cars on which these shipments of fruit were made were in a condition such as not to admit of their being carried further, application was made to the Baltimore, Ohio & Southwestern Railroad Company to ship the fruit to Pittsburg, the latter company could do nothing more than express a willingness to do so with the means it had on hand. The other companies were free either to accept or decline shipping it on such cars as that particular company had. If they thought proper to accept, they could not, afterward, bring forward as a ground of complaint against the forwarding company that their cars should have been fruit and not box cars, and if the companies south of Cincinnati could not themselves do this, so neither could the shipper at New Orleans. If any liability resulted from the mere fact of a transfer of the fruit from the cars belonging to the Northeastern Railroad to cars belonging to the, Baltimore, Ohio & Southwestern Railroad Company, or the mere fact itself of a transfer from a fruit car to a box car, it would be a liability not of the Baltimore, Ohio & Southwestern Railroad Company, but of the Northeastern Railroad Company to the plaintiffs. As a- matter of course, the Baltimore, Ohio & Southwestern Railroad Company and the Baltimore & Ohio Railroad Company would be liable for any damage resulting from their improper handling of the fruit, or for any other legal cause after they received the same. We find no evidence of fault on their part. The fruit was properly handled; the first shipment was as well ventilated as it could be made to be in a box car; the second shipment was in ventilated cars; both shipments went, without delay, to Pittsburg, and were there tendered for delivery. If there was any deterioration of the fruit between Cincinnati and Pittsburg, during the short time required for transmittal from one of these points to the other, it was due to causes for which the Baltimore, Ohio & Southwestern Railroad Company and the Baltimore & Ohio Railroad Company, under the bills of lading, were not liable, viz.: the perishable character of the articles themselves under the influence of the summer heat.

The testimony shows that fruits are perishable articles, greatly affected by heat, and more or less injury to it from that cause, in summer, is likely to occur.

'We are of the opinoin that the judgment appealed from, as it concerns the Baltimore, Ohio & Southwestern Railroad Company and the Baltimore & Ohio Railroad Company, is correct, and it is hereby affirmed.

We have next to ascertain whether the claim against the other companies be well founded or not. The Alabama Great Southern Railroad Company and the Cincinnati, New Orleans & Pacific Company seem to have taken no part in the matter of these shipments, other than that of hauling the cars of the Northeastern Railroad Company over their respective roads. There is nothing in the record to raise even a suspicion of fault on their part. The question then becomes narrowed between the plaintiffs and the New Orleans & Northeastern Railroad Company.

The bad condition of the cars on which the fruit was shipped at New Orleans when they reached Oincinnati is established by the testimony offered by the New Orleans & Northeastern Railroad Company itself. That bad condition had no effect upon the length of time the fruit was upon the road, either between New Orleans and Cincinnati or New Orleans and Pittsburg, but did have the effect of causing a transfer of the boxes of fruit from the cars of the New Orleans & Northeastern Railroad Company to those of the Baltimore, Ohio & Southwestern Railroad Company at Cincinnati. We think there was no damage done by the handling of the fruit at that point. It seems to have been transferred with care and without injury. We see no reason to suppose that the transfer made of the boxes of fruit of the second shipment to the cars of the Baltimore, Ohio & Southwestern Railroad Company from those of the New Orleans & Northeastern Railroad Company had changed the condition of the fruit from that in which it would have reached Pittsburg had the change not been made. The cars of the two roads in this instance were identical, all of them being fruit ventilator cars. The testimony shows what would not seem to be matter very difficult of proof, that the lifting of a number of boxes of fruit from one ear and taking the same across a plank a distance of fifteen or twenty feet over to another car and there depositing them would not pro-■duee any damage, where no physical injury was done in making the change. We think that any loss sustained by the plaintiffs, on the second shipment, was due to the perishable character of the article shipped under under the influence of the summer heat.

We next examine the effect of the transfer at Cincinnati of the boxes of the first shipment from the fruit ventilator car of the Northeastern Railroad to the box car of the Baltimore, Ohio & Southwestern Railroad Company. We think the condition of the fruit of this, shipment, when it reached Pittsburg, was worse than some of defendants’ witnesses claim it to have been. We notice an item of four dollars in the bill of charges of the Pittsburg Produce Commission Company in the matter of the sale of that fruit for hauling re-' fuse to dump, which is significant. Meyers, the president of that ■company, says the bulk of the lemons were in good condition; some ■of them almost worthless; the oranges almost worthless; good ■sound stock would have brought from fifty to seventy-five cents a box more than that for which they actually sold. What number of boxes were sold, either of oranges or of lemons, or at what rate per box [.they were sold, does not appear. The condition, however, would be -a matter of no moment, unless it resulted from some fact making the Northeastern Railroad Company responsible for it. Defendant calls •our attention to the fact that the condition of the fruit which was •shipped through from New Orleans to Pittsburg in the ventilator ears was no better than that forwarded from Cincinnati in the box •car, but it is not safe to reason from one of these shipments to the ■other — the conditions might have been different in the two cases. ■The short time, however, which elapsed between the placing of the fruit in the box carat Cincinnati and the arrival of that car at Pitts-burg disinclines us to attribute its final condition exclusively to the fact of its having been shipped in such a car. It is true, it was not fully ventilated, but the doors were left partially open and were slatted. It is probablethe condition may have been made worse by that fact, but how much more so we could not say. We are inclined to think it would have reached Pittsburg in a damaged condition, to some extent, even if no transfer of the cars had been made, and it is to be noted that several days elapsed after the fruit reached Pittsburg before the boxes were placed in the hands of the Pittsburg Produce Commission Company for sale, by reason of the action of the consignee in declining to receive it. It was the duty of the consignee to have received it and tested the liability of the defendant for the damage, if any had been sustained, as the acceptance of the goods would not have affected that question. Shaw vs. South Carolina Railroad Company, 5 Richardson’s Law Rep. (South Carolina) 462.

It would be an extreme ease which would justify a refusal by consignee to receive freight when notified (N. O., Jackson & Great Northern Railroad vs. Tyson, 46 Mississippi, 729). Even if the defendant were liable to plaintiffs, .the New Orleans & Northeastern Railroad Company would not be so as claimed. Plaintiffs practically make it a forced purchaser of the fruit at highest market rate (as estimated by themselves) at Pittsburg, and this without deduction of freight or anything else.

The District Court was of the opinion that the plaintiffs had not made out a case for damages, with a reasonable degree of certainty. We are asked to say it erred in that respect. We do not think we are authorized to do so. Certainly not as to the second shipment.

The transfer of the fruit to another car at Cincinnati was permissible under the custom, on which plaintiffs rely, if the condition of the car in which it was did not justify its going further, unless defendants were charged with fault in respect to that very matter. As we have said no such charge is made in the present pleadings, and plaintiffs themselves accepted the cars offered.

We think the ends of justice will be best subserved by affirming the judgment as concerns the second shipment of fruit, reversing it as to the first shipment, and entering a judgment of non-suit on that, branch of the case.

It is ordered, adjudged and decreed that the judgment appealed from be amended by dismissing as of non-suit, Instead of rejecting finally, so much of plaintiffs’ demand as refers to the shipment of fruit made by them on the 30th of May, 1892, through the New Orleans & Northeastern Railroad Company, and that, as so amended,, the judgment appealed from be and the same is hereby affirmed; cost of appeal to be paid by appellee.


text:
    No. 12,114.
    The Police Jury of the Parish of Lafourche vs. The Police Jury of the Parish of Terrebonne.
    Thu reasoning of the court is no part of the decree, and when the decree is ambiguous or conflicting in its terms, consistently with the authority the law attributes to res judicata, the court may construe the decree so as to reconcilerepugnancy in its expressions and m the it effective.
    A PPEAL from the Eighteenth Judicial District Court for the Parish of Terrebonne. Caillouet, J.

      Olay Knobloeh, & Son for Plaintiff, Appellee.

      L. F. Suthon and J. O. Briant for Defendant, Appellant.
    Argued and submitted May 21, 1896.
    Opinion handed down June 1, 1896.
    Rehearing granted June 15, 1896.
    Argued and submitted on rehearing June 22, 1896.
    Opinion handed down June 25, 1896.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, the police jury of Lafourche, sought by this suit to enjoin the police jury of Terrebonne from collecting licenses of oyster fishermen pursuing their vocation within the limits of Lafourche, because east of a boundary claimed to be established as that of the parishes of Lafourche and Terrebonne by the judgment of this court, and the petition also claimed judgment for the amount of such licenses alleged to have been collected by the parish of Terrebonne. There was the exception of prematurity, which being overruled the defendant answered, insisting that the boundary of Lafourche and Terrebonne was not that relied on by plaintiff, controverting the interpretation of plaintiff of the judgment of this ■court in regard to the boundary of the parishes, claiming that the territory in respect to which the plaintiff asserted jurisdiction was within that of the defendant, the parish of Terrebonne, and the answer denied liability for the licenses collected. From the judgment ■of the lower court, maintaining the boundary asserted by Lafourche, ■enjoin'ng license collections by the authorities of Terrebonne east of that boundary within the limits of Laf urehe, and denying relief for the licenses claimed to have been illegally collected by the Terrebonne authorities, the defendant appeals.

The defendant, the parish of Terrebonne, strenuously insists that the territory within which Lafourche asserts jurisdiction is within the limits of Terrebonne. These parishes have had a previous contention on this subject reported in 34 An. 1230, Parish of Lafourche vs. Parish of Terrebonne. Created in 1822, the lines of Terrebonne were attempted to be adjusted in 1850 by the Act No. 97 of that year. The decision in 34 An. seems to have been ineffective for ending contention, and after fifteen 3 ears since its rendition the two parishes now confront each other on this boundary question, revived owing to their conflicting pretensions to collect the oyster bed revenues under the legislation of 1892. The contention is now confined to the lower portion of the eastern boundary of Terrebonne, Which is thus defined in the acts: from the middle of the line drawn from the lower boundary of Ballot’s plantation to the-lower side of Lacoupe of Bayou Bceuf, thence on a line parallel with the Lafourche to within eighty arpents of the Bayou Terrebonne, thence winding around the settlement of the bayou to a distance of forty arpents from Bayou Lafourche, to be continued until a distance of eighty arpents from the Lafourche can be effected without encountering the limits of the lands on the Terrebonne; thence still at a distance of eighty arpents from the Lafourche, on a line parallel with that bayou to the Bayou Blue Water, the right bank of which to the sea shall be the eastern boundary. In the previous litigation one contention was as to the winding line, and the court determined it continued until a point eighty arpents from the Lafourche can be reached without encountering the lands on the Terrebonne. 84 An. 1232, 1234. The decision, it is claimed, is res judicata of the present controversy as to the bayou, with which the eightyarpent line connects. The discussion in that case, in part directed to the extent of the winding line, when the opinion came to deal with the prolongation of that line it was made to connect with the Bayou Chene. That connection, we think, is. demonstrated to be impossible. The Chene is not mentioned in either legislative act of 1812 or 1850, which of course were to be the guides of the court. The court observed that extracts, from the American State papers of confirmations of lands on the Bayou Blue Water led to the conclusion that the Chene was the eastern boundary. The conclusion of the court in its opinion is at variance with the statutory boundary and irreconcilable with the line to be drawn and the location of the Chene. The previous decision determining the end of the winding line, nothing remained but the extension of that line parallel with the Lafourche and eighty arpenta from it, until the Blue Water was reached. Yet the court, in its opinion, assumes that Bayou Chene was to be reached by the prolonged line. The testimony and the maps show that the prolonged line strikes the Blue Water and not the Chene. Bayou Blue or Bleu extends from the west of the parish until it loses itself near the Lafourche on the east, but before reaching the Lafourche the Blue-unites itself with the Bayou Blue Water, which pursues its way to. the sea. The eighty-arpent line begins above both bayous, and must strike the Bayou Blue Water, or, as the testimony shows, does, strike the point where that bayou unites with the Blue. Bayou Chene or Du Ohien is south of Bayou Blue, west of the Blue Water, pursues its course to the sea beyond the reach of any line parallel with the Lafourche in all of its course east of Bayou Blue, and. still further east of the Chene. The Chene and the Blue Water are totally distinct and not connected. From the earliest and all times, they have been distinguished. No one could find the Bayou Blue-Water, otherwise called the Chene, mentioned in the opinion, but each are well known. Bayou Blue Water coincides with the extension of the eighty-arpent line called for by the legislative acts, and gives, the parish a definite boundary. ' Bayou Du Ohien practically gives the parish no boundary, because disconnected with that line. If, therefore, the reasoning of the court, in reference to Bayou Ohien, leads, to an impossible result, if that expression may be permitted, it seems, to us it must be discarded.

The reasoning forms no part of the decree. Pepper vs. Dunlap, 5 An. 200; Keane vs. Fisher, 10 An. 261. It may be claimed that the reasoning and the decree coincide. The decree is that Bayou. Blue Water, otherwise called the Du Ohene, following its course to the sea is the boundary. The decree contemplates one continuous bayou coinciding with the eighty-arpent line. It can not apply to the Du Ohene, because it is not and can not be connected with the ■eighty-arpent line, nor part of or connected, in any way, with the Bayou Blue Water. Besides, Blue Water is not and never was known as Bayou Du Ohene. Construing this decree as requiring one continuous bayou extending to the sea, connected with the eightyarpent line, called the Bayou Blue Water, we must hold that to be the boundary, and disregard the additional name the court applies by the expression “ otherwise called Du Chien,” entirely distinct from the Bayou Blue Water and utterly repugnant to the boundary, In other respects fixed by the decree itself.

It is therefore ordered, adjudged and decreed that the judgment •of the lower court be avoided and reversed, and it is now adjudged and decreed that from the point where the line winding round the settlements on Bayou Terrebonne reaches a distance of eighty arpents from the Bayou Lafourche without encountering the limits of the land on the Terrebonne, fixed in the decree of this court in the suit of these parties, rendered on the tenth day of Apiil, 1882, that the eastern boundary of the parish of Terrebonne is hereby decreed to be a line parallel with the Bayou Lafourche, still, at a distance of eighty arpents from it to the Bayou Blue Water, following its right bank to the sea, and that the oyster beds west of that line be decreed to be part of said pnrish of Terrebonne, and that the decree of the lower court, in respect to the money demand of the parish of Lafourche, be affirmed, the plaintiff, appellee, to pay costs.

On Application for Rehearing.

In view of the importance of this case and the aid to a correct decision it is urged the court will derive from additional testimony and reargument, it is ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed; that the former judgment of this court be set aside, and it is further ordered and decreed that this case be and it is hereby remanded to the lower court for another trial.


text:
    No. 12,127.
    Henry B. Hewes et als. vs. John P. Baxter.
    ‘The executor and tutor of the minor heirs of the testator who takes charge of property of a partnership of which the deceased was a member, the other partners giving the property no attention, is not to be deemed an inter-meddler, but however his control of the property may be regarded, he acquits himself of all responsibility by proper care of the property and its faithful application in discharging the partnership liabilities. Civil Code, Arts. 2295, 2299.
    While the exercise of the right of suffrage in this State has its influence in solving the question of domicile of a party, it is not conclusive, and in the determination of such question the nature of the domicile the party is supposed to have here, the purpose that brought him to the State, the time he spends here and elsewhere, where his wife and family are, his declarations and conduct, must all be considered in ascertaining his domicile. Succession of Franklin, 7 An. 395.
    A PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia Voorhies, J.

      Foster & Broussard and Beattie & Beattie for Plaintiffs, Appellants.

      Philip H. Mentz and Walter J. Burke for Defendants, Appellees.
    Argued and submitted June 5, 1896.
    Opinion handed down June 22, 1896.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs appeal from the judgment dismissing their suit and dissolving their attachment.

It seems that the firm of Milmo, Stokoe & Go., composed of B. Milmo, Mrs. Stokoe and Henry B. Hewes,was dissolved by the death of Milmo. Another member, Mrs. Stokoe, died. Baxter, tbe defendant, became executor of Milmo and tutor of his minor children, and the heirs of Mrs. Stokoe were represented by their uncle, J. W. Stokoe. There was a suit for the partition of the partnership property saeeeeded by another, for the settlement of the partnership, in whieh-a liquidator was appointed. Then came an agreement intended to end litigation, dispensing with the liquidator and proposing that the partnership debts outstanding should be collected, its other assets realized and its liabilities discharged by Baxter, the executor of Milmo, and tutor of his children, Stokoe, as tutor of his children, and Hewes. Baxter represented the largest interest, ten - eighteenths; of the remaining interest the Stokoe heirs owned three-eighteenths and Hewes five-eighteenths. The attempt at liquidation by the representatives of the interest of the heirs and Hewes utterly failed. They disagreed about selling property, employing laborers, paying debts and other details of the business. Owing to these dissensions between the parties, the liquidation was obstructed, the partnership property exposed to seizure by creditors and the interest of all concerned menaced. Stokoe and Hewes ceased to exert any control. Of course, they had their complaints of Baxter, and the record shows that he imputes to them neglect and violations of their duties as liquidators. It is not requisite to pass any judgment as to-those differences, but the result was that Stokoe and Hewes seem to have abandoned all participation in the settlement of the partnership, and the care and disposition of its property; the collections from its debtors and settlements of its liabilities were assumed by the defendant, aided by his nephew, one of the heirs of the deceased partner, Milmo. This administration of the defendant lasting some-months resulted in realizing the partnership property and paying its. debts.

This suit brought by the heirs of Milmo, Hewes and Stokoe, representing the heirs of the other partner, Mrs. Stokoe, seeks to hold Baxter, the defendant, as an intermeddler with the partnership, property. One of the plaintiffs, Baxter Milmo, suing individually as heir of his father, the member of the firm, and as tutor of the minor heirs, participated with the defendant in the administration charged in the petition to have been intermeddling or an illegal assumption of control. The defendant, as executor or tutor, rendered the account we find in the record. It is our inference that the account is that filed in the succession of Milmo. Neither briefs nor the record, unless our examination has overlooked it, give us information of the rendition of this account. W'e gather from the-record that books were kept during the defendant’s gestión, the. entries in large part made by the nephew, one of the plaintiffs, and we presume there was thus furnished the basis for the account, the-copy of the debit side of which is annexed and made part of the petition. These debits are the amounts derived by the defendant.during his administration from the sales of the partnership property and collection of its assets, and judgment for the entire amount of these debits is demanded on the allegations in substance, of defendant’s wrongful intermeddling with the assets and property from which were derived the amount for which he is sued.

The answer in substance is that, as the executor of Milmo and tutor of his children, the defendant was constrained to give attention to the property of the partnership of Milmo, Stokoe & Co.; avers the agreement under which he, with Hewes and Stokoe as tutor, were to take charge, and the dissensions and other circumstances which led to the control exerted by defendant and his nephew, one of the plaintiffs. The answer admits the accounts attached to the petition, but avers that all that was realized by defendant was faithfully applied to the debts and liabilities of the partnership and payments to the Milmo heirs, and that the account on the books then under plaintiffs’ control will show that application.

The lower court, after hearing the testimony, making a huge record, dismissed the plaintiffs’ demand, dissolved the attachment, and this appeal by plaintiffs followed.

We do not appreciate that Baxter, under the circumstances, can be deemed an intermeddler. He was the executor and tutor of the minor children of Milmo, representing as such more than one-half interest in the property. By the agreement he was entitled to participate in the liquidation. The testimony does not impress us it was his fault that Hewes and Stokoe withdrew from the liquidation. If they had cause of complaint of the defendant, they might have sought the court to have some one put in charge. Instead, they seem to have abandoned all charge. It is in proof that Stokoe refused to sign cheeks to pay debts, and Hewes, th ugh not as pronounced in opposition to the joint liquidation agreed upon, concurred to some extent, at least, in the course of Stokoe.- At any'rate Baxter with the large interest in his hands found himself under the necessity of abandoning control or provoking anew the appointment of a liquidator with useless expense, all had agreed to avoid, or’ continuing his attention to the business. We can not perceive that-this determination in itself is to fasten on him a' liability. The Oode recognizes the liability arising on the'part of one who takes on himself the management of another business. It can hardly be said in this case that Baxter “of his own accord,” as the Code puts it, undertook this business. In some sense, at least, it was imposed on him by his responsibility as executor and tutor. The agreement accorded with that responsibility, and although Hewes and Stokoe declined continuing the liquidation, it did not leave Baxter in the position of an intruder. Civil Code, Article 2295, et seq. In this point of view it remains to inquire into his administration, whether marked by the care and prudence the Code exacts. Even if he could be deemed an intermeddier, if he has faithfully administered, there can be no liability. Still .less can he be made subject to a liability because acting for the interest of all with an agency that might be deemed implied by full knowledge of his course on the part of Hewes and Stokoe, with no effort on the part of either to take control from him or any action on their part evincing any concern in the business.

On the threshold of the examination of defendant’s receipts and expenditures while in charge of the partnership property we are met by the objection to the books in which the defendant kept his account, the entries in which were in large part made by his nephew.

We gather from the record the'credit side of the account is from the books. In the testimony the direct and cross-examination refers to the books. We think the lower court properly overruled the objection, and defendant, as a witness, testified to the items of the account from his own knowledge.

We do not find in the petition any allegations of sacrifice or loss of assets. The plaintiffs’ brief alludes to the deposit of the money of the estate in a Milwaukee bank. If this refers to the funds in the defendant’s hands, as executor, the deposit might be the subject of investigation in the succession proceedings, and we perceive his account was filed as executor, and the controversy appears to have been confined to specific items. But unless this deposit was followed by loss, it is of no pertinence in this discussion. The substantial charge in the petition is that defendant in the course of his alleged intermeddling collected certain amounts, and has failed to account. The collections are admitted. We are not, except to a very limited extent, aided by plaintiffs’ brief, with any specifications of the collections not accounted for, and in the brief there is a discussion with reference to a charge by defendant for salary, another for sums paid for support of the Milmo children, which appears in his account as executor, and the brief claims besides, under any aspect of the case, judgment for the difference between debits and credits. One of the plaintiffs, Hewes, in his testimony, referring to the books and to the credit side of the account, states his ignorance as to many of the charges, admits some few, and to those thus admitted itis claimed the defendants’ credit should be restricted. It was natural, in our view, the witness, giving but little attention to the business, should not have the knowledge of every particular item, but it is not easy to appreciate that if defendants’ account of over four thousand-dollars of collections and expenditures was not in the main correct, that the witness would not have been able to make that statement. But we perceive, in the course of his examination, being asked to point out one charge not necessary for the concern, answers, did not see any were necessary, because under the agreement no money was to be touched. This is to be understood, we think, not as a denial of the correctness of the charges, but defendants’ right to use the firm’s funds after the disagreement. The answer, therefore, does not meet the issue made by defendant that every dollar he applied was for the firm’s debts. This witness, pressed further to point out any item to the firm’s detriment, indicates two or three small items; postofflce box rent and small expenses not amounting to more than a few dollars. On the other hand, we have the testimony of the defendant extending to the entire account given with a precision and detail that commends it to our acceptance. With plaintiffs’ brief specially directed only to the charges to which we have alluded, we have endeavored to give attention to all the testimony in this record of two hundred pages, and we reach the conclusion that the defendant has accounted for the funds he received, the conclusion also of our learned brother of the District Oourt. This conclusion, of course, reserves the charges specifically disputed by plaintiffs.

There were charges for defendant’s salary previous to what is termed the agreement. This was recognized by that agreement. The charge for salary since the agreement was at the same rate. In our appreciation the defendant’s services were in the interest of the partnership. They tended to preserve its property. We think, under the circumstances, the charge for salary could not be subject of reasonable objection. If his commissions as executor are to be considered, they were paid by the succession, not by Hewes and the Stokoe heirs. They represent' but eight-eighteenths, and the proportion of the amount charged for salary to be borne by them is small considering the benefit the partnership property derived from defendant’s services. As the sums in the account paid for the support of the Milmo heirs were in excess of the interest of then-father in the partnership property, we think, as the suit is against the executor of Milmo, any question as to these sums should be referred to an adjustment of the partnership accounts. The defendant, as executor, is entitled to retain any amount to which the deceased Milmo is entitled.

The account exhibits assets realized by defendant amounting to four thousand six hundred and seventy-five dollars and seventy-five cents and expenditures amounting to four thousand four hundred and forty-four dollars and one cent. This account, sued on by plaintiffs, admitted by defendant, and to which ail the testimony has been directed, is the test of his liability. While it is maintained by the lower court there is no proof of any debt and the same proposition is urged in defendant’s brief, still there is the excess of collections over expenditures of two hundred and thirty-four dollars and seventy-four cents, for which, in our opinion, there must be judgment in favor of the plaintiff Hewes and the representatives of the Stokoe heirs to the extent of their proportions of interest in the partnership. The defendant still the executor of Milmo is entitled to retain the Milmo interest in the fund in his hands, for which he is accountable as executor.

On the right to attach we find that defendant came here about six years since, and, as we understand the record, the business in which he was engaged has ended. He is not a housekeeper. His wife left the State aboun two years ago, the climate not agreeing with her, has since lived in Michigan, defendant’s original domicile, and where we think, under the testimony, he spends his time, with occasional visits to Iberia, in which the partnership was located and where the judicial proceedings connected with the partnership were conducted. When visiting Iberia on these visits we presume defendant lives at a hotel. It is in proof he was registered at a hotel as of Michigan. This, he claims was a mistake, but in his testimony he speaks of Manistee in that State as his home. The votes he cast here are entitled to weight, as is his vote for school directors in Michigan, but neither votes there or here are conclusive. Succession of Franklin, 7 An. 395. The facts,that he left Louisiana, though temporarily, it is claimed; that his wife has been for two years continuously in Michigan; the time he spends there; the end of the business that brought him to Louisiana; that he had no dwelling here, accompanied with his own declaration Michigan was his home, all led us to the conclusion that he was a non-resident, and the attachment must be maintained.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is now ordered and decreed that the plaintiffs, H. B. Hewes, and John W. Stokoe, tutor of the minors, Neil and Mary Stokoe, do have and recover from the defendant, John P. Baxter, the sum of one hundred and four dollars and thirty-two cents ($104.32) with legal interest, being eight-eighteenths of the balance in his hands, with privilege on the property attached, with costs.


author: Watkins, J.

text:
    No. 12,198.
    State of Louisiana vs. Clarence Parham.
    A declaration made by a person in articulo mortis, reduced to writing by his attending physician, signed by the declarant, and his signature attested by a justice of the peace, is admissible in evidence as a dying declaration, the only objection being that having been thus written, it was notin proper form, and, therefore, incompetent and inadmissible as secondary and hearsay testimony.
    A PPEAL from the Twentieth Judicial District Court for the Parish of Ascension. Guión, J.

      M. J. Cunningham,-, Attorney General, and O. D. Billon, District Attorney, for Plaintiff, Appellee.

      Edward N. Pugh for Defendant, Appellant.
    Submitted on briefs June 6, 1896.
    Opinion handed down June 15, 1896.
    Rehearing refused June 25, 1896.
   The opinion of the court was delivered by

Watkins, J.

The defendant, having been indicted for the murder of John Clayton, was tried and convicted of manslaughter, and sentenced to imprisonment in the penitentiary, at hard labor, for a period of six years, and.from that verdict and sentence he prosecutes this appeal.

The only question which is presented for decision is the admissibility vel non of an alleged dying declaration of the deceased which was offered in evidence at the trial. The record discloses that during the progress of the trial there was offered on the part of the State what purported to be the dying declaration of the deceased, to the introduction of which the defendant’s counsel objected on the sole ground that the paper presented as a dying declaration was not one in point of fact, because it had not been written by a person authorized to take dying declarations; and said objection having been overruled and the paper admitted in evidence, he reserved a bill of exceptions to the ruling of the court.

The bill of exceptions states that defendant’s counsel objected to the introduction in evidence of a paper purporting to be a dying declaration “ on the ground that said paper, on its face, was illegal and inadmissible, the body being in one handwriting and the signature of the justice of the peace in another — said instrument showing that the body of the instrument was'in the handwriting of a third person,” etc. That the instrument of writing having been written by a third person, and only signed by a justice of the peace authenticating the signature of the deceased, it was mere hearsay and secondary evidence, and for that reason, should not go to the jury.

That prior to the introduction of that paper in evidence, Thomas H. Stuckey was sworn as a witness and testified that while he had received the declaration it had been reduced to writing by the physician who was attending upon the deceased, because the latter wrote a more legible hand than he did.

On overruling the defendant’s objection the trial judge made the following assignment of his reasons for admitting the paper in evidence, viz.:

“ Before the dying declaration referred to was offered by the District Attorney and objected to by the defendant’s counsel, the justice of the peace, Stuckey, who received the declaration, testified that he had the same reduced to writing by the attending physician, because the latter wrote a more legible handwriting, and for no other reason. He declared, however, that all the dying man said was contained in the dying declaration, which he read over to him after he had finished making it, and that the whole was done in his presence and in his hearing and under his supervision.
“In view of the foregoing and the fact that the justice avers that the dying man said what the declarations contained, I admitted the same in evidence.”

The objection only relates to iheform of the declaration, and does not extend to its substance. It does not raise the question as .to whether a proper basis had been laid, preliminarily, for its introduction in evidence.

The paper is brought up in the original, and is appended to the transcript; and it appears to have been signed by John Clayton, the deceased, by his mark, in the presence of the Justice of the Peace.

To the paper is appended, immediately after the signature of the deceased, this jurat, viz.:

“ In testimony whereof I have hereunto set my hand the day and year first above written.
“ (Signed.)
Thos. H. Stuckey,
Justice Peace, Tenth Ward.”

Same is commenced by the following caption, namely:

"State of Louisiana, Parish of Ascension. Be it known that on this 3d day of October, 1895, at 10:30 o’clock A. m., I, Thomas H. Stuckey, a Justice of the Peace, in and for the parish of Ascension, at the request of William Nettles, went to the house of William Nettles, in the parish aforesaid, to take the dying declarations of John Clayton; and it appearing to me that any statement the said John Clayton might desire to make would be made with a full consciousness of ap - proaching death, I then and there proceeded to take the dying declaration of the said John Clayton,” etc.

We are aware of no particular form in which a dying declaration must be couched; and counsel has referred us, in his brief, to no decision which suggests the necessity of any particular form, or ceremonial, to be observed in order that same be rendered admissible in evidence.

On the contrary, Mr. Bishop lays down the rule that the dying declaration may be “ written or oral, be sworn to or not, come through an interpreter, be by a mere pressure of the hand or otherwise. If made before death seemed impending, they will be rendered good by repetition or assent afterward. If in writing, the writing must be produced in evidence of them. -If oral, they may be orally proved, and the evidence will suffice.

When the declarant leaves a statement so far unfinished that it appears probable he meant to qualify it by something further, it is .not admissible; but his inability, or mere omission to go over the whole transaction, or to speak to another part of it, will not exclude from the jury what he has said.” 1 Bishop Crim. Proc., Sec. 1213; Wharton’s Crim. Ev., Secs. 287, 293; Commonwealth vs. Casey, 11 Cushing, 417; State vs. Daniel, 31 An. 91; State vs. Somnier, 33 An. 237.

Dying declarations are admissible whether made to an officer or to private persons, and they are none the less admissible because they have been made to the attending physician. State vs. Trivas, 32 An. 1086; Whar. Crim. Ev., Sec. 300; 1 Bish. Crim. Pr., Sec. 1213; State vs. Alexander Viaux, 8 An. 514.

In the course of the opinion of the Massachusetts court, in Com. vs. Casey, supra, is found this very pertinent paragraph, viz.:

“If the injured party had but the action of a single finger, and with that finger pointed to the words yes or no, in answer to questions, in such a manner as to render it probable that she understood, and was at the time conscious that she could not recover, then it is admissible testimony.”

And the court held, in Jones vs. State, 71 Indiana, 66, that “where dying declarations are communicated by signs to one, and reduced to writing by another, but afterward read over to and signed by the deceased, who said they were correct, such written statement is competent evidence to go to the jury.”

To like effect is McHugh vs. State, 31 Ala. 317.

The foregoing authorities make it clear that the declaration was in form unobjectionable, and was, consequently, admissible in evidence against the defendant.

That it was written by the attending physician, and the signature of the deceased subsequently appended and authenticated by a justice of the peace, does not militate against it.

The brief of defendant’s counsel is chiefly confined to a discussion of the question of whether a sufficient basis had been laid for the introduction of the declaration, but it is not justified by the record, as it does not appear that this question was either raised or decided in the court below.

Judgment affirmed.