Abraham Clark Freeman.

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denying the existence of the corporation. It will be found that
in such cases the estoppel has rested on conduct of the corporation
which made it inequitable for it to avail of the estoppel, and it
siTikes us, if there is any room in this case for any estoppel, it
would be that arising from defendants taking plaintiff's money
on deposit as bankers with no license to do that business. It
would be, in our view, a palpable wrong to plaintiffs if they were
not precluded from enforcing against defendants the liability,
announced in express terms by our statute and with equal dear-



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398 Williams v. Hewitt. [Louisiana,

ness by the commercial law^ that unincorporated bankers shall
be liable to the full extent of their engagements: Bey. Stats.,
sec. 282; Story on Partnership, sees. 77, 164; Angell ft Ames on
Corporations, sees. 41, 591. Estoppels in favor of corporations
have been placed on dealings with them resulting in some bene-
fit or advantage obtained from the corporation, and, very natu-
rally, it has been held that the party holding such advantage or
benefit could not dispute the resulting liability by denying the
existence of the corporation when sued by it on his obli-
gation. It is in great part the long line of cases of estop-
pels against or for corporations, or asserted corporations, all
resting on some basis of conduct or of benefit obtained,
or other cause forbidding as inequitable the estoppel attempted
to be invoked, from ^^^®* which the defendants claim to derive
support for the estoppel of conduct they plead. These cases,
cited in defendant's brief, have had our attention, and are cov-
ered, we think, by the comment we make. Thus in Douglas
County V. BoUes, 94 XJ. S. 104, it was held the corporate exist-
ence could not be denied by its debtors; the same principle is ap-
plied in another case cited by defendants of suits to enforce stock
subscriptions: Casey v. Galli, 94 XT. S. 680; and there are simi-
lar types. The case of Wallace v. Loomis, 97 XT. S. 146, affirms
that corporate capacity assumed to obtain a standing in court
cannot be afterward denied. Another phase of estoppel having
some affinity to defendants' case is that of a creditor selling to a
corporation in progress of formation when the goods were sold,
and the organization completed after, of all of which the credi-
tor was fully advised when he sold the goods; in the suit
brought by him against the individuals of the corporation, it
was very properly held he was estopped by the explicit communi-
cation to him, arising from, the transaction itself and the cor-
respondence, that he was dealing with an inchoate corporation,
and was to rely alone on its responsibility: Whitney v. Wyman,
101 XT. S. 392. In these and similar cases, in which any dispute
of the corporate existence has been deemed precluded, we can
find nothing to support defendants' contention. The plaintiffs
have obtained no benefit or advantage from defendants, nor done
any act or pursued any line of conduct by which defendants have
been prejudiced, or at all inconsistent with plaintiffs* suit to ob-
tain their money from those who took it on deposit. The plain-
tiffs put their money in defendants' bank under the usual obli-
gation of those who received the money to return the deposit



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Juoe, 1895.] Williams v. Hewitt. 899>

when called upon. We can find no estoppel aricdng ont of this,
transaction to defeat the plaintiff.

Nor do we think the other estoppel urged on ns rests on Buy
better basis. It is, that in the suit of Hewitt, one of the present
defendants, against Mrs. Williams, the present plaintiff, she
urged that the notes and claims on which she was sued belonged
to the Traders* Bank, of which he was preeident. It was a
fruitless attempt of a debtor to deny the plaintiffs' title to notes
and claims assigned to him, which he had no interest to question.
The defense failed, and because of this defense it is now urged
she cannot sue the defendants for her deposit. In the first place
the averment by Mrs. Williams that Hewitt was president of the
Traders' Bank in no manner *^* admits it was a corporation.
The principle she asserted, that one could not acquire, individu-
ally, notes or claims that came into his hands, or in his fiduciary
capacity, might as well be said of the president of a private bank
as of a corporation. The averment admits nothing bearing on
this case, and, besides, a means of defense overruled in a past
litigation will not, except under peculiar circumstances, pre-
clude the facts passed on in the previous litigation from use in a
future suit.

We have given the case in all its aspects careful attention, asd
in our view there was no defense. If we have not noticed all
phases of the able discussion of the defendants, it is because the
views expressed dispose of the case.

It is therefore ordered, adjudged, and decreed that the judg-
ment appealed from be affirmed, with costs.

DEFECTIVB OR IMPERFECT CORPORATIONS — LI ABILITY
OF MEMBERS— ESTOPPEL.— Many respectable authorities hold that
members of corporations who do not oompiy substantially with the re-
Quirementa of tne law in effecting their organization are individnally
hable, and this liability is sometimes imposed by statute. It is said that
the oor]x>rate creditor seeking to enforce the payment of his debt may
ignore the existence of the corporation and proceed against the aupposed
fitockboldera as partners, by proving that the prescribed method of be-
coming incorporated was not complied with by the company in ques-
tion, fie is not estop^d from so doing, since he is not repudiating &
contract, but is enforcing it: See monographic note to Rutherford v.
Hill, 29 Am. St. Rep. 602, on personal liability of persons acting as a
corporation, but without authority; monographic note to People v.
Montecito Water Co., 83 Am. St. Rep. 186, on defective formation of
corporations. The weight of authority, however, is that where a con-
tract is made with an apparent corporation, as such, and an e£fort has
been made in good faith to organise a corporation, and thereafter, as a
result of such effort, corporate functions are assumed and exercised in
the belief that a valid corporation exists, persons who have dealt with
the association as a corporation, and have given credit to it, and not to-
its individual members, cannot hold Ruch members liable individually
or Jointly, as partners or otherwise, although the omission to comply



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400 Babnes v. Bhbbyepobt City R. R. Ca [LouisiBiiA,

with the requirements of the law was snch that no valid onranisatioB
was effected : Notes to Rutherford y. Hill, 29 Am. St. Rep. 601 ; People
T. Montecito Water Co., 33 Am. 8t. Rep. 186. The plaintiff seeking to
enforce an obligation against the members of such corporation as mere
partners is estopped by his contract. Besides this, to permit his recoy-
ery, as against a partnership, is to give him the benefit and to impose
•on his adversaries the burden of a different contract from that wnich
both he and they intended should be executed : Note to People v. Mon-
tecito Water Co., 33 Am. St. Rep. 188. If a contract has been executed
«nd fully performed on the part of a corporation, or of the person with
whom it contracted, neither will be permitted to insist that the oon-
tract was not within the power of the corporation : Note to Falls v.
United States etc. Co., 38 Am. St. Rep. 212.

UNINCORPORATED SOCIETIES-SUITS BY AND AGAINST-
PARTIES.— Unincorporated business associations do business as part-
nerships; each member is liable to the full extent of the partnership
indebtedness, and all the members must be joined in a suit by or against
the association : See monographic note to Phipps v. Jones, G9 Am. Dec.
712, discussing the subject.

RES JUDICATA.— A JUDGMENT UPON DEMURRER becomes
tes judicata as to the matters actually and necessarily determined to
the same extent as any other judgment : See monograpnic note to Fahey
V. Esterley Machine Co., 44 Am. St. Rep. 564, 566, on the proof of na
judicata.



Barnes v. Shrbvbport City Railroad Compakt.

[47 Louisiana Annual, 1218.]

NBOLIOBNOB.— A CHILD ONLY THRBB YBAE8 OLD IS IN«

capable, per SE, of contributory lault

NEGLIGENCE AS TO CHILD, WHAT CONSTITUTES— DUTY
TOWARDS CHILDREN.— Although a child of tender years may be
In the highway through the fault or negligence of its parents, and so
be improperly there, yet, if it is injured through the negligence of
tne defendant, it is not precluded from redress. If the defendant
knows that such a person is in the highway, he is bound to a pro-
portionate degree of watchfulnesa— to the utmost circumspection;
And what is but ordinary neglect in regard to one whom be sup-
posed to be a person of full age and capacity is gross neglect aa to a
•child, or one known to be incapable of escaping danger.

STREET RAILWAYS-DUTY OF STREET-CAR DRIVER.— It
la the duty of the motorman in charge of an electric street-car, not
only to see that the railroad track is clear, but also to exercise con-
stant watchfulness and care for persona who may be approaching
the track.

STREET RAILWAYS— NEGLIGENCE IN MANAGEMENT OF
<:;aR.— In an action against a street railway company for negligence
in running an electric street-car oyer a child of tender years, the
proper inquiry is whether the motorman failed to observe or do
aomething which he ought to haye seen or done, and which he would
haye seen or done with ordinary ylgiiance.

WITNESSES-FAILURE TO CALL.-It Is defendant's duty, lo
an action for negligence, to call and examine a witness whose fault
<:aused the Injury, and if he fails to do so, all legal preflQmptiona are
finfayorable to his testimony.



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June, 1896.] Babnes v. Shbevkpobt City R. R. Co. 401

DAMAOBS— INADBQnATB.~Aii allowance of three thousand
dollan against an electric street railway company for negligently
running over a child three years of age, and resulting* In the loss of
a.n arm, is not enough, and will be increased on app^ to Ato thou*
sand dollars.

Wise ft Hemdon^ for the appellants.

T. F. Bell and E. H. Bandolph^ for the appellee.

"*• WATKINS, J. This suit is for the recovery of ten thou-
sand dollars damages against the defendant for injuries sustained
by the plaintiff^s infant child of three years of age^ it being run
oyer by one of defendants' rtreet-oan, which was operated by
electricity^ and its ^'^ ann so broken and crushed that it had
to be amputated, leaving it in a permanently crippled condi*
tion.

The statement of the petition is that the accident occurred at
the intersection of Texas and Crocket streets, in the dty of
Shreyeport, defendants' car bein'g at the time operated on Texas
street in carrying passengers. That at the time of the occurrence
plaintifPs child was standing at or near the railroad track, where
there is a curve or turn, thus being in a position in which the
motorman operating the car could have easily seen it, had he been
at his proper place and carefully attending to his duties. That
the accident was occasioned by the gross carelessness and negli*
gence on the part of the railroad company, its servants, agents,
and employees. That the injury inflicted upon the child caused
it great pain and suffering, and resulted in its being maimed and
disfigured for life. The defendants' answer is a general denial,
coupled with the plea of contributory negligence on the part of
the child and its parents.

The cause was tried by a jury, who rendered a verdict in
favor of the plaintiff for three thousand dollars, and from the
judgment of the court thereon based the defendant has ap-
pealed. In this court the plaintiff and appellee filed an answer
to the appeal, and demands an amendment of the decree so as to
award him the full amount claimed in his petition.

The testimony of all the witnesses concurs as to the following
established facts, viz: That the accident happened in open day-
light, while the car was slowly moving down grade of its own
weight and momentum, the electric current having been cut off;
that the track and car were in apparently good order, and the
motorman in charge of the car was a sober, prudent, and ez«
perienced employee; that not one of the sevenJ passengers who
were in the car at the time either saw or knew of the happening
of the accident

AJL Sr. Bar.. Vol XLIX.^98

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402 Baknes v. Bubevepobt City R. R. Co. [Louisiana,

One witness states that as he was entering the ear he saw the
car strike thQ child, but that he did not notice what the motor-
man was doing at the time. Another witness states that as he
came to the car, he saw it just as it was checking up, and just
then the little boy rolled out from under it.

A physician from the Charity Hospital testifies that he was a
passenger on the car on the morning of the occurrence, and the
substance of his statement is as follows: '^That he was sitting
near the fare-box when a passenger came in ^•^^ and spoke to
him, handing a quarter of a dollar to the motorman to make
change, so he could deposit his fare in the fare-box. Heard the
paasenger ask the motorman for change, and saw the motorman
give him the change. That just as he gaye him the change, wit-
ness observed the motorman apply the brake in a rather excited
manner; and soon afterwards all the passengers became excited
and stood up — ^the witness among the number. That just about
that time he heard a little child' scream, and, looking out of the
window, he saw a little fellow holding his arm in his hand. That
he ran out quickly and caught hold of the arm to prevent a
hemorrhage. That upon learning whose child it was, he directed
that he be at once carried home, and that he went there also, and
applied a bandage on the broken limb, and just as speedily as
possible telephoned to the hospital for his instruments and ampu-
tated it. That he amputated it just about the junction of the
tipper and middle third, just above the elbow. That the arm
was crushed above the elbow, and there was no such thing as sav*
ing the arm — ^amputation being absolutely necessary.

Another witness corroborates the physician's statement with
reference to the motorman giving a passenger change about the
moment of the occurrence. He heard the cry of alarm made by
some passengers, and saw the motorman catch hold of his brake,
"as quickly as possible,** and try to stop the car, "but it was a
little too late to stop the car.** He states that there was no
conductor on the car; and defendants' cars are not provided with
conductors — ^the double duty being, by the company's regula-
tions, imposed on the motorman of handling the car and making
change for the passengers. He says that when the car is in mo-
tion, the motorman's post of duty is on the front platform of the
car, and that he occupies a position so he can look on either
side. That the car is provided with a brake on the front plat-
form, so that he can arrest the speed of the car, and also with an
apparatus so that he can cut oflF and turn on the electric current
at will. He says that, at the place where the accident occurred.



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JoDOi 1895.] Babnes v. Shrevepobt City R. R. Co. 408

there ib a switch^ and the car passes slightly down grade from the
■witch to the main line^ and that, in thus passing off of the
switch^ it is customary for the motorman to slow up hy cutting
off the current and permitting the car to run down of iteown
momentum.

Another witness, who had a seat in the car by the side of the
physician who testified, gives much the same relation of facts
as the latter **^ did. He speaks of the passenger who came in
and walked up to the motorman to get change to pay his fare.
He states that '^the motorman turned around to make the
change for him about the time [the car] was going out of the
switch.*' That it had gone probably fifteen or twenty feet
[while] he was making change; and he turned partially around
so as to make the change for the passenger. That immediately
after haying receiyed his change, the passenger made some re-
mark, and the motorman commenced turning his brake to stop
the car.

Another witness, standing at a blacksmith shop near the-
awitch, saw the car just as it came in contact with the child and
push him over. He ran to the child immediately, and picked
him up and carried him into his father's house, which was near
by.

Another witness, who was driving his cart, states that he was
in the rear of the car, about thirty feet distant, and a little to
the left of it, driving in the same direction in which the car was
moving, and saw the accident. Saw the car just as it was check-
ing up, and the little boy rolling out from under it.

The passenger who was obtaining change from the motorman
for the purpose of paying his fare states that he was standing at
the front door when the accident occurred. He says that while
the motorman was engaged in making change for him the little
boy was standing outside of the railroad track — ^possibly at a
distance of three to six feet. That when the car was within three
feet of the child, he took a notion to run across the track to the
other children who were on the opposite side, and came in coUi-
flion with the car.

There were five or six children playing on the track before the
car had reached the point where the accident happened; but
they had moved on upon the approach of the car, separating
from the little fellow who was run over. That, as he observed
the movement of the little boy, he caught at the brake, and the
motorman caught it at that instant and checked the car. That
he thinks the motorman saw the child just about the time he



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404 Barnbs v. Shrevbpobt City R. R. Co. [LoQisianai

fltarted, but he did not have sufficient time to stop the car-^t waf
too late.

The foregoing is a fair snmmary of all the testimony which
was adduced on the trial in favor of the plaintiff^ and nothing
to the contrary was developed by the witnesses for the defendant.

It is a noteworthy fact that the motorman. White, who was
operating the car which inflicted the injury, was neither sum-
moned nor ^^® interrogated as a witness for the defendant, not-
withstanding he was known to have been in the adjoining parish
at the time of the trial, he being no longer in the service of the
company.

Following a general rule which has ever been in favor with this
court, we feel at liberty to presume that if he had been pro-
duced as a witness by the defendant^ his evidence i^ould have
been averse to its pretensions.

Having been the motorman who had charge of the car, and
through whose carelessness and negligence the accident and in-
jury happened, it was defendants' duty to have placed him on the
stand and purged him of his fault, if indeed he cotQd have done
so, and, as he was neither produced nor interrogated, all the
legal presumptions are unfavorable to his testimony.

Imprimis, we may dispose of the defendants' charge of con-
tributory negligence, in respect to the child, by observing that
it was only three years old and incapable, per se, of con-
tributory fault; and in respect to that of the parents, there is no
proof of contributory fault of any kind: "Westerfield v. Levis,
43 La. Ann. 63.

Mr. Thompson states the rule thus pertinently, viz: "Although
a child of tender years may be in the highway through the fault
or negligence of its parents, and so be improperly there, yet, if
he be injured through the negligence of the defendant, he is not
precluded from his redress. If the defendant knows that such
a person is in the highway, he is bound to a proportionate de-
gree of watchfulness, to the utmost circumspection, and what
would be but ordinary neglect in regard to one whom he supposed
to be a person of full age and capacity would be gross neglect
as to a child, or one known to be incapable of escaping danger*':
2 Thompson on Negligence, 1129.

The same author says: ^T.i is the duty of the driver of street-
cars, not only to see that the railroad track is clear, but also to
exercise a constant watchfulness for persons who may be ap-
proaching the track": 1 Thompson on Negligence, 398.

But in even clearer and more cogent terms Mr. Beach rtatei



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Jane, 1895.] Barnes v. Shrbvepobt City B. R. C!a 406

the rule thus: 'If, howeyer, he [the engineer or driver] sees a
child of tender years upon the track, or any person known to him
to be, or from his own experience giving him good reason to be-
Keve that he **** is, insane or badly intoxicated, or otherwist.
insensible to danger or unable to avoid it, he has no right to pre-
sume that he will get out of the way, but should act on the be-
lief that he might not, or would not, and should therefore take
means to stop his train in time'': Beach on Contributory Negli-
gence, 395.

Defendant invokes the rule as announced in Qallaher v. Cres-
cent City E. R. Co., 37 La. Ann. 288, to the effect that "a car-
. driver can be justly charged with negligence only when he fails
to observe or do something he ought to have seen or done, and
would notice or do with ordinary vigilance — when he fails to be
prepared for something visible, or at least of probable occur-
rence, or that might be reasonably expected of him.

"If the accident happened from a sudden and unanticipated
act, which is the result of the thoughtless impulse of a child, of
which human forethought could not be prescient, no liability
attaclies to the driver or to his employer."

The rule thus formulated is undeniably correct, and does not
differ from the rule we have quoted from Thompson and Beach.
But is this one such a case? Evidently not. For instead of the
motorman of defendant's car being on the lookout while his car
was slowly descending the switch to the main track, propelled
by its own momdntum, he was engaged in making change for a
passenger; and, in consequence of his attention having been
tliiis diverted, he failed to observe the perilous situation of the
child in time to arrest the progress of the car, and prevent the
happening of the untoward event. It seems quite apparent to us
that if the motorman had postponed making change for the
passenger until his car had passed off the switch, he could, and
most likely would, have seen the child, and averted the accident.

The judge a quo, in his charge to the jury, very correctly said:
"A railway company is bound to keep a proper lookout, especi-
ally in populous localities, for objects on its tracks ahead of a
moving train, and, if a child is seen thereon, it should bring its
train to a stop, and upon its failure to do so, it is chargeable with
actionable negligence. The same rule applies to an electric-car
company, and, in case of children of tender age, the proper in-
quiry is, whether the person in charge of the motor-car failed to
observe or do something which he *^' ought to have seen or



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406 Babnes v. Shrbvepobt Cmr R. R. Ca [Louisiaofti

done, and which he would have seen or done with ordinaij
vigilance/'

This charge^ in our view^ is in strict keeping with the rule that
is announced by authors and jurists, and that the jury were evi-
dently mindful of the judge's instructions in rendering a verdict
in favor of the plaintiff. We think a case of damages is made
out by the law and the evidence, but our opinion is, that the
allowance made by the jury is not enough, and that it should bo
increased to five thousand dollars.

It is therefore ordered that the amount of damages be increased
to five thousand dollars, and as thus amended the judgment bo
affirmed.

Nichollsy C. J., absent

APPELLATE PROCEDURE— DIRECTING WHAT JUDGMENT
SHALL BE ENTERED.— If the facta are not in dispute, and all the
matters appear on the face of the record, enabling the appellate court
to asoertam and declare the justice of the case, it will render such a
Indgmentas will secure to each party hisjust rights, instead of remand-
ing the cause for a new trial: McAfee v. Reynolds, 130 Ind. 33; 30 Am,
St. Rep. 194.

NeffUffenoe In Dealing with OhUdren.*

The object of this note is to give a general view of the law of negli-
gence, as applied in cases where children have been injured by the
wrongful act or negligence of another person, and to show with some
particularity what acts or omissions constitute neglieence in dealing
with children. Among the multitude of cases on the aifficultand com-



Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 46 of 121)