author: Monroe, J.

text:
    No. 13,376.
    J. S. Jackson, Tutor vs. St. Louis South Western Railway Company.
    Syllabus.
    1. Where a boy of fourteen, even though he be trespassing, is forcibly ejected from a moving railroad train, by a person for whose actions the company is responsible, and thereby loses an arm, the company will be held liable in damages.
    2. Verdict for $4,000.00 sustained.
    APPEAL from the First Judicial District, Parish of Caddo — Land, J.

      A. D. Land, Jr., and Thigpen & Foster for Plaintiff, Appellee.

      Alexander & Wilkinson, George Wesley Jack and 8. U. West for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

Plaintiff, as the dative tutor of the minor, Louis Craig, claims that said minor was summarily and unlawfully ejected by a servant of defendant from its train, whilst the same was in motion, with the result that the car wheels passed over his left arm and so mangled it that amputation was necessary.

ILe alleges that the minor was guilty of no negligence, and that he has sustained damages to the amount of $10,000, for which he prays judgment. Defendant denies fault on its part and alleges that any injuries which the minor may have sustained, resulted from his own negligence, whilst trespassing upon defendant’s property. Taking the pleadings and evidence together, the case presented is as follows:

Not long before noon, July 11th, 1899, one of the defendant’s trains, consisting of an engine, baggage car, coach for colored people, coach for white people, arid sleeper, reached Shreveport and pulled into the Union Depot. The passengers and the baggage were soon discharged and the train backed in the direction of certain freight yards in order to be put in readiness to go out, according to schedule, in the afternoon. The defendant company is called the “Cotton Belt”, but, so far as the testimony goes, it appears that it went into Shreveport over the bridge of the Vicksburg, Shreveport & Texas Railroad Company, used the tracks of said company in reaching the depot, and in backing out, and that the freight yards into which it backed, and where it was to remain and be overhauled preparatory to its departure in the afternoon, were the yards of the same company; from which it would seem that the two roads are conducted under one management, or, and beyond any question, that they are working under an arrangement whereby the bridge, the tracks to the depot, and from the depot to the freight yards, as also the depot itself and the freight yards, are used in common.

Just before the train in question backed out of the depot, the boy, about fourteen years old, in whose behalf. the suit is brought, got aboard. He states that his purpose was to mail a letter, but that, not knowing where to mail it, he got off, when the train started, and then, when the train was in motion, seeing the mail box, or opening for letters, in the side of the baggage ear, he got on again, intending to ride to a street crossing, at which a stop was usually made, and avail himself of the opportunity to accomplish his mission. The theory of the defendant is, that his purpose was to steal a ride. There is some evidence corroborating the statement of the boy and some corroborating the defendant’s theory.

Pretermitting this question; it will be understood that, in backing, the position of the cars was reversed, and that, as the train was moved, they were in the following order, from front to rear, to-wit; sleeper, white coach, colored coach, baggage car, and engine, so that, accommodating this opinion to the testimony of the.witnesses, who spoke with reference to the manner in which the train was made up, rather than with reference to the direction in which it was going, the expression “rear platform”, and “front platform”, are to be taken in the opposite sense to that in which they would ordinarily be understood, with the engine in front. Bearing this in mind; the boy was on the lower step, either of the front platform of the sleeper, or of the rear platform of the white coach; and, whilst the train was moving at the rate of six or seven miles an hour, he either jumped, fell, or was forcibly ejected, in such a way that his left arm was so mangled under the wheels that amputation at the shoulder was necessary, and was performed, almost immediately.

This being the case, it is immaterial what may have been his reason for getting on the train. If he voluntarily jumped, or, through fault, or misfortune, of his own, fell off, he is not entitled to recover. Upon the other hand, if he was forcibly ejected, by any one for whom the defendant is responsible, he is entitled to recover; no matter why he got on the train, since there is no law authorizing the taking off of a boy’s arm at the shoulder as a penalty for trespassing- on railroad, or any other, property. We have, therefore, to consider the two questions of fact: (1) Did the boy jump, or fall, off; or, was he forcibly ejected? (2) If forcibly ejected, was it by any one for whom the defendant is responsible? There is more or less of conflict in the evidence, but the truth lurks in the midst of the conflict, and, though somewhat obscured, is not beyond the reach of deliberate and impartial investigation.

There are some white witnesses and some colored ones; some who are railroad men, and some who are not, and, without regard to these distinctions, there are some, and this includes the majority, who have stated the facts as they understood them, and to the best of their ability; and others, being a small minority, whose statements are irreconcilable with knowledge in their possession and with their want of knowledge.

There is no question but that the boy was standing on the lower step of either the sleeper or the white coach, facing outwards; and that, whilst in this position, his feet, either voluntarily, or involuntarily, went out from under him; and that, after hanging and dragging a little, he fell under the car and received the injury of which he complains. His statement is as follows: “When we got in front of Ed. Wafer’s saloon, a white fellow came to the door and said ‘Get off’; I looked around at him and did not pay any attention to him, and I kinder looked again.

“Q. — And he hallowed at you?
“A. — Yes, sir; he said ‘get off here’, and I turned around towards the depot and then he kicked mo; and when he kicked my feet from under me, I held hold of that little tiring by the steps that you pull up with; I held hold of that with my left hand, but the train jerked me and I-had to turn loose, and it rolled over my arm. I was standing on the steps when he kicked.”

Elmore Jackson, Lewis Stephens and Henry Toney were standing in front of the saloon to which the boy refers. Jackson and Stephens testify positively that they saw the man, who is identified as Smith, kick the boy off, and that there was no one else on the platform at the time. Toney testifies that the man rushed and hallooed at him, and made him jump off, and that he did not see him kick the boy, but that he can’t swear that he did not, and thought he was near enough to have kicked him. Wood testifies that he was loading his express wagon and heard exclamations of the by-standers “the man with the white shirt on kicked the boy off.” Jackson also testifies that he went to the boy immediately, put him in a hack, and sent him to his mother, and that the boy said “that man kicked me off.”

The story which Smith tells is; that he has been, for the past ten years, in the employ of the Vicksburg, Shreveport & Texas R. R. and the defendant companies, but that, at the moment of the occurrence, he was unemployed. As we understand him, he had just previously been in the employ of the V., S. & P. Co., and re-entered that service immediately afterwards, so that the time during which he was not so employed was measured by that of the occurrence. He says that he got on the train at the bridge, as it was coming in, because he wanted to see the conductor and ask him how he had been getting on, and that he saw the boy catch on at that point; that, in backing out from the depot, he was standing on the rear platform of the white coach, riding around for pleasure, while the boy was on the adjacent front platform of the sleeper, and that he neither spoke, nor did anything to him, but that the boy jumped off; that considering the speed of the train at the time anyone used to getting oil trains would not have fallen; and that he remained on the platform after the boy was caught in the wheel, made no attempt to pull him out, and did not know until afterwards that he was hurt. Being asked, “How soon did you leave the train after that accident?” he replied, “I think about two weeks”. At the end of which time it appears that he went to visit his father, in Mississippi, ¡and remained there, until he returned to Shreveport in order to give his testimony. lie further testifies that he had not been in 'the employ of the “Cotton Belt” since 1891, and has chased no boys off its trains, and would not have done so under any circumstances, though he also says that he was employed in the yard, and that all the men there, from car inspector down, have orders to keep trespassers and vagrant boys off the trains. He further says that he had seen the boy, in whose behalf the suit was brought, jumping on and off the trains every day.

There are two witnesses who undertake to testify positively that Smith did not kick the boy; Shanklin and Hutton. Shanklin was at that time in the employ of the V., S. & P. Co., and was going toward the depot, from which the train was coming, on another track, and on the side upon which the boy came off. lie says: “I was a car length below, and had a full view of the rear end of the car, when the boy fell”; and from his further testimony, he places himself somewhere near the end of the sleeper, and from two and a half to five feet from its side. He swears, most positively and emphatically, that there was no one but the boy on the rear platform of the white coach, that the boy was on the steps of that platform," and that he fell off, and was not kicked off. It is shown to our satisfaction that, within a fortnight after the occurrence, this witness stated that he was not in a position to see whether the boy was kicked off or not, and it is evident that there is an irreconcilable conflict between his testimony and that of Smith, who swears that he was standing on the platform, upon which the witness swears that there was no one standing. The other witness, Hutton, claims to have been standing about half way in the rear door of the white coach, with one foot on the platform, and near Smith, who was outside on the platform. He says that the boy was on the steps of the sleeping car platform and beyond Smith’s reach; and that Smith neither spoke to him, nor kicked him. He also says that the boys are great nuisances, and worry the railroad company’s employes a great deal, and that he, now and then, tells them that they ought to be doing something else than catching on passenger trains. Two other witnesses, Woodward and Russell, testify that they did not see Smith kick the boy, though they saw the exit of the latter, and saw him hang- by the hands, drag, and fall. This testimony is unimportant, except in si far as it corroborates the boy’s story. Woodward was located in the colored coach; and Russell was standing on the lower steps of the front platform of the white coach, and neither could see Smith, who was on the rear platform of the white coach. Their statement that the boy appeared to jump, or step off, throws no light on the question at issue, because anyone so situated, and driven, by force, from the rear, would involuntarily make some effort. Woodward says that he could have seen anybody kick him. This is manifestly untrue. Russell, who was in a better position than Woodward, says he could have seen it, if the boy had been kicked “hard”. He, no doubt, means by that, that, if Smith, in kicking the boy, had brought his own person within range of his, Russel’s, view, i. e,., beyond the line of the car’s side, the witness could have seen it; but that is not to the point. Several other railroad employes were examined, and they agree that the practice of jumping on and off the trains, by colored boys, was a source of great annoyance, and that their instructions were to keep the boys off. One or two of them undertake to identify Craig as one of the offenders. It also appears that there is an ordinance of the city under which the offence can be dealt with. The Chief of Police testifies, that, in July, 1899, when the affair occurred, Smith was a special officer, appointed at the request of the railroad companies and paid by them, and that he was so appointed upon the representation that they needed such a person as watchman at the bridge; because of disturbances on trains; and because of the annoyance to which they were subjected by boys jumping on and off their trains.

Jones, train inspector for the V., S. & P. Co., testifies that Smith had been employed about the yards for several years, and was so employed in the summer of 1899, and that he had seen him chase boys off the trains. And Richler, Walker, and Eants, also testify to having seen Smith so engaged — Walker mentioning the name of a boy who was arrested by Smith in August, 1898, and fined $5.00. When we add to this testimony the eloquent silence of the defendant upon the subject of Smith’s employment, further comment becomes unnecessary. If he was not employed by it, some respectable and responsible officer would have so testified, as its learned counsel fully appreciated the importance of the question.

We concur in the conclusion reached by the jury, before which the case was tried, and by the judge a quo, who made the verdict the judgment of the court, that the case isi with the plaintiff, and that it has been proven that the boy, in whose behalf the suit was brought, has lost his arm by reason of his having been forcibly, and unlawfully (as to the manner) ejected from a moving train by a person for whose action the defendant is liable.

Cooley on Torts, §§ 532, 538; Burrows on Negligence, 155; Steamboat Co. vs. Brockett, 121 U. S., 637; Hoffman vs. N. Y., Etc., R. R., 87 N. Y., 25; Higgins vs. Watervliet, Etc., R. Co., 46 N. Y., 23; Coleman vs. N. Y., Etc., Co., 106 Mass., 160; Johnson vs. Chicago, Etc., R. Co., 58 Ill., 348; Hart vs. N. O. & C. R. R. Co., 1 R. (La.), 178.

The amount of damages awarded was $4,000, and defendant’s counsel argues that, considering the position, earning capacity, etc., of the person injured, this is excessive.

The boy is poor, black, illegitimate, and ignorant, and, when injured, was receiving seventy-five cents a week for working about a negro barber shop, to which were added his earnings, probably a few dollars a week, as a bootblack. It seems to us that, being thus about as badly situated as a boy of fourteen, who is not an invalid or a criminal, can be, he was particularly in need of the arm of which he has been deprived; for that, and the other arm, were about all that he had to depend upon to help him through, in the long struggle which lies before him, and which is hard enough, even for those who are better situated and have both arms and hands; and that the amount as allowed is not excessive. Ketchum vs. T. & P. Railway Co., 38 Ann., 777; Barnes vs. Railway Co., 47 Ann., 1218; Lampkin vs. R. R. Co., 42 Ann., 997.

The judgment appealed from is therefore affirmed.

Rehearing refused.

On Application for Rehearing.

The counsel for the defendant, in their brief, filed in support of the application for rehearing, say:

“Craig says his feet were kicked from under him, yet search the “ record in vain, and not another witness says as much. If he was false “ in these particulars, it was an easy matter for him to be false in all.”

With no particular effort, we have found the following testimony upon the subject mentioned, beginning with that of Craig, the plaintiff, to whom the counsel refer, to-wit:

Lewis Craig: “He said, ‘get off here’, and I turned around towards “ the depot, and then he kicked me; and when he kicked my feet from “ under me, I held hold of that little thing by the steps that you pull up “by; I held hold of that with my left hand, but the train jerked me and “ I had to turn loose, and it rolled over my arm. I was standing on the “ steps when he kicked me.”
Elmore Jackson: “Q. Did you see Tony Smith kick him? A. Yes, “ sir; I saw him kick him. Q. Did you see the boy fall off ? A. When “ he kicked him, he disappeared to my eyes; I was on the ground, and “ couldn’t see across. Q. What side was he on ? A. Next to the de- “ pot, and I was on the side next to the saloon. After he fell, I could “ not see him until the train passed, and then I saw him get up with “his arms folded like this (illustrating). Q. Did you recognize Mr. “Tony Smith? A. Yes. Q. How long have you known him? A. “ I was raised where he was; I lived there for a number of years after he “moved there. Q. There is no doubt about his actually being the “man who kicked Lewis Craig off? A. He was the man; I saw him.
^ vc1 75* vr ■K*
“ Q. Did Lewis make any statement at that time, as to how it happened? A. Yes, sir; he said ‘That man kicked me off.’ ”

Lewis Stephens:

“Q. Where was the boy at the time you saw him? A. He was “ standing on the coach steps, and that man, Tony Smith, kicked him “off the train. * * * Q. You saw this man kick the boy off the “train? A. Yes, sir; I saw him kick the boy off the train. Q. There “ is no doubt about it, you saw him kick him? A. Yes, sir; I saw him “kick him off the train. Q. You saw the boy fall? A. Yes, sir. Q. “ And when you next saw him, his arm was mashed ? A. Yes, sir.”

Cross-examined:

“Q. How did the boy fall; did the man kick him clear loose, or did the boy hang by the rail a little while ? A. When the man kicked him, “ he fell and hung a little while; he hung on to it a little while.”

Robert Wood:

“Q. What is your employment? A. I work for the Express Oom“pany. * * * Q. Do you remember anything about the date on “which Lewis Craig is said to have been injured at the Union Depot? “A. I do not remember the date. Q. Do you remember the fact; “were you at the depot at the time? A. Yes. Q. What were you “ doing ? A. Loading the express wagon. Q. Did you see the oceur“rence? A, No, sir; I did not see it at the time it happened. Q. “ State whether or not, about that time, you heard any voices or cries or “ exclamations in regard to that accident ? A. I did. Q. What were “ they. A. I heard them say, the man with the white shirt on kicked “ the boy off. Q. Was that right at the time of the accident? A. It a was about two or three minutes before the boy got in front of the “wagon. Q. Did you see the boy ? A. Yes, sir. Q. What was his a condition ? A. George was leading him, and his other arm was hang- “ ing; I stopped work to look at him * * * Q. Did you see Tony “ Smith there that day ? A. Yes, sir. Q. How long have you known “him? A. Since before he was grown good; I knew his father well, “ he has been around the bridge here for five or six years.”

The learned counsel refer to this testimony and say that Jackson does not testify that Craig was kicked off the t^-ain, but that (having been kicked) he disappeared from the eyes of Jackson, who was upon the other side, and could not see across. It will be observed, however, that Jackson also testifies, that when the train passed, he saw Craig “get up, with his arm folded liked this” (probably demonstrating the manner in which the boy held his crushed arm). As to Stephens, the counsel say that his “evidence is so emphatic, and manifestly exaggerated, that, in every line, his bias is shown.” Nevertheless, he is another witness who “says as much” as Craig; and whether he is exaggerating, or is biased, is a good deal a matter of opinion. The counsel for the plaintiff seem to think 1hat he is not, and this court is also of that belief. Counsel for defendant state that Henry Toney, a witness for the plaintiff, “says postiively that the boy jumped off, and was not kicked or pushed off”. That was evidently the impression which Toney received from his point of observation, and he so testified when first on the stand, but, upon being recalled, he testified as follows: “Q. You stated in your direct examination that you saw a man on the platform, and saw the boy jump off, did you mean the jury- — —” (objected to by counsel for defendant). “Q. Can you swear that Toney Smith did not kick that b<-y off that train? A. No, sir; I cannot. Q. You say that you did not see him kick him? A. No, sir; I did not see him kick him. Q. Can you swear positively that he did not kick 'him ? A. No, I cannot. Q. (by juror). Did not you swear that you saw him jump off? A. I said that the man made him jump off. Q. How far was the man from the boy when the boy jumped off? A. He was opposite the coach door. Q. On the inside of the coach or on the outside of the coach? A. It was outside of the coach. Q. Could he have kicked the boy ? A. Yes.”

The learned counsel, referring to the claim that Smith was acting for the defendant, as their employe or under circumstances which made the defendant liable for his conduct, say: “On the next proposition the evidence of plaintiff does not make even a prima facie showing”.

The following is the evidence, and all the evidence in the record, except that of Smith, upon the subject of that individual’s employment at or about the time of the accident.

G. IS. Richler.

“Q. Are you acquainted with Tony Smith ? A. Yes, sir. Q. Do you know whether or not he is employed by the Cotton Belt Road? A. I cannot say positively? Q. What do you mean? A. I cannot say positively, because I do not know whether he is employed by them or not. Q. Did you see him during the month of July, last summer, working for the Cotton Belt? A. I cannot say that positively. Q. What did you see him doing ? A. I saw him on the cars, the same as other parties, chasing the boys off the cars. Q. Can you say whether or not he was employed by the company? A. I do not know. Q. You saw him keeping boys off the train? A. I saw him running the boys. Q. In July last? A. Yes. * * * Q. Did he seem to be working pretty energetically at that — chasing the boys away ? A. Yes, sir. Q. At the time there were two trains a day? A. Yes, sir. Q. He seemed to be working vigorously at chasing the boys ? A. He had to be light-footed to catch them, and he caught very few. * * * Q. Did you ever see Tony Smith working on the Cotton Belt train immediately after the injury to Louis Craig? A. Yes, sir. Yes, sir; I saw him one, two, or three days after that. Cross-examination. Q. You saw this man Tony Smith, on the cars passing- back and forth, but you do not know whether he was on the pay roll of the company, or employed by the company? A. No, sir; I do not know whether he was or not. I saw him on the ears chasing the boys. Q. You have seen other men on the other train keeping them off, too? A. I have seen Trout; he had them getting off the top sometimes, as well as off the platform.”

C. E. Jones.

“Q. Are you acquainted with Tony Smith? A. Yes, sir. Q. Have you ever seen him chase boys off the Cotton Belt train ? A. Yes, sir; I have seen him chase boys off the Cotton Belt train, and Jj have seen him chase them off of the V., S. & P. train, also. Q. Do you know whether he is employed by the Cotton Belt? A. No, sir; I do not. Q. Do you know whether he was employed by the Cotton Belt last summer ? A. I do not remember the date, but for quite a while he was employed there. He has been employed mostly in the yard. I do not know what train it was exactly, but it was some time during the present summer. He was employed in the yard mostly for three or four years. Q. What were the general orders to the men working in the yards in reference to these boys jumping on and off the trains? A. We have all got instructions to keep them off there, if possible. Q. What position do you hold? A. Train inspector of the V., S. & P. Railroad, Cross-examined. Q. Is it a matter of great annoyance and trouble to the V., S. & Pacific and the Cotton Belt people to keep these little boys off the train? A. Yes, sir.”

Ed. Wcdlcer.

“Q. Did you ever see Tony Smith apparently working on any Cotton Belt train this summer? A. I saw him going backward and forward on the train. Q. Did you see him chasing boys off the train ? A. On one night the V., S. & P. train came in about seven o’clock, and Willie Weekly jumped on, and I think it was Tony Smith that caught him. He chased him and grabbed him around the shoulders; it was at night, but I think it was Tony Smith.”

IF. A. Nelson (Chief of Police, of Shreveport).

“Q. During the month of July, last, was Tony Smith a police officer of the city of Shreveport? A. Yes; special watchman for the railroad company; watched the bridge down there and had authority to act as policeman. Q. Paid by the city? A. No, sir. Q. He is a special watchman in every sense of the word? A. Yes. Q. Do other special watchmen throughout town have authority of policemen? A. Yes. Q. He (Smith) is paid for working for private parties? A. Yes. The railroad has him employed, just the same as watchmen are employed by the banks. Cross-examined. Q. How did this special watchman come to be appointed? A. The railroad companies asked us to do it; they wanted a watchman down by the bridge, and then, too, there are disturbances on the cars — frequently there are. Q. Was there some complaint about little negroes jumping on and off the trains ? A. Yes, sir; that is the reason we appointed him, and gave him the same authority as a policeman. Last fall Mr. Hearn asked me for a man, and he paid him for that special purpose.”

Now, it is true that Smith himself testifies that he was not in the employ of the Cotton Belt, though he had been, off and on, for years, but he also testifies that he did not chase boys off the train, and continues as follows:

“Q. You can positively swear that you have not chased them off the Cotton Belt train? A. Yes, sir; I have not. Q. And you would not have done it under any circumstances? A. No; I would not. Q. Do you mean to say that if your duty to the Cotton Belt railroad called for such action on your part you would not have done it? A. No, I would not.” Which testimony is entirely irreeonfcilable with that before quoted, which was given by witnesses apparently as worthy of belief and certainly more disinterested than Smith. “But,” say the learned counsel: “We did not stop there” (with Smith’s testimony) “we put the whole train crew on the stand, from the conductor down, and each and every one of them, swears specifically as to who composed the train crew on the day of the accident.” This is quite true, but there are two things to be said in regard to the( testimony thus referred to, to-wit: First, that nobody pretends that Smith was a member of the train crew and, second, that the conductor, in his testimony, not only does not include Smith ns a member of the train crew, but gives us to understand that he was not on the train, though that fact can hardly be denied, and Smith swears that he was there for no other purpose than to pay a friendly visit to the conductor. In order that there may be no misunderstanding about the conductor’s testimony, we quote it:

J. A. Holmes sworn on behalf of defendant:

“Q. What is your occupation? A. I am a conductor. * * * * Q. Do you remember the time that the boy, Louis Craig, had his arm injured by being run over near the depot, here ? A. Yes. Q. Were you in charge of that train? A. Yes. * * * Q. (by jury). Of whom did the train crew consist? A. Of the conductor, the engineer, fireman and porters. Q. Did anybody else have any business on that train ? A. The car tenders. Q. Was anybody else — anyone other than these, allowed on the train? A. No, sir. Q. Anybody else that got on, besides the train crew and car tenders, would have to get off? A. Yes.” Smith, upon the other hand, testifies as follows: “Q. Are you in the habit of riding on that train? A. Yes, I have been. Q. The conductor knows you? A. Yes. Q. The train men know you? A. Yes. (By the Court): Q. Why did you take that train at the bridge and go back on the same towards the freight yard ? A. I had not seen Holmes for a long time, and I wanted to see him and ask him how he had been getting along. (Counsel continues). Q. You say you had not seen him for a long time? A. No, I have not seen him for a long time. Q. Do you mean to say that he had not been on the train for a long time? A. Not down here. Q. He was just recently on down here? A. Yes. Q. The other conductor you have seen frequently ? A. Yes.”

With the testimony which we have thus quoted in the record, it seemed rather significant that no officer or person connected with the defendant company should have taken the stand to say that Smith was not acting for it, or with its authority, in ejecting the plaintiff from its train. But let it be conceded, arguendo, that that circumstance is not to be taken as corroborating the testimony tending to show that Smith was employed by the defendant, the affirmative evidence on that subject still remains; and, were it not for the statement of fact which the counsel make in their brief for rehearing and the affidavits of other persons, which they have attached thereto, it would seem sufficient for the purpose, without corroboration. And, supposing that the evidence in the record is to be controlled by statements and ex parte affidavits, outside the record, presented after the case has been decided on appeal, and that it should be held that Smith was not, at the moment of the infliction of the injury upon the plaintiff, in the employ of the defendant, to the knowledge of the counsel, or of the officers who have furnished the affidavits mentioned, the fact still remains that he was, and had been, and continued to be, engaged in the business of ejecting boys from defendant’s trains, and it would be unreasonable where an individual is permitted to travel back and forth on the trains of a railway company, discharging certain functions, to all appearances as though he were employed for that purpose, to permit such company to escape the consequences of his acts, done in the course of such apparent employment. Cooley on Torts, 622, 623, 624; Lampkin vs. Railway Co., 42 Ann., 997; Althorf vs. Wolfe, 27 N. Y., 355.

The manner in which the testimony was given led the court into a misapprehension as to the possible relations existing between the defendant company and the Vicksburg, Shreveport and Pacific Railroad Company; but it is a matter of no consequence, and has no bearing upon the result.

Rehearing refused.


source: Caselaw Access Project

license: Public Domain

text:
    No. 13,394.
    Nemours H. Nunez vs. James Bayhi.
    Syllabus.
    1. Where, in a case involving the entire inheritance of one of the parties litigant, the main question is one of fraud, alleged to have been perpetrated to their prejudice, and it appears that important facts are within the knowledge of the other party, who does not take the stand, and of another person, whose testimony can be obtained without delaying the final determination of the case, the application for leave to obtain the testimony of such person should be granted, unless the parties making it are shown to have been guilty of great laches.
    2. When facts are shown which are sufficient to throw doubt upon the reality of a transaction, the burden of proof is shifted to those who know the truth, and, where they fail to furnish information within their knowledge, the presumptions of law are against them.
    3. Where it is manifest that evidence, improperly excluded by the trial court, on the one hand , and withheld by the advice of counsel, upon the other, is easily obtainable, and may serve to aid in the determination of an important issue, this court will, in its discretion, remand the case, in order that such evidence may be supplied.
    APPEAL from the Twenty-Second Judicial District, Parish of St. Bernard — Single, J.

      John Dymond, Jr., for Plaintiff, Appellee.

      A. S. & 0.8. Livaudais for Defendant and Intervenor, Appellants.
   The opinion of the court was delivered by

Monroe, J.

This is a petitory action, brought against James Bayhi, who is in possession, for the recovery of certain real estate, situated in the parish of St. Bernard, which the plaintiff claims to have purchased from Honore V. Bayhi, for $3,000 cash, by act, before Jas. D. St. Alexandre, Notary Public, of date May 19, 1899.

Defendant answers that he holds said property, as owner of one undivided half interest, and by the authority of Gustave Bayhi, his brother, who owns the other undivided half interest; that his brother and himself are the sole heirs of Honoré Y. Bayhi, who owned said property, and was in possession ¡thereof at the time of his death; that the act of sale relied on by the plaintiff, if consented to by said Honoré Y. Bayhi at any time, was obtained from him, not upon May 19, 1899, but a few days before his death, when his mind was enfeebled by disease, and through fraud, error, misrepresentation, and duress, and without consideration. The respondent then assumes the character of plaintiff in reconvention, and claims the value of certain movable property, said to have been taken possession of by plaintiff, together with damages alleged to have been sustained by him by reason of its removal, and he prays for judgment rejecting the plaintiff’s demand, and decreeing the act of sale sued on to be null. Gustave Bayhi, intervening, alleges that he and James Bayhi, the defendant, are the sole children and heirs of Honoré V. Bayhi; and that he is the administrator of the latter’s estate, and his intervention contains, in other respects, substantially the same averments as are to be found in the answer of James Bayhi.

The evidence shows that Honoré Y. Bayhi, the father of the defendant and the intervenor, was nearly eighty years old at the time of his death; that some four or five years prior thereto he had married, as his third wife, a widow lady, with three children, to whom he made an ante nuptial donation of one-third of his estate, or rather of an undivided third interest in the property here claimed, which was his home, and, with the exception of some little movable property, constituted his entire estate; that several months before his death, he had been stricken with a mortal illness, as the result of which he grew more and more feeble, so that he became, successively, bed-ridden, childish, and moribund.

There is a serious question as to his mental condition upon May 19, 1899, the day upon which the plaintiff claims that he executed the act of sale sued on, but there is none as to his physical condition, for, whether it was done on May 19th or June 7th, it is shown that he was confined to his bed, and that his wife supported his arm when he signed said act; and there is no question as to either his mental or physical condition on the seventh of June, the day upon which the defendants allege that Said act was executed, since* it is practically admitted that he was then, from either point of view, incapable of executing such an act. Another question, which the evidence leaves in grave doubt, is whether any such sum as three thousand dollars, for which the property is said to have been sold, was ever, in reality, paid; the most that is shown upon this subject being that the vendee handed, or counted, to the vendor, “some money”, which immediately passed into the hands of his wife, but, how much there was, no one has undertaken to say. The notary says: “I did not see the money counted out”. Albert Nunez, one of the witnesses to the act, testifies that he saw the vendee counting some money, but does not know how much he counted. Serpas, the other witness, says: “They kind of raised him up, and held his arm. “ Mrs. Bayhi helped him upon the pillow behind him, to prop him up, “ and held his arm, when he signed the act. * * * I wouldn’t “ swear that I saw $20 counted; any amount at all. I saw money, but “ how much, I do not know”. There were no other persons present except the vendor, who died upon the 13th of June, following the signing of the act, the vendee, who is the plaintiff herein, and Mrs. Bayhi, the surviving widow. The vendor could not be made a witness, because of his death, and the other two persons mentioned, do not testify — the plaintiff because he was so advised by his counsel, and Mrs. Bayhi, because the plaintiff made no attempt to obtain her testimony, and, through his counsel, objected to the defendant’s application for a continuance, and for time, to obtain it, which objection was sustained by the trial court under the following circumstances, to-wit: Mrs. Bayhi resided in the parish, and the defendants caused a subpoena to issue, directing- her to appear and testify. Upon the day of the trial, however, she was absent, and it was shown that, some two months before, she had gone to Biloxi, a resort upon the Gulf coast, where she was boarding-, and, as we understand it, spending- the summer. The defendants moved for a continuance, which was denied on the ground that the motion was not sworn to, and did not allege that the facts sought to be proved by her could not be established by other witnesses. The defendants then asked leave to supply the affidavit, and to amend the motion, which was denied. At the conclusion of the trial, and before argument, the defendants, in view of the fact that the case was to be left open in order to obtain the testimony of the physician who had attended Honoré Y. Bayhi, and also upon the ground that it had been demonstrated that the desired information could be obtained from no one else, asked that they be allowed ten days in which to obtain the testimony of Mrs. Bayhi, by commission, but this request was likewise refused, although, as it appears, it would have taken no longer to execute such commission than to obtain the testimony of the physician, and hence, there would have been no delay resulting from its being granted. The case was, therefore, decided by the court a qua, and comes to this court, without the testimony of either of two witnesses, who were both readily accessible and who along are capable of giving information upon an important and disputed point.

The counsel for the plaintiff suggests that fraud is not to be presumed, and that merely to make the charge, throws no burden of proof upon him against whom it is leveled. This proposition, as stated, may be accepted as sound in law, but it does not meet the requirements of the present case, in which the facts disclosed are unusual, and require explanation. Without going into' all the details, it is sufficient for present purposes, to say — -that it has been shown that Honoré Bayhi had two sons by his first marriage, who are now over fifty years of age; that one of them, James, has always lived with his father and continued to do so up to the time of his death; that, with the exception of some furniture, of inconsiderable value, the property in question, being their home, was the only property which the father possessed; that, at the age of 75 or 76 years, he donated one-third of said property to a widow lady, and thereafter ¡made her his third wife; that when, within a few months of his 80th year, he was stricken with a disease, of which he subsequently died, and, whilst suffering therefrom, enfeebled to such an extent that he was confined to his bed, and it was necessary that his wife should support his arm when so doing, he is said to have signed an act whereby he sold said property for $3,000, in cash, which amount was received by his wife, from the hands which were too weak to retain it; that neither his son, who lived in the house, nor any of his relatives or neighbors, who lived near; knew anything of the transaction at the time, or heard of it until pight days after his death; and that there was no change, or suggestion of change, of possession, in the meanwhile;,that no reason is given or suggested why this old man, on his death bed, should have sold the roof over his head; that no part of the three thousand dollars, which is said thus to have been paid to him a few weeks before his death, was found among the assets of his succession; that the widow, by whom it is said to have been received, was absent from her home in the parish at the time of the trial which involved the whole of her deceased husband’s estate; and that the plaintiff, who claims to have purchased said estate, being present at said trial, abstained from going on the stand, and withheld his testimony. These circumstances, without regard to others disclosed in the record before us, present a concrete ease, to which the abstract proposition, that a mere charge of fraud does not throw the burden of proof on him against whom it is made, has no application, for the facts which are shown, throw a grave doubt upon the reality and good faith of the transaction and the burden of proof is shifted to the parties who know the truth, and can establish it by their testimony, and when they fail to furnish evidence clearly within their power, all the presumptions of law are against them. King vs. Atkins, 33rd Ann., 1057; School Board vs. Trimble, 33rd Ann., 1078; Pruyn vs. Young, 51 Ann., 32.

We are of opinion that there was error in the ruling of the trial judge, in refusing to the defendants the opportunity of obtaining the testimony of Mrs. Bayhi; that it is possible that counsel for the plaintiff erred in the advice given to his client that the latter should withhold his testimony; and that the interests of justice will be best subserved by remanding the case.

It is therefore ordered, adjudged and decreed that the judgment appealed from he annulled, avoided and reversed, and that this cause be remanded, with leave to the parties, respectively, to introduce such further evidence and otherwise proceed as they may be advised, the costs of the appeal to be paid by the plaintiff, and those of the lower court to await the final determination of the cause.


author: Watkins, J. Blanchard, J.

text:
    No. 13,303.
    The Yun Loy Company vs. James B. Rosser, Jr.
    Syllabus.
    A party who goes into court on a writ of sequestration for the recovery of movable property,'to which he holds a paper title from parties claiming to be the owners, can not be mulcted in damages by parties alleging and claiming an adversary interest therein, notwithstanding the plaintiff is defeated m his action.
    The ease would be different if his title was shown to be either fraudulent or simulated.
    . On Rei-ieaking.
    1. The writ of sequestration is a powerful weapon to use and he who invokes it must be sure of his ground. It is the resort to' a harsh remedy and involves much of risk and peril to the litigant who causes its issuance.
    2. Where wrongfully issued, where not sustainable, or where discontinued by the plaintiff, who had invoked it, after seizure and detention of the property against which directed, damages caused by the seizure will be allowed.
    APPEAL from the Civil District Court, Parish of Orleans — • King, J.

      A. E. & O. 8. Livaudais for Plaintiffs, Appellants.

      George W. Flynn and Percy 8. Benedict for Defendant, Appellee.
    On the rehearing by Blanchard, J.
   The opinion of the court was delivered by

Watkins, J.

This is an action for the recovery of three thousand, five hundred and seventy-five dollars ($3,575.00) as damages against the defendant, resulting from certain alleged wanton, malicious and illegal acts of the defendant in having closed their business by an unlawful seizure and detention of the plaintiffs’ property; and on the trial thereof before the district judge, there was a decree in favor of the defendant, and against the plaintiffs, rejecting their demands.

It is from that judgment that the plaintiffs prosecute this appeal.

The petition alleges as the grounds of their action, that they are engaged in the business of shrimp-fishing, drying and packing business, and for that purpose have erected buildings, sheds and platforms on a certain spot or location in Grand Bayou, near Grand Lake, in the Parish of Jefferson, and have added thereto all the appliances, instruments and tools necessary for the purpose of carrying on their legitimate business, under a license duly granted by State and parochial authority.

. That, on or about the 27th day of January, 1898, the defendant, by virtue of certain judicial proceeding^ by him instituted against one Ah Cun, in a suit entitled James B. Rosser, ,Jr. vs. Ah Cun, in which suit he alleged himself to be the owner of your petitioners’ establishments, prayed that petitioners be ejected as trespassers, caused a writ of sequestration to issue without bond, and acting under said writ, caused the sheriff to seize and take into possession, all of the above described property as his own, and detained the same under seizure from the 9th to the 18th day of February, 1898.

That, through said unlawful interference with, and closing of petititioners’ business during the busy season of the year, they have suffered damages to the extent of twelve hundred and twenty-five dollars — the items of which are particularly specified.

Petitioners aver, that said proceedings were vexatious, malicious, and instituted with the intent to damage your petitioners in their credit, business and reputation.

They further aver, that said James B. Rosser, Jr., who in the suit above referred to, had alleged himself to be the owner of the property seized, and prayed to be sent into possession thereof as owner, subsequently discontinued the same, and instituted another suit against your petitioners, in which he claimed the ownership of one undivided half interest in saicj property, and demanded a partition thereof.

They further aver, that by judgment of the court in the last entitled suit, on the 23rd of July, 1898, same was dismissed at Rosser’s cost— he having proved no title or interest in said property.

They further aver, that notwithstanding said repeated judicial admissions and allegations of the said Rosser, he had caused one Sam Lee, and one Louis Desgouttes, to institute a certain suit in the Civil District Court of the Parish of Orleans, in which the plaintiffs allege themselves to be partners in petitioners’ company, and therein prayed for a liquidation thereof, and have caused another writ of sequestration to issue on bond subscribed by J. B. Rosser.

That said last mentioned suit has been since dismissed, for the want of jurisdiction territorially.

It is upon these different judicial proceedings that plaintiffs rely in making the allegations that the defendant has been guilty of certain wanton, malicious and illegal acts, entitling them to judgment against him in damages.

In his answer, the defendant denies that he has caused the petitioners any damages, or that there has been any unlawful interference witli tlieir business. He denies that any of the judicial proceedings referred to were either vexatious, malicious or instituted with the intent to damage petitioners in either their credit, business or reputation.

He avers that his action in the premises was characterized by perfect good faith and the desire to obtain a judicial ascertainment of his legal rights in the possession of his property.

He avers further, that by a notarial act, of date 7th December, 1897, and duly registered in the recorder’s office on the 18th day of February, 1898, he acquired, as he then supposed, the ownership of the shrimp factory in controversy, which consisted of platform, buildings and ¿ippurtenances thereon, known as the Tun Loy Company, and situated on Grand Bayou, now Grank Lake, in the Parish of Jefferson, and that under said belief he undertook, through his agent, to take possession of said property, when he was resisted by several Chinamen, to the respondent unknown, the leader of whom gave the name of Ah Cun.

That, thereupon, he instituted the suit first described, against Ah Cun as a trespasser on the aforesaid property; and that thereafter, upon being apprised of the existence of the Tun Loy Company, and that the members composing same were said to be Sam Lee, Louis A. Desgouttes, Wong Goon and Wong Bing Hong, he discontinued the said suit against Ah Cun and instituted the second suit against Wong' Goon and Wong Bing Hong, praying to be recognized as the owner of one undivided interest in said property, and praying for a partition thereof, according to law — praying for rents and revenues of the property from the date of its purchase.

lie represents that on the trial of said cause, the court held that “the sale of the partnership property to the plaintiff by two of the partners, without the knowledge or consent of the others, was unauthorized, and that such an illegal transfer is, as to the other partners, void, and of no effect.”

He further avers that he then took no further action individually; but that his vendors, Louis A. Desgouttes and Sam Lee, instituted a suit for a liquidation and settlement of the co-partnership known as the Tun Loy Company, in the Civil District Court for the Parish of Orleans; and that said suit was subsequently dismissed by the court upon a plea to the jurisdiction tendered by the defendant.

The respondent, assuming the character of plaintiff in reconventiom, avers, that said Sam Lee and Louis A. Desgouttes were and are partners of the firm known as the Yun Loy Company, organized and formed by said named parties; and that the action of said plaintiffs in instituting this suit against the respondent, is wicked and malicious, and the same is brought for the purpose of injuring and damaging- respondent, and that respondent has been damaged in the full sum of four thousand, five hundred dollars, for which sum he prays for judgment against the plaintiffs in reconvention and in solido; and that their demands against him be rejected.

Upon these issues, considerable testimony was taken; and the various ’ suits referred to were offered in evidence, and are appended to the transcript.

An examination of the evidence and of these records discloses, that the statements made in reference thereto in the pleadings, are substantially correct; that is to say, in so far as the contents and purport of said records are concerned.

The foundation upon which those various suits are predicated is the reputed act of sale to which the defendant makes reference in his answer, and therefrom we have made the following- extracts, to-wit:

“Personally came and appeared Messrs. Louis A. Desgouttes and Sam Lee, both of full age and residents of this parish (Orleans) who declared, that for the consideration and on the terms and conditions hereinafter set forth, they do, by those presents, grant, bargain, sell, convey, transfer, assign and set over with full guarantee against all troubles, claims, debts, liens, privileges or other encumbrances whatsoever, unto Mr. James Barkley Rosser, Jr., * * * here present, accepting and purchasing- for himself, his heirs and assigns, and acknowledging delivery and posession thereof, the following described property, to-wit:
“The shrimp factory known as the Yun Loy Company, situated on Grand Bayou, near Grand Lake, in the Parish of Jefferson, State of Louisiana, the property consisting of a platform, buildings, sheds, tools and implements of trade, and all the movable property situated therein, or thereon, there being one frame building measuring about sixty by forty-five feet, and another one measuring- about twenty by twenty feet, and a shed and boiler; to have and to hold the property herein conveyed unto said purchaser, his heirs and assigns, forever.
* « # * * * • *
“This sale is made and accepted for and in consideration of the price and sum of one thousand dollars ($1,000.00), which has been settled for in the following manner, to-wit:
“The sum of four hundred dollars cash in current money, paid by the said purchaser at the execution of these presents, and in the presence of the undersigned notary and witnesses to the said vendors, who hereby acknowledge the receipt thereof, and grant full acquittance and discharge therefor, the balance of said purchase price, the sum of six hundred dollars, to be paid in cash, current money, on or before the --day of-, 1897.”

Immediately afterwards the following statement is made, to-wit:

“Said purchaser at the execution of these presents has paid the whole amount of the purchase price, to-wit: The sum of one thousand dollars instead of in the manner hereinbefore recited, and which the said vendors, jointly and mutually acknowledge to have reéeived, and grant the said purchaser full discharge and acquittance therefor.”

The foregoing act was passed by a notary in the presence of two witnesses, and signed by the parties. It bears upon its face the appearance of reality, and we understand from the evidence that there is nothing to impeach the validity of same. No claim is made and no proof was adduced of the untruthfulness of the recitals in the act that the purchaser had paid one thousand dollars in cash for the property.

Something, it is true, was said in argument, to the effect, that such a sale was an unusual one, and that it was surprising that a well informed attorney-at-law, residing in New Orleans, would have expended one thousand dollars in the purchase of a shrimp factory in tide water within the Parish of Jefferson, without having visited the property and made himself acquainted with its situation and value. But, in making this statement, we feel satisfied, counsel has assumed more than is justified by the record. To support the plaintiffs’ case, positive proof should have been administered of the unrealty of the transaction, or of its fraudulent and simulated character, to have justified the extravagant claims made as to the plaintiffs’ damages. In the absence of such proof, the defendant was clearlly entitled to go into court with a writ of sequestration for the recovery of the property he had purchased; particularly in view of the statement that his entry and possession thereof had been denied.

That whs the only legal course for him to pursue. He certainly would not have been justified in resorting to force.

Having ascertained, subsequently to the institution of that suit, that there were other parties than his vendors claiming to have an interest in the property, the defendant wisely exercised the discretion of dismissing his suit and instituting a different one, setting up his ownership of an undivided interest therein.

It can not be said with reason or propriety, that the defendant was guilty of any fault in having been summarily turned out of court in that ease by a decree of the judge contradictorily rendered. And, much the same may be said of the suit which was brought in the Parish of Orleans, for the liquidation and settlement of the partnership on behalf of his vendors, in view of the fact that sa. 'e was dismissed by the decree of the court, on the ground that it did not possess jurisdiction thereof, territorially.

Possessing a title which ostensibly conveyed full ownership of the property in controversy, the complaint made by the plaintiffs of the defendant’s action is manifestly groundless.

He certainly had, at least, probable cause for his action; and it can not be said or assumed that he was wholly without right in the premises, notwithstanding the fact that his pretentions had been so frequently defeated.

In our view, we think the defendant has been the greater sufferer of the two; though we are not prepared to say that the claim of either of the parties to damages, is meritorious. This case presents the litigants in the situation of having misunderstood their rights and interests in the premises; and the result of it all is, that they became involved in a troublesome and expensive litigation, by which neither party has been benefitted.

From all that appears in this record, and with due consideration to the litigation between the parties, its surroundings and results, we do not feel authorized to disturb the finding of the district judge who saw and heard the witnesses.

But, in so finding, we do not intend to conclude the right of action of either party for the recovery of actual damages.

Judgment affirmed.

Breaux, J., dissents.

On Rehearing.

Blanchard, J.

A reconsideration of this ease has led to a conclusion different from that first announced.

The judgment of the District Court rejecting- plaintiffs’ demand for damages should not be sustained, but reversed.

Plaintiffs, who are aliens and subjects of the Emporer of China, owned and operated a¡ shrimp-fishing, dirying- and packing establishment on tide water in Louisiana.

Defendant, claiming- ownership, caused a writ of sequestration to issue and under the same the establishment was seized and detained under seizure for ten days.

The suit in which the seizure was effected was not brought against plaintiffs nor against any member of plaintiff’s firm.

It was instituted against a person styled Ah Cun, who, it was alleged, with five or six men in his employ, was trespassing upon the property of the plaintiff (defendant herein).

It was quite likely that the suit was meant to be against the persons who composed the plaintiff company, for it .does not appear that there was any Chinaman about there who rejoiced in the cognomen of “Ah Cun.” The court appreciates the difficulty of arriving at a correct understanding, pronunciation and orthography of the names and surnames of the Celestials who come to America.

But that does not matter. Whether in suing Mr. A. Cun, the plaintiff in that proceeding (defendant here) intended the process to be against one of the members of the present plaintiff company makes no difference. He was equally without right to the harsh remedy he invoked even though the process had been directed against the parties in possession under their proper names.

This is so because defendant himself had no sufficient title as owner to the property, or any part of it. •

He may have thought he had title and, thus, proceeded without malice and upon probable cause. But this can go only to the mitigation 'of damages.

The basis of his claim of ownership Was an act of sale from one Louis A. Desgouttes and one Sam Lee to him of the property in question. He does not seem to have put himself upon sufficient inquiry as to whether or not his vendors had any title to convey, or if they had, whether they could convey in the manner attempted.

Following his purchase he sent his agent out to take possession. This agent found the members of plaintiff- company in possession. They resisted his demand and the suit against Ah Cun followed, with a seizure and dispossession of those who are now plaintiffs.

The latter — by name Wong Goon, Eung Lum, Wong Bing ITong and Wong Chong — appeared in the cause by way of interpleader and exception and averred that they constituted the Tun Loy Company, that their property had been unlawfully seized, that Ah Cun was to them a person unknown, etc. They prayed that the plaintiff in that cause be ordered to show cause on a day named why the writ of sequestration should not be set aside and the suit dismissed. The rule issued fixing a day for the hearing.

On that day the plaintiff (Rosser) appeared and discontinued his suit. This had the effect, of course, of releasing the seizure.

A few days later the same plaintiff filed a suit entitled James B. Rosser, Jr., vs. Wong Goon, et als. In this he averred he was the owner of an undivided half of the same property the whole of which he had sued for in the case against Ah Cun.

He alleged Wong Goon and Wong Bing Hong to be the. owners of the other undivided half, that they werq hostile to him and his interests, that he desired a partition of the common property, that it was not susceptible of division in kind, etc.

He prayed for partition by licitation, for an accounting from his co-owners, for judgment for his share of the profits'of the business, and judicial sequestration of the property.

The judge did not issue the order for the judicial sequestration, but ordered defendants to show cause why it should not issue.

The order was never granted, and upon issue joined, the parties went to trial ¡upon the merits, with the result'that there was judgment in favor of defendants. No appeal was taken.

Later, Louis Desgouttes and Sam Lee, who had sold the property to Rosser, brought suit in the Civil District Court of Orleans Parish, against Wong Goon and Wong Bing Hong, alleging that they (plaintiffs) and the parties named composed the Tun Loy Company and that it was desirable there should be a dissolution and liquidation of the company and settlement between the partners. They prayed accordingly, and for the sequestration of the property and appointment of liquidator.

James B. Rosser, Jr., defendant in the present action, signed the petition in the Desgouttes and Sam Lee suit against Wong Goon and Wong Bing Hong as attorney for plaintiffs, and also became the surety on the sequestration bond for $1000.

A writ of sequestration issued and under it all the property of the Yun Loy Company establishment was seized.

This was in August, 1898. The property was detained under this seizure from that time until December following, when the suit was dismissed ad the plaintiffs’ cost upon exception to the jurisdiction of the court rations personae.

A month later the present action was brought by the Yun Loy Company against Rosser for $3375 damages, claiming to have resulted to the company on account of the several seizures of the property as above described.

For the first seizure — -that taken out in the suit-against Ah Gun —where the property was detained ten days, the sum of $1225 is asked. For the second seizure — -that effected in the suit of Louis Desgouttes and Sam Lee against Woong Goon and Wong Bing Iiong — the sum of $2350 is asked.

As to damages resulting from the first seizure the evidence suffices, we think,' to warrant easily a judgment of $500 against defendant, and that is putting it at a low figure. .

This is for actual damages sustained and contains no estimate for exemplary or punitive damages.

Attorney’s fees, actual expenses incurred, pecuniary loss sustained, etc., enter into this calculation.

Frank & Co. vs. Chaffe & Sons, 34 La. Ann. 1203; Byrne & Co. vs. Gardner & Co., 33 La. Ann. 8; Stetson vs. LeBlanc, 6 La. 266; C. C. 2315; Beckhan vs. Hutchinson, 50 La. Ann. 766.

As to damages resulting from the second seizure, where the property was held in custody for four and a half months, we do not find evidence to justify holding that defendant Rosser instigated the suit brought by Desgouttes and Sam Lee' against Wong Goon and Wong Bing Hong, though he did act as attorney for plaintiff therein and did sign the sequestration bond.

To' succeed in the present action on .that complaint it must be shown that Rosser connived at the bringing of that suit, and that he was actuated by malicious motives and with a desire to injure plaintiffs herein. This is not shown.

Rosser is not sued here as surety on the sequestration bond which he signed it that case. In a proper action against Desgouttes and Sam Lee, as principals, and Rosser, as surety, on the bond for damages suffered by reason of that seizure and long detention of property, it may be that the Yun Loy Company, or the members thereof, might make a showing entitling them to recover.

For these reasons, it is ordered that the former decree of this court be set aside, and it is now adjudged and decreed that the judgment appealed from be annulled, avoided and reversed and that plaintiff company do have and recover of the defendant the sum of five Hundred Dollars, with legal interest from judicial demand, in full settlement of all claims for damages growing out of the seizure of the property of the plaintiffs under judicial sequestration which issued at the instance of defendant in the suit instituted by him in the District Court, Parish of Jefferson, entitled James B. Rosser, Jr., vs. Ah Cun.

It is further ordered, etc., that there be judgment in favor of defendant on the demand as brought for damages herein asserted by plaintiff company against defendant, growing out of the seizure of the property of the plaintiff at the suit of Louis Desgouttes and Sam Lee vs. Wong Goon and Wong Bing Hong, No. 57,232 on the docket of the Civil District Court, Parish of Orleans.

It is further ordered," etc., that the reconventional demand of defendant Rosser herein be dismissed, and that he be taxed with all costs of both courts.


author: Breaux, J.

text:
    No. 13,311.
    Sol. Elgutter vs. Mutual Reserve Fund Life Association.
    Syllabus.
    1. There is a privity oí interest between the insured and the one to whom h«> assigned the policy sufficient to enable them to join in a suit to have their rights recognized.
    2. When a corporation, by its action, leads a policy holder to believe that it will issue notices of the maturity of its premiums, it is without right to invoke a waiver made by the insured at the time he was insured to the prejudice of the one to whom he assigned the policy.
    3. This assignee had always received notice through the agency of persons connected with the company, and as to one of their agents, though no longer in the company’s employ, he continued to see that the assignee received notice. The evidence does not show that the assignee was aware that he, this agent, had been discharged. Held : That notice is the rule, and that the company will not be held relieved from the necessity of giving notice unless it clearly appears that it was jus tided in not doing so.
    4. With reference to time. The company had not been exact in computing it, and received premiums after maturity ; besides, thirty full days had not elapsed when the forfeiture was declared. Held : That assignee Is entitled to have his policy reinstated upon his payment of all the premiums due, immediately after the judgment of the court becomes final.
    APPEAL from the Civil District Court, Parish of Orleans — Bilis, J.

      Lazarus & Luce for Plaintiff, Appellee.
    Denegre, Blair & Denegre for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

This is an action brought by Sol. Elgutter, the plaintiff, to have a policy of insurance reinstated and declared in full force and effect, and to compel the defendant to accept, the premiums unpaid. There was a judgment in the .District Court in favor of plaintiff, from which defendant appeals.

The plaintiff alleges that in 1892, the defendant issued a policy of insurance on the life of Herman Aronsohn for three thousand dollars, which was assigned by the insured to him, petitioner. The certificate of insurance declares, among other things, that premiums shall be paid within the designated time specified in the policy and that whether or not the insured receives the notice mentioned in the certificate, it shall be a condition precedent to the continuance of the policy, that a sum equal to the amount “of the last preceding mortuary premium and dues paid shall be paid said association within thirty days of the first week day of the month when due, and any deficiency in said amount shall be paid upon the demand of the association”. If there is default in the payment of premiums, the policy “shall expire and become null and void, and the payments previously made are forfeited.” It appears that the amount of the mortuary premiums and dues payable on the first day of February, 1896, or thirty days thereafter, was not paid, and it is, in consequence, claimed by the defendant insurance company that the policy thereby became null and void.

Regarding notice, petitioner avers that the defendant association failed to give him notice of the mortuary premiums and dues which were due February 1st, 1896, or thirty days thereafter; that on March 9th, 1896, he, through a representative, tendered to the agent of the defendant in New Orleans, the amount of the premium and dues, which was refused, and that since that time he has always been ready, to the knowledge of the association, to pay all his indebtedness to it, but that the defendant persistently refuses to accept payment; that under the terms of the policy, the company should have given him notice of the premiums and dues which he owed on February 1st, 1896, by addressing it to Newellton, in the parish of Tensas. Petitioner further avers that he was formerly domiciled in the city of New Orleans, where he received his notices and paid his premiums and dues; that in 1896 he left this city and took up his residence at Newellton; that the agent in New Orleans, whose duty it was to give notices, and to collect premiums, knew of his change of residence and address; that for the premiums and dues previous to February 1st, 1896, the defendant company, through its agent, mailed his notices to Newellton, instructing him to remit the amount called for, to the company in New York, and this he did, as directed, all except the last premium, which, owing to a want of notice, escaped his attention.

The defendant filed an exception of no cause of action. While this exception was pending, Herman Aronsohn, the insured, who had assigned his certificate to Elgutter, the plaintiff, intervened in the suit and adopted all the averments made by the plaintiff. He alleges that he was interested in having the indebtedness, upon which the assignment was made, paid at the maturity of the policy, and was, therefore, interested in having the policy reinstated; that it had been the custom of the defendant to give the plaintiff notice of the payment of the mortuary premiums and dues; that payments had always been demanded of plaintiff, and that the defendant company had looked to the plaintiff, and not to him, intervenor, knowing that he, plaintiff, had agreed to pay the premiums and dues.

The exception of no cause of action, filed by the defendant, as mentioned above, was overruled; and in due time, defendant filed his answer admití ing the execution of the policy and its assignment, as alleged, but denying that the contract was an existing contract, as it had become null and void through failure of plaintiff to make payment of premiums and dues as required. Defendant’s position further, is that it had given notice to Aronsohn, the insured, and that Elgutter was not entitled to notice.

The evidence shows that the defendant is a corporation organized under the laws of the State of New York, its business being that of insuring' the lives of its members upon the co-operative assessment plan; that on the first week-day of the months stated in the policy, its Board of Directors made assessments upon the entire membership for such sums as it deemed sufficient to meet the existing claims of death; that any member failing to receive notice of this assessment held himself bound to notify the home office of said failure and that a failure to pay the assessment forfeits his membership; but, that, as made evident by the charter, the Executive Committee of the Association has the power to reinstate a delinquent member, at any time, within one year, for a good cause, and payment of all the delinquent dues and assessments. The record shows that in June, 1892, the policy previously issued to Aronsohn was assigned to Elgutter, plaintiff, to secure ani indebtedness of the former to the latter. The defendant was duly notified of the assignment, and endorsed its consent on the assignment. The assignee, plaintiff, paid, as he stated and avers, the premiums up to and including that of February, 1896. The contract of insurance between the parties provides that “all notices addressed to a member or other person designated by said member at the last postoffice address appearing on the books of the association shall be deemed sufficient notice.” (Italics ours.)

In February, 1896, plaintiff received no notice from the association. The evidence discloses that a notice was mailed from the office in New York to the insured, Aronsohn, in New Orleans, and no notice was given to plaintiff, Elgutter, holder of the policy.

The premium was not paid on March 2nd, 1896, and, in consequence, the defendant company declared the policy forfeited. On the 9th of March, 1896, plaintiff offered to pay the delinquent premium, which same the company refused to accept. Plaintiff, as before stated, sues to compel the defendant to accept premiums and reinstate the policy. We will, in our opinion, consider other facts having bearing upon the issues presented.

We do not think that the exception of no cause of action should be sustained, for the reason that plaintiff had an actionable interest in the policy lie held', and the intervenor was interested in keeping the policy alive. One is properly plaintiff, and the other intervenor. The contract and the negotiations had created a privity between the plaintiff and the intervenor. Both are interested in sustaining the right claimed and the defendant is liable to both. It follows that the exception falls. Plaintiff had a substantial right, as assignee of the policy, and was interested in preventing its forfeiture. C. P. 15.

We now take up for decision plaintiff’s claim that no notice was given of the amount due by him on his policy on March 2nd, 1896. This contention is pressed upon our attention by plaintiff, who insists that he was entitled to notice as beneficiary. It is undoubtedly true that the assignment was made to plaintiff with the consent of the defendant company, as alleged. The policy is dated May 17th, 1892. The day after it was issued, the State of New York enacted a law in relation to insurance companies, prohibiting the forfeiture of policies unless notice “at the place where it should be paid, and the person to whom the same is payable shall be duly addressed and mailed to the person whose life is insured, or the .assignee of the policy (if notice of the assignment has been given to the corporation) at his or her last known postoffi.ee address by an officer of the corporation, or person appointed by it to collect such liremium at least fifteen, and not more than forty-five days prior to the day when the same is payable.” (Italics ours).

The contract of insurance contained an agreement, as before stated, that it should be governed according to the laws of the State of New York, quoting- from the policy, “the place of this contract being expressly agreed to be the home office of said association in the City of New York.” Plaintiff and defendant agree that the laws of New York, regarding this contract of insurance, should govern. This lawj, in view of the agreement between the parties, must be read as it enters into the contract. The one to whom the policy is payable, is entitled to notice. The assured made a waiver of notice, that is there was a printed waiver in the policy, as alleged, it is true, but, shortly thereafter, the statute came into force requiring- notice to the insured and the transferree. We have every reason to believe that the defendant company complied with the terms of this statute 'regarding- notice to be given to each of its members or transferrees and placed no reliance upon the sweeping waiver of notice clause in its policies. This being the case, the defendant becomes bound by the conduct it chose to follow in order to comply with, the law to which we have just referred. No attempt was made to give the least notice to plaintiff, although the defendant consented to the assignment^, and, thereby, assumed all the duty it owed to the beneficiary of one of its policies. We think, that as relates to the insured, or the beneficiary, the waiver could not be insisted upon as operating a forfeiture of the policy, unless it is made evident that the company intended to conduct its business without giving notice at all, and did not intend to comply with the ¡law which required notice. The beneficiary in this ease had always, in some way, received notice prior to the last premium installment, and had always paid. He was led into the belief that he could safely rely upon receiving notice. The eonrpany is not in a position to say to him: “True, you have not received notice, but none the less, you h)ave forfeited your right. The law requires of me that I should notify all my policy holders, but as to you, although you have not received notice, forfeiture must follow.” Plaintiff, as relates to notice, in good faith relied uxson agents with whom the insured had contracted. The company is hardly in a position to plead the want of authority, as one had been its agent and the other was still its general Manager. Pelican Insurance Co. in Liquidation, 41th Ann., 935.

The State manager, in h'is answer to a letter received from x>laintiff’s attorneys, says, that official notice had been mailed the assured, and notice had been given the beneficiary in the city (italics ours), yet that the latter notice had been given solely upon an individual responsibility, and as a personal reminder and favor to the beneficiary. We think that that which was treated as a personal favor was a right upon which plaintiff could have insisted. In accepting these favors, without any notice that they! were favors, he could well assume that he was receiving the treatment due him in receiving a notice similar to the one due to all others similarly concerned. There are other facts showing that it was not the intention of the company to avoid giving notice to any beneficiary who was entitled to it, as required by law and by its own regulations. We will not dwell upon these facts at any great length. As we read the testimony, it was the custom of the company to notify all beneficiaries to whom it had given consent to their being beneficiaries. Fitzpatrick and Husband vs. Mutual Benevolent Co., 25 Ann., 443.

The waiver of notice to which we have already referred was, in all probability, required ex abundanlia cautela. It may serve some purpose, but not to the extent, however, of relieving the company from the effect of its own conduct in leading its policy holders to believe that they could always look forward to some sort of notice. It had become a rule of the company to issue timely notices. We take the view that these notices were not issued ex gratia, but that it had become the duty of the company to issue them to the assured, or to the assignee in case of the assignment of the policy. We can only repeat here, as applying, that which we said in Gunther vs. Mutual Aid Association, 40th Ann., 777: “There is not the slightest ground for attributing the failure to pay the assessment to any other cause than the want of notice,” and again, “the insured (here the assignee) had good reason to expect and to rely on receiving- notice to whom and where he should pay the instalment. It had always been given before, etc.” Citing Insurance Co. vs Eggleston, 96 U. S., 572.

The same doctrine was restated in a later case, and extended to a case where the insurance company was in the habit of receiving the premiums, though tendered a few days after maturity, and was, thereby, held to be estopped from claiming a forfeiture when the premium was tendered within a reasonable time after maturity. There are a number of cases sustaining this position. We think it was incumbent upon the association to give petitioner due notice of the mortuary premiums and dues exigible in February, 1896, and to address said notice to him at Newellton, Tensas Parish,, La.

The foregoing views relieve us, we think, from the necessity of determining- the question argued at bar and in the briefs regarding- the character of the company, that is, whether it is carried on on the cooperative or assessment plan, or whether it is not, and for that reason it does not come within the gi-asp of certain laws of New York which have been cited as bearing upon the question.

On that point, regarding the necessity of the company giving notice when it has created the impression that notice would be given, we take it that there id no difference between the New York and the Louisiana law upon the subject. In all the States, we take it, there are insurance companies issuing- notices to their policy holders or their assignees, and, thereby, creating confidence that no forfeiture will take place without notice. Such a course of action will cause the giving of notice to became a necessary pre-requisite to forfeiture.

Our study of this case has not resulted in convincing us that the policy has ever been forfeited, even if we were to assuime that the plaintiff was not entitled to notice, and. that it was enough to give notice to Aronsohn, the assignor. The required delays had not been given on the day that the forfeiture was declared by the Board of Directors of the defendant.

Plaintiff had thirty days of grace within which to make the payment, after the maturity of the premium allowed under the policy. The premium became due on the first day of February, 189G, in which month there were twenty-nine days. The company held the time to have elapsed on the second day of March, following, and on that day forfeited the policy. We think he had the whole of the second of March, within which to pay. Computation under the laws of New York, it appears, is on other lines. It is different in Louisiana. And in a matter relating exclusively to the remedy, the law of Louisiana applies, although it may not apply in matter relating to the obligation of the parties under the contract, or in matter relating to the interpretation to be given to it. The company had not been so exacting in requiring prompt payments of prior premiums. As to some of the premiums, more than thirty days were allowed as grace, and at the end of some of the terms of payment, the plaintiff was permitted to pay premiums even after the days of grace had elapsed. The company is bound by its own acts and by the conditions which it establishes. In our judgment, as relates to computation, the laws of Louisiana should govern in the execution of the contract, and not those of New York, as interpreted 'by the courts of that State. Under the Louisiana decisions, there was no legal forfeiture possible at the time made. A well considered case is reported in the 23 Circuit Court of Appeals Reports, p. 48, New York Life Insurance Co. vs. Runnell, in which the company, by terms of waiver, strong and infinite, attempted to have insurance contracts interpreted under the laws of the domicile of the company. The court, in that case, held that the waiver was of no avail; that the policy must be regarded as one subject to the laws of the State in which the insured was insured. We apply the principles laid down in that decision to the remedy, or to all steps in the nature of remedy or performance. We do not consider that they were waived, and if they had been, we do not think that, under our laws, the waiver would be controlling in a matter jurisdictional in its nature. The execution of the contract, as relates to the remedy, falls under the laws of the place of performance. The place of performance is here. The case is within the maxim locus reget actum. C. C., 10; C. P., 13; Hawley vs. Sloo, 12th Ann., 815. An obligation maturing on a dies non in Louisiana, is exigible only on the day after, while in some of the sister States it is due and exigible on the day before. When performance is required in Louisiana, it can only be required in accordance with the delays allowed by her laws.

In our view, we must hold that there was no forfeiture, even though, under the policy, notice was due to Aronsohn alone, and was properly sent to him. We desire, however, to be well understood as holding that notice was due to plaintiff, Elgutter, and not the insured, Aronsohn.

Defendant, moreover, contends that at no time were the dues tendered to any person authorized to receive them under the policy. This position of the defendant is met, we think, by the fact that the State manager acknowledged that a tender had been made, but one which he could not accept. He was the representative of the company. There was a condition precedent to payment imposed, that is, his reinstatement and release from the effect of asserted forfeiture. Before such reinstatement, payment or offer to pay, was an entirely useless formality. The necessity of the suit for reinstatement carries its costs with it.

Por these reasons the judgment is affirmed, and the plaintiff is to be reinstated by paying all dues due by him to date of reinstatement; this payment to be made immediately after the judgment of the court shall have become final.

Rehearing refused.