author: Nici-iolls, C. J.

text:
    No. 13,399.
    S. D. Moody & Co., Limited, vs. E. H. Chadwick.
    Syllabus.
    No personal liability attaches, in New Orleans, to the owner ol property for the paving of the sidewalks in front of the same, by the city authorities.
    The property itself is liable only for its proportion of the total cost of the work, -and not for the cost according to its frontage of the paving along the front of the square on which it is situated. (Barber Asphalt Paving Co. vs. Watt, 51 Ann., 1346).
    APPEAL from' the Civil District Court, Parish of Orleans— King,

      Buék, Walshe & Buck for Plaintiffs, Appellants.

      Edioin N. Whibtemoré and George L. Bright for Defendant, Appellee.
    Statement op tt-ie Case.
   The opinion of the court was delivered by

Nici-iolls, C. J.

The prayer of the plaintiffs is for a judgment against defendant for seven hundred and six dollars and thirty-one cents, with interest, with recognition of their lien, privilege and right of pledge upon the property referred to in the certificates annexed to their petition, or its proceeds, and decreeing that said properties be sold, and the proceeds applied to the payment of their claim against the properties.

The demand is based upon allegations that, in accordance with the charter of the City of New Orleans and the acts amendatory thereof, and under and by virtue of the provisions of ordinance No. 11,986, O. S., adopted by the City Council of the city of New Orleans on March 3,-1896, and previous proceedings as required by law, petitioner did, by act before Jos. D. Taylor, notary public and city notary, on March 14th, 1896, enter into a contract with the City of New Orleans to construct a brick sidewalk on both sides of Rendon street, from Canal street to Toulouse street, and all labor and work incidental and necessary thereto in accordance with the stipulations as contained in said act, a duly certified copy of which, and also of said petition, was filed.with his petition. That he had complied with his part of said contract and completed the construction of the sidewalk and other work thereon, and, in accordance with the specifications thereof, that the same had been accepted by the City of New Orleans, and accordingly the city engineer and Commissioner of Public Works had issued to petitioner certificates showing the proportion of the cost of said work due by each front proprietor upon said street.

That the said E. Ii. Chadwick was then and was still at the time of the signing of said contract and the doing of said work the owner and front proprietor of two certain properties on said Rendon street, one on the lake side, between Carondelet Walk and Toulouse street, and the other on the river side, between Customhouse and Bienville streets, and as evidence to represent the proportion of the cost of said work due by the said E. IT. Chadwick to petitioners and secured by lien and privilege upon his said properties, respectively, the city authorities aforesaid issued to petitioners their two certain certificates, both dated May 31st, 1897, showing the amount due by the said E. Ii. Chadwick on account of the aforesaid property to be the said sums, which certificates, under the law and the said contract, bore interest at six per cent, per annum from the date of same, until paid; and that in order to secure to petitioner their lien, privilege and right of pledge, which they had upon the aforesaid property for the payment of said respective amounts, they had caused both of said certificates to be recorded in the mortgage office of the Parish of Orleans.

The certificates annexed to plaintiffs’ petition were as follows:

City Engineer’s Office, City Hall.

New Orleans, December 9th, 1896.

This is to certify that S. D. Moody & Co., Limited, contractors for a brick sidewalk on both sides of Rendon street, from Canal to Toulouse street, as per ordinance No. 11,986, of the City Council, adopted March •3rd, 1896, have constructed certain work under their contract, .and that there is now due them by E. II. Chadwick for his 'portion of work done as itemized below, the sum of three hundred and nineteen and 14-100 dollars, with interest at the rate of six per cent, per annum from date until paid.

Lumber 1811.2 ft. B. M. at $32.50 per M....................$58 86

Brick sidewalk 109.6 sy. yds. at $1.09 pr. yd................119 46

Filling 113.8 cu. yds. at $1.19 per yd......................135 42

Drain pipe 24 lin. ft. at 25 cents pr. ft........................ 6 00

Total .................................................$319 14

City Engineer's Office, City Hall.

New Orleans, December 9th, 1896.

No. 12.

This is to certify that S. D. Moody & Co., Ltd., contractors for a brick sidewalk on both sides of rendon street, from Canal to Toulouse streets, as per ordinance No. 11,986, of the City Council, adopted March 3rd, 1896, have constructed certain work under their contract, and that there is now due them by E. II. Chadwick, for his portion of work done on Rendon (lake side) street, between Carondeleb Walk street and Toulouse street, as itemized below, the sum of three hundred and eighty-six and 31-100 dollars, with interest at the rate of six per cent. per annum from date until paid.

Lumber 184L8 ft. B. M. at $32.50 per M....................$59 85

Brick sidewalk 111.33 sq. yds. at $1.09 pr. yd................121 35

Filling 16Y.32 eu. yds. at $1.09 pr. yd......................119 11

Drain pipe 24 lin. ft. at 25 cents pr. ft...................... 6 00

Total .................................................$386 31

Defendant excepted that plaintiff had no cause of action, stated in the petition, specially because:

First — The law required the work to be sold to the lowest bidder, and the specifications did not afford a proper foundation for determining who was the lowest bidder, and much of the work was left to the discretion of the city surveyor.

Second — Because the specifications and the contract imposed obligations and expenses on the contractor and on the property owner unauthorized by law.

Third — Because the specifications and the contract provided that the property owner should pay for the work done directly in front of his property, and not that the whole cost of the pavement should be borne by the owners in equal proportion according to the running foot.

Fourth — Because the contract and the specifications provided that payments should be made by the owner on the completion and acceptance of every two blocks, whereas the law provided that payments should only be made on the completion of the whole work.

Fifth — Because the contract and specifications imposed expenses on the owner which were unauthorized by law, and left the doing of the work optional with the contractor.

Sixth — Because no one who had not a city license was permitted to bid for the work.

Seventh — Because the contract and the specifications provided that none but Iona fide resident citizens of New Orleans should be employed as laborers to do the work, and was a violation of the Constitution of the United States (Sec. 2, Art. V.) and other articles of the Constitution, and upon this question defendant specially prayed for the judgment of the court.

Eighth — The whole contract was one prepared for the contractors’ individual benefit, to despoil the property owners.

The defendant prayed that this peremptory exception be maintained; that judgment be rendered in his favor, and against the plaintiff; that all liens, privileges and mortgages inscribed against this defendant, and his property, be cancelled and annulled.

The court referred the exceptions to the merits.

Defendant then answered, pleading the general issue, and prayed for judgment as prayed for in the exception.

The court rendered judgment in favor of the defendant, and against the plaintiffs, rejecting their demand.

Plaintiffs, alleging that the judgment was contrary to 'the law and the evidence, prayed (especially in view of the decision of the Supreme Court in Barber Asphalt Paving Co. vs. John Watt, 51 Ann., 1345) for a new trial. A new trial was granted.

Defendant then, with leave of the court, filed an amended exception and answer, pleading that “the pretended ordinance, including the specifications alleged in plaintiffs’ petition, were violative of the Constitution of the State of Louisiana and the United States, especially of the 14th Amendment. This exception was referred to the merits. After a second trial the District Court rendered final judgment against the plaintiffs, and decreeing that all liens, privileges and mortgages inscribed against defendant and his property, be cancelled and annulled, especially those recorded in the mortgage office of the Parish of Orleans, in book 572, folio 510, and in book 319, folio 474. Plaintiffs appealed. The reasons assigned by the court for its judgment were: That “the plaintiffs sued the defendant on certificates of payment issued to plaintiffs by the Commissioner of Public Works and the city engineer. The certificates set forth the amount due by the defendant, being his proportion of a sidewalk in front of his property on Rendon street, between Carondelet Walk and Toulouse street. The certificates were made out in conformity with plaintiffs’ contract with the city, and were based on the measurement of each square of ground fronting on the street as completed, and defendant was called upon to pay his proportion, according to his frontage, of the total cost of the squares respectively where his property was situated. T^his was not his liability under the law. The statute, Act 113 of 1896, declared that the cost of paving should be borne by the owners of the property fronting on the pavements in equal proportion according to the running foot front. Barber Asphalt Company vs. Watts, 51 Ann., 1345.

Plaintiffs’ suit was not to recover on a quantum meruit what might be due him for work performed beneficial to plaintiffs’ property; the suit was upon the contract with the city and the certificate, neither of which complied with Act No. 113 of 1896.”

Opinion.

The contract for the construction of a brick banquette on both sides of Rendon street, from Canal street to Toulouse street, was one between the City of New Orleans and the plaintiffs, S. D. Moody & Co.

Plaintiffs alleged fhat they had complied with their part of the contract and all work and labor incidental and necessary thereon, and in accordance with the specifications thereof; that the same had been accepted by the city, and, accordingly, the city engineer and Commissioner of Public Works had issued to them certificates showing the proportion of the cost of said work due by such front proprietor upon said street.

That two of said certificates, showing the proportion due by the plaintiff and his property for the cost of said work, had been furnished to them.

On the trial of the case the only evidence introduced on behalf of the plaintiffs was the contract between themselves and the city; the two certificates referred to, and an ordinance of the City of New Orleans, of the 3rd of March, 1896 (No. 11,986), accepting the bid of the plaintiffs for the construction of the work.

The proceedings which led up to the ordering of the work, the ordinance directing it, and the facts connected with the acceptance of plaintiffs’ bid, are not in the record. The record is not in such a condition as, in our opinion, would warrant a final judgment in favor of the defendant and against the plaintiffs, except as to the claim of the plaintiffs for a personal judgment against'the defendant for work done upon their property. Under the decision of this court in Barber Asphalt Paving Company vs. Watt, 51 Ann., 1345, this portion of plaintiffs’ demand is not sustainable, and the judgment of the District Court, appealed from, in so far as it rendered judgment in favor of the defendant, against the plaintiffs, on that branch of the demand is correct, and it is hereby affirmed.

The certificates declared on by the plaintiffs do not furnish evidence against the defendant, either of the completion of the entire contract, or of the pro rata of the cost of the work for which defendants’ property is liable. We think that, in justice to all parties, we should follow the course pursued by this court in the case above cited, and change the judgment appealed from (except as to the extent that it has just been hereinbefore declared to be correct and affirmed) from a final judgment against plaintiffs to one of non-suit.

For the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from, in so far as it renders final judgment in favor of the defendant, against the plaintiffs, upon plaintiffs’ demand for a personal judgment against the defendant, be, and the same is hereby affirmed. It is further ordered, adjudged and decreed except that as so affirmed, the judgment appealed from is hereby annulled, avoided and reversed, and plaintiffs’ demand is hereby dismissed as of non-suit.

Costs of appeal to be borne by appellee.


source: Caselaw Access Project

author: Nioholls, C. J.

license: Public Domain

text:
    No. 13,439.
    Antonio Provost, Jr., vs. Yazoo and Mississippi Valley Railroad Company.
    Syllabus.
    1. It is not sufficient for a person about to cross or walk along a railroad track, or into or upon a railroad bridge, or trestle to stop, look and listen at any time prior to doing so. The stopping, looking and listening must be done at such a time and place as to make it effective and sufficient to save the situation. When the law requires steps of diligence and caution it will not be satisfied by the substitution therefor of vain and useless acts. (Snider vs. Railroad, 48th Ann., 12.!
    2. A person selecting for his own convenience a dangerous route to a city instead of a safer one, and in passing into a bridge or trestle (a place of danger according to his own theory) with full knowledge of the dangers he might encounter from doing so, voluntarily takes upon himself risks, the results of which he can hot shift at will upon other parties.
    8. It is not enough that a person voluntarily placing himself in a position requiring steadiness of nerve should entertain the hope or belief that he has the necessary firmness. The belief must be justified by the fact. I-Ie can-hot speculate on the subject.
    4. Parties claiming damages for personal injuries are sometimes relieved from the charge of contributory negligence by reason of having in a case of sudden danger had recourse to injudicious methods for escape, but those are cases where the first act upon which the charge is made to rest is this erroneous selection of a way to safety, not where the party is already chargeable with acts of contributory negligence of which this particular act is the mere supplement.
    APPEAL from the Civil District Court, Parish of Orleans— Theard, J.

      Boatner, Dodds & Boatner and R. G. Cobb for Plaintiff, Appellee.

      Farrar & Lemle and Hunter C. Leake (J. M. Dickinson and James Fentress, of Counsel), for Defendant, Appellant.

      Statement of ti-ie Case.
   The opinion of the court was delivered by

Nioholls, C. J.

The defendant appeals from a judgment against it for four thousand dollars, based upon the verdict of a jury, as damages, for personal injuries received by plaintiff by being struck by defendants’ south-bound passenger train, near Baton Rouge, and in being thereby knocked off the railroad trestle or bridge spanning Bayou Gracie.

Plaintiff alleged, in his petition, that on the 15th September, 1898, while passing across the railroad bridge built over a bayou or stream, which forms the northern boundary limit of the City of Baton Rouge, he was struck and thrown from said bridge or trestle to the earth below, a distance of twenty-five (25)' feet, by a passenger train belonging to and operated by the defendant company, known as passenger train No. 5.

That said trestle or bridge was and had been generally used by the public, on foot and on horseback, as a road or passage way in crossing said bayou; that said defendant company had floored the same, and filled the spaces between the railroad ties with sand or gravel, making a safe, convenient and commodious passage across said bayou; and the defendant company had never, in any manner, objected thereto, or prohibited the use of the same by the public.

That the track of the defendant railway company, north of the said trestle, was perfectly straight for one mile or more, and that there was nothing to obstruct the view of an engineer on one of its trains, for at least that distance.

That on the day aforesaid, the defendant’s train, known as No. 5, was due, by schedule, at the station in the City of Baton Rouge at the hour of 9 A.' M., and that at the time petitioner entered upon the track of the defendant company, to walk towards the City of Baton Rouge, it was at least 9:30 o’clock, and he was under the impression that train No. 5 had passed down on time.

That he entered upon said track at a point about 825 feet from the trestle aforesaid, and that at that time no train was in sight; that he walked at his ordinary and usual gait towards the aforesaid trestle, and when about midway the same, he discovered, from the vibration of the rails, that a train was approaching. On looking back he saw that the train was then very near the trestle aforesaid, whereupon he ran as fast as he could in the effort to get off the trestle before the train reached him. Finding that the approach of the train was so rapid that he could not reach the far 'end of the trestle in time, he attempted to protect himself by getting as far to one side of the trestle as possible, but that the train, in passing', struck him, knocked him from the trestle, a distance of twenty-five (25) feet, inflicting serious and permanent injuries; that he was rendered insensible by the blow and fall, his right shoulder broken, and his side severely bruised, his left shoulder dislocated, and that his entire body was badly wounded and bruised; that he remained in a state of unconsciousness for several days thereafter; was confined to his bed for more than thirty (30) days, and was unable to engage in his ordinary vocation, or to do any work whatever for three months.

That he was guilty of no contributory negligence; that the train was behind its advertised time, and by reason of his walking' in the same direction that the train was going he did not and could not see it; that it was not in sight when he commenced walking upon defendant company’s track; that it was running at a high rate of speed; gave no warning whatever of its approach, either by bell or whistle, and did not slacken its speed ''notwithstanding petitioner’s perilous position, plainly visible to its engineer.

That, under the ordinances of the City of Baton Rouge, the company was prohibited from running its trains, through the City of Baton Rouge, at a higher rate of speed than six (6) miles an hour, and that said bayou was the northern boundary of said city.

That petitioner was within the corporate limits of the City of Baton Rouge when struck by defendant’s train, as aforesaid, and the injuries, aforesaid, inflicted upon him, and the rate of speed at which the said train was going at the time was in direct violation of the city ordinance aforesaid.

That tiie engineer in charge of said train could easily have avoided the aforesaid injuries to petitioner by slackening speed of his train, by blowing a whistle, or ringing the bell, in time for petitioner to have escaped from said trestle, and that the failure and neglect of the company’s agent to do so was in wanton disregard of this petitioner’s life and safety.

Defendant pleaded the general issue and averred that plaintiff’s injuries were due proximately to the negligence of the plaintiff himself.

Opinion.

A little to the north of the City of Baton Rouge there exists a small bayou, known as Bayou Gracie, spanned by a trestle which was constructed over it by the Yazoo and Mississippi Yalley Railroad Company, and which forms part of its line of way or track.

The plaintiff and his family live in a house about 300 yards north of this bayou, and at about fifty feet east of the railroad track, between it and the Mississippi river.

On the morning of the 15th of September, 1898, the plaintiff, who had been upon the river bank, went to his house for a few moments, thence directly across to the railroad track, and, turning southward, walked leisurely to and on to the trestle. He had reached a point inside of the trestle, about sixty feet from its northern end, when the morning passenger train of the defendant company, going south, reached and passed him with unslackened speed. The trestle was open upon the sides, and the plaintiff, just after the locomotive tender, and one or more of the coaches had passed him, fell to the ground below the trestle, a distance of about twenty feet, and was severely injured.

The plaintiff claims, and testified himself to the fact, that he was struck by some portion of the passing train, and knocked off the trestle, while the defendant contends that he lost his self-possession and fell off the trestle, where he could have been in saffety had he preserved his composure. It asserts that it would have been a physical impossibility for him to have been struck by a train passing at the rate of speed at which the particular train was passing, and not been killed.

The plaintiff charges that the view for a mile and a half north of this trestle, up to and through the trestle, was almost level and in a direct line, without intervening obstructions of any kind; that the engineer and fireman upon the train should have seen him, and did, in fact, see him long before and as he entered the trestle; that they were bound to know and did know the construction of the trestle, and that he was in a position of peril from the moment of entering it, and should have given warning and danger signals earlier and longer than they did, and slackened at once the rate of speed at which the train was running; a rate of speed entirely too great and dangerous when approaching in the immediate vicinity of a.city like Baton Rouge, and a planked gravelled trestle, which the general public were known to habitually make use of as a highway or pathway going to and from Baton Rouge; that the ordinances of the City of Baton Rouge limited the speed of trains passing through the city to six miles, and while this particular trestle was a few feet north of the northern boundary line of the city, the speed of the train, just prior to reaching the line, should have been such as that on entering the city; it should have been moving at a rate not greater than six miles, and that any greater speed than that, at that time, and under the circumstances of having to pass through a trestle of the character of that over Bayou Grade, habitually used as it was, was an act of gross negligence, of wantonness and recklessness. That defendant's employees, notwithstanding they saw his position and realized his peril, kept straight up to and through the trestle at the rate of forty or forty-five miles an hour, and utterly indifferent to consequences.

The defendant claims that the whistle was sounded and the bell rung in due time; that the plaintiff was a trespasser on their track; that he lived in the neighborhood; had passed repeatedly over the trestle; knew its construction and any danger which would be attendant upon being upon it while a train was also passing through; that he knew that trains were constantly passing up and down the track, and at all hours; that he should have looked back before he entered the trestle to see if any train was approaching; that had he done so, he would have seen this particular train, as the view for over a mile and a half was level, straight and unobstructed; that if he did not look, the omission to do so was gross negligence; that if he did look and attempted, none the less, to cross, he was guilty of recklessness and assumed all the risks of doing so and of keeping his composure and his senses about him while passing through.

The evidence shows that the passenger train in question was about twenty or twenty-five minutes late, and it was evidently seeking to make up lost time by running very rapidly. The plaintiff says that he was under the impression, when he went upon the track, and into the trestle, that it had passed by; that in going upon the track he looked both ways to see if any train was in sight, and, seeing none, walked leisurely along the track and into the trestle; that he heard no whistle nor bell, as the wind, he said, was somewhat “forcible;” that his attention was first drawn to tire approaching train by the vibration of the rails, and, looking back, he saw it coming forward with great speed; that his first impulse was to turn back, but he decided he could rot reach the northern entrance again; that he then started to run forward for the southern entrance, but became convinced, after a few steps, he would also fail in that; that he then left the track and went to the side and attempted to save the situation by stooping and holding on as best he might to the timbers upon the side, and that while he was doing so, the train passed with great velocity and some portion of it, precisely which he did not know, undoubtedly struck and threw him off; that his belief was that he was struck by reason of the swinging or toppling sideways of the cars as they passed through — the “oscillation,” as he called it, of the rapidly moving cars.

The only evidence in the record as to the precise point on the track from which plaintiff fell, is his own testimony, which fixes the point at from fifty to sixty feet from the northern entrance. By the same testimony it appears .that, before reaching the trestle, he must have walked leisurely towards it on the track, some two or three hundred yards, and leisurely inside the trestle until he started to run. Referring to the passage of trains along the track, plaintiff testified that he and his family “had become used to them and paid no attention to them; that they didin’t even wake at night; that as to passing trains — of course he would see them — but he did not pay any attention to them, as it was a constant thing almost; that there was- always a train passing there; they used to switch right there; there were two or three! switches there.”

The evidence shows that the trestle, or bridge, is what is called a “gravel deck bridge,” described by the engineer as a bridge made by a box, with broad twelve-inch timbers on each side, placed there to hold in place the gravel, with which the box is filled, and upon the top of this gravel so filled in the tracks are laid.

It also shows that this railroad bridge is used by the general public for passage, but not to what extent nor at what hours, but that there is a crossing over Bayou Graeie over a small bridge at the “dyke,” which crossing, though not so expressly stated, we presume must be the public crossing.

The facts connected with the crossing of plaintiff on the morning in question, over the railroad bridge, or trestle, as shown by the evidence, place him before the court as having unquestionably led up by his own imprudent and reckless conduct to the injuries which he sustained from going into and attempting to pass over the. trestle at the time and under the circumstances that he did.

He was thoroughly familiar with the whole situation; the construction and length of the bridge or trestle; the running of the trains; the habitual places for the blowing of the whistles and the ringing of the bells, and yet, according- to his own statement, he did not listen for the whistle or the bell, but he walked deliberately for several hundred yards upon the railroad track, and “leisurely” into and over the trestle, with no attempt to discover what the existing- situation might be as to approaching trains, further than to cast his eyes up and down the track as he first reached it.

It was right that he should have done this, but certainly not right that he should, after walking two or three hundred yards upon the track, have not turned and looked back again before entering thcj bridge or trestle.

This was, in fact, the real point of danger, for up to that time a step or two to the right or left upon the slope of the railroad embankment would, doubtless, have placed him in a place of safety. It is not sufficient for a person, about to cross or walk along a railroad track, or into a railroad bridge or trestle, to stop, look and listen, at some time prior to doing so. The stopping, the looking and the listening, must be made at such a time and place as to make it judicious and sufficient to save the situation. In Snider vs. Railroad Company, 48 Ann., 12, this court (referring to this matter,) said: “The rule contemplates that this should be done at a time and place when the reason, upon which it is founded, should be effective. When the law requires steps of diligence and caution, it will not be satisfied by the substitution .therefor of vain and useless acts.”

So far as this plaintiff was concerned, as the event proved, he might as well have looked up and down the track from his own house an hour before.

The plaintiff in selecting, for his own convenience, á dangerous route to the city, instead of the safer one, and in passing into a trestle or bridge, a place of danger according to his own theory, with a full knowledge of the danger or perils he might encounter in so doing, voluntarily took upon himself risks, the results of which he can not shift off at will to other parties. (Schexnayder vs. Texas Pacific R. R. Company, 46 Ann., 248).

We are of the opinion that unless the plaintiff is able to make his case fall into that exceptional class of cases, where, notwithstanding that the injuries received by himself were brought about by contributory negligence on his part, the other party or parties also contributing by their fault to the injuries, would be legally bound for the consequences of the same, he can not recover.

The plaintiff urges that the case before the court is (under the evidence) one of that character; he invokes the principle laid down in McGuire vs. V. S. & P. R. R. Company, 46 Ann., 1543; Rice vs. Crescent City R. R. Company, 51 Ann., 114 (and authorities cited), and Grand Trunk Ry. Co. vs. Ives, 144 U. S., 408; that “if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured, an action for the injury can not be maintained unless it further appear that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequence of the injured party’s negligence.”

He contends that even if he were a trespasser, defendants had no right to recklessly and wantonly run him down, and knock him off the track, when they could, with reasonable care and exertion, have saved him.

The defendant denies, as we have said, that plaintiff was, in fact, knocked off the trestle- by the cars; that a position on the trestle, to the side of the track, was safe, but that he got confused or dazed and fell off. It maintains that plaintiff was a trespasser on the trestle; that it was not required; in the exercise of reasonable care and prudence, to keep a special lookout for or to discover trespassers, or anticipate their being on the track; that all that such care and prudence required was, when they were seen or discovered and found to be in peril, or likelihood of peril, to use all reasonable precautions and measures to ward off and prevent injury. (Philipps vs. East Tenn. & Ga. Railway Company, 87 Ga., 272; Bentley vs. Georgia Pacific Railway Company, 86 Ala., 485; Railroad Co. vs. Blanton, 84 Ala., 154; Railroad Company vs. Womach, 84 Ala., 149; Railroad Co. vs. Donovan, 84 Ala., 141).

That when parties are walking upon a railroad the engineer and fireman are authorized to assume that they will leave the track upon being-warned by the whistle or bell of an approaching train, and that they are not called on to slow down until it becomes manifest that the trespassers do not intend to do so; that, in this ease, there was no reason to suppose that the plaintiff would enter the trestle, as he had been warned before doing so by the whistle and the ringing of the bell just before or as he was entering the trestle. (Railroad Company vs. Miller, 25 Michigan, 279; Railroad Co. vs. McLaren, 62 Ind., 566; Railroad Co. vs. Smith, 52 Texas, 178; Schexnaydre vs. Texas Pacific R. R. Co., 46 Ann., 248).

Besides if he had heard the warning, he would have had ample time to return to the north end of the trestle.

The plaintiff replies that while it may not be the duty of a railroad company, generally, to keep a sx>ecial look out for trespassers on its tracks or on its bridges, yet it is its duty so to do when, by invitation or license, or acquiescence, they have become byways or pathways (to the knowledge of the company) for the public; whether this should be directly in the city or not; that in view of this fact, and the probability of persons being on the bridge or on the trestle, or on the track, at particular points, they should slow down so as to be prepared to meet the exigencies of some particular occasion, and in supxrort of this position they cite the Supreme Court of Alabama as saying, in Nave vs. A. G. S. R. R. Co. (95 Ala., 294), “that to run a train at a high rate of speed, and without signals of approach, at a point where trainmen have reason to believe that there are persons in exposed positions on the track, as over an unguarded crossing in a populous district of a city, or where the public are wont to pass on the track with such frequency and in such numbers — facts known to those in charge of the train- — the latter will be held to a knowledge of the probable consequences of maintaining great speed without warnings, so as to impute to them reckless indifference in respect thereto, and render their employees liable for injuries therefrom, notwithstanding there was negligence on the part of those injured, and no fault on the part of the servants after seeing the danger. The doctrine is not based on the idea that they ought sooner to have observed the danger, however, but on the ground that they knew of its existence — of the presence of people in positions of peril — as a matter of fact without seeing them at all in the particular instance.” Plaintiff further maintains that it makes no difference, in this case, whether he was knocked off by the train or whether he fell off.

We can not subscribe to the proposition that if the side of the trestle afforded a reasonably safe place for a person to stand on as a 'train passes by with great rapidity, that the company would be responsible for Ms losing Ms self-control and falling off under an apprehension of impending danger.

It is not enough that a person voluntarily placing himself in a position requiring steadiness or nerve should entertain the hope or the belief that he has the necessary firmness warranting his doing so; the belief must be justified by the fact. He cannot speculate on the subject. It is one of the disputed questions of fact whether the train struck the plaintiff, but the conclusions we have reached render the decision of that issue unnecessary.

The evidence shows that the engineer blew the station whistle at the usual place, and that the fireman rang-, the bell as the plaintiff was entering the trestle, so that this particular case shows the presence of facts which were absent in that referred to by the Supreme Court of Alabama. There is certainly force in the statement made by the defendant that, while it is very easy to determine from a side view of a track and trestle whether a person is actually upon the one or the other, it is difficult to fix the situation with precision when the trestle is open and Me view is a longtitudinal one down the track, but there is no uncerlainty in this ease as to plaintiff’s having been seen by the fireman as he entered the trestle, for he declares in his testimony that he did see him, though he did not tell the engineer of the fact. The seeing by the fireman was substantially the seeing by the engineer, for they are both on common duty, so far as the keeping of a lookout is concerned; one being on watch while the other is engaged in the performance of necessary duties, and both on watch at other times.

We were, at first, impressed with the belief that the trestle from which the plaintiff fell was so narrow as to carry with it, by its construction, per se, such imminent peril to a person within it simultaneously with a passing train as would require in the interest of common humanity the checking up of the train by the engineer on seeing a person pass upon the trestle, in front of the train, but we have reached the conclusion that the trestle was a reasonably safe place to stand upon even though a train should be passing at a rapid rate, and that the injury must have resulted either from plaintiff getting alarmed at the situation, or not having taken the position on the trestle which would have afforded certainty of safety.

Plaintiff says he was called on suddenly to meet an unexpected emergency, and can not be made liable for an error of judgment. There are certainly cases where parties claiming damages for personal injuries have been relieved from the charge of contributory negligence by reason of having, in a case of sudden danger, had recourse to injudicious methods for escape, but those are cases where the first act upon which the charge of contributory negligence is made to rest is this erroneous selection of a way to supposed safety, not where the party is already chargeable with acts of contributory negligence of which this particular is the mere supplement.

For the reasons assigned, it is hereby ordered, adjudged and decreed that the verdict of the jury he and it is hereby set aside, and the judgment of the court thereon rendered be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiff’s demand be rejected, and his suit dismissed with costs in both courts.

Rehearing refused.


author: Nici-iolls, O. J. Blanchard, J., Blanchard, J.

text:
    No. 13,438.
    City of New Orleans vs. The Liverpool and London and Globe Insurance Company.
    Syllabus.
    When a foreign insurance company is charged by the authorities of the city of New Orleans, the place of the domicil of the company and of its State agency, with a city license equal in amount to the license charged by the State authorities, for a State license, and it seeks to reduce the license on the'ground that part of its policies were issued in localities other than New Orleans, it assumes the obligation of showing by the facts and circumstances under which they were issued, that it came under a liability to a-license to the other political corporations by reason of the issuing of the policies there, and that it had paid the same.
    On Application foe Reheaeino.
    Where an insurance company is sued for a license tax by the city of New Orleans and it is made to appeal- that it has paid a municipal tax license elsewhere in the State on business done and premiums collected outside of the city of New Orleans, and that the claim of the latter is predicated in part upon such business done and premiums collected outside of its limits, the company is entitled to claim a credit for the license tax so paid on premiums collected outside of the city.

      APPEAL from the Oivil District Court, Parish of Orleans— Si. Paul, J.

      James J. McLoughlin, Assistant Oity Attorney, and Samuel L. Gilmore, Oity Attorney, for Plaintiff, Appellant.

      Oarleion Sunt for Defendant, Appellee.
    Statement of the Oase.
   The opinion of the court was delivered by

Nici-iolls, O. J.

The defendant in this case was, on the petition of the Oity of New Orleans, ruled by the District Court to show cause why it should not pay the sum of twenty-five hundred and fifty dollars to the city for a license for the privilege of conducting the business of fire insurance during the year 1899, with interest and costs, or be.restrained from carrying on the same until the license, interest, costs and penalties be paid, and why judgment should not be rendered against it for the said amount, with privilege.

The application was based upon allegations that the defendant, a foreign corporation, domiciled in England, was conducting the business of fire insurance on Carondelet street, in said city, without having obtained a license on said business from the Oity of New Orleans for the year 1899, and that their gross annual receipts on said business, for the past year and for the current year, would be more than $170,000.00, and less than $180,000.00. That all persons who conduct any business without license from the City of New Orleans, after March 1st, 1899, were delinquent; that the defendant corporation had not 'paid to the city the amount of license due by it for carrying on said business for the year 1899, and under the terms of section 13 of ordinance No. 14,884, Council Series of said city, there was due and owing to the city by defendant company, the sum of twenty-five hundred and fifty dolllars for a license for carrying on said business for the year 1899, and that the city had a first lien and privilege on its property for the payment of the license claimed.

Defendant for answer pleaded, first, the general issue. It then averred that its liability for a license tax to the Oity of New Orleans, for the year 1899, was limited to the sum of sixteen hundred and fifty dollars, and that payment of this sum had been duly tendered to the city, but had been and continued to be refused by' the city.

That the city based the license on section^,13 of ordinance No. 14,884, O. S., and that the latter was a copy of the revenue act of the State of Louisiana, No. 171, section 9 of the acts of 1898, and it had proceeded in the rule as if it had the same right to recover a license tax of defendant for the year 1899 as the State had.

That while the State might have authority to exact a license tax of it, for the year on all business done within the State, that it was not liable to the City of New Orleans for a license tax for 1899, except as the business is carried on! by the company within the boundaries of the city, being those of the Parish of Orleans, where alone the company receives the protection of the municipality, and that in so far as said ordinance No. 14,884 is designed to apply, beyond the limits in question, it is ultra vires null and void.

The District Court rendered judgment in favor of the city, against the defendant company, for the sum of sixteen hundred and fifty dollars, without interest or costs, and rejected and dismissed the demand of the City of New Orleans for any amount over that sum.

The City of New Orleans appealed. •

Article 229, of the Constitution of 1898, declares: That “the General Assembly may levy a license tax, and in such case shall graduate the amount of such tax to be collected from the persons pursuing the several trades, professions, vocations and callings. All persons, associations of persons and corporations pursuing any trade, profession, business or calling, may be rendered liable to such tax, except (giving a list of exceptions), * * *

“No political corporation shall impose a greater license than is imposed by the General Assembly for State purposes. This restriction shall not apply to dealers in distilled, alcoholic or malt liquors. The General Assembly shall have authority to provide that municipalities levying license taxes equal in amount to those levied by police juries for parish purposes, shall be exempted from the payment of such parochial licenses.”

Under this authority the General Assembly of the State, by its Act No. 171, classified the different avocations and businesses,, and graded the licenses demanded according- to the class into which each particular corporation, association or person should fall. The fire insurance business was provided for in this statute under its ninth section, which was as follows:

“Be it further enacted etc., That each and every fire and marine and river insurance, guarantee, surety or indemnity company, society, association, corporation or other organization, or firm, or individual, doing’ and conducting a fire, or marine, or river insurance, guarantee, surety or indemnity business of any kind in this State, or any other insurance business not otherwise provided for, whether such company, society, association, corporation or other organization, or firm, or individual, is located or domiciled here or operating here through a branch, department, resident board, local office, firm, company, corporation, or agency, of any kind whatever shall pay a separate and distinct license on said business for each company represented, and said license shall be based on the gross annual amount of premium on all risks located within this State, and upon risks located in other States, or foreign countries, upon which no license has been paid thereon, as follows, to-wit:

First Glass, when said premiums are three hundred thousand dollars; the license shall be forty-five hundred dollars. * * *

Fourteenth Glass, when said premiums are one hundred and sixty thousand dollars, and less than one hundred and seventy thousand dollars, the license shall be twenty-four hundred dollars. * * *

Nineteenth Glass, when said premiums are one hundred and ten thousand dollars, and less than one hundred and twenty thousand dollars, the license shall be sixteen hundred and fifty dollars. * * *

By the sixteenth section of the act it was provided that “any municipal or parochial corporation in the State shall have the right to impose a license tax on any business, occupation or profession herein provided for; that all such license taxes shall conform to the provisions of Article 229 of the Constitution,” and by the thirtieth section that “a person, firm or .company, having more than one place of business, shall pay a separate license for each place of business.”

The claim of the insurance company, that it should only pay sixteen hundred and fifty dollars to the city for a license, is based upon the contention that of the one hundred and sixty-one thousand, one hundred and fifty-seven dollars of premiums, only one hundred and twenty thousand dollars were for premiums on policies issued in the City of New Orleans.

Appellant says in its brief:

“Practically the sole contention is whether or not the city has the right in exacting a license tax to count as a basis of the same, the total premium receipts of the office in New Orleans, regardless of the source of such receipts. The city claims that the defendant company comes under Glass Fourteen, while it contends it falls under Glass Nineteen of the license classification. ’That no where in the law is the city obliged to grade her licenses. All it has to do is to be careful that the amount which it requires as a license tax shall not be more than the Statq exacts.”
“In the present instance it is admitted that the defendant has paid the State license amounting to twenty-four hundred dollars. As stated before the city may impose her license under any method she chooses, on any valuation she chooses, and by any grading of receipts she chooses, subject to the sole restriction that in no event shall the amount required by the city for license exceed the amount required by the State."
“The idea, on the other side, seems to be that the city is attempting to charge the defendant for business done outside of the limits of the City of New Orleans, and that the city is incompetent to exact such a charge. The ordinance exacts a license based on the gross amounts of premiums received by the office in New Orleans. There is nothing in the ordinance which authorizes the dividing up of -the receipts under different headings, and, therefore, nothing, which authorizes the company to divide the money it receives in New Orleans into two classes, and call one class “money received from policies issued in New Orleans,” and the other class, “money received from policies issued in Baton Rouge.” The license is not upon the policies issued, but is upon money received,.”
“It makes no difference where the money comes in; the mere fact that it comes to New Orleans and is accounted for in New Orleans and included in the revenues of the company there, makes it taxable by that community. The business is carried on where the business finds lodgment, and the business of the company is lodged where the revenues of the company trickle into the treasury.”

Opinion.

Foreign corporations are prohibited from doing business in Louisiana, except through an agent duly authorized and accredited for the purposes of said business, and for all purposes connected with license and taxation (Section 8, Act No. 171 of 1898). It is the duty of every insurance company doing business in the State, to file with the Secretary of State, a sworn statement of its yearly business, giving the amount and character of its business transactions, monies received and expended during the year, and such other information as he may require (Section 7, Act No. 171 of 1898). This statement emanates from the home office or domicile of the company. The Legislature having made, by statute, a classification or grading of the licenses of insurance companies — a copy of this statement is sent by the Secretary of State to the State Tax Collector at the domicile of the company, who, upon it, bases the license with which he charges the company in its proper class. The basis of the license is not only upon the gross amount of the premiums received on all risks located within the State, but also upon risks located in other State or foreign countries, upon wh\ch it has paid no license therein.

If the State tax collector of the place of the domicile should make out the license based upon the total amount of premiums from risks located both inside and outside of the State, and the company should contest its liability for the licenses charged, it would be the duty of its officers in order to obtain a reduction there'on, to establish affirmatively that it had paid, and to what extent it had paid, a license outside of the State.

When the authorities of the City of New Orleans were called upon to prepare their licenses for city purposes, their duty was to ascertain from the State authorities what the State licenses were of the different insurance companies having their domicile in the city, so as to make certain that no corporation would be charged in that city for city purposes, a greater license than it was charged with by the State for State purposes, and, having done this, to frame their licenses accordingly.

A license charged by the City of New Orleans against a particular foreign insurance company domiciled therein for the same amount as is charged for a State license against the same company, in the Parish of Orleans is prima facie correct, and the company which undertakes to contest the correctness of the same, upon the ground that the license is based upon too large an amount of gross premiums, assumes (when it admits the total amount of premiums it has earned within the State), the obligation of alleging and proving that it has paid, and to what extent it has paid any other subordinate political corporation of the State, a license, based upon a portion o£ the earnings upon which the City of New Orleans is basing its demand.

If the company pays no larger an amount than is legally due by it, it is immaterial to it to whom it pays it, if the payment is legal. There is no claim or pretence set up by the defendant that it has paid a license to any subordinate political corporation of the State, other than the City of New Orleans; that any other has made or will make a demand upon it for a license, still less has it presented any showing from which we might be led to belive that it stands in danger of being legally made to pay a license to any political body other than the City of New Orleans.

It by no manner of means follows that because some of the policies of the defendant may not have issued from its office in the Oity of New Orleans (under its theory of what may legally constitute an “issuing” of the same), that that fact should have given rise to ai legal claim against it for a license^ by a corporation other than that of its domicile. It should at least have placed before us all the facts on which it relies; the place where and the circumstances under which the policies attempted to be excepted went into the hands of the parties who issued them; what the capacities of those parties were, and also what were their powers and authority in the premises.

We are of the opinion that the judgment appealed from is erroneous. For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed; and it is now ordered, adjudged and decreed that there be judgment in favor of the City of New Orleans and against the Liverpool and London and Globe Insurance Company for the sum of two thousand, four hundred dollars for a license for the privilege of conducting its business during the year 1899, with two per cent, per month interest thereon from March 1st, 1899, until paid, and costs of both courts, with lien and privilege on its property.

Watkins, J., concurs in the decree.

Blanchard, J.,

concurs in the decree, with the understanding that if it had been shown a municipal license had been paid by the company in any other town or towns in the State, based on premiums there collected, or receipts there received, the City of New Orleans could not afterwards claim to include such premiums or receipts in the aggregate amount upon which it demanded a license, even though the returns of such premiums collected elsewhere had been made to the principal office of the company in New Orleans.

On Application for Rehearing.

Blanchard, J.

In connection with the petition for rehearing presented by defendant company, there is filed a paper signed by counsel for plaintiff and defendant in which it is recited that “in order to avoid unnecessary delay and to facilitate the final settlement of this controversy, the following admission and submission is made.”

Then follows this clause: — “It is agreed that the Liverpool and London and Globe Insurance Company, defendant herein, has paid tax license on its business outside the Oity of New Orleans, amounting to $19,715.39, premiums received, thus leaving under the court’s present ruling, $141,442.29 on which a license to the Oity of New Orleans is due, and, these facts being known, the demand of the city and judgment herein should be reduced to a license of $2,100.00 for 1899, or the cause should be remanded for the purpose of receiving this evidence to make the reduction.”

This supplies what was lacking in the record when the case was submitted to the court, viz: — evidence that defendant company paid in the year 1899 tax license on its business outside of the Oity of New Orleans, amounting to $19,715.39. And the agreement which is styled both “admission” and “submission” is construed to mean that the Oity of New Orleans consents to a reduction of the judgment herein from twenty-four hundred dollars as fixed by the decree of this court, to twenty-one hundred dollars, and, accordingly, by amended decree the reduction will be made. ' ' ■ '

In the paper referred to appears this additional clause, to-wit: — ■

“It is agreed that the question of defendant’s liability for penalty of two per cent, a month on amount of license recovered, be submitted to the court upon the agreed facts that, under advice of counsel, the late E. W. Huntington, Esqr., the present defense was made, and a tender off $1,650.00 by the company declined by the city; and the further fact that, claiming, as she did, $2,400.00, the city would have declined $2,100.00, the amount of tax license which, under the opinion of the court, and the facts regarding amount of receipts, as above submitted, is the amount the city is entitled to recover.” '

The fact that counsel, no matter how eminent, advised a given course in the matter of license taxation demanded, does not, in the least, tend to relieve defendant from the penalty of two per cent, per month for delinquency in meeting the tax license obligation imposed upon it by the law.

To hold otherwise would be, virtually, to erase from the tax statutes the penalties prescribed for failure to meet seasonably one’s tax obligations. A tax debter, whether individual or corporation, owing taxes ou property, or a license tax, is sued for the same and the penalties the statute prescribes for delinquency are also included in the demand of the suit. He takes his chances on the outcome of the suit, obtains the benefit of the delay always attendant upon litigation, and then, when finally cast, escapes the penalty by saying he was advised by his counsel that the tax was not legal and because of this advice he resisted!

This would be to encourage tax resistance and could but result in embarrassment to the State or that one of its political subdivisions to which the tax is due.

The proper course to pursue is for the tax debtor, who honestly thinks more is demanded of him than he owes under the law, to pay the amount he holds to be due, protesting it is all he owes, and let the State or municipal corporation, to whom the tax is due, receive it — not in full of the tax, but on account, reserving its right to demand the remainder, and according to the tax-payer the equal right of resistance as against the demand for the remainder.

In such case, were the tax-payer eventually east in the suit that followed, he would owe penalties only on such remainder.

In the instant case defendant company made a tender of $1;650.00 as the amount of license it owed, but would not pay it over unless the city receipted it in full of all license demands for the year 1899.

This the city could not do.

Our conclusion is the defendant must be held for the penalties prescribed by the statute on the amount it owed as a license tax in the year mentioned.

It is, therefore, ordered that the former decree herein handed down be so modified and amended as to reduce the amount of the judgment against defendant to twenty-one hundred dollars, with two per cent, per month interest thereon from March 1, 1899, until paid, with recognition of first lien and privilege on its property, and that defendant pay posts of both courts.

Rehearing refused.


author: Monroe, J.

text:
    No. 13,420.
    Succession of Mrs. Tillie Loeb, Deceased Wife of Abraham Yarutzky; and Succession of Abraham Yarutzky (Consolidated).
    Syllabus.
    1. An adjudicatee of real estate, sold at the instance of a tutor administering a succession, is not bound to accept title where it appears that the order was obtained, and the sale made, without the advice of a family meeting.
    2. Nor does it affect the question that a family meeting is subsequently convened and ratifies the sale, as made. No obligation having been imposed on the adjudicatee, by the adjudication, a contract can not, thereafter, be forced on him at the option of the vendor of the property.
    APPEAL from the Civil District Court, Parish of Orleans — King, J.

      Benjamin Ory for Bernard Switzer, Plaintiff in Rule, Appellee.

      Floranoe & Rosen for Joseph S. Loeb, Tutor, Defendant in Rule, and Appellant.

      Binhelspiel & Bart for David Danziger, Auctioneer, Defendant in Rule and Appellee.
   The opinion of the court was delivered by

Monroe, J.

This matter comes before the court upon an appeal from a judgment making absolute a rule taken by an adjudicatee to a*Lnul an adjudication of real estate and compel the return of the amount-deposited by him.

The following statement of facts, agreed on by the parties respectively, which we reproduce in substance, appears in the records, to-wit:

Mrs. Tillie Loeb, wife of Abraham Yarutzky, died in New Orleans, January 12, 1896, leaving two minor children as sole issue of her marriage. Pier succession was opened January 30th, 1899, by her surviving husband, who qualified as natural tutor of the minors and caused an inventory to be taken, which showed, as the only asset of the succession, an undivided half interest in improved real estate, in New Orleans, valued at $2,000.00, -which had been acquired as community property, and of which the surviving husband and tutor owned the other half interest. The succession was administered by Yarutzky, as tutor, and no administrator was appointed. In February, 1899, the tutor obtained an order of court to sell the property of the succession, to pay the fees of the attorney, notary and appraisers, and the costs of court, incurred for the purposes of the succession. The order was made without the advice of a family meeting, and directed that' the sale should be made for one-third cash and the balance on time, and the real estate in question, in March, 1899, was adjudicated to Switzer, the plaintiff in rule, for $2,375.00. In April following, Yarutzky, as tutor, presented a petition, alleging that, in addition to the debts stated to be due when the order of sale was made there were also due, as privileged debts, $45.00 for paving, and $175.00 for taxes, and praying that a family meeting be convened to deliberate upon the question of ratifying the sale; and there was an order for such family meeting, but the same was never held. In May, 1899, Abraham Yarutzky died, leaving a will whereby Joseph S. Loeb and Leonard Krower were appointed his executors, and his succession was opened, the will probated, the executors qualified, and an inventory duly taken. This inventory, filed June 12, 1899, showed assets amounting to $9,112.80, of which $7,500.00 was in life insurance. Thereafter, the succession of the husband and wife were consolidated, and Joseph S. Loeb applied to be appointed testamentary tutor of the minors, and for an inventory of their estate. The inventory, so taken, shows assets valued at $13,300.30, of which all but $2,375.00 consist of personal property, most of it cash, or its equivalent. Loeb, having qualified as testamentary tutor, presented a petition asking to be allowed to pay certain attorney’s, notary’s, and appraisers’ fees, and costs of court, amounting to $161.00, as debts of the succession of Mrs. Yarutzky, and the order prayed for was made, and, at the same time, the executors of Abraham Yarutzky applied for, and obtained, an order to pay certain debts due by his succession, amounting to $628.50, alleging that there was on hand a cash surplus, over and above said debts, which the petitioners believed included all the obligations of the succession. Thereafter, they obtained an order to pay certain legacies, amounting to $3,150, including $1,000, given to one of the minors as an extra portion, and, on the same day, October 27, 1889, Joseph Loeb asked that a family meeting be convened to deliberate as to the ratification of the sale to Switzer, and obtained the order, as prayed for. On November, 20th, Switzer took the rule which is now under consideration, to cancel the adjudication and compel the return of his deposit. On November 21st, the family meeting convened and recommended the ratification and completion of the sale, and on December 7th, the proceedings were homologated, and, finally, on December 18th, the rule taken by Switzer was made absolute, and from this judgment the appeal which we are now considering was taken, on behalf of the Succession of Mr. and Mrs. Yarutzky.

The proposition upon which the adjudicatee relies, in rejecting the title,, and upon which the rule to cancel the adjudication is based, and was made absolute, is, that the mission of the tutor is to administer the estate of the minor, but that it is incompetent for him to sell, or to provoke the sale of the minors’ property without the advice of a family meeting, and hence that the adjudication in question was illegal and void, and that its defects were not cured by the subsequent ratification by the family meeting.

It is not claimed that the succession of Mrs. Yarutzky owed anything whatever at the moment of her death, in January, 1896. The only asset consisted of the interest of the deceased in the one piece of real estate, which had belonged to the community, and of which the surviving husband was entitled to the usufruct. When the succession was opened in January, 1899, three years after Mrs. Yaxutzky’s death, and the surviving husband, as natural tutor of the minors, asked that said property be sold, he represented that such sale was necessary to pay the debts of the succession, specifying appraisers’ fees $10.00, notary’s fee, for taking inventory, $25.00, costs of court and recorder, about $25.00, fee.of attorney, $75.00, being a total of $135.00. The situation, then, was, that the succession had fallen to the minors, and was subjected to the administration of the tutor as something belonging to them. The debts mentioned were incurred in the course and for the purposes of that administration, and, in the opinion of the tutor, it became necessary that the real estate, of which alone the succession consisted at the moment that it was opened by the death of the deceased, should be sold to pay the debts thereafter contracted.

The authority and the obligations of the tutor, under such circumstances, are regulated by specific provisions of law, which confer upon him power to administer and positively prohibit the sale of immovable property belonging to his wards save upon the recommendation of a family meeting. C. C. 336, 337, 339, 340, et seq.

This question was fully considered in the Succession of Weber, 16th Ann., 420, where succession property had been sold at the instance of the tutor, under order of court, to pay debts, but without the advice of a family meeting1, and the adjudieatee, as in this ease, refused to accept title. The court said that there were several objections to the validity of the proceeding, and that the first — the failure to call a family meeting — was conclusive. In refusing the rehearing, Chief Justice Merrick, as the organ of the court, stated the legal proposition involved as follows, to-wdt: “ The law accepts for the minor any succession which “ falls to him, with the benefit of inventory. If, therefore, there should “ be found, in the patrimony of the minor, a succession, the tutor may administer it, not because it is so written in the letters of tutorship, “ for such express authority cannot there be found, but because the “ succession is an effect, a thing, belonging to the minor, and, therefore, “subject to the administration of the tutor for the ultimate advantage “ of the minor. * * * the Civil Code * * * makes the convocation of a family meeting necessary to the administration of a '“ minor’s lands or slaves,” etc.

Counsel for defendant in rule refer us to a number of cases, the opinions and rulings in which are said to conflict with the views thus expressed, and, among them, several which are referred to by the court in the case cited, and differentiated from it, as cases in which sales were made in successions administered by executors or administrators, or were provoked by creditors, and, it was held, were governed by the provisions of Articles 990, 991, 992 C. P., and 1155, 1156 (1164, 1165) C. C.

Thus, in Bryan vs. Atchison, 2nd Ann., 462, a judgment was obtained against a succession contradictorily with the tutrix, administering, and the property was sold by order of court to pay the judgment thus obtained.

In Succession of Ira Smith, 9th Ann., 107, the testamentary executrix filed an account, showing debts due by the succession, and obtained an order to sell property to pay them.

In Michel vs. Delaporte, 14th Ann., 91, the property was sold at the instance of an administrator.

In Carter vs. McManus, 15th Ann., 642, the sale attacked was made at the instance of an administrator, and the courts said:

“ It has been repeatedly held that the rules which regulate the sale of “ the property of minors do not apply to sales of succession property, made at the instance of an administrator for the payment of debts.”

The other eases relied on by the learned counsel may be summarized as follows:

Towles vs. Weeks, 7 La., 312:

The estate was insolvent, and the sale was made at the instance of the tutrix, based upon the action of a meeting of the creditors, and upon the recommendations of a family meeting, held on behalf of the minors. The main question was, whether, the estate being administered as an insolvent one, the property could be sold for less than its appraised value, with the consent of the creditors.

In Poulteney’s Heirs vs. Cecil’s Executor, 8 La., 412:

The estate was insolvent, the widow renounced, and the property was sold, under order of court, by syndics appointed by the creditors.

Valderos, Executrix, vs. Bird et al., 10 R., 396:

The sale was made at the instance of a curator for absent heirs, regularly appointed to administer the succession, after a hearing contradictorily with an attorney appointed to represent the absent heirs, and for the purpose of paying debts.

Richard, Administrator, vs. Deuel et al., 11 R. 518:

The court said: “ The question which this case presents is whether “ the provisions of the Civil Code in relation to the sale of property be- longing exclusively to minors apply to, and must govern, sales made by administrators of estates, whether solvent or insolvent.”

Davidson vs. Davidson, 28 Ann., 269:

A sale of succession property was made at the instance of an administratrix to pay debts.

Succession of Tabor, 33rd Ann., 344:

The succession was administered by an executor, and it does not appear that there were any minors interested.

Succession of Hood, 33rd Ann., 466:

The court said: The question presented for solution is, can the im- “ movable property of a succession in which minors are interested and “ which is ordered to be sold to pay debts, at the instance of the adminis- “ trator, be adjudicated at the first offering for less than the appraise- “ ment in the inventory, and on any other terms than cash?”

Nesom vs. Weis et al., 34th Ann., 1008:

The property was sold at the instance of an administrator, to pay debts.

Succession of Merrick, 35th Ann., 296:

The surviving husband was administering the succession of the deceased wife, as natural tutor of their children. He claimed to be a creditor of the community, to the extent of about $15,000.00, and presented a petition, alleging that the community was insolvent, that it was necessary that its property should be sold for the payment of its debts; and praying that the undertutor be required to show cause why such sale should not be made. It is true that the court there said: “The repre- “ sentative of a succession may sell community property to pay its debts, “ upon proper showing of the necessity therefor, even though minors have an interest therein.” And, it is also true that the language thus used was applied to a case where a tutor was administering. But the community, to pay the debts of which the sale was to be made, was insolvent, and the tutor himself was a large creditor, and the court said, upon that subject: “As such creditor, he is entitled, like any other “ creditor, to have the community property sold in satisfaction thereof”; so that the sale was ordered upon the application of one who appeared in the double character of creditor and tutor.

Munday vs. Kaufman, 48th Ann., 591:

A succession was under the administration of an executor, who was also tutor of a minor heir. As executor, he presented a statement of the assets and liabilities and prayed for an order to sell property to pay debts. He, also, prayed for the convocation of a family meeting to advise as to the terms of payment of that portion of the price not needed for the purpose for which the sale was ordered. The family meeting was held and advised a sale for cash, and it was so ordered and so made. Being, subsequently, attacked in the interest Of the minor, the main question presented seems to have been, whether it was to be regarded as a sale of succession property, made upon the application of the executor, to pay debts, or a sale of minor’s property, made upon the advice of a meeting; — and the court held, after reviewing a variety of facts, that it was the former.

We are particularly referred to the case of Monget, Tutor, vs. Joseph Penny et al., 7 Ann., 134, as directly holding that the tutor, administering, is the representative of the succession. The question in that case was, whether the father and natural tutor could stand in judgment for the purposes of a suit brought against the succession of his wife, and it was held that he could do so. But the proposition as stated is not denied. On the contrary, in the original opinion, in the Weber case, the court said: “ The creditors of Mrs. Weber had a twofold remedy; to “ proceed against the tutor in the usual way, or to provoke the appoint- “ ment of an administrator. Had the latter course been pursued, a “ sale, ordered at the instance of the administrator, would not depend for its validity upon the advice of the family meeting. * * * But if the creditors choose to let the tutor of the minors go on with the a administration of the succession, which had devolved upon them, with “ the 'benefit of inventory, by effect of law, it is necessary, then, to dis- tinguish at whose instance the sale is provoked, even for the payment “ of debts. If by the tutor, then the provisions of Articles 334, 335, 336 and 337 of the Civil Code govern the case, and the advice of the family meeting cannot he dispensed with. But, if by the creditor, then “recourse must be had to Articles 990, 991, 992 of the Code of Practice, “ and the services of the family meeting are not wanted.”

It will thus be seen that the decisions relied on by the defense (and there are some few additional ones of about the same value as those which have been noticed) do not present the conditions necessary to make them applicable to the case now under consideration, or to bring them into any sort of conflict with the ruling in the Succession of Weber, and as that ruling-is, in our opinon, predicated upon sound reasoning, applied to plain provisions of law, we adhere to and affirm it.

The adjudication, when made, not having been binding on the adjudicatee, there was no contract, and, whilst a subsequent ratification, by the vendors, might bind them, if the adjudicatee chose to accept it, it could not bind him without his consent, and thus force on him a contract where none had previously existed.

Cavallier (F. W. C.) vs. Germain, 6 La, 216.

The defendants’ counsel insist that, the tutor having an order from the court to sell property to pay debts, it must be presumed, in the absence of any direct attack upon such order, that the debts existed, that it was necessary to pay them, that there was no other means of paying them than by the sale of the property which was the subject of the order, and that, under such circumstances, the sale was properly provoked, and validly made, at! the instance of the tutor, and without the aid of a family meeting. And we are especially referred to the cases of Belard & Johnson vs. Gebelin & Duggan, 47th Ann., 162., and Munday vs. Kaufman, 48th Ann., 600. In the former case, the sale in question was made at the instance of an administrator, and, in the latter, as we have already seen, at the instance of an executor.

It may be remarked, in this connection, that cases are sometimes presented where the courts refuse to disturb long acquired rights, based upon proceedings which would have been set aside upon timely objections. But there is no such ease presented here. The plaintiff in rule makes his objection at the proper time, and invokes the plain provision of the law, and there are no considerations of equity to stand in the way of their application.

The judgment appealed from is, therefore, affirmed.


text:
    No. 13,398.
    Lazarus Levy vs. Samuel Levy et. als.
    Syllabus.
    Where an order is made granting “a devolutive or suspensive appeal, in the alternative,” the appellant is authorized to perfect one appeal, and if he fails to file the transcript in this court within the legal delay, and no extension of time is applied for, or granted, such appeal will be dismissed. What his rights may be with regard to the taking of another appeal is a question which is not presented.
    APPEAL from the Seventeenth Judicial District, Parish of Lafayette — Caffery, J., ad hoc.

      William Campbell and Crow Girard for Plaintiff, Appellant.

      Gus. A. Breaux for Defendants, Appellees.
   The opinion of the court was delivered by

Monroe, J.

Upon June 13, 1899, plaintiff was allowed “a devolutive or suspensive appeal, in the alternative,” upon furnishing bond in the sum of $150.00, and the appeal was made returnable “according to law.” The transcript was filed in this court, December 30, 1899, and a motion was made January 2, following, to dismiss the appeal, on the ground that the delay of such filing had expired. The return days for appeals from the Parish of Lafayette are the fourth Mondays in March and November (Act 69 of 1894). The transcript should, therefore, have been filed upon the fourth Monday in November, 1899. And not having been so filed, and no extension of time having been applied for, or granted, the motion to dismiss must prevail. C. P. 883; Coudroy et als. vs. Pecot et als., 51st Ann., 495; State vs. Debenture Co., 52 Ann. (not yet reported).

Counsel for the appellant suggest, in their brief, that the appeal is good as a devolutive appeal, if filed within a year. We think that the learned counsel misapprehend the authorities upon which they rely in support of this proposition, and which hold that, in the event of the dismissal of a suspensive appeal, the appellant may obtain a devolutive appeal, if applied for within the year. Verges vs. Gonzales, Sheriff et al., 33 Ann., 410; Cremoni vs. Mayor, 35th Ann., 1108. In the instant case, there has been but one order allowing an appeal, and that order allowed but one appeal “a devolutive or suspensive appeal, in the alternative." Assuming that the appellant elected to perfect the suspensive appeal, it was that appeal which should have been filed in this court on the fourth Monday in November, 1899, and it is that appeal alone, with which we have to deal. What his rights may be with respect^ to some other appeal, for which he may, or may not, apply, is a question which is not now before us.

The appeal is dismissed.

Rehearing refused.