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upon the very uncertainty as to the times and places of inspection
of which counsel complains. It would be an easy matter to pre-
pare for inspections when parties knew in advance precisely when
and where they were to be made.

For the reasons herein assigned it is hereby ordered, adjudged,
and decreed that the judgment appealed from be and it is now

Rehearing refused.

liaws prohibiting the adulteration of articles of food, or preventing
impoBition or fraud in the sale of such articles are valid exercises of the
ponce power of the state; State v. Campbell, 64 N. H. 402; 10 Am. St.
Rep. 419, and note. Under a charter authorising a city to prohibit the
adulteration of drinks, it may, by ordinance, adopt a legal standard
of adulteration, so lone as Buch standard is not unreasonable or arbi-
trary: State V. Fourcade, 46 La. Ann. 717; 40 Am. St. Rep. S49. See,
also, the extended note to Butler v. Chambers, 1 Am. St. Sep. 644.

Under a etattte authorising a city to provide by ordinance for the In-
spection and regulation of the sale of milk witbin its limits, an ordi-
oance forbidding the sale of milk not coining up to a standard or test

Digitized by


844 Bbtz v. Liminol [LouiBiana,

of parity prescribed, and aathoriciii^ the deatraction of milk found
impure according to such standard, is a valid ezerolBe of the police
power of the city and state: Deems ▼• Mayor, 80 Md. 164: 45 Am. St.
Sep. SS9, and note. See, also, the extended note to Butler ▼. Cham-
bers, 1 Am. St. Bep. 649, and the notes to State ▼• Foureada^ 40 Am.
St. Bep. S60, and l^ttlefield t. State, 47 Am. St. Bep. 702.

Bbtz t^. Limingl

[46 LonmAKA AHHVAL, lllS.]

BILITY OF ABUTTING OWNBB.— If statutes impose a mere pubUc
duty upon a lotowner in a city to keep the banquettes in front of liis
premises in repair, or to raise or lower them to an established grade,
a failure or neglect to perform such duty does not render him liable in
a private action to an individual injured by reason of such failure or

not lie for a breach of public duty.

TRANSFER OF LIABILITY.— In the absence of an express grant of
power, a city has no authority to change the general law, and transfer
the liabilities for injury resulting from defects in its streets from the
public to an individual who is not directly responsible for their exist-

BILITY.— Although a city may have imposed upon lotowners the pub-
lic duty to keep the sidewalks in front of their premises in repair, or
to raise or lower them to an established grade, yet the city, and not
the owner, remains an8wera]>le In a private action for injuries result-
ing from his negligence, or his own omission to act

ACTIO NS.-BRBAOH OF PUBLIC DUTY by a private individual
can be punished only by some form of public prosecution, and not by
suit for damages by an IndlvlduaL

B. E. Forman, for the appellant

Chretien & Suthon, for the appellee.

***» McENEEY, J. The plaintiff's wife was injured on the
banquette in front of defendant's house, in the city of N'ew Or-
leans, while passing in front of the same. It is alleged that the
injury was in consequence of the defendant having neglected to
repair the banquette. It is not alleged that the injury resulted
from any obstacles placed on the banquette by defendant. There
was judgment for defendant, rejecting plaintiff's demand. The
plaintiff appealed.

**^® Section 36 of the charter of the city of N'ew Orleans pro-
vides "that all paved banquettes in the city of N'ew Orleans shaD
be kept in repair hy the owners of the real property fronting
thereon/* and section 8 of the same says the "city council shall

Digitized by


Hay, 1894.] Bbtz v. Liminoi. 845

haye power to compel the owners of property or tenants to keep
their sidewalks in front of such property clean and in repair."

Act 114 of 1886 authorized the city council to estahlish a uni-
form grade for the banquettes in the city. When the city
council in its discretion deems it necessary to alter the
grade on any street, it is made the duty of the city surveyor
**to give the grade and make it known/^ upon which the proper
notices shall be issued by the commissioner of public works to
owners of property, or their agents, to conform to the newly estab-
lished grade within ten days after the service of the notice. In
default of the owner doing the required grading after the proper
notice, it is made the duty of the comptroller of the city to have
the work done at the request of the commissioner, at the expense
of the owner. A certificate for the cost of the work is recorded,
which becomes a lien on the property, with six per cent interest

per ftTIHTITTl,

We are asked by plaintiff's counsel, in default of judgment in
his favor, to remand the case to correct certain alleged errors
of the district judge in his ruling in reference to the scope and
meaning of act 114 of 1886.

It will be unnecessary to remand the case, for the reason that,
conceding all that the plaintiff asks in reference to said rulings,
we do not think he is entitled to a judgment. Conceding that
the defendant had failed to make repairs to the banquette, and
that the cwmcil had ordered the banquette raised or lowered on
the street on which defendant owned the property, and that he
had been served with proper notice and had failed to comply
with the same, still only a public duty would have been imposed
upon him, the neglect to perform which could not render him
liable to an individual who had been injured on the sidewalk or
banquette in consequence of the failure to repair it, or to raise
or lower it in conformity to the established grade: Dillon on
Municipal Corporations, sec. 1028.

In the case of Taylor v. Lake Shore etc. R. R. Co., 45 Mich. 74,
40 Am. Rep. 457, the council of the city of Monroe had full and
complete power over the streets, and the legislature had granted
to said city in its charter the power to compel owners and
**^^ occupants of property to repair the banquettes in front of
same, and to keep them free from obstructions and snow and

The plaintiff in that case sued the defendant for an injury
suffered by her in consequence of slipping and falling upon the ice
which had formed on the sidewalk in front of premises occupied

Digitized by


846 Bbtjs v. Limingi. [Louisianfti

by defendant, who had failed to remove it in accordance with thi

city ordinance.

Judge Cooley, the organ of the court, held: "An ordinance le-
(juiring all persons to keep their sidewalks free from ice impoees
a purely public duty, and persons injured by slipping on the ice
cannot bring private action against the owner of the premises,*'
The syllabus of the case is brief, and is as follows: "Priyate ac-
tions do not lie for breach of public duty/*

Tn the case of Hartford v. Talcott, 48 Conn. 525, 40 Am. Bep.
189, the action was by the city against the defendant to recover
the amount of a judgment against plaintiff for damages for an in-
jury caused by ice upon a sidewalk in front of his premises.

The city had been held liable because of the duty imposed upon
it to keep the sidewalks in repair and free from obstructions. The
city council of Hartford had passed an ordinance requiring every
owner or occupant of a building or lot bordering upon a street
with paved or graded sidewalk to remove from the walks all snow
and ice within a certain time, and imposed a penalty for the non-
performance of the public duty. The ordinance was passed in
conformity to a general law of the state, which placed upon
municipal corporations the burden of keeping the highways in
their respective limits in a reasonably safe condition.

The court held that there was no grant of power to the city
council to change the general law and transfer the responsi-
bility for injuries resulting from defects in the way from the pub-
lic to an individual who is not directly responsible for their ex-

And we can find no such power to transfer responsibility in
the charter of the city of New Orleans or in act 114 of 1886. The
charter and act 114 only authorized the enactment of an ordinance
requiring each proprietor fronting on a street to assist the city
in keeping the banquette in repair and to keep it to a certain

And such seems to be the intent of the legislature in relation to
the city of New Orleans. No penalty is imposed by fine for the
nonperformance of the public duty imposed. The work is to be
done at the expense of the owner, if he fails to do it, with an
edditional burden ***® of six per cent interest. By this leoris-
lation the city is not relieved from responsibility. It is still its
duty to do the work, and, as it has no authority to shift the re-
sponsibility for failure to do it, it remains answerable for injuries
resulting from negligence of the owner or its own omission to

Digitized by


Maji 1894.] Betz v. Lxmingi. 847

It is claimed by plaintiff that under section 36 of tlie city char-
ter, quoted above, that the obligation to keep the banquette in
repair imposed a duty upon the owner of the lot in favor of all per-
sons who use them, and that the neglect to keep them in repair,
in consequence of whioh anyone lawfully using the banquette is
injured, renders the owner liable to him in damages. But the
duty imposed was not for the benefit of individuals or a particu-
lar class of individuals. The duty was to the whole public of the
city, to all its inhabitants, who own the banquettes and streets
in common. The neglect to repair the banquettes was such a
breach of public duty that its punishment must be in some form
of public prosecution, and not by a suit for damages by an indi-
vidual: Taylor v. Lake Shore etc. B. E. Co., 45 Mich. 74; 40 Am.
Rep. 457. There are certain burdens imposed upon the indi-
vidual members of a community for the benefit of a particular in-
dividual or class of individuals which, for a violation of the duty
imposed, may give rise to an individual right of action as well as
a public prosecution: Taylor v. Lake Shore etc. B. B. Co., 45
Mich. 74; 40 Am. Bep. 457. Such actions generally spring from
franchises granted by the state or some subordinate political cor-
poration, to be used for the benefit of the individual members of
the community, or from the preformance of a public duty by an
official for the benefit of a particular individual.

The distinction between the duty imposed as due to the whole
community collectively, and that due to individuals, is readily
distinguished by the nature of the obligation.

Judgment affirmed.

Rehearing refused.

BILITY OF ABUTTING OWNER.— No obligation to repair streets
or sidewalks adjoining lots in a city rests upon the owners of snch lots
at common law, bnt the duty to do so, if any, arises out of statutory
obligations imposed upon them by the state or municipality. Such
owners do not therefore incur any liability to individuals or munici-
palities for damages arising from streets rendered defective through
want of repairs, where the charters of such municipalities do not
assume to make the lotowners liable to the party injured : Rochester
V. Campbell, 123 N. Y. 405* 20 Am. St. Rep. 760. and note. See, es-
pecially, the extended note to Browning v. Springfield, 63 Am. Dec.
355-357, discussing this question.

municipality having powers to be exercised for the public good is liable
for its failure to exercise them to any person who has received substan-
tial damages therefrom, and who is not himself in fault: Cochrane y.
Mayor, 81 Md. 54; 48 Am. St. Rep. 479, and note. An action at com-
mon law will not lie for private injury caused by the execation of legal
powers exercised judiciously and carefully: Cleveland etc. R. R. Co. y.

Digitized by


848 Leman v. Manhattam Lifb Inb. Co. [Lomriana,

Speer, 66 Pa. St. 325; 94 Am. Dee. 84. Aotions cannot be maintained
lor injariea resulting to individaals from acts done l^ pereona in the
execation of a publio trust: Tinsman v. Belyidere etc. B. B. Co., ^
K. J. L. 148; 09 Am. Dec. 666. See, also, the extended notes to Robin-
son T. Ohamberlain, 90 Am. Dec. 728 ; Van Pelt T. DaTenport, 20 Am*
Bep. 626: Nickerson ▼• Bridgeport Hydraolio Oo.* S8 Am. Bep. 6, and
Blanc f • Morray, 61 Am. Dec. 10.

Leman v. Manhattan Lifb Insubanob Compant.

[46 LounuKA Annual, 1189.]

icy of life insurance showing that the death was cansed by suicide,
are admissible, but not conclusive, against the Insured.

cide Is relied upon as a defense to an action to recoyer on a life insur-
ance policy, the burden of proof Is upon the Insurer to establish the
suicide, and, If circumstantial erldence alone is relied upon. It must be
of such character as to exclude, with reasonable certainty, any other
cause of death.

A. H. Leonard and M. Marks, for the appellant.

Dinkelspiel & Hart, for the appellee.

**•* MILLER, J. The plaintiff sues on a policy of insur-
ance issued by the defendant on the life of her husband. The de-
fense is, the husband committed suicide, and the policy excludes
liability in cases of self-destruction, sane or insane. The jury
found for the defendant, and plaintiff appeals from the judg-
ment on the verdict.

The proofs of loss furnished the company, i. e., statements of
the undertaker, physician, agent, and friend, as well as the cor-
oner's inquest, stated suicide as the cause of death. The de-
fendant offering these proofs insisted plaintiff was bound by them;
that is, defendant objected to any testimony contradicting these
proofs. The court admitted the testimony. It is to be observed
at the outset, the cause of death in this case is purely a matter of
opinion. There is no testimony whatever on the subject, except
the fact the insured was found dead from a mortal gunshot wound,
with a pistol wedged in the bend of his thumb, and the body so
disposed, as will be discussed in another place, as to suggest infer-
ences entirely consistent with accidental death, or at least not of
a character to exclude every supposition but suicide. If opinions
of witnesses as to the cause of death are to be accepted as con-
clusive, contained in statements which the company exacts under
their policv. it is a harsh application of the supposed rule as to
the effect of such statements. In our opinion, neither reason nor

Digitized by


May, 1894.] Leman v. Manhattan Lifb Inb. Co. 849

authority support the contention of the company in this respect.
We think the proofs of death were admissible to be weighed by
the jury with other testimony administered. Such was the ruling
of l^e lower courts and we sustain it: See Home Ben. Assn. y.
Sargent, 142 U. S. 699; Insurance Co. v. Newton, 22 Wall. 36;
Phillips y. Louisiana etc. Ins. Co., 26 La. Ann. 404; 21 Am. Bep.
649. The authorities, perhaps, do not go to the full length* here
afiBrmed, but they tend to give the proofs of death admissibility,
but certainly do not assert their conclusiveness. The better
opinion is the insurer is not estopped by the proof: Bliss on life
Insurance, sec. 265.

The discussion on the point that suicide should be regarded as
iina proceeding from insanity, and not bar recovery, even though
the poUcy stipulated no recovery in cases of self-destruction, has
been ended, as life policies now usually, we beUeve, contain what
is known as the ^^sane or insane^' clause, i. e., no recovery in cases
of suicide, sane or insane. That clause is in this policy.

But still, notwithstanding the sane or insane clause, to defeat a
recovery on this policy it must appear the deceased took his life.
In this case the testimony, mainly the mute witness of the dead
body, is all on which the company relies, besides the statement in
the proof of loss from those who were possessed of no knowledge
save that afforded by the body of the deceased. There is in the
record a mass of what is termed expert testimony. It, of course,
consists of theories as to the cause of the death. The testimony
is of those who testify from their experience in the use of firearms
and from physicians who draw their inferences from the gunshot
wound, the position of the body, and other circumstances. The
admissibility of such testimony is at best doubtful: Bliss on Life
Insurance, sees. 378, 379. The court at last must determine the
basis and potency of all such theories arising from all the facts.
These facts are: The body found with the wound from a gunshot
causing death, the discharged pistol wedged, or as if it had been
forced, on the thumb of the right hand, the body reclining on the
sofa as of one sleeping, the left arm rested on the breast, the
right I^ crossed on the left, the head in the usual position of one
in repose, and there being no evidence of any convulsive move-
ment, if we correctly translate the technical word "jactitation,*'
used by the physicians who testify. The pistol was 'tightly
wedged" to the thumb, so as to require force to remove it. The
question is whether these appearances point to suicide, to the
exclusion of any other cause? Why not, with equal potency^ to
accidental deatii or death by the hand of another?

Digitized by


350 Lbman v. Manhattan Life Inb. Co. [LouiflianSr

Dr. Gray, who was one of those who gave a statement at first
attrihuting the death to suicide, seems to have changed his opin-
ion. He testifies: ^TE was first led to believe it was suicide from
the fact that the body was dead and the pistol was on his hand, but
the fact as stated in a previous answer (viz., that thumb was tlirust
through guard of pistol and tightly wedged as if it had been
thrust in forcibly), the force necessary to draw the thumb from
the guard, the absence of any evidence of jactitation, or of having
been any, as shown by the ^*®* precise manner in wliich ilie
body laid, with arms folded, the legs crossed at ankles as in a per-
son sleeping, have raised cloubts in my mind as to how his
death did occur, whether by his own hand, or by that of another/*
The testimony of others professing to be experts as to the handling
of firearms and the causes of this death reaches a conclusion dif-
ferent from tliat of Dr. Gray. We tliink, giving all due effect to
the expert testimony, it is at least fair to say it does noL establish
the suicide.

In any consideration of the cause of the death, weight is due to
the condition of the deceased in life, L e.^ his domestic relations^
his means, his health, and the state of his mind. It is human
experience that the motive prompting self-destruction is to be
sought, and usually found, in domestic unhappiness, ill-healthy
financial troubles, or insanity^ In this case no such causes are
exhibited by the record. The%e*ceased was fortunate in business,
had a wife and children to whom he was attached, and with whom
he was happy. He parted with them on the day of his death in
the best of spirits, and the shock of his death came a few hours
later. No physical malady or mental disturbance or financial
trouble existed to furnish any cause for taking his life.

In this condition of the record there is no adequate basis to refer
the death to the intentional act of the deceased. If there are in-
dications that point to suicide, there are other features not con-
sistent with that theory. When, as in this case, circumstantial
evidence alone is relied on to establish suicide, it is at least within
bounds to say the evidence must be of a character to exclude,
with reasonable certainty, any other cause of death. If the evi-
dence falls short of this exaction, the suicide is not proved. The
fact of death remains, and that casts the liability on the company
insuring against death, with the excepted case of self-destruction,
which the company fails to establish. This appreciation of the
evidence and of the burden of proof constrains us to set aside the
verdict and Judgment of the lower court in favor of the defendant:
Bliss on Life Insurance, sees. 366, 367; Malloiy t. Travellers' In&

Digitized by


Jdj, 1894.] State v. Taylob. 851

Co., 47 N. T. 52; 7 Am. Kep. 410; PhillipB t. Lomdana ete. Ina.
Co., 26 La. Ann. 404; 21 Am. Bep. 549.

It iB therefore ordered, adjudged, and decreed that the judg-
ment of the lower court be avoided and reversed, and that plain-
tiff do have and recover from defendant five thousand dollaii^
with 1^ interest, and that appellees pay coata.

Behearing refused.

destructioii ia never preaamed* and if recovery upon a policy of life
ingnrenoeii resisted on the ground that the assurea committed suicide,
the defendant mast satisfy toe jury, by a preponderance of competent
erideDce, that the injuries which caused death were intentional on the
j»rt of the assured : Walcott v. Metropolitan etc. Ins. Co., 64 Yt. ttl^
33 Am. St. Bep. 923, and note with the cases ooliected.

State v. Taylor.

{4B hofomAXA Annual, 1832.]

•0 u to make the alteration purport to be the act of another person.

FORGERY— AGENCY.— One who falsely assumes to act as agent
for the maker in th« execution of a note or other writing is not guilty
vt the forgery thereof.

FORGERY— AOENCY.— An instrument showing on Its face that
the person who executed it signed as agent for the maker cannot be
the rabject of forgery, although such agent acted without authority.

P. Breazeale, district attorney, for the appellant.

PiezBon ft Porter, for the appellee.

**" BREATJX, J. The defendant was indicted for forgsfj.
The note he is charged with haying forged reads:

''SeQ.aS. On or by the 16th day of November next, we, or
other ^*» of us, promise to pay J. P. Readhiner, or bearer, the
Rnn of sixty-nine dollars and thirty-eight cents for yalue re-
ceived of him, bearing eight per cent from date till paid.

"This, February 3, 1890. Henry Weber, Boston Thomas,
Adolphus Taylor, Mason Ray, Mat Beavers, Jr., Mat Beavers, Sr.,
Anderson Forley, Joe Forley, Jr., E. B. Taylor, J. B. Weaver.
'I was authorized to sign the above names. I secured the order.

'^. B. TAYLOR.''

He moved to quash the indictment, on the ground that the
facts charged do not constitute the crime of forgery. This mo-
tion was sustained by the district court. From the order quash-
ing the indictment the state appealed. Without brief or oral

Digitized by


352 State v. Taylob. [Louisiana,

argument the appeal was eubmitted for deeidoiL The defendant
is charged with having made an instrument purporting to be a
note signed by a number of persons. The facts, as charged, are
that he executed an instrument purporting on its face to be exe-
cuted by him as agent

Assuming that the facts are correctly charged, forgery is not the
crime the defendant has committed. Forgery is defined as the
making or altering of a writing so as to make the alteration pur-
port to be the act of another person. ' This definition does not
embrace the making of a note per procuration of the party whom
he intends to represent. The false assumption of authori^ is not
the forgery denounced by the statute, and, by falsely assuming to
act as agent, the maker of the instrument does not make the alter-
ation purport to be the act of another. It is his own unautho-
rized and wrongful act, and not the fraudulent falsifying of an-
other's name, as in forgery.

It was not a false making of another's signature. It did not
purport to be the signatures of the drawers personally, but their
signatures as written by the defendant acting as an agent. He did
not personate others and fraudulently write their names, but
stated on the face of the instrument that he was an authorized
agent. This did not constitute forgery, though he may have had
no authority in fact. The agency expressed takes the instrument
out of the category of false making in the sense of forgery.

1384 ^j.. Wharton, in his work on Criminal Law, eighth
edition, volume 1, page 668, says: "That to sign the name of
another, without authority, is forgery, when similitude is at-
tempted." There was no attempt made to imitate the signatures

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 40 of 121)