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of the drawers, or to impose by attempting to create the im-
pression that they had signed. To constitute the offense there
must be some attempt made to imitate a genuine instrument,
and the writing falsely made must purport to be the writing of
another. These elements of forgery are not proved by the in-
strument copied in the indictment.

From Archbold's Criminal Pleading and Practice, Volume 11,
page 819, we quote as pertinent: "If a man draw, accept, or in-
dorse a bill of exchange in the name of another, without his
authority, it is forgery. But if he sign it with his own name
per procuration of the party whom he intends to represent, it
is no forgery; it is no false making of the instmment, but
merely a false assumption of authority.*'

Mr. Bishop, in his Criminal Law, volume 2, page 689, If
equally dear and positive that '^dorsing a bill of exchange^



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July, 1894.] Tablbton v. Lagabdb. 868

under a false assumption of authority to indorse it per pioeiiz»i
tLon, is not forgery, there being no false making.''

The crime charged was false making and forgery. The facta
upon which the charge is based do not support the indictment.
In fine, we are persuaded, after an examination of a number of
authorities, that an instrmnent which shows on its face that the
person signed as agent of the drawer of a note cannot be the
subject of forgery. The act has not one of the essentials of the
crime of forgery — a false writing of an instrument apparentiy
genuine. The falsehood, if there is falsehood, is in the agency,
in omissions to act as agent, and not in forging an instrument.

It is therefore ordered, adjudged, and decreed that the judg-
ment appealed from quashing the indictment be tMrmt^,

F0BG£R7^A6ENCY.— In order to constitute forgery, the act done
must be performed with the intent that it shall appear to be the act of
another, or other than it really is. Hence, it is not foreery to sign
one's own name, though with a false pretense of authority to bind
another: Extended note to Arnold ▼. Cost, 22 Am. Dec. 30/. But in
Commonwealth t. Wilson, 89 Ey. 157, 25 Am. 8t. Rep. 528, and note,
it was held that forgery need not be the doine of an act in the name of
another. The offender majr be guilty of the udie making of an instru-
ment, although he signed his own name, if it is false in a material part
and calculated to indace another to give credit to it as genuine and
authentioy when it ia false and deceptive.



Tarlbton V. Laoardb.

[46 LOTnSIANA AimXTAL, 1368.]

APOTHBOARIBS-RBPUSAL TO PILL PBBSORIFTION.-^The
mere refusal of a druggist to flU preecrlptlona does not render him Ua«
ble in damagee to the physician who gives the prescriptions.

APOTHECARIES-SLANDER— REFUSAL TO PILL PRE-
SGRIFTION.^A druggist, while exercising his privilege of declining
to fill a physician's prescriptions, must abstain from any comments,
not based on good cause, calculated to convey impressions damaging
to the physician's character and standing as a professional man, and
If he impugns the physician's professional capacity without cause, he
must respond in damages.

8LANDBR-MALI0B, WHBN IMPLIBD.— Under the Loulstana
law maUce may be implied from any kind or form of words slanderous
In their nature, and damages may be allowed therefor without ezpreas
proof of malice.

W. J. Burke, for the appellant

Weeks ft Weeks, for the appellea.

^*^ MILLER, J. The plaintiff, a pliysiciaB, dafant of tlie
defendant, a druggist, damages for his refusal to fill plaintilFs

AM. Sr. Bsp., Vol XUX. -23



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854 Tarleton v. Laoarde. [Louisiana,

prescriptions and for slander. The defense is that defendant
was unable to fill the prescriptions^ and a denial of the slander
imputed to defendant. From the judgment of fifty dollars
against him, defendant appeals, and, answering the appeal, plain-
tiff asks that the damages awarded be increased.

It appears from the record the defendant did decline to prepare
two prescriptions of the plaintiff. In one a patent medicine
formed a component. The defendant seems to have been averse
to putting up prescriptions of which the patent medicine formed
a part. In his own language as a witness, he was unwilling to take
the responsibility of such a prescription, as he was not sure of the
composition of the patent medicine. There ip some testimony
that it is not usual to include a patent medicine as a component
of prescriptions, and there is testimony it is not infrequent At
least, this difference in the testimony of the physicians who testi-
fied deserves some consideration, in connection with defendant's
unwillingness to prepare the prescriptions. With reference to the
other prescription, **^^ the plaintiff's brief claims defendant
should be made liable because of his refusal to fill it, avowed in
his answer. But the answer is, that the prescription was not filled
for the want of the necessary ingredients and other causes. On
this branch of the case the propositions affirmed by the plaintiff's
case is, that a druggist is to be made liable in damages because he
declines to fill prescriptions. We cannot assent to this view. In
many cases the druggist may have the best reasons for declining to
fill prescriptions. As a chemist he may perceive or have cause to
suspect the physician erred in his prescription; or the druggist
may not have at hand the ingredients; or he may distrust his
ability to prepare the prescription, or other causes may disincline
the druggist to undertake filling the prescription presented to him.
Recognizing the room for all such causes, we cannot hold that the
mere refusal of a druggist to fill prescriptions furnishes any occa-
sion to hold him for damages to the physician who gives the pre-
scription. It does not appear from the testimony that in refus-
ing to fill the prescriptions the defendant used any language
derogatory to the plaintiff. True, the father of the child for
whom one of the prescriptions was given states the impression as
to plaintifT's professional capacity made on his mini by defendant
declining to fill the prescriptions was unfavorable. But it is quite
certain no such impressions could be derived from anything the
plaintiff said, and an impression arising solely from the defend-
ant's riffbt to decline lillinff the nresrp^tions obviously furnishes
no cause for plaintiff's action against defendant



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Juljt 1894.] Tarleton v, Lagabdb. 866

The Blander attributed in the petition to defendant was in the
course of a discussion between him and one of his fellow-citizens>
begun on the street and continued in a barber shop. It com-
menced with a request of defendant for information of the gentle-
man addressed, formerly a representative in the legislature from
defendant's parish, whether the law compelled a druggist to fill
prescriptions presented to him. The information given on that
subject did not suit defendant, seems to have excited him, and led
him to make observations offensive and im just to plaintiff, at least
in their tendency to affect those who were gathered by the ani-
mated and angry discussion, or to whom the observations might be
repeated. The defendant, exercising his privilege of declining to
fill plaintiff's prescriptions, should for that very reason have ab-
stained from any comments calculated to convey impressions
damaging to plaintifPs ^^''^ character as a professional man. On
the contrary, defendant engages in a public discussion on the sub-
ject of plaintiff's prescriptions, in which he derided plaintiff's
diploma, 1. e., he, defendant, would not give a straw for such a
diploma, and he further commented on one of plaintiff's prescrip-
tions as containing ingredients that might kill the child. It is in
proof that the plaintiff is a graduate of Tulane University Medical
Department and that he is a practicing physician. There is na
testimony to justify defendant's comments on plaintiff's prescrip-
tion, and there is, if possible, still less extenuation for defendant's
disparaging allusion to plaintiff's diploma. Our jurisprudence
rejects the common-law distinction, in actions of slander, of words
actionable per se, requiring no proof of damage, and other words
slanderous in tendency, but in respect to which the law exacts
proof of damage. Under our law malice, the essence of slan-
der, may be inferred from the words, and damages allowed
without express proof: Civ. Code, arts. 2315, 2316; Miller v.
Holstein, 16 La. 389; Feray v. Foote, 12 La. Ann. 894; Ca-
choix V. Dupuy, 3 La. 207; AUain v. Truxillo, 14 La. 298. The
application of defendant's remarks was well understood. They
were uttered publicly. Their natural tendency to affect plaintiff
injuriously as a professional man is obvious, and the mischief apt
to be done by such language is increased when it is considered that
defendant is a druggist in the community in which plaintiff is a
practicing physician. We have read with care the elaborate
opinion of the judge of the lower court. We think that, under the
circumstances, the judprment should be more than nominal. It is
a grave matter to assail without a semblance of cause professional



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356 Mattisb v. Consumbbs' Igb Mfg. Co, [LoukiaDai

reputation. In our opinion the judgment should be increBsed to
one hundred dollars.

It is therefore ordered, adjudged, and decreed that the Judg-
ment of the lower court should be avoided and annulled, and it
is now adjudged and decreed that plaintiflf recover from defend*
jBoii one hundred dollars, with costs in both courts.

SLANDER— IMPLIED MALICE.— Malice is implied from the wiU-
iu\ utterance of falsehoods concerning another, whereby injury is done
to his character: Callahan v. Ingram, 122 Mo. 855; 43 Am. Bt. Rep.
•583, and note. From langnage per se slanderous malice is inferred,
but this inference may always be rebutted by proof of the occasion or
other circumstances of justification: Jones v. Forehand, 89 Qa. 620;
32 Am. St. Rep. 81, and note with the cases ooUeoted.



Mattibb f^. GoNBUMBRs' loB Makufaotubino Ca

(46 LODXilAirA AmOTAL, 168Bi]

MASTER AND BBRVANT-LIABILITY FOR NEGLIGBNOB
OF vrCB-PRINCIPAL.— A master is liable to an inferior serrant for
Injuries receired from an explosion of a boiler in his factory caused by
the 1 allure of his chief engineer to Immediately extinguish the fire
and disconnect such boiler after notice of a defect therein, when auoii
failure is the immediate and proximate cause of the accident.

MASTBR AND SBRVANT-FBLLOW-SBRVANTB, WHO ABB
KOT.— A coal passer at the boilers in a factory la not a fellow ae tv a nt
with the chief engineer in charge thereof.

MASTBR AND 8BRVANT— VIOB-PRINOIPAD-LIABILITY
FOR NBGLIGENCE OF.— A chief engineer who is in charge and baa
the management of his employer's factory with full control of the
firemen and coal passers employed therein, and full authority to pro-
vide for their safety, is a vice-principal, who, in the absence of his
•employer, must supply safe machinery and keep it in repair. Hit fail-
tire to perform this duty renders hla employer liable to an Inferior
«nployee injured thereby.

MASTBR AND SBRVANT.— KNOWLBDGB OF YICB-PRINCI-
FAL that machinery under his control la dangeroualy defeettre la the
knowledge of the princlpaL

DAMAGBS-DBATH OAUSED BY NBGUGBN0B.-One suing
to recover for the death of another caused by negligence, la entitled
-to such damages only as the deceased himself could hare reeoyered
«t the moment when he died; that la, compenaatlon for the tnllMni
«ndnred.

H. H. Hall, for the appellant

J. Q. Flynn and W. B. Lancaster, for the appellee.

*"• BREAXJX, J. The plaintiff sues for the recoTeiy of dam-

4ige8 sustained by the death of his son, caused by the explosion of
« boiler. The defendant admits that Frederick Mattise, the son
of plaintiff, was killed by an explosion of a boiler owned by the



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I>ea 1894] Mattisk v. Consumebs' Ice Mra. Ca S67

oompany. The defense ifl a denial of all liability^ and that it, or
its employees, were guilty of negligence; and it further allege*
that if there was negligence, its employees were the f ellow-senranta
of the defendant.

In a supplemental answer, the defendant sets up and avers that
plaintiff proposed, if the defendant would pay the funeral charges,,
he would accept the payment in full settlement of all claims that
he might have for damages. The court a qua decided that the
plaintiff is not entitled to recover on his own account for loss of
support, as the relations between himself and his son had not been,
of a character to justify the belief that he would have looked to or
received from him any relief or support had he lived. Upon the
other ground, as exercising the action of his son, which survived
in his favor, he was allowed the sum of two thousand five hundred
dollars.

iB»T rphe following are the facts as we simimarize them: The^
boilers were iron boilers. In the afternoon of the 25th of June^
1892, the fireman informed the engineer in charge that a '^g*^^
had formed on the boiler. The chief engineer testifies that he-
ordered this fireman to put out the fires and put the boiler out of '
service. He also states that the boiler had ^^agged'^ previously;^,
upon notification, he gave it a critical examination and put it into^
service for inspection; that it is customary, whenever a boiler
'Twigs," to put out the fire; to have it examined and the *T)agf^
driven up or cut out and a new sheet put in. A bag in the boiler
is formed by sediment settling on the inside, which prevents the*
water from touching the shell; the result is the boiler expands
wherever the sediment settles, and the entire thickness of the sheet
is forced out by the inward pressure. The weight of the evidence
is that a 'T)ag'' in a boiler should never be neglected, as neglect
may be attended with serious accident; that the fire should be-
immediately taken out and the boiler disconnected. About three
hours after the fireman had reported to the engineer and superin-
tendent in charge that there was a 'T)ag'' in the boiler, the explo-
sion occurred and killed the son of plaintiff, who was a coal-passer
at the boilers. The evidence does not disclose that the fireman
complied with the order, and that the boiler was '.'cut off*' or sepa-
rated from the battery of boilers of which it formed part by closing-
the connecting valves and putting out the fire.

The chief engineer. Smith, superintended and directed the am-
monia department of the plant, and had charge of the whole
factory. He had the authority to employ and discharge the fire-
man and other employees. The deceased was his subordinate^



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358 Mattibs v. Consumers' Ice Mfo. Ca [Louisianfti

under his immediate direction, by whom he had been employed
and might be discharged. The president of the company testi-
fies that a superintendent of the defendants ammonia engine and
boiler was succeeded by this engineer, who was promoted from the
position of second to that of chief engineer.

As to the defendant's payment of the funeral expenses, the
president, as a witness, says that an aunt of the decedent called en
him and said the plaintiff was in Covington, and asked him if he
would pay the funeral expenses, and that if he did they would re-
quire nothing ^*"* more. The company did defray the expenses
of the funeral. The testimony does not establish Uiat any agree-
ment was entered into of compromise regarding damages. We
will discuss the issue raised in the order in which we have stated
the facts of the case.

It is evident that had the steam been "cut off** by closing the
valves and thereby separating the boiler that exploded from the
other five of the battery, the explosion would not have taken
place. After those hours a boiler out of service will not explode.
'There is evidence tracing the explosion to the *T)ag.** A witness,
;a boilermaker, whose testimony is not contradicted on that point,
was satisfied that the ^^ag** was the cause. The negligence in not
extinguishing the fire and disconnecting the steam is not less be-
cause an imexecuted order is said to have been given to the fire-
man. Empty orders will not suffice.

It was the duty of the engineer, as he had done on previous oc-
casions, to examine the boilers and exert due precaution against
an accident. It was not shown that the engineer's authority,
which was really that of a superintendent, was at all felt. He
controlled the labor, or at any rate it devolved upon him to con-
trol the labor, in the departments under his charge (in fact of the
vhole plant).

The judge of the district court, who heard the witnesses, says:
*'A Tbag,* that is to say a local distention, took place in one of the
boilers, and about three hours later the boiler exploded. That
Smith, the engineer in charge, was informed of the Tbag* at the
time that it appeared and had ample opportunity to have had the
boiler cut out, that is to say disconnected from the other boilers
and relieved of steam, and to have had the fires drawn from under
it, and that it was his duty, after having been inlormed of the "bag,*
to have immediately taken those measures of precaution. That
whilst said Smith claims to have given orders to Pricke, the fire-
man, to extinguish the fire and put the boilers in question out of
service, it does not appear that he saw that his orders were exe-



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Dec 1894.] Mattise v. Conbumebs' Icb Mro, Ca 859

cated, or as a matter of fact, that said orders were executed, but it
appears, on the contrary, that the boiler which exploded three
hours after the ^«"** TMig* was the boiler in which the Twigging'
had taken place, and my conclusions, not only from direct testi*
mony to that effect, but from evidence as to the nature of a T)ag'
and as to the surrounding circumstances, is that the Tuig' in
question was the point from which the break in the boiler began
when the explosion took place, and that said 'bag' was the immedi-
ate cause of the explosion.''

The defendant's second ground is urged in the alternative; that
is, if there was any negligence the employees were the f ellow-ser-
yants of the decedent, and that the company cannot be held liable
therefor. Distinction may well be made in case of corporations
from that of individuals. Corporations must necessarily act
through agents, who may be regarded as the representative of the
corporation when acting within the scope of their authority.

It must be borne in mind that the decedent was performing his
duty as a servant under the direction of a superior; it was incum-
bent upon him to obey. It was not right in the agent to render
the service dangerous by his negligence. The employee had a
right to assume that his superior would exercise proper care.
The company had given to the employer of the decedent ample
authority.

He states as a witness, and his statement is not contradicted:
*<The company gave me full power to act, and I used every precau-
tion to prevent accident." Having been placed in this position
of trust, he may fairly be considered as the representative of the
corporation in operating the factory and in all acts needful to the
protection of the company's servants. In superintending the coal-
passer's work and that of the fireman, he was not their fellow-ser-
vant Thus authorized, he was bound to exert such intelligence,
skill, and experience as is to be required from one to whom the
safety of others is intrusted: Darrigan v. New York etc. E. B. Co.,
52 Conn. 305; 52 Am. Bep. 590.

This court has adopted the decision of Chicago etc. Ry. Co. v.
Boss, 112 U. S. 377, in which the doctrine is announced ''that a
conductor having the entire control and management of a railway
iMO train occupies a very different position from the brakeman,
the porters, and other subordinates employed. He is, in fact, and
should be treated as, the personal representative of the corpora-
tion, for whose negligence it is responsible to subordinate servants.
This view of his relation to the corporation seems to us a reason-
able and just one, and it will insure more care in the selection of



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860 Mattise v. Consumbbs' Icb Mfo. Co. [Lomnana,

Buch agentSyand thus give greater security to the senrants en-
gaged under him in an employment requiring the utmoat Yigil-
anee on their part and prompt and unhesitating obedience to his
orders/*

In that case the court also holds that '^whenever a train or en-
gine is run without a conductor^ the engineman thereof will also
be regarded as conductor, and will act accordingly. The argu-
ment is a short one. The conductor of a train represents the com-
pany, and is not a fellow-servant with his subordinates on the
train.*'

When applied to the case at bar, we find analogy in that the
engineer had charge of the ice factory, and that the fireman had
charge of the boilers and the pumps in the boilerroom,and that he
was under the direction and superintendence of the chief engineer,
who represented the company in operating the factory.

It is not the mere fact that the chief engineer had control oyer
the fireman and the coal-passer that destroys the relation of fellow-
servants between him and the servants, but the additional &ct
that he succeeded the superintendent and vice-principal, George
Smith; that he had full authority to provide for the safety of the
servants and had the management of the factory, and in view of
the further fact that it is the duty of the master to supply ma-
chinery and tools and to see to their repair, and that they are kept
in good repair.

When it was discovered that the boiler was out of repair and
out of condition, it became the duty of the master, and in his ab-
sence of the vice-principal, the chief engineer in charge of the
factory, to attend to its repair and restore it to a safe condition.
The case from which we have quoted was cited with approval in
Chicago etc. Ey. Co. v. Boss, 112 TJ. S. 377, in Towns v. Vicksburg
etc. E. E. Co., 37 Ijbl. Ann. 630; 55 Am. Eep. 508.

In Van Amburg v. Vicksburg etc. E. E. Co., 37 La. Ann. 656,
55 Am. Eep. 517, this court said: "The defense that no recov-
ery can be had because, even admitting that the fault lies with
the conductor, his act was that of a fellow-servant, is no longer

tenable to the extent formerly admitted The case of

Chicago etc. Ey. Co. v. Eoss, 113 TJ. S. 377, has made an inroad
on jurisprudence in the right direction.*'

i«^i Our examination of the authorities enables us, we think,
to quote the following as a correct statement by Bailey in his
work entitled "Master's Liability for Injuries to Servants,** with-
out consulting this court to the full extent of the principles of the
decision to which allusion is made: ^^n the federal courts, the



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Deo. 1894.] Hattisb v. Consumers' Ice Mfg. Ca Ml

courts of New York^ WisconsiB, Maine, and-many others, fhe doo»
trine is that the master is personally present all the time, even in
the performance of actual labor; while in Massachusetts and some
other states the extreme is not held in the case of corporations*
but rather, when the master has used due care in the first in-
stance, and provided suitable and reasonably safe appliances,
and provided suitable means for keeping and maintaining them
in proper repair, and employed competent servants to see that
the means were properly used, it had fulfilled its duty.**

We hold to the rule laid down by the first courts referred to,
that is the federal and other courts, to this extent only: That the
knowledge of the vice-principal, who is present, that machinery
was dangerously defective is the knowledge of the principal.
The one in charge of a factory should be bound to guard against
threatening accidents. Business enterprises extend beyond a
continent and at great distances from the domicile of the owners
securely managed by faithful agents and skilled men. Their
knowledge that the use of machinery is unsafe is notice to the
owner.

Finally the defense urges if there was negligence, that the
companjr^s payment of the funeral expenses was accepted by the
plaintiflf in satisfaction for all claims. The conversation by the
father of the deceased and the president of the company falls far
short of a compromise, or of any understanding respecting any
claim for damages. There was nothing said regarding the acci-
dent and damages.

The testimony of other witnesses does not establish an
abandonment of any claim, so as to bind the father and plaintiff.



Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 41 of 121)