43 La. Ann. 833 | La. | 1891
Lead Opinion
On Motion to Dismiss.
The opininion of the court was delivered by
The motion has two grounds, viz.:
1. That a plan offered in evidence by plaintiff and duly filed has been omitted from the transcript by appellant’s fault. The clerk’s certificate is complete and protects appellant in the right to supply the omission, on discovery, by certiorari, which he has done.
2. That a document marked xy, which was offered in evidence by defendant, is omitted from the record because the defendant had failed to have the same properly stamped and filed, which justified the clerk in omitting it, and places the fault entirely on the defendant appellant.
Our attention is called to the provisions of Act 136 of 1880, which require evidence to be stamped before filing, and also declare that testimony not stamped and filed shall not be copied into the transcript or considered by the appellate court.
It appears, however, that in this case most, if not all, the evidence which was offered and met on the trial, was not stamped and filed till some time after the judgment was rendered. It further appears that it is the custom of the clerk’s office, in making up transcripts of appeal, when it is discovered that evidence, which has been offered and used on the trial, has not been stamped and filed, to notify the counsel interested in order that he may remedy the defect; that in this case the clerk, in the haste of making up the transcript, overlooked the document xy and failed to notify counsel or to include it in the transcript. As soon as the motion to dismiss informed counsel, who had relied on the clerk’s practice and his complete certificate, that this document had not been stamped and was omitted from the transcript, he supplied the oversight by having the same properly stamped, and now brings up this document also under his certiorari.
It thus appears that in practice the rigid requirements of the
Under this practice., if, as appears, it be the. custom of, the clerk’s ■office to notify counsel and afford opportunity to affix .stamps inadvertently omitted, we do not think the failure of the clerk to notice an unstamped document and to give the customary notice, should be visited as a fault on the appellant, destroying his right of appeal, when the omission has been inadvertent and is supplied as soon as discovered and before the appellee has suffered the slightest harm.
The law is intended to secure the contributions to the judicial ■expense fund- — not to set traps for litigants.
The case is very different from that of Schmitt vs. Drouet, 42 An. 716.
Motion denied.
Opinion on the Merits
'On the Merits.
This is a suit in damages, brought by the plaintiff in his own right, and in that of his wife, for injury done him, in his property and business, and her, in her person.
The damages are alleged to have been caused by a freight train of ■defendant backing off a side track and running, at an unauthorized full speed, into a house occupied by the plaintiff, as a coffee-house and residence, at 6 o’clock, on the morning of December 9, 1889, at a corner of streets in this city.
It is averred that the barroom and appurtenances were damaged so that the owner had to give the same up, his business and trade being thus broken up and destroyed.
It is, besides, stated that, by the occurrence, the wife of plaintiff,' who was in the house at the time, was struck by a heavy falling post, thrown into the street, speechless and senseless, her clothes being torn, her arm laccerated; that she suffered great pain in her breast and back.
The damages to the property and business are set down to be near $1000; those to the wife at $7500, and those to the husband at $2500; lumping about $11,000.
The charge is made that the whole accident is attributable to the gross negligence of the company, which makes it liable for the injury sustained.
It is useless to state how the accident occurred. The defendant explains the circumstances under which it happened, but does not attempt to deny it, or evento charge contributory negligence on the part of the party really injured.
The issue presented is merely one of fact, involving the quantum of damages sustained.
The defendant has stated a bill of particulars, footing $350, which it considers is a more than reasonable indemnity to both the husband and the wife, dividing same as follows: $100 to the former, and $250 to the latter.
Although the testimony is far from establishing the gravity of the injury occasioned, and which has been considerably magnified, Ait is apparent that the defense has greatly minimized it. ■ It may be that Mrs. Lane’s sufferings have been, in appearance, temporary; but they were intense, occasioned as they were, by the frightful emotions of the moment. The stubborn fact remains, that she was struck by the falling of the post, and it is more than probable,"as testified to by the physician who saw her last, rather frequently, that her constitution has been so seriously impaired that she will remain an invalid, never to be herself again. She was guilty of no contributory carelessness and was hurt in her house, where she had a right to be.
Under the circumstances, we think her entitled to a reasonable indemnity, which we fix at $1500, including the damage claimed by her husband, as done to his property or business.
It is, therefore, ordered and decreed that the verdict and judgment thereon be reduced to $1500, and that thus amended, the same be affirmed, appellee to pay costs of appeal and defendant those of the lower court.
