Pierson v. Times-Picayune Pub. Co.

88 So. 77, 148 La. 817, 1921 La. LEXIS 1348

• Court: Supreme Court of Louisiana
• Decided: February 28, 1921
• Docket: No. 22830
• Status: Published

Opinions

On the Exception.

MONROE, C. J.

Defendant prosecutes this appeal from a judgment awarding plaintiff $7,500 as damages sustained by reason of alleged libelous publications appearing in the Times-Picayune, a daily newspaper of which defendant is publisher. It appears that the ease was twice tried before juries; the first trial having been entered upon on April 2, and continued from day to day until May 11, 1917, when, the jury, being unable to agree, was discharged. The impaneling of the jury for the second trial began on May 28, and was completed on June 1, 1917, when the pleadings were read and the case continued to June 6. On June 5, in view of the fact that the summer vacation was to begin on July 1 and to extend to October 15, the counsel representing the litigants respectively, entered into the following agreement (omitting title of case and signatures) to wit:

“In the above entitled and numbered cause, leave of court having been had, it is hereby agreed between counsel for all par-ties that this case shall be continued during vacation, on the 1st day of July, 1917, and shall be tried and disposed of, and the judgment rendered and signed, all as in term time, and if there be any appeal the same may be taken by motion, as well as by petition, within the delays and in the manner prescribed, as if in term time, and that every day except Saturdays, Sundays, and legal holidays shall be counted and considered as a judicial day.”

The case was again put on trial on June 6, and so continued until July 4, when the second mistrial was entered, and counsel for plaintiff then moved that the matter be taken under consideration by • the judge, agreeably to the provisions of Act 51 of 1908, section 1 of which declares:

“That in any case vfimre a jnry has been prayed for by either party, and where the case has been tried twice by a jury without a verdict being reached, no further trial by jury shall be had, but the ease shall be tried by the judge alone, the same as if no jury had been prayed for.”

The motion having been fixed for argument on July 6, defendant on that day interposed certain objections which were overruled, and the judge, considering the Act Of 1908 and the agreement of counsel, ordered that the case be fixed for trial before him on July IS, at which time a .bill of exception, containing the following objections, was presented for signature, and signed, to wit, that Act 51 of 1908 “is unconstitutional, in that it is incomplete and defective in its title” ; that if it be constitutional it does not authorize the trial of the case or the rendition of any judgment therein during the vacation of the court, i. e., between June.30 and October 15; that the agreement of counsel was intended to apply solely.to the jury trial which ended in the mistrial on July 4; that, even if it were susceptible of the interpretation that it was intended to apply to a subsequent trial, defendant has a right to recede from it, and did, in effect, recede, by objecting to going into such subsequent trial; “that there is no law which authorizes the court to take up the trial of a cause where a jury has failed to agree and continue the said cause by rendering judgment therein.”

On July 16 also, counsel, without further objection upon either side, offered all the evidence which they respectively had offered upon the previous trials, and it was agreed that if any evidence had been offered and not filed the counsel by whom it had been offered should have the right to file it, and plaintiff offered some evidence in rebuttal, to which the only objection was that it was irrelevant and immaterial, whereupon the testimony was closed, the case-was argued on the question of the amount of damages, and the judgment was rendered.

The title of Act 51 of 1908, reads “An act in reference to trial by jury in civil cases.” The act contains three sections; the first, is hereinabove quoted; the second declares that no judge shall set aside the verdict of a jury more than twice, and that, should there be three jury trials, the judge shall render judgment on the third verdict without entertaining a motion for a new trial; and the third ■ declares that the act shall not affect pending eases. The substance of the act is therefore strictly germane to the title; and, as has been said with reference to an act entitled “An act relative to finances of the state,” we are not prepared to say that the title does not sufficiently express its object. National Bank v. Mahan, 21 La. Ann. 752. See, also, Board v. Fowler, 50 La. Ann. 1358 et seq., 24 South. 809; Compagnie Francaise, etc., v. State Board, 51 La. Ann. 657, 25 South. 591, 56 L. R. A. 795, 72 Am. St. Rep. 458; Thornhill v. Wear, 131 La. 479, 59 South. 909. In the case last cited, it is said (131 La. Ann. 483, 484, 59 South. 910):

“If the title does not mislead, or if it be such as not to take one by surprise, it may be good, although it may not be as ample as it might be.”

As to the agreement, we find it impossible to conceive how its application can be confined to the jury trial that was pending when it was entered into, since it declares, in terms:

“That this case (not the trial of the case) shall be continued during vacation, * * * and shall be tried and disposed of and the judgment rendered and signed, all as in term time, and, if there he any appeal, the same may he taken * * * as if in term time,” etc. (Italics.by the writer.)

As there had just been one mistrial, it is to be presumed that the possibility of another was within the contemplation of the parties, and they knew that a mistrial does not dispose of a case; also that without a final judgment there could be no appeal; and, further, that, if they desired to confine the application of the agreement to the then pending jury trial, the English language contains words in which that idea could readily be expressed. That the defendant could recede from the agreement, as expressed by its connsel, we very much doubt, but we do not understand that counsel are urging that claim, and we need express no opinion upon it. We conclude that the objections reserved in the bill were properly overruled.