author: Miller, J.

text:
    No. 11,797.
    Florence P. Williams vs. J. E. Hewitt.
    Unincorporated associations conducting the banking business are liable as commercial partners. Story on Partnership, Sec. 164; Civil Code, Art. 446.
    Such associations claiming exemption from that liability as corporations must show compliance with the substantial requisites prescribed by our legislation respecting the organization of private corporations. Among these requisites are the statement in the act of organization of number of the shares held by the shareholders and publication of the act in the mode prescribed bylaw. Revised Statutes, Secs. 275, 279, 282; Cook on Shareholders, Chop. 13, Secs. 230, 231, 232, 283, 234 ét seq.; 16 An. 153; 29 An. 370; 33 An. 635.
    The depositor seeking to recover the amount deposited is not estopped from holding liable as commercial partners the members of such unincorporated association by the fact that they conducted the banking business in the name of a bank, appointed a president and cashier, issued certificates of deposit, and assumed to be a do facto bank. Oook on Shareholders, Ibid, and above authorities.
    A PPEAL from the Ninth District Court for the Parish of DeSoto. Fournet, J., in place of Hall, J., reeused.

      J. F. Pierson and G. W. Flam for Plaintiff, Appellee:
    Pleas involving facts on the merits of an issue are not exceptions, but an answer. 29 An. 398; 25 An. 339; 21 An. 131.
    Defendants who plead corporate exemption from personal liability for their acts, imprudence or negligence, must, to escape liability, clearly establish the corporate existence and exemption which they plead. Vrendenburg vs. Behan, 33 An. 635; 16 An. 153; 29 An. 369; 37 Cal. 354; 46 N. Y. 477; 3 N. Y. 394; 73 111. 197; 32 Ind. 138, 169; Parson’s Principles of Partnership, See. 24.
    Full compliance with statutory requirements is essential and a condition precedent to the creation of a banking corporation under the free banking laws of this State. Cook case, 16 An. 153; Converse case, 29 An. 370; same ease, 33 An. 963; same ease, 37 An. 485.
    There are essential qualities of a corporation, without which it can not exist. 37 An. 488.
    Associations existing without a full compliance with statutory requisites for the formation of a corporation have always been treated by this court as unincorporated, or as having no corporate existence. Ibid.-, 3 An. 541; 33 An. 638; 15 An. 443; 16 An. 153.
    An amendment to charter, not in accordance with statutory requirements, can no more be recognized than an association which had not complied with such requirements for their formation. Piper vs. Batts, 38 An. 957.

      The rule in Converse case affirmed and given full effect to, as to third persons. Limgan case, 46 An. 1118.
    A banking corporation will not exist upon an act of incorporation that does not set forth:
    1. The name or place of residence of any stockholder.
    2. Nor number of shares subscribed by each.
    3. Nor time or manner for payment of stock subscribed.
    4. Nor where certified copy has not been deposited with Auditor of Public Accounts.
    5. Nor published in official journal of State.
    6. Nor in any daily paper in city of New Orleans. Rev. Stat. 277, 278, 279; 16 An. 153; 15 An. 443; 29 An. 369; 37 An. 488; 33 An. 638; 38 An. 957; 46 An. 1118.
    Estoppel in pais must rest upon:
    1. Misrepresentation or concealment of material facts.

    2. With knowledge of the facts.
    ■3. To one ignorant of the truth of the matter.
    4. With intention he should act upon it.
    5. And he must have been induced to act upon it. Bigelow, Estoppel, Ed. 1876, p. 437.
    Infants and married women not estopped unless conduct has been intentional and fraudulent. Ibid. 443.
    Estoppel operates only in favor of one misled to his injury. 96 U. S. 665, 666.
    Even judicial estoppel will not operate against one ignorant of the facts at the time plea is made. 33 An. 1198.
    Third persons not estopped to deny corporate existence of an adversary in court. 16 An. 153; 29 An. 369; 37 An. 488; 33 An. 638; 38 An. 957; 46 An. 1118.
    Burden on party pleading exemption under corporate franchise to clearly establish the corporate existence. 33 An. 635.
    Commercial partnership is one for buying or selling personal property, as factors or brokers. C. C. 2825.
    The relations of the partners to third persons is the legal aspect of partnership. Parsons’ Prin. Part., Sec. 48.
    Liability to third persons does not flow from the partner’s consent to be so. Ibid., Sec. 45.
    Their liability results from the law which acts upon the relations of the partners. Ibid., Sec. 46.

      Partnership powers arise from commercial prerogatives flowing out of the business. Sec 49.
    Partnerships exist as to third persons by construction of law, even without intention of the parties. 32 An. 1131; 39 An. 663; 36 An. 240.
    Associations in corporate form, without charter or corporate existence, engaged in commercial business, are commercial partners and bound as such. 33 An. 640; 16 An. 153; 12 Rob. 1333 13 La. 300; 6 Rob. 127; 20 An. 569.
    Trading in corporate form without a franchise is a partnership Parsons’ Prin. of Part., Sec. 24.

      Lee & Liver man, Alexander & Blanchard for Defendants and Appellants :
    A person who contracts with an organized going corporation, acting under a charter duly executed in good faith as a corporation at its place of business, with its proper officers and in its usual form, and where the law authorizes such a corporation for such a purpose, is estopped from denying the regularity or legal validity of its corporate existence. 13 An. 345; 33 An. 732, 1444; 46 An. 1118; Bigelow on Estoppel, 464-5, 3 Ed. (1882); Oook on Stock and Stockholders, See. 234 and authorities therein cited, 3 Ed. (1894) ; Morawetz on Private Corporations, Sec. 748, 2 Ed. (1886) ; 94 U. S. 104, 680; 101 U. S. 392-396; Thompson on the Law of Corporation, 365-383.
    As against a party who dealt with a corporation, the production of the note or contract is sufficient evidence of incorporation. Bigelow on Estop. 464, Chap. 16.
    A party who has in another suit represented to the court that a bank is organized by public authentic act, passed before the proper officers, and is doing a banking business with board of directors, a president and cashier, and that its president is prohibited by law and public policy from acquiring any of the papers or assets of said bank, and has asked and obtained the judgment of the court on the rights and duties of such bank president under the law, is estopped from afterwards claiming that such bank was not a corporation, but a partnership. Bigelow on Estop. 562, 601, Chap. 24; 28 An. 121.; 25 An. 65; 31 An. 100; 37 An. 101; 40 An. 186 and authorities therein cited; 46 An. 452; 5 An. 18.

      Nor can she avoid the effect of such estoppel by a mere reservation in the first petition. 18 An. 59.
    A party can not sue a bank as a corporation and its stockholders individually as commercial partners in one and the same suit. And having conducted the suit against the bank as against a corporation, and having obtained a final judgment against it in this suit, from which neither plaintiff nor the bank has appealed, the plaintiff is estopped from further pursuing these defendants as a partnership. Poehelow vs. Kemper, 14 An. 307, 308; Bigelow on Estop. 601.
    Argued and submitted, May 11, 1895.
    Opinion handed down, May 20, 1895.
    Rehearing refused, June 3, 1895.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs seek to hold defendants liable for an amount deposited in the Traders’ Bank, under which name it is alleged the defendants conducted the banking business, and the bank itself is included as a defendant. The defendants excepted that suing the bank along with the other defendants was a misjoinder, and es-topped the plaintiffs from denying the corporate capacity of the bank; that this estoppel was further supported by the fact plaintiff had recognized the corporate capacity of the bank by depositing the money and other dealings with it; and the estoppel is placed by the exceptions on the additional ground that in a previous litigation between Mrs. Williams, the plaintiff here, and Hewitt, one of the defendants, she had made averments inconsistent with her position in this case; that the defendants are liable as members of an unincorporated association. These defences of estoppel are again urged in the answer along with the general issue, and the defence that plaintiffs dealt with a corporation and can not hold the shareholders liable. The lower court overruled the exceptions on the merits, gave judgment against defendants, and they appeal.

The law recognizes a firm name and the petition sues the Traders’ Bank, alleging it to be an unincorporated association and the individual members of the association averred to be commercial partners. Money in bank and other personal property of the partnership is usually held in the name of the partnership, and the law authorizes suits against the partnership and the individual members. We think there was no misjoinder. Code of Practice, Art. 198; Story on Partnership, Secs. 102, 142.

The defendants objected to the testimony offered by plaintiff tending to show that the articles of association relied on to sustain the defence of the corporate capacity of the bank were never published as required by law. The objection was, the petition alleged no defects in the organization of the corporation. In our view, it was unnecessary to make such allegations or offer the testimony. It is, we think, clear that sued as commercial partners it was for defendants to maintain they had become a corporation, by complying with the requisites of the law. Hence, the ruling on the testimony is of no consequence.

The legislation authorizing the formation of banking associations requires the organization articles to be by notarial act, stating the number of shares into which the stock is divided; the names, resi-I dences and number of shares held by the shareholders; the time/ manner of payment of the shares, with other particular's; and the act must be registered in the office of the recorder of the parish; the domicile of the corporation, and the act must be published in that parish and in New Orleans, and in Baton Rouge. Revised Statutes, See. 279.

It is conceded that the act claimed to invest the defendants with corporate capacity contained no statement of the number of shares held by defendants, and was never published in New Orleans or Baton Rouge. Mere informalities in the act may well be disregarded, but it will not be disputed it is to be presumed that the omission in the act here, and the failure to publish it as required, are' material. In our view, the fact affords no defence, and unless there is some other ground, defendants must be held as commercial partners. Cook on Shareholders, Secs. 230, 231, 232, 233, 234, et seq.; Revised Statutes, Sec. 282; Field vs. Cooks, 16 An. 153; Workingmen’s Accommodation Bank vs. Converse, 29 An. 370; Vrendenburg vs. Behan, 33 An. 635; Story on Partnership, Sec. 164; Angell and Ames on Corporations, Secs. 41, 591.

It is claimed, in support of the estoppel pleaded, that the tendency of more recent authority is that those who constitute themselves and do business as a de facto corporation can not be held as individuals. If this is to be accepted, there is but limited, if any, necessity for our law providing for organization of private corporations, compliance with which has been generally accepted as essential to enable individuals, without incurring personal responsibility, to do the banking business. It would be enough to assume the name, appoint officers and receive deposits and pay checks. But if the argument is to be deemed to affirm that an attempted organization under the corporation law will relieve individuals from liability in conducting a de facto bank, the answer is, we think, that the organization proposed must conform to the substantial requisites of the law, or it will be abortive. Mr. Cook thus states the law: “The creditor may ignore the asserted corporation, and proceed against the supposed stockholders, if the prescribed method of incorporation has not been observed.” He recognizes that mere informalities are inconsequential. He mentions want of publication as fatal, and we think no less can be said of the absence of any statement of the number of shares held by shareholders, the measure of jjwhose responsibility, indicated by the number of shares they hold, is important to be known to all who risk their money on deposit in chartered banks. Cook, Ibid., and our decisions cited. Revised Statutes, Sec. 282; Angelí and Ames on Corporations, Secs. 41, 591. The fact then that the defendants assumed to be and did business as a de facto bank, even if that assumption is deemed conveyed to plaintiffs by the name of the bank and issue of \ the certificates, is manifestly no protection to defendants against (liability in their individual capacities.

We do not understand that the testimony as to the dealings of the plaintiffs with the bank attributes to them any knowledge at the time they made the deposit of the attempted organization. The estoppel seems to rest on the deposit and the certificate issued by the institution known as the Traders’ Bank. It is possible to conceive of one depositing his money in a bank with full knowledge the institution had proposed organization as a corporation under the laws, had failed, and yet was doing business. If anybody had that knowledge, in all human probability no such deposit would ever be made, certainly not, unless the depositor was satisfied of the personal responsibility of the parties engaged in the business, and relied on it, and on it alone. We can not, therefore, find the basis for any estoppel based on any knowledge on plaintiffs’ part of the attempted organization or its failure, for if he had any such notice he must be deemed to have acted on the faith of that personal liability it is now claimed he is estopped from asserting. If there was any estoppel of this character, the plaintiff’s would be in this predicament; it is conceded the bank never organized, and hence plaintiffs have none of the remedies given by our legislation to creditors of corporations. Revised Statutes, Sec. 275, et seq.; Act No. 150 of 1888; No. 95 of 1882. Nor have they any recourse on the individual members of the unincorporated association if their theory on estoppel prevails. The plaintiffs, when they made the deposit, acted on the ordinary faith of responsibility for that deposit. Their knowledge that the institution was not chartered came to them after the deposit. There is, in our view, no basis to infer any notice to plaintiffs of any kind on which an estoppel can be based, unless we are to hold that the externals usual to all private banks, of the name of a bank and presidents and cashiers, with the issue of certificates of deposit, estop plaintiffs from asserting the individual liability of those who receive deposits.

The courts have not frequently applied the estoppel against denying the existence of the corporation. It will be found that in such eases the estoppel has rested on conduct of the corporation which made it inequitable for it to avail of the estoppel, and it strikes us if there is any room in this case for any estoppel, it would be that ; arising from defendants taking plaintiff’s money on deposit as Í bankers with no license to do that business. It would be, in our > view, a palpable wrong to plaintiffs if they were not precluded from enforcing against defendants the liability announced in express terms by our statute and with equal clearness by the commercial law that unincorporated bankers shall be liable to the full extent of| their engagements. Revised Statutes, Sec. 282; Story on Partnership, Sec. 164, 77; Angel and Ames on Corporations, See. 41, 591. • Estoppels in favor of corporations have been placed on dealings with them resulting in some benefit or advantage obtained from the corporation, and very naturally, it has been held that the party holding such advantage or benefit could not dispute the resulting liability by denying the existence of the corporation when sued by it I on his obligation. It is in great part the long line of cases of estoppels against or for corporations or asserted corporations all resting on some basis of conduct or of benefit obtained, or other cause forbidding as inequitable the estoppel attempted to be invoked, from which the defendants claim to derive support for the estoppel of conduct they plead. These cases, cited in defendant’s brief, have had our attention and are covered, we think, by the comment we make. Thus in Douglas County vs. Bolles, 94 U. S. 104, it was held the corporate existence could not be denied by its debtors; the same principle is applied in another case cited by defendants of suits to enforce stock subscriptions. Casey vs. Galli, 94 U. S. 680, and there are similar types. The case of Wallace vs. Loomis, 97 U. S. 446, affirms that corporate capacity assumed to obtain a standing in court can not be afterward denied. Another phase of estoppel having some affinity to defendants’ ease, is that of a creditor selling to a corporation in progress of formation when the goods were sold, and the organization completed after, of all of which the creditor was fully advised when he sold the goods; in the suit brought by him against the individuals of the corporation it was very properly held he was estopped by the explicit communication to him, arising from the transaction itself and the correspondence, that he was dealing with an inchoate corporation, and was to rely alone on its responsibility. Whitney vs. Wyman, 101 U. S. 392. In these and similar cases in which any dispute of the corporate existence has been deemed precluded, we can find nothing to support defendants’ contention. The plaintiffs have obtained no benefit or advantage from defendants, nor done any act or pursued any line of conduct by which defendants have been prejudiced, or at all inconsistent with plaintiffs’ suit to obtain their money from those who took it on deposit. The plaintiffs put their money in defendants’ bank under the usual obligation of those who received the money to return the deposit when called upon. We can find no estoppel arising out of this transaction to defeat the plaintiff.

Nor do we think the other estoppel urged on us rests, on any better basis. It is that in the suit of Hewitt, one of the present defendants, against Mrs. Williams, the present plaintiff, she urged that the notes and claims on which she was sued belonged to the Traders’ Bank, of which he was president. It was a fruitless attempt of a debtor to deny the plaintiffs’ title to notes and claims assigned to him, which he had no interest to question. The defence failed, and because of this defence it is now urged she can not sue the defendants for her deposit. In the first place the averment by Mrs. Williams that Hewitt was president of the Traders’ Bank in no manner admits it was a corporation. The principle she asserted that one could not acquire, individually, notes or claims that came into his hands, or in his fiduciary capacity, might as well be said of the president of a private bank as of a corporation. The averment admits nothing bearing on this case, and besides, a means of defence overruled in a past litigation will not, except under peculiar circumstances, preclude the facts passed on in the previous litigation from use in a future suit.

We have given the case in all its aspects careful attention, and in our view there was no defence. If we have not noticed all phases of the able discussion of the defendants, it is because the views expressed dispose of the case.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No 11, 765.

    State of Louisiana ex rel. James A. Manning vs. H. W. Sherrard, Justice of the Peace of Ward No. 4, for the Parish of Jackson.
    The petition oí the relator, annexed record and return of the respondent, dia-' closing that the judicial proceedings complained of are regular in form, and apparently valid, relief by certiorari will be refused.
    y^PPLOATION for a Writ of Certiorari.

      N. M. Smith, for relator.

      C. P. Thornhill, for respondent.
    Submitted on briefs, May 22, 1895.
    Opinion handed down, June 3, 1895.
   The opinion of the court was delivered by

Watkins, J.

Relator prays for certiorari directed to the respondent, commanding him to send up a certified copy of the proceedings in the cause in his court, entitled James A. Manning vs. A. E. Simonton and A. A. McLane, sheriff, to the end that their legality may be ascertained.

The substance of the complaint of relator, plaintiff in said suit, is that defendant, Simonton, had obtained judgment on an ordinary debt against Martha Davis in the respondent’s court, on which execution had issued, and inter alios some corn had been seized, on which the relator claimed the privilege of lessor for the current year. That he filed an opposition and obtained an order of court, commanding the sheriff to hold the proceeds of the sale subject to the further order of the court, and caused citations to be made on the sheriff and the seizing creditor. At the trial exceptions to citations were tendered and sustained by the respondent, and the opposition dismissed, on the statement of the sheriff that he was a party to the suit and incapacitated to make the service on the seizing creditor. That the respondent then appointed a special constable, who made a new and additional service on the parties, and thereupon they again excepted that the special officer was incapacited to make service, as he had not subscribed the requisite oath nor given the necessary bond. That said special officer took the oath and subscribed the necessary bond, and again the opposition was reinstated and new service of citation made, whereupon the parties defendant made the point that it came too late, because the funds had been paid over, and there remained nothing in the sheriff’s hands subject to the order of the court. This exception was sustained by the respondent, and relator’s opposition was dismissed.

On these proceedings relator demands relief at our hands, on the ground that they are absolutely null and void.

To the respondent’s return is annexed a transcript of the proceedings in his court. They are in keeping with the statement in the petition, and appear to be perfectly regular in form.

The return shows that, prior to service being first made on the sheriff and seizing creditor, respondent invited the attention of relator’s counsel to the fact that both the coroner and sheriff were parties in interest, and requested his advice as to the manner in which service should be made, and that service was made as he suggested, counsel agreeing to assume the risk of such a service being good.

It further shows that, as a matter of fact, the seizing creditor and sheriff testified as witnesses at the trial of the exceptions, and they had not been served with any notice at all, and had no knowledge of •the order of court requiring the sheriff to keep the proceeds of sale subject to the order of court.

It further states:

“ These facts having been established to respondent’s satisfaction, and believing that no valid judgment could be rendered without such service, he dismissed the action, the relator having made no effort to get service made upon the parties, and made no application for a continuance of the cause, in order to have service made. On the contrary, he contended, in his argument to the court, that a sufficient legal service had been made, and that the exception should be overruled, and that judgment should be rendered decreeing him to be paid by preference out of the proceeds of the sale of the property seized,” etc.

That subsequently the relator’s counsel requested the appointment of a special constable, and he made the appointment notwithstanding he entertained doubts of his authority to do so, and counsel again assumed the risk and responsibility of seeing that the appointee was properly qualified and gave bond. i

That when the second exception was tried the appointee testified as a witness that he had not qualified under the aforesaid appointment, and that relator’s counsel, in open court, admitted that the exception was well taken, and instructed the party to qualify.

That when the case came up for a third time proof was made that the proceeds of sale had been paid over to the seizing creditor. This fact was undenied by any one.

On this showing we feel justified in holding that the relator has no claim whatever to relief at our hands.

We entertained serious doubt of his claim to relief when granting the preliminary restraining order, and only made it as a precautionary measure, lest some wrong might have been done the relator.

Let the restraining order be set aside, and relator’s demand be rejected at his cost.


text:
    No. 11,833.
    State of Louisiana vs. Thomas Clements.
    An accused has the burden on him of establishing a plea of insanity to the satisfaction of the jury beyond a reasonable doubt. The State is not bound to affirmatively prove the sanity of the accused.
    A PPEAL from the Tenth Judicial District Court for the Parish of ** Rapides. Andrews, J.

      M. J. Cunningham, Attorney General, and John C. Ryan, District Attorney pro tern., for Plaintiff, Appellee.

      Robert P. Hunter for Defendant, Appellant.
    Submitted on briefs, May 25, 1895.
    Opinion handed down, June 3, 1895.
   The opinion of the court was delivered by

Watkins, J.

The defendant having been indicted and convicted of the crime of forgery, on two counts, and sentenced to imprisonment in the penitentiary at hard labor for a term of seven years, has 'appealed — relying on two bills of exception.

The first bill relates to the following extract from the charge of the judge to the jury, viz.:

“ I charge you that when the defence of insanity (is set up) in avoidance of the penalty prescribed by law, the burden of proving insanity rests upon the prisoner, and he must make out his case by proof which satisfies your mind beyond a reasonable doubt as to whether, at the time of the commission of the offence, he was sane or insane. If you have any reasonable doubt on that point, it will be your duty to convict the prisoner.”

Defendant’s counsel insist that the charge, as given, was erroneous and injurious, and that he is entitled to relief.

The trial judge' cites and relies upon the State vs. Coleman, 27 An. 691, and State vs. De Rance, 34 An. 186, as supporting his ruling.

In the former case the court puts the proposition thus tersely, viz.:

“ The answer to the ninth objection is, as previously stated, the .State is not bound to prove the sanity of the accused. He who alleges it must prove it.”

In the former the court said:

“But to have any serious weight in the eyes of the jury, such alleged unsoundness cf the mind, or momentary insanity, must be shown to have been an undoubted fact, not before or after, but at the very time the unlawful act complain of was committed. It is at that particular time that it must be established beyond a reasonable doubt that there existed, on the part of the accused, no capacity to discern right from wrong as to the act forming the basis of the charge.” (Our italics.)

These two decisions seem quite sufficient to dispose of the case, and sustain the ruling of the trial judge.

The defendant’s second bill relates to the judge’s refusal to grant him a new trial, predicated exclusively upon the charge of the judge, which is disposed of in the preceding bill. The judge’s ruling was a matter of course.

Judgment affirmed.


author: McEnery, J.

text:
    No. 11,796.
    Succession of Robert Jackson.
    A-party who performs services under a special contract can not sue for services on a quantum meruit.

    If a servant does extra service, not strictly with the line of his duties, and receives his wages under a special contract for said service, and makes no claim for these extra services, it is too late for him to set them up against the succession of his employer.
    The word “ deemed” used in Art. 1641, (Jivil Oode, simply means that no interpretation unfavorable to the creditor shall be placed upon the testament by the fact alone of the legacy to the creditor. It is a question of interpretation whether the testator intended the legacy to be in satisfaction of the debt. Some mention must be made in the testament of the debt and the testators intention must be gathered from the testament whether he intended the legacy to be in satisfaction of the debt.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Dinkelspiel & Hart and Ed/ward Dinkelspiel for John C. Boland Plaintiff, Appellant.

      Dart & Kernan for Defendant, Appellee.
    Ai'gued and submitted, May 23, 1895.
    Opinion handed down, June 3, 1895.
   The opinion of the court was delivered by

McEnery, J.

The deceased, Robert Jackson, left a will in which he bequeathed to John O. Boland “five hundred dollars for faithful services to myself and late wife.”

This servant, John O. Boland, intsituted suit on 1st March, 1894, against the defendant succession, for three thousand eight hundred and fifty-five dollars, for services, at the rate of five dollars per day, rendered to the deceased and his wife, who died before the deceased, from November 25, 1891, to January 3, 1894. On December 3, 1894, Boland filed a suit, claiming the legacy of five hundred dollars. On the 13th of March, 1895, there was a consent or agreement that judgment should be rendered in favor of Boland for the legacy.

In the suit for wages, the counsel for Boland offered evidence to show the value of the services.

To the introduction of this testimony counsel for the executor objected, upon the ground that the legacy to plaintiff was in compensation of his wages in the way of a remunerative donation, which had been acquiesced in by the institution of the suit, and by consent to a judgment in favor of the legatee. After this objection, and with leave of the court, the counsel of the executor filed a supplemental answer in which he asked for a rejection of the demand of plaintiff, because he was estopped from making any claim for wages after having accepted the legacy. The objection to the filing of this amended answer was overruled, whereupon the attorney for plaintiff asked to withdraw the suit and the consent for a judgment in the case. This motion was denied, and judgment was rendered in favor of the legatee on the consent given by him.

Prom this judgment Boland appealed.

In the answer of the executor, it is stated that the plaintiff, Boland, was working under a contract for fixed wages, and that he had been paid all that was due him. If such a contract existed, and the services rendered by Boland were under it, it is clear that he can not sue on a quontum meruit. It is not necessary to say anything on the question, whether the legacy was or not a remunerative donation, or whether a remunerative donation can be made in the form of a testament.

Art. 1641, C. 0., says: “ A legacy made to a creditor shall not be ■deemed to be in compensation of the debt, nor a legacy made to a servant in compensation of his wages.” If the wages had been agreed upon, the disposition in the testament could have no force in defeating the claim for wages, and it is but a just interpretation to •say that the testator intended the legacy to be in addition to the ■stipulated wages in recognition of the services having been faithfully performed.

Hence, when the Code says that a legacy to a servant shall not be deemed to be in compensation of his wages, it has reference to fixed wages.

If the services rendered were not under contract, but open to proof of their value, they are a debt against the succession of the deceased. Some mention, therefore, must be made in the testament of the debt, and the testator’s intention must be gathered from the testament, whether he intended the legacy as a compensation for the debt. The word “deemed” used in the article simply means that no interpretation unfavorable to the creditor shall be placed upon the testament by the fact alone of the legacy to the creditor, It is a question of interpretation, and whether the testator intended the legacy to be in compensation of the debt must be construed from the terms used in the testament. Code Civil annote, Fuzier-Herman, Art. 1023, notes 1 and 2.

If the legacy from the terms of the testament is in satisfaction of the debt, the legatee must either accept the legacy or renounce his claim. Id., note 4.

If a creditor who, without having seen the testament by which the legacy is made to him, declares in a receipt that the legacy is made to him in compensation of his claim, he is not thereby debarred from demanding the payment of the legacy. Id., note 3.

Under the facts and circumstances of this ease we do not think by discontinuing the suit the plaintiff renounced the legacy, as it is not enpressly renounced in the motion. Nor do we think the consent that a judgment should be rendered in his behalf, should estop the plaintiff from claiming his wages under a quantum meruit, unless the testament shows that it was the intention of the testator to satisfy the debt by the legacy.

We conclude that, if there was a contract for stipulated wages, and the plaintiff had been paid all due him, he can not recover under a quantum, meruit. If, in the course of his employment, he performed services not strictly within the lines of his duties, and accepted the wages at different times, and made no claim for extra compensation, it is too late-after the death of the employer to setup such a claim against his succession.

We see no expression in the will of the testator’s intention that the legacy should be in satisfaction of any debt due by him to the plaintiff. But if the proof shows, on a retrial hereof, that the plaintiff had a contract for wages, and received the same without making a demand for services which possibly were beyond the strict line of his duties, it is reasonable to suppose that the testator, remembering these for which no compensation had been asked, and which could not be recovered against his succession, thought proper to give to Boland the sum of five hundred dollars for his faithful services.

It is therefore ordered, adjudged and decreed that the judgment herein be annulled, avoided and reversed.

It is now ordered that the case be remanded to the lower court, to be proceeded with in due course of law and the views herein expressed.


text:
    No. 11,776.
    State of Louisiana vs. Edward Johnson.
    Act 89 of 1894 does not require the jury commission to meet at the court house, or at the parish site. The act authorizes the clerk to designate the place of meeting, and for good and sufficient reasons, he can call the commission together at any convenient point in the parish. If the deputy clerk participates in the drawing of the jury immediately under the control and supervision of the jury commission, and does acts hy their direction, these acts are those of the com mission, and if irregular, must be imputed to the commission. The accused must, therefore, show that some fraud has been practiced that does him an injury in the drawing and summoning of the jury in order to avail himself of such irregularities.
    A PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      Milton J. Cunningham, Attorney General, and Robert F. Broussard, District Attorney, for Plaintiff, Appellee.

      L. O. Hacker, A. & Charles Fontelieu for Defendant, Appellant.
    Submitted on briefs, April 18, 1895.
    Opinion handed down, April 22, 1895.
    Rehearing refused, June 6, 1895.
   The opinion of the court was delivered by

McEnery, J.

The accused was indicted for perjury, tried and convicted. He appealed.

He complains that the grand jury who found the indictment was illegally drawn and the grand jurors were illegally summoned, and that the indictment is fatally defective, as it does not show on its face that the alleged false statement was material to the issue. The illegality of the drawing of the grand jury is based on the fact that the jury commission met elsewhere than at the parish site, and that the deputy clerk participated in the drawing of the jury.

Section 4 of Act 89 of 1894 says the jury commission shall meet at some place to be designated by the clerk of the District Court.

It does not require the jury commission to meet at the court house, or in the town or city which is the parish site. In this case the clerk of court was sick, and he designated the town of Loreauville, where he could be present, as the place where the jury commission should meet. It would appear that the law was so framed as to meet an emergency such as is here presented.

The only evidence in the record as to the participation of the deputy clerk in the drawing and selecting of the jury is his statement: “I assisted at the drawing of the venire for the present term of court.”

In State vs. McCarthy, 44 An. 324, we noted the distinction between the acts of one who intruded himself upon the commission, and did acts which were not those of the commission, and one who was present with full knowledge of the commission, and acted directly under the supervision and control of its members.

We are to presume that the members of the jury commission, in the absence of testimony to the contrary, performed the duties imposed upon them by law. Therefore, we conclude that the deputy-clerk acted under the immediate control and direction of the commission, and performed such acts only as it directed.

The proces verbal shows that Numa Broussard, the clerk of court and ex-officio member of the commission, with the other four members of the commission, actually drew the jury. We are not informed what particular act the deputy clerk did, but his presence being authorized by the commission, and his acts directed by them, they were the acts of the jury commission, and if irregular, must be treated as irregularities of the commission. Id., 26.

There is no evidence that any fraud has been practiced upon the accused, or any great wrong inflicted upon him in the selection and summoning of the jury that would work irreparable injury. Unless the irregularity in the drawing and the summoning of the jury produce such a result, the accused can not complain. Sec. 9, Act 89 of 1894; State vs. Taylor, 44 An. 783; State vs. Green, 43 An. 402; State vs. Simmons, 43 An. 991; State vs. McCarthy, 44 An. 324.

The bill reserved to the alleged defect in the indictment is not pressed in the brief of counsel for accused. The defect does not exist as the indictment specially charges the materiality of the testimony to the issue presented in the case in which the accused was a witnesss.

Judgment affirmed.


text:
    No. 11,777.
    State of Louisiana vs. Lott Shaw.
    A PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      Milton J. Cunningham, Attorney General, Robert F. Broussard, District Attorney, for Plaintiff, Appellee.

      A. & Charles Fontelieu for Defendant, Appellant.

      Submitted on briefs, April 13, 1895.
    Opinion handed down, April 22, 1895.
    Rehearing refused, June 6, 1895.
   The accused was indicted for larceny, tried, convicted and sentenced to the penitentiary. He appealed.

The issues presented in this case are the same as those in the case of State vs. Edward Johnson, just decided, except as to the alleged defect in the indictment in the latter.

For the reasons stated in the ease of State vs. Johnson (ante, p. 1092) the judgment appealed from is affirmed.

The opinion of the court was delivered by

McEnery, J.


author: McEnery, J. Watkins, J. McEnery J.

text:
    No. 11,788.
    The State of Louisiana vs. The Olympic Club.
    The Act Ko. 25 of 1890 denounces what is commonly called a “ prize fight.” It provides a punishment for its violation. Prize fights maybe with the hands uncovered, or covered toith gloves of different weight; they are preceded by elaborate preparations and training; a purse or a prize is given to the successful fighter • in the contest; the statute is designed to meet both descriptions of the prize fight.
    The proviso in Act 25 of 1890, which says the act shall not apply to glove contests within the rooms of regularly chartered athletic cluhs, is irrelevant to the body of the statute, and is meaningless, and is therefore rejected as in no way being, a part of the act.
    A PPEAL from the Civil District Court for the Parish of Orleans. Rightor. J.

      M. J. Cunningham, Attorney General, (E. Howard MeCaleb, Jr., Benjamin Rice Forman and Charles Forman of Counsel) for Plaintiff, Appellant.

      Henry P. Dart, Charles H. Duzenberg and Frank Zengel for Defendants, Appellees.

      Argued and submitted, April 27, 1895.
    Opinion handed down, May 6, 1895.
    Opinion refusing application for rehearing, June 3, 1895.
   The opinion of the court was delivered by

McEnery, J.

The case is before us on a second appeal. The case was remanded for the reason that inadmissible testimony had been received on the first trial. State vs. Olympic Club, 46 An. 935. The object of remanding the case was for a re-trial, excluding the illegal testimony, so as to determine whether or not the injunction prayed for should be granted, restraining the defendant from giving exhibitions of prize fights, although called glove contests. We refer to the original opinion in the case for the facts, excluding the statements of experts.

The exhibitions complained of are glove contests; in fact, prize contests with gloves.

The whole question depends upon the construction of Act No. 25 of 1890, which reads as follows:

“ Section 1. * * * That any person who shall send, or cause to be sent, publish or otherwise make known, a challenge to fight what is commonly called a prize fight, or who shall accept any such challenge, or who shall engage in such fight, or go into training preparatory to such fight, or act as trainer for any such, contemplating a participation in such fight, and any person who shall act as aider or abettor, backer, umpire, second, surgeon or assistant at such fight or in preparation for such fight,- shall, upon conviction thereof, be deemed guilty of a misdemeanor and be punished by imprisonment in the parish jail for not more than six months, and be fined mot more than five hundred ($500) dollars.

“ Sec. 2. * * * That any person who shall agree in this State to fight out of this State, or shall train in this State to fight out of this State,- or who shall go or attempt to go out of this State to fight in any other State, place or territory, or, being in this State, shall in any way or manner aid, abet or assist to fight or attempt to fight out of this State what is commonly called a prize fight, shall be deemed guilty of a misdemeanor, and be punished by imprisonment in the parish jail for not more than six months, and be fined not more than five hundred ($500) dollars.

“Provided, this act shall not applyJto exhibitions and glove contests between human beings which may take place within the rooms of regularly chartered athletic clubs.”

Prize fights may be with the hands uncovered, or covered with gloves of different weight.

Both kinds of fights are commonly known as prize fights. They are preceded by elaborate preparations and long and painful training. A purse or prize is given to the successful fighter in both contests. The two classes have essential features alike, the only difference being one is conducted and fought without gloves.

The statute intends to reach both descriptions of the prize fight, or as it expresses it, commonly “known as prize fights.” Such contests, as the testimony shows, which are permitted in defendants’ arena, are known everywhere as prize fights. The arena is specially designed for these prize fights, with ring and ropes and a seating capacity for thousands. The proviso says the act shall not apply to “ glove contests within the rooms, of regularly chartered athletic clubs.”

These clubs, defined and designated in the proviso, and the glove contests permitted therein, are for recreation, exercise and instruction in all athletic sports, including boxing, fencing, etc. These contests and exhibitions are not for the special purpose of introducing and exhibiting for a prize trained and professional prizefighters, nor are they for the purpose of making money from such exhibitions or contests by charging a fee for witnessing the same. The glove contests permitted in defendant’s club ' are advertised extensively and are generally known as prize fights. The fighters are under contract with each other, with the club, and under obligations to the spectators and betters to fight to a finish, that is usually until there is what is called a “knock out.”

There can be no reasonable objection to boxing as ordinarily understood. It is a manly, healthful and vigorous training, and encouraged in some of our most respectable institutions.

An interference with it by legislative power would be a great stretch of authority, bordering upon an infringement of personal liberty. And even boxing without gloves for a display of skill, and for pastime, when there is no breach of the peace and no intentional injury to the person, can not be considered as embraced within the statute. But in a prize contest for a purse, with or without gloves, there is, despite the customary shaking of hands and the preliminary courtesies between the combatants, an intention to do an injury, and to break the public peace. The contest is directly within the spirit, if not the exact definition of an assault. In such a contest there can not be an absence of intention to do an injury, for the purpose of the contest is to subdue an opponent by knocking him senseless or so injure him that he can not, within a given time, continue the fight.

Glove contests in athletic clubs or elsewhere, such as we have described, have no semblance to prize fights, with or without gloves. To hold that such glove contests as are permitted in the arena of the defendant club are ordinary contests for scientific boxing would be as absurd as to say that fencing with pointed foils, for the pricking of blood, would be a fencing bout to decide superior points in sword exercise.

The proviso, therefore, is without meaning or significance, as it is in no way related to the enacting clause, and is totally irrelevant thereto.

It has been held that where the proviso is irrelevant, it will be rejected. Sutherland on Statutory Construction, Par. 228.

It was probable, through unnecessary caution, that the proviso found its way into the statute. Usually the legislative intention is expressed in the proviso, and we look to it for an explanation of the enacting clause.

We do not presume that the Legislature intended to defeat the enacting clause by the proviso, but to modify or explain it, or to except something that otherwise would fall with it. The statute intended to suppress prize fighting. Fighting in the arena of the club, as described in the record, is prize fighting, and no other description can be given to it. It is preceded by the training, the challenge, the attendance of seconds, umpires, and of surgeons, each of of which is denounced by the statute, and the fight is followed by alt the attendant circumstances of a contest with naked hands.

We conclude that the glove contests in athletic clubs or elsewhere, when the object is only for a display of the art of boxing, as generally understood and practiced, without the prerequisites of challenge and training and the attendant circumstances of a prize fight, are not what is commonly ■ known as prize fights, and, therefore, the proviso has no relation to or connection with the offence denounced by the statute.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided, annulled and reversed, and it is now ordered that the injunction prayed for be granted.

Dissenting Opinion.

Watkins, J.

I adhere to the views expressed in our original opinion and decree. State vs. Olympic Club, 46 An. 935.

In my view, the present opinion substitutes the will of this court for the will of the Legislature. On the theory now presented, the introduction of any evidence was meaningless, and remanding the ease an expensive and idle ceremony.

On Rehearing.

McEnery J.

In this case an application is made that the decree be “simplified so as to make it clear that it applies solely to glove contests, and does not affect the charter, liquidation or other management of petitioner.”

The first decree, 46 An. 955, left the club in possession of its charter and franchise, free from the demand for its liquidation or-an interference with its management. The case was remanded' solely for the purpose of retrial as to the character of the glove contests permitted by the defendant club.

We will, to settle all doubts, amend our decree, in accordance with, the request of the defendant’s counsel.

It is therefore ordered' that the decree heretofore rendered’ in this ease be amended so that the injunction be perpetuated only as to the character of the glove contests described in the opinion.. No costs to follow this amendment.


text:
    No. 11,836.
    State of Louisiana vs. Willis and Jim Tolliver.
    A letter is not admissible in evidence against a party by whom it purports to have-been written unless proof is first made that he wrote the letter, either by positive proof or by proof of hand writing.
    The fact alone that sucha letter bears the postmark of an office at which the party sometimes received liis mail does not make it admissible.
    A verdict by which the jury declare, that they find the accused guilty, has reference exclusively to the party or parties on trial, and is sufficiently certain to* identify the accused, against whom the verdict i3 directed.

      APPEAL from the Tenth Judicial District Court for the Parish of Rapides. Andrews, J.

      M. J. Cunningham, Attorney General, John C. Ryan, District Attorney pro tern., for Plaintiff, Appellee.

      J. F. Ariail, for Defendants, Appellants,
    cites: 45 An. 448; Prof-fat on jury trial, 448.
    Submitted on briefs, May 25, 1895.
    Opinion handed down, June 3, 1895.
   The opinion of the court was delivered by

McEnery, J.

Willis and Jim Tolliver were indicted for wilfully and maliciously shooting J. J. Murphy.

Willis Tolliver alone was tried and convicted, the verdict returned being, “We, the jury, find the accused guilty as charged.”

Complaint is made to this verdict that it is vague and uncertain, and that it should have named Willis Tolliver as the accused against whom it was directed.

Willis Tolliver was the only one on trial, and there, could be no possible mistake as to .whom the verdict referred. It was, therefoi e, sufficiently definite and certain. State vs. Chambers, 45 An. 36.

A letter purporting to have been written and mailed to one Webb by the prosecuting witness was offered in evidence to impeach the testimony of the witness, Murphy. It was rejected, and to the ruling of the trial judge a bill was reserved.

From the statement of the trial judge it appears that the prosecuting witness denied having written the letter, and that he had authorized no one to write it for him, and that he knew nothing of it.

Webb, to whom the letter was addressed, said he found the letter at his house, and did not know who carried or delivered it there.

The fact that the prosecuting witness had written and forwarded the letter, or had authorized it to be written and forwarded, was not proven, and therefore the ruling of the trial judge was correct.

The postmark on the letter and the fact that the prosecutor sometimes received letters and mailed them at the place where the letter was posted is not sufficient to fasten the authorship of the letter on him.

Judgment affirmed.


author: Breaux, J.

text:
    No. 11,633.
    Ovide Durel vs. Perseverence Fire Company.
    The charge of malice and conspiracy, brought by the plaintiff against the defendant, is not sustained by the proof.
    In proceeding before an asssciation against amemberfor expulsion, he is entitled to a notice of the charges and specifications.
    But generally the member waives objections by appearing and examining witnesses, and taking part in defending himself against the accusation, without raising any objection regarding the irregularity of the proceeding.
    The action is for damages caused by the expulsion, and the charges upon which he was expelled.
    In a prior suit he was reinstated as a member of the company from which he was expelled.
    The expulsion was annulled.
    The error of the defendant company, acting at the time in good faith, upon a state of facts different from that afterwards developed on a trial before the District Court, is not ground for damages.
    The charges against plaintiff were sufficient, upon being proven, to warrant the expulsion.
    The plaintiff, upon becoming a member, had agreed upon the manner of the proceeding in case an accusation was lodged against him.
    The defendant company having jurisdiction of the charge, aud being under its charter and by-laws the arbitrator between the plaintiff and his accusers, the error, being one of judgment of the members, is not actionable for damages.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Bernard McOloskey for Plaintiff, Appellant:
    Where the offence is of an indictable nature, the corporation can not expel, unless there has been a previous conviction before a jury. Leech vs. Harris, 2 Brewst.' Pa. 571; Com. vs. St. Patrick’s Society, 2 Bun. Pa. 448; Society for Visitation of Sick vs. Meyer, 52 Pa. St. 125.
    The right claimed by the corporation should not be against public policy. People vs. Medical Society, 24 Bart. N. Y. 570; People vs. New York Ben. Society, 3 Hun. N. Y.; Am. and Eng. Ency. Law, Yol. 1, p. 560; Yol. 5, Disfranchisement.

      It is against public policy to vest in a corporation organized “to extinguish fires in the city of New Orleans, and to aid and help the incorporators and other future co-labors in works of mutual benevolence and charity,” the power to try a member for unnatural crime.
    It is felony, assault and indecent exposure — the crime charged. Sir James Stephens’ Criminal Law Digest, 103; Witthans & Becker, Medical Jurisprudence, Forensic Medicine and Toxicology, Vol. 2, pp. 508 and 509.
    Corporations are liable for every wrong they commit, and in such cases the doctrine of ultra vires has no application. Beach on Private Corporation, Vol. 2, pp. 728,730, 747; 98 North Carolina, 34.
    Corporations are liable for its malicious or negligent torts, however foreign they may be to the object of its creation or beyond its granted power. First National Bank vs. Graham, 100 U. S. 699; Philadelphia W. R. R. Co. vs. Quigly, 21 Howard, 209.
    A corporation may sanction the publication of a libel or slander. Townsend on Slander, Sec. 265; 27 An. 367; Philadelphia W. R. R. Co. vs. Quigly, 21 Howard, 201.
    The court will not credit the evidence of infamous persons — that is, persons who, whatever may be their professed belief, have been guilty of those crimes which men generally are not found to commit, unless so depraved ' as to be unworthy of credit for truth, such a person is morally too corrupt to be permitted to testify. Greenleaf on Evidence, Vol. 1, p. 465, Ed. 1885.
    While, ordinarily, there is a presumpsion on the part of the fellow-members of a society that there is fairness in proceedings for expulsion of another; yet there are to be no presumptions in case of forfeiture of property or other important rights. The law is opposed to sharp, summary proceedings involving forfeiture. Bacon Benefit Societies, Vol. 1, p. 187, Sec. 110, Ed. 1894.

      Bernard Titehe for Defendant and Appellee:
    In the case of mutual aid and benevolent associations and other corporations of like character, where the constitution or by-laws provide for the expulsion of members for the commission of certain offences, upon trial by one of its committees, such committee' and the association are judicial bodies, and their conclusions will be protected. Oooley on Torts, pp. 472 and 473.
    If the act charged is one the commission of which the charter authorizes the company to punish by expulsion, and the company making the charges actually finds the member guilty of the offences charged, the courts will not review the action of the company by inquiring into the merits of the controversy. Bacon on Benefit Societies, See. 106; Black and White Smith Society vs. Van Duke, 2 Whart. 309; 8 Watts Sergt. 247; 80 111. 134; 3 N. W. 760; 38 Ga. 608.
    If the act was such that the company had power to expel, its action will not be reviewed, and it is no objection that the court might upon the same evidence have reached a different conclusion.
    Where the rules of an association provide for a notice of a certain kind of charges before a member may be expelled, a defect in' the notice may be waived, and it is immaterial whether the notice is given in the required terms, if the accused appeared and went to trial without objection. Any objection he might have urged was thereby waived. Bacon on Benefit Societies, Sec. 100, p. 119, and Sec. 109, p. 138.
    Where a member of such an association prefers charges against a fellow member, such charges are not a corporate act of the association, but the individual act of a member, and the charge is privileged, and the member preferring the charge will not be liable therefor, unless it is affirmatively shown that the charge was untrue and that it was made in malice. Oooley on Torts, 2 Ed., p. 252.
    Such witnesses are conditionally privileged and are fully protected, unless the information has been given to gratify malice or ill-will. Ibid.

    The authority to expel is especially conferred upon the defendant corporation by its charter and by-laws. Oonstitution of the Company, Art. II, Sec. 2, Art. VII, Sec. 1; By-laws, Arts. X and XI.
    But even in the absence of express provisions, the right inheres in every organization to enforce rules necessary for its very existence, and to expel members whose conduct threatens its welfare and life. Burke vs. Grand Lodge, 44 Mich. 208; 33 N. W. 18; Robinson vs. Yates City Lodge, 86 111. 598.

      Argued and submitted, May 10, 1895.
    Opinion handed down, June 3, 1895.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff is a member of the defendant fire company. He sues for ten thousand dollar damages. A charge of conduct unbecoming a member was brought_ against him. The notice from the company reads:

“From information received I make the following charge against Mr. O. Durel as conduct unbecoming a member of the company, as per Art. 10 of the constitution, by-laws of this company.”

This notice was signed by one of the officers of the company, as required, and seven members.

On the day the notice was served the matter was taken up by the grievance committee in the presence of the plaintiff. Despite his opposition to a postponement, the committee adjourned its investigation to a subsequent date. At the second meeting the evidence was heard and the plaintiff was present. The committee, after its investigation, reported to the company and submitted the evidence taken.

It was read to the company, in plaintiff’s presence, at one of its meetings. After hearing, a motion of expulsion was unanimously adopted by the members of the company.

Plaintiff brought suit, which suit was allotted to Division “ A ” of the District Court. He assailed the regularity of the proceedings, and alleged that the company had no authority to expel him; he prayed to be reinstated, and for damages.

There was judgment pronounced in his favor, as prayed for, except that his demand for damages was dismissed as in case of non-suit. From this judgment no appeal was taken.

Subsequently, he brought a second suit for the damages for which he had a non-suit.

The second suit was allotted to Division C of the District Court» and in his petition he alleged that the charge upon which he was expelled was false and malicious.

That the testimony introduced to sustain the charges before the company, and upon which the company acted in expelling him, was not worthy of belief.

In this case the District Court decided that he was not entitled to damages against the defendant.

From the judgment of the court he prosecutes this appeal.

It is settled by the first judgment that the plaintiff was expelled without the observance of the required formalities. No decisio can be rendered affecting the validity of the first judgment. It is a finality.

Although it was decided that he was expelled informally, the facts connected with the hearing may be considered, in order to determine whether the defendant company was actuated by malice or acted in good faith.

The notice to appear and defend himself before the company did not state the time and place of the offence, and no reference is made to the offence in the charge and in the notice, save in general terms that he was guilty of conduct unbecoming a member.

Relative to the Malice Charged.

It happens frequently that in originating steps to investigate accusations, men are averse to write down jthe charge as they should be written, and to give notice covering all needful particulars of the accusation. It was an error here, but it does not follow as a conclusion that the defendant intended to perpetrate an injustice.

It is true that the trial was not conducted with regularity and in accordance with the charter and the by-laws. But the objections urged by the plaintiff do not suggest that the action was tyrannical and arbitrary, although it was erroneous.

The record discloses that plaintiff’s character was good: that friends of his in the company offered to represent him in conducting his defence, an offer which he declined.

He was present at the trial, and did not, with any vigor at all, attempt to impeach the testimony of the two witnesses who testified against him.

Subsequently it was proved on the trial of the case in the District Court that these witnesses were disreputable and unworthy of belief.

The fact remains that these witnesses were not impeached at the trial before the company, and that the company, among whose members, prior to the accusation, the plaintiff had many friends, unanimously voted for his expulsion.

Another Feature of the Case That Rebuts the Malice Charged.

He, the plaintiff, remained wofnlly silent during the trial, when he should have objected and protested with all the determination at his command. His denial, it seems, was not stamped with that firmness which inspires confidence.

Having failed, by his conduct, to properly defend himself, and having neglected to introduce impeaching testimony, he can not recover damages from the defendant company. It was the duty of the company to investigate the accusation over which it unquestionably had jurisdiction, The plaintiff cannot be heard to complain of a condition to which he has contributed by the weakness of his defence.

Relative to the Damages Claimed.

Having disposed of the question arising from the informalities alleged, and having determined that there was no intentional wrong in proceeding as the company proceeded in their investigation, i. e., in disregarding the forms prescribed, this brings us to the question of the company’s responsibility vel non, in damages for the expulsion.

We are decidedly of the opinion that the plaintiff has no right of action for damages. While, it is true as made to appear to the court by the testimony offered, in the first case, that the formalities were not complied with, there is no evidence of want of good faith on the part of the defendant. The error was an error of judgment. It was not manifest at the hearing before the company that a vote of expulsion was not correct.

In the ease before the court, in which the plaintiff recovered a judgment, with the aid of the rules which apply to actions at law, witnesses that had not been previously impeached were impeached, and the court became convinced that the plaintiff should be reinstated. The plaintiff appeared in his own defence before the company.

Apparently by chance, two witnesses came from opposite directions, unknown to each other, and testified against the plaintiff. There was no correspondence between the one and the other. Even in the District Court the testimony is that of strangers one to the other, and the only correspondence is that each witness has a bad character for truth and veracity, a fact not shown before the company.

Able counsel represented the plaintiff before the District Court, and brought out facts that had not been previously considered.

Even if the company had acted upon the same state of facts, unless it was shown that there was malice and conspiracy on the part of the members to injure the defendant (plaintiff here), he would have no right to damages.

The proof does not sustain either of the charges of malice or conspiracy of the corporation. In the second trial, which resulted in the judgment from which the plaintiff appeals, it was made evident that the plaintiff was fully informed when heard before the company of the accusation brought against him, and was given full opportunity to face his accusers.

The plaintiff had agreed when he became a member of the organization to respond to charges brought in a particular manner, and that the company would pass upon the accusation. It was a tribunal of his own selection. The expulsion was in the nature of am award by a tribunal selected by the parties.

The error committed in good faith is not one for which the company can be held in damages. It (the expulsion) was not a capricious and arbitrary exercise of power. If the charge had been true it would have been within the scope of defendant’s power. The error in not having discovered the truth at the trial is not actionable for damages. We regard it as obvious that appellant has failed to disclose a right which entitles him to damages.

We are of opinion that there is no error in the judgment, and the decree is affirmed at appellant’s costs. ■


text:
    No. 11,723.
    Henry Bolivar Thompson vs. Yazoo & Mississippi Valley Railroad Company.
    The plaintiff held an annual free pass over defendant’s road.
    He was on a. trip by invitation in the officer’s ear and was not called upon to pay or show his ticket.
    The railroad company give him the transportation in that ear; he was lawfully in the car and for any injury done to him by negligence; the owners are liable in damages.

      The bell rope which caused the injury was pulled negligently and violently.
    The passenger who atone time saw the rope and moved away from it, is not guilty of contributory negligence from the fact that immediately after he did not, a second time, move away from it, being engaged in examining a profile sketch of the levees he held in his hands, and unmindful of the bell rope.
    The rope was not where it should have been. In pulling it taut, care should have been taken not to pull it violently and injure a passenger.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Joseph Brewer and Thomas M. Gill for Plaintiff, Appellee:
    A railway is liable to persons whom it accepts for transportation over its line, and from whom it. demands no fare, to the same extent that it is liable to passengers who pay fare. Thus, in P. & R. R. R. vs. Derby, 14 Howard, 468, the plaintiff, the president of another line, and a shareholder of the corporation defendant, having been injured while being carried over the defendant’s line at the invitation of its president, judgment upon a verdict for the plaintiff was affirmed in error, Grier, J., saying the duty of the defendant to carry carefully “does not result alone from the consideration paid for the service. It is imposed by the law, even where the service is gratuitous. 16 How. 469; Wood’s Railway Law, Yol. 2, pp. 1040, 1041; Patterson on Railway Accident Law, p. 207, Sec. 213; Buswellon Personal Injuries, pp.167, 168, Sec. 115; Milton vs. Middlesex R. R. Co., 107 Mass. 108; Flint & Pere Marquette R. R. vs. Weir, 37 Michigan, 111, 114, 115; Austin vs. Great Western Railway, L. R. Q,. B. 444, 545; Head vs. Georgia Pacific Railway, 79 Ga. 358.
    Where carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance, or the negligence of careless agents. Any negligence, in such cases, may well deserve the epithet of “gross.” Philadelphia R. R. Co. vs. Derby, 14How-, ard, 468; 16 How. (U. S.) 469.
    Gratuitous passengers are entitled to safe carriage, and can recover damages for injuries sustained by the negligence of those operating the train of a railway. Wood on Railway Law, 1040, 1041; Patterson on Railway Ace. Law, p. 207, Sec. 213; Ibid., p. 209, Sec. 215; Ibid., p. 212, Secs. 218,505; Buswell on Personal Injuries, 167, 168; Am. and Eng. Encyclopaedia of Law, Vol. 2, p. 744, Secs. 9, 10; Hutchinson on Carriers, Secs. 500, 563, 564, 590; Austin vs. Great Western Ry. Go., 2 Q. B. Oases, 442; Jacobus vs. St. Paul & Chicago Ry. Oo., 20 Minnesota, 125; Buffalo Ry. Oo. vs. O’Hara, 9 Am. and Eng. Ry. Oases, (Pa.) 317 (1882) ; Railway Oo. vs. Stevens, 95 U. S. 655; Ohio & Miss. Ry. Oo. vs. Niekless, 71 Indiana, 271; Godin vs. St. Paul & Duluth Ry. Oo., 30 Minnesota, 217 (1883) ; Lemon vs. Chausler, 68 Mo. 340; Ohio & Miss. Ry. Oo. vs. Selby, 47 Indiana, 471; Waterbury vs. New York Central Ry. Oo., 17 Federal Reporter, 671; Grand Trunk Ry. Oo. vs. Vogel, (Can.) 27, 18; Gulf, etc., Ry. Oo. vs. McGowan, 65 Texas, 640; 5 Otto, U. S. 655-660; 84 U. S. 627; Kimball vs. Boston, etc., Ry. Oo., 13 Vermont, 55; Wilton vs. Middlesex Ry. Oo. 107 Mass. 108; Head vs. Ga. Pacific Ry. Co., 79 Ga. 358; Nolton vs. Western Ry. Oo., 15 N. Y. 444; Old Colony & Fall River R. R. Oo., 3 Allen, 18; Littlejohn vs. Fitchburg Ry. Oo., 148 Mass. 478; Rose vs. Railway Co., 39 Iowa, 246; Railway Oo. vs. Hopkins, 41 Ala. 486.
    In dealing with matters of litigation growing out of railway law, in connection with railway accidents, the Supreme Court of Louisiana will endeavor to place its rulings in line and harmony with the adjudications of the Supreme Court of the United States, and of the courts of last resort of the States of the American Union, iu all cases in which they do not conflict with the special and exceptional system of laws prevailing in Louisiana.” Henry E. Williams vs. Pullman Palace Oar Company ef als., 40 An. 417.
    “ Contributory negligence is a defence which confesses and avoids the plaintiff’s ease, and must be made out by showing affirmatively, not only that the plaintiff was guilty of negligence, but that such negligence co-operated with the negligence of the defendant to produce the injury.” Kentucky Ry. Oo. vs. Thomas, 79 Ky. 160; Am. and Eng. R. R. Oases, 81.
    “ Mere negligence or want of ordinary care or caution will not dis-entitle the plaintiff to recover, unless it be such that but for that negligence, or want of ordinary care and caution, the misfortune could not have happened.” Tuff vs. Warman, 5 O. B. N. S. 573, 585; Washington vs. B. & O. Ry. Co., 17 West Va. 190; 10 Am. and Eng. R. R. Cases, 749, 755; Am. and Eng. Ency. of Law, Vol. 4, p. 18; Thompson on Negligence, 1148 F. 3; Beach on Contributory Negligence, 19; Railroad Company vs. Jones, 95 U. S. 430; Woods vs. Jones, 34 An. 1086; Woods Railway Law, 1225; Pierce Railway Law. 326; Patterson’s Ry. Acc. Law, 45.

      Farrar, Leake & Lewie for Defendant and Appellant:
    The necessary elements in contributory negligence are want of ordinary care on the part of plaintiff, and a proximate connection between that and defendant’s negligence. Beach on Contributory Negligence, Sec. 7; Little vs. Hackett, 116 U. S.; R. R. Co. vs. Haspell, 23 Penn. St. 147.
    The well established doctrine in England, in Canada and in New York, is that the stipulation in a so-called free pass, exempting the carrier from the negligence of his servants, is an absolute bar to recovery, whether the pass be a so-called “drover’s pass”ornot. Alexander vs. R. R., 33U. C. (Q,. B.) 474; Peck vs. R. R., 10 H. L. Cases, 473; Haigh vs. Packet Co., 52 L. J. (Q.B.) 640; McCawley vs. Furness Railway, L. R. (Q. B.) 57; Hall vs. N. Eastern Railway, Ibid. 437; Duff vs. Great Northern Railway Co., L. R. (Ireland), 4 Com. Law, 178; Gallin vs. Railway, L. R. 10 (Q. B.) 212.
    The weight of authority in the courts of the United States, and of most of the States probably, is that drovers’ passes and such like passes, given for valuable consideration, make the carrier a carrier for hire. R. R. Co. vs. Lockwood, 17 Wall. 357; Railway Co. vs. Stevens, 95 U. S. 655; Railway Co. vs. Rose, 39 Iowa, 246.
    The best considered cases and the vast weight of authority are in favor of the binding effect of the stipulation in a free pass in the hands of a gratuitous passenger. Higgins vs. R. R. Co., 28 An. 133; Quimby vs. R. R. Co., 150 Mass. 365; Muldoon vs. Railway, 7 Wash. 528; Rogers vs. Kennebec Steamboat Co., 29 Atl. Rep. 1069.
    Argued and submitted, March 15, 1895.
    Opinion handed down, June 3, 1895.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff claims damages for personal injuries sustained while on a special or private car by invitation of the general agent of the defendant.

He was struck in the light eye by the bell cord of the train. It, the contact with the bell cord, destroyed and tore away portion of the corner of his right eye, and caused secondary iritis, with partial occlusion of the pupil.

Plaintiff furthers avers that the injury is permanent, and renders it impossible for him to have accurate vision with the impaired eye.

The defendant denies all liability, and denies all negligence charged, and alleges that the plaintiff did not pay any fare or passage money on defendant’s train on the day of the accident, and further alleges that the special car on which the plaintiff was, on the occasion in question, was not the property of the defendant company, but it was a car borrowed from the superintendent of the Illinois Central Railroad Company by the Pontchartrain Levee Board, for the purpose of inspecting levees between New Orleans and Baton Rouge; that it was, to the knowledge of the defendant, that it was intended to be used only by railway officers.

The defendant further answers that if plaintiff’s eye was injured by contact with the bell cord, it was directly the result of plaintiff’s negligence.

The defendant also invoked the condition upon which a free pass was issued to plaintiff; that it was to be held harmless against accidents.

The evidence shows that plaintiff, who is a civil engineer, and a member of the Board of State Engineers, and in that capacity an ad-visor of the Pontchartrain Levee Board, was requested by the president of that board, who is also general agent of the defendant company, to accompany the president and other members of that board to examine the line of levees in that district in order that preparation might be made to hold them against the threatening waters.

That the president of the board and the general manager of the company had arranged with the superintendent of the Illinois Central Railroad Company for the use of his car by the inspectors of the levee; that this ear was attached to the train of the defendant at the time of the. accident.

It seems that this special car had been switched off the track while an inspection was being made by the president of the board, and those who were with him on the inspecting tour.

In the afternoon, at the request of the general agent of the defendant company (who was, as we have seen, also an officer of the Levee District), an accommodation train of cars of the defendant company coupled on to the special car (at the rear) and thereafter formed part of defendant’s train of cars operated under its management.

In order to complete the coupling of the special car to the train, it was necessary to connect the bell cord of the train with the bell cord of the special car. The flagman passed the bell cord through the eyelets (attached to the ceiling of the car) in order to connect this cord to that of the coach in front. While the flagman was passing it over the platform to the front car, the plaintiff testifies that he stooped out of the way of the rope, which was then, he says, touching the floor, and took a seat in one of the corners of the car in the rear, entirely out of the way of the bell rope, as he thought.

The bell cord was hanging loosely in the special ear, within a few feet of the floor, when the flagman, gathering in the slack of the cord, violently drew the cord, and plaintiff was struck in the right eye, inflicting the injury of which he complains.

It is shown that the eye sight of plaintiff is impaired; that his vision in that eye is about one-sixth of what it should be in its normal condition; his left eye was injured by another accident several years ago.

The case was tried by jury and a verdict was rendered in favor of the plaintiff in the sum of five thousand two hundred and fifty dollars, with legal interest from December 14, 1894 (the date of the judgment), and cost.

From the verdict and judgment of the court the defendant appeals.

It is manifest that plaintiff sustained the injury on defendant’s train. It was under its management and control, and it was responsible for the negligence of the employees. Such being our conclusion on that point, it devolves upon us to determine whether or not plaintiff was a passenger by invitation or a passenger riding on a free pass, containing printed stipulations to hold the carrier harmless against the negligence of his servants.

In order to place the facts upon this question properly before us, we return to the statement of facts, and from the evidence of defendant’s general agent we extract:

Q. Mr. Thompson then accompanied you by your request in this special car, and he would not, under any circumstances, have been required to pay any fare?

A. No, he would not; for the reason that the railroad company gave transportation to all the members of the levee board and all connected with it, the engineer and secretary.

Q. Suppose he had no such ticket or pass, would he have been required to have paid fare on that trip ?

A. No, he would not.

Q. According to that, he would not have been required to pay the fare, because you had arranged for the hauling of the car?

A. Not as long as he remained in that car; but if he had gone on any other portion of the train, he would have been compelled to show his pass or to pay his fare, if requested.

From the foregoing, we conclude that plaintiff was a passenger by invitation, without contract or stipulation.

The free pass has no place in the controversy. No offer was made to use it, and he was under no obligation to show a pass or pay for a ticket.

We will not assume that a stipulation was in force, and give it effect in the absence of evidence that the passenger was riding on such a pass.

From the fact that a person has a free pass, it will not be assumed, in the face of the request made here, of the plaintiff to ride in the officers’ car, where fare is not charged, that he was using it on the occasion in question.

As there was no contract of carriage between the plaintiff and the defendant, can the carrier be held responsible for accidents caused by the negligence of servants?

That question was discussed at some length in a well considered case in the court of last resort in this country. Philadelphia & Reading R. R. Co. vs. Derby, 14 Howard (U. S.), 291, 292.

The principle that it makes no difference to the obligation to perform a service well after it is once entered on, whether it is performed gratuitously or not, is announced in that case, and that principle was followed in the case of Steamboat New World vs. King, 16 H. 260, 261, in which it was urged that the master had no power to impose any obligation on the carrier by receiving a passenger without compensation.

The degree of negligence for which the carrier may be responsible to such passengers was discussed without further absolute conclusion than that it is necessarily a question of fact. See authority last cited, supra.

The plaintiff was lawfully on the train. The authority of the general agent, under prevailing custom, gave him power to act and bind the company.

See also Randell and Wife vs. N. O. & N. E. R. R. Co. 45 An. 779, 787.

The evidence shows that the passenger was not riding on the train by invitation for mere pleasure.

At the moment he sustained the injury he and the general agent, Mr. Spellman, who was also president of the board, were in the act of examining charts and profiles of levees with the object of directing such repairs of these levees as were needful at the time. The defendant had an interest in these repairs; about eighty-five miles of its road are protected by these levees.

This brings us to the issue; defendant’s negligence vel non.

The injury might have been provided against by due care and proper diligence on the part of the servant.

Having failed in this duty liability attaches for the consequences.

The proof is that the rope was pulled violently and without warning. There was no necessity of exerting great force in pulling up the taut.

It was the duty of the flagman to give warning to the passengers in a car, with interior arrangement excluding his sight from the rear to the front platform. Witnesses refer to the violent pulling of that rope as dangerous. The consequence in this case shows that it was very dangerous.

The Louisiana Code defines gross fault as that which proceeds from inexcusable negligence or ignorance. Art. 8556, No. 18.

We are of opinion that the act of the servant for which the master is responsible is embraced within the terms of that definition.

In regard to passengers the law of common carriers exacts the highest degree of carefulness and diligence.

The defendant, through counsel, argues that plaintiff, by want of ordinary care, contributed to his injury and is therefore barred from recovery.

The evidence does not disclose that the injury was due to plaintiff’s fault or want of care.

The essential element of contributory negligence on the part of a passenger injured by an accident is his disregard of some risk which he might fairly have anticipated. Buswell, Law of Personal Injuries, 285.

A passenger is not put upon his inquiry, for he was not bound to anticipate negligence on the part of the defendant’s employee. He did not violate any rule, nor did he fail to comply with any notice, for none was given. He was not in a place not intended for a passenger.

The defendant’s flagman, by the exercise of proper care, might have avoided the accident that plaintiff did not foresee.

“ It is well settled that the passenger who, voluntarily and unnecessarily places himself in a position of danger,' can not hold the railway responsible for injuries of which his position is the efficient cause.” Patterson’s Railway Accident Law, 282, 283.

The record does not disclose that the passenger voluntarily and unnecessarily placed himself in a position of danger.

The only remaining question to be considered is the amount of the damages.

The oculists who testified differ somewhat as to the extent of the injury to the eye.

One of them testifies that, in his opinion, the iris is not substantially injured, and that by surgical operation ic is possible to remove to a considerable extent the defect in plaintiff’s vision. The diagnosis of the other oculist shows a condition less favorable to improvement.

Each agree in stating that the vision of the wounded eye would be greatly improved by the operation of “iridectomy.”

The fact remains that, viewed in the most favorable light, the eye will never be restored to its normal condition.

After a careful examination of the evidence, and after having reviewed the authorities regarding the quantum of damages, we must reduce the amount of the verdict so that it may be in line as to the amount with prior decrees.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount from five thousand two hundred and fifty dollars to two thousand five hundred dollars; as amended the judgment is affirmed at appellee’s costs.