No. 10,769 | La. | May 15, 1891
Lead Opinion
On Motion to Dismiss
The opinion of the court was delivered by
In support of his motion to dismiss, the plaintiff and appellee contends that he should have been, and was not, cited, not even asked to be cited, and that the appeal was not perfected by the appellant giving bond, as required by law, within the tan days prescribed.
It appears that a verdict having been returned and a judgment rendered thereon, for $3500, against the defendant — the judgment signed in open court on the last day of the term, namely the 23d December, 1890 — the defendant moved for and obtained a suspensive appeal, returnable to this court, on the third Monday of January, 1891, on defendant furnishing bond, according to law.
The record shows that, subsequently, viz.: on January 2, 1891, •within the ten days following the signature of the judgment within •which a suspensive appeal could be taken, the defendant made
The judge, at chambers, repeated the orders previously made, granting a suspensive appeal, returnable on the stated day, on the appellant depositing the bonds, specifying them, with the clerk of the court, to secure the payment of such judgment as might be rendered on appeal.
On the same day, January 2, 1891, the appellant deposited the bonds with the clerk; an instrument in writing, having the appearance of a bond, being duly drawn up and signed by counsel for the appellant and by the clerk, to show the fact of the deposit, its nature •and object, and the actual delivery of the bond to the court officer.
The complaint of the plaintiff and appellee is, that he was not cited, that no citation was issued to or was served on him, to answer the appeal, returnable to the Supreme Oourt on the third Monday of January, 1891, according to law.
The complaint is evidently based upon the assumption that, under the circumstances of the case, the appellee was entitled to be cited to answer the appeal; but this is a groundless pretension.
There was a motion made in open court on the 23d day of September, 1890, the last day of the term, when the judgment was signed, for a suspensive appeal, which was granted, returnable on the third Monday of January following, to this court, on the defendant furnishing bond, according to law.
That portion of the order allowing the appeal on the defendant furnishing bond according to law was a superfluity. As much may be said of the motion, petition and orders filed, and made on January2, 1891.
The right of appeal is a constitutional prerogative in a case of this description, the amount exceeding $2000, and the judge would have had no discretion to refuse it. Neither would he have had the right to add to or take from the requirements of the law, in such cases of suspensive appeal from money judgments.
The Code of Practice declares that, if the appellant who has ob
It is settled that when the appeal is asked and granted in open court within the ten days it is unnecessary to have the appelleecited, because he is considered as present in court and taking notice-of all proceedings transpiring therein in the cases in which he is, concerned, particularly those in which he has obtained judgments to> become executory in the course of time, in the absence of any suspensive appeal.
The judge, in cases in which money judgments are rendered, has, no right to fix the amount of the bond for a suspensive appeal, by requiring it to be either for a larger or smaller amount than that provided by law. The Code regulates that amount, and whatever-the order cf the judge may be in such cases, the appellant furnishes, the bond, as far as the amount is concerned, at his own risk and 'peril.
The motion for a suspensive appeal having been made and granted on the day on which the judgment was signed, and which was the last day of the term, it follows that the requirements of the law were fulfilled carefully, and that the plaintiff and appellee was not entitled to a citation to answer the appeal, returnable here, as already stated.
He is presumed to have been in court when the motion was made and granted, and therefore to have received the notice which the-service of a citation would have conveyed,, of the order allowing the appeal, and making it returnable here on a particular day,, which, in this case, is that fixed by special legislation.
The appeal was perfected within the ten days prescribed by law.
It was useless for the appellant to have again moved and petitioned, on the 2d of January, 1891, for-a suspensive appeal, and for leave to furnish the public securities,, instead, of a personal obligation with a surety, as is usually done.
The appeal had been previously asked and granted. The subsequent proceedings to the same effect were- superabundant.. They* did not amend or modify the anterior ones..
Article 3065 R. R. O. distinctly declares that whenever a person who is bound by law to give a surety, can not do so, he is admitted to give in pledge a thing which may be kept without difficulty or risk, and which is to be deposited in the hands of the public officer whose duty it is to receive the surety.
The clerk of the court is the one in whose favor the bond for an appeal is required by law to be made, and he was the officer with Whom the bonds substituted to an ordinary surety were to be, and actually were deposited, to await final judgment. ,
There is no other complaint in the motion to dismiss.
It, therefore, follows that, under the circumstances of this case, the appellee had due and seasonable notice of the motion of appeal and order granting the same and fixing the return day, and that he can not be heard to say that he has not been cited, and that the ap - pellant should have at least prayed that he be thus notified.
Motion overruled.
Opinion on the Merits
On the Merits.
The allegations of plaintiff’s petition are, that he was an employee of the defe'ndantcompany; that he “was ordered by the foreman of said oil company to go and assist William Baker, also in the employ of the company, in placing a belt on the meal crusher;, that said work was of a dangerous character and required experience, which was known to. the foreman and of which petitioner was unaware; that petitioner, in compliance with the aformentioned command, did'go, and, in assisting to place said belt on the meal crusher, was struck on the right side of the head a painful blow by a defective, old and worn out clutch-lever, of heavy weight, which broke loose from its fastenings,” and inflicted the injuries complained of; and that said injuries were the result of gross negligence and carelessness on behalf of the foreman and officers of said company.
The defendant answered by general and special denials of negligence and by plea of contributory negligence. We have never encountered a case in which the allegata and the probata were so widely different. There is not a word of evidence to show that the
The plaintiff introduced no evidence whatever relating to the accident except his own oral testimony. The substance of that is, that he received the order from the foreman at a point remote from the meal crusher; that he received no instructions how to go there; that he selected his own route without inquiry, although he professes to have been ignorant of the surroundings; that it passed through and amongst the machinery of the mill; that, in his own words, he “ crawled up ” to a certain platform, where he was quietly standing before he reached Baker or the meal crusher, when he was suddenly struck violently on the head by something, which knocked him off the platform down to the lower floor and inflicted the injuries complained of. He does not pretend to know what struck him, but presumes it was the clutch-lever, because, on recovering from his insensibility, he saw the clntch-lever broken, and did not hear of anything else being broken about the machinery. This is plaintiff’s case, and his whole case, so far as the cause of injury is concerned. Its failure to substantiate the allegations of the petition,and, indeed, the manifest inconsistency between the two, are glaring and startling.
The defendant’s witnesses prove that the route chosen by plaintiff was an improper and dangerous one, involving passage through the machinery and over and under running wheels and belts; and that there were other proper and usual routes which were free from danger.
Plaintiff claims that the foreman was guilty of negligence in not directing him how to go; but the proof shows that plaintiff had been working about the mill for a long time, though he had been working in the interior only for two days prior to the accident. Doubtless the foreman supposed that he knew or would inquire for the proper route; and surely, if he did not know, it was his duty to inquire.
But beyond this, the defendant’s witnesses establish that the clutch-lever was situated entirely below the platform on which plaintiff was standing, and that it was physically impossible, even if it had broken, that it should have flown upward and struck plaintiff’s head.
How the clutch-lever came to break is left a matter of pure con
There is a plan introduced by defendant and a great deal of testimony as to routes and the location of belts and pulleys and platforms, and the levee, etc., which is very difficult to understand. Defendant applied to the court for an order directing the jury and counsel to visit and view the premises, which were very near the court house; but plaintiff objected, and the judge declined to give the order. The evidence showed that the clutch-lever had been mended and was restored to the same position it occupied at the time of the accident, and that all the surroundings were the same. A view of the premises might have enlightened the jury, and the plaintiff’s objection that it would place the jury and counsel in peril to enter such a dangerous place does not savor of serious sincerity. He was keeping light from the jury.
Sauer says that Baker was within about twenty-five feet of him when he was struck, and his counsel arraigns the failure of defendant to put him on the stand as affording a presumption that his evidence would have been hostile to defendant. The accident occurred in January and the case was not tried until December, 1890. It is not shown that Baker remained in the employ, or was accessible, or was even living at the time of the trial; nor is there any showing that he was observing plaintiff when the accident occurred. It is plaintiff’s case that needs additional proof, not defendant’s. There is no ground for the application of any presumption in such a case.
On the whole we think the verdict and judgment can not be sustained, for three reasons:
1. The proof is irresponsive to the complaint.
2. It fails to establish any fault or negligence on the part of defendant.
3. The weight of evidence establishes imprudence and fault in plaintiff in selecting, without inquiry, an improper and daiigerous route.
It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there be now judgment in favor of defendant^ rejecting plaintiff’s demand, .at his cost in both courts.