author: Nicholls, C. J.

text:
    No. 13,711.
    Mrs P. Lyons vs. Eugene Andry, Sr., et als.
    Syllabus.
    1. A right of “homestead” once existing, is not conditioned upon continued and continuous “residence” upon the homestead property, though non-residence does not carry with it per se a “forfeiture” of the right, that fact may he “evidence” of an intention to “abandon” which, when coupled with others, may establish it. Bach case on this subject must be determined by its own special facts and circumstances.
    2. A daughter eighteen years old, who is living with her father, giving to him her services; is, in legal contemplation, a person dependent upon the father for support, though she may be physically able to earn her own living. The right of the father to claim the services of the minor, and the right of the daughter to support are reciprocal rights and obligations.
    3. Decision in Maxwell vs. Roach, 106 La., to the effect that a homestead right is not necessarily terminated by the dissolution of the community by the death of one of the spouses is affirmed.
    APPEAL from the Twenty-ninth Judicial District, Parish of Plaquemines. — Single, J.

      James Wilkinson, for Mrs. Lyons, Plaintiff, Appellee.

      A. E. & O. S. Livaudais, for Defendant, Appellant.
   Statement op the Case.

The opinion of the court was delivered by

Nicholls, C. J.

Eugene Andry, the defendant in the above suit, prayed for and obtained a preliminary injunction in the District Court, upon allegations that he owned certain real estate in the Parish of Plaquemines, which he described, and which, he alleged, did not exceed in value the sum of one thousand dollars.

That he was a head of a family having persons dependent upon him for support; had since the 24th day of November, 1880, resided upon said property which he, on said day, declared his homestead, and caused the evidence of said declaration to be registered in accordance with Arts. 219 and 220 of the Constitution of 1879, and Act 114 of 1880, in the records of this parish as appeared by reference to the said declaration and the certificate of recording of the same which were annexed to and made a part of this petition. That, furthermore, petitioner was entitled to claim said property as a homestead under Article 244 of the Constitution of 1898.

That, acting under and by virtue of a writ of fieri facias issued in the suit of Mrs. P. Lyons vs. Eugene Andry et als., No. 439 of the docket of this court, Mrs. Patrick Lyons, plaintiff in said suit, and the sheriff of this parish, had seized, taken in their possession and threatened to sell the above described property to pay and satisfy the amount of the judgment rendered against petitioner.

That, unless prevented by due process of law, petitioner feared and verily believed and apprehended that they would thus dispose of his property, all to his irreparable loss, damage and injury, and notwithstanding all protestations and remonstrances and that a writ of injunction was the only equitable remedy in the premises.

The plaintiff, Mrs. Lyons, answered, praying that the injunction be dissolved with damages against the plaintiff and the sureties on the injunction bond. She averred that the plaintiff in injunction was not entitled to any homestead on the property seized, because he did not reside thereon, had no person or persons legally dependent upon him, and that the same was not set apart and registered as required by law.

The District Court dissolved the injunction with twenty per cent, damages against plaintiff in injunction and the sureties on his bond and Andry appealed.

We do not understand appellee to contest the fact that the property was originally legally claimed and held as a homestead. The question is, therefore, whether, having been properly a homestead at one time, it has ceased to be such; first, by reason of the death of the wife carrying with it, as a result, the dissolution of the community between herself and Andry, vesting title to an undivided half thereof in the wife’s heirs, subject to a right of usufruct by the husband upon that half during his natural life, unless he should remarry.

Second — Because the homestead right has been lost by non-residence upon the property.

Third — Because Andry has no longer any one dependent upon him for support.

The first ground for non-exemption claimed by the appellee^ is answered adversely to it by the very terms of Article 219 of the Constitution of 1879, and Article 244 of 1898. This court had occasion to so declare recently in the case of Maxwell vs. Roach, reported in 106 La. 128.

The evidence taken on the trial of the case was to the effect that Andry’s wife died in 1900; that there were ten children bom of their marriage — five sons and five daughters; that one of the daughters died; that all of the sons are of age, and all but one married; that the daughters are all of age and married but one, a girl of eighteen years of age. Andry testified that he left his place in 1893 because the storm of that year blew his home down; that he was, at the time of the trial, staying about three quarters of an acre from his place; that there was no dividing fence or ditch between his place and that on which he was stopping; that his son Felix was leasing the place at which he was stopping, which belonged to Mr. Ballays; that he was on his place every day; he was cultivating truck on it, that that was his way of earning a living; that there was a little shanty on the property seized, a small shanty with one room in which his son Seraphin sleeps; the room is ten by twelve feet, with flooring, and is covered with shingles; that he (witness) never left the place and was on it and worked on it every day that it was needed; he had his corn and his potatoes there at the time of testifying; he had only one place to sleep, which was at his son Felix’s; he had only one room or rather one bed there; he ate very seldom with his son; the eighteen-year-old daughter cooked, washed and sewed for him — did not cook for his son.

Felix Andry testified that the room which his father occupied at Mr. Ballay’s was a small one; he and his sister alone occupied it, it was a medium or small room, very little furniture in it; there is a bed in it, a very little partition is between the wall and the bed; his brother (Seraphin) made rice on his father’s place that year; he alone, but Mr. Ballay made him the advances to make the crop; he also made a crop on part of Mr. Ballay’s place; the two places on which he made the crop made but one rice field combined.

On the examination of the father as a witness, he was asked “how it was that he had not rebuilt his house on that place, also what the room in the shanty in which his son slept was used for before the storm, also how old he was ?” These questions were objected to by the seizing creditor’s counsel, and the objections sustained. The objection to the first question was that plaintiff in injunction had alleged that he was residing on his homestead on the seized property, and that he could not contradict the allegations of his own petition by attempting to show the reasons why he was not residing thereon in a habitation; the objection to the second question was that it was irrelevant and not responsive to the issues tendered in the pleadings, and the objection to the third question was that there was no issue as to age.

Counsel of appellant states that the object of the first question was to show that he was too poor to rebuild his house.

The property exempt from execution as a homestead in this State, by the Constitutions of 1879 and 1898, is declared to be property “bona fide owned” by the debtor and “occupied” by him. The word “occupy” is defined by the Century Dictionary as “to take possession of, seize, take up, employ, to take possession of and retain or keep, enter upon the possession and use of, hold and use, especially to take possession of (a place as a place of residence, or, in warfare, a town or country) and become established in it.” Intrans. I. — To be in possession or occupation; hold possession; be an occupant; have possession and use.

We are to determine whether the seized debtor owned and occupied and still “owns and occupies” the property which he claims as his homestead.

As he actually resided upon the property at one time, and was entitled to a homesctead, the question before us is whether he has lost his homestead rights by abandonment. If those rights are dependent upon an actual continued and continuous personal “residence” upon the property of himself and the person or persons dependent upon him for support, his rights have ceased to exist-, for it is not claimed that such conditions have existed since 1893. At that date all parties ceased to have an actual “residence” upon the property. It is very generally recognized that after a party claiming the homestead has actually “resided” upon the property with his family, the fact of a change of the residence to some other place does not, of itself, per se, cause a forfeiture of the homestead right, though that fact may be “evidence” of an intention to abandon, which, when coupled with others, may establish it.

In this case the change of residence in 1893 was not a voluntary change, hut the result of a calamity. At that time a violent storm destroyed the residences of a large number of persons in the Parish of Plaquemine and, among others, that of the plaintiff in injunction. Possession of the property itself was not, however, lost. Under the evidence it has been always retained by Andry.

It was not leased to others, but was used continuously for “truck” cultivation by the owner, though a part of it was, by his permission, utilized by one of the sons of the family (who slept in the single room of a small building which had not been destroyed by the storm) in making a crop of rice. Andry, at the time of the trial, had his corn and potatoes on the property and went upon it almost daily for the purposes of cultivation. The residence was shifted to the adjoining place at a point about three-quartet's of a mile away from the boundary line between two properties between which there was neither fence nor ditch.

Residence at the new place was precarious, inasmuch as it was with another son whose own tenure was that of a mere lessee which might terminate at any time. What Andry and his daughter would do under that contingency we do not know. There can be no doubt that Andry has visibly and continuously “occupied" the land in the meaning of that word as applied to possession from and after the year 1893 (C. C. 3426, 3433, 3442 et seq.) The “occupancy” of the same by the son Seraphin Andry was the “possession” and “occupancy” of his father, and the latter’s own daily cultivation of the land gave outward signs of his non-abandonment. The right of homestead exemption is in this State a constitutional right, and the terms by which it is granted should not be narrowed by either the Legislature or the courts.

While we think that the object of the granting of the right was the keeping of families together in a “home,” we should not give undue prominence to the mere place where the family should be together, and lose sight of the object equally had in view of furnishing the head of the family with the means and instrumentalities by which he could support it. Forfeitures are not favored by the law. The homestead right should be upheld, unless clearly shown to have been abandoned. Each case must stand on its own peculiar circumstances.

Appellee invokes the length of time during which Andry did not return to actually live on the place, but there was no particular reason for his doing so as he was in as good a position for deriving the full benefit from the property as he would have been directly upon it.

Thompson, in his work on Homestead and Exemptions (Section 272) recognizes that the length of time during which a removing owner may have absented himself is a circumstance by which his intent to abandon may be inferred, hut he says: “Though the number of months or years to which the absence of the party may he prolonged, without working a forfeiture of his rights, has frequently been considered in connection with other facts, time alone would be one of the most uncertain and untrustworthy indicia by which the question of the permanency or temporary character of the abandonment could be determined. To hold the homestead right dependent upon continued personal occupation of the premises claimed, would be to declare the prime condition of the exemption to be occupation of the premises as a sort of prison rather than a house, to secure to the family certain pecuniary rights in consideration of their surrender of personal liberty. To restrict privileges of the owner of homestead property to a specific number of months or years during which he might absent himself from home, without losing the benefit of the homestead law, would be merely to extend the limits of the prison without changing its character as a place of confinement.”

Says Dillon, J., in a case elsewhere cited: “How long an absence will forfeit the right, depends upon circumstances. H a man, for example, should lock up his homestead or even rent it and- go to Europe on a tour of pleasure or for any other temporary absence, clearly intending to return and resume possession of the homestead, it seems clear that even five years’ absence would not, certainly as respects general creditors, work a forfeiture of the homestead right.”

And in another part of the same opinion the learned Judge says: “That prolonged absence would ordinarily justify the conclusion of abandonment, but this may be rebutted and explained where third persons have not been actually misled.”

In Cabeen vs. Mulligan (37 Ills. 230) the court said: “It would be manifestly unjust to hold, where the absence was prolonged indefinately by sickness or other misfortune, that the length of time of the enforced absence should seriously affect the question of abandonment.” We may say here, in the case before us, that the district judge should have permitted the plaintiff in injunction to show why the house upon the property which had been destroyed had not been replaced. As the seizing creditor was basing her right upon a forfeiture of the homestead right, plaintiff was entitled to show any fact which would go to negative the theory of abandonment; the question of “residence” under the circumstances of this case was a mere “evidential” fact.”

The only remaining question is as to whether the seized debtor has any one dependent upon him for support. The daughter shown to be living with him is shown to be eighteen years of age, strong and able to work, actually doing the washing for her father. There is no doubt as to her ability to leave her father and support herself by hiring herself out, but her father has the legal right to command her services, nor is there any legal right to force her to hire out her services before reaching majority. The father is legally charged with the duty of supporting her until she should become of age. There is no direct testimony to the fact that he actually supoprts her, but as he is shown to earn his own living, and she lives-with him, we must presume that he has continued to perform the duty which the law imposes upon him. We think the daughter is legally dependent upon, him for support.

Eor the reasons assigned, it is ordered, adjudged and decreed,- that the judgment of the District Court, appealed from, be, and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed, that the seizure herein made by the defendant in injunction be set aside without prejudice to any rights which he may have at some future time to seize said property on execution oE 'his judgment. Costs of the District Court and of this court to be borne by the defendant in injunction — appellee herein.

Rehearing refused.

Blanchard, J.,

dissents, holding that defendant had lost the homestead right by long continued non-usage of the property as a place of residence.


source: Caselaw Access Project

author: Monroe, J. Mr. Justice Breaux,

license: Public Domain

text:
    No. 14,075.
    State of Louisiana vs. George Thompson.
    Syllabus.
    This being an appeal, from a conviction of murder and sentence of death, in which it appears that the prosecuting officer, In his closing argument, referring to the widow of the deceased, who had been examined as a witness for the State, said: “I will say nothing to you of her six fatherless little childrenthat counsel for the accused objected and excepted, on the ground, sustained by the fact, that no evidence had been offered concerning such children; that the prosecuting officer, without disclaimer, proceeded with his argument, upon other grounds; that no action was taken by the trial judge, and that the jury was not instructed, either at the moment, or in the charge subsequently given, to disregard the unauthorized reference-complained of. And the matter being brought to the attention of this court by means of the bill of exceptions taken to the statement so made and of a bill taken to the refusal of the court a Qua to grant a new trial, the verdict and sentence are set aside, notwithstanding that the counsel for the accused made no demand that the jury be particularly instructed In the matter.
    APPEAL from the Criminal District Court, Parish of Orleans.— Chretien, J.

      J. Ward Gurley, District Attorney, and 8. A. Montgomery, Assistant, District Attorney, for Plaintiff, Appellee.

      James T. Nix and John D. Nix, for Defendant, Appellant.
   Statement.

The opinion of the Court was delivered by

Monroe, J.

The defendant, having been convicted of murder and sentenced to death, has appealed to this court, and relies upon the following bills of exception, as affording grounds for the reversal of the verdict and judgment appealed from, to-wit:

“Be it remembered that on the trial of the above entitled and numbered ease, Hon. S. A. Montgomery, assistant District Attorney, in his closing argument, referred to six fatherless children, in his appeal to the jury, when there was no evidence in the case about any children of any kind, as is shown by the testimony of Mr. S. A. Montgomery himself, hereto annexed.” (Whereupon counsel for the accused objected and excepted.

To this statement the Judge a quo adds: “The testimony of the District Attorney, made part of this bill, shows exactly what did take place during the argument of the ease. When the-protest was made, the District Attorney stopped all reference to the subject-matter, and the argument continued upon other grounds. There was nothing for the Court to pass upon, as the protest was heeded. I do not believe that any injury was done to the accused in this case.”

The testimony, made part of the bill, is as follows:

' “Q. Mr. Montgomery, will you please staté what you said in your, argument in reference to the six children of the deceased, before the jury, in this case? A. I remember it, I believe; the widow had been introduced by the State, I believe I said in the argument, by the State — to identify the body that died at the hospital' — Mr. Nix, in his argument, referred to her having been brought in, in her widow’s weeds. I think I said this: ‘I will say nothing to you of the six fatherless little children,’ or that expression. Q. Referring, of course, Mr. Montgomery, to their being made fatherless by the defendant having murdered their father? A. Referring to your reference to the widow’s weeds, as the widow in question was tire wife of the man Thompson was accused of killing, and she was not on the stand. Q. There had been no evidence introduced in reference to any of those children ? A. None whatsoever. Q. There was no other witness that testified anything about those children? A. As I remember it, the State introduced nothing about those children. Q. And to which you made reference? A. Yes, sir. Q. Counsel for defendant objected to this line of argument? A. Well, as I remember it, at the point where I said, ‘in discussing those six fatherless children,’ I believe the counsel for the defense objected, calling the Judge’s attention to it, and asked for the stenographer. I know, however, that there was no stenographer present, and no stenographer was produced. I have no recollection as to whether the Judge stopped me or not. My impression is, however, that he did. If he did, I don’t know what he said. I know you took exceptions to what I was saying. Q. Didn’t I take a bill of exceptions to what you .were saying? A. Yes, I believe you did, and asked to have the note of exceptions recorded in lieu of a bill.”

A motion for new trial was made, upon the grounds which are here nrged, and a bill of exceptions was taken to the refusal of the court, to grant the same.

Opinion.

There can be no question of the impropriety of the Assistant District. Attorney’s reference to the six fatherless children of the dead man, for the alleged murder of whom the defendant was on trial for his life, and the fact that their mother, the widow of the deceased, in her habiliments of woe, had previously been introduced, as a witness on behalf of the State, was a circumstance, which, so far from weakening the effect of the reference, was well calculated to prepare the jury for a deeper impression than might otherwise have been made by the pathetic mental picture thus presented to them, from beyond the record, in the closing argument for the prosecution. The counsel for the defendant objected and excepted and the assistant district attorney. as the trial judge informs us, “stopped all reference to the subject matter, and the argument continued upon other grounds.” But, why should he have gone further, even had no objection been made? He had informed the jury, not lawfully, but in plain violation of an elementary and universally recognized rule of law, that, by the death of the man whom the defendant in the ease before them was charged with having murdered not only had the grief-stricken woman, whom they had seen, been deprived of her husband, but that six little children, whom they had not seen, and who were thus brought to their knowledge, at the close of the case, had been left fatherless. Conceding that six children had been left fatherless, and .that they were little children, those facts had not been established, and could not have been established by sworn evidence, because such evidence would have been excluded, and yet, they went to the jury in the unsworn statement of the prosecuting officer, whom the counsel for the defendant could neither cross-examine nor answer in argument. The judge a quo states that, the protest of the defendant’s counsel having been heeded, there was nothing for the court to pass on. The protest, it appears, was heeded to the extent that the prosecuting officer made no further reference to the subject which had provoked it, but “the argument continued on other grounds,” with no disclaimer as to the truth of the statement which had been made, or as to the right of the speaker to make it, and it is not claimed that the judge, either at the moment, or in the charge subsequently given, instructed the jury that the statement, as made, met with his disapproval and was unauthorized, or should be disregarded by them in considering their verdict. It is true that the counsel for the accused made no demand for such instructions, and it is also true that there is a weight of authority in support of the proposition that, even though unauthorized statements be made, in argument, the verdict of a jury will not be reversed, unless it appears that, in addition to objecting thereto, the party complaining has requested that the jury be instructed to disregard them, and has excepted to the refusal of the court to comply with his request. This jurisprudence is, however, predicated upon the theory that the failure of the complainant to exhaust the resources' at his command in order to have the error of'which he complains corrected, coupled with the non-action of the trial judge, is sufficient to justify the conclusion that no real injury has been sustained.

The general proposition is thus stated in a standard work: “It is a well established rule that it is error, sufficient to reverse a judgment, for the court to suffer counsel, against objection * * * to comment on facts, calculated to prejudice, which have no bearing whatever upon the issues, and evidence of which would have been ruled out, or to assume, arguendo, such facts to be in the case, when they are not. * * * Such irregularities always justify the interference of the presiding judge, for the purpose of restraint, but are not ground for the granting of a new trial, by an appellant court, where it appears that the party seehing it was not, under all the circumstances, materally prejudiced.” (Italics by the present writer.)

Ency. Pl. & Pr., Vol 2, pp. 727, et seq.

Upon the other hand there is ample authority in support of the doctrine that it is reversible error for the trial judge to fail, of his own motion, to give such instructions as will efface from the minds of the jurors .the impression made by statements of counsel which are unauthorized and prejudicial, and there are many cases in which it has been held that the wrong done is not remedied even by such instructions. Thus, in Nelson vs. Welch, 115 Ind. 270, it was said that such statements, i. e., statements predicated upon matters dehors the record, “are, presumably, injurious and prejudicial to the adverse party, and the burden is upon the party offending to show that no injury resulted, or that all such steps were taken to prevent injury, as were proper under the circumstances,” and that “where the party who is injured by the wrong calls for the intervention of the court, upon objections, it will not do for the court to remain silent, leaving the matter of misconduct with the offending party and the jury. The court is bound to interfere when so called upon, and, if an improper and injurious statement has been made, without excuse, the effect of it should be' erased from the minds of the jury, then and there, by an emphatic admonition from the court. The jury should be made to understand that, in making the statement, counsel violated the propriety of his position, and that if they did not wholly disregard it they would violate their duty as-jurors.”

In Sasse vs. State, 68 Wis. 530, where the prosecuting attorney stated that the defendant had committed other crimes in' foreign countries, a new trial was granted, although the court, subsequently, instructed the jury-not to regard the statement. See, also, Scripps vs. Rielly, 35 Mich. 371; People vs. Ah Len, 92 Cal. 282.

And so, in construing Act No. 29 of 1896, which, while granting a party accused the privilege of testifying in his own behalf, provides that his failure to testify shall not be construed against him, this court has held that it is reversible error for the district attorney to call attention to the fact that the accused has not testified in his own behalf which is not cured by the trial judge’s telling the jury “that the right of an accused to testify was a privilege accorded to him, which he had a right to exercise, or not, as he saw fit, and that, if he testified, he subjected himself to all the rules which applied to other witnesses, and that his failure to testify, if he chose not to do so, was not to be construed for, or against, him,” and by the district attorney’s stating to the jury that the instructions given them by the court was the law.” State vs. Marceaux et als., 50 Ann. 1137.

In the case thus referred to the similar case of Yarbrough vs. State, 70 Miss. 593, was cited with approval. In that case, it appeared that “immediately on the prisoner’s, counsel excepting to the language of the counsel for the State, the court instructed the jury that the district attorney was prohibited by law from commenting on the failure of the defendant to take the stand on his own behalf, and that the jury must not consider any such comment.” The Supreme Court, of Mississippi, however, upon the trial of the appeal, said, “But this action could not, and did not, undo the wrong already done. The statute absolutely forbids any comment on the failure of the accused to testify, and it is the right of every person charged with crime to insist that he enjov that statutory immunity from criticism' by hostile counsel.” And "the conviction was set aside. The prohibition of the Mississippi law was plain and positive, that of the Louisiana law, as was said by this court, in the case cited, “is inferential and consequential, but strong and clear.” The prohibition of the common law, by which criminal prosecutions in this State are regulated, is, however, also strong and clear against the injection into a case of facts not established by the evidence and which would be inadmissible if sought to be introduced in that way.

The character of the able and conscientious officers by whom the defendant was prosecuted and before whom he was tried, puts the question of intentional injury to him entirely out of consideration. The statement complained of no doubt escaped the prosecuting officer without premeditation, and we note the expression, by the trial judge, of his opinion that the accused sustained no injury. But, whilst we think that opinion entitled to great weight, we find ourselves unable to yield to it in this case, or to disabuse our minds of the conviction that, all the circumstances being considered, the defendant may have been seriously prejudiced.

It is, therefore, ordered, adjudged, and decreed that the verdict and sentence appealed from be set aside and annulled, and that this case be remanded to be proceeded with according to law.

Mr. Justice Breaux,

dissenting — I do not think that the hearsay statement of the district attorney was such as to influence the jury. I dissented in State vs. Marceaux, 50th Ann. 1138; and dissent in this ease; the issues being similar.

Provosty, J., takes no pairt, he not having been a member of the court when the case was submitted.


author: Breaux, J.

text:
    No. 13,864.
    Josephine Martinez et als. vs. Michel Bernhard.
    Syllabus.
    1. — The owner of a gentle animal which has always been of a kind temper, and has never attempted to bite anyone and has never given occasion to suspect that it would bite, is not liable in damages by the mere fact that the animal has bitten some one. Unless there be some fault, light as it may be, liability does not arise. In each, Montgomery vs. ICuerstner, 35 Ann. 1091; McGuire vs. Kingrose, 41 Ann. 1029; Delisle vs. Bouriaque, 105 La. p. 77, the owner was at fault. Laurent, Vol. 20, p. 675.
    2. — A slight wound greatly aggravated by imprudent treatment will not give rise to liability for damages where both the attending physicians trace the death to another cause than the bite of the animal.
    APPEAL from Civil District Court, Parish of Orleans. — Theard, J.

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

      Hugh G. Gage and George G. Preoi, for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs sue for damages. Charles Martinez, the father of plaintiffs, was, on the 8th day of July, 1899, bitten by a dog belonging to Michel Bernhard, the defendant. On the seventeenth day of August following, Charles Martinez died.

Plaintiffs charge that defendant owned for his own use and pleasure a vicious and ferocious dog and allowed it to run at large, although defendant knew that he was vicious and ferocious; that while their father was passing on one of the public highways of the City of New Orleans, he was attacked by this vicious animal and several times bitten and maimed by him; that the accident was owing to the neglect of defendant in allowing this dog to range at large; that the venomous and virulent character of the wound inflicted upon the body of the father was the cause of his death.

The defendant, in his answer, controverts plaintiffs’ averments, and denies that he is liable in damages. Plaintiffs’ demand was rejected in the District Court and they prosecute this appeal from the judgment.

We have not found, after carefully reading the testimony, that the animal was vicious and dangerous. It was not of a savage and bloodthirsty breed, addicted to acts of cruelty such as have brought the pure bloodhound into ill-repute. It was, we are informed by the testimony, a rabbit-dog- and had never before attempted to bite anyone. He was, at the time, in front of the store kept by the defendant.

A peaceable dog may rightfully be in front, of the store of its owner. At any rate, an owner cannot well be charged with neglect if-his dog, which has never been known to be otherwise than gentle and kind, finds its way to the sidewalk in front of his place of business. The owner, it is true, is liable for damages caused by his animal, but to render him liable, it is necessary to prove that he is in some way negligent, or that he did not prevent the injury where it was reasonably to be expected that he should have prevented it. Only the lightest fault, it is true, is sufficient to render the owner'liable. ’ Here the testimony has not fastened even the slightest blame upon the defendant. He was the owner of a domestic animal that was in front of his store, and, while there, bit the deceased. Upon this showing, plaintiffs are not entitled to a judgment.

The decisions of this court have always found that the owner was in some way at fault in cases in which damages were allowed. Montgomery vs. Koester, 35 Ann. 1901; McGuire vs. Ringrose, 41 Ann 1029. In Delisle vs. Bourriaque, 105 La. 84, the court said that there is no responsibility when there is no fault.

“La jurisprudence francaise est dans le meme sens. II a ete juge par la cour de Paris que le proprietaire d’un animal ne saurait etredeclare responsable du dommage lorsqu’il n’a comrnis aucune espece de negligence, et qu’il rifa pu ni prevoir ni empecher Vaccident dommagedfble.” Laurent, Vol. 20, 675.

While the least act of negligence should be enough to hold one liable who owns a dog, yet it must appear that there was some negligence, however slight.

This brings us to the question as to whether the death of Mr. Martinez was the natural result of the injury inflicted by the dog.

The two physicians who examined the wound pronounced it slight. One of the physicians was called to see Mr. Martinez on the thirteenth day of July. He found, he said, “two or three little marks on his leg, apparently not much, and I gave him a simple little application. Two or three days afterwards I saw him and his leg was doing apparently nicely.” This physician further says, “A few days afterward I noticed that he had erysipelas around the wound and down his leg. The erysipelas extended up and down his leg, invaded the wound and developed other wounds.” We understand that the physicians concur in the statement that the bite of the dog was not the cause of the death.

Septicsemia, they testified, was the cause of death, and they did not trace the cause of the poisoned condition of the blood to the slight wound. It appears that the daughter of the deceased, one of the plaintiffs, obtained from the owner of the dog a small bunch of his hair and . conceived the idea that it would soothe the wound and cause it to heal. She put this hair on the scratches inflicted by the dog, carrying out the old saw that the hair of the dog is an antidote for the bite. She, after having put on the hair, applied a piece of salt meat over the hair. The hair and the salt meat remained on the wound for about a week. At the end of which week, erysipelas developed itself. The application was removed and' the physician sent for.

In answer to the question, “Doctor, what do you think of the advisability of putting dog hair on a wound?” the doctor said: “Very injurious and absolutely certain to carry germs and disease into the wound and produce any sort of trouble like lockjaw, erysipelas, or, in fact, many other diseases.”

In answer to the question: “Did you connect the death of the patient with the dog bite, except remotely?” The witness said:

“No, sir; I did not. It was due directly to septicaemia,” and we understand that this witness, who was the regular attending physician, did not charge the septicaemia to the wound which he said was slight. The other physician called, and who had consultation with the attending physician, stated that the wound was slight and testified, that unless a dog was kept perfectly clean and constantly washed, his hair would have asceptic tendency and the probable effect of placing the aseeptic hair in a wound would be to cause septicaemia.

We have quoted at more than usual length from the testimony of these physicans, for we consider their testimony of importance in determining the issue. The medical testimony entirely fails to find in the bite of the animal the legal and proximate cause of the death. It was not the true causa causans, the efficient cause attaching responsibility on the defendant. It was shown that the original injury was aggravated by the imprudent treatment of the daughter, and that the wound was slight and would not have caused death if it had not been for the mistaken application made as before stated. These physicians have testified regarding the cause of death as a separate and independent cause. In other words, they, in substance, testified that if it had not been for the treatment just mentioned the man would not have died of the slight wounds received. In the presence of this uncontradicted testimony, there can be but one conclusion arrived at, and that is the defendant is not liable.

The court, therefore, orders, adjudges, and decrees, that the judgment appealed from be affirmed.


author: Watkins, J. Monroe, J. Monroe, J.

text:
    No. 13,682.
    William S. Moffet vs. Julius Koch.
    Syllabus.
    On Motion to Dismiss Appeal.
    Act 41 of 1894, authorizing certain corporations to become sureties on bonds, Is an amendment of the Code of Practice by implication, so far as it declares and defines the qualification of personal sureties.
    On the Merits.
    1. In determining whether the relations between parties are those of contractee and contractor, or employer and employe, “the simple test is, who has the general control over the work; who has the right to direct what shall be done, and how to do it? And, if the person employed reserves this power to himself, his relation to his employer is independent, and he is a contractor; but, if it is reserved to the employer, or his agents, the relation is that of master and servant.”
    2. Where an employe is not placed by the employer in a position of undisclosed danger, but is a mature man, doing the ordinary work which he was engaged to do, and whose risks are obvious to any one, he assumes the risks of the employment, and no negligence can be imputed to the employer for an accident to him therefrom.
    On Rehearing.
    A separate appeal, taken by the plaintiff, after a final judgment on the merits in his favor, from an interlocutory ruling dismissing a supplemental petition which had been filed by him during the proceedings in the district court, injects into the case brought up by the appeal, previously taken on behalf of defendant, from such final judgment, no issues other than those presented in the transcript filed by the defendant. If the appeal so taken on behalf of the plaintiff is entitled to any consideration it must be as a separate matter and should have been so docketed.
    APPEAL from the Civil District Court, Parish of Orleans. — St. Paul, J.

      Benjamin Bice Forman and William J. Hennessey, for Plaintiff, Appellee.

      Denegre, Blair & Denegre, for Defendant, Appellant.
   The opinion of the court, on motion to dismiss, was delivered by

Watkins, J.

The opinion of the court, on the merits, was delivered by

Monroe, 7.

On the application for a rehearing by

Monroe, J.

On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J. Plaintiff and appellee bring to the attention of the court the fact, that he filed in the District Court a motion to dismiss the defendant’s appeal, on the ground that the surety on the appeal bond “was not a legal surety, because it did not possess property situated within the State,” and that said motion was, on trial, dismissed; and that upon a supplemental transcript which contains the evidence, he now renews his motion to dismiss.

The argument, on the part of the defendant’s counsel, presents the question at issue very succinctly; and we have made the following extract therefrom, viz:

“This rule was tried on admissions, the plaintiff in rule admitting that the surety company which signed the bond had fully complied with Act No. 41 of 1894, and the defendant in rule admitting that the surety company had no property within the jurisdiction of the court.”

The act of 1894 does not require surety companies to have property within the jurisdiction of the court in which the bond is furnished, nor, for that matter, within the State. The first section of the act defines the kind of corporations which may become surety; states the capital and assets which it must have; and provides that “such execution, by such company of such bond, undertaking or obligation, shall in all respects be a full and complete compliance with all the requirements of such laws, ordinances, or regulations that such bond, undertaking or obligation, shall be exercised by one or more sureties, or that such sureties shall be residents, or freeholders, or either or both, or possess any other qualification,” contains other language showing that the act does no_t require that the corporation shall have property within the jurisdiction of the court, or within the State, and provides that' certain duties shall be performed by the Secretary of State, in order to insure the solvency of the companies acting as sureties.

The act of 1894 has been in force for six years, and appears to have been accepted and approved of by the profession, since it has been attacked in but two cases, both of which have been decided in our favor, namely the Standard Cotton Seed Oil Company vs. Matheson, 48th Ann. 1321, and Holmes vs. Railroad Company, 49 Ann. 1466.

In the Matheson ease, the court used the language quoted in the appellee’s brief, but nevertheless maintained the validity of the surety, notwithstanding the fact that the objection that surety companies were not required to have property within the State, was pressed home; for on page 1324 it appears that counsel in that case argued “nor can private citizens be admitted to suretyship on legal bonds, unless they have property within the State.”

The motion to dismiss in Holmes vs. Railroad Company, 49 Ann., seems to have been suggested by the language quoted from the Matheson ease, for the point was made in this ease “that the surety is not a resident of the Parish of Orleans, where it has no “property,” but, nevertheless, the motion to dismiss was denied.

It seems to us that, boiled down, the point made by the appellee is that the act of 1894 is in conflict with an article of the Code of Practice, which requires that the surety shall reside within the jurisdiction of the court, and an article of the Civil Code, which provides that the surety shall have property liable to. seizure within the State. If there be a conflict, the act of 1894 governs, being the later act, and repealing pro tanto the articles of the Code and the Code of Practice, as decided in the Matheson case, 48 Ann. p. 1323.

We know of no provision in the Constitution which prevents the Legislature from making any regulations it sees fit with reference to sureties, or which requires the Legislature to exact any surety at all in the ease of an appeal, and, as a matter of fact, Article 3042 of the Civil Code, until amended by Act No. 76 of 1876, did not require that the surety should have property within the State.

The Statute of 1894 was enacted for the special purpose of authorizing certain corporations to become sureties on bonds, and it prescribes the conditions under which they may do so. One of its requirements is that such corporation shall have a cash capital of not less than $250,000, and has qualified under the provisions of this act “and which has assets allowable as such under the laws of this State, or under the laws of the State in which it is incorporated in excess of its capital stock, outstanding debts and a premium reserve on all outstanding risks,” etc. Sec. 1, Act 41 of 1894.

The company having complied with these conditions “it shall become subject to all the liabilities, and have all the rights of sureties under the provisions of the law relating thereto; it being the true intent and meaning of this act to enable corporations created for the above purposes to become and be accepted as sole surety on all bonds,” etc.Ibid. (Italics ours.)

The motion does not disavow the fact that the guaranty company had in this case qualified itself according.to.that statute, and hence that' fact may be assumed.

That statute must be accepted and considered as an amendment to that provision of the Code of Practice relied upon by the appellee.

We are of opinion that the district judge disposed of the motion correctly.

Motion to dismiss denied.

On the Merits.

Monroe, J.

Tliis is a suit for the recovery of damages sustained by the plaintiff, whilst engaged in assisting in the erection of a brewery, for the building of which the defendant was -the contractor. The plaintiff alleges that he is a carpenter; that he was employed in that capacity by John Weiss, the agent and representative of the defendant; and that, whilst engaged in the work for which he , was employed, under the direction of both of said parties, he received the injury of which he complains by reason of their negligence and of the fact that they subjected him to danger of which he was ignorant and of which they failed to warn him. ■

The defendant denies that Weiss was his agent, and avers that he was an independent contractor; and he further denies the negligence imputed to him, and alleges that the plaintiff, when injured, was engaged in the work for which he was employed, and the risks of which he had assumed. There was a mistrial, originally, by reason of the sudden illness of a juror. Upon the second tral there was a verdict for the plaintiff, which was set aside by the judge a quo. Upon the third trial there was another verdict for the plaintiff, and the defendant has appealed.

The evidence shows that the defendant had contracted to erect the brewery, and that he let out to John Weiss the contract for general work, including the hoisting into position of the iron required in the building; that Weiss employed and discharged his own mechanics and laborers; and that the defendant communicated with him, and not with the men employed by him. Nevertheless, there is, upon the one hand, an uncertainty as to the precise limitations of this contract, and, upon the other, a certainty that the defendant was continually on hand, and in control, even though his directions as to how the work should be done were given to Weiss, that leads us to conclude that the latter was not an independent contractor to the extent of relieving the defendant of liability for his conduct in the prosecution of that work.

“The simple test is,” says Mr. Wood, “who has the general control over the work? Who has the right to direct what should be done and how to do it ? And if the person employed reserves this power to himself, his relation to his employer is independent, and he is a contractor, but if it is reserved to the employer, or his agents, the relation is that of master and servant. Wood on Master and Servant, 614 (cited in Tutrix vs. Sellers & Co., 32 Ann. 1017.)

Upon the merits; the evidence shows that the plaintiff had been working at his trade for about twenty years; that for four or five years before the date of the accident out of which this suit has arisen, he has been frequently employed as foreman; that he was so employed when the accident occurred; and, in the absence of his employer, John Weiss, during certain hours of the day, was left in general charge of the work, and, with another foreman who had supervision of the laborers, was vested with authority over the workmen, numbering, sometimes, as many as thirty-five. It is further shown that the defendant’s contract called for the construction of a building to be used as a boiler-room, the roof of which was to be supported by steel trusses; that the work of hoisting into position and securing the trusses was included in the sub-contract taken by Weiss, and that the plaintiff, as Weiss’ foreman, superintended and assisted in that particular job, and in placing and making fast the purlins which, whilst forming part of the roof, served also as braces for the trusses on which they rested. Defendant’s contract also called for the erection of an engine-room, being a building twemy-nine feet wide by thirty-nine feet long, with walls about thirty feet high, the roof of which was to be supported in a manner similar to that of the boiler-room, that is to say, upon two steel trusses long enough to extend from wall to wall, across the building, and placed, as we understand it,- about equidistant from the ends of the building and from each other. These trusses, as actually constructed, are steel frames, say, thirty feet long and about six feet high; and, when in position, with the ends resting upon the walls upon either side of the building, have, each, the appearance of an open fence, or the skeleton floor of a bridge, set on edge; and it will be readily understood that whilst merely resting on the walls, and until braced in some way, are very liable to fall to one side or the other. Upon December 28th, the plaintiff, according to the allegations of his petition, assisted in hoisting one of these trusses into position, and in bracing it, slightly, where the ends rested upon the walls. Within the next few days, a number of purlins, being rather heavy pieces of wood, intended to extend from truss to truss, and from the trusses to the walls at each end of !be building, were hoisted up and placed, at random, across the trusses. And, early in the morning of December 30th, Weiss, who probably had other contracts on his hands, and was in the habit of absenting himself from this particular building for a number of hours each day, leaving the plaintiff in charge, gave the latter certain general instructions, which, together with some other matters of interest, will he best understood from the following excerpt from his testimony, to-wit:

“Q. Who was next in authority under you? A. William Moffett. Q. Did you have any conversation with Moffett with reference 'o these trusses and the work to be done on them? A. Early in the morning, I did. Q. What was the nature of this conversation early in the morning? A. I told him to divide some of his men off of the boiler-room roof and to continue with the engine-room. Q. And after you had that conversation with him, did you remain there or go away? A. I left the works. Q. When did you come back to the works? A. About 2 o’clock. Q. When you got back to the works, what directions, if any, did you give to Moffett? A. None. Q. Where did you go when you came back? A. I walked up on the roof, through the trusses, and crossed the one and got over on the fire-wall. Q. Where was Moffett when you climbed up? A. On the boiler-room roof. Q. What did he do after he saw you? A. He started for the engine-room roof. Q. Do you know if anything was said to him ? A. Yes, sir; only a remark by Mr. Schroeder. Q. Do you remember what that remark was ? A. Yes; he said these trusses were dangerous. Q. Was anything said by Mr. Moffett? A. He said, “Yes,” but I had my back turned from him. I turned away and I said: “Billy if that is the ease, you will get a line on it.” He said: “Look out, there they come.” Q. Whose duty was it to put the purlins into position ? A. Mr. Moffett’s. Q. Who placed the purlins in position on the roof of the boiler-room? A. Mr. Moffett.”

Schroeder was a workman whom Moffett had ordered to assist him in spreading, i. e., placing in their proper positions the purlins, which were then lying in disorder across the trusses. He testifies that he saw that the trusses, which had either not been set perpendicular when hoisted up, or else had been disturbed by the placing on them of the purlins, were in a dangerous condition and that he called the attention of Moffett to it. Poree, the contractor for the brick work, testifies that he saw the danger and called to Denny, the foreman of the laborers, who told him to speak to Moffett, and that he then called to Moffett that the whole thing would come down. And Denny testifies that Poree spoke to him on the subject, and that he told him to go to Moffett. Whatever, therefore, may be the value of the plaintiff’s denial, that he was warned of the dangerous condition of the trusses, the fact remains that the danger was obvious to other persons who did not share his responsibility in the matter; and, whilst the evidence referred to and other evidence relating to statements made by the plaintiff after the accident, strongly indicate that he was aware of the danger of his undertaking (as he went about it), we find no reasonable explanation or excuse for his ignorance of that danger, if ignorant he was. It was his business and his duty to have known it. And considering that he had been a carpenter and house framer and builder for nearly twenty years, and had frequently acted as foreman on such work, and had accepted and was occupying the position of foreman on' the work in question; and that he had been in charge of similar work, under the same contract, his employer was justified in assuming that such work was not beyond his intelligence or capacity. It was work that had to be done by somebody, and if Weiss had not believed that the plaintiff was capable of doing it properly, he would, doubtless, have done it himself, or have employed another man. But we learn from the record that the plaintiff was regarded as a competent man for his position, and there was no reason to suppose that he would be unable to do work which properly belonged to that position, and the risks of which he had assumed in accepting and in holding such position. In this connection, it may be remarked that there was a derrick in the building, with guy ropes- attached, and it is admitted by the plaintiff, and shown beyond controversy, by other witnesses, that, by the use of those appliances, he might have secured the trusses, in a few minutes, and have made them perfectly safe. He took no such precaution, however, but went on to the truss, which he had assisted in putting up, as it was, with the result, that it tilted over and fell to the ground, bringing with it the other truss and the purlins which were on them, and bringing also Schroeder, who had followed the plaintiff, and the plaintiff himself. And the plaintiff’s right hand was so badly crushed by some of the falling material that it had to be amputated. We are unable, upon the facts as presented, to reach the conclusion .that the defendant is in any way responsible for this deplorable result. No one knew better than the plaintiff how the truss upon which he ventured had been, temporarily, braced when first hoisted into position, for he had assisted in bracing it. No one knew better than he how to go about bracing it, permanently, for he had braced permanently, the trusses on the boiler-room roof, and, by using the appliances which were at hand, he could have braced the trusses in question, in the same way, and without' danger to himself or his fellow workmen. In a case involving the same principle of law this court has said:

“The deceased entered the employment of the defendant company as a flagman and switchman with a full knowledge of the character of the service required of him, and the dangers incident to the employment. He assumed all those risks when he entered into the service of the defendant company. The defendant company did not increase the risk assumed hy the deceased and to which he subjected himself. Then? was no defect in any of the appliances provided by the defendant company for the performance of the duties required of him, and there was, therefore, no negligence.” (Citing authorities.)

Dandie vs. Railroad Co., 42 Ann. 689.

And, upon the same subject, the Supreme Court of the United States has said:

“Where an employee is not placed by an employer in a position of undisclosed danger, but is a mature man, doing the ordinary work which he was engaged to do, and whose risks are obvious to anyone, he assumes the risks of the employment, and no negligence can be imputed to an employer for an accident to him therefrom.” Kohn vs. McNulta, 147 U. S. 238.

The rule, as thus stated, is applicable to the ease at bar, and precludes recovery by the plaintiff.

It is therefore ordered, adjudged and decreed, that the verdict and judgment appealed from be annulled, avoided and reversed, and that the plaintiff’s demand be rejected, at his cost in both courts.

On Application for Rehearing.

Monroe, J.

Counsel for plaintiff calls attention to the fact that the opinion handed down fails to notice the ruling of the trial judge dismissing a supplemental petition, whereby, after issue had been joined, and after there had been a mistrial, the plaintiff sought to bring into the case an additional defendant. It appears that the supplemental petition in question was dismissed, in January, 1900, upon an exception filed on behalf of the original defendant; that the case was thereafter tried, with the result that, in June, 1900, there was a verdict and judgment for plaintiff, from which said original defendant appealed; that, in November, following, after a complete transcript of all the proceedings in the case, up to, and inclusive of, the appeal thus taken, had been lodged in this court, the plaintiff obtained an order of appeal from the interlocutory ruling whereby his supplemental petition had been dismissed, and that he undertook to perfect the appeal so taken by filing in this court a transcript of the proceedings which took place in the District Court after the appeal had been taken by the defendant, and by obtaining, upon ex parte application, permission, which was granted without notice or prejudice, to make use of the transcript which had previously been lodged here by the defendant.

It seems clear that the appeal thus taken by the plaintiff, whatever may have been its merits, did not have the effect of injecting into the case as brought up by the defendant’s appeal any other questions than those presented in the transcript which the defendant had filed. And, as that transcript discloses no complaint concerning, or appeal from, the interlocutory ruling dismissing the plaintiff’s supplemental petition, and as there is no answer to the appeal taken by the defendant, it follows that the question of the correctness of that ruling was not presented for review in the case which has been decided. If the appeal as taken on behalf of the plaintiff is entitled to any consideration, it must be as a separate matter, and it should have been so docketed.

We find no reason, upon this, or other ground, for granting a rehearing, and the same is accordingly refused.


author: Nioholls, C. J.

text:
    No. 14,089.
    State of Louisiana vs. Arthur Watkins and Matilda Cooper.
    Syllabus.
    1. Where the Supreme Court Is not advised of the facts of the case, It will not assume the action of the court refusing a severance In a criminal cause to have been erroneous. This is a matter resting largely In the discretion of trial courts.
    2. The District Court may, in anticipation of the exhaustion of the regular panel, direct the sheriff to summon talesmen (State vs. Monda, 39th An nual).. Authority so to do has not been withdrawn by the 11th section of Act No. 135 of 1898. Complaint on this score, where no injury Is alleged, when the talesmen selected have been accepted and sworn without objection, Is purely technical and entitled to little consideration. The matter would be, at the utmost, an irregularity, which the accused could — and under the statement of the district judge — did waive.
    3. Where special charges which counsel of an accused request the judge to give to the jury, are grouped, and any one of them is wrong, the court is warranted in refusing the whole.

      4. The maxim “falsus in uno, falsus in omnibus” is not a rule of law, and cannot ■ -be forced to be charged by the court to the jury as such. Juries in criminal cases in Louisiana are judges of the law and the evidence, and should not be tied down by peremptory instructions from the court as to what their course must be In respect to any particular testimony. The right of the court to inform a jury what it is authorized to do, is something different from telling It “what it must do.”
    5. The court correctly refused to charge the jury that "the doctrine of reasonable doubt applies not only to the whole ease, but to each and every incident connected with it.” That statement is entirely too broad.
    6. A declaration made by the judge In his charge to the jury that “one witness had sworn specifically to this crime” should not have been made, but It does not follow necessarily from the fact that it was made, that it was calculated to injure, and did, in fact, injure the accused. In the case at bar it occurred In a statement made for the benefit of and not adversely to the accused.
    APPEAL from the Ninth Judicial District, Parish of Madison.— Randsell, J.

      Walter Onion, Attorney General, and David M. Evans, Jr., District Attorney (Lewis Onion, of Counsel), for Plaintiff, Appellee.

      Jeff. B. Snyder and A. L. Slack, for Defendants, Appellants.
   Statement op the Case.

The opinion of the court was delivered by

Nioholls, C. J.

Defendants were indicted, jointly, with one Philipps, for the murder of Joe Cooper. He was granted a severance, tried and acquitted. Matilda Cooper applied for a severance on the same grounds as those urged by Philipps, but her application was denied.

She and Watkins were, therupon, jointly tried, the trial resulting in a verdict of guilty without capital punishment. They appealed. In refusing the severance, the judge stated that from the evidence in the case of the State vs. Philipps, who was jointly indicted with the parties then on trial, he was convinced that a severance was not necessary to secure a fair trial for defendants; that the testimony would be the same, except, possibly, in some minor details; that he refused the severance for this reason.

We are not informed by the bill what the evidence in the case was. Appellants, in their second bill of exceptions, recite that in the progress of the trial, Philipps, a co-defendant, having been tried by a jury obtained from the regular panel, it being apparent that it would be difficult to select a jury from the additional jurors, the court ordered the sheriff to summon talesmen and adjourned on the evening of the 23rd of July, and the next morning the court having refused to permit a severance on the application of Matilda Cooper, the case wss ordered proceeded with.

That after examining all the jurors of the regular panel, many were rejected for cause, two peremptorily challenged by the State, and three peremptorily challenged by the accused, the entire panel of regular jurors was then exhausted. That, thereupon,’ the court ordered the sheriff to call the talesmen from those he had summoned the previous evening; that the accused filed a written protest to this order, which was overruled, and the talesmen ordered were sworn, when there was no juror in the box and no juror to whom the talesman could be drawn to complete the panel as argued by the defense; that the talesmen were called and sworn over their objection; that from these talesmen the jury was solely formed; that the accused went into the trial against their objection and protest.

The “protest” defendants’ counsel refers to, declared that “the regular panel being exhausted and no juror having been obtained therefrom so as to form the basis or ‘nest egg’ upon which talesmen could be called, and the court not having ordered the Jury Commission to draw additional jurors, to be drawn in accordance with Sections 4 and 11 of Act No. 135 of 1898, the accused excepts to any talesmen being called or sworn on the trial of the cause, as there is no law or precedent for such proceeding, in view of the fact that no member of the original panel is now upon the jury.”

The judge states, in reference to this complaint, “that there had been no extra jurors drawn, the court not having anticipated the need of same, that this was a matter within its discretion. That defendants’ attorneys knew this. They represented Philipps, who was jointly indicted with the other defendants, and knew the evidence was practically the same in both cases. They suggested and participated in the summoning of the talesmen which was done on the day before the trial, and they did not except until they had gone into the trial of the case and the regular venire exhausted; five of whom were good jurors and peremptorily challenged as stated. That not to hare overruled defendants’ exception would have been to permit them to take advantage of their own acts and make a farce of justice.”

Counsel for the accused asked the court to charge the jury that “if it should believe that the testimony of any witness whose evidence has been attacked is not consistent, or if they should believe that the witness has made inconsistent and irreconcilable statements, either under oath or otherwise, which have not been accounted for or explained, then it is the duty of the jury to disregard said witness’ testimony entirely. If the jury shall believe that any witness’ testimony lias been impeached in any one part which is material in the case, then in such event they have a right to believe that it is false in other parts, and have a right, and it is their duty, to reject the whole;” “that if the jury should believe that there is any doubt as to the credibility of any witness, then in such cases it is their duty to give the prisoners the benefit of the doubt and to reject such evidence entirely.” The judge refused to give.this charge and counsel excepted.

Counsel further asked the court to charge the jury as follows: “You are required, under the law, to give the accused the benefit of the doubt. By this is meant that if you have a reasonable doubt as to their guilt, you must give them the benefit of that doubt and find them not guilty, and this doctrine of reasonable doubt not only applies to the whole ease, but to each and every incident connected with it. “You are the sole judges of the evidence and of the credibility of the witnesses, and if you have a reasonable doubt of the truth of their statements here, you must give the accused the benefit of the doubt and you must disregard the testimony of the witness or witnesses concerning whom you have such a doubt.” The judge refused to give this charge, assigning as his reasons:

1st. — That he charged the jury fully as to their being the judges of the law and the evidence, and told them they could believe or disbelieve any part of it if they pleásed, and could give such faith .and credit to the witnesses as they wanted to * * * and
2nd. — That on the question of reasonable doubt he read from “Sacketts’ Instruction to Juries,” “pages 645 and 646, paragraphs 32 and 33, which covered the ground fully; that he considered that the charges requested had been practically made and he did not think- the last good law.”

Appellants, in a bill of exceptions filed by them, recite that, in his charge to the jury, the court made use of the following language:

“There is one witness who has testified specifically as to the commission of this crime” to which charge defendants excepted. The judge states that he made this remark for the purpose of calling the jurors’ attention to the fact that there had been witnesses introduced to impeach said witness’ testimony, and to tell them they were to give this impeaching testimony the same consideration as they did any other evidence in the case. The defendants, after conviction, made a motion for a new trial of character such as to call for no special reference to it.

Opinion.

We can not say, from the record, that the judge’s action in refusing a severance of trial, as between Watkins and Matilda Cooper, wa3 error. The judge had been fully advised, he states, from the trial of the cause against Philipps, what the issues in the cause would be, and we must assume, in the absence of an affirmative showing to the contrary, that his ruling was right. The question of severance is one very much under the control of the trial courts.

The complaint made by accused as to the time and manner of obtaining talesmen, and of the time and manner of empanneling the jury, is of the most technical character. No injury whatever to the appellants, from the course pursued, is suggested. The talesmen tendered seem to have been accepted without complaint. We do not give to the 11th section of Act No. 135 of 1898, the strict construction which appellant wishes to have placed upon it, and to make the exercise of the'right of the judge to order talesmen to be summoned by the sheriff in a criminal case conditioned absolutely upon the prior exhaustion of the list of regular jurors or of tales drawn by the Jury Commission.

The trial of criminal cases would be greatly hampered if each case had to be forcedly postponed until the Jury Commissions could he called together to fill up an incomplete jury. We think the court may, in anticipation of the exhaustion of the regular panel, direct the sheriff to summon talesmen. That course was held authorized in State vs. Moucla, 39 Ann. 868, and we do not think the legal situation has been changed by the Act of 1898.

After defendants’ counsel had concurred, as the court states they did, in the propriety and advisibility of the course followed, they were scarcely in position to subsequently complain of it.

Appellants complain of the refusal of the court to charge the jury upon the subject of the credibility of witnesses. The charges on that subject were grouped together and it has been repeatedly held that if any one of the instructions in the group is wrong, the judge is warranted in refusing the whole of the group. The application of this rule to the charges requested by the appellants, evidently cause their complaint to fall. In reference to the matters covered by the bill on this subject the following extract from Eice on Criminal Evidence, page —, is pertinent.

In his work on Criminal Evidence (Vol. 3, p. 293), he declares that the force of a witness’ testimony depends upon the credit the jury think it entitled to, and no court has a right to lay down, for a jury, rules whereby they shall determine the force of evidence irrespective of the credence they actually give it in their own minds. (Citing People vs. Jenness, 5 Mich. 310; People vs. Wallen, 55 Mich. 497.) They are the sole judges of the credibility of the witnesses. With that the court has nothing to do, and if they find from the evidence that any witness or witnesses have wilfully testified falsely, they are at liberty to disregard the whole or any portion of such witness’ or witnesses’ testimony.

The author refers to Stoffer vs. State, 15 Ohio St. 487; 86 Am. Dec. 470; in which Mr. Justice Ramsey says: “An ancient maxim of the laws of evidence falsus in uno would seem to import such exclusion (exclusion of the entire testimony of the witnesses) by raising a presumption of law juris et de jure, that a witness who was certainly shown to have committed perjury upon one material point in the case, should be deemed wholly unworthy of credit upon any other, and his testimony be wholly rejected.

“In most of the cases brought to our attention in the argument where this maxim has been referred to, no attempt has been made to define its limits and proper application, while in many it has been very inaccurately used as applicable to witnesses who have been merely contradicted upon some material point, without rasing any just imputation of perjury against them.”

The. justice quotes from Starkie on Evidence to the effect that the doctrine of falsus in omnibus did not extend to the total rejection of a witness “where misrepresentation has resulted from mistake or infirmity and not from design, but though his honesty remains unimpeached, this is a consideration which necessarily affects his accuracy.”

Eice declares that “the tendency of modern authority is to relax the application of the maxim, that the jury are not bound to wholly discredit a witness if his testimony as to material facts is corroborated by other credible and unimpeached witnesses. In Grimes vs. State, 63 Ala. 166, the court said: “We are prepared to follow the line of authorities which hold the maxim is not a rule of law operating a disqualification of the witnesses to be given in charge to the jury as- imperatively binding them. That it is to be applied by the jury according to this same judgment for the ascertainment and not for the exclusion of truth. The charge given by the judge is in accordance with this rule. It does not instruct the jury that they are bound to disregard the testimony of unimpeached witnesses, but left it to their sound discretion and judgment.”

The maxim falsus in uno falsus in omnibus is not a rule of law, and should not be charged to the jury as such. Juries in this State are, in criminal cases, judges of the law and the evidence, and they should not be tied down by peremptory instructions from the court as to what their duty is in respect to any particular testimony, nor what their course in respect to the same should be as a matter of law. The right of the court to inform a jury what it might be authorized to do, is something different from telling it what it must do.

We think the judge went as far as he could legally be called upon to go in the instructions he gave to the jury on this subject. The court was correct in refusing to charge the jury that if they had a reasonable doubt as to the guilt of the accused, they must give them the benefit of that doubt and find them not guilty, and this doctrine of reasonable doubt not only applies to the whole case, but to each and every incident connected with i& This statement is entirely too broad. The judge informs us that certain paragraphs from Sacketts’ Instructions to Juries on the question of reasonable doubt were read by him; that he considered the charges requested had been practically made and the last one requested he did not think good law.

The most serious complaint in the case is that of appellants, that the court had stated to the jury that “there was one witness who had testified specifically to the commission of this crime.” The occasion under which this declaration was made by the judge is not recited by appellants in their bill of exceptions, and it is easy to understand how, under certain circumstances and conditions, such a statement might be very prejudicial, but it by no means follows from the mere fact that it was made, that it was calculated to injure or did in fact injure the accused.

The court admits it was made, but states that, when it was made by him, it was an effort to break the force of the testimony by calling the attention of the jury to the fact that the witness who had given it had been impeached and the impeaching testimony was to be considered as all other evidence in the case. The court’s action was in aid of the accused, not against them. Considering the situation as a whole, we are not prepared to say that the accused was injured, though the court may have, erred, as we think it did, in referring specifically to the testimony 01 a particular witness. We do not attribute the same serious consequences to the use by the judge of the word “crime” as counsel of appellants does. We must credit jurors with some intelligence and we must assume that the jury must have understood when the judge said that one witness had testified specifically to this crime that he meant that one witness had testified to the crime “charged,” not to what he himself considered and believed to be a ‘crime.’ ”

We see no legal ground for reversing the judgment and it is therefore affirmed.


author: Pkovosty, J".

text:
    No. 13,736.
    Succession of John Moritz Wiemann.
    Syllabus.
    1. The administrator of a succession who has not rendered an account must render one on the demand of the heirs.
    2. There is no reason why the heirs of age should demand from their ex-tutor the account that they want to get from the administrator; especially in view of the presumption of their having already had an account from their tutor.
    3. A judgment closing the succession and sending the heirs into possession cannot be pleaded by the administrator in bar of the demand of the heirs for an account.
    4. Nor can a suit in partition among the heirs; especially where the suit went no further than citation, and is pleaded against those of the heirs who were the defendants in it.
    APPEAL from the Civil District Court, Parish of Orleans. — Sommerville, J.

      William 8. Parkerson, for Edna Eoberts Wiemann, mover in rule on administrator to file account, Appellant, on administrator, to file account, appellant.

      James B. Rosser, Jrfor Philip Peter, Administrator, Defendant in rule, Appellee.
   The opinion of the court was delivered by

Pkovosty, J".

To a rule .taken on him by the minor heirs of the succession, now of age, to show cause why he should not file an account of his administration, -the defendant administrator pleads, by way of exception, as follows: That said rule discloses no cause of action; for the reasons, first, that the plaintiffs should call upon their tutor and not upon him for an account; second, that the record shows that the heirs were recognized and sent into possession of all the property of the succession by a judgment duly recorded in the conveyance office, in 1895, and that thereby the succession has been closed and has ceased to exist; third, that the major heirs, subsequent to the date of said judgment, instituted against the two plaintiffs in rule a suit for a partition of the property of the succession.

The first exception is not good. Defendant does not explain why plaintiffs should call upon their tutor instead of upon him for the account when it is not from the tutor, but from him that they want to get the account. Eor our part, we can think of no reason why plaintiff should thus apply for the account apparently in the wrong quarter. The presumption is that they have already had an account from their tutor and have no right to demand another.

The second exception is no better than the first. A judgment closing a succession and sending the heirs into possession is nothing more than an order to the administrator to render an account to the heirs and to surrender possession to them. Out of such an adverse judgment he cannot frame a shield against the demand of the heirs for an account.

The presence of such a judgment in the record would appear to us to be excellent reason why this defendant should at once and without waiting to be further asked, proceed to render an account; but as a matter of fact it is not true that such a judgment is to be found in the record; the judgment relied on did' not do more than recognize the heirs; it did not purport either to close the succession or to send the heirs into possession.

The third exception is even weaker than the other two. In the first place, partition among co-heirs is in no wise inconsistent with the continued possession of the administrator (C. C. 1320); and, in the next place, the two plaintiffs in rule were defendants in the partition suit in question, they made no appearance, and the suit went no further than citation; that they are not concluded by such a judgment needs hardly to be said.

The exception .taken as a whole, is that of no cause of action, for the purpose of the trial of which the allegations of fact of the rule must be taken for true. The rule alleges that the defendant was appointed administrator; that he took charge of the effects of the succession, some $26,000, mostly movables;'that he has not rendered an account; and that the plaintiffs are heirs and demand an account. That an administrator who has not rendered an account of his administration must, upon the demand of the heirs, render one is perfectly plain.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be set aside, and that this exception of the defendant be overruled, and that he pay the costs of this appeal.


author: Monroe, J.

text:
    No. 13,785.
    Salem Brick and Lumber Company vs. Louis LeSassier et als.
    Syllabus.
    A bona given by a contractor to the owner (and not falling within the operation of Act 180 of 1894) to secure the carrying out of a building contract, and which merely recites the obligations of the building contract in order to show the conditions upon which the obligation of the bond, to such owner, are to become void, does not bind the surety for the obligations of the con tractor, under the building contract, to laborers and material men, and the latter have no right of action against such surety.
    IN RE Fidelity and Deposit Company of Maryland, applying for certiorari, or writ of review, to the Court of Appeal, Parish of Orleans, State of Louisiana.

      Purnel M. Milner, for Applicant.

      McOloskey & Benedict, for Salmen Brick and Lumber Company, Respondent.
   The opinion of the court was delivered by

Monroe, J.

This is an application for the review of a judgment rendered by the Court of Appeal for the Parish of Orleans. The record, together with the opinion upon which the judgment is predicated, having been sent up, agreeably to an order to that effect, disclose the following, as the case to be decided:

In November, 1896, the Salmen Brick and Lumber Company brought suit, in the Civil District Court, alleging that Louis LeSassier, and the Eidelity and Deposit Company, of Maryland, were, in solido, indebted to it in the sum of $1,036.82, with lien, and privilege, and legal interest from judicial demand, and costs, for this, to-wit: “That petitioner sold and delivered to said LeSassier certain brick and lumber, to the amount stated, which were used by said LeSassier in the construction of certain improvements contracted for by said LeSassier with one John Henderson, Jr., of New Orleans; that the Fidelity and Deposit Company bound itself, as surety, for said LeSassier under his contract with said John Henderson, Jr.,; that said LeSassier has failed and refused to pay petitioner, and both said LeSassier and said Fidelity and Deposit Company are bound, in solido, to your petitioner.” And there is a prayer for citation and judgment, etc.

To this petition, the Fidelity and Deposit Company excepted that it was too vague and indefinite, etc., and nothing further was done for a year, when the exception of no cause of action was filed. Thereafter, LeSassier having entered no appearance, a judgment by default was taken against him, and the Fidelity and Deposit Company answered that the plaintiff, not having brought suit under Act 180, of 1894, and not having annexed to it’s petition either the contract or the bond sued on, and having made no allegation entitling it to a direct action against said defendant company, should be dismissed out of court.

A year later the case was put on the call docket, on motion of counsel for the Fidelity and Deposit Company, who, upon the trial, filed a plea of novation, as a peremptory exception; after which there was judgment rejecting plaintiff’s demand as against said company, and confirming the default against Le Sassier. And, from the judgment so rendered, in so far as it rejected it’s demand, the plaintiff appealed to the Court of Appeal, and obtained a reversal, the Fidelity and Deposit Company being condemned by the appellate court in accordance with the prayer of the petition. It is this judgment, of the appellate court, which, at the instance of the party condemned, we are now called on to review.

Upon the trial of the case in the District Court, the counsel for the defendant company objected to all evidence tending to fix any liability on his client, on the ground that it was not authorized by the pleadings, and he, particularly, objected to the offer of the bond produced by the plaintiff, on the ground that no such bond had been declared on, and that the bond offered was in favor of Henderson, and not of plaintiff, which objection was overruled. Thereafter, other evidence was offered, and, upon the ease, as thus presented in the trial court, we find the following facts, to-wit:

In April, 1896, Louis LeSassier undertook, by written contract with John Henderson, Jr., “to repair and build, in accordance with the plans and specifications, furnished by him, of Delogny sugar house, all the work shown on the plans, or mentioned in the specifications, or reasonably implied.” And he agreed to give to said Henderson, a bond, in the sum of $5,000, “In the .Fidelity and Deposit Company, of Maryland, as a guarantee to complete the work in accordance with the plans and specifications, and to pay for all laboi and material.” He further agreed to begin the work on April 27th, 1896, and to complete it within seventy working days, under penalty of $10 per day for each day of delay beyond that time, Henderson to furnish quarters for twenty-five men, and to pay LeSassier $10,396, in installments, “said payments to be made about the end of each month, for the work done and material furnished during that month, less 20 per cent., which is” (was) “to be held back by the owner until the work is” (was) “completed, when the amounts remaining due are” (were) “due and payable.” To this, there was added a stipulation that there should be no “extra” work.

The bond referred to is a bond in which LeSassier, as principal, and the Fidelity and Deposit Company, as surety, bind themselves to John Henderson, Jr., upon the following conditions, to-wit:

“Whereas, said pricipal has entered into a certain written contract bearing date the 24th of April, 1896, if the said principal shall well and faithfully perform all the obligations assumed by him in said contract, as regards the said John Henderson, Jr., owner, and shall fully pay all sub-contractors, laborers, mechanics, workmen and furnishers, thereon, then this obligation and bond shall become null and void, otherwise to remain in full force and effect.” The bond contains, also, the following: “Provided, that said surety shall be notified in writing of any act on the part of the said principal, or his agents or employees, which may involve a loss, for which said surety is responsible hereunder, ’ immediately after the occurrence of such act shall have come to the knowledge of the duly authorized representative, or representatives, of said John Henderson, Jr., who shall have supervision of the said contract, and a registered letter, mailed to the president of said surety, at its principal office in Baltimore City, Md., shall he deemed sufficient notice within the meaning of this bond. Provided, further, that if the said principal shall fail to comply with all the considerations of the said contract, to such an extent that the same shall be forfeited, then said surety shall have the right and privilege to annul said contract, and to sublet or complete the same, whichever the said surety may elect to do, provided it is done in accordance with said contract.”
“Provided, further, that, in the event of the breach of any of the conditions of this bond, said surety shall be subrogated to all the rights and properties of said principal, arising out of said contract, and ail deferred payments and any and all monies and properties at this time due and payable, or that may thereafter become due and payable, to the said principal, under and by virtue of said contract, shall be credited upon any claim the said John Henderson, Jr., may make upon said surety because of said breach.”

LeSassier began work under the contract thus entered into, and the brick and lumber for which the plaintiff is now claiming were shipped to him, at Delogny plantation, in the Parish of St. James, where the work was being done. He was, however, allowed by Henderson to draw largely in advance of the contract, so that, by July 20th, he had drawn $9,500, leaving a balance of only $896 to become due upon the completion of the work, which was still far from completion. He was not put in default, but Henderson contented himself with obtaining, through the intermediation of the representative of the defendant company, his '(LeSassier’s) consent that the work should be completed by him, Henderson, or said company; and, if completed at all, it was completed by Henderson, at an expense which, including the payments made to LeSassier, exceeded the amounts called for by the latter’s contract.

As to the plaintiff, its agent testifies that he understood before the material for which the present claim is made, was furnished, that there was a written contract between Henderson'and LeSassier and that the latter had given Henderson a bond, but he did not inform himself of the conditions of the contract, or bond, nor do we understand him to say that he considered that the bond was given for plaintiff’s benefit. He further states that an attested account was served on Henderson, and, he thinks, was recorded, hut he made no effort to enforce any lien "against the building; and he instructed his attorney not to sue Henderson. Henderson, himself, correcting his testimony a few days after it had been given, says: “Further thought has brought to my recollection an interview with Mr. Salmen.” (plaintiff’s representative.) “Knowing that the latter was one of the largest (if not the largest) creditors of LeSassier, I went to see him during the construction of the work on which this suit is based, and asked him how he was getting along with LeSassier, regarding payments. He replied that Louis was all right. A considerable time after this conversation, Mr. Salmen told me that he had accepted, in payment from LeSassier, a certain amount in cash, and took notes for the balance; that, when the notes fell due, LeSassier failed to meet them, and that he, Salmen, was compelled to take them up.”

Upon the case, as thus' presented, our learned brethren of the Court of Appeal reached the conclusion: (1) That the exception addressed to the vagueness of the plaintiff’s petition should have been maintained, but that it would serve no useful purpose, at this time, to review the ruling of the district judge on that point. (2) That the bond given by the defendant company, to Henderson, contains a stipulation pour autrui of which the plaintiff is entitled to avail itself. (3) That no such'novation of the plaintiff’s claim against LeSassier has been shown as to discharge the defendant company from its liability to the plaintiff.

We are not asked to review the ruling on the defendant’s exceptions, and, as we are of opinion that the plaintiff had no legal claim against the Fidelity and Deposit' Company, there can be no question as to the novation of such claim.

The Court of Appeal, in holding that the Fidelity and Deposit Company incurred a contractual liability in favor of the plaintiff, by reason of its becoming the surety of LeSassier with respect to his building contract with Henderson, has, we think, confused the relations of the parties, and their obligations, as arising from the building contract and the contract of suretyship, respectively. In the building contract, LeSassier agreed with Henderson that he would do certain building and repairing; that he would furnish the labor and material; that he would pay for the same; and that he would give a bond to secure Henderson with respect to the faithful performance of those different obligations. Under that contract, apart from the special laws governing the subject, if the laborers and material men had been unable to show definitely that they had been employed by, or had furnished materials on the order of LeSassier, they might well have relied upon the stipulation whereby, in his contract with Henderson, LeSassier had agreed to pay them, and, accepting that stipulation, they might have compelled him to comply with such agreement.

But the contract of suretyship contained no stipulation or agreement in favor of any one except Henderson, nor was it intended .for the benefit of any one else, and the benefit to result to him was made dependent upon certain conditions. By that contract, LeSassier and the Fidelity and Deposit Company acknowledged that they owed and, impliedly, promised to pay, not to laborers or material men employed by LeSassier, but to Henderson, the sum of $5,000; provided, however, that the debt should be considered cancelled and the obligation avoided by the faithful fulfillment on the part of LeSassier of the obligations of the building contract. The Fidelity and Deposit Company did not agree that in the event of LeSassier’s failure to pay his laborers and material men, it, the Fidelity, and Deposit Company, would pay them, but that it would pay Henderson, provided he complied with his own obligations, the sum of $5,000, or so much of that amount as he might be compelled to pay by reason of LeSassier’s failure or default.

Observe the obligation of the bond. It consists of an acknowledgment that the principal and surety owe Henderson $5,000, for which they firmly bind themselves, and which, by necessary implication, they promised to pay to the person to whom they acknowled the indebtedness. Then comes the condition, by reason of, or upon compliance with, which the obligation is to be considered cancelled. This condition begins with a preamble, which recites LeSassier’s obligations under the building contract, followed by the condition, proper, to the effect that, if those obligations are fulfilled, the obligation represented by the bond, to pay Henderson $5,000, shall become void.

We find nothing in conflict with these views in the authorities cited in the opinion of the respondent court. In Flower vs. Lane, 6 N. S. 152, which is particularly referred to, it appears that Flower was the creditor of a steamboat, which the defendants had purchased, by an act wherein it was stipulated “that they” (the purchasers) “shall assume, and they do hereby assume, the payment of all claims now due to” (by) “the said steamboat, without any recourse against either the vendor or his heirs,” etc.; and the defendants were held liable to ¡'lower, as a person holding a claim due by the boat, according to their agreement to that effect.

It is not pretended that this claim falls within the operation of Act No. 180 of 1894, but the fact that such an act was passed indicates that, in the opinion of the law-makers, the laborer and the material man has, otherwise, no direct action on the bond given by the contractor to the owner.

Eor these reasons, it is ordered, adjudged and decreed, that the judgment which is here made the subject of review be annulled, avoided and reversed, and that this ease be remanded to the Court of Appeal, for the Parish of Orleans, with instructions to give judgment, in the matter of the Salmen Brick and Lumber Company vs. Louis LeSassier et al., affirming the judgment of the District Court, in favor the Fidelity and Deposit Company, of Maryland.