
    Mary M’Gary v. The President and Council of the City of Lafayette.
    Appeal from the District Court of the First District, Buchanan, J.
    
      Roselius, for the plaintiffs.
    
      Michel and Preston, for the appellants.
   Bullaud, J.

This case grew out of that of Hanson et al. v. The City Council of Lafayette, decided in May, 1841, (18 La. 300,) in which we held, that the City Council had a right to construct a new levée in conformity to their ordinance, and to take sixty feet along the river from the break of the bank, and we dissolved. an injunction provisionally granted on the petition of Hanson and others, among whom was the present plaintiff, to prevent the Council from taking a part of their lots.

After this judgment was rendered, to wit: in September, 1841, the present plaintiff presented her petition to the District Court, setting forth her ownership of one of the lots fronting on the new levée, and representing, that she had been formerly disturbed in her possession by the City Council, who asserted a right to make a new levée and road over a portion of her property ; that to prevent their doing so, she with others, had obtained an injunction, which was perpetuated in the District Court, but that on appeal it was dissolved and the suit dismissed; that according to the decision of the Supreme Court, the city authorities have a right to make the said levée according to their ordinance and a plan which they had adopted ; that in obedience to that judgment, she had proceeded to demolish her building from that portion of the lot over which the new levée and road were to run; and that, in order that she might know precisely the line on which she was permitted to build, she applied to the surveyor of the city of-Lafayette, who gave her the lines; that conforming to the lines thus given, and in obedience to the judgment of the Supreme Court, and in conformity to the plan with reference to which said decision was rendered, she removed and proceeded to erect her buildings on her property ; that, having thus submitted to the decree of the court, and abandoned the property claimed by the Corporation, the President and Board of Council are still maliciously and illegally vexing, harassing and disturbing her in the enjoyment of her property; that their intention is, to expropriate and expel her from her property by a course of arbitrary and oppressive proceedings under color and cloak of law; and, that they are about to enter upon and demolish and destroy the buildings and improvements on her property; that, her property is not within the incorporated limits of the city of Lafayette; that the damages already sustained, and which she will sustain, in consequence of these illegal acts and doings, is upwards of ten thousand dollars. She concludes by praying for an injunction commanding the President of the Council and the Board itself, and all other persons, not to enter upon the land of the petitioner, nor to commit any act of trespass thereon, until the further order of the court, and that said injunction may be made perpetual, and that she may have judgment for her damages, and for general relief.

An injunction was accordingly issued, on the 14th of September, and was served on the same day upon Phelps, the President of the Council.

While the injunction was in full force, and while the plaintiff was proceeding w-ith hex building on the line indicated by the City Surveyor, on the 16th and 17th of the month of September, the President repaired in person, wm a number of persons under his command, and demolished a part of the wall which had been carried up one story high. The whole front wall was pulled down, and the side walls, about six or seven feet in depth back from the street.

On the 3d of November following, the defendants filed their answer containing a general denial. They aver, that they have doue nothing, and do not intend to do anything, except what may be authorized by law and by said judgment, for the construction and preservation of the levée in front of the city of Lafayette.

The case was tried by a jury, who gave a verdict for ten thousand dollars damages against the city, and they appealed, after asking unsuccessfully for a new trial.

The record contains a certificate of Hugh Grant, the City Surveyor, dated August 3, 1841, which states, that he had determined and marked the front line of the plaintiff’s property on the levée between Jackson and Philip streets, according to which, twenty-two feet three inches will be cut away from her frame dwelling on the side towards Jackson street, and twenty-one feet four inches on the side next to Philip street.

There is another certificate in the record, dated the 3d of September, signed by Buisson, the former City Surveyor, and who had made the plan in the record in the case of Hanson at al. v. The City of Lafayette. He certifies, that he had determined the front line of the plaintiff’s lot, in conformity to a plan of the new levée ordered by the City Council,'which plan is now deposited in the Supreme Court, in the proceedings above referred to. That he found the line already determined and correctly marked by stakes, which he was told, were placed there on the 3d of August. by Grant, the City Surveyor, as appears by his certificate. He further certifies, that in his opinion, the lot is within the incorporated suburbs of the parish of Jefferson.

Both the surveyors were examined as witnesses on the trial of the cause. Buisson testified, that he was the City Surveyor until July, 1841, and when the plan of the new levée was made, and that he was on the j.ury which determined the lines of the new levée. He was applied to by the plaintiff for her lines in conformity to- the plan for the location of the new levée. He was applied to before the decree of the Supreme Court was rendered. He delivered to plaintiff his certificate, which is in evidence. The plaintiff called on him to examine the lines according to the certificate of Grant, and he found, upon examination, that the lines were in conformity to the plan in the Supreme Court. The line of the projected levée took about twenty feet of the plaintiff’s lot; and this levée was to serve the double purpose of a road and levée. That the projected levée is marked on the plan A, in red lines, and was all that was claimed by the city of Lafayette at the time. He knows, that after the lines were given by him and by Grant, the plaintiff commenced very near the line, but not on it. The building was of brick, and had been raised to the second story, the beams having been placed on. He was present when the President of the Council, and persons under his command, on the 16th and 17th of September, demolished the brick building. The wood' en building had been taken away as far as it was required to be. He says, that the space between the foot of the new levée and low water mark was, on an average, thirty feet, and the distance from McGary’s old house to high water mark was thirty-five feet, and to low water mark fifty-three feet, and that the new briek building is about- twenty-nine feet back of the old one, and consequently sixty-four feet from where the natural break of the bank was, prior to the construction of the new levée; that according to the decision of the jury, the line of the levée was to be as straight as practicable, before each square from Philip to Josephine street; that the line between those streets has been put a little further back than was required by the plan. *

. Grant, the successor of Buisson, testified, that soon after his appointment, he was called on for lines of property on the levée ; that he went to the Supreme Court and got the plans, and afterwards he learned that the court had decided that they were to have sixty feet from the break of the bank, wherever it should be, in each square, in as straight a line as possible, and this makes the difference between the two surveys ; that no more than sixty feet, and that barely, has been taken opposite to McGary’s property from the break of the bank ; that the defendants have taken down a part of the plaintiff’s house, and there is not more than sixty feet between the front as taken down, and the break of the bank ; that the certificate which he gave was given in conformity with the plan in the Supreme Court, and the line which he gave afterwards was because he had to deviate from the first line, because he could not get the sixty feet without doing so, and the same thing has been done all along the front. He saw nothing in the decretal part of the decision of the Supreme Court to guide him in running the line for the new levée ; that he was guided by the decree bodily ; that he interpreted the opinion of the Supreme Court as allowing sixty feet from the break of the bank, before every property, whether it was given in JBuisson’s plan or not; and, by so doing, he moved back the line in some instances on an average, some seven feet.

■ The principal question which the case presents upon the merits, independently of the fact, that the vio ent proceedings of the city authorities were in defiance of the injunction existing at the time, is brought to our attention by a bill of exceptions taken by the defendants to the charge of the Judge. He told the jury, that the proper interpretation of the judgment of the Supreme Court, in the case of Hanson el al. v. The City of Lafayette, was, that the defendants should be allowed to proceed with the demolition of all buildings existing on the space reserved by them for the use of the public, according to a plan made by B. Buisson, City Surveyor, in said suit; that the said judgment gave sixty feet for the use of the public, according to the said plan, and not otherwise ; and that, if the defendants took more ground than was allowed by said plan, they were responsible in damages.

With a view of ascertaining the correctness of this charge of the District Judge, we have looked into the pleadings and decision of the court, in the case alluded to, and we find that the plan of Buisson was not contested by either party. It was with reference to it, that the jury proceeded in laying out the levée ; it was with reference to it, as the basis of the proceedings of the City Council, that the injunction was taken in the first instance in that case. All parties appear to have acquiesced in the fact, that it correctly represented the localities. The President of the Council gave his notices to remove obstructions and buildings on the line of the levée ordained "by the Council in front of and through their property, according to the flan made by the City Surveyor; and the whole litigation turned upon the question whether the line marked out, was such as the law authorized. The City Surveyor was ordered to show the parties the lines when requested ; and the President and Surveyor, were authorized to remove obstructions and incumbrances, always with reference to the plan, and it was, when proceeding to perform their duty, that they were stopped by the injunction in that case. The decree was simply that the injunction should be dissolved ; but that decree necessarily authorized the city authorities to proceed in making the levée according to the plan of Buis-son. The plaintiff, after demolishing her wooden building according to the lines given by Buisson and Grant, which were ascertained by reference to the plan of Buisson in the record, and after laying the foundation of her brick building according to the same lines, apprehensive of further disturbance, sought the protection of the law, and a restraint upon the operations of the defendants, until her rights could be verified by the court. But the defendants chose to take summary justice into their own hands ; to set at defiance the authority of the court, and to proceed to demolish by force, the plaintiff’s building. The court, in our opinion, did not err in their construction of the decree of this court. The plan of Buisson was evidently considered as correct at the time, and representing the new projected levée as at sixty feet from the break of the bank of the river, although subsequently a slight change may have taken place, in consequence of the gradual encroachment of the river. Such a change did not authorize a deviation from the plan, by the sole authority of the City Council.

A motion for a new trial was made on the grounds, 1st, that the verdict was contrary to law; 2d, that the damages are excessive and entirely unsupported by evidence ; 3d, that the charge of the Judge was contrary to law.

We have already expressed our opinion, that the Judge did not err in his charge to the jury, and that the verdict is well founded in law. It only remains to inquire whether the damages are excessive.

The damages are certainly high, but by what standard are we to decide that they are excessive ? The defendants are a political corporation, whose agents openly and wantonly defy the authority of a court of competent jurisdiction, interposing the shield of the law between the oppressors and their victim. The plaintiff took every legal precaution in her power to save her property from destruction, until the court could pronounce upon the new pretensions of the Corporation. If the injunction had been respected, and the case tried upon the question as to the true line, according to the judgment of this court in the case referred to, we should undoubtedly have perpetuated her injunction. The amount of the damages divided among all the citizens of that Corporation, is to each separately a trifle ; and, it cannot be pretended, in a case like this, that the party aggrieved is entitled to a bare indemnity. A lesson may be given to those who invest with power, men who are regardless of law and of private rights. If we were to send the case back to a second jury, there is no reason to suppose, that they would be less alive to the unprovoked wrongs of a fellow citizen.

Michel and Preston, for the appellants,

contended, that the judgment should be reversed on the ground that the damages were excessive, as the whole amount of injury sustained, admitting the defendants to have acted illegally, could not exceed two or three hundred dollars.

Same Case. — On a Re-hearing.

Roselius, contra,

urged, that the judgment should be maintained. The damages were properly allowed. In an action against a wrong-doer for aggravated injuries, the amount allowed as damages should not be restricted to the aetual loss. In the case of Carlin v. Stewart, 2 La. 76, the court said: “ In actions for damages the jury are the legitimate judges of the quantum, and the court will not disturb their verdict.” This doctrine has been recognized in every State of the Union. “ Where there is no rule of law regulating the assessment of damages, and the amount does not depend on computation, the judgment of the jury, and not the opinion of the court, is to govern ; unless the damages are so excessive as to warrant the belief, that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case.” Wooster v. Canal Bridge, 16 Pick. 541. Perry v. Goodwin, 6 Mass. 498, et seq. Smith v. Lush, 4 Eibb, 502. “ In trespass quare clausum fregit, where malice and vexatious and incidental wrongs were proved, the jury may give any amount of damages not exceeding that laid in the declaration, unless so excessive as to be obviously oppressive, or as to evince corruption or vindictive passion.” Major v. Pulliam, 3 Dana, 584.

Simon, J.

We cheerfully assented to the grant of a re-hearing in this cause, regretting infinitely our concurrence in the judgment ; and we greatly lament the necessity we are in, of dissenting from the opinion of our colleague Judge Bullard, on the rehearing.

It appears to us that the former judgment of the court, if persisted in, would violate two very important legal principles. The plaintiff seeks to obtain from the inhabitants of the city of Lafayette who are bound to pay taxes, damages for the destruction of her house by the Mayor, at the head of a gang of laborers hired for that purpose, in violation and disregard of the authority of-a court from which she had obtained an injunction. It is not alleged that the Mayor acted in obedience to a resolution of the Council, but, on the contrary, his malicious motives and intention are averred. The allegations of the petition, which preceded the issuing of the writ of injunction which was subsequently disregarded and violated by the Mayor, are, “ that the President and-Board of Council of the city of Lafayette, are maliciously and illegally vexing, harrassing and disturbing the petitioner in the occupation and enjoyment of her property; that their intention and object is to expropriate and expel the petitioner from her property, by a course of arbitrary, oppressive and illegal proceedings, under the color and cloak of law ; and that, although the individuals composing said Council act in the premises in their official capacity, yet they are in reality actuated by motives of private interest and feelings of malevolence towards the petitioner, &c.” Thus, it is obvious, from the very averments upon which this action is based, that this is an attempt to throw upon the whole Corporation of the city of Lafayette, or rather upon the tax paying citizens thereof, the consequences of the alleged malicious, wilful and personal acts of its agents.

The master is certainly liable to repair the injury which results from the inexperience or negligence of the servant, in the execution of the duties in which he employs him; but not for the malicious acts of the servant, even in the execution of the orders of the master ; for these, the servant alone is liable. See the case of Ware v. The Barataría Canal Company, 15 La. 170, and the case of Gaillardet v. Desmares, 18 La. 490, in which this doctrine is fully recognized, and in which latter case, we said : “ When the acts of an agent which do injury to others are wilful and deliberate, he must answer for his own misbehavior.” The plaintiff, therefore, ought to have proven that the Mayor acted in the execution of the duties of his office, without malice, for he cannot be supposed to have been employed or directed to vent his revenge or malice against the plaintiff. Any act proceeding from malice or revenge must be viewed as his own, and his employers are not bound to repair the injury resulting therefrom..

It is true, the answer alleges,that “the defendants have done nothing, and intend doing nothing, except what may be authorized by law and by the judgment of this court,” and hence, it has been argued, that the Corporation, instead of disavowing the acts of its agents, has thought proper to justify them: but, although the defendants represent the Corporation, their defence cannot change the grounds upon which this action is founded; it is set pp by the very persons whose acts are complained of as malicious, and who arc represented as having been actuated by motives of private interest and feelings of malevolence; and we cannot consider it in any other light but as an attempt to justify their said acts, without any direct bearing upon the extent of the liability of their employers, whose legal responsibility cannot undergo any change or modification without their express consent. It does not seem to us, that the plea that the defendants’ acts were authorized by law, can have the effect of throwing upon the Corporation a liability which is not recognized by law, or of permitting the plaintiff to exercise her rights against it, to a greater extent than that provided for by the Legislature.

Those who violate the laws of their country, disregard the authority of courts of justice, and wantonly inflict injuries, certainly become thereby obnoxious to vindictive damages. These, however, can never be allowed against the innocent. Those which the plaintiff has recovered in the present case, admitting that she was entitled to recover any from the defendants, being evidently vindictive, cannot, in our opinion, be sanctioned by this court, as they are to be borne by widows, orphans, aged men and women, and strangers, who, admitting that they must repair the injury inflicted by the Mayor on the plaintiff, cannot be bound beyond that amount, which will be sufficient for her indemnification. This amount is susceptible of being easily and correctly ascertained. The costs attending the replacing of the building in its original condition, and the sum which will amply compensate the loss of the use of the building, from the moment of its destruction until a new one is completed, are matters of very easy calculation. Damages in a case like this, differ widely from those in an action of slander or crim. con., and the very testimony of the only witness who testified below on the value of the damages sustained, shows it. It is true, that he states that, considering the trouble, vexation, inconvenience and expense which the plaintiff has suffered, he would not be in her place .for less than $10,000; but he also values the loss of the eight feet of ground at $2000, and the walls taken down at $300 or $400. It seems to us so evident, that the sum granted by the jury exceeds immensely the proper measure of damages, perhaps by threefold, that we feel no hesitation in remanding the case for a new trial, in order that the plaintiff may, if she can, introduce evidence tending to establish the liability of the defendants, and the real amount of the injury she has sustained. Such being the opinion of the majority of the court;

It is, therefore, ordered and decreed, that the judgment of the District Court be annulled and reversed ; and that this case be remanded to the court, a qua, for a new trial according to law ; the plaintiff and appellee paying the costs of this appeal.

Bullard, X,

dissenting. My opinion is, that the judgment first pronounced should remain undisturbed.

We all agree, I believe, that the merits of the case are clearly with the plaintiff, and that she is entitled to some damages. The only difficulty is as to the quantum, or, in other words, whether the damages given by the jury, and sanctioned by the court below, are excessive.

After the plaintiff’s house had been demolished, the Corporation, by their attorney, justified the act of their Chief Magistrate. They answered, that they had done nothing, and intended to do nothing, except what may be authorized by law, and by the judgment, for the construction and preservation of the levée in front of the city of Lafayette. The city thus made the act their own, and should not now be listened to, when they urge that they are not responsible for the unauthorized and vindictive conduct of their agents. Those agents were acting within the sphere of their duties, and their conduct is approved by the Corporation,

As the present senior Judge said, in delivering the opinion of this court in the case of Loney v. High, 13 La. 274, which was also for damages done to property, “ there is in such cases, no certain criterion of damages.” Indeed, it seems well settled at this day, that in actions sounding in damages for torts, where the amount cannot be ascertained by computation, verdicts will not be set aside, unless the amount of the damages is manifestly and palpably so enormous, as to strike the mind at once, as the result of passion or prejudice on the part of the jury. In the case of Mathews v. West, which was for trespass committed by forcibly taking and carrying away a load of peaches from the land of the plaintiff, of which she was in quiet possession, the jury gave $200 damages. A new trial was refused, because the act was committed “ in despite of the feelings of the plaintiff, and in opposition to her authority. In a case of complicated injury of this kind,” said the court, “ the rule adopted by the jury in estimating the damages, is not only correct and legal, but redounds to their credit, as it evinces a feeling on the part of the jury, friendly to the good order and well being of society, and hostile to acts of violence and force.” 2 Nott & M’Cord, 415. In Merest v. Harvey, which was an action of trespass, it appeared that the defendant, who had been notified not to sport on the plaintiff’s land, declared with an oath that he would, and accordingly fired several times upon the plaintiff’s land at birds, (which the plaintiff found,) and used very intemperate language. The jury gave £500 damages, and the court refused to set aside the verdict. Chief Justice Gibbs said: “I wish to know, in a case where a man disregards every principle which actuates the conduct of a gentleman, what is to restrain him except large damages;” and he adds, “I do not know upon what principle we can grant a rule in this case, unless we were to lay it down,, that the jury are not justified in giving more than the absolute pecuniary damages which the plaintiff may sustain.” One of the other Judges said: I remember a case where a jury gave £500 damages for merely knocking a man’s hat off, and the court refused a new trial.” 5 Taunton, 442.

In the celebrated case of the King’s messengers executing and endeavoring to justify under a general warrant issued by the Secretary of State, the doctrine was fully gone into. In Hinkle v. Money, the plaintiff was a journeyman printer, and arbitrarily arrested upon suspicion of haying printed the North Britain, and detained six hours, but was very civilly used; the jury gave a verdict of £300, and the court refused to set it aside as excessive, 2 Wilson, 205. In the case of Beardmore v. Carrington, which was more aggravated, the plaintiff being an attorney, and his house having been entered, and his papers and books examined, and finally himself imprisoned under a similar illegal warrant, the verdict was for ¿£1000, and the court refused to interfere, and said: “ We are called upon, on our oaths, to say, whether these are excessive damages or not, and ought to have clear evidence before us, before we can say they are excessive.” The court adds : “ We desire to be understood, that this court does not say, or lay down any rule, that there can never happen a case of such excessive damages in tort where the court may not grant a new trial, but in that case the damages must be monstrous and enormous indeed, and such as all mankind must be ready to exclaim against at first blush.” 2 Wilson, 244. So, in the noted case of the Governor of Minorca, where the verdict was for £3000, the same doctrine was maintained, and it was said ; “ the jury, not the court, are to estimate the adequate satisfaction.”

Cases of the same class are innumerable in the English Reports. On one occasion the Court of King’s Bench said, they dared not set aside the verdict of the jury. A British court does not stop to estimate the value of a few birds killed, or of the grass trodden down, as the measure of damages which a jury is bound to follow ; but from motives of public policy, and for the adequate protection of private property and personal rights, sanctions exemplary damages in cases in themselves trivial, and where little real injury has been sustained. Graham on New Trials, ■passim. 4 Durnford & East, 651. 1 Durnford <fc East, 277, 3 Wilson, 62. 2 Wilson, 160. 4 Sergeant &. Rawle, 27.

Let me advert to the admitted facts in the case now before us, and see whether this court ought to send the case before another jury, on the ground of excessive damages.

The plaintiff had submitted to the judgment of the Supreme Court, and a frame house which encroached upon the street or levée according to that decision, was demolished or removed. Anxious to build so as not again to be troubled, she applied to two different surveyors, who had been successively in the employment of the city, to point out to her the lines according to the plan which had been sanctioned by the Supreme Court. She commenced building a brick house upon her lot, conforming to the lines thus pointed out to her; but fearing that the city authorities would still molest her, she applied to the District Court, and obtained an injunction to restrain their proceedings until the court could pronounce upon the rights cf the parties. The injunction was duly served on the President of the Council, on the 15th of September, and on the two following days the same President went in person, with a number of laborers, and assisted in demolishing the front wall of the new house, which had already been raised as high as the second story. The side walls were also pulled down for seven or eight feet back from the front. This act was done by the President of the Council in virtue of his general power to abate nuisances, and consequently he was acting within the scope of his authority, and the Corporation is responsible for his conduct. It was done in defiance of judicial authority, to which the plaintiff had appealed for protection.

I cannot think we ought to take into consideration in what way the taxable inhabitants of the city of Lafayette are to be affected by this verdict, and that they are innocent of any wrong towards the plaintiff. We must look upon the Corporation as a legal entity, quite distinct from the persons who compose it. If the president and directors of a bank, by negligence or otherwise, render the bank liable for damages, we never consider how the interests of the stockholders are to be affected. That is a question between them and their mandataries.

Was the jury bound to make an exact calculation of the pecuniary loss actually sustained by the plaintiff in the destruction of brick and mortar, the amount of rent required to furnish her a temporary shelter, and the loss incurred by failure of her building contract? Is nothing dire for her trouble and vexation, and the expense of employing counsel, which she necessarily incurred ? Did the court, in the case above referred to of Mathews v. West, consider that the jury was bound to count the peaches taken away, and estimate their value by the dozen or the bushel, as the criterion of damages ? No. In my opinion, exemplary damages were properly given, and, although high, I know not upon what principle they can be declared excessive, according to all the precedents in the books. I venerate those precedents in this class of actions, and I regard an honest jury as the only safe barrier against the abuse of petty authority. Let us not weaken those defences which our ancestors threw around them, for the protection of private property and personal rights. For my part, I rejoice that the last act of my official life consists principally in leaving on the records of this court, in which I have labored for more than eleven years, this expression of my admiration of those great principles, my abhorrence of oppression in all its forms, and of my conviction, that it is mainly by means of fearless and independent juries awarding exemplary damages, that the rights of the citizen can be adequately protected, and violence and outrage suppressed.

In the case of Herwiogene Brown v. Valery Gaudet, from the District Court of St. James, the judgment below was affirmed on appeal, in New Orleans, with damages, during the period embraced by this volume. 
      
      
        Roselius, for the plaintiff, prayed for another hearing in this ease; but the application was rejected, on the ground that one re-hearing had already been allowed.
     