
    (47 South. 692.)
    No. 16,985.
    POLICE JURY PARISH OF IBERVILLE v. TEXAS & P. RY. CO. et al.
    (Nov. 16, 1908.
    Rehearing Denied Dec. 14, 1908.)
    1. COBPOEATIONS (§ 503*) — ACTIONS — DOMICILE.
    A corporation cannot be sued without its consent outside of the parish of its, domicile on ■an implied promise to pay the liabilities of a commercial firm.
    [Ed. Note. — Por other cases, see Corporations, Dec. Dig. § 503.*]
    ■2. Appeal and Error (§ 1002*) — Review— Conflicting Evidence;
    On issues of fact, where the evidence is conflicting, the verdict of a jury of the vicinage is entitled to great weight, and will not be disturbed unless manifestly erroneous on the face ■of the evidence.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]
    3. Appeal and Error (§ 1178*) — Remand — Damages.
    Where the evidence shows that the plaintiff is entitled to recover damages in some amount over and above a certain sum, and it is probable that on another trial the quantum can.be fixed with reasonable certainty, the cause will be remanded for further proceedings.
    [Ed. Note. — Por other cases, see Appeal and Error, Dec. Dig. § 1178.*]
    (Syllabus by the Court.)
    Appeal from Twenty-Pirst Judicial District Court, Parish of Iberville; Calvin Kendrick Sehwing, Judge.
    Action by the Police Jury Parish of Iber-ville against the Texas & Pacific Railway Company and others. Judgment for plaintiff. Defendants appeal.
    Reversed and dismissed as' to the Evangeline Oil Company, and reversed and remanded as to the Texas & Pacific Railway Company.
    Lievin De Poorter, for appellant Texas & Pacific Railway Company. Oarleton & Townes, Thomas Jones Kernan, and Joseph Sidney Wheless, for appellant Evangeline Oil Company. Edward N. Pugh & Son and Walter Lemann, for appellee.
   LAND, J.

This is an action to recover ■$20,000 damages for the destruction by fire of the parish bridge at Plaquemine on July ■25, 1905, alleged to have been occasioned by the negligence of the firm of Carnes, Bass & Benkenstain and of the Texas & Pacific Railway Company. The third defendant, the’ Evangeline Oil Company, is sought to be held liable as having assumed said commercial firm’s obligations and liabilities by taking over its property and rights. For the sake of brevity, the defendants will hereafter be styled the “railway,” the “firm,” and “oil company.” It is charged that the firm negligently ran a barge containing several thousands of barrels of oil on a snag in Bayou Plaquemine, causing said barge to spring a leak and petroleum oil to spread over the surface of said bayou; that, with full knowledge of the dangerous consequences, said firm made no effort to remove said oil, but permitted it to remain on the surface of the water for at least five days before petitioner’s bridge was destroyed by fire.

It is charged that the railway was negligent in that the crew of one of its switch locomotives, well aware of the danger, carelessly dumped ashes on the bank of said bayou near the water’s edge, thereby igniting the floating oil, and causing a conflagration which destroyed petitioner’s bridge.

The prayer was for the citation of the three defendants and for judgment against them in solido.

The firm was either not cited or the suit was not prosecuted against it.

The remaining defendants filed exceptions, which were tried and overruled, and then answered to the merits.

The case was tried before a jury which found a verdict for $14,000 in favor of plaintiff and against the railway and oil company in solido. From a judgment pursuant to the verdict, the said defendants have appealed.

Exception to Jurisdiction.

The oil company excepted to the jurisdiction of the court on the ground that it was domiciled in the parish of Calcasieu, and not in the parish of Iberville. It was admitted that said company was a foreign corporation organized under the laws of the state of New Jersey, and that at the date of the institution of this suit its local domicile in 'the state of Louisiana was in the parish of Acadia, and at the date of the trial of the exception was in the parish of Calcasieu.

The exception was overruled on the theory that the oil company and the commercial firm, which it succeeded, were the same legal entities, and that the firm, having committed acts of trespass in the parish of Iberville, was suable there regardless of its domicile. The firm and the oil company were sued as distinct entities, and the only basis for the plaintiff’s action against the oil company is on an implied assumpsit resulting from the taking over the property and rights of the commercial firm.

Corporations and partnerships, like individuals, must be sued before the judge having jurisdiction over the place where they have their domicile. Code Prac. art. 162.

The Code of Practice contains no exception as to partnerships, and the exception as to corporations is set forth in paragraph 9 of article 165 of the Code of Practice, as follows:

“In all cases where any corporation shall commit trespass, or do anything for which an action for damages lies, it shall be liable to be sued in the parish where such damage is done or trespass committed.”

By a recent act of the Legislature the scope of this paragraph has been extended to omissions for which an action for damages lies. Act No. 108, p. 165, of 1908.

Paragraph 2 of the same article provides that in matters relative to partnership, as long as the partnership continues, in all suits concerning it, the parties must be cited to appear before the tribunal of the place where it is established. The petition alleges that the defendant firm “is domiciled in this state, and doing business in the state and parish.” The firm should have been sued at its domicile, which the record shows was in the parish of Acadia. Paragraph 9 of article 165 of the Code of Practice does not apply to partnerships.

Under the allegations of the petition, the firm is liable for damages occasioned by the negligence of its servants, and the oil company is liable on an implied promise to pay the debts of the partnership. The one is bound in tort, and the other is bound by contract. There can be no joint obligation without a joint contract. Wrongdoers are bound in solido. Civ. Code, art. 2324. If the-oil company had given the plaintiff a written promise to pay all the damages occasioned by the fire in question, suit could not have been brought thereon against the oil company outside of the parish of its domicile.

The exception should have been sustained and the suit dismissed as to the Evangeline-Oil Company.

The exception of no cause of action filed by the railway is without'merit as the petition discloses that the negligence of its servants was the proximate cause of the loss complained of.

On the Merits.

The railway, after denying generally and specifically the allegations, pleads that the plaintiff was guilty of contributory negligence, in this: that prior to the destruction of the bridge by fire the plaintiff had knowledge of the danger thereof by the burning of the oil floating on the surface of the water of the bayou, as several fires had already taken place by which the said oil was being burned at different points, but made no attempt to prevent said loss by removing the floating oil from the vicinity of its bridge and especially from under it, which it could have done by the exercise of proper care and diligence.

The fact that the surface of the waters of the- bayou at Plaquemine were more or less covered with crude oil is thus admitted in the answer, as is also the danger of fire arising from such conditions.

The first disputed issue of fact in logical order is whether, as alleged, the servants of the railway dumped hot ashes into the bayou and thereby caused the fire which destroyed the parish bridge.

The witnesses for the plaintiff all concur in the statement that the fire originated under the trestlework of the defendant’s bridge. When the smoke was first seen, a switch engine was passing or had just passed over the structure. One witness testified to seeing live coals dropping from the tender. Another testified that he saw cinders burning the oil. Other witnesses did not observe any live coals or cinders, but saw the fire and smoke beneath the trestle immediately after the passage of the engine. Another witness, Brown, who was on the parish bridge about 100 feet away, saw the engine on the trestle, heard a “frying” noise, like something hot had dropped into water, and saw smoke arising immediately beneath the.engine. The testimony of the engineer and fireman in charge of the engine negatives the conclusion that any live coals or cinders dropped from their engine on the occasion in question.

The question was one of fact, the evidence was conflicting, and its solution depended on the credit to be given to the testimony of the witnesses. The finding of the jury is supported by the evidence adduced on behalf of the plaintiff, and we are not prepared to say that it is erroneous on the face of the record before us.

A more serious question arises as to the amount of damages that should be awarded on the evidence before us. About one-half of the parish bridge was destroyed. The evidence tends to show that the cost of the original structure was about $20,000, and that the bridge was in good condition at the time of the fire.

One witness for the plaintiff, a civil engineer in charge of the United States government works at Plaquemine, estimated the damage at about $18,000. This estimate is more or less guesswork as it is based partly on estimates furnished by others.

Plaintiff offered in evidence an estimate furnished to the police jury by a civil engineer who had examined the bridge for the purpose of ascertaining the cost of restoring the structure to its former condition. The total of this estimate is $11,422. This estimate was ruled out, but has been brought up by bill of exception. It was not admissible except to prove rem ipsam.

Two civil engineers employed by defendant railway, after making a hurried examination of the bridge, estimated the damage at $4,492.50. Neither of. them were practical bridge engineers, but each had some professional knowledge of the subject. Their estimate did not include the .cost of labor on woodwork, the cost of removal of the débris, the cost of connecting the two ends, the cost of false work, and of plans and specifications and of inspection. The difference between their estimate and that of the engineer employed by the police jury is most remarkable as to the quantity of materials required to repair the structure.

We find it impossible on the evidence before us to render an intelligent judgment on the quantum of damages. It being evident that plaintiff is entitled to recover some amount over and above the sum of $4,492.50, the cause will be remanded for further evidence on the question of damages and for further proceedings according to law.

The plea of contributory negligence is without merit. Neither the railway nor the police jury were responsible for the conditions that prevailed. Neither took steps to remove the oil under and around their respective bridges. The proximate cause of the damage was the firing of the oil occasioned by the negligence of the railway.

It is therefore ordered that the verdict and judgment appealed from be reversed, and it is now ordered that this suit be dismissed, with costs as to the Evangeline Oil Company as in case of nonsuit, and it is further ordered that, as to the Texas & Pacific Railway, this cause be remanded for further evidence on the question of damages and for further proceedings according to law, and that the plaintiff pay the costs of appeal.  