State ex rel. Lacaze et al. vs. Cavanac. Respondent further says, that he is and has ever been ready and willing to do all in his power to enforce the provisions of act No. 31, of 1874; that due notice has been given to all persons doing business in violation thereof to close their said business, but that he is without police or other power to enforce said law, which can only be enforced through the Mayor and Council of the city and the Board of Police Commissioners, and that no other means or remedy can be resorted to than those prescribed in said act, and these the relators do not demand in their petition. Respondent further avers that he is without authority to stand in judgment for the city of New Orleans; and prays that relators' application be dismissed. The allegations of fact contained in the petition of the relators are substantiated by uncontradicted evidence. There is no doubt that there are numerous private markets conducted within twelve squares of the public markets named in the petition, and that said private markets are so conducted in defiance of the law hereinbefore quoted, to the injury of the business conducted by relators in said public markets. It actually appears that the keepers of the private markets have the advantage of being exempt from certain expenses which are imposed upon the butchers in the public markets, for while the latter are required to pay licenses and a bonus for their stalls, no such exaction is made of the former, for the reason that it is considered that they can not be licensed or otherwise sanctioned in the pursuit of an unlawful occupation. It thus appearing that a statute of the State is being violated to the injury of citizens who are pursuing their avocations in conformity to law, we are next to inquire whether the remedy here sought is the proper one. With the policy of this law the court has nothing to do, the Legislature have seen proper to enact it and their right to do so has not been called in question. We have seen that the second section of the act in question authorizes and directs the Administrator of Commerce to close or cause to be closed any private market which "may hereafter be established," etc., in violation of the provisions of section one of said act. The Administrator of Commerce answers, however, that whilst he is perfectly willing to do his duty in the premises, he has no police or other power at his command with which to enforce the closing of the private markets. Respondent further says that due notice has been given to all persons doing business in violation of the act No. 31, referred to, to close their said business, but that the enforcement of said law must be through the Mayor and Council and the Board of Police Commissioners, and that no other means can be resorted to than those prescribed in said law. If this be true, it would be idle for this court to issue a mandamus State ex rel. Lacaze et al. vs. Cavanac. commanding the Administrator of Commerce to close the markets in question, since the court could have no power to enforce an order commanding a physical impossibility. In "High on Extraordinary Legal Remedies," 14, we find this subject treated as follows: "It is a fundamental principle of the law of mandamus that the writ will never be granted in cases where, if issued, it would prove unavailing and whenever it is apparent to the court that the object sought is impossible of attainment, either through want of power on the part of the persons against whom the extraordinary jurisdiction of the court is invoked, or for other sufficient causes, or that the granting of the writ must necessarily be fruitless, the court will refuse to interfere. So, if it is apparent that the writ, if granted, can not be enforced by the court. relief will be withheld, since the courts are averse to exercising their extraordinary jurisdiction in cases where their authority can not be vindicated by the enforcement of process. Nor will mandamus be allowed unless the act or duty whose enforcement is sought is legally possible at the time, and it is therefore a sufficient return to an alternative mandamus that the respondent has no power to do the act required." See, also, 9 An. 513. The act required of the respondent in this case is, that he shall close the private markets. He answers that he has no power to do it, and whilst the act No. 31 of 1874 authorizes and directs him to close said markets, an inspection of the act No, 7 of 1870, by which the present system of city government was established, discloses that the organization of the department of commerce is under the control of the council, who regulate the number of employees in each department. The power of the Administrator of Commerce to obey the mandate of the court would, therefore, depend upon the means furnished him by the council or the police commissioners, and his failure to obey such mandate for want of the necessary power would leave the court in the position of being unable to enforce its orders. It is true that the act relied on by the relators makes it the specific duty of the Administrator of Commerce to give information to the grand jury of the parish of Orleans of any party or parties who have violated the provisions of said act, and it is to be remarked that there is no allegation on his part, either that he has discharged this duty, or that he is without the power to do so. The relators have, however, asked no order upon this subject, otherwise it may be that a more satisfactory response would have been made. The order which has been asked the court is unable, for the reasons given, to grant. That the evil complained of exists there is no doubt; the law of the State is openly violated to the knowledge of those whose duty it would seem to be to see to its vindication; the remedy, however, is not to be found in this proceeding. The rule is therefore dismissed. Johns vs. Brinker. No. 5399. MARY JOHNS VS. HENRY J. BRINKER. The commander of a steamboat has a right to use whatever reasonable and lawful force may be necessary to maintain a proper police of his vessel, and discipline among his employees. Where an employee on board of a steamboat, by her own insolence, insubordination, and threats of personal violence, provokes the captain of the boat into an assault with his hands, resulting in but a trifling injury to her, she will not be entitled to recover in damages. Where the issue involved in the verdict of a jury, and judgment of the lower court, is damages for an alleged assault and battery, this court will not disturb such verdict, and judgment, where they do not clearly appear to be unjust. A PPEAL from the Sixth District Court, parish of Orleans. Saucier, Merrick, Race & Foster for plaintiff and appellant. James D. Coleman and H. E. Upton for defendant. The opinion of the court was delivered by EGAN, J. This is an action to recover damages for an alleged malicious, wanton, and inhuman assaulting and beating the plaintiff, and for defaming and slandering her. The particulars of the alleged defamation are, however, not charged, and that branch of the case seems to have been practically abandoned. The argument of counsel, that the introduction in the trial of this cause of evidence of witnesses tending to affect the reputation of the plaintiff can form an element of damage and a basis of recovery in the present case, is wholly untenable. The case must be tried upon the state of facts alleged upon and existing at its inception. As to this we find no evidence in the record to support the charge of defamation. We have, therefore, to deal only with the alleged assault and battery. The plaintiff was chambermaid upon the steamer Maria Louise, of which the defendant was captain. The occurrence out of which this suit arose took place while the boat was lying at the port of Shreveport, on Red River, in April, 1872, on her return trip from Jefferson, Texas, with a full list of passengers, among whom were a number of ladies. Just as the passengers were about sitting down to dinner in the cabin, it was reported to the captain that the plaintiff was causing some disturbance, to the annoyance of the lady passengers, growing immediately out of a quarrel between her and the colored nurse of the captain's children, between whom and the plaintiff it appears no good feeling existed. It is also charged by some of the witnesses, and denied by others, that the plaintiff was at the time intoxicated, or at least excited by liquor; we do not, however, consider this fact very material either way, and may disregard it in view of the 30 241 107 235 30 241 116 1112 30 241 e124 598 Johns vs. Brinker. other facts proved. The captain on receiving this information went back to the laundry, back of the ladies' cabin, and spoke to the plaintiff, it seems with a view to putting an end to the disturbance and to the consequent annoyance of the passengers. This he had a perfect right, and it was his duty to do in policing his own boat. The preponderating evidence of the only witnesses who heard and saw what passed between them at that time seems to have satisfied the jury and the judge below that instead of yielding to the legitimate authority of the commanding officer, to whose orders and direction it was necessary, and she by accepting employment on the boat had consented, to submit herself, the plaintiff was insolent and insubordinate, and attempted or threatened to strike the captain with a large lump of coal; and that he thereupon either knocked or kicked the coal out of her hands and at the same time slapped her forcibly in the face, causing her nose to bleed and either contusion or fracture of the nasal bone, about which the testimony of two physicians on the record is not accordant, though both agree that there was not even an abrasion of the skin. The plaintiff then very naturally rushed out of the laundry and along the guards in the direc tion of the forward cabin or gangway, and the captain as naturally, to avoid disturbing the passengers and creating a commotion, followed her and forced her back into the laundry, and told her to stay there. Some of the witnesses say he struck her with his fist on the back of the head while on the guards, and others say he did not; at all events it does not appear from the testimony of her own witnesses that any injury resulted from the blows, if given. They could certainly not have been delivered with much force, or under the circumstances she would have been knocked down, and Dr. Kennedy, whom she consulted immediately on her return to New Orleans, says he neither heard of nor saw any other evidence of injury except to the nose. The plaintiff was then paid off and discharged, and left the boat the same day; and after remaining three or four days in Shreveport returned to New Orleans by way of Monroe and Vicksburg, accompanied by a lawyer, who it would appear had fired her with the ambition and belief that she could, under the then existing circumstances and state of public opinion in the country, realize a fortune in the way of damages out of the defendant. Acting under such advice she first had the defendant arrested and carried before a U. S. Commissioner at Shreveport, and afterward at New Orleans, and also attempted to have him indicted by the grand jury in the U. S. District Court for La. but without success. She also instituted this suit to recover ten thousand dollars damages for her wrongs and injuries, and two hundred and thirty dollars and 50-100 for her traveling expenses and doctor's bills. The traveling expenses were simply a consequence of her discharge Johns vs. Brinker. from employment, and as we agree with the jury and court below that under the circumstances the defendant had a right to discharge her, this is no element of recovery in the case. The doctor's bill amounted to ten dollars for a single visit, and the professional services of Dr. Kennedy after her return to New Orleans. The only other element of damage then is that growing out of the assault and battery, with the exception of such professional advice and services, if such they were, as were afforded her by the attorney who accompanied her to New Orleans, and to whose advice it would appear the plaintiff is indebted for this protracted and exaggerated litigation. Of them she says herself that she could not see or did not think this attorney did her any good; she could see nothing he did for her, and she therefore discharged him after paying him three hundred and ninety dollars, and employed the counsel who has since conducted this litigation. There is no evidence in the record to countervail the impressions of the plaintiff herself in regard to the character and value of the services in question. On the contrary, the record would rather make the impression that she had been badly advised and encouraged to embark in expensive and speculative litigation to no profit. The amounts paid her present attorneys for the prosecution of this suit are not recoverable in it even if so large a claim were established by other testimony than that of the plaintiff alone, as it is not. There is no evidence of malice or of wantonness in the defendant in the assault and battery complained of. The plaintiff herself swears that she and the defendant had never previously had the slightest disagreement, and had gotten along well. It is, however, proved to our satisfaction, as it seems to have been to that of the court and jury a qua, that the plaintiff had not properly performed the duties of chambermaid according to the rules of the boat and the orders of the captain, in violation of which and to the annoyance of lady passengers, who complained of it, she had, instead of attending to the berths and rooms in the ladies' cabin herself, frequently made a cabin-boy do so, and had sent the captain an insolent message in regard to it. At the time of the immediate difficulty, as before remarked, she appears to have been not only insolent and insubordinate to the commanding officer of the boat, whose orders it was her duty to obey, but to have attempted actual violence toward him. The court and jury below doubtless thought, as we think from the evidence, that she provoked the difficulty with the defendant by her own misconduct and insolent demeanor, without which nothing in the record leads us to believe it would have occurred. Not only does this impression result from the evidence of the immediate facts, but from the well-established character of the defendant as a peaceable and quiet officer and man who never had a difficulty with any one else, and according to the |