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He may have expressed himself as satisfied with the company's
generosity in paying the expenses; his utterances have not the
effect **^ of preventing him from recovering a right in regard
to which it does not seem he knew anything. The fact that the
company paid the funeral expenses of its late servant reflects to its
credit, and should not prejudice the rights of plaintiff or de-

As to the quantum of damages, the plaintiff is only entitled to
such damages as the deceased himself could have recovered at the
moment when he died; that is, compensation for the suffering he

It is not possible to determine with great precision the amount
of damages that should be allowed for such suffering.

In the case of Poirier v. Carroll, 35 La. Ann. 699, they were

Digitized by


362 Mattise v. Gonsumbbs' Ice Mfo. Ca [Loaisiana,

limited to two thousand five hundred dollars. The deceased had
suffered about twenty-four hours.

In Van Amburg y. Yicksburg etc. B. B. Co., 37 La. Ann. 656,
85 Am. Bep. 517, the court said: ''The death was immediate, if
not instantaneous. No arithmetical calculation can compute the
intensity of that agony that oyerwhelms the victim of such an ac-
cident when he confronts death, but a sum has been adopted, and
its apportionment is not determined by fixed rules.'' The judg-
ment of the district court was reduced to eighteoi hundred dol-

In the case of Towns v. Yicksburg etc. B. B. Co., 37 La. Ann.
636, 55 Am. Bep. 508, the sufferings were endured about four
hours before death; the amount of one thousand dollars was al-
lowed as damages. In this case the sufferings were about twelve
hours. We think the amount allowed should be reduced to one '
thousand dollars.

It is therefore ordered that the judgment appealed from be
amended by reducing the same to one thousand dollars and legal
interest from the date of the judgment of the district court, and
that as amended the same be affirmed, appellee paying the costs
of appeal.

Behearing refused.

LIGENGE OF VICE-PRINCIPAL.— The acts of a person authorised
kyy the master to perform a daty which the master owes to his servant,
in 80 far aa they pertain to that duty, are acts of the master, and when
the servant is injured bv reason of a failure to perform it. the master
cannot escape liability by setting up that the duty devolved upon a
fellow-servant of the person injaredf: Oheeney v. Ocean S. S. Co., 92
Ga. 726 ; 44 Am. St. Rep. 113, and note. Bat a servant sustaining an
injury from the negligence of a superior servant engaeed in the same
general business cannot maintain an action against tne common em-
plover, although he was subject to the control of such superior agent
ana could not guard against his neglisence or its consequences: Keenan
V. New York etc. R. R. Co., 145 N. Y. 190; 45 Am. St. Rep. 604, and

the death of a person caused by the wrongful act of the defendant, the
basis of recovery is the proof oi pecuniarv damage caused by the wrong-
ful or negligent act of the defendant: Klepsch v. Donald, 4 Wash. 436;
81 Am. St. Rep. 936, and note. See, also. Pierce T. Conners, 20 Col*
178; 46 Am. St. Rep. 279, and note; and especially the extended note
to Louisville etc. Ry. Co. v. Goodykoonti, 12 Am. St. Rep. 87K«

Digitized by


1896.] Statk v. Vallbby. 868

State v. Vallbrt.

[47 lOVmUXA, ANNUAL, 182.]

THRBAT&— The declaration of one indicted for liomiclde, made
shortly prior to the killing, that he would put fourteen buckshot Into
the deceased, being complete as to the purpose, is admissible in eYi«
dence, where there is nothing to indicate that it was subject to any.
qualification, though the witness cannot recollect all that was said.

OF DBOBASBD— PROOF OF OVERT ACT.— Testimony, in a murder
case, to show the dangerous character of the deceased is admissible
only when self-defense is set up and the accused prores a hostile dem«
onstration on the part of the deceased menacing the life of the ac-
cused. Whether such overt act of the deceased was proved must be
determined by the appellate court from the bill of exceptions and the
qualifying statement of the trial judge.

granting of new trials in criminal cases rests largely in the discretion
of the trial Judge, a new trial upon the ground of newly dlscorered
eyidence will not be allowed, unless the bill of exceptions shows
clearly the requisite basis for the application.

J. F. Ariail and H. H. White^ for the appellant

M. J. Cunmngham, attorney general^ and Phanor Breazeale,
district attorney^ for the appellee.

*®" MILLER, J. The defendant, convicted and sentenced
for murder, appeals to this court, relying on several hills of ex-

One of these hills is to admission of testimony of the expres-
sion of the accused, that he would put fourteen buckshot into the
deceased. The objection urged to this testimony was, that form-
ing part only of the declaration of the accused, it could not be
admitted, and it was hearsay. It appears by the bill that the
wife of the deceased overheard the remark of the accused that he
would put the shot into the deceased. The remark was made
in an adjoining room of the house, the common dwelling, we in-
fer, of tiie accused and the deceased. The witness states she
cannot recollect all that the accused said, but is quite distinct as
to the remark in question. The general rule is, that the confes-
sion sought to be urged against the accused ^®* must be used in
its entirety, so that he may have the benefit of any exculpation
or explanation his whole statement may aflford. Undoubtedly,
where the confession offered was interrupted, or there are cir-
cumstances suggesting that the confession or declaration on the
point involved was incomplete and would be modified, if all that
the accused said was before the jury, in all such cases the portion
of the statement offered should be excluded. Here the declaration^

Digitized by


864 Statb v. Vaixebt. [Looialiiiai

preceding by only a abort time ibe killing, appean to be eom-
plete as to tbe purpose. There is nothing to suggest or afford
any basis for the inference of any qualification or modificatioiL
We think the tendency of the authorities in such cases is to let
the testimony go to the jury^ and that the objection is only to its
effect, of which the jury is to judge.

Another question raised by the exception is as to ibe exclusion
of testimony offered by the defendant to show the dangerous char-
acter of the deceased. Such testimony has no tendency to
justify killing, except when self-defense is set up and the accused
proves a hostile demonstration on the part of the deceased, men-
acing the life of the accused. Then proof of the dangerous
character of the deceased is admissible, as tending to show the
reasonable belief of danger under which the accused killed the
deceased. Testimony of character is, hence, wholly irreleTsnt,
and should be excluded, unless the requisite basis, usually termed
the overt act of the deceased, is first proved: Wharton's Criminal
Law, sees. 69, 70. This court has no means of determining
whether this requisite basis has been laid, except from the bill of
exceptions and the qualifying statements of the trial judge. It
may be said that the weight attached to the statements in the bill
tends to impair the efficacy of the appeal, presenting questions of
law dependent on the facts developed before the trial judge.
But none the less, this court, in determining such questions,
must be governed by the bill, with the additions of the trial
judge. Of course, the bill always claims the overt act was
proved. Now, in this case, the statement of the trial judge is
that no basis existed to permit the introduction of character tes-
timony, and the asserted overt act of the deceased was, in &ct,
an effort to defend his life. We are bound by the bill, and, thus
tested, the testimony was properly excluded: Const., art 81; State
V. Miller, 36 La. Ann. 158; State v. Kervin, 37 La Ann. 782;
State V.Jackson, 87 La. Ann. 896; State v. Ford, 37 La. Ann. 443.

Under another bill it is pressed upon us that a new trial should
*®^ have been granted on the ground of newly discovered evi-
dence. As we glean it from the bill, testimony was given by the
state as to the kind of coat the accused wore the night of the
offense, and this, it is charged in the bill, surprised the accused.
The newly discovered evidence the bill attributes to witnesses
who, if permitted, it is claimed, will swear, one, that the accused,
in prison that night, wore a different kind of coat, and that coat
*Vas as it is now cut, but the cuts seem to have become longer
through wear," and both witnesses, it is claimed, will give testi-

Digitized by


Statb v. Vallbbt. 865

DOiiy tending to show {here was in the prisonei's cdl no other
but that of the kind different from that to which testimony was
giTen on the triaL The grounds of the application to procure
testimony of those near at hand, and with whom the accused had
been in contact during his confinement awaiting trial, does not
impresB ns fayorably. Nor did it the trial judge. It is our
jniispradence not to reyerse the rulings of the trial judge^ unless
the baas for sach reyersal is clearly shown.

As to the other point presented by the bill — ^i. e., the right of
the trial judge to appoint a district attorney in this case — ^we
think the power is clearly conferred by the act No. 74 of 1876.

It is therefore ordered that the sentence of the lower court be

CEASED.— Upon the trial of a mnrder ease, the declarations of the
gi«mer ai&tecedent to the mnrder are admissible: Btate t. Ridgely, 2
Har. AMcH. 120; 1 Am. Dec. 872, and note; note to Stitt t. State, 91
Ala. 10; 24 Am. St. Bep. 853; Palmer t. Peoide, 188 Ul. 866; 82 Am.
8t. Bep. 146. Declarations made by the accused two days prior to the
lolling, upon seeing a penon who had been a constable, that **I belie ire
be iBgobg to arrest me," and. drawing a revolver, adding, **If he tries
to aneet me» he will bear from this,'' are admissible as showing malice
or aaimos: Palmer ▼. People, 133 111. 856; 32 Am. St. Bap. 140. So
i threat made by the prisoner a few minntes before the commission of
the crime, '*that he wonld kill somebody before twentv-fonr hoars," is
admiMble for the same purpose, althongh not expressly directed to the
(leceuad: Hopkins t. Commonwealth, 60 Pa. St. 9; 88 Am. Dee. 518.
8oa threat made a few moments before the shooting, that he wonld

*'kill the son of a ," is part of the res gest», though the thrsat did

not difclose the name of any person, it being established by the evi«
denee that the person so threatened was the deceased : State v. King, 9
Mont. 445. Evidenoe of the bad character of the deceased is admis-
■Ue in trials for mnrder only when It is shown prima fade that the
aeeued had been assailed, or some act on the part of the deceased was
done which would arouse a reasonable belief of imminent peril to life
or limb when received and considered in oonnection with or illustrated
hf Boeb diaraeter: Gamer t. State, 28 Fhu 118; 29 Am. St. Bep. 288;
AOT V. State, 100 Ala. 4; 40 Am. St. Rep. 17.

for t new trial. unleaB it is shown that it could not, by due diligence,
bave been wodooed at the lint trial : Brown v. Mitchell, 102 N. O. 847 ;
11 Am. St. Rep. 748, and note; Barrett t. Dodfe, 16 B. L 740; 27 Am.
8t. Bep. 777.

Digitized by


866 Gbaham v. St. Chablss Steeet B. B. Ca [LouifluuiA,
Graham v. St. Charles Street Railroad Ca

[47 LOVJSUlfA ANNUAL, 214.]

to another, without Justifiable cause and with malicious purpose to
Inflict it, is of itself a wrong.

TORTS-LIABILITY FOR DAMAGE.— Every wrongful act of a
man which causes temporal loss or damage to another, subjects him
to an action upon the case.

OTHER.— While a person has an absolute right to refuse to have busi-
ness relations with any person, though without reason, or as the result
of whim, caprice, prejudice, or malice, yet he has not a right, from
pure motives of malice, to Influence another person to do the same
thing without incurring legal liability, which would, however, de-
pend upon the varying conditions, relations, and special facts of each
particular case.

engaged in a lawful business, is earning his livelihood by the patron-
age of others, it is unlawful for a railroad corporation and its fore-
man, having the power of employing and discharging large numbers
of persons, by threats of nonemployment or discharge without Justin
flable cause, but prompted solely by a malicious and wanton intent
and design to injure the plaintiff, to so use their power of employ-
ment and discharge upon persons seeking employment from them, or
already in their employ, as to cause those who are already dealing
with the plaintiff to desist from further doing so, or to prevent those
who are inclined to deal with the plaintiff from doing it.

Walter H. Rogers and William B. Lancaster, for the appellant
Harry H. Hall, for the appellee.

^^^ NICHOLLS, C. J. Plaintiff seeks to recover a judgment
against the St. Charles Street Railroad Company and Thomas
Newman in solido for five thousand dollars. Defendants filed an
exception of "no cause of action,*' which having been sustained
and the suit dismissed, plaintiff has appealed.

The action is grounded upon the following allegations: "That
Newman is the foreman of the company, and as such has the
power of employing and discharging its employees; that for a
considerable time, less than one year, he has persistently abnsed
said power in making use of it for persecuting petitioner and in-
juring him in his business; that petitioner is proprietor of a sub-
stantial grocery store at the comer of Baronne and Eighth
streets of New Orleans — the stable and buildings of said com-
pany occupying another comer of the same street intersection;
that Newman has frequently and continuously instructed the
men under his control in said capacity that they must not deal
at petitioner's store, and that he would discharge them if they
did; that he especially directed such commands and threats to

Digitized by


1895.] Grahah v. St. Charles Street R. R. Ca 867

Heniy Rigner, Joseph Santos, and Lee Halliday in the early
part of the year 1893, says in the months of Fehruary and March
and thereabouts, and to various other persons within the past
eight months; that he did discharge one Andrew Heffner from
the employ of said company, on or about the 19th of March,
1893, for no other cause than that said Heffner had manifested
a friendship for petitioner by speaking in his favor; that the
animus of all this was that of ill-will against petitioner and ***
the deliberate desire to injure him; that in all said conduct and
actions he was within the scope of his employment by said com-
pany; that in many other ways said Newman has manifested
his ill-feeling and malevolence toward petitioner; that petitioner
has suffered loss in his business to the extent of one thousand
dollars in the patronage thus driven away and diverted, which
he would otherwise have enjoyed; that petitioner has also suf-
fered great annoyance and himiiliation from the notoriety which
their persecution has obtained in the neighborhood through the
openness with which it was carried on and from the ridicule
thereby engendered, the injury from which he estimates at not
less than five hundred dollars; that he is entitled to punitory
and exemplary damages in the further sum of three thousand
five hundred dollars for said tortious, wanton, malicious, and
improvoked persecution/*

Defendants* counsel in his brief refers us to the case of Orr
v. Home Mut. Ins. Co., 12 La. Ann. 255, 58 Am. Dec. 770, as
containing a clear exposition of the principle upon which this
defense rests. He says: "Defendants had the legal right to
discharge their servants arbitrarily and without cause. The ex-
ercise of a legal right gives no cause of action against them. If
the plaintiff be injured it is damnum absque injuria. No au-
thority has been suggested in opposition to the principle that
a man has an undoubted right to employ labor and fix the
terms and conditions of that employment in his discretion. In
the instant case, defendants had the absolute legal right, the
exercise of which was proper in the conduct of their business,
to prohibit their employees from going to grocery stores or bar-
rooms, or irom dealing in any way or with any person in such
manner as might be prejudicial to the interest of their business.
They had the legal right to insist upon abstention in dealing as
a condition precedent to their employment or retention in ser-
vice. If the employees did not see fit to comply with these
restrictions, they were at liberty to leave the employment
They were not coerced in any sense of the word. They were

Digitized by


868 Gbaham v. St. Chableb Street R. R. Co. [Louiaianai

free agents. They could have continued dealing with plaintifl
if they saw fit, but they could not so deal and remain in the em-
ployment of the defendant company. Defendants were exercia-
ing a legal right/'

The plaintiff in this case does not appear before us dther as
one who, having sought employment from defendants, and been
refused by reason of what he alleges to be imreasonable, unwar-
rantable requirements '^^ at his hands as conditions prece-
dent to being taken into service, claims damages from defend-
ants, nor as one who, having been employed by the defendants
under circumstances such as to have legally authorized the em-
ployer, at any moment and without causes assigned, to discharge
him, claims that he has legal ground of complaint, for the rea-
son that the discharge was arbitrary, wanton, and malicious.
Had this case presented features of that kind, the arguments
which counsel makes would be unanswerable. A complainant,
imder such circtunstances, would find himself met by the princi-
ple which has taken the shape of a maxim, '^eminem laedit qui
jure sue utitur/'

The issue before us is whether, while the plaintiff, engaged in
a lawful business, is legitimately earning his livelihood by and
through the custom and patronage of others, the defendant, a
corporation, and its foreman, having the power of employing
and discharging large numbers of persons, can, without incur-
ring legal liability therefor, without justifiable cause, and moved
solely by a malicious and wanton intent and design to injure
the plaintiff, use their power of employment and discharge upon
persons seeMng employment from them, or already in their em-
ploy, so as to cause those who are already dealing with the
plaintiff to desist from further doing so, and those who would
desire to do so from carrying out their wishes by threats of non-
employment or discharge. In so doing the defendant would not
only control their own will, action, and conduct, but forcibly
control and change, from pure motives of malice, the choice and
will of others through fear of nonemployment or discharge.
This will and power of choice both the plaintiff and the parties
themselves are entitled to have left free, and not have coerced,
in order simply to work the former damage and injury.

In Longshore etc. Pub. Co. v. Howell, 26 Or. 527, 46 Am. St
Rep. 640, the court said: ^very man has a right to require that
he be protected in his property rights^'; and quotes approvingly
and correctly a citation to the effect that ^he labor and drill ol
the workman or the professional man — ^be it of high or low de-

Digitized by


1895.] Graham v. St. Chablss Stbeet R. B. Oa 869

gree— fhe plant of a manafactnrer, the equipment of a fanner^
the inyestiiiezits of commerce, are all in equal sense property.*'

In Delz Y. Winfree, 80 Tex. 400, 26 Am. St. Bep. 766, the
court said: 'QSyery man has a right to use the fruits and ad-
yantagea of his own enterprise, skill, '^^ and credit. He has
no right to be protected against competition, but he has the
right to be protected from malicious and wanton interference,
disturbance, or annoyance. If the disturbance or loss come as
a result of competition, or the exercise of like rights by others,
it is damnum absque injuria, unless some superior right, by con-
tract or otherwise, is interfered with. But if it comes from
merely wanton or malicious acts of others, without the Justifica-
tion of competition or service of any interest or lawful purpose,
it then stands upon a different footing.''

In the case at bar defendant has committed the error of en-
larging a right into a wrong, and applying to it the maxim,
'^eminem laedit qui jure suo utitur." 1^ dealing with the
question before us, we could entirely disregard, as a mere inci-
dent or accident of the case, the particular instrumentality by
and through which the alleged diunage and injury to plahitifl
was inflicted. If it was accomplished under circumstances such
as to give rise to legal liability, it would matter little whether it
was through the power and influence which an employer can
bring to bear upon the conduct and actions of his actual or prot-
pectire employees or through some other means.

For the purposes of this opinion, we have taken up and fol*
lowed the line of discussion and argument adopted and pre-
sented by both sides, and passed upon the general legal propo-
flition advanced by plaintiff and disputed by defendant, with-
out subjecting plaintiff's petition, as to its exact language and
arrangement, to the strictest roles of pleading. From that
standpoint it is open to some criticism, but we have viewed it as
substantially raising the issues presented in the briefs.

We do not undertake to lay down any general rule by which
should be ascertained and tested the right of one man to control
and direct, against his will, the action and conduct of another,
to the injury and prejudice of third persons, under the different
relations and varying conditions of life. We do not mean for an
instant to say that defendants may not, on the trial of this case
upon the merits, justify any conduct which they may have pur-
sued in respect to the plaintiff. We simply say that the whole
matter should be thrown open to inquiry and investigation.

In the case of Delz v. Winfree, 80 Tex. 400, 86 Am. St Bep.

AM. Si. BOm Vou XLIX.»a4

Digitized by


870 Graham v. Bt. Chablbs Street R. R. Ck). [Louisiana,

755^ counsel laid down a proposition which the court said might
be conceded as correct, to the *^® effect that "a person has an
absolute right to have business relations with any person whom-
soever, whether the refusal is based upon reason or is the result
of whim, caprice, prejudice, or malice, and there is no law which
forces a man to part with his title to his property,'* but it de-
clared that ''the privilege here asserted must be limited, how-
ever, to the individual action of the party who asserts the
right. It is not equally true that a person may, from such mo-
tives, influence another person to do the same. If, without
such motive, the cause of one person's interference with the
property or privilege of another is to serve some legitimate right
or interest of his own, he may do acts himself, or cause other per-
sons to do them, that injuriously affect a third party, so long as
no definite legal right of such third party is violated. In the
case of Walker v. Cronin, 107 Mass. 562, it was recognized to be
a general principle that "in all cases where a man has a temporal
loss or damage by the wrong of another, he may have an action
upon the case to be repaired in damages. The intentional caus-
ing of such loss to another without justifiable cause, and with
malicious purpose to inflict it, is of itself a wrong."

We are of the opinion that the exception of no cause of action
should have been overruled, and the parties should have been
made to go to trial on the merits. It is ordered, adjudged, and
decreed that the judgment appealed from is annulled, avoided,
and reversed, and that the exception of no cause of action filed

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 42 of 121)