on bonds, and it prescribes the conditions under which they may do so. One of its requirements is that such corporation shall have a cash capital of not less than $250,000, and has qualified under the provisions of this act, "and which has assets allowable as such under the laws of this state, or under the laws of the state in which it is incorporated, in excess of its capital stock, outstanding debts and a premium reserve on all outstanding risks," etc. Section 1, Act No. 41 of 1894. The company having complied with these conditions, "it shall become subject to all the liabilities and have all the rights of sureties under the provisions of the law relating thereto; it being the true intent and meaning of this act to enable corporations created for the above purposes to become and be accepted as sole surety on all bonds," etc. Id. (Italics ours.) The motion does not disavow the fact that the guaranty company had in this case qualified itself according to that statute, and hence that fact may be assumed. That statute must be accepted and considered as an amendment to that provision of the Code of Practice relied upon by the appellee. We are of opinion that the district judge disposed of the motion correctly. Motion to dismiss denied.

On the Merits.

(June 28, 1901.)

MONROE, J. This is a suit for the recovery of damages sustained by the plaintiff whilst engaged in assisting in the erection of a brewery, for the building of which the defendant was the contractor. The plaintiff alleges that he is a carpenter; that he was employed in that capacity by John Weiss, the agent and representative of the defendant; and that, whilst engaged in the work for which he was employed, under the direction of both of said parties, he received the injury of which he complains by reason of their negligence and of the fact that they subjected him to danger of which he was ignorant, and of which they failed to warn him. The defendant denies that Weiss was his agent, and avers that he was an independent contractor; and he further denies the negligence imputed to him, and alleges that the plaintiff, when injured, was engaged in the work for which he was employed, and the risks of which he had assumed. There was a mistrial originally by reason of the sudden illness of a juror. Upon the second trial there was a verdict for the plaintiff, which was set aside by the judge a quo. Upon the third trial there was another verdict for the plaintiff, and the defendant has appealed.

The evidence shows that the defendant had contracted to erect the brewery, and that he let out to John Weiss the contract for general work, including the hoisting into position of the iron required in the building; that Weiss employed and discharged his own

mechanics and laborers; and that the defendant communicated with him, and not with the men employed by him. Nevertheless, there is, upon the one hand, an uncertainty as to the precise limitations of this contract, and, upon the other, a certainty that the defendant was continually on hand and in control, even though his directions as to how the work should be done were given to Weiss, that leads us to conclude that the latter was not an independent contractor to the extent of relieving the defendant of liability for his conduct in the prosecution of that work. "The simple test is," says Mr. Wood, "who has the general control over the work? Who has the right to direct what should be done and how to do it? And, if the person employed reserves this power to himself, his relation to his employer is independent, and he is a contractor, but, if it is reserved to the employer, or his agents, the relation is that of master and servant." Wood, Mast. & S. 614, cited in Faren v. Sellers, 39 La. Ann. 1017, 3 South. 363, 4 Am. St. Rep. 256. Upon the merits, the evidence shows that the plaintiff had been working at his trade for about 20 years; that for 4 or 5 years before the date of the accident out of which this suit has arisen he has been frequently employed as foreman; that he was so employed when the accident occurred; and, in the absence of his employer, John Weiss, during certain hours of the day, was left in general charge of the work, and, with another foreman, who had supervision of the laborers, was vested with authority over the workmen, numbering sometimes as many as 35. It is further shown that the defendant's contract called for the construction of a building to be used as a boiler room, the roof of which was to be supported by steel trusses; that the work of hoisting into position and securing the trusses was included in the subcontract taken by Weiss; and that the plaintiff, as Weiss' foreman, superintended and assisted in that particular job, and in placing and making fast the purlins, which, whilst forming part of the roof, served also as braces for the trusses on which they rested. Defendant's contract also called for the erection of an engine room, being a building 29 feet wide by 39 feet long, with walls about 30 feet high, the roof of which was to be supported in a manner similar to that of the boiler room; that is to say, upon two steel trusses long enough to extend from wall to wall, across the building, and placed, as we understand it, about equidistant from the ends of the building and from each other. These trusses, as actually constructed, are steel frames, say 30 feet long and about 6 feet high, and, when in position, with the ends resting upon the walls upon either side of the building, have each the appearance of an open fence, or the skeleton floor of a bridge, set on edge; and it will be readily understood that whilst merely resting on the walls, and until braced in some way, are

very liable to fall to one side or the other. Upon December 28th the plaintiff, according to the allegations of his petition, assisted in hoisting one of these trusses into position, and in bracing it slightly where the ends rested upon the walls. Within the next few days a number of purlins, being rather heavy pieces of wood, intended to extend from truss to truss, and from the trusses to the walls at each end of the building, were hoisted up and placed at random across the trusses; and early in the morning of December 30th, Weiss, who probably had other contracts on his hands, and was in the habit of absenting himself from this particular building for a number of hours each day, leaving the plaintiff in charge, gave the latter certain general instructions, which, together with some other matters of interest, will be best understood from the following excerpt from his testimony, to wit: "Q. Who was next in authority under you? A. William Moffet. Q. Did you have any conversation with Moffet with reference to these trusses and the work to be done on them? A. Early in the morning I did. Q. What was the nature of this conversation early in the morning? A. I told him to divide some of his men off of the boiler room roof, and to continue with the engine room. Q. And after you had that conversation with him, did you remain there or go away? A. I left the works. Q. When did you come back to the works? A. About two o'clock. Q. When you got back to the works, what directions, if any, did you give to Moffet? A. None. Q. Where did you go when you came back? A. I walked up on the roof, through the trusses, and crossed the one, and got over on the fire wall. Q. Where was Moffet when you climbed up? A. On the boiler room roof. Q. What did he do after he saw you? A. He started for the engine room roof. Q. Do you know if anything was said to him? A. Yes, sir; only a remark by Mr. Schroeder. Q. Do you remember what that remark was? A. Yes. He said these trusses were dangerous. Q. Was anything said by Mr. Moffet? A. He said, 'Yes'; but I had my back turned from him. I turned away, and I said, Billy, if that is the case, you will get a line on it.' He said, 'Look out, there they come!' Q. Whose duty was it to put the purlins into position? A. Mr. Moffet's. Q. Who placed the purlins in position on the roof of the boiler room? A. Mr. Moffet." Schroeder was a workman whom Moffet had ordered to assist him in spreading-i. e. placing in their proper positions-the purlins, which were then lying in disorder across the trusses. He testifies that he saw that the trusses, which had either not been set perpendicular when hoisted up, or else had been disturbed by the placing on them of the purlins, were in a dangerous condition, and that he called the attention of Moffet to it. Poree, the contractor for the brickwork, testifies that he saw the danger, and called to

Denny, the foreman of the laborers, who told him to speak to Moffet; and that he then called to Moffet that the whole thing would come down. And Denny testifies that Poree spoke to him on the subject, and that he told him to go to Moffet. Whatever, therefore, may be the value of the plaintiff's denial that he was warned of the dangerous condition of the trusses, the fact remains that the danger was obvious to other persons who did not share his responsibility in the matter; and, whilst the evidence referred to, and other evidence relating to statements made by the plaintiff after the accident, strongly indicate that he was aware of the danger of his undertaking (as he went about it), we find no reasonable explanation or excuse for his ignorance of that danger, if ignorant he was. It was his business and his duty to have known it. And, considering that he had been a carpenter and house framer and builder for nearly 20 years, and had frequently acted as foreman on such work, and had accepted and was occupying the position of foreman on the work in question, and that he had been in charge of similar work, under the same contract, his employer was justified in assuming that such work was not beyond his intelligence or capacity. It was work that had to be done by somebody, and, if Weiss had not believed that the plaintiff was capable of doing it properly, he would doubtless have done it himself, or have employed another man. But we learn from the record that the plaintiff was regarded as a competent man for his position, and there was no reason to suppose that he would be unable to do work which properly belonged to that position, and the risks of which he had assumed in accepting and in holding such position. In this connection it may be remarked that there was a derrick in the building, with guy ropes attached; and it is admitted by the plaintiff, and shown beyond controversy by other witnesses, that by the use of those appliances he might have secured the trusses in a few minutes, and have made them perfectly safe. He took no such precaution, however, but went onto the truss, which he had assisted in putting up, as it was, with the result that it tilted over, and fell to the ground, bringing with it the other truss and the purlins which were on them, and bringing also Schroeder, who had followed the plaintiff, and the plaintiff himself. And the plaintiff's right hand was so badly crushed by some of the falling material that it had to be amputated. We are unable, upon the facts as presented, to reach the conclusion that the defendant is in any way responsible for this deplorable result. No one knew better than the plaintiff how the truss upon which he ventured had been temporarily braced when first hoisted into position, for he had assisted in bracing it. No one knew better than he how to go about bracing it permanently, for he had braced permanently the trusses on the boiler room

roof, and by using the appliances which were at hand he could have braced the trusses in question in the same way, and without danger to himself or his fellow workmen. In a case involving the same principle of law, this court has said: "The deceased entered the employment of the defendant company as a flagman and switchman with a full knowledge of the character of the service required of him and the dangers incident to the employment. He assumed all those risks when he entered into the service of the defendant company. The defendant company did not increase the risk assumed by the deceased, and to which he subjected himself. There was no defect in any of the appliances provided by the defendant company for the performance of the duties required of him, and there was therefore no negligence,"-citing authorities. Dandie v. Railroad Co., 42 La. Ann. 689, 7 South. 792. And upon the same subject the supreme court of the United States has said: "Where an employé is not placed by an employer in a position of undisclosed danger, but is a mature man, doing the ordinary work which he was engaged to do, and whose risks are obvious to any one, he assumes the risks of the employment, and no negligence can be imputed to an employer for an accident to him therefrom." Kohn v. McNulta, 147 U. S. 238, 13 Sup. Ct. 298, 37 L. Ed. 150. The rule, as thus stated, is applicable to the case at bar, and precludes recovery by the plaintiff.

It is therefore ordered, adjudged, and decreed that the verdict and judgment appealed from be annulled, avoided, and reversed, and that the plaintiff's demand be rejected, at his cost in both courts.

On Application for Rehearing.

(Dec. 16, 1901.)

Counsel for plaintiff call attention to the fact that the opinion handed down fails to notice the ruling of the trial judge dismissing a supplemental petition, whereby, after issue had been joined, and after there had been a mistrial, the plaintiff sought to bring into the case an additional defendant. It appears that the supplemental petition in question was dismissed in January, 1900, upon an exception filed on behalf of the original defendant; that the case was thereafter tried, with the result that in June, 1900, there was a verdict and judgment for plaintiff, from which said original defendant appealed; that in November following, after a complete transcript of all the proceedings in the case up to and inclusive of the appeal thus taken had been lodged in this court, the plaintiff obtained an order of appeal from the interlocutory ruling whereby his supplemental petition had been dismissed, and that he undertook to perfect the appeal so taken by filing in this court a transcript of the proceedings which took place in the district court after the appeal has been taken by the

defendant, and by obtaining, upon ex parte application, permission, which was granted without notice or prejudice, to make use of the transcript which had previously been lodged here by the defendant. It seems clear that the appeal thus taken by the plaintiff, whatever may have been its merits, did not have the effect of injecting into the case as brought up by the defendant's appeal any other questions than those presented in the transcript which the defendant had filed. And as that transcript discloses no complaint concerning, or appeal from, the interlocutory ruling dismissing the plaintiff's supplemental petition, and as there is no answer to the appeal taken by the defendant, it follows that the question of the correctness of that ruling was not presented for review in the case which has been decided. If the appeal, as taken on behalf of the plaintiff, is entitled to any consideration, it must be as a sepa rate matter, and it should have been so docketed. We find no reason upon this or other grounds for granting a rehearing, and the same is accordingly refused.

(Supreme Court of Louisiana. Dec. 16, 1901.) CRIMINAL LAW-APPEAL-BILL OF EXCEPTIONS-EVIDENCE.

1. It has been repeatedly held, and the same is now the settled practice in criminal appeals, that testimony found recorded in the transcript will not be noticed unless the same comes up as part of a bill of exceptions.

2. Either the testimony, upon the admissibility vel non of which the court is to pass, must be copied into the bill, or else, if detached therefrom, must be referred to in the bill and specifically made part thereof.

(Syllabus by the Court.)

Appeal from judicial district court, parish of Acadia; Conrad De Baillon, Judge. Joseph James was convicted of crime, and appeals. Affirmed.

Charles F. Garland and Hiram H. Carver, for appellant. Walter Guion, Atty. Gen., and William Campbell, Dist. Atty. (Lewis Guion, of counsel), for the State.

BLANCHARD, J. Six bills of exception appear in this transcript, recording objections of the accused to the ruling of the court excluding testimony offered by defendant and objected to by the prosecuting attorney. Preceding each bill is what purports to be a transcript of the testimony-questions and answers-upon which the bill is supposed to be founded, but none of the bills embody the testimony excluded, and none of them recite that the testimony with reference to which the bills were reserved is made part of the bills.

It has been repeatedly held, and the same is now the settled practice in criminal appeals, that testimony found recorded in the transcript will not be noticed unless the

same comes up as part of a bill of exception. Either the testimony, upon the admissibility vel non of which the court is to pass, must be copied into the bill, or else, if detached therefrom, must be referred to in the bill and specifically made part thereof. The points raised, therefore, in the bills are not presented in proper form for the court to pass upon the same. But, were it otherwise, our examination of the same has led to the conclusion that none of the bills disclose reversible errors.

A seventh bill refers to the judge's refusal to give a special charge requested by counsel for defendant. We do not find that the

judge erred in refusing it. Judgment affirmed.

(106 La.)

STATE v. LOVE. (No. 14,085.) (Supreme Court of Louisiana. Dec. 16, 1901.) CRIMINAL LAW-VERDICT-RAPE.

Under an indictment for rape, a verdict of, "Guilty of assault with 'attempt' to commit rape," is responsive to the charge of assault contained in the charge of rape, and is, in consequence, a good verdict for assault. The words "with 'attempt' to commit rape" do not, under the decisions of this court, convey the meaning of "with 'intent' to commit rape," and are meaningless as qualifying the verdict for assault, and in consequence are plusage.

(Syllabus by the Court.)

mere sur

Appeal from judicial district court, parish of East Carroll; F. X. Ransdell, Judge.

John Love was convicted of rape, and appeals. Sentence set aside and cause remanded

Charles S. Wyly, for appellant. Walter Guior, Atty. Gen., and David M. Evans, Jr., (Lewis Guion, of counsel), for the State.

PROVOSTY, J. The accused was tried for rape, and the jury returned against him a verdict of, "Guilty of assault with 'attempt' to commit rape." The judge, taking this verdict to be equivalent to one of guilty of assault with intent to commit rape, imposed on the prisoner a sentence of 15 years in the penitentiary. The prisoner assigns as error that the judge misinterpreted the verdict; that it was a good verdict for assault, but not for assault with intent to commit rape. The interpretation adopted by the judge is in opposition to the decision of this court in the case of State v. Hearsey, 50 La. Ann. 373, 23 South. 372, and the sentence must be set aside. But is the accused well founded in his contention that the verdict is a good one for assault? He contends that it is; because, he says, the words, "with 'attempt' to commit rape" must be treated as mere surplusage. If these words are not the equivalent of the words "with 'intent' to commit rape," then they are meaningless in qualifying the verdict; for they must mean that or nothing. It is not

possible to assign to them any other meaning. If meaningless in qualifying the verdict, they are mere surplusage. In the Hearsey Case we thus held them to be meaningless to qualify the verdict, and, as a consequence, we must now hold them to be meaningless, and mere surplusage. Such being the case, the verdict was a good one for assault, and the judge should have passed sentence accordingly.

It is therefore ordered, adjudged, and decreed that the sentence herein be set aside, and that this case be remanded to the lower court, to be proceeded with according to law, with instructions to the judge a quo to pass sentence on the prisoner as for assault.

(106 La.)

STATE ex rel. WEBER v. KOHNKE et al. (No. 1,143.)

(Supreme Court of Louisiana. Dec. 16, 1901.) BOARDS OF HEALTH-ORGANIZATION. Considering Act No. 192 of 1898 in connection with article 296 of the constitution, for the carrying into effect of which said act was adopted, and considering the language of said act, whereby provision is made for the organization of municipal boards of health, there is no sufficient reason for holding that the general assembly, in requiring that three out of five members of such boards "shall, if practicable, be duly licensed and registered physicians," intended to prohibit the organization of any municipal boards with more than three physicians as members.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; John St. Paul, Judge.

Application by the state, on the relation of Arthur Weber, for a writ of mandamus to Quitman Kohnke and others. Writ granted, and defendants appeal. Affirmed.

Joseph E. Generelly, for appellants. Armond E. Blackmar, for appellee.

MONROE, J. The relator, who is a dulylicensed physician, was elected by the council of the city of New Orleans a member of the city board of health established under the authority of Act No. 192 of 1898, and was duly commissioned by the mayor. He presented his credentials to the board and demanded recognition, which was denied. He then applied for relief by means of the writ of mandamus, and obtained judgment making the writ peremptory, and ordering the members of the board, defendants herein, to recognize him and accord him the privileges of membership; and the defendants have appealed from said judgment. They base their refusal to accept and recognize the relator on the ground that under the law the board is to consist of five members, not more than three of whom are to be doctors of medicine, and that, as three of them are members of that profession, there is no room for the relator.

Article 296 of the constitution provides

that "the general assembly shall create, for the state, and for each parish and municipality therein, boards of health, and shall define their duties and prescribe the powers thereof. The state board of health shall be composed of representative physicians from various sections of the state. Until otherwise provided by law, both the president and secretary of the state board of health shall be ex officio members of the board of health of the city of New Orleans, the president of the state board to be the president of the local board of the city of New Orleans." Act No. 192 of 1898 was passed to carry this article into effect. It provides for the establishment of a state board of health, to consist of seven representative physicians, to be appointed by the governor, from the various sections of the state; for the establishment of a board from each parish, to consist of one suitable person from each ward in such parish not embraced in an incorporated municipality, to be appointed by the police jury,—with the qualification that "at least three of the persons so appointed shall, if practicable, be duly licensed and registered physicians"; and it further provides that the council or legislative body of each and every municipal government in the state shall "elect, or appoint, five persons in said municipality to be members of the municipal board of health"; that "such persons shall not be members of the said council, or occupy any other office in said municipality, and three of the persons so appointed, or elected, shall, if practicable, be duly registered and licensed physicians." The counsel for the respondents, referring to the provisions relating to the parish and municipal boards, submits the following as the proposition upon which his clients rely, to wit: "In making provision for the creation of local boards of health, two dissimilar conditions were kept in view, and an endeavor made to meet the exigencies of both. Parish boards were to be organized in contradistinction to the boards which were to be elected within every incorporated municipal government. The former, from the very necessities of the situation, were to concern themselves solely with the preservation of the public health within the locality over which they were vested with jurisdiction. The latter were not only to exercise authority over infectious and contagious diseases, but also, in the establishment of health and sanitary regulations, to avoid, without danger to the public safety, injurious and needless burdens on commerce." The text of the act, however, makes no such distinction as is thus suggested. On the contrary, the identical provisions which confer authority on the municipal boards confer it, also, on the parish boards; and the act provides that both parish and municipal boards shall act under the supervision and advice of the state board, and that for the city of New Orleans the state board alone

shall have power to establish quarantine. But the state board, though thus vested with general authority over the parish and municipal boards, and with special and exclusive authority over the matters which mainly affect the commerce of the state, is required by the constitution itself to be composed entirely of physicians. If, therefore, we should adopt the theory propounded on behalf of the defendants, it would seem to lead to the conclusion that the spirit of the act of 1898 was in conflict with that of the article of the constitution for the carrying into effect of which the act was passed. Under these circumstances, we find no sufficient reason for holding that the general assembly, in requiring that three out of the five members of the municipal boards shall, if practicable, be duly registered and licensed physicians, intended to prohibit the organization of such boards with more than three physicians as members. The purpose seems. rather, to be to require that a majority of the members shall be physicians, leaving the selection of the others to the discretion of the municipal councils, though, no doubt, this purpose is more plainly expressed in the provisions relating to the parish boards.

We find no error in the judgment appealed from, and it is affirmed.

(106 La.)

CLIFTON et al. v. HOBGOOD, Marshal, et al. (No. 14,018.) (Supreme Court of Louisiana. Dec. 16, 1901.) PUBLIC IMPROVEMENTS-CONSTITUTIONAL LAW-RAILROAD AID-TAX.

1. Articles 209 and 242 of the constitution of 1879, being in pari materia, are to be construed together, and, so construed, contemplate certain public improvements which are to be confined within the limits of the taxing districts upon which the special tax is to be imposed, and certain other public improvements and railway enterprises which are not to be so confined.

2. Under those articles, and the subsequent legislation upon the subject of special taxation (being Acts No. 84 of 1880, No. 35 of 1886, and No. 153 of 1894), it was competent, upon obtaining the assent of the property taxpayers, in the manner required, to impose a special tax in aid of a railroad which neither passed through nor terminated in the municipality taxed.

3. The legislation referred to contemplates and provides for the imposition at one time, and for the entire term specified in the petition of the taxpayers, of the tax to be levied, and the levying or collection of such tax annually dur ing such term.

(Syllabus by the Court.)

Appeal from judicial district court, parish of De Soto; John Bachman Lee, Judge.

Action by R. T. Clifton and others against W. F. Hobgood and others. Judgment for defendants, and plaintiffs appeal. Affirmed. George E. Head, for appellants. Alexander & Wilkinson, for defendants.

MONROE, J. The plaintiffs, who are property taxpayers of Mansfield, in the parish of De Soto, seek to enjoin perpetually the col