50 F. 170 (E.D.La. 1892), Comitez v. Parkerson

Citation:50 F. 170
Party Name:COMITEZ v. PARKERSON et al.
Case Date:April 23, 1892
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 170

50 F. 170 (E.D.La. 1892)




United States Circuit Court, E.D. Louisiana.

April 23, 1892

John Q. Flynn, for plaintiff.

Henry C. Miller and Chas. F. Buck, for defendants.

BILLINGS, District Judge.

This is a suit brought by the widow of Loreto Comitez for damages for the killing of her husband. The cause is submitted on two exceptions to the petition filed by all the defendants except the city of New Orleans. It is objected that an article from the Times-Democrat has been made a part of the petition. The article is not properly an exhibit, to be considered in connection with the petition in the statement of the plaintiff's complaint. The averments of the plaintiff are made without this article, and then follows the averment as follows:

'To more particularly set forth the facts of this case as herein charged, and detailing more particularly the events which transpired on the morning of said memorable March 14, 1891, petitioner annexes hereto copies of the

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Times-Democrat of March 15, 1891, which contains a full and complete account of the transactions of the day previous, the 14th March, 1891, and makes same part of this petition.'

I think the journalistic account is superfluous, when considered in connection with the averments of the petition, which contains, without this article, the complete statement of the plaintiff's case. It could not be read to the jury without producing an effect distinct from and in addition to the mere statement of the case which the plaintiff intends to offer proofs in support of. It would produce an effect which should come from proofs adduced in the manner which the law directs, viz., from witnesses giving their testimony under oath, and liable to cross-examination. It is therefore not only superfluous, but unauthorized, and the exception to it is maintained.

The other exception urges the improper joinder of the exceptors with the city of New Orleans as joint defendants in the same action. The individuals are sued for the killing, and the city for not preventing the killing. At the common law, in a trespass all are principals, and all and each of the trespassers are liable for all the injury done. 5 U.S. Dig. p. 537, tit. 'Trespass,' 159. Among those who must make reparation for a trespass are 'all who contributed to the action either by doing what he ought not, or by omitting...

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