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the delegate of the French consul. In our view, the stipulation
in this treaty puts the delegate in the position of an agent of the
French heirs, with the same effect as if he held their mandate
to represent them as heirs. That was the manifest purpose, and

Digitized by


Jane, 1895.] Succession or Rababsb. 485

tte language of the treaty plainly expresses that Intention.
There is no power to appoint an attorney for absent heirs when
the heirs are present or represented: Civ. Code^ art. 1210; Bo-
bonam v. Bobonam, ^•**"* 12 La. 73; Addison v. New Orleans Sav.
Bank, 15 La. 627.

It is idle to call in question the competency of the treaty-mak-
ing power^ nor do we think any question can be raised that the
subject of this treaty under discussion here is properly within the
scope of the power. That subject is the rights of French sub-
jects to be represented here by the consul of their country. On
that subject the treaty provision is plain. The treaty by the
organic law is the supreme law of the land^ binding all courts^
state and federal: TJ. S. Const., art 6, par. 2; 1 Kenfs Commen-
taries, 166; Ware ▼. Hylton, 3 DalL 199; Prevost v. Greneaux, 19
How. 1; Hanenstein v. Lynham, 100 TJ. S. 483, 488; Qeofroy v.
Biggs, 133 TJ. S. 264, 266; Treaty with France, 1863; 10 Stats.
999, sec. 12; Treaty with Belgium, 1880, art. 15.

The treaty discloses no purpose to require our courts to ap-
point as the attorney for absent heirs the delegate of the
French consul. Its purpose is accomplished by placing the dele-
gate before the court as representing the absent heirs, and pre-
cluding the appointment of any attorney to represent theuL (•

It is therefore ordered, adjudged, and decreed that the judg-
ment of the lower court, dismissing the intervention of the dele-
gate of the French consul, be avoided and reversed, and it is now
ordered, adjudged, and decreed that said delegate be recognized
and, as such delegate, authorized to represent the absent heirs in
this snccession, and that the succession pay the costs.


Our decision in this case affirms that the French heirs of this
succession are to be deemed represented by the delegate of the
French consul, with the same effect as if the delegate held their
power. This view of the treaty, to which our decision is confined,
displaces the power of the lower court (exerted in ordinary cases)
to appoint any attorney to represent the French heirs of this

The rehearing is refused.


oblisatory on all departments of the government, and on parties litigat-
ing in the courts; Howell v. Fountain, 8 Ga. 176; 46 Am. Dec. 416. It
it paramount to state law, and the latter must vield to the extent of ite
oonflict with the treaty, bat it is void only so far as it contravenes the
oonstitutidn* laws, or treaties of the federal government: Teaker v«

Digitized by


486 Oraham v. St. Cbablbs Stbbbt B. B. Ca [LouiaUni,

T6ak«r. 4 Met* 88; 81 Am. Dee. 580, and monographic note onthi
effect of tfeatiea aa lawe, Bhowing that a self-execnting treaty reqnirei
no legielation to pat it into operation, and ia therefore to be ropirdad
in courta of jnatioe aa equivalent to an aot of the legialatnre, whenever
it operatea of itaeif without the aid of any legiaiative provision.

Graham v. St. Charles Strbbt Railroad Go.


Injures another in his lawful bualneaa by language or conduct pfe-
venting persona from dealing with him, auch injury gives the latter a
Tight of action.

PUNITORY DAMAOBB MAY BB GIVEN in an action by one pe^
•eon against another for an injurv to his business.

XIABLE, if at al]« by leaaon of their relation to the wrongdoer.

—SCOPE OF EMPLOYMENT.— If the functions of the foreman of t
railroad company are aimply to employ and discharge laborere when
neceeaary, the company la not liable for hia act in injuring a grocf'T
by language and conduct which has the effect of diverting other em*
rployees from dealing with the grocer, aa auch act la not witUa tin
-.acope of the foreman*a employment

Harry H. Hall, for the appellant

W. H. Bogera and W. B. Landsister, for the appeUea.

^••^ MILLEB, J. The plaintiff, the proprietor of a grocery
near the station-house of the defendant company, aaea for dsm-
ages, alleging that the foreman of the company, also a defendant,
has injured plaintiff in hia business by dissuading the employees
•of the company under defendant's charge from dealing with the
plaintiff, threatening them with discharge from the company's
•employment if they did so, and carrying the threats into effect
The petition charges that this conduct of the foreman has been
persistent, prompted^by ill-will against the defendant, the desire
to injure him, and has resulted in diverting the business of the
employees from plaintiff. It ia further charged that plaintiff,
by this course of conduct on the part of the foreman, has been
annoyed and humiliated by the notoriety of the persecntion and
the ridicule thereby engendered, to nse the language of the peti-
tion, for which punitory damages are claimed; and the liabiUty
of the company ia put on the ground that the acts and conduct
of the foreman were in the course of the employment of the fore-
man intrusted by the company with the power to employ and dis-
charge those in its service placed under his controL The case

Digitized by


Dec 1895.] Obaham v. St. Charles Street R. B. Oa 487

before fhis court on a preTions appeal (Graliam y. St Charlee
Street R R Co., 47 La. Ann. 214, ante, p. 366) from the deci-
eion against plaintiff on the exception of no cause of action, and
was remanded for trial on the merits. The defense on the
merits is the general issue, and from the verdict and judgment
thereunder this appeal is prosecuted by them. Plaintiff, answer-
ing the appeal, asks that the damages awarded, one hundred and
scventy-fiye dollars, be increased.

The responsibility of a corporation for the conduct of its em-
ployees is for such acts as are within the scope of the business
of the corporation intrusted to them; as the code puts it, mastera
and employers are answerable for the damage occasioned by thdr
servants in the exercise of their functions, and this responsibility^
the code declares, attaches when the master could have prevented
the acts causing the damage: Civ. Code, arts. 2315, 2317, 2320»
Thus the ^^^^ obligation is put upon the master to select compe-
tent and careful servants and holds him liable for their negligence
or negligence in the exercise of their duties. The principle haa
received application in a variety of cases in our reports, where
the act of the servant complained of was incident to the discharge
of the servant's duty, or rather his mode of performance. In
this case the functions of the foreman was the selection of the
labor of the company, carrying with it the power to discharge
the employees. The damage alleged arises from the motives
which it is charged actuated the foreman in his selection and
dismissal of the employees. No wrong to plaintiff could have
arisen from the engagement or discharge of the employees, but
the alleged injury is supposed to have arisen from the discrimi-
nation of the foreman against those friendly to plaintiff, who
dealt with him or were disposed to buy at his grocery. With
that discrimination the company had neither knowledge or con-
nection, and we do not perceive any basis for its supposed liabil-
ity. The conduct of the foreman was ig no sense within the
line of his employment: Oaillardet y. Damans, 18 La. 490;
Ware v. Barataiia etc. Co., 15 La. 169; 35 Am. Dec. 189;
Hart y. New Orleans etc R B. Co., 1 Bob. (La.) 181; 86 Anu
Dec. 689; Winston ▼. Foster, 6 Bob. (La.) 113.

With reference to the foreman, we think the case ia different.
The ground of his liability is that, from motives of ill-will, by
words and conduct, he injured plaintiff's business, by prevent-
ing the .employees from buying at his store. Our review of the
testimony satisfies us that the foreman urged a number of the
emplojeei not to deal with plaintiff; threatened them with dis-

Digitized by


438 Graham v. St. Charles SxaBfix R. K. Ca [Louisiana, '

chaige if they did so; raised the rent of premises he leased to one
of the employees who dealt with Qrabam, assigning that as the
cause for the increase; for the same reason^ it is our conclusion,
from the testimony, he gave another tenant of his notice to quit^
and, as to two instances of discharge, the testimony strongly
points for the cause to the fact that the discharged men bought
of plaintiff. There is also testimony that the foreman, in his
efforts to dissuade one of the men from buying of plaintiff, used
language in respect to Mm not at all flattering. The testimony
comes from number of witnesses, testifying to distinct acts, and
to the conduct of the foreman on different occasions. It would
serve no useful purpose to give the testimony in detail. We have
given attention to that of the foreman, that he never gave ^^^
orders to the men not to deal with plaintiff, and that his motive
was to prevent drinking by the men during the hours of service.
We have considered the testimony of the employees, produced
by the defendant, that they dealt with plaintiff and were not
discharged; that there were posted in the station stringent rules
against drinking by the employees, but a careful consideration of
the testimony impresses us, as we must conclude it did the jury,
that the defendant did use efforts to divert employees from deal-
ing with the plaintiff, and that his motive was not to enforce the
rules or discipline of the company.

The right of protection to the citizen in the pursuit of the avo-
cations by which he gains his livehhood is as important as the
security of his person and property. No man is privileged
to injure another in his business. If the defendant Newman,
by his conduct and language, sought to create a prejudice or feel-
ing against plaintiff, deterring those from buying from him in-
clined to do so, we think reparation is due the plaintiff. Nor is
that reparation to be measured by proof of actual damage.
Every act of man that causes damage to another obliges the
wrongdoer to restitution, is the language of the code, requiring
the obvious qualification that the act must be wrongful, and in
the assessment of the damages the exercise of the discretion of the
jury or court is admitted: Civ. Code, arts. 1933, 2315; Chataigne
V. Bergeron, 10 La. Ann. G99; Edwards v. Turner, 6 Rob. (La.)
3S2; Fenner v. Watkins, 16 La. 206; Wardens v. Blanc, 8
Eob. (La.) 84; McGary v. Lafayette, 4 La. Ann. 440. The fact
that the defendant's tenant had a grocery in the neighborhood,
apt to be benefited by a diversion of plaintiff's customers, sup-
plies the motive of interest, but does not, in our view, at all miti-
gate his conduct. With all reasonable allowance for the corn-

Digitized by


Dec. 1895.] Graham v. St. Charles Street R. R. Oo. 48D

petitionB of trade and the means by which the shopkeeper or
merchant obtains business^ words and actions to discredit it and
injure a rival in business cannot be tolerated. The circumstance
that the defendant^ as the foreman of the company^ had the
power to discharge those designed to be influenced by Mb com-
munications or statements with respect to the plaintiff^ and that
defendant had the selection of the labor of the company^ tended
to make more effective his efforts to injure plaintiff in his busi-
ness. We recognize the principle urged by the defense, that the
employer has the right to employ those he chooses, and the same
liberty is allowed as to their ^®^ discharge. The authority cited
by defendant is entitled to full recognition, that one may do busi-
ness with those he chooses to deal with, and decline, if he pleases,
the business of others: Orr v. Home Mut. Ins. Co., 12 La. Ann.
255; 68 Am. Dec. 770. It is not the exercise of defendant's
choice in selecting or discharging laborers for the company that
makes him liable, but he is responsible because, in exercising
that light, he indulges in language, uses threats, and pursues a
line of conduct all directed at the plaintiff, and of a character
to injure him in his lawful business.

The jury gave a verdict for one hundred and seventy-five dol-
lars. We do not find the basis to increase it against the defend-
ant, and the amoimt is sufficient to answer the purpose for which,
irrespective of actual loss, the law gives damages in this class of
cases. Smart money is not given against those liable, if at all,
by reason of their relation to the wrongdoer, and in no respect can
we appreciate that the company is responsible.

It is therefore ordered, adjudged, and decreed that the judg-
ment of the lower court against the company be avoided and re-
versed, and that the judgment against Thomas Newman be af-
firmed, and that he pay costs.

TOBTS— DAMAGES.— AN ACTION lies against another for injury to
plaintiff's businesB : See Graham v. St. Charles etc« B. B. Co., 47 Ja.
Ann. 214; ante, p. 366. A person doing a wrongfal act that is tortious,
whether criminal or not, is civilW liable to the person injured : Note to
State V. Stewart, 50 Am. Bep. 7zl. Wherever a tort a£fecting the prop-
erty of another is committed with malice, the injured party may re-
cover exemplary damages: Note to Austin v. Wilson, 60 Am« Dec. 767,
discussing at length the allowance of exemplary damages*

MASTEB AND SEBVANT.— A master is But in that case there
was no statute requiring that the railroad company shonld run
the unprofitable trains. There is nothing in the dedaion which
declares or implies that the legislature might not haye imposed
fhia aa an absolute duty. The, same thing may be said of People

Digitized by


JoDe, 1895.] Bbowhell v. Old Colont R. B. Ca 445

T. Borne ete. R B. Co., 103 K Y. 95, and People t. XTeir Toik €*••
R B. Co., 104 K Y. 68; 68 Am. Eep. 484.

The defendant contends that the statutes of 1894, chapter 898,
did not impose a new obligation on the defendant, but only re-
qoired the defendant to perfonn such obligation as the ferry
company would have been ** under to maintain and operate'
the ferry if it had not transferred its charter in 1854; and an
elaborate argument is made to show that the original ferry com-
pany was not bound to maintain the ferry for all time. But
whatever may have been the obligation of the original ferry com-
pany, the Fairhaven Branch Railroad Company, when it made
the ferry a part of its line, no longer had the power to discon-
tinue the ferry, provided the legislature expressly required that
it should be operated. And we are imable to give to the statute
of 1894 the construction suggested by the defendant This
statute makes it the imperative duty of the defendant to operate
the feny, whether it is profitable or not

The defendant contends that the statute requires it to provide
and operate a "suitable** ferry, and that there is no proof before
the court upon which it can be definitely decided what kind of
a ferry suitable. We think, however, that an order to provide
a suitable ferry is sufficient in the first instance, and that, if com-
plaint is made that a ferryboat which may be provided is not
suitable, a further application may be made to the court.

The defendant further contends that the requirement to
operate a ferry forces it into a new business, and that, if the
legislature can require it to operate a ferry for a mile, it could
also require it to maintain a line of steamboats to Nantucket
The only answer which needs to be given to this argument is,
that the ferry by legislative authority was adopted by the rail-
road company as a part of the line of the railroad, and that its
subsequent maintenance is no more outside of the business of
the railroad company than the maintenance of any other part of
the railroad line.

The defendant further contends that the only liability of the
defendant for failure to operate the ferry is a liability to forfeit
the ferry charter. This argument cannot prevail since the
blending of the ferry franchise with that of the railroad com-

The defendant also contends that it has never acquired the
franchise to maintain the ferry. The ground of this argument
IS that the deed of the ferry franchise to the Fairhaven Branch
Bailroad Company was upon condition, and that the deed be>

Digitized by


446 Bbownell v. Old Colony R. R. Co. [Mass.

eame yoid by fhe failure to perf oim the dutieB leqniied by fle
condition; and, moreover, that in the recent transfeiB no express
^^ mention has been made of the ferry franchise. But fhe deed
of the proprietors of the ferry to the Fairhaven Branch Baiboad
Company cannot be considered as technically a deed upon con-
dition subsequent. No clause of te-entry for breach of condi-
tion was inserted, and the purpose of the proviso was rather to
show that the grantee was to assume and perform the duties pre-
scribed and set forth in the charter: Rawson v. Uxbridge School
Dist, 7 Allen, 125; 83 Am. Dec. 670; Sohier v. Trinity Chnrch,
109 Mass. 1, 19; Episcopal City Mission v. Appleton, 117 Mass.
326. No conveyance upon condition subsequent was contem-
plated by the statutes of 1854, chapter 124, or by the vote of the
stockholders of the Fairhaven Branch Railroad Company to
make the purchase. The effect of the transaction was to transfer
the duties from one corporation to another, after which the
original corporation had no further interest in the matter, but
the railroad company was bound by law to perform all and
singular the duties of the ferry company. The f eny company
was not authorized to make a conditional transfer. By sectioD
3 of the statute, its only existence after the transfer was as the
Fairhaven Branch Railroad Company. Moreover, an estate on
condition subsequent is not defeated except by re-entry for
breach of condition. No such re-entry has been made in thia
case, nor is it easy to see how it could be, since the feny com-
pany as a separate corporation has ceased to exist. In reference
to the suggestion that no special mention of the feny franchise
has been made in the recent conveyances, it may be said that
none need be, since the provisions of the statutes of 1B54,
chapter 124, and the delivery of the deed thereunder. Since
that time, the ferry corporation has existed and been known hv
the name of the Fairhaven Branch Railroad Company, and has
been included in all transfers of that company.

The defendant further contends that it cannot be required to
maintain the ferry during the term of the lease of its railroads
and property to the New York, New Haven, and Hartford Eaii-
road Company. This lease, which was executed in 1893, vaa
not pleaded in defense, and we have no reason to suppose that
the omission was through inadvertence. Its admission in evi-
dence was objected to as incompetent and not open, and no
motion was made to amend the answer by pleading it We
therefore have no occasion to consider whether the existence of
the lease ^ would exonerate the defendant as lessor from its

Digitized by


June, ]895.] Bbownxll v. Old Col y R. R. Co. 447

obligatioiis to the commonwealth; respecting which, howerer,
see Braslin r. Somerville etc. R. R. Co., 146 Mase. 64; Davis y*
Providence etc. R R. Co., 121 Mass. 134.

The defendant also suggests that any obligation to the com-
monwealth to operate the ferry was waived by the acqtdescence
of the commonwealth in its abandonment for a period of twenty
years after 1873, and also by legislation subsequent to the
abandonment in 1873, by which the railroads were permitted
to lease and consolidate upon the basis of such abandonment.
But no such waiver on the part of the commonwealth is to be
presumed, without the use of language in some statute clearly
expressing or implying it. The omission by officers of the com-
monwealth, or by others, to take steps earlier for enforcing the
duty signifies nothing. No statute has been pointed out show-
ing an intention on the part of the legislature to waive the per-
formance of it.

The defendant contends that the legislature could not pro-
Tide for the specific enforcement of the obligation to maintain
the ferry by a suit in court, such as is provided for in the statutes
of 1894, chapter 392. The numerous cases already cited in
which resort has been had to the courts for the enforcement of
similar obligations and duties show to the contrary, and that
the forfeiture of the charter is not the only remedy.

Finally, it is contended that the penalty of one hundred dol-
lars a day for each day's delay in operating such ferry cannot be
enforced in this suit. Upon this point the statute is not clear,
but we have come to the conclusion that the better construction
of the statute is as the defendant contends. The principal
reasons supporting this view are as follows:

The forfeiture of the sum prescribed is to the commonwealth,
but the statute contains no provision making the commonwealth
or any one of its officers a party to the suit, which ten or more
citizens may bring to enforce the provisions of the act. The
maintenance of the ferry is for the peculiar benefit, of New
Bedford and Fairhaven, but the citizens of those places have no
special interest in the enforcement of the penalty. The legis-
lature can hardly have intended that the penalty should be paid
to the ten or more citizens who are authorized to file a petition in
■• equity to enforce the provisions of the statute, yet nobody
else is required to be a party plaintiff. The plaintiffs have made
the attorney general a party to represent the commonwealth*
But he is not a financial officer of the state, and we are at a loss
to see how he can properly be made a party, or be entitled to
appear in his own name to represent the pecuniary interest of

Digitized by


448 Bbownbll v. Old Colony B. B. Ca [Haas.

the oommonwealih under this statate. The ordinary way of
enforcing a penalty which is to go to the commonwealUi is
by a proceeding in the name of the commonwealth, onlees some
other mode is enacted by statute or established by custom. We
have a difficulty in inferring that the legislature intended that a
heavy pecuniary penalty inuring to the commonwealth should
be enforceable by a suit or petition in equity in this court, which
suit is instituted, managed, controlled, and subject to be discon-
tinued solely by private citizens who have no interest in such
penalty. The provision of the statute, that this court should
have jurisdiction in equity upon the petition of ten or more
citizens of New Bedford or Fairhaven to enforce the provisions
of this act, is satisfied by holding that it means the provisions
requiring the Old Colony Bailroad Company to provide and
operate a suitable f eny. These citizens may maiTitain a petition^
in equity to enforce so much of the statute as ooncema the
citizens of New Bedford and Fairhaven. The commonwealth
may enforce the penalty which inures to its benefit This view
derives some confirmation from the public statutes, chapter 217,
section 2, providing that ''all fines and forfeitures • • • • ez«
pressly appropriated to the use of the commonwealth • • . •
may, imless otherwise expressly provided by law, be prosecuted
for and recovered by indictment in the superior court, • • • • or
the same may be recovered in an action of tort"

The result ia, that the plaintiffs are not entitled to a decree for
enforcing the forfeiture of one hundred dollars a day to the com-
monwealth, but, in the opinion of a majority of the court, they
are entitled to a decree requiring the defendant to provide and
operate a suitable ferry.

Ordered accordingly.

FBANCHISEB— EXERCISE OF.— A railroad compaoT has nol the
option to discontinue part of its road and forfeit its franchise, but the
remedy is not by action in equity for a specific performance, but by

lie, by action to

' etc tt. R. COh

Digitized by


Jue, 189fi.] PAei t. Coox^ 44$

Paob v. Cook.

0017 note promising on demand to pay a sum designated, payable
when payor and payee mutually agree. Is collectible on demand. If th«

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 52 of 121)