text:
    No. 3272
    Second Circuit
    TOWN OF PINEVILLE v. YATES
    (June 28, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Dedication to Public Use — Par. 6, 8, 9.
    Where a street was open to and used by the public for many years and the adjacent property was sold with reference to the street, no formal act of dedication being necessary, it must be held that the street belonged to the town.
    2. Louisiana Digest — Dedication to Public Use — Par. 9, 12.
    Where the adjacent property owners not only stood by and saw the town authorities work the street but requested them to do so, they cannot object to pay for the paving of side walks assessed against them by city ordinance.
    Appeal from the Ninth Judicial District Court, Parish of Rapides. Hon. R. C. Culpepper, Judge.

      Action by Town of Pineville against Daniel T. Yates.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Lamar Polk, of Alexandria, attorney for plaintiff, appellee.
    T. A. Carter, of Alexandria, attorney for defendant, appellant.
   ODOM, J.

By virute of the authority conferred by Act N'o. 147 of 1902 and amendments, the municipal authorities of the Town of Pineville paved the sidewalk along the north side of what is designated in the ordinances as Singer street and assessed the cost thereof against the owners of the property« abutting said street.

The defendant owned two lots abutting said' street, and his proportionate part of the cost was fixed by ordinance at $189.19. Upon his refusal to pay. the amount the town brought this suit.

The defense is that the so-called Singer street is nothing more than a private alley and owned by this defendant and other property owners, and that the town, in laying the sidewalk, trespassed upon his private property over his verbal and written protest, and that he is not liable for the cost of the paving; that said street was never dedicated to the public use, never acquired by the city by prescription or otherwise; and that the town had no authority in law to lay the sidewalk and assess the cost against his property.

There was judgment for plaintiff and defendant appealed.

OPINION

The right of the town authorities to build sidewalks along the public streets is not disputed, nor are the proceedings leading up to and the assessment of the cost contested.

But it is contended that this is not a public street. Plaintiff concedes that it had no right to lay sidewalks, except along public streets and alleys, and assess the cost thereof against the property owners.

The only question presented, therefore, is whether this is a public street.

The Town of Pineville did not acquire the street by expropriation, formal donation or' purchase, and it could not acquire title to the same by prescription alone. The mere use by the public over a long series of years of a passageway over private property by sufferance or tolerance of the owners of the land will not convert a private road into a public highway or street.

Morgan vs. Lombard, 26 La. Ann. 462; Torres vs. Falgoust, 37 La. Ann. 497; Shreveport vs. Drouin, 41 La. Ann. 872, 6 So. 656; Bomar vs. Baton Rouge, 162 La. 342, 110 So. 497.

Therefore, if this is a public street it became so by dedication of it to the public by the owners of the property over which it passed and its acceptance by the town.

There was filed in evidence a plat or map of the Town of Pineville which bears this legend:

“Approved by resolution of the town council of Pineville, La., this the ___________ day of October, A. D. 1903.”

Signed by the mayor, the three members of the town council, and attested by the clerk.

This map or plat shows Singer street extending from Hardtner street to Ball street, a distance of approximately 760 feet.

The plat shows that the Methodist and the Episcopal cemeteries are adjacent to the street on the south along its entire length, with the property of Barbier, Singer and one other on the north.

There is also in evidence a later map or plat of said town which bears this certificate:

“I hereby certify that this plat is a true copy of a part of the map of Pineville made by me dated October, 1926, and adopted as official map of that town.
(Signed) “H. J. Daigre,
' “Ph. Surveyor.”

This plat also shows .Singer street located as above stated.

While these maps show that they were approved and adopted by the town, they do not show that they were ever approved by the adjacent property . owners.

The testimony does show, however, that said street, as designated on the plats, has been open and used by the public for many years, possibly as far back as. 1892.

The testimony shows further that the street has been worked and partially kept up by the town just as the other streets for about thirty-one years. During a portion of that time, however, the town had not the funds with which to keep the street in perfect order and as a consequence the adjacent property owners and others who had occasion to use it raised funds by private subscription with which to keep it in repair. There seems to have been an effort all along by the adjacent property owners and others to have the street kept up and worked as a public street.

The defendant testified that he himself had gone before the town council and had done all he could to get the street graveled. He recognized it as a public street as did others who owned property adjacent thereto. He was asked:

“Mr. Yates, what was the nature of your objection to the working of this street by the town?”

He said:

“I am glad you asked that. The street is very narrow. It’s too narrow. We bought the property back there, we tried to build up homes," and the little narrow street- — too narrow. We wanted to build up good homes and have a good street in front. The way it is, it’s too narrow, and every time they run a plow back there and what they call working and loosening the dirt, and every time it rained it washed it out, and I objected every time this class of work was done.”

He was speaking of the work done by the town. He was asked if he would have objected if the street had been worked according to his ideas, and he said:

“I tried to get some assistance from numerous parties- in the town of Pineville so we could have built that street mutually. If it had been that way we wouldn’t have objected.”

He said he told the mayor and members of the board of aldermen that he intended to get a petition signed by the property owners asking that the street be graveled, and that his only objection to the sidewalk was that it did no good.

Mr. Prank, who owns property fronting on the street, went with defendant to the town authorities, asking that the street be graveled by the town.

The testimony shows that the street now called Singer street was formerly called Second or Back street and Cemetery street.

The property which defendant owns abutting said street was acquired by him under two separate acts of sale, the description in one being as follows:

“A certain piece, parcel or lot of ground, being, lying and situated in the town of Pineville, Rapides parish, Louisiana, and described as fronting on Cemetery street or road 100 feet and extending back between parallel lines four hundred (400) feet more or less, bounded north by property of Dan T. Yates, South by Cemetery street or Road, east by Church street, and west by property now or formerly belonging to the Barbier estate.”

The other lot is described as follows:

“described as having a front of 100 feet on Second or Back street (This is the same as Singer street) of said town, which runs in the rear of the Episcopal and Methodist cemeteries; said lot running back in parallel lines a distance of 220 feet, bounded north by land of Singer, south by Francois Barbier and public graveyard.”

The “public graveyard” referred to as being south of the property is not the Episcopal and Methodist cemeteries, which are across the street, but is a small plot of ground on the upper side of and adjacent to the street, marked on the plat as “Paupers Cemetery, claimed by M. Church.”

Singer street does not run east and west but runs north, 39 degrees east. The Bar-bier property is adjacent to this public cemetery. The Barbier property and the public cemetery which, in the latter deed are said to be south of the property sold, are therefore not in fact south of it but southwest.

In oral argument it was stated that one piece of defendant’s property extended across Singer street and adjoined the Episcopal and Methodist cemeteries. But by reference to the plats and that part of the deed which recites that the property has a front of “100 feet on Second or Back street,” it is perfectly clear that the vendor did not intend to sell the space occupied by the street, as counsel would seem to have us hold.

It is patent, we think, that the vendors in each of the deeds, and the defendant, the vendee, intended to make the edge of the street the boundary of the property, thereby recognizing the street as laid out and shown on the' plats. This seems 'to have been the attitude of the other property owners.

Subsequent to defendant’s purchase of the property he built a fence along the edge of the street as laid out. The sidewalk built by the town is between the fence and the street.

Defendant therefore has no ground of complaint, as he gets and holds all the property he bought. The town in building the sidewalk did not trespass upon his private property, as he alleged.

Our conclusion is and we hold that this street has been irrevocably dedicated to the public, accepted by the town, and is therefore a public street.

No formal act is necessary in order to dedicate private property to public use. But in cases where there is no formal act of dedication, it must appear that the parties intended to dedicaté their property for public purposes. That the adjacent property owners intended to so dedicate this street and that the same was destined as such by them, is clear from the record. The street had been open and used by the public for many years. The property owners wanted a public street there for the benefit of their property. The property owners and others appealed to the town authorities to take it over and keep it up; they stood by for years and saw the town keep it up as it did other streets, not in perfect condition but to the extent that the public fisc warranted; and finally the property which this defendant owns was sold with special reference to the street.

In Calhoun vs. Town of Colfax, 105 La. 416, 29 So. 887, it was held that:

“describing lots as bounded by streets will amount to an immediate and irrevocable dedication of the latter, binding upon both vendor and vendee.”

As early as 1866 our Supreme Court held, in the case of Picket et al. vs. Brown et al., 18 La. Ann. 560, that no deed or act of conveyance is necessary to dedicate immovable property to the public and that such dedication may be inferred from facts and circumstances which leave no reasonable doubt upon the mind of the intention of the owner to make such dedication.

In the very recent case of Bomar vs. City of Baton Rouge, 162 La. 342, 110 South. 497, it was held that mere silence of the owners and their failure to protest against the use of their property for public purposes does not amount to an assent to the dedication, but the Court said’:

“An entirely different situation might be presented if said owners had stood by and without opposition permitted the public authorities to lay out the road and to work the same as a public road.”

In the case at bar the property owners not only stood by and saw the town authorities work the street, but they requested them to do so.

For the reasons assigned, the judgment appealed from is affirmed with costs.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No.-
    First Circuit
    MARTIN, ET AL., v. CITY OF LAFAYETTE
    (January 5, 1928. Opinion and Decree.)
    (March 7, 1928. Rehearing Refused.)
    (May 7, 1928. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Dedication to Public • Use — Par. 1, 5.
    The dedication of a street for a width of forty feet does not apply to that part ofl the street of which the public has never had the use, but which was privately owned, and possessed.
    2. Louisiana Digest — Dedication to Public Use — Par. 1, 5, 12.
    Where property, part of which encroached upon the forty-foot width of the street, was acquired by reference to the street as a boundary, possession being bought,sold and delivered including the encroachment, the owner is not estopped from claiming title to that part of his lot, of which he has possession which encroaches upon the street of the city.
    Appeal from the Parish of Lafayette. Hon. W. W. Bailey, Judge.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Dubuisson, Perrault and Burleigh, of Opelousas, attorneys for plaintiffs, appellants.
    George P. Lessly, of Lafayette, attorney for defendant, appellee.
   ELLIOTT, J.

The plaintiffs as heirs and owners in possession hy inheritance from Andre M. Martin, brought a possessory action against the City of Lafayette, to be restored to and quieted in their possession of a strip of ground about two feet wide and seventy feet long, which they allege adjoins Douglas Street on the northwest side next to Congress Street situated in the City of Lafayette. That said strip is a part of a certain parcel and tract of land which their father, Andre M. Martin, acquired by purchase from Aureline Trahan by authentic act of sale dated October 11, 1917.

They allege that the City of Lafayette forcibly entered on and dug up the ground, uprooted trees and hedges and ousted them from their possession of the same. They prayed for an injunction against the City, but that feature of the proceeding has passed out of the case.

The defendant City, answering their demand, denied that it had trespassed on plaintiffs’ property. The City alleges that the strip of ground in controversy is a part of Douglas Street. That Douglas Street is a public street of the City of Lafayette, duly dedicated as such and accepted by public use, and that plaintiffs could not have had possession of any part of the public street. In order to definitely establish whether or not this strip of ground was' or was not a part of Douglas Street, the City pleaded and set out plaintiffs’ chain of title in its answer, back to August Cesar and Governor Alexander Mouton. The City contends that Douglas Street is forty feet wide, that the various owners of plaintiffs’ property have bought and sold it in the past with reference to Douglas Street, as located on the map of the City as one of the boundaries of same. That plaintiffs are estopped by said recognition from disputing that Douglas Street is forty feet wide adjoining their property. The City prays that the plaintiffs be held estopped and that their demand be rejected.

The old maps and titles placed in the record, show the rights of the parties with reasonable certainty. The City engineer made a survey and map at the instance of the City, showing Douglas Street and the tract of land claimed by plaintiffs by title deraigning from August Cesar and Governor Alexander Mouton. The City desires to pave Douglas Street and the map shows the trees and hedges which it removed in order to make the street and pavement harmonious in width. The measurements made hy the City engineer for the purpose of ascertaining whether plaintiff’s inclosure encroached on the street are very fully explained by him in his testimony. According to his measurements, and it is his opinion based thereon, that plaintiffs’ enclosure encroaches upon Douglas Street considerably more than two feet in depth by seventy in length, but he explains that plaintiffs’ encroachment and that of others on the street are of ancient date and that the City decided on that account, not to insist on an opening wider than thirty-four feet, and that in order to reach that width, it was only necessary to move plaintiffs’ enclosure back about two feet for a distance of seventy feet.

The plaintiffs had two surveys made, each by a different surveyor for the same purpose. Their measurements and opinions support the contentions of the plaintiffs. The question of title and dedication was fully and fairly entered into. The decision of the case hinges on the correct location of the one and one-half acres of land which Governor Alexander Mouton sold and delivered to, August Cesar by two acts of sale, the first dated October 11, 1843, the other May 10, 1847. Measuring from the starting point used by the’ city engineer, plaintiffs’ premises encroach upon Douglas Street for quite a distance beyond the width which the City claims of them. But measuring from the starting points used by the other two surveyors, working from different points of departure but each with practically the same result, the strip of ground in question is not a part of Douglas Street, but part of plaintiffs’ property by title and possession deraigning from August Cesar and Governor Alexander Mouton, before Douglas Street came into existence.

It is qur conclusion from the evidence that the two engineers employed, by the plaintiffs have correctly located the small strip of land which Alexander Mouton sold and delivered to August Cesar in 1843 and 1847. The land, at that time, was not in, but near the town of Vermillionville, by which name the City of Lafayette was then known. The two tracts formed one body of land 208.7 feet wide by 313 feet in length and was outside of and beyond the city limits. The old titles show that same was not sold with reference to the town, nor according to streets, because there were none in that locality at that time.

August Cesar entered on and enclosed the land and was living on it when he died. His possession commenced so far back, that no one could definitely fix the time it began. The property was sold in his succession to C. H. Mouton. He sold it to William Brandt, and from Brandt it passed by mesne and intervening conveyances to Andre M. Martin; not the entire tract, but that part of it remaining and as above described, after some portions had been sold therefrom. According to the surveys and measurements which we find to be correct, the strip of ground in controversy is not a part of Douglas Street, but belongs to plaintiffs as part of the land called for by 'their title deraigned from August Cesar and Alexander Mouton before Douglas Street came into existence, and before Governor Mouton had sold the adjoining and surrounding land of which Douglas Street is a ipart. This subsequently acquired and surrounding land was subdivided into lots and streets. The streets were dedicated by the owners of the land, and one of them was Douglas Street forty feet wide, but the street as outlined and mapped is located in part on the tract of land which Governor Mouton had sold and delivered to August Cesar years before. Therefore Douglas Street, to the extent that it was projected and mapped and placed on the Cesar tract of land, could not be dedicated except with the consent of August Cesar. He never consented and it was never dedicated to the extent that it was on his property. The evidence shows that none of his successors in title have ever relinquished any part of his original limits, but have continuously .and without interruption maintained their possession by enclosures without regard for the forty-foot width claimed for Douglas Street opposite and adjacent to plaintiffs’ property. The result is that Douglas Street opposite their property has never been more than about thirty-two feet wide, and that is the situation today.

The City contends that the dedication of Douglas Street is effective for a width of forty feet its entire length because of the public use of part of its length. There is no force in this contention as to the strip of ground in controversy, because the public has never had the use of it. Livaudais vs. Municipality No. Two, 16 La. Ann. 509; Carrollton Railroad Co. vs. Municipality No. Two, 19 La. 62; Thomas Wilkins vs. The Parish of Baton Rouge, 10 Rob. 57; Municipality No. Three vs. The Levee Steam Cotton Press Co., 7 La. Ann. 269; Municipality No. Two vs. Palfrey, 7 La. Ann. 497; Quirk vs. Miller, 129 La. 1071, 57 So. 521.

The City also contends that plaintiffs are estopped from contending that Douglas Street is not forty feet wide as projected and outlined, even though it reduces their property, because the street is referred to in a number of the titles whereby plaintiffs’ authors acquired the property, as boundary of the same. But plaintiffs are not estopped by these calls of their title, because in every instance, plaintiffs’ property was bought and sold and delivered according to the same possession in the matter of limits, that it had at the time it was owned by August Cesar.

Douglas Street does extend along it, forming one of its boundaries, and this has been the case since Douglas Street was established, but all the time, due to plaintiffs’ title and enclosures, its width, opposite and adjoining their tract of land has been limited to about thirty-two feet.

The judgment in favor of the City of Lafayette is therefore contrary to the law and the evidence, and erroneous, and must be reversed and judgment rendered in favor of the plaintiffs as prayed for.

It is therefore ordered, adjudged and decreed that the strip of ground in controversy in this case, situated in the City of Lafayette, Parish of Lafayette, State of Louisiana, two feet wide by seventy feet in length, adjoining Douglas Street on the northwest side next to Congress Street, is the property of the plaintiffs, Clara Martin, widow of Henry Fontenot, Henry J. Martin, Neita Martin, wife of Charles Joubert, Cora Martin, wife of A. E. Praeger, Aimee Martin, wife of J. C. Fuller, Leola Martin, wife of C. W. Roy, Agnes Martin, wife of L. L. Perrault, owners and possessors in indivisión as heirs of Andre M. Martin, acquired by purchase from Aureline Trahan, and which she acquired by title deraigning through mesne and intervening conveyances from August Cesar, and by him from Governor Alexander Mouton. And it is ordered that they be restored to and quieted in their possession of the same.

The City of Lafayette is to pay the costs in both Courts.


author: LECHE, J.

text:
    No.-
    First Circuit
    SHAHEE JONES FURNITURE & HARDWARE CO., INC., v. WEBER KING MFG. CO. AND HAYSLIP v. WEBER KING MFG. CO. (Consolidated for Trial)
    (May 8, 1928. Opinion and Decree.)
    (June 12, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Automobiles—Par. 5, 7(b); Railroads — Par. 64, 65.
    Where the driver of a truck slows down upon approaching a railroad crossing thus leading the train crew to believe that he was going to stop, and then drives directly in front of the moving train, the negligence of the driver was the proximate cause of the accident continuing right up to the time of the collision.
    Appeal from the Parish of Vernon. Hon. Hal. A. Burgess, Judge.

      Action by Shahee Jones Furniture and Hardware Co., Inc., against Weber King Mfg. Co., and Alton D. Hayslip against Weber King Mfg. Co. Consolidated for trial.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    A. B. Cavanaugh, of Leesville, attorney for plaintiff, appellant.
    Thompson and Ferguson, of Leesville, attorneys for defendant, appellee.
   LECHE, J.

Alton D. Hayslip, one of the plaintiffs was employed as chauffeur on a delivery truck, by the other plaintiff, the Shahee Jones Furniture & Hardware Company, Inc., and while so engaged, the truck collided with a train of the défendant company. Two suits were filed to recover damages, one by the Shahee Jones Company as owners, for the partial wreck of the truck, and the other by Hayslip, for personal injuries. The two suits were consolidated for trial so that it was only necessary to take one record of evidence. The trial Judge refused the demands of both plaintiffs and they have appealed.

Hayslip was sent in the truck to some camp, to deliver merchandise, and on his, way back .to his employer’s store in Lees-ville, he had to cross two railroad tracks owned by the defendant and used by its trains in the pursuit of its business. The road on which Hayslip was traveling is a much used public highway. It runs approximately east and west and it is intersected by the two railroad tracks of defendant, which run approximately north and south. The intersection of the highway and railroad tracks is within the eastern limit of the town of Leesville, but there are no buildings or streets here, and the place is virtually in the open country. There are “stop” signs along the highway on each side of the railroad tracks. The first track Hayslip had to cross is the main line of the railroad, then the next track is a switch or service track almost parallel with the other but slightly converging towards the main line which it joins a short distance south of the highway. The distance from the center of the main line track to the center of the switch track on the highway is not given with any degree of precision, but it is estimated to be about seventy-five feet.

Hayslip says that he slowed down the truck almost to a stop before reaching the first or main line track then continued over to the second or service track at a speed which he estimates at four miles an hour, but did not stop. As he reached the second track he collided with a box car which was being pushed by a locomotive of defendant, from north to south. The truck was shoved sideways along the track for a distance of about forty feet south of the highway, was badly damaged, and Hayslip was injured about his foot, but not very severely. The locomotive was headed south and the box car was being propelled ahead of it. The engine was at the time loudly emitting steam through the safety valve over the boiler, a brakeman was standing on the east side of the pilot of the engine and the locomotive bell was ringing as the locomotive and box car were nearing the crossing over the highway. The speed of the train is estimated at ten miles an hour.

When Hayslip reached the “stop” signal on the highway, there was nothing to obscure or obstruct his vision of the two railroad tracks for quite a distance to the north, or on his right side. He could not have failed to see the incoming locomotive and box car if he had looked, and he could not have helped hearing the locomotive if he had listened, unless he is deaf, a physical affliction which he expressly disclaims. The preponderance of the evidence is so great that he did not observe these two ordinary rules of prudence, that in justification of this clear negligence on his part, he says that the woods beyond the train were dark Hid almost of the same color as The box car, and he could not therefore have seen the approaching train. He admits, however, that after crossing the first track, his whole attention was concentrated on the crossing ahead of him, on account of its bad condition, and that he did not look up the switch track on which the train was approaching.

The flagman or brakeman who was standing on the pilot of the engine, whose view of the highway on the east side of the train was also unobstructed, says that he saw Hayslip approaching with his truck, that Hayslip slowed down and appeared to be preparing to stop, but that he did not stop, and when he realized that Hayslip would not stop, it was too late to check the momentum of the train and prevent the collision. This testimony of the brakeman, which is uncontradicted, disposes of the plea that defendant had the last clear chance to avoid the accident.

Plaintiff in argument pleads the negligence of defendant for not having had a guard on the forward end of the box car when it was being propelled by the locomotive, as required by the ordinance on that subject, in the town of Leesville. There is no platform or safe place for a flagman to ride on the front of a moving box car and the custom is to place such guard either on top the car, or to make him stand on one of the iron ladders on either side of the box car. But the nonobservance of this precautionary measure required by the town ordinance, is not the proximate cause of the collision in this case. If there had been a guard on top of the box car or on the iron ladder on its side, the accident could not have been avoided as it was due entirely to Hayslip’s own continued negilgence.

The evidence in this case is most convincing that the collision between plaintiff’s truck and the train of defendant, was due entirely to the negligence of Hayslip, himself one of the plaintiffs and an employee acting within the scope of his employment, of the other plaintiff, and there is no occasion under the evidence, to apply the last clear chance doctrine. The trial Judge in his carefully prepared reasons for judgment so found, and we fully agree with him.


text:
    No.-
    First Circuit
    BYRNES, ET AL., v. RICHARDSON
    (May 8, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sheriffs and Constables — Par. 27, 30.
    The sheriff has no right or authority to retain money which he seized in a raid upon gambling rooms even though the owner of the money was convicted.
    Appeal from the Parish of Washington. Hon. Prentiss B. Carter, Judge.
    Action by Martin J. Byrnes and W. C. Phipps against H. C. Richardson.
    There was’ judgment for defendant and plaintiff appealed.

      Judgment reversed.
    Brock and Carter, of Franklinton, attorney for plaintiff, appellant.
    C. S. Frederick, District Attorney, of Covington, for defendant, appellee.
   LECHE, J.

The jurisdiction of this court over the matter at issue in this case was passed upon by the Supreme Court when that question was certified to it under Article VII, Section 25, of the Constitution. In answer to our inquiry, the Supreme Court says that property or money actually held as evidence in a criminal court, cannot be taken from the custody of said court without its consent, and as long as said morCey or property is needed as evidence in said criminal proceeding. But when said proceedings have terminated and a controversy arises over the right to such property or money,' then “civil” action arises, which is to be decided in a court having competent “civil” jurisdiction. The Supreme Court then answered in the affirmative, that this Co'urt has jurisdiction of the appeal taken from the ruling of the District Court.

The pleadings and the facts are stated in our original opinion certifying to the Supreme Court the question of the competency of this Court over the appeal.

It is not disputed that the two plaintiffs in this suit, who were defehdants in the criminal prosecution, have fully complied with the judgment of the court in that prosecution, and paid the penalty which was imposed upon them. The money and property which was taken by the Sheriff when he raided the establishment kept by the two iplaintiffs, is admittedly no longer necessary as evidence in the criminal prosecution, for the proceedings in that prosecution have terminated and the judgment and sentence of the criminal court have been fully satisfied. Nor is it disputed that the money and property thus taken by the Sheriff belonged to the plaintiffs.

The Sheriff’s defense against plaintiff’s demand is that the property which he seized and especially the money which is claimed by the plaintiffs was by the mere fact that plaintiffs were convicted, ipso facto forfeited to the State for the benefit of the Parish of Washington, where the offense was committed, and therefore that it was not necessary that said forfeiture be judicially decreed in the sentence imposed upon plaintiffs. This is the question which we are called upon to decide.

This question, so far as we know, or are informed, has never been passed upon by the Supreme Court of Louisiana. Viewing this matter then as new and original, and considering the Constitutional guarantee to every citizen of protection in the enjoyment of his liberty and of his property, it seems to u's that it would be violative of this Constitutional right to empower a sheriff who is merely an executive officer, and not clothed with any judicial discretion, to deprive a citizen of his property without the express sanction of a court of justice. It matters not how plain and how evident it may be that the citizen has under the law forfeited his right to that property, the evidence upon which such forfeiture is justified, requires the exercise of discretion which is solely within the domain of the judicial branch of the government. In other words it is a justiciable matter, based upon a controversy between the citizen and the State, and which the citizen has the right to have decided by the courts of the land. The court having failed to pass upon the matter without complaint or objection on the part of the State, the latter has lost whatever right it may • have had to the property.

It seems that when the rule in this proceeding was tried, the trial Judge then ordered the forfeiture of the money held by the Sheriff and the only reason that can be urged for him to have done this was that he considered as we do, that the forfeiture had to be declared by a decree of court. But it was then too late to reopen the case of the State of Louisiana vs. the present plaintiffs. That case was terminated and could only be opened at the request of and with the consent of the plaintiffs. The sentence and judgment pronounced in the criminal proceeding against the plaintiffs had already acquired the force of the thing adjudged.

It must be observed that all the courts of the country draw a distinction between things which are useful and valuable in themselves and intended for lawful purposes, and things which are designed solely for the commission of unlawful acts. Money is in the first mentioned category, while roulettes, slot machines and similar paraphernalia which can only serve in gambling games are in the latter class. The courts hold that the former are lawful property of which the citizen can only be deprived by due process of law, while the latter are nuisances which may be destroyed without notice to their owners.

Our opinion is that the defendant Sheriff has no right or authority to retain the four hundred ninety and 50-100 dollars which he seized in his raid upon the gambling rooms of plaintiffs.

We are fortified in this conclusion by the authority of the case of Arbuster vs. Arthur Bean, 3 Orleans Appeals, p. 134, which is not presently accessible to us, but of which the syllabus is quoted at length in plaintiffs’ brief. ■

For the~5e reasons the judgment appealed from is avoided and reversed and it is now ordered that the rule herein taken by plaintiffs be made absolute and that H. C Richardson or his successor in office, Sheriff of the Parish of Washington, turn over to the plaintiffs the four hundred ninety and 50-100 dollars, seized by him in' the raid of their place in Bogalúsa, Parish of Washington, on April 2, 1927; defendant to pay all costs of court.


author: MOUTON, J.

text:
    No.-
    First Circuit
    BROUSSARD v. BROUSSARD AND COMEAUX, ET ALS., v. BROUSSARD, (Consolidated)
    (February 15, 1928. Opinion and Decree.)

      (.Syllabus by the Editor)
    1. Louisiana Digest — Prescription—Par. 22, 26, 27, 28.
    The possession of the vendor cannot be added to the possession of the vendee in order to make out the thirty years prescription acquirendi causa.
    Appeal from the Parish of Lafayette. Hon. W.-W. Bailey, Judge.
    Action by Andre Broussard against Mrs. Odelia Broussard, widow of Alcee Dupuis and Emithilde Comeax et als. against Mrs. Odelia Broussard, widow of Alcee Dupuis. Consolidated.

      There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Kennedy and Dugas, of Lafayette, attorneys for plaintiff, appellant.
    Debaillon and Meaux, of Lafayette, attorneys for defendant, appellee.
   MOUTON, J.

Andre Broussard brought this suit against defendant, alleging that she had slandered his title to a tract of land of thirty-nine arpents, more or less, situated in Lafayette Parish, bounded North by lands of C. C. Brown or assigns, South by land belonging to Joseph Stemmans and others, East by public road, and West by land of petitioner. He bases his title on the prescription of thirty years under the allegations of his petition, and for more certainty, filed that plea in this Court. He claims damages in the sum of $250.00 for the alleged slander of his title.

A similar suit is filed by Mrs. Emethilde Comeaux, widow of Jules Broussard, for an alleged slander by defendant of the title of a tract of land containing thirty-nine arpents, more or less, situated in Lafayette Parish, bounded North by land of C. C. Brown or assigns, South by lands of Joseph Stemmans and others, East by land of Andre Broussard, and West by land of Alcee Prejean.

The land above referred to containing 64 96/100 acres was patented to Jean Olidon Broussard by the United States Government in 1859. When the patent issued, Josephine Prejean, wife of Jean Olidon Broussard was then living; the land was therefore an acquisition of the community. Jean O'. Broussard died in 1865. His succession was never opened.

Plaintiff, Andre Broussard, Jules Broussard, the deceased husband of Mrs. Emethilde Comeaux, the other plaintiff, and the defendant in the two suits, Mrs. Odelia Broussard, were, with several other children, his children and forced heirs. Ten years after the death of Jean Olidon Broussard, Mrs. Josephine Prejean, on the 11th of February, 1875, sold all her rights, title and interest in the tract which had been patented to her husband, unto Andre Broussard and Jules Broussard, her said two sons.

In the sales to Andre and Jules Broussard the 64 96/100 acres which had been originally patented to Jean Olidon Broussard were divided into two tracts of 39 arpents, more or less. Plaintiffs claim these respective tracts solely on the plea of thirty years prescription. Under that plea it was incumbent upon them to show open, public, uninterrupted, and continuous possession, and as owners, during that period of time. C. C. 3500. As the law permits a party to acquire ownership of an immovable under such a possession, and without a title “it extends only to that which has been actually possessed by the person pleading it.” C. C. 3503, 9 M. 123; Riggs vs. Bell, 39 La. Ann. 1033, 3 So. 183; Harang vs. Golden Ranch Land and Drainage Co., 143 La. 982, 79 So. 768.

It is shown that. buildings were erected by Andre Broussard and by Jules, his brother, or the latter’s widow, claimant herein, on the tracts which had been deeded to them by the mother of Andre and Jules in February, 1875. It does not appear that each cultivated the whole tract he had purchased, or how much of the respective tracts had been put under cultivation. One of the witnesses testified that he was a neighbor of Andre and Jules Broussard, or his widow, 'for some thirty-five years prior to the institution of these suits, and that the two tracts were under fencing, but he does not fix the time when they were enclosed.

It is therefore doubtful under Article C. C. 3503, and the decisions interpreting that article, if plaintiff has established the possession necessary for the acquisition of property by the ¡prescription of thirty years. Let us say, however, that Andre and Jules Broussard or his widow, took actual possession of the two tracts at the time they bought in February, 1875, and had, as owners, the open and uninterrupted possession of same. This possession did not, however, continue later than 1902, because in that year, by a deed executed between Andre Broussard, and Emithilde Comeaux, widow of Jules Broussard, the other claimant herein, an exchange of the two tracts was made between them. This exchange was therefore, effected twenty-seven years after possession had been taken by plaintiffs, originally. At that time it is obvious they could not as yet have acquired by the prescription of thirty years. The cutting off of the possession they previously exercised had the effect of reviving the possession of defendant, a co-owner in the property as one of the heirs of Jean Olidon Broussard, ¡patentee of the property.

In exchanging tracts the old possession ceased and reverted to the co-owners, and a new possession began from the date of the exchange. From that time, thirty years of actual open and uninterrupted possession would have been essential as a basis for the acquisition of the land under the plea upon which these plaintiffs rely. The change of possession, under the exchange was made in 1902, and these suits were filed in 1925, twenty-seven years thereafter, being short by three years of the prescriptive period of thirty years. We say that no proof was made of actual possession during thirty years because the possession which preceded the exchange and change of possession thereunder, in 1902, could not, under the law, he tacked or joined to the ¡possession subsequent thereto to make or eke out the prescriptible period of thirty years.

In Sibley vs. Pierson, 125 La. Ann. 478, 51 So. 648, the Court held that where a party has taken possession of an adjoining tract of land or having acquired a specific interest in a particular tract and has taken possession of the additional tract or interest, with a view of acquiring ownership by holding possession thereof, he does not convey such possession to a vendee to' whom he sells the tract or interest described; and that such vendee cannot add his vendor’s possession to his own, there being no privity between him and his vendor in that respect. That decision was affirmed in Conroy vs. Pine Belt Oil Co., 143 L. 982, 79 So. 523.

It is true that in Conroy vs. Pine Belt Oil Co., 143 L. 982, 79 So. 523, the Court quoted the case of Railway Co. vs. LeRosen, 52 La. Ann. 192, 26 South. 854, which has since been overruled in Opdenweyer vs. Brown, 155 La. 614, 99 South. 482. The latter case however, it must be noted, was a suit for the fixing of a boundary and was not one involving the ownership of land claimed by virtue of the prescription of thirty years acquirendi causa. The Court drew a marked distinction in that case between a boundary suit and one for the ownership of property.

In an action for a boundary the Court held that the owner may retain the land beyond his title up to the visible bounds, which may have been established there, and may maintain his possession under the plea of prescription of twenty or thirty years. For that purpose he may join his possession to that of the prior or preceding possessor. Not so, when the land is claimed under the prescription of thirty years. In such a case there must he no break in the ¡possession; if there be, the possession automatically is restored to the owner, and a new possession begins, and which must be open and continuous during thirty years for the acquisition of title.

Plaintiffs have failed to sustain their plea of prescription and the Court correctly recognized defendant as a co-owner in the land in the proportion stated in the judgment, and also properly decreed that the demand for rents, revenues and reimbursements of taxes should be rele- ’ gated to future judicial adjustment.


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    No.-
    First Circuit
    MACK v. LYON LUMBER COMPANY
    (June 12, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Negligence—Par. 38; Pleading — Par. 23, 57.
    Where plaintiff’s petition is vague in regard to the alleged fire which he claims was started through the carelessness of defendant’s employee, exception of vagueness will be maintained allowing plaintiff reasonable time to amend his petition before trial.
    Appeal from the Parish of Livingston. Hon. Columbus Reid, Judge.
    Action by C. C. Mack against Lyon Lumber Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed, maintaining exception of vagueness and allowing plaintiff fifteen days to amend.
    Amos L. Ponder, of Amite, attorney for plaintiff, appellee.
    Cross and' Moyse, of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff sues for damages caused by a fire, which is alleged to have originated somewhere in the woods, near plaintiff’s place, and which was started through the carelessness and negligence of defendant’s employees and agents.

Plaintiff further alleges that said fire destroyed one hundred fifty panels of his fine white oak rail fence, a great lot of his young timber and merchantable timber and all,, the pine knots and rich pine, commonly called light wood, on his place. Plaintiff further alleges that this fire occurred on October 14, 1924, but no other detailed facts or circumstances are recited by him in his complaint. He prays for judgment in the sum of one thousand dollars.

Defendant excepted to plaintiff’s petition on fhe ground of vagueness, but the trial Judge overruled this exception and in due time, ordered the case to trial, and finally rendered judgment in favbr of plaintiff for three hundred fifty dollars. Defendant has appealed.

The first question that confronts us, is whether plaintiff’s petition contains that clear and concise statement of the object of the demand as well as the nature of the cause of action on which it is founded, as required by paragraph 4 of Art. 172 of the Code of Practice. Defendant contends that plaintiff has failed to comply with the cited article of the Code of Practice and upon this ground it has filed its exception of vagueness.

There is no iron clad rule of law by which the appropriate application of an exception ,':f vagueness may be determined. Each case must be judged from its own particular circumstances and situation, and in passing on an exception of this kind, much is left to the discretion of the trial judges.

The object of pleadings is to put the opposite party on his guard as to the proof of the facts with which he will be confronted on the trial of the case and that is the evident purpose of the quoted paragraph 4 of Art. 172, C. P. A pleader should be frank and candid in relating the facts upon which he bases his demand. Mere conclusions founded upon undisclosed suspicions will not fulfill this requirement of the law.

In this case plaintiff charges in substance that defendant’s employees and agents carelessly and negligently set fire to the woods near his place and caused him great damage from said fire. He does not give the quantity and separate value of the different objects for whose destruction he claims damages. Beck vs. Fleitas, 37 La. Ann. 492; L. & N. vs. Sarpy, 117 La. 156, 41 So. 477. He does not say where the fire was set in the woods, except that it was near his place. He does not -say where his place is situated nor what his place consists of, how far, nor in what direction, nor the relative situation of his place to the locus where the fire was set. Evidently, plaintiff in so charging knew that the fire had been set by employees of defendant. What employees? What were they doing? Were they engaged at the time in performing services on behalf of their employer? How was the fire set? Upon what ground does he base his allegation of carelessness and negligence? All these matters must have been within plaintiff’s knowledge in order to justify him in charging that the fire was set by the carelessness and negligence of defendant’s employees, and it is but fair that he should disclose them, so that defendant might be prepared to meet the issue tendered in the suit. See State vs. American Sugar Rfg. Co., 138 La. 1014, 71 So. 137; Dave vs. Hartin, 128 La. 159, 54 So. 704. Must allege facts and not conclusions. Arent vs. Liquidating Com., 133 La. 134, 62 So. 602; State vs. Hockley, Hume & Joyce, 124 La. 863, 50 So. 772.

We therefore believe that plaintiff’s petition fails to disclose á clear and concise statement of his demand as well as the nature of the cause of action on which it is ’founded, and that the trial Judge erred in not maintaining defendant’s exception of vagueness. The penalty attached by law to a vague petition is not an absolute dismissal of the suit. Plaintiff is entitled to a reasonable delay to amend, then, if he fails to amend, dismissal of' his demand should follow. Goldsmith vs. Virgin, 122 La. 831, 48 So. 279.

It is regrettable that our ruling will prolong this litigation, but defendant, is in our opinion, entitled to this relief and we feel in duty bound to grant it.

For these reasons the judgment appealed from is set aside and avoided, defendant’s' exception of vagueness is maintained, and it is further ordered that this case be remanded for the purpose of allowing plaintiff to amend his petition, provided that unless said petition is amended within fifteen days from the time the present ruling becomes final, plaintiff's demand shall be rejected and dismissed at his cost. Plaintiff to pay costs of the present appeal.


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    No.-
    First Circuit
    MIRE v. ZIEGLER COMPANY
    (May 8, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Explosives—Par. 3; Negligence — Par. 4, 9, 14.
    There is no liability for injuries tp children where dynamite caps were guarded with reasonable care in the roof of a house boat where there was no reason to expect meddling.
    2. Louisiana Digest — Explosives—Par. 3; Negligence — Par. 4, 9, 14, 15.
    Where children find dynamite caps on a canal bank and are injured by playing with them, the owner of the caps is not responsible in damages if it is shown that he kept them in a reasonably safe place in the roof of a canal boat and none of his employees could account for their being on the canal bank, there being an independent act of the third person intervening and negligence of defendant if any could ■ not be the proximate cause of the injuries.
    Appeal from, the Parish of Jefferson Davis. Hon. Thos. P. Porter, Judge.
    Action by Clemilee Mire, Tutor, against Ziegler Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Gremillion and Smith, of Crowley, attorneys for (plaintiff, appellant.
    Modisette and Adams, of Jennings, attorneys for defendant, appellee.
   MOUTON, J.

Until about the middle of June, 1925, the defendant company was engaged in dredging a canal, a couple of acres from plaintiff’s home. About two weeks after the dredging machine had left there, Laurent Mire, then a little over five years old, found on the canal bank where the dredging operations had been carried on, several dynamite caps which he took to the home of the plaintiff. He gave two to his sister, Laura Mire, who at that time was about seven or eight years of age. Laura placed one of the caps on a brick, and struck it with a hammer. The cap exploded, blew off a part of her left hand and so mangled the remainder of it, that an amputation had to be performed an inch or two above the wrist. Plaintiff, in his capacity of tutor to Laura Mire, brings this suit in damages, asking the gross sum of $18,620.00 against defendant company for the injuries thus inflicted on his minor child. The demand was rejected, and plaintiff appeals.

■The record shows that no other dredge boat operating in that section had ever come closer than one-half mile from the place where the caps were found by Laurent Mire. The fact is, when the caps. which had been kept by plaintiff were exhibited in Court during the trial to defendant’s foreman and other of its employees, there was no suggestion whatsoever on their part that they were not the kind of caps as those that were kept by defendant company. The Court therefore concluded, and properly, that defendant company was the owner of the caps.

These dynamite caps, the evidence shows, formed part of the equipment for the dredging operations. They were kept by Golden, foreman of the crew, and were used only under his instructions or supervision. They were used to blow up stumps or other obstacles out of the canal. The first question presented for solution is whether the defendant was negligent in the storing of the dynamite caps. In answer to a question as to where the caps were kept, the foreman said:

“There was a 2x4 right over my bed, and I had a little strip nailed up there, so there would be no danger of jerking them out. They were kept in a regular dynamite cap box.”

In answering cross-interrogatories on the same subject, Duhon, an employee of defendant company on the dredging work, says:

“These caps were kept on the plate or 2x4 strip holding up the rafters to the roof of the house boat, and a board was nailed inside the house boat, on the plate 2x4, to keep the caps from falling off, that is to say, the place where the caps were kept was boxed in from the inside. The house boat was about fifty feet behind the dredge. They were not locked up, but they were in a secret place where no one could find them except persons working around the house boat, and the house boat was always locked when we left it. No, they were not left around where anyone would pick them up and carry them away with them, unless they were familiar with the box or place where we kept them.”

The record shows that Duhon, Petitjean, Golden, Ozra and Rodney, foreman, were members of the crew on the dredging outfit. It is also shown' that Mrs. Petitjean, who was serving as cook for the crew, and her two small children, lived on the boat. There may have been other members in the crew, but there is no evidence to that effect.

The record is barren of any proof to show that any of the caps which were kept in the. boat were carried or left by any members of the crew, by Mrs. Petitjean or her children, or by any other person, on the bank of the canal where they were found by Laurent Mire. The proof shows that the children of plaintiff visited the children of Mrs. Petitjean while the dredging operations were going on. The District Judge, in his original opinion rendered in the case, in referring to this circumstance, said:

“To store such highly explosive substance as dynamite caps in unfastened tin boxes in an open and exposed ' place on a house boat on which children lived, and which was frequented by visiting children, is negligence and is. not such care as the law requires to be taken in the handling of highly dangerous explosives.”

Counsel for plaintiff say in their brief, that the judge therefore found 'that the defendant had been negligent and did not take such care as the law requires to be taken in the handling of highly dangerous explosives. That is the real point at issue in this cause, say counsel. The Court though it held in its first opinion that the keeping of the caps in the manner stated, was negligence, did not say that this was the sole issue, but held that the circumstantial evidence had to Be of a character sufficiently strong as to exclude every other reasonable hypothesis other than defendant’s act was the proximate cause of the injury, citing several authorities in support of its position. The case presents, as we see it, two controverted issues. First, whether defendant was negligent; second, whether its act was the (proximate, cause of the injury.

In its second opinion rendered on an application for a rehearing, the Court said:

“A careful review of the entire case has led me to the conclusion that the record fails to show any negligence in the storing of the dynamite caps.”

In refusing the rehearing the judge refers to several adjudications on which he. bases his views in support of his conclusion that defendant had not been guilty of negligence in the storing of these dynamite caps. In revising his original views on this subject, the Court, among several other citations, refers to the case of Finkheiner vs. Solomon, 224 Penn. 333, 74 Atl. 190, L. R. A. (N. S.) 1257.

In that case it appeared that the dynamite caps had been placed on a dark shelf in a barn where they were found by a child; one was exploded by him, inflicting injuries for which suit was brought. The Court said there was nothing wrongful in the placing of the caps in the barn, at the time and place where the box was placed; that it was not an improper place for the storage of the caps, and that the injury could not have been reasonably anticipated. Had the box been left where it was put by defendant, says the Court, no accident would have occurred.

In the case above cited the proof showed that the caps had been taken from the barn by that child that was injured, and still it was held that the defendant was not liable under the circumstances stated. In this case the caps were found by Laurent Mire, and were given on the same day to Laura, his little sister, some two weeks after the dredge boat had left for other parts. He found them on the banks of the canal, and it is therefore certain that they were not taken by him from the house boat; or by any other person therefrom, and given to him. In this case, the caps were in a regular dynamite or tin cap box as explained by the foreman. They were not locked up, it is true, but as testified to by Duhon, they were in a secret place where no one could find them except persons working around the house boat, and the house boat was always locked when the crew left it. They were kept in a small box, which was stored on the plate or 2x4 strip holding up the rafters to the roof of the house boat, and in front of this box a board was nailed inside of the house boat on the plate mentioned to keep the caps from falling off. These caps were . mpre safely guarded, and securely kept in the instant case than they were fn the Solomon case above cited. In 25 C. J., Sec. 11, p. 187, we find the following on this question:

“No liability arises for injuries to children when the explosives have been guarded with reasonable care, or left where there was no reason to anticipate meddling.”

It is not reasonable to say that the foreman of defendant could have reasonably anticipated that the small children of Mrs. Petitjean, who lived on the boat, or the little children of plaintiff, who occasionally visited there, would or could possibly meddle with these dynamite caps, secretly secured as they were on the strips holding the rafters to the roof.

In Peterson vs. Martin, 138 Minn. 195, to which the District Court refers, it was held that the placing of a box of dynamite caps on a plate in a granary nine feet ten inches above the floor was not in itself, an act of negligence. If there had been steps or other means by which a small boy might have readily reached the caps, the Court intimated that a different question might arise. In the instant case there is nothing to indicate that the children could have reached the plate in the house boat. The taking or removing of these caps from the house boat by any one of these children could not have been reasonably expected or foreseen by defendant. The fact is there is no proof whatsoever that they were ever removed by them or anyone else.

Even if defendant was negligent in storing the dynamite in the house boat, the next proposition presented for determination is as to whether the injury was the proximate result of the negligence.

In Mire vs. East Louisiana Railroad Co. 42 La. Ann. 385, 7 So. 473, the Court quoting from Weeks and Wharton, says:

“Whenever there intervenes the independent act of a third person, between defendant’s negligence and the injury sustained and it affects, the results, and is the immediate cause of the injury, the plaintiff cannot recover against the original wrong-doer.”

In such a case says Wharton:

“If it had not been for the intervention of a responsible third iparty, the defendant’s negligence would have produced no damage to the plaintiff.”

The general reason being that, “Casual connection between negligence and damage is broken by the interposition of independent human action.”

In this case the facts are not identical with those appearing in the 42 Annual, but the principle invoked is of equal application. There is no proof whatsoever, as we have hereinabove remarked, to show that the caps which were found on the bank of the canal by little Laurent Mire, were carried there by him, or by any member of the crew of defendant company, or by Mrs. Petitjean or her children. It is certain that these caps could not have left the boat of their own intrinsic power, and have found their way to the canal bank. It is therefore manifest that they got there through the intervention of human agency or action. By whom or how, is a question which may always remain shrouded in mystery. Be that as it may, it is certain that the connection between the asserted negligence and the damage which was actually suffered, was “broken by the interposition of independent human action.” It is impossible in the instant case to hold defendant for the human agency which has broken the casual connection between the negligence, if defendant were guilty of any, and the damage complained of. In such cases the general rule, is that the sufferer must resort for recoupment against the originator of the intermediate cause, and has no recourse for the acts either of omission or commission of the original wrongdoer.

This doctrine applies where the injured person is a child, and to impose liability on the defendant, his act must have been the proximate cause of the injury. 2'5 C. J. 187-188. The District Judge in his opinion refusing the rehearing refers to the case of Eaton vs. Moore, et als., 111 Va. 400, 69 S. E. 326, where it was set up in the declaration that dynamite caps had been improperly stored in an out-house of defendant. In holding that the declaration was inherently defective, the Court said:

“The charge is that by reason of the caps being improperly stored and exposed, the children got possession of them, but whether possession was acquired from the outhouse by the unaided efforts of the children, or through some other agency is entirely conjectural.
“The possession may have been just as easily obtained through a way for which defendant was in no way responsible. An adult, for instance, may have possessed himself of the caps and delivered them to the .children, or else laid them down in an exposed place wb.ere they were found and thus came into their possession, in either of which events there would have been an intervening, efficient cause for which the defendants were not answerable in damages.”

In the instant case, the caps were found on the canal bank by Laurent Mire, and it therefore appears that they were not given to him by any one. This is true, but who was it that laid or dropped down these caps on that exposed place where they were found by that little boy, and thus came into the possession of Laura Mire, the injured child? There was unquestionably an intervening and efficient cause which brought these caps there. The burden of proving this intervening and efficient cause which produced the injury, was upon plaintiff; also that defendant was guilty of negligence in storing the dynamite, but in which plaintiff has failed for the reasons hereinabove given.

Counsel for plaintiff endeavor to bring this case under the principle that governs where claims for damages are made for injuries inflicted by vicious or savage animals. On this point they refer us, among other citations along the same line, to the case of Vredentiery, et als., vs. W. J. Behan, 33 La. Ann. 643, where it appeared the plaintiff had been lacerated by an infuriated bear. In such cases, the Court said, it is the duty of the owners of such animals to keep them in such manner as to prevent them from doing harm. “There must be security against them under all contingencies,” says the Court. Counsel also refer to Serio vs. American Brewing Co., 141 La. 290, 74 So. 998, where the Court said:

“One who harbors a dangerous animal on his premises, does it at his peril, and is answerable for all damages resulting from its escape.”

It is obvious that animals of that character sometimes suddenly and unaccountably prompted by the impulses of their savage nature are liable at any time to break through their enclosures and commit depredations. They are by their nature dangerous, and evidently it is for that reason the Court said in Vredentiery vs. Behan, 33 La. Ann. 643, that there “must be security against them under all contingencies.” Their owners are practically made insurers of the public against the attack of such animals.

Those that handle dynamite are not insurers. The caps must be kept in a reasonably safe place, but those who use them are not required to so keep them as to guarantee the public “against all contingencies.” It is evident that such caps cannot escape from where they may be placed or lodged and become dangerous, except where through human intervention, they are removed or taken away and exploded. The cases are easily distinguishable, and the rule thus invoked by plaintiff has no application to the issues involved herein. The claim was properly rejected.


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    No.-
    First Circuit
    JONES v. LOUISIANA RY. & NAV. CO.
    (June 12, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625,626.
    The finding of the trial court as to credibility of witnesses and matters of fact being clearly correct is affirmed.
    2. Louisiana Digest — Master and Servant —Par. 164, 165.
    The employer is not responsible for the willful and deliberate acts of its employee not directly within the scope of his employment, sueh as the throwing of fire onto the dry weeds by an employee from, a freight train.
    Appeal from the Parish of Ascension. Hon. Sam A. LeBlanc, Judge.

      Action by Robert O. Jones against Louisiana Ry. and Navigation Co.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    C. V. St. Amant, of Donaldsonville, attorneys for plaintiff, appellant.
    Paul G. Barron, of Baton Rouge, attorney for defendant, appellee.
   MOUTON, J.

It is alleged by plaintiff that on November 18, 1924, an employee of defendant company riding on one of its freight trains, threw a burning piece of paper, waste or some other object from the moving train, which due to the extraordinary dry season, started a fire in the weeds and grass near the railway track, and from there soon spread to his farm where it destroyed his dwelling house, nine acres of barbed wire fence, and burned over thirty acres of timber land. He brings this suit against defendant in damages in the sum of $990.00 for the alleged value of his property so destroyed. He appeals from a judgment rejecting his demand.

Two negroes, Richard Jones and his boy, Leander, say they saw when the fire started in the woods and grass near the railroad track. Richard says that about two-thirty in the afternoon of November 18, 1924, while engaged with his son, Leander, in cutting sugar, cane an acre or so from the railroad track, a white man while standing on the rear end of the train, “up on top of the caboose extended his hand and threw a ‘bunch’ from which smoke was coming” that fell on the edge of the railroad track next to the property of the plaintiff. In testifying further in reference to this burning object, which Richard says this white man threw from the train, he says that the smoke was following it and a few moments after it hit the ground “a blaze bursted out.” Leander says the man in the caboose “throwed out fire and set the track afire.” If we are to believe these witnesses, the weeds along that railroad track were set on fire almost instantly after this “bunch,” waste paper or other object, was thrown from the rear of the train. We must therefore conclude that a flaming object was thrown out of that caboose into the weeds and grass along that railroad track. The fall of 1924 is known to have been one of the dryest seasons this State has ever experienced and the fact is that plaintiff himself alleged in his petition that due to the extraordinary dry season of that year, the weeds and grass immediately caught fire and spread so rapidly that it got beyond the control of those who tried to extinguish it. It is hard to believe that an employee of the company or any one else would have deliberately thrown a fire brand of the description given by Richard and his son, from that moving train in the dry weeds along that track, in such a dry season. The District Judge in referring To the testimony of Richard and Leander Jones takes occasion to say:

“•Their testimony in court varies materially from a statement which they made and signed a few months after the alleged fire to one of the claim agents of the defendant company. There was an explanation made of the discrepancy between their testimony and the statement, but I cannot say that I am satisfied with the explanation.”

In the signed statement to which the Judge refers, the Jones say:

“When the fire started on Tuesday I did not see anyone set the fire and don’t know just how it got started. I did not see anyone near the track.”

Nothing could hardly be more contradictory than the version given by the Jones in their testimony of the origin of the. fire, and their declaration in writing to the claim agent of the defendant company, and which naturally prompted the Court to say that it had not been satisfied with the explanation that had been made between the testimony of these witnesses and their statement. It is indeed difficult to explain the conflicting and contradictory statements hereinabove referred to. The Court evidently had its doubts as to the credibility of these two witnesses, and in fact did not believe them. He was justified in reaching that conclusion as we appreciate the evidence.

Masters and . employers are answerable for the damages occasioned by their servants “in the exercise of the functions in which they are employed.” C. C. 2320. In commenting on this article of the code, the Court, in Stewart vs. Boyd et al., 15 La. Ann. 172, said:

“The distinction is obvious between the willful and deliberate acts of agents amounting to offenses which they commit, even when attending to the functions intrusted to them, and those acts of imprudence, unskillfulness, and ignorance in the discharge of their duties, which may occasion injury to others.”

This doctrine was later approved in Vara vs. Quigley Const. Co., 114 La. 261, 38 So. 162.

According to the testimony of Richard Jones this unidentified white man to whom he refers, while standing on the rear of the train extended his hand and threw a “bunch” from which smoke was coming, into the weeds on the side of the track. The extending of his hand by this individual and the throwing of the burning object, whatever it was, was unquestionably a willful and deliberate act bordering on criminality,' if not criminal, considering the inflammability of the weeds along that track and the dryness of the season. Leander gives a version somewhat different to that of his father, and says the man in the caboose threw out fire and “set the track afire.” Richard says the smoke was following the object which was thrown out and that in a few minutes after it “hit the ground, a blaze bursted out.” The object so thrown out must have been flaming or else the blaze from the grass or weeds could not have been so instantaneous. Under the ruling above referred to the masters are responsible for their employees for those acts of imprudence, unskillfulness dnd ignorance in the discharge of their duties which may occasion injury to others.

The story of the occurrence as given by Richard and Leander Jones was simply discredited by the District Judge, and seems incredible to us; particularly is it so when considered in connection with the declaration to the claim agent.

Even if taken as true, the description they give of the acts is such that it cannot be classed as one that could have had any connection to the functions of any of the employees on that train. If it were that of an employee of the company, it was his own willful and deliberate act, and not chargeable to his ignorance, unskillfulness or imprudence for which the defendant can be held responsible.


author: MO'UTON, J.

text:
    No.-
    First Circuit
    WAECHETER, ET ALS., v. SEGHERS, ET ALS.
    (June 12, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Taxation—Par. 377, 378, 381; Pleading — Par. 62.
    It is only when the tax debtor is in actual corporeal possession of the property, or in cases of dual assessment or prior payment of taxes that the prescription will not run in favor of the holder of the tax title. Therefore, petition in suit to annul a tax sale over three years previous which does not state either one of these exceptions does not state a cause of action.
    Appeal from the Parish of St. Tammany.' Hon. Prentiss Carter, Judge.
    Action by Mrs. Josephine Waecheter, widow of P. J. McMahon, et als., against R. Seghers, et als.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    A. J. Finney, of Covington, and McCloskey and- Benedict, of New Orleans, attorneys for plaintiffs, appellants.
    Miller and Heintz, of Covington, attorneys for defendants, appellees.
   MO'UTON, J.

This suit against defendants is for the annulment of a tax sale.

An exception of no cause or right of action, and the constitutional prescription of three years are urged as the defense, which were maintained. Plaintiffs appeal from the judgment dismissing their suit.

They allege that they acquired the land they are claiming by inheritance from Peter J. McMahon who had purchased it in 1914 from John C. Dodt and H. J. Roberts. They aver that under an assessment of the land in the name of R. J. McMahon for the taxes for the year 1922 the property was on the 30th day of June, 1923, adjudicated at tax sale to R. Seghers who transferred it by act of sale to Alex E. Maier on the 27th, of July, 1926. It therefore appears from the allegations of the petition that more than three years had elapsed from the date Seghers, the tax adjudicatee, had bought, to the execution of the sale by him to Alex E. Maier. This action was brought on December 27, 1927, more than four years after the property had been transferred by tax sale to Seghers, author of Maier. It also appears from the coipies of the sale to Seghers and Maier which are made part of plaintiff’s petition, that the former was recorded August 8, 1923, and the latter on August 25, 1926.

The prescription of three years began to run from the recordation of the sheriff’s tax deed to Seghers. Gilmore vs. Frost-Johnson Lbr. Co., 139 La. 354, 71 So. 536; Macleod vs. Hoover, 159 L. 244, 105 So. 305; Const., 1921, Art. 10, See. 11. The only way the current of prescription could have been suspended was by the continued possession of Peter J. McMahon, the tax debtor, his heirs or assigns. Norgress vs. E. B. & S. P. Schwing, 128 L. 1040, 55 So. 667; Bonvillian vs. Richaud, 153 La. 431, 96 So. 21.

The petition is barren of any averment that the tax debtor, his heirs or assigns had remained in possession after the tax sale. It is therefore obvious that the prescription period of three years had-elapsed when this suit was instituted.

Counsel for plaintiff contends that the tax sale was null for the following reasons:

(a) Peter J. McMahon, the tax debtor, did not receive notice of delinquency.

(b) The property was advertised in the name of R. J. McMahon instead of P. J. McMahon, the owner.

(c) The least quantity of the land for which any bidder would buy for the amount of taxes, interest and costs, was not offered, and sold to the last and highest bidder.

All such nullities and irregularities are cured by the prescription of three years. This rule has been uniformly applied in tax adjudications under the constitutions of 1898, 1913, 1921. Winn Par. Bank vs. White Sulphur Lbr. Co., 133 La. 282, 62 So. 907; 6 Orl. App. 214; Nebraska-Tensas Co. vs. Moritz, 157 La. 174, 102 So. 195; Yates vs. Tessier, 5 La. App. 214. It is only when the tax debtor is in actual corporeal possession of the property, or in cases of dual assessment or prior payment of taxes that the prescription will not run in favor of the holder of the tax title. It is applicable in all other cases. Pickens vs. Dellinger, 161 La. 694, 109 So. 391. There are no allegations in plaintiffs’ petition to bring their case within any of these exceptions and their suit was therefore properly dismissed as the three years prescription had. fully accrued when their demand was made to annul the tax deed in question.


text:
    No.-
    First Circuit
    PENTON v. SNELL
    (March 7, 1928. Opinion and Decree.)
    (April 11. 1928. Rehearing Refused.)
    (June 4, 1928. Writ of Certiorari Denied by Supreme Court.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Automobiles — Par. 4(a), 4(d).
    Where the driver of an automobile upon seeing a motor bus enter a narrow bridge makes no effort to stop his excessive speed until it was too late to stop by the methods usually employed for that (purpose, he is guilty of negligence and liable for the damages resulting. .
    2. Louisiana Digest — Automobiles — Par. 4(a).
    The driver of a motor bus was not at fault where he was driving thirty-five miles per hour on the open road and slowed down to twenty miles per hour upon entering a narrow bridge, stopping his car as far to the right as soon as possible after he saw the danger of collision with a car traveling in the opposite direction.
    Appeal from the District Court, Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by Martin Penton, doing-business as Hammond Stage Lines, against O. C. Snell.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.

      John J. Jackson, of Hammond, attorney for plaintiff, appellee.
    Ellis and Ellis, of Amite, attorneys for defendant, appellant.
   ELLIOTT, J.

Omnibus No. 12, of the Hammond Stage Lines belonging to Martin Penton, was struck and badly damaged by an automobile belonging to and driven by O. C. Snell, in a collision on the Baton Rouge and Hammond Highway, about three miles east of Denham Springs. Penton alleges that the collision was due to the negligence and carelessness of said Snell in driving his car, and that he is therefore responsible for the damage done to his omnibus. That Snell was driving at an excessive speed, that his brakes were not in good condition, that immediately after the occurrence he admitted that the fault was his and promised to make good the damage, etc.

Defendant denies the negligence alleged against him. He. alleges that the collision was due to the negligence and carelessness of the driver of plaintiff’s omnibus. That it was being driven faster than the law permits. That if plaintiff’s driver had. kept on the right side of the road coming east, the side on 'which he belonged, the omnibus and defendant’s car would have passed each qther in safety. Defendant alleges that ás he turned a curve in the road and came in sight of a bridge, he saw plaintiff’s omnibus coming on the other side, each being at the time about the same distance from the bridge. That upon seeing the omnibus he immediately applied his brakes, but for some reason unknown to him, they stuck and would not work. That his car, as a result, zig-zagged back and forth across the road. That just as he got back to the right side of the road going west, [plaintiff’s omnibus came across the bridge at an excessive speed and struck and demolished his automobile. That plaintiff’s driver had already seen that defendant’s automobile was out of control before he entered, on the bridge, and in time to have stopped on the western side of the bridge. That plaintiff’s driver, should, under the circumstances, have stopped on the western side of the bridge, and not have entered on it until defendant had righted his car. That if plaintiff’s driver had pursued this course, the'~collision would not have occurred.

Defendant alleges the loss of his automobile, loss of time, and personal injuries, a to.tal of $2500.00, which he claims of plaintiff in re convention.

The district judge giving reasons in writing, rendered judgment in favor of the plaintiff as prayed for, except as to the item of $1000.00, claimed by plaintiff on account of depreciation in value of his omnibus, due to the fact that it had been in a collision. The Court reduced this item to $350.00, and rendered judgment in favor of the plaintiff for $1350.00.

Defendant appealed.

There is a conflict in the evidence as to the speed at which defendant was running at the time he applied his brakes in his effort to stop before getting to the bridge over which plaintiff’s omnibus was crossing at the time. The highway was about 25 feet wide, but the bridge was only about 16 feet wide and 25 or 30 feet long. The omnibus and the automobile could have passed each other on the bridge in safety, by each going slow and keeping to their respective sides, hut in the emergency of the moment neither felt that it was possible to do so. Defendant’s conduct indicates that his first impulse was, that by running fast he would get to the bridge and cross it first, but as he got within 100 feet of the bridge, he saw that the omnibus had already reached it, and was, on it, coming across. He then undertook to stop. He applied his brakes suddenly and hard, and cut off the power, but the speed of his automobile was so great that it kept up its momentum, skidding, zig-zagging and swerving back and forth from one side of the road to the other under the brakes, until it struck and demolished itself against the omnibus, just after the omnibus had left the bridge. Two witnesses apparently without interest to mis-state the facts were on the highway going west about a mile apart. Defendant passed them going west so quick, about four or five miles east of the bridge in question, that they each, judging by the speed at which they were running, estimated that defendant was running at the time 40, 45 or 50 miles an hour.

Mr. Snell says that at the time he put his foot on his brakes to stop, he was going 25 miles an hour by his speedometer. A party riding with Mr. Snell says in one part of his evidence, that Mr. Snell in his opinion, was driving on the road about 25 miles an hour, but in another place, he says that he never paid any attention to the speed they were going. Defendant expressed the belief that the zigzagging and swerving 'which took place, was due to something getting in his brakes. A piece of gravel, he says, might have gotten under one of his brake bands. In one place he says that his left brake caught; in another that his left brake held and his right would not hold; and in another, that they stuck. He says that his son fixed his brakes about three days before the occurrence. His son, an automobile mechanic, testifies that he did fix the brakes as his father claimed. It was late in the evening when the collision took place. Defendant had been driving all day and his brakes had worked all right every time they were aipplied, except on this occasion. Mr. Snell, speaking of his effort to stop, says:

“When I reached about 100 feet of the bridge or when I first spied the bus, I pulled my foot off the accelerator and mentioned to Mr. White, there conies the bus hogging the road. I removed my foot' from the accelerator when I first saw the bus, and when I came within about 100 feet of the bridge, I said to White, we are going to hit the bridge together. I just started to slow up, I put my foot on the brake and immediately I went to zig-zagging across the road as my right hand left hand wheel brakes, etc.”
"Q. When did you apply the brakes?
“A. Approximately 100 feet from the end of the bridge.
“Q. What happened when you applied the brakes?
“A. The left wheel front wheel brake caught and throwed me left, I pulled my foot off and pulled back to my side, put in on again and it did the same thing.
“Q. What were you trying to do?
“A. Check up my speed and keep from being on the bridge at the same time as the bus was.”

The result of- the impact, when defendant’s car, a six cylinder sedan, after zig-zagging and swerving back and forth across the road several times under as many applications of the brakes, struck the omnibus, is the most satisfactory evidence of the speed at wbich defendant was running at the time he applied the brakes and tried to stop. Defendant’s car was crushed by the impact into a complete wreck, and the omnibus was badly damaged.

We are satisfied that at the time defendant came within 100 feet of the bridge and tried to stop, he was running close to 50 miles an hour. The highway is graveled, and, it is possible that something did get under one of defendant’s brake bands, but we think it more likely, that the gravel, under the force exerted against it when the brakes were applied, did not hold as firm in some places as it did at others, and that the swerving was due to that cause. Defendant says that at the moment he applied the brakes the zig-zagging commenced, the moment he took his foot off, the car righted itself, the moment he reapplied the brakes, the swerving and zigzagging re-commenced, etc. It is quite probable that there was nothing the matter with defendant’s brakes, but be that as it may, the evidence shows that when defendant saw the bridge, the omnibus was nearer to it than he was; so much so, that it had the right of way, and defendant should have commenced to stop then, and could have stopped, if he had commenced in time. He was at fault in not commencing to stop sooner. He made no effort to stop his excessive speed until it was too late to stop by the methods usually employed for that purpose. Supposing his brakes to have worked all right, defendant’s car could not be stopped, except by impact with something capable of doing so.

Defendant’s conduct immediately after the wreck indicates that he felt himself to blame. As soon as, he had extricated himself from the wreckage, he addressed the driver of the omnibus in the presence of the passengers, saying that he was driving fast, that it was late and he was in a hurry, that his brakes were out of order and that he had neglected to have them fixed, that he would make good the' damage, etc. Defendant denies making these statements, but the fact is so well established that we are satisfied he used expressions to that effect.

Defendant urges that plaintiff’s omnibus was running too fast and that the driver of same saw that defendants’ automobile was out of control before the omnibus entered on the bridge, and that the driver should have stopped on the western side of the bridge until defendant had righted his car. The. only parties in a position to speak with any certainty as to the speed of the omnibus as it approached the bridge, were the driver and the passengers. Defendant offered some evidence that plaintiff’s omnibus had, on other occasions, run faster than the law permits, and kept the middle of the road, hut we are satisfied that on the present occasion, the omnibus approached the bridge at about 35 miles an hour, and slowed down to about 20 miles as it came to the bridge, and crossed it at about that rate of speed, quickening in speed somewhat as it left the bridge in an effort to avoid defendant’s car. Its speed, in our opinion, was reasonable. As for stopping on the western side of the bridge, the evidence of plaintiff’s driver and of the passengers who observed matters, is to the effect that defendant’s zigzagging and swerving was not noticed until just about the time the omnibus reached the bridge.

The omnibus could not be stopped at once; it required some little distance in which to do that, and the evidence of the driver and of the passengers is to the effect that it could not have been stopped before the collision, except by stopping on the bridge. If it had stopped on the bridge and undertook to back off, the delay would have invited the collision. The proper course was to go ahead and get off the bridge if possible before, defendant could reach it, and turn to the left going east upon leaving it, because at the time plaintiff’s driver left the bridge, defendant was on the left hand side of the road going west, and if plaintiff’s driver had not turned as he did, a head on collision was inevitable. Plaintiff’s driver exercised good judgment. He could not anticipate that defendant would swerve back to the right side, going west in his career as he did. The duty of having his car under control before he got to the bridge was with the defendant. Therefore the fault of the collision was with him, as well as responsibility for the damage.

The plaintiff alleges that his damage amounts to $1970.00. But all the items claimed when added up, amount to hut $1738.60, which is $231.40 less than the total sum claimed. ThQ depreciation in value which he claims that his omnibus has sustained as a result of having been in a collision is shown by his evidence to be uncertain. It seems that loss in price is anticipated in case he should have to sell it. In case he does not have to sell the omnibus, there will be no loss.

Plaintiff testifies that one of the springs on the omnibus hangs low since the collision, and does not carry its load as well as the others. But it appears that the matter could be adjusted for $15.00 or $20.00. The matter was also observed soon after the omnibus was returned to service, and no explanation was made why it was not fixed, and the item claimed with the other damages.

Leaving out the small matter mentioned, according to plaintiff, the omnibus is now giving as good service as it did before. It is our conclusion that plaintiffs’ claim on account of depreciation is more speculative than real, and we have decided to disallow this item. The sum of all the other items is in amount $738.60. We agree with the district judge that all of the items claimed must be recovered, except that one on account of depreciation.

The judgment appealed from in favor of the plaintiff is reduced to $738.60, and as thus amended it is affirmed.

The demand of the defendant against the plaintiff in reconvention is rejected. Defendant to pay the costs in the lower court, plaintiff, the cost of appeal.


text:
    No.-
    First Circuit
    DEROUEN v. FONTENOT
    (May 8, 1928. Opinion and Decree.)
    (June 12, 1928. Rehearing Refused.)

      (Syllabus Tyy the Editor)

    1. Louisiana Digest — Assault and Battery —Par. 4.
    Although one was provoked when he saw his boy assaulted by another, nevertheless he is liable for damages for the injuries he inflicted upon him.
    2. Louisiana Digest — Assault and Battery —Par. 9, 11; Damages — Par. 103, 104, 105.
    One hundred dollars for physical harm, mental suffering and humiliation; and one hundred dollars for injury to his ear considered sufficient quantum of damages resulting from a fight.
    Appeal from the Parish of Calcasieu. Hon. Thomas F. Porter, Judge.
    Action by Cody Derouen against J. E. Fontenot.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Robert R. Stone, of Lake Charles, and A. R. Mitchell, of Lake Charles, attorneys for plaintiff, appellant.
    Thomas Arthur Edwards, of Lake Charles, attorneys for defendant, appellee.
   MOUTON, J.

It is charged by plaintiff in his petition that defendant, on May 1, 1927, assaulted, ill-treated petitioner, and bit off his right e.ar or a great portion of it. Damages in the sum of two thousand dollars are asked against defendant for physical disfigurement, physical pain, mental suffering and humiliation. Two verdicts were rendered by a jury, rejecting the demand. Plaintiff appeals.

It appears that while prior to the fight in which plaintiff was injured he had slapped defendant’s boy who had called plaintiff a liar. Defendant in a reconventional demand claimed damages from plaintiff for this alleged battery on his boy, but the record shows that on his own motion he dismissed his action in reconvention. This matter is therefore eliminated from the contest, and leaves as the sole issue the complaint of plaintiff for the damages claimed by him against defendant.

Defendant came upon the scene when the fight occurred after his boy had been slapped by plaintiff. He sought plaintiff out, and after threatening him, assaulted, slapped or struck plaintiff. He ‘was the aggressor. This fact is well established by a preponderance of the evidence. After being struck plaintiff “clinched” with defendant, and being the weaker man defendant was knocked down. Some of the witnesses say that during the scuffle the heads of the combatants touched, or came close to each other. This would naturally be expected in a struggle of that character. No one, however, actually saw defendant bite plaintiff’s ear. When the parties got up from the ground several witnesses say that plaintiff’s right ear was bleeding. These witnesses identified the ear where blood appeared, as being the right ear, and where, immediately after the struggle, the blood was seen.

Dr. Fisher says that around May 1, 1927, which was the date of the conflict, that plaintiff called on him to treat his ear. The doctor, in answer to a question by defendant’s counsel, admitted that plaintiff’s right ear was still there, but said in the evidence that the wound looked a little “bft ragged,” and could have been inflicted by human teeth. He said the ear had merely been clipped, and while he was testifying, said, he could then see signs of it. The testimony of the witnesses, with that of the physician makes it quite clear that the ear of the plaintiff was clipped off by defendant during the scuffle. Counsel for defendant contends that this injury to the ear was either the result of a kick by defendant or of a cut from a ring, which we presume, defendant wore on his finger. The proof shows that defendant kicked plaintiff after he was down but that he was kicked on the hip, and not on the ear. The record being silent as to the cut with the ring, it is impossible to escape the conclusion that defendant inflicted the injury on plaintiff’s ear. Plaintiff exhibited his injured ear to the Judges of this Court during the trial of the case at Lake Charles. There still appeared a dent or cut in the rim of the ear, but an extremely slight one, and which left a slight disfigurement. Plaintiff is entitled to damages, and the verdicts of the jury rejecting the demand were clearly erroneous. The judgment must therefore be reversed.

There can be no question that defendant was intensely provoked when he saw that his boy had been assaulted by plaintiff. It was but natural that his anger should be aroused, 'and that he should seek the assailant for some satisfaction. He had no legal right, however, to resort to violence. He should have appealed to the law or the courts along the pathways of civilization for redress. His provocation was great, and with proper regard for the frailties of men, this must be considered in connection with other facts, in mitigation of damages; also, the fact that the injury was slight, should be taken into account.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff have judgment against defendant for one hundred dollars for physical harm, mental suffering and humiliation; and one hundred dollars for injury to his ear, making a total of two hundred dollars, with five per cent per annum interest from judicial demand, with all costs of court.