author: REYNOLDS, J.

text:
    No. 3035
    Second Circuit
    POINTDEXTER ET AL. v. LOUISIANA & ARKANSAS RY. CO. (CARTER ET AL. Called in Warranty)
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)
    (March 31, 1930. Reversed by Supreme Court on Writ of Certiorari and Review.)

      Blanchard, Goldstein & Walker, of Shreveport, attorneys for plaintiffs.
    White, Holloman & White, of Alexandria, and Wilkinson, Lewis, Wilkinson & Buford, of Shreveport, attorneys for defendant and warrantors.
   REYNOLDS, J.

Plaintiffs, Jane Pointdexter, and Helen Pointdexter sued the Louisiana & Arkansas Railway Company to be recognized as the owners of an undivided half of lots 15 and 16 of block 2 of the John N. Howell subdivision of the city of Shreveport, La., and for a partition of the property in kind or by licitation; alleging that the entirety of the property was acquired by their father, Robert B. Pointdexter, on February 16, 1892, by recorded title, during the existence of a community of acquets and gains between him and their mother, Mrs. Alice G. Pointdexter; that their mother died in February, 1897; that they were the only children and sole heirs of their father and mother; that their mother left a last will and testament constituting them her sole heirs; that the will was duly probated and ordered executed; and that they thereby became owners of an undivided half of the lots of ground described.

They further allege that the Louisiana & Arkansas Railway Company is a corporation organized under the laws of the state of Arkansas, and operating a railroad partly within the state of Louisiana, and is in possession of the described property, and claims to own the entirety thereof in virtue of mesne conveyances going back to one made by Thomas B. Chase as executor of the last will and testament of Robert B. Pointdexter to Foster Carter, and that this sale was only pretended.

Defendant denied that plaintiffs were the owners of an undivided half or any other interest in the property, or that they were entitled to a partition of it in kind or by licitation, and denied that the sale by Chase as executor to the author of its title, Foster, was pretended, and averred that, on the contrary, the sale was legal and legally made for the purpose of paying debts legally owing by the community existing between plaintiffs’ father and mother; and it further averred that, even were it otherwise, the plaintiffs, as beneficiary heirs of their father, would be es-topped to question the validity of the sale.

It further alleged that it purchased the property in good faith, by warranty deed translative of property, duly recorded, from Felix H. Drake and 'William Buchanan; that they purchased it in good faith, by warranty deed translative of property, duly recorded, from Foster Carter; and that Foster Carter purchased it in good faith, by -warranty deed translative of property, from the succession of Robert B. Pointdexter.

It further alleged that it and the authors of its title had, in good faith, been continuously in actual physical possession of the property as exclusive owners of it ever since the sale to Poster Carter, and that it had been in such possession of the property and using it for railroad purposes ever since it purchased the property from Drake and Buchanan April 27, 1909.

And it pleaded the prescriptions of two, four, five, ten, and twenty years in bar of plaintiffs’ action.

In a supplemental answer, the defendant alleged, in the alternative “that the property involved in the suit is actually used and occupied by defendant railroad for railroad purposes and has been for fifteen years, more or less, and is absolutely esseñtial to the operation of defendant company, and that plaintiffs in no event can recover the same or dispossess your defendant from same.”

Defendant called the widow and heirs of Poster Carter in warranty, and they answered and set up the same defenses as the defendant did.

On these issues the case was tried, and judgment as follows was rendered:

“In this case, the court being of the opinion that the plaintiffs, Jane and Helen Pointdexter, acquired a valid title to an undivided one half interest in and to iois 15 and 16 of block 2 of the John N. Howell subdivision in the city of Shreveport., Louisiana, as per map recorded in conveyance book ‘P’, page 911, of the records- of Caddo parish, Louisiana, by Inheritance from their mother, Mrs. Alice G. Pointdexter, and that such title was not divested either by the administrator’s sale made in i.he succession of Robert B. Pointdexter, or by any prescription thereafter accruing, and being further of the opinion that the plaintiffs are precluded from asserting their rights of ownership of such undivided one-half interest by reason of the fact that the property is being used by the defendant Louisiana & Arkansas Railway Company as an integral and necessary part of its railway system, it is ordered, adjudged and decreed:
“(a) That the various pleas of prescription filed by defendant be and they are overruled.
“(b) That plaintiffs’ demands for recognition of their ownership of an undivided one-half interest in and to the aforesaid property, and a partition thereof, be and they are hereby rejected.
“(c) That plaintiffs’ right to obtain adequate compensation for the taking of their property by the defendant railway company in an appropriate proceeding therefor, be and it is hereby recognized and reserved.
“It is further ordered, adjudged and decreed that plaintiffs pay the cost of this suit, and that the rights of the defendant, the Louisiana & Arkansas Railway Company, against its warrantors, Mrs. Alice Guy Carter, Mrs. Alice Reel Hodges and Louis Guy Carter, be and they are hereby-reserved.”

From this judgment the plaintiffs and defendant and the warrantors appealed:.

OPINION

It is contended by plaintiffs that defendant did not ask that they be relegated to an action for the value of their property, and that, even had it done so, this should not have been decreed, inasmuch as since the Constitution of 1898 payment in advance to owners of the value of property taken for railroad purposes is required. '

This contention cannot be maintained, as it was held in Roussel v. N. O. Ry. & Light Co., 152 La. 517, 93 So. 758, 759, that:

“Where part of the property sued for in a petitory action is in the possession of an electric railway company having the power of eminent domain and expropriation, plaintiffs will be relegated to a right of action for damages so far as the portion of the property in the railway company’s actual possession and use is concerned.’’

See, further, St. Julien v. M., L. & T. R. Co., 35 La. Ann. 924; Lindner v. Y. & M. Y. R: Co., 116 La. 262, 40 So. 697.

, We do not understand plaintiffs to contend that the property was not in the actual possession of defendant, or that it was not actually being used for railroad purposes, or that defendant does not possess the right-of expropriation.

. Defendant contends that, inasmuch as the husband is personally liable for the debts of the community, and the interest of the heirs of the wife only residuary until the community is liquidated, the affairs of the community were properly administered in his succession, and the sale of the property therein legal and valid; and it cites many decisions as supporting the contention, including Oriol v. Herndon, 38 La. Ann. 760.

Neither the inventory nor the petition nor the order for the sale described the property as community property.

So much of the inventory as is pertinent here reads as follows:

“All of lots 15 & 16 of Blk 2 of J. N. Howell’s subdivision^ Shreveport, La.”

'The writing of the words “One half community interest in and to” and the canceling of them by running a line through them was apparently done at the time of the making of the inventory and by the notary who made it.

. The petition for the sale reads as follows:

“Succession of R. B. Pointdexter.
“No. - District Court Caddo Parish, La.
‘.‘To the Hon’l Judge of said Court.
“Now comes Thomas B. Chase, executor of above succession, and represents that tjher.e are many debts due by said succession which should be paid, and that there are no funds on hand with which to pay them, and that a sale of all the property of said succession is necessary thereto. Wherefore he prays that an order be granted for the sale of all the property of said succession and that a commission issue to him or to any duly qualified officer to make said sale. He prays for all orders and decrees necessary, for costs, and for general relief.”

The order, which is indorsed on the petition, reads as follows:

“On reading the foregoing petition, the law being in favor thereof, it is ordered that all the property, movaule and immovable, of the succession of Robert B. Pointdexter, dec’d, be sold to pay debts, and, in pursuance of this order, that a commission of sale issue to Thomas B. Chase, executor, or to aiiy duly qualified officer of Bossier and Caddo parishes, authorizing him to make said sale, after due advertisement and according to law.”

We do not think this petition and order authorized the sale of the deceased wife’s interest in the property. Festivan v. Clement, 135 La. 938, 66 So. 304; Ervin v. Shelby’s Heirs, 146 La. 574, 83 So. 835. And especially in view of the holding in the recent case of Phillips v. Phillips, 160 La. 813, 107 So. 584, that “under Rev. Civ. Code, arts. 915, 916, 2404, 2420, wife’s half interest in community property is not a mere expectancy during marriage, but is vested in her the moment it is acquired by the community. * * * ”

The two-year prescription, under article 2630 of the Civil Code, pleaded by defendant, is inapplicable here.

It was held by the Supreme Court, in Amet v. T. & P. Ry. Co., 117 La. 454, 41 So. 721, that “the short prescription of two years applies only when there has been a judgment of expropriation, and the corporation has entered into possession before the payment of the compensation awarded.”

And in Scovell v. St. L. S. W. Ry. Co., 117 La. 459, 41 So. 723, that, “after thorough and mature consideration, this court held, in the case of Mrs. Volcy Amet v. Texas & Pacific R. R. Co., * * * (117 La. 454) 41 So. 721, that this prescription applies only where the property has been taken in pursuance of a judgment of expropriation.”

Nor is the five-year prescription, under article 3543 of the Civil Code, applicable. That prescription only cures informalities growing out of a public sale. The sale, in the husband’s succession, of the deceased wife’s moiety of the comirunRy property, under a petition,jand order that did not describe the property as community property, was a radical vice, and not an informality.

The ten-year prescription, under article 3478 of the Civil Code, pleaded by defendant, had not accrued at the time plaintiffs’ suit was commenced.

Jane Pointdexter was born January 17, 1891, and became of age January 17, 1912. Helen Pointdexter was born February 27, 1898, and became of age February 27, 1919. Citation was served on defendant December 29, 1921.

Under the law, as ic stood when the suit was brought, prescription acquierendi causa did not accrue against one who was a minor at the time it began to run until ten years after she became of age. Sanders v. Ohio Oil Co., 155 La. 740, 99 So. 583. And, as the suit was commenced before Act No. 161 of 1920, amending article 3478, took effect, plaintiffs’ rights were not affected hy that amendment. The act specifically says: “Provided that this act shall take effect on January 1st, 1922.”

The issues raised by the call in warranty fell with the rejection of plaintiffs’ demands.

Under the law and the evidence, the judgment appealed from is correct, and accordingly it is affirmed.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 3598
    Second Circuit
    SEARS v. INTERURBAN TRANSP. CO., INC. (UNION INDEMNITY CO., Warrantor)
    (January 31, 1930. Opinion and Decree.)
    (March 24, 1930. Rehearing Refused.) ■
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      White, Holloman & White, of Alexandria, attorneys for plaintiff, appellee.
    Hawthorn, Stafford & Pitts and Overton & Hunter, of Alexandria, attorneys for defendants, appellants.
   DREW, J.

George E. Sears, the plaintiff, vendor Of busses, and N. W. Walker, president of the defendant, Interurban Transportation Company, Inc., buyer and user of busses, arranged an automobile trip into Mississippi for the purpose of establishing a bus line in that state and with the view of Sears selling the defendant company the busses it would use in that venture. Accordingly, about noon of February 19, 1928, Mr. Walker left Alexandria, La., in a Chrysler coupe belonging to the defendant, and drove to Natchez, Miss., where, by prior understanding, he met the plaintiff. About the hour of 4:30 the following afternoon, with Walker at the wheel, they drove the Chrysler 117 miles to Jackson, Miss., arriving there at about 8:15 p. m. The following morning, with Walker driving, they proceeded as far as Hattiesburg, Miss., where they both got out of the car. On resuming the journey, plaintiff took the wheel, to relieve Walker of the strain of driving. Sears had driven the car 12 or 15 miles out of Hattiesburg, with New Orleans as the ultimate destination, when he reached the summit of a hill, the descent of which stretched before him approximately 700 yards. ' As he proceeded down the hill, ‘he observed, parked about the bottom of the descent, a Ford automobile, standing on its left, or wrong side of the road, and apparently deserted. When within a distance of 150 feet from said Ford car, plaintiff, having ease'd over to the left of the center of the road, in order to pass the Ford, the Ford started, and proceeded towards its right of the road. Sears had reduced his speed from 35 miles an hour, at the summit of the hill, to approximately 25 miles an hour, at the time the Ford started up.

Plaintiff turned the car to the right, to miss the Ford, and headed towards the embankment, which was 6 or 7 feet high at that point of the road, and, to avoid going off the embankment, he turned the car sharply towards the left again, and headed towards the Ford. In order to miss the Ford, he headed it again towards the right, and succeeded in passing the Ford without hitting it. He again turned to the left and then to the right at least twice, after passing the Ford, each time going perilously near the embankment on each side. Finally the right rear wheel went over the embankment, and the car traveled practically sideways for a distance of 20 or 30 feet, when it turned completely over, and righted itself on all four wheels.

Plaintiff was seriously injured in this accident, and instituted this suit against the defendant for the sum of $9,500, alleging that the car he was driving was the defendant’s car, and that it was defective in its steering gear, or in some manner that affected the steering, that the defendant knew of the defect, but that plaintiff did not know of it prior to the accident, and that the defect was the cause of the accident.

Defendants deny that the car was defective as alleged, and aver that, if there was any peculiarity about the car, it was known to plaintiff; they deny negligence on the part of defendant, Interurban Transportation Company, Inc., and plead contributory negligence on the part of plaintiff, in that he was driving at a reckless rate of speed going down hill, where the car was likely to skid in loose gravel, and in approaching a car parked on the wrong side of the road at an excessive speed.

Defendant Interurban Transportation Company, Inc., called its insurer, Union Indemnity Company, in warranty, to defend the suit.

The warrantor urges the same defense as the defendant against the plaintiff, and denied the right of the defendant to hold it liable on the policy.

The case was tried without a jury, and the lower court rendered judgment in favor of plaintiff in the sum of $5,000, from which judgment both defendant and warrantor have appealed.

This particular car had been in a wreck in December, and some part of the steering apparatus had been damaged, which was fixed by defendant and paid for by warrantor herein, and the day before this trip Walker, president of the defendant company, had told plaintiff that the car did not steer properly, that the steering gear was not in proper shape, and that he would either haye the car fixed or would bring his wife’s car on this trip. The car was worked on by defendant’s mechanics the evening before the trip, and the repairs to the car amounted to putting what are known as “shims” in the front axle. The “shims” were put in to prevent the car from “shimmying’’ but caused the car, when making short curves, to turn too quickly, to be too quick in action. They did not have any effect of this kind in ordinary driving or in taking an ordinary curve, but that in short, quick turns, as were necessary at the time of the accident, the car would turn too quick; that is, go too far to the right or left, as the case might be.

When Mr. Walker left Alexandria in the car, he was told by his mechanics that the car had been fixed, and he had reason, at that time, to believe the'car was in good shape; but he testifies that, before he reached Natchez, he discovered that there was a peculiarity about the steering; that the car cut quickly, more so than the ordinary car, and cut quicker than it did before the mechanics worked on. it. He attributed this peculiar steering to the fact that, in order to remove the “shimmy” from the wheels, the axle had been “shimmed” up; in other words, they had put some pieces of tin, or something of the kind, between the axle and the spring, which would give the axle more pitch, and that this naturally makes a car respond more quickly. He said he did not know whether you could consider it tricky or not, but it might be; that it was peculiar in a way; that it cut quickly.

The fact that the car would cut too quick on a sudden turn, is shown conclusively by witnesses for both plaintiff and defendant.

This was known to Mr. Walker, who did not inform the plaintiff of this peculiarity of the car. Plaintiff had never driven this car before, and had no knowledge of its defects or peculiarities.

The uncontradicted testimony of Sears is as follows:

“Q. What,, if anything, did Mr. Walker say about the steering gear being defective or out of line?
“A. He didn’t say anything about it.
“Q. What objection, if any, did he make to your taking the wheel?
“A. Well, as we came out of the barbershop of the Hattiesburg hotel the car was parked directly in' front, and I walked around to the driver’s side, and Mr. Walker said: ‘You better let me handle it,’ and
I said, ‘Well, you are tired, been driving, and I know these roads thoroughly’; because previously that was my territory, and I had been up and down the road a number of times.
“Q. Did he make any objection to your taking the wheel, other than that?
“A.. No, sir.
“Q. Say anything further about the car steering badly or improperly?
“A. No, sir.
“Q. Did he at any time caution you as to driving?
“A. No, sir.”
Mr. Walker’s testimony on this point is interesting:
“Q. ’ Haven’t you driven with Sears a good many times before?
“A. Well, I had driven with Mr. Sears some before; don’t know just how many times.
“Q. Your hesitancy in his taking the wheel this time, was that just normal hesitancy, or wasn’t it because you thought tn car tricky or unusual?
“A. Well, I couldn’t hardly say. I suppose I had some feeling about the car; the particular car.
“Q. Didn’t you think it was more dangerous than usual to drive this car?
“A. Well, with a car turning quickly at a touch that way, it would probably be more dangerous for him than it would be for me.
“Q. Well, didn’t you feel that when he took the seat; wasn’t that the reason you hesitated about that?
“A. Well, I had some feeling along that line, and would naturally feel that way if any one took the car to drive it.
“Q. Didn’t you feel more than usual at that time?
“A. I had a hesitancy about letting him drive it, but object. I didn’t want him to drive it, but as I remember, I didn’t chime in with him when he agreed to drive it.
“Q. You didn’t call his attention to the cutting too far or responding peculiarly as you state?
“A. No, sir.
“Q. You didn’t call his attention to the peculiarity of the car, did you?
“A. No, sir — I didn’t.”

Plaintiff was an experienced automobile driver, and defendant contends that he had been driving the car 12 or 15 miles and had watched Walker drive for 200 miles on this same trip, and therefore he should have discovered the peculiarities of the car. Sears states that he had noticed no peculiarity in the steering until the occasion came to cut suddenly; and Walker testified as follows:

“Well, I don’t think there was anything noticeable about the car not steering properly, because we had no chance of anything that looked like an accident.”

Defendants contend that the testimony of Mr. Walker should be taken with caution, for the reason that his liability is fully protected by the insurance company ‘and he and plaintiff are good friends. This might be true ordinarily, but in this case the insurance company is not assuming liability, but denies its liability to defendant if the acciderit should be held to have been caused by a defect in the steering part of the car; therefore any admission by Walker against his interest will be given due credit, the same as though his liability was not insured.

The preponderance of evidence is that the car would cut too quickly and too far, when it became necessary to make a sudden turn, and was, to that extent, a tricky car; that defendant had knowledge of this defect and did not impart that knowledge to plaintiff.

Was this defect of the car the cause of the accident?

There were three eyewitnesses to the accident — Sears, Walker, and the driver of the Ford car — all of whom testify that the road was good, a highway 35 feet wide, smooth, no ruts, and no loose gravel to amount to anything, and that the situation was not dangerous until the Chrysler began cutting backwards and forwards across the road; that there was plenty of room for it to pass the Ford, and that it did actually pass the Ford without any collision; that plaintiff was not driving at an excessive rate of speed, but was driving m a safe and normal manner. The driver of the Ford testified that he saw plaintiff’s car as it came over the hill. Therefore the blowing of the horn would have been a useless thing to do.

If the Chrysler had not cut too quickly and too far when plaintiff first cut to the right, there can be no doubt that plaintiff would have gone past the Ford without any further turning; and certainly after plaintiff passed the Ford there was no occasion for the Chrysler to continue to cut hack and forth across the road, unless it was due to the defect in steering. Plaintiff was an experienced automobile driver, having driven cars since 1910, and not shown to be excitable or nervous in disposition, and the reasonable conclusion is that, if it had not been for the tricky steering of the Chrysler, he would have been able to have righted the car, even after having passed the Ford, and prevented the accident.

Plaintiff believes that the tricky steering of the Chrysler was the cause of the accident, and Mr. Walker undoubtedly believes the same, as is shown by his admissions after the accident.

He told Sears a short time after the accident that he should not have let him drive the car because the steering gear was not right on it; that it had been worked on and he thought it was fixed, but it was not —still in bad condition.

Walker told Wingate Battle of his regret of the accident and of his close friendship for plaintiff, and, but for a defective steering apparatus, the accident would not have occurred. He also told C. E. Beard that Sears got behind the wheel on leaving Hattiesburg; that Sears was talking quite a bit, and he (Walker) was doing most of the listening; that he had the steering gear worked on the night before in Alexandria, and thought it was fixed, but found it was not fixed, and that he had in mind to caution Sears regarding the steering gear on several occasions, but, as Sears was talking, he did not interrupt him, as everything was going all right.

Mr. Boyd, driver of the Ford, testified that the wheels of the Chrysler were wobbling very badly, and the wobbling was not due to the driver handling the steering wheel. This was just before the accident.

We are convinced that the tricky condition of the Chrysler was the cause of the accident.

Defendants plead contributory negligence, and the burden of proof is on them to show plaintiff was guilty of such negligence. Buechner v. New Orleans, 112 La. 599, 36 So. 603, 66 L. R. A. 334, 104 Am. St. Rep. 455; Mequet v. Algiers Mfg. Co., 147 La. 364, 84 So. 904.

The defendants have failed to meet that burden, as the evidence clearly shows and is uncontradicted that plaintiff was driving at a normal rate of speed, and that there was no apparent danger until after the Ford started, and that plaintiff acted as any prudent man would have done under the circumstances when he cut his car to the right to avoid a collision with the Ford. Potter v. Glassell, 146 La. 687, 83 So. 898.

Any negligence shown on the part of the , driver of the Ford car could be of no avail to defendant, for, when the negligence of defendant is shown, the fact that a third person was also guilty of negligence which contributed to the injury of the plaintiff, will not relieve the defendant from liability for its negligence. Huddy on Automobiles (8th Ed.) p. 364; Shield v. F. Johnson & Sons Co., 132 La. 773, 61 So. 787, 47 L. R. A. (N. S.) 1080; Churchill v. T. & Pac. Ry. Co., 151 La. 726, 92 So. 314.

W.e cannot imagine any defect in an automobile that would render it more dangerous than a defect in its steering apparatus, for, when one loses control of the direction the car will take, he is in the power of a dangerous machine, and in the present day, when all highways are filled with automobiles, driven by both skilled and unskilled drivers, even to children of tender years, when the deaths from automobile accidents run into the thousands yearly, not counting the other thousands who are injured in automobile wrecks, most of which could be avoided, and our court dockets are crowded with damage suits arising from such accidents, such an emergency as faced the plaintiff in this case cannot be classed as an extraordinary danger not to be reasonably anticipated, for it is nothing unusual for a car to have to turn suddenly to the right or left to avoid a collision with another car, and a car so" defective in its steering as to be unsafe at such a time is a dangerous machine, and it is negligence to allow it to be driven on the highways by others, and gross negligence for the owner with such knowledge of its defects to allow another to drive the car without informing him of the defects.

Plaintiff and Mr. Walker, president of defendant company, made the trip into Mississippi for the purpose of investigating the proposition of putting in a bus line by the defendant company and plaintiff hoping to sell to defendant the necessary busses to operate said line. The car was owned by defendant company and was in charge of its president, who had complete control of said car, and right to forbid plaintiff to drive the car, and it is not shown that plaintiff had any control over the use or manner of use of said car. Walker at least owed to the plaintiff ordinary diligence, and the defendant is responsible for ordinary neglect. Cody v. Venzie, 263 Pa. 541, 107 A. 383.

In Joyce v. Brockett (1923) 205 App. Div. 770, 200 N. Y. S. 394, it was held that liability may not rest upon the driver of an auto because of the failure of the brakes Lo hold when going down a hill, where the failure to work was unexpected and where upon the same trip it had worked properly while descending a number of hills, and where the brake shoe had been adjusted two or three days before the accident.

And it is stated in Mitchell v. Raymond, 181 Wis. 591, 195 N. W. 855, that there is no intention to limit or withdraw anything that has been said heretofore in such cases as Greenfield v. Miller, 173 Wis. 184, 180 N. W. 834, 12 A. L. R. 982, and O’Shea v. Lavoy, 175 Wis. 456, 185 N. W. 525, 20 A. L. R. 1008, or to qualify the rule thereby recognized, namely, that the guest who comes upon the premises or enters a vehicle of another must take such premises or vehicles as he finds them, and as it pleases the owner, in 'the exercise of his right of dominion over his own property, to maintain the same, provided, of course, such owner does not fail in his duty of informing or warning the guest of that which might be considered a trap or concealed defect, or by no act of his create a new danger. 40 A. L. R. 1344.

The general rule is that, where an owner of an' automobile knows of its defects and allows another to drive it without warning him of its defects, which .ire unknown to the driver, he is guilty of negligence and liable for whatever damage is caused by accident in which the defect of the car was the cause.

In the case of Joyce v. Brockett, heretofore cited, the defendant had his brake fixed and had no knowledge that it was not in good shape, .in that manner distinguished from this case.

In case of O’Shea v. Lavoy, 175 Wis. 456, 185 N. W. 525, 20 A. L. R. 1008, the original defective part of the car was not what caused the accident, the part that had been repaired was not what gave way, and defendant could not have had any more knowledge of its weakness than the plaintiff.

In Hennig v. Booth, 132 Atl. 294, 4 N. J. Misc. Rep. 150, 47 A. L. R. 332, the defendant did have knowledge of defect in accelerator, and for injury to guest caused by said defective accelerator was held liable in damages.

■ Other cases cited by defendant and warrantor are distinguished from the present case, in that defendant herein did have knowledge of defect in steering of car and failed to warn plaintiff.

The plaintiff has made out his case with a preponderance of evidence, and is entitled to judgment against defendant for damages for injuries received in the accident.

The injuries received by plaintiff are described by Dr. Allen as follows:

“Suffering with multiple contusions of the body and lacerated wounds of right knee joint, opening the joint, and contusions and lacerated wounds of the left side of the face made by some sharp instrument, which severed the soft parts, passed through the superior maxillary bone and entered the nasal cavity. Those two wounds to the knee and face were the most serious. There "were other minor injuries.”

He was confined to the hosnital in New Orleans from February 21st to May 12th, and suffered great pain due to the treatment necessary. His pain was so great that it was necessary to give him opiates during that time. It was necessary for him to remain in one position in bed for nearly 60 days, as the attention to the knee consisted of immobilization and extension. Dr. O’Kelly, nose and throat specialist, attended him on a number of occasions for the nasal injury. His treatment was very painful. The seventh nerve, which is the motor nerve of the muscle of the face, was severed, resulting in some deformity of the face, made noticeable in any change of expression. It is a permanent disturbance of a paralytic nature. After he left the hospital, he received treatment at home from Dr. Allen and Miss Sue Price, a professional masseuse, each treatment causing him great pain. There is considerable stiffening and limitation of motion in the knee joint, 30 per cent disability in the range of motion. They are permanent.

Plaintiff was engaged in the automobile business, and, in order that he might drive a ear, it was necessary to have a special seat constructed for him, due to the injury to his knee, which prevents the free movement of his leg.

Plaintiff’s expenses during confinement on account of said injury, including hospital bills, doctor’s bills, and nurse’s bills, amounted to more than $2,000, his loss in earning for 1928 are shown to be in excess of $2,000, and we do not think a judgment for $7,500 is too much in this case.

Warrantor denies liability to the defendant under the policy of insurance for the reason that the steering gear on the same car was damaged in a wreck in December prior to the accident involved in this case and defendant fixed same in its own shop, presented bill for labor to warrantor, which was paid, and that, by undertaking to repair the steering gear itself, defendant was responsible for its failure to properly repair it, and relieved warrantor of liability for faulty repairs. It was not established that the repair work done by defendant was faulty or that the same damage to the steering gear existed at the time of this accident as did in December prior. To the contrary, the testimony is that the thing that caused the car to be so very tricky on the day of the accident was the shims that were put in said car the day before the Mississippi trip.

We do not think the warrantor’s defense to its liability under the policy of insurance held by defendant is well founded.

The only remaining question in this case is $750 claimed by defendant against warrantors as attorney’s fees, alleging that defendant was forced to employ attorneys to defend this action after warrantor had refused to defend said suit without reserving its right to contest its liability to defendant in case judgment was rendered against defendant. There is no contest over the fact that the policy of insurance calls for all expenses incurred in defending such claims as this present suit, or that insurer is obligated to defend all such actions for the insured. Warrantor claims it was willing to defend the suit with such reservation, and that it was entitled to do so.

The policy reads as follows, in part:

“If thereafter any suit is brought against the assured to enforce such a claim for damages, the assured shall immediately forward to such Executive Office of the Company every summons or other process, and the Company will defend such suit, whether groundless or not; the expenses incurred by the Company in defending such suit, including court costs and all interest accruing after entry of judgment, will be borne by the Company,” etc.

Defendant complied with the policy in every respect, and, when warrantor refused to defend the suit without reservations, defendant was forced to employ attorneys to look after its interest, and same is a just expense incurred by the defendant in defending the suit. Warrantor is now before this court denying liability to defendant which would in itself require defendant to employ counsel to represent it.

We see no merit in warrantor’s contention. The lower court rendered judgment in favor of defendant against warrantor in the sum of $750, over which amount there is no contest, and we see no reason for disturbing that judgment.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by increasing the amount of judgment rendered in favor of plaintiff, George E. Sears, and against the Interurbana Transportation Company, Inc., from $5,000 to $7,500, and, as so amended that the judgment of the lower court be affirmed; costs of both courts to be paid by appellants.


author: HIGGINS, J. JANVIER, J. JANVIER, J.

text:
    No. 11,879
    Orleans
    JOHN BONURA & CO., INC., v. TEXAS & N. O. R. R. CO.
    (March 10, 1930. Opinion and Decree.)
    (May 5, 1930. Rehearing,
    1930. ^ Writ of Certiorari and Review Denied by Supreme Court) (October 20, 1930. Writ of Certiorari and Review Denied by U. S. Supreme Court.)

      Chas. F. Fletchinger, of New Orleans, attorney for plaintiff, appellee.
    Denegre, Leovy & Chaffe, and N. P. Phillips, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiff sues defendant for the sum of $406.75 damages alleged to have been sustained' on a shipment of a car containing 320 crates of “Iceberg Lettuce,” consigned to plaintiff at New Orleans by Louis . Garat from Colma, Cal., on July 27, 1927; the car arriving at its destination over the lines of defendant as delivering carrier on August 5, 1927.

The petition charges that the loss and damages sustained to the lettuce resulted from the improper handling of the goods in transit; the failure of the carrier to transport the perishable goods in a car properly cooled and conditioned with equipment especially adapted to that purpose; to steadily maintain the requisite refrigeration from point of origin to time of delivery to petitioner.

The defendant admits the issuance of the bill of lading, but denies all other allegations in the petition, and especially pleads that “if the condition of the said shipment when delivered at destination was not good (which is denied for want of information) that this was due to a defect or vice in the property or to causes for which the carrier had no control and for which they were not responsible.” In this connection respondent specially pleaded section 1 of the bill of lading under which the shipment moved.

There was judgment in favor of plaintiff for the full amount of the claim, and defendant has appealed.

The pertinent parts of the bill of lading read as follows:

“Dry car — Vents closed plugs in to first icing station. Ice to full capacity at first icing station, adding two per cent salt of tank capacity. Keep fully iced to destination, adding two per cent salt of amount ice furnished with each re-icing. 7500 pounds top ice.”
“Section 1. (b) No carrier or party in possession of all or any of the property herein described, shall be liable for any loss thereof or damage thereto, or delay caused by the act of God, the public enemy, the authority of law, or the act of default of the shipper or owner, or for natural shrinkage * * * except in case of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be on the carrier or party in possession) the carrier or party in possession shall not be liable for loss, damage or delay occurring while the property is stopped and held in transit under the request of the shipper, owner, or party entitled to make such request, or resulting from a defect or vice in the property, or for country damage to cotton or from riots or strikes.”

The record shows that Louis Garat, the shipper, had fourteen years’ experience as a shipper and distributor of fruits and vegetables in California. That the plaintiff has been in the business of buying and selling fruits anc vegetables in the city of New Orleans for a number of years. Plaintiff ordered a carload co~taining 320 crates of “Iceberg Lettuce” from Louis Garat. At the request of the shipper the lettuce was inspected by a representative of the United States Department ‘of Agriculture (Bureau of Agricultural Economics), whose certificate of inspection was introduced in evidence by plaintiff, and as far as concerns the quality and condition of the lettuce reads as follows:

“Lettuce fresh, crisp and well trimmed. Wrapper leaves good green color. Stock free from defects, consists of about 60% firm and 25% fairly firm; 15 to 20 per cent soft or tip burn.”

It is explained by witnesses for plaintiff who are experienced in the handling of vegetables and fruits that 60 per cent firm means that the lettuce is of such solidity that it is desirable; 23 per cent fairly firm means it is not quite as good as firm but still comes within the grade considered as desirable lettuce; and 15 to 20 per cent tip burns means that the lettuce shows a slight burn or brownish burn on the outer tips or edges of the outer leaves which can be caused by several elements or growing conditions, but does not affect the soundness of the lettuce. In short, the testimony of the plaintiff established unquestionably that the lettuce was in good and sound condition at the time that it was loaded into the car, and if placed in a refrigerator car properly equipped and iced should have been in good and sound condition upon its arrival in New Orleans. The shipment left Colma, Cal., about 7 p. m. on July 27th, and arrived in New Orleans on Friday, August 5th, about 6. a. m. — nine days later.

The plaintiff admits notice of the arrival on August 5th. Mr. Bonura testifies that hé inspected the goods on the same day it arrived and found the lettuce in bad condition, generally affected' with a slimy decay or rot. That he declined to accept the shipment and immediately took the matter up with the shipper’s broker in New Orleans as to the responsibility for the damaged goods. After communicating with the shipper concerning the condition of the lettuce, the shipper insisted that the lettuce had been inspected at point of origin and was in good and sound condition as appears from the government certificate of inspection, hence he was not responsible for any loss, and that plaintiff must look to the defendant carrier.

Plaintiff then accepted the goods from the defendant on August 9, 1927. On the day of acceptance pláintiff requested a federal inspector to inspect and report as to the condition of the lettuce. The report is as follows:

“In outer row of crates next side walls of car, decay ranges from 4 to 50%, average for these crates approximately 20%. In 3 center rows of load in most crates from 4 to 25%, few none, average for the three center rows of crates approximately 10%. Decay is Slimy Soft Rot- affecting generally from 3 to 5 leaves.”

Plaintiff then caused it to be sold at public auction by the Fruit & Produce Exchange, Inc., whose business it is in this market to sell such products. It appears that the Exchange sells only on Monday, Wednesday and Friday. Due to the negotiations with the shipper concerning responsibility for the damages to the lettuce, the ear was accepted on August 9th, and offered for sale on Wednesday, August 10th. All of the lettuce was not sold on the 10th, and the balance twas sold on the 12th.

The goods were sold for $889.25. The market price of the lettuce at the time and place of delivery would have been $1,'296 had the lettuce arrived in good condition. Plaintiff therefore claims the difference between the market price of good lettuce at the time of delivery and the amount realized from the sale of the damaged lettuce as the loss which it sustained, or $406.75.

The defendant’s evidence shows that the refrigerator car in which the lettuce was shipped was properly equipped and cleaned and the vents closed and plugs in; that the car was properly inspected and ice and salt added to the bunkers at ten stations en route, not including the initial station. The car was inspected by defendant three times in New Orleans and ice and salt added to the bunkers once before plaintiff accepted the shipment. Most of the evidence of the defendant is taken by deposition, the witnesses testifying that they were referring to the company’s records, although the original records were only produced in two instances. In short, the evidence offered by defendant, if accepted as true, would show that the refrigerator car in which the lettuce was shipped was in good condition and properly equipped and cleaned; that it was thoroughly iced to its capacity at the point of origin and at ten intervening stations en route was re-iced and salt added in accordance with the instructions of the shipper; that the car arrived in New Orleans with the seals intact within nine days or under schedule time for such shipment; and that upon arrival of the car in New Orleans the bunkers were re-iced to their capacity and salt added and that proper refrigeration was maintained from the time the car left Colma, Cal., until it was accepted by plaintiff in New Orleans.

We therefore have a situation before us where the plaintiff’s evidence, if accepted as true, proves a case of liability against the defendant carrier. On the other hand, if the evidence of the defendant is accepted as true, it has proved itself to be free from fault and negligence but has failed to prove the reason why the lettuce deteriorated or decayed.

We are of the opinion that the certificate of inspection of the representative of the United States Department of Agriculture and the other evidence offered by plaintiff in support thereof proves that the lettuce was “fresh, crisp and well trimmed” when loaded in the car on July 27, 1927. The federal inspector’s report of August 9, 1927, offered in evidence by the plaintiff and supported by the plaintiff’s other proof, establishes the fact that when the car was opened on that date the lettuce was generally in a state of decay or slimy soft rot affecting three to five outer leaves. It is established that the market was up at the time the merchandise arrived on August 5, 1927, and that the plaintiff could readily have disposed of the lettuce at a substantial profit. Therefore, there can be no good reason why plaintiff would refuse to accept the shipment when delivered, unless the merchandise was in the state of deterioration or decay which Mr. Bonura says the lettuce was, the day he inspected it on its arrival. If the market were down at the time, there would be a reason for saying that the plaintiff misrepresented the condition of the merchandise when it was delivered. However, such is not the case here.

We are also satisfied that the acceptance of the car on August 9th, and the sale of the merchandise on the 10th and 12th, respectively, was effected as promptly as possible under the circumstances and the loss minimized as much as possible.

The witnesses for the defendant, who iced the car en route, admitted that if the merchandise were in sound condition at the time it was placed in the car, and if the car was properly equipped and iced, the lettuce would have been in good merchantable condition upon its arrival in New Orleans, and that perishable merchandise or vegetables were regularly shipped from California to New Orleans in refrigerator cars without affecting their merchantability. It is impossible to reconcile these statements with the other statements of the witnesses that their records show that the car was properly cleaned, equipped, and iced at the initial point and proper refrigeration- maintained in transit and in New Orleans up until the time of acceptance by the plaintiff. The defendant non-resident witnesses’ testimony taken by deposition shows the number of pounds of ice remaining, in the bunkers upon the arrival at the respective ten ■ stations where the car was re-iced and salt added. The testimony of the witnesses at New Orleans as to the icing of the car shows merely an approximation of the quantity of the ice in the bunkers, i. e., seven-eighths, thirteen-sixteenths, eleven-sixteenths full, and the number of pounds of ice and salt added; but these witnesses admitted that it is impossible to tell how many pounds of ice remain in the bunkers without actually taking the ice out and weighing it. This testimony, therefore, is inconsistent with the testimony given by the non-resident witnesses. It is to be noted that the capacity of bunkers of the car was 10,600 pounds of chunk ice. Apparently the reports used by the non-resident witnesses in giving their testimony as to the re-icing at the respective stations, the number of pounds of ice remaining in the bunkers was approximated by deducting the number of pounds of ice added from the total capacity of the car. Nevertheless, a tabulation of the icing records as testified to by the non-resident witnesses gives the number of pounds of ice remaining in the bunkers as a mathematical certainty and not as approximations. All these reports are alike in this respect; add the number of pounds of ice remaining in the bunkers to the number of pounds of ice that was placed in the bunkers makes the total number of pounds of ice in the bunkers exactly equal to their total capacity of 10,600 pounds.

We are impressed with the fact that the decay was general throughout the car and only the outer leaves of tho lettuce were affected. This would indicate there was no inherent vice in the lettuce that caused it to deteriorate but improper refrigeration. The inspector’s report shows greater percentage of decay in crates next to the walls of the car than other parts of the car.

Realizing that great weight must be given to the certificates of the federal inspectors at the point of origin and destination concerning the condition of the lettuce, counsel for defendant argues that we only have Bonura’s statement that the merchandise was in a decayed state when it arrived on August 5, 1927; and that in going in and out of the car warm air may have gotten into the car and caused the slimy rot reported by the inspector on August 9, 1927. This argument is not tenable for the reason that defendant’s evidence shows that the car was inspected three times after its arrival in New Orleans and that it was necessary only once to add 3,000 pounds of ice and 60 pounds of salt from period of August 5 to August 9, 1927. Further, plaintiff’s evidence shows it is customary for merchants to open the cars and inspect them upon their arrival, and that going in and out of the car will not affect the perishable goods if the door is not left open. Finally there could be no motive for the plaintiff to say the merchandise was damaged, as the market was up and plaintiff could have sold the lettuce at a profit.

The judge a quo found that the merchandise was in good condition when shipped and in a decayed condition when received, and that the perfect icing record by the railway company cannot be reconciled with the rotten and decayed 'condition of the lettuce upon its arrival in New Orleans, and that the railway company had failed to exculpate itself from liability. In short, as we view the reasons for judgment as given by the trial judge, he believed the evidence and testimonj' of the plaintiff and did not believe the evidence and testimony of the defendant.

The burden of proof is unquestionably upon the carrier to prove itself free from negligence. Guidry v. Texas & Pacific Railway Co., 6 La. App. 169; Bonura v. Payne, 7 La. App. 754; and Chalona v. American R. R. & Express Co., 11 La. App. 18, 123 So. 147.

In the case of Guidry v. Texas & Pacific Railway Co., supra, a similar case was presented involving a shipment of vegetables from Hahnville to Chicago and delivered in bad condition. In reviewing the testimony of the defendant’s witnesses in that case, this court said:

"But the' testimony of these witnesses must be taken with all the influences of interest and uncertainties of times and conditions. They handle thousands of cars and speak of occurrences years behind and mostly from records. There is every occasion for error and confusion.”

In the case of Chalona v. American R. R. & Express Co., supra, this court in speaking of the limitation of liability for loss resulting from defects or inherent vices contained in the bill of lading, said:

“This limitation, however, does not relieve the defendant of the obligation of proving that the cause of the loss was one of the things within the limitation.”

The evidence in this case does not, in our opinion, bring defendant’s case within any of the limitations of liability provided in the bill of lading.

As we view the case an issue of fact is primarily involved, and a careful reading of the record does not convince us that the judge a quo was manifestly in error.

Judgment affirmed.

JANVIER, J.

(dissenting). I am forced to disagree with my associates in their opinion that defendant should be held liable here. The amount involved' is small, and therefore the payment of the judgment, I am sure, will give the carrier no great concern. But I fear that the principle involved will, 'if followed in the future, establish a doctrine that a carrier of perishable vegetables is an insurer thereof and that liability for loss resulting from decay during transit cannot be avoided no matter how perfect the proof of the carrier’s freedom from negligence. It is important to note, at the outset that the district judge has plainly fallen into error in stating in his written reasons for judgment that the bill of lading acknowledges receipt of the lettuce in good condition, because, as is evidenced by the record, the shipment moved under what is known as a “shipper’s load and count” bill of lading, which, as I understand it, means that the shipment was loaded and counted entirely by the shipper; that it was not inspected by the carrier; and that the carrier, at point, of origin, knew nothing whatever of the quantity, quality, or condition of the contents of the car.

The bill of lading contained the following stipulation:

“No carrier or party in possession of all or any of the property herein described, shall be liable for any 'loss thereof or damage thereto, or delay caused by the act of God, the public enemy, the authority of law, or the act of default of the shipper or owner, or for natural shrinkage * * * except in case of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be on the carrier, or party in possession), the carrier or party in possession shall not be liable for loss, damage or delay occurring while the property is stopped and held in transit under the request of the shipper, owner, or party entitled to make such request, or resulting from a defect or vice in the property, or for country damage to cotton or from riots or strikes.”

The law relative to the liability of the carrier for losses due to decay in shipments of perishable fruit and vegetables is very plain, and we find it well stated in McNeil & Scott Co. v. Great Northern R. Co., 156 -Minn. 120, 194 N. W. 614, 616. With reference- to -the carrier, the court said:

“He is not an insurer that ■' perishable freight, which term includes such commodities as fruits and vegetables, will be delivered at destination undamaged.' His undertaking in transporting sucli commodities is to exercise reasonable and ordinary care to preserve and deliver them in a sound condition. If they arrive in an unsound condition, he is not liable in the absence of evidence that negligence on his part caused, or aided in causing, the damage. Evidence that the shipment was in sound condition when received by him and in an unsound condition when delivered at destination is prima facie proof that the damage was caused by-his negligence; but he may rebut this presumption by showing, in any way that he can, that he was not at fault. George B. Higgins & Co. v. C. B. & Q. Ry. Co., 135 Minn. 402, 161 N: W. 145, L. R. A. 1917C, 507.”

This court followed this rule in Joseph Chalona Co. v. American Ry. Express Co., 11 La. App. 18, 123 So. 147, which is a case so absolutely identical with that now before us that, in my judgment, it cannot be distinguished, and in which case this court said:

“It will be seen, then, that the carrier is called on to furnish affirmative proof showing all essential matters with reference tó the handling of the car.”

Here the proof is overwhelming that the car which contained the shipment was in good condition; that the time consumed in making the trip was remarkably short; that the car was not opened or tampered with en route.

I say here, as we said in the Chalona case:

“The sole remaining question, and the most important one, is whether or not the car was kept properly iced throughout the journey. Defendant offers a mass of evidence from every point, between the two termini, at which the car was stopped for icing to show that the ice bunkers were replenished ten times en route after the initial icing and twice more after arrival in New Orleans and before consignee accepted delivery.”

Here the icing and salting records are absolutely perfect and they show that, at every point at which the car stopped for ice en route, its bunkers were filled to capacity and that at none of these points had the ice in the bunkers been reduced to less than seven-eighths of the entire capacity of the bunkers, and they also show that the bunkers were kept full of ice during the five days the car remained in New Orleans after its arrival.

It would serve no good purpose to detail the evidence as to the handling of the car and as to the icing thereof. Suffice it to say that the record is perfect and shows not one minor detail in which the carrier was at fault.

But, say my associates and the district judge, the lettuce was in good condition when shipped and in bad condition when inspected here five days after arrival. In other words, no matter what the care of the carrier, it is liable if a perishable shipment, when inspected after arrival, is found to be in poor condition. I do not understand that to be the law of this or of any other state in the Union.

The carrier has completely sustained the burden of showing its own freedom from negligence. This is all that, in my judgment, it is required to do.

. On the other hand, there is in the record evidence as to certain things at both ends of the line, which evidence renders it very doubtful if the lettuce was in good condition when shipped, and also throws grave doubt on the question of whether it was in bad condition when it arrived in New Orleans.

The inspector’s certificate at point of shipment shows, among other things, “15 or 20% soft or tip burn.”

It is true that a diligent effort is made to prove that “tip burn” is of no importance and that softness in no way affects the quality of lettuce or its ability to withstand shipment. However, one of the witnesses for plaintiff admitted that “it does not affect the soundness of the head of lettuce unless it becomes very prominent and to the extent where it develops into slime.” This statement I consider quite significant in view of the fact that the slimy condition, when, five days after arrival, it was finally inspected at destination, is what is complained of.

But the most suspicious circumstance is the conduct of plaintiff here. When the car arrived, plaintiff examined the contents and, in spite of the claim now made that they were rotted and slimy, plaintiff did not, at that time, complain to the carrier, nor did it obtain an official inspection, but, inscead, allowed the contents to remain in the car more than four days, entering the car several times during that period, and did not obtain an official inspection until the fifth day.

In view of these facts, I feel that the real cause of the condition of the lettuce was its inability to withstand shipment, and that the carrier has established, beyond the fondest expectations of the most optimistic defense attorney, absolute freedom from negligence.

In the short span of life of every vegetable' there comes a time at which its precarious existence approaches what in humans is described as “three score years and ten,” and when, though apparently in perfect health and vigor, it is, nevertheless, on the verge of decay and collapse. An inspection today may give the impression of soundness; tomorrow, or on the next day, a mere layman can tell that it is on the brink of the grave. It is like the biblical “grass of the field which today is and tomorrow is cast into the oven.”

If this were not so, why would such vegetables be called “perishables”?

At the time of shipment the lettuce had reached a period in its brief existence at which it was about to spoil, but at which, so far as an inspection could show, it was in good condition.

I find that at point of destination the actions of plaintiff were most suspicious. On the arrival of the car it was opened by plaintiff’s representative, and, it is now contended, was found to be largely spoiled. What did plaintiff do? Did it cause an official inspection to be made? No. Did it complain to the carrier? No. For five days it did neither of these normal, customary things. I cannot believe that this plaintiff, who, according to the records of this and other courts,' is thoroughly familiar with the methods of procedure in. filing claims and instigating suits thereon,, would have allowed five days to elapse before calling attention to the deterioration, if in fact it existed when the shipment arrived.

During the five days in question the car was opened many times by repi’esentatives of plaintiff, and it may well be that the consequent admission of warm air was responsible for the decayed condition of the lettuce when the official inspection was finally made.

At any rate, as between the positive, affirmative, flawless proof of the carrier, and the evidence offered by plaintiff, I believe that that of the carrier substantially preponderates.

I am unable to understand the statement contained in tbe Opinion of tbe trial judge to the effect that “the case appears to be a test case.” I see nothing in the case which would indicate the necessity for a test, unless it be on the question, as the trial judge states, of whether or not, where the carrier shows a perfect record of handling, it is nevertheless liable solely by reason of the fact that a loss has occurred. If this is the legal question that is being tested, I am thoroughly convinced that the answer is that, where the carrier of perishables shows, as it has shown here, that the container was in perfect condition, that usual customary schedules were maintained, and that the car was properly iced at all times, there is no liability in the carrier.

I therefore respectfully dissent.

ON APPLICATION.FOR REHEARING

........................, J. Since the opinion in this case was handed down, wei have been favored with a number of briefs prepared by prominent members of the bar, representing' public carriers, and filed with us as amici curiae, in support of appellant’s application for a rehearing. The apparent interest in the litigation, the eminence of counsel and their standing at the bar, impels us to depart from our usual custom of acting upon applications for rehearing without comment.

"We have carefully reconsidered the case and have come to the conclusion that our former decree was correct. The case is ■one which we find difficult to realize as of the transcendent importance imputed to it by counsel, since it involves a simple question of fact. A shipper of lettuce sues to recover for damage to the shipment sustained in transit. The carrier defends on the ground that the damage was due to an inherent vice or defect in the lettuce. The trial court held, under unquestionable and unquestioned authority that the burden of proof was upon the carrier and that it had failed to sustain this burden; and this court, under the authority of hundreds of cases of our Supreme Court and of this court, to the effect that a trial court’s finding of fact will not be disturbed unless manifestly erroneous, held that there was not sufficient evidence in the record to justify a finding that there had been manifest error in the judgment complained of.

The rehearing applied for is refused.

JANVIER, J., dissents for written reasons on file.

JANVIER, J.

(dissenting): I cannot agree that this case really presents a question of fact.

The trial judge in his statement suggested that this is a test ease. I assume that his statement means: “Is a carrier liable for deterioration in perishable shipments, where the uncontroverted evidence shows that the shipment was transported promptly, the car used was in perfect condition and all icing and other instructions given the carrier were carried out to the letter?”

In my opinion the question should be answered in the negative and I believe that the opinion rendered by the majority of the court, in effect, answers it in the affirmative. I consider the legal question so important that I have decided to depart from my usual custom, and to. dissent from a refusal to grant the rehearing.


author: JANVIER, J. JANVIER, J.

text:
    No. 13,371
    Orleans
    ASSOCIATED MOTORS, INC., v. BURK
    (June 16, 1930. Opinion and Decree.)
    (July 23, 1930. Rehearing Granted.)
    (October 20, 1930. Opinion and Decree on Rehearing.)
    D. R. Wertheimer, of New Orleans, attorney for plaintiff, appellee.
    F. B. Freeland, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Associated Motors, Inc., by executory process, caused the seizure and sale of a Lincoln automobile. Pending the sale the American Manufacturing Company seized, under a writ of fieri facias, all right, title and interest of Joseph T. Burk in and to the automobile. At the sale the automobile brought $500, which was more than enough to satisfy the mortgage claim of the Associated Motors, Inc., but not enough to satisfy the claim of one Joseph David, holder of a recorded second mortgage, and, of course, not enough to satisfy the claim of the American Manufacturing Company under the judgment obtained by it in another suit.

Associated Motors, Inc., by rule nisi, sought to compel the constable, who had conducted the sale and who held the proceeds, to turn over sufficient of those proceeds of the sale to satisfy the first mortgage claim of Associated Motors, Inc.

Joseph David, holder of the second mortgage, by similar proceedings, sought to obtain the balance which would have remained had the claim of the Associated Motors, Inc., been paid. Both rules were made absolute and the constable was ordered to apply the proceeds, first, to the payment of the first mortgage claim of .Associated Motors, Inc., and the balance to the payment of the second mortgage claim of Joseph David.

From this judgment the American Manufacturing Company prosecutes this appeal.

We are asked to dismiss the appeal on two grounds: That the judgment has been acquiesced in and that the question of the priority of the liens has become moot because of the alleged release of the seizure made under the writ of fieri facias issued on behalf of American Manufacturing Company.

Appellant contends that the motion to dismiss comes too late, since it was filed more than three days after the filing of the transcript of appeal.

Mover, however, counters with the suggestion that it is not all motions to dismiss which must be filed within three days of the lodging of the transcript, but only those which are based on informalities and irregularities in bringing up the appeal, and that a motion to dismiss because of acquiescence may be filed at any time. This seems to be correct. James v. Fellowes, 23 La. Ann. 37; Cockerham v. Bosley, 52 La. Ann. 65, 26 So. 814; Jackson v. Parish of Vernon, 150 La. 1057, 91 So. 509.

The acquiescence is claimed to result from the fact that the writ, under which the sheriff, on behalf of the American Manufacturing Company, attempted to seize, in the hands of the constable, the rights of Burk in and to the automobile, was returned unsatisfied and that the return showed that the attorney for the American 'Manufacturing Company had instructed that the seizure be released.

This would seem to be a very serious contention, except for the fact that the judgment appealed from was not rendered until some time after the return of the writ, and except for the further fact that another return was afterwards filed showing that the recitals contained in the first were erroneous.

So far as the charge that the judgment has been acquiesced in is concerned, we find in" the supplemental brief filed by counsel for appellee an admission that there was no acquiescence, since the act charged as acquiescence took place before the judgment was rendered.

We also find that the question presented here in the contention that the right of appellant, being based on the alleged error, has been lost by the release of that seizure, was not presented below because at the time of the trial it had not been discovered that the return of the sheriff showed the release of the seizure.

Since there are two returns, one showing a release and another showing that the first was erroneous, and since appellee insists on its motion to dismiss, we deem it advisable to remand the matter to the trial court, to the end that there the facts concerning the two returns and the truth of the recitals therein contained may be investigated, and so that the court may render on the question now presented, such judgment as may seem to it appropriate.

For the reasons assigned it is ordered, adjudged, and decreed that this matter be remanded to the First City Court of New Orleans, for further proceedings not inconsistent with the views herein expressed, and it is further ordered that the costs of this appeal be borne by the appellant. All other costs to await final judgment below or final decree of this court.

ON REHEARING

JANVIER, J.

This matter is before us . on rehearing and the only question which we are now considering is whether the appeal should be dismissed because of acquiescence in the judgment and because of the loss of appellant’s rights by the voluntary dismissal of the seizure by which alone his lien was brought into existence.

The facts are fully stated in our original opinion.

Our former decree remanded the matter for the taking of testimony as to the matters set forth in the second return of the sheriff.

Both parties at interest have requested that a rehearing be granted and that we render a final decree on the record as it is now constituted without requiring that additional evidence be submitted below and we, therefore, deemed it advisable to recall our order remanding the matter for further testimony.

There is no doubt that the writ of fieri facias under which the seizure was made was returned by the sheriff and that neither á copy thereof nor an alias or alternative writ was retained by him. Thus such seizure as there had been was released and any lien the seizing creditor may have had as a result of that seizure was lost. When the lien was lost manifestly the claim for a share of the proceeds as a lienholder was also lost. Black v. Catlett, 1 Rob. 540; Simpson v. Allain, 7 Rob. 500; Sheldon v. New Orleans Canal & Banking Co., 11 Rob. 183; Roman v. Denny, 19 La. Ann. 524.

This resulted immediately upon the filing of the return by the sheriff and no subsequent return could reinstate it.

It is, therefore, ordered, adjudged and decreed that the appeal be and it is dismissed at the cost of appellant.


text:
    No. 13,288
    Orleans
    MADISON LUMBER CO. v. CRANE SERVICE CO., INC., ET AL.
    (April 21, 1930. Opinion and Decree.)
    (May 5, 1930. Rehearing Granted.)
    (June 16, 1930. Opinion and Decree on Rehearing.)

      Deutsch & Kerrigan and Bert Flanders, Jr., of New Orleans, attorneys for plaintiff, appellee.
    P. M. Milner, of New Orleans, attorney for defendants, appellants.
   JANVIER, J.

This is a suit against the surety on the bond of a general public contractor for the price of certain lumber sold to a subcontractor and not paid for.

The subcontractor, Crane Service Company, Inc., is also sued but so far as it is concerned there is no defense, and the sole question for our determination is whether the surety, on the bond of the general 'contractor, is liable for lumber bought by the subcontractor for use in preparing a foundation for a pile driver to be used over water, and for use in making repairs to the pile driver.

The work in question was the construction of the bridge over the New Basin Canal at South Claiborne avenue, and, under the subcontract, the Crane Service Company, Inc., subcontractor, undertook to construct the coffer dam in the middle of the canal. This construction work required the use of a pile driver and in' order to place the pile driver over the water, the Crane Company purchased certain piling and heavy timbers to be used in the construction of a temporary foundation on which the pile driver might rest.

During the operation of the work certain minor repairs were made necessary to the pile driver, and, for the purpose of making these repairs, the other items totalling $25.78 were purchased.

The surety company contends that it is liable neither for the piling and timber purchased for the foundation nor for the lumber purchased for repairing the pile driver, because neither of these items is such as is contemplated by the language of Act 271 of 1926.

That act, .in amending section 1 of Act 224 of 1918, provides that the surety shall be liable “for the payment * * * by all subcontractors for all material or supplies furnished for use in machines used in the construction * * *” and also provides that the surety shall be liable for all material used in the work itself.

The surety contends that it is not liable for the ¡piling and large timbers used in constructing the foundation for the pile driver because these were made necessary only by the inherent unfitness of the pile driver to do the particular kind of work which was necessary.

In the subcontract there was no stipulation as to the particular kind of pile driver to be used. The work was to bé done on water and the general contractor may have assumed, as he had a right to do, that the subcontractor undertaking such work was possessed of suitable machinery and equipment for carrying out such a contract in the most economical manner. Had the Crane Company had available a floating pile driver, the purchases of piling and large timbers would not have been necessary as these were only required because of the desire of the subcontractor to use a land pile driver to do marine work.

After the work was completed, the ¡piling and timbers were removed and thereafter remained in the possession of the Crane Company and formed no part of the “work” itself. These items remained practically as good as when first bought and could have been used by the Crane Company for future work of a similar nature.

We are of the opinion that such items really were for the purpose of changing the nature of the machine, and that the surety on the bond of the general contractor. is no more liable for the unpaid purchase price of such timbers and piling than it would be for the purchase price of an entire pile driver if the subcontractor found it necessary to buy one.

As to the lumber sold for the repairs, we believe that, under the interpretation placed on the act of 1926 by the Supreme Court in Red River Construction Co. v. Pierce Petroleum Corporation, 165 La. 565, 115 So. 752, and under the interpretation given by the Court of Appeal for the First Circuit in Pipes v. Irvine and Union Indemnity Company, 7 La. App. 215, these items should be considered as material or supplies used in the machine.

It is very true that in the two cases to which we have referred the act of 1926 was not involved and it is equally true that the courts held that the items sued for, such as automobile tires, batteries, gasoline, oil, etc., could not be recovered under the prior acts, but in both cases the court distinctly held that if the act of 1926 had been involved such articles would have been within the protection of the bond of the general contractor. We construe this to mean that where the subcontractor furnishes equipment which is capable of doing the work, such wear and tear as may thereafter be sustained, may be replaced and the replacement parts, materials, and supplies will be within the protection of the bond of the general contractor.

We readily agree that if materials or supplies are made necessary to change the nature of a machine so as to make it fit for one kind of work when it was originally intended for another, then the surety on the bond of the general contractor is not liable, but we cannot say that such is the situation which is presented here,' so far as the items we are now considering are concerned.

We have before us no evidence as to when the repair items were (purchased, and, from the briefs, ascertain only that it was stipulated that this lumber was used to repair the machine. We gather from this fact that when the work was commenced the machine was in good order and that the repairs referred to were made necessary by normal wear and tear resulting from the use and operation of the machine in question.

It is therefore ordered, adjudged, and decreed, that the judgment appealed from be, and it is, amended by reducing the amount thereof to $28.78, with interest at 5 per cent per annum from December 1, 1927', until paid; costs of the trial court to be paid by defendant and appellant, and costs of this court to be paid by (plaintiff and appellee.

ON REHEARING

JANVIER, J.

The only question now before us is whether the surety on the bond of a general contractor engaged in carrying out a contract for public work is liable to a furnisher of lumber sold to a subcontractor to be used in the repair of a pile driver belonging to and used by the subcontractor, where tile repairs were made necessary not by ordinary wear and' tear, but by the negligent operation of the pile driver.

In our original opinion we said that under the authorities therein cited such material as was required to make repairs made necessary by ordinary use of the pile driver, if not paid for by the subcontractor, might form the basis of a suit against the surety of the general contractor. Since we were then of the opinion that the items which we are now considering had been (purchased to make such repairs, we held that the surety of the general contractor was liable therefor.

Our attention has, however, been called to the fact that the repairs made were not necessitated by ordinary use, or by wear and tear, but were required because of the fact that the pile driver, through carelessness of the employes of the subcontractor, was allowed to turn over, with the result that it sustained the damage which the lumber was used to repair.

If the surety of the general contractor is liable for such purchases, it might be liable for the purchase of an entire pile driver or for the purchase of any other equipment damaged or destroyed by the negligence of the subcontractor or his employes. Such a result was certainly never contemplated by the framers of Act 271 of 1926.

A subcontractor who undertakes work must furnish his own tools and equipment and, under that act, the liability of the surety of the general contractor is limited to materials and supplies used in the work or used in the machines and equipment. We cannot extend the meaning of that act so as to include within its provisions purchases made for the replacement of parts damaged or destroyed by negligence.

Our original decree is, therefore, recalled, and it is now ordered, adjudged and decreed that the judgment of the First City Court of New Orleans be and it is annulled, avoided and reversed, and that there now be judgment in favor of Fidelity & Deposit Company of Maryland, dismissing plaintiff’s suit insofar as it applies to the said defendant, at the cost of plaintiff.


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    No. 2691
    Second Circuit
    LEDNER v. CADDO TRANSFER & WAREHOUSE CO. ET AL.
    (November 18, 1929. Opinion and Decree.)

      D. C. Scarborough and Melvin F. Johnson, of Shreveport, attorneys for plaintiff,, appellant.
    Cook & Cook, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

Plaintiff instituted two suits, one against the Houston & Shreveport Railroad, Company and the other against the Caddo Transfer & Warehouse Company; the object of each suit being the same, namely, to obtain judgment for $558, with legal interest thereon from judicial demand, as and for the value of certain personal property, namely, an Oriental rug alleged to be worth $225, a black colored overcoat alleged to be worth $65, a suit of clothes alleged to be worth $55, another suit of clothes alleged to be worth' $38, a woman’s coát with fur collar and fur sleeves alleged to be worth $75, a lot of linen alleged to be worth $75, and a small coat alleged to be worth $25.

In his suit against the railroad company, he alleged that he had delivered to its connecting carrier in New York, N. Y., nineteen packages for transportation and delivery to him at Shreveport, La., three of which packages were cases and one of which cases contained the articles whose value is sued for; that the connecting carrier had delivered all of the nineteen packages to the Houston & Shreveport Railroad Company for transportation and delivery to him at Shreveport, La., and that the last-named carrier only had delivered to him eighteen of the packages and had failed to deliver to him the case containing the articles whose value was sued for notwithstanding demand.

The railroad company denied that it had failed to deliver any of the packages, and alleged that it had delivered to plaintiff’s agent, the Caddo Transfer & Warehouse Company, all nineteen of them.

In his suit against the Caddo Transfer & Warehouse Company, plaintiff alleged that it had received from his agent nineteen packages of goods for storage for his account until called for by him, and that it had only delivered eighteen of them to him, and had failed to deliver one package containing the articles whose value was sued for notwithstanding amicable demand.

The transfer and warehouse company denied that it had received nineteen packages from the railroad company or that it had failed to deliver any package to plaintiff, and, on information and belief, alleged that the number of packages delivered by plaintiff to the initial carrier was less than nineteen.

The two suits were consolidated for purposes of trial, and were tried, and, during the progress of the trial, plaintiff dismissed his suit against the Houston & Shreveport Railroad Company.

Judgment was rendered in favor of the Caddo Transfer & Warehouse Company, dismissing the plaintiff’s suit against it, and the plaintiff appealed.

OPINION

Estoppel

At the beginning of the trial in the district court the Caddo Transfer & Warehouse Company objected to the admission of any evidence in support of the petition against it on the ground that plaintiff was estopped to urge that it had received from the railroad company and failed to deliver to him the case of goods in question by reason of the fact that in his suit against the railroad company he had alleged that it had received and failed to deliver to him or his agent the same case of goods.

The objection was overruled, and the transfer and warehouse company reserved an exception to the ruling, and in this court the objection and ruling are urged as ground for reversal of the judgment appealed from.

We think the objection was properly overruled.

The allegation in the suit against the railroad company did not cause the transfer and warehouse company to change its position to its detriment, and therefore did not estop plaintiff to allege and prove that it had delivered the case of goods to the transfer and warehouse company.

In Appalachian Corporation v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539, 541, the former sued the latter to recover the amount of a judgment obtained against it by an employee of the latter for injuries sustained by him by a door of a building bought by the Appalachian Corporation from the Cooperage Company and still in the latter’s possession at the time of the injury falling on the employee. The Appalachian Corporation alleged that the Cooperage Company, being in possession of the building, knew or should have known of the danger of the door falling, and was negligent in permitting the condition to exist, and the Cooperage Company pleaded that the Appalachian Corporation was es-topped to allege that the door was in a dangerous condition because of the fact that it had in the suit of the employee against it denied that the door was in such condition. And the Supreme Court, dealing with the contention, said:

“Plaintiff has gained no advantage over the defendant by such defense, nor has defendant’s situation been altered to its detriment. But aside from all of this, parties are not bound by judicial allegations of facts which terminate unsuccessfully.”

ON THE MERITS

Plaintiff testified:
“Q. Did you go into the warehouse sometime before this stuff was delivered to you by the Caddo Transfer & Warehouse Company?
“A. Tes, sir.'
“Q. Did you have your stuff gathered together there, in the warehouse and go over it yourself?
“A. Yes, sir.
'“Q. How many pieces did you check and find there?
“A. Nineteen. ,
“Q. Were all three of the cases of household goods * * * did you find them
there in the warehouse of the Caddo Transfer & Warehouse Company at the time that you checked them?
“A. Yes, sir.”

R. C. Epps, called by plaintiff, testified that, at the time the shipment was delivered by the railroad company to the transfer and warehouse company he was in the employ of the railroad company as check clerk, and in that capacity he checked the shipment out of the car in which it arrived into the railroad company’s freight warehouse in Shreveport.

A document, which we do not find in the record, was shown the witness, and he was asked what it was, and he said:

“This is the delivery for freight to the Caddo Transfer & Warehouse company and the same sheet that I checked the goods out of the car into the warehouse (on) these nineteen check marks cover the nineteen pieces checked out of the car into the warehouse.

“Q. You checked them from the railroad car to the railroad warehouse?
“A. Yes, sir; checked nineteen pieces.
* Sic & #
“Q. You had nothing to do with checking it out to the Caddo Transfer & Warehouse Company?
“A. No, sir; but I went and called attention to the fact- — -I wanted to call attention to the fact that on there, you will. see thlat on August 25th, that the auditor, in making a check, also checked nineteen pieces as in the warehouse.
“Q. Did you see Mr. Adams sign this document?
“A. No, sir.
“Q. Do you know if this penciled memorandum “one extension table” was on there when you checked it?
“A. I have an idea it was not. Mr. Ellington delivered the shipment.”

C. T. Ellington testified that he was the warehouse foreman of the Houston & .Shreveport Railroad Compapy at Shreveport and in that capacity had delivered the shipment to the transfer and warehouse company. He was shown a document and asked what it was, and he stated that it was the' receipt received by the railroad company on delivery of the shipment.

“Q. Who gave that receipt?
“A. I had the Caddo Transfer & Warehouse Company’s driver to sign this receipt.
“Q. Who?
“A. Mr. Adams.”

He further testified that he cheeked the delivery and that nineteen pieces were delivered and that he saw Mr. Adams sign the receipt. He further testified that he remembered making the delivery and remembered that the delivery included three boxes, one of which appeared to weigh two or three hundred pounds and that the two others were small.

We find in the record, as Plaintiff’s Exhibit 5, a partly printed and partly typewritten document on which is printed “Receipt for Delivery of Freight” and purporting to be a receipt given to the Houston & Shreveport Railroad Company by the Caddo Transfer & Warehouse Company for the shipment in question. It reads as follows:

Plaintiff’s theory is supported by this receipt, which, though it only specifies eighteen packages as received, yet by' the addition of “1/19'' immediately after the description of the character of the packages shows that nineteen packages were actually received.

S. H. McCall testified that he was secretary and treasurer of the Caddo Transfer & Warehouse Company, explained this receipt:

“Q. Didn’t you contend -at the time that you had received his three cases of goods and that the receipt said so?
“A. No, I did not. I can tell you just this. We delivered eighteen pieces, ’ and that eighteen pieces, according to this list, was all that we got from the railroad company.
“Q. You however admit that Mr. Adams has signed this document for your company?
“A. Mr. Adams signed it.
“Q. In case the extension table was not' listed, it don’t show that it was on this receipt?
“A. This was on the table at the time that Mr. Ledner came in. After we went over the bill of lading with him I said: ‘Mr. Ledner, the extension table don’t show on the • freight bill’, and he said: T received it.’
i>i ifc ifc 4!
“Q. Is not that a receipt for nineteen pieces?
“A. It is not.
”“Q. Why is it not?
“A. Only eighteen pieces are listed on there.
“Q. Don’t it say nineteen pieces there, at the bottom?
“A. No, sir; it says from ‘one to nineteen.’
“Q. What do you think that is, then?
“A. It is numbered from ‘one to nineteen.’
“Q. Then you think that only eighteen pieces, numbered from ‘one to nineteen’ and one box was listed at two?
“A. No, sir; we did not sign for the number; we signed for the cases.
“Q. What does that customarily mean, those tallies up there?
“A. That means check marks of the number of pieces that go out.
“Q. Don’t that indicate nineteen pieces?
“A. That would indicate that nineteen pieces had been checked off of the bill.
“Q. So that you say, because eighteen pieces were described specifically, you say there were eighteen pieces?
“Q. Even though it says nineteen and the tallies are there for nineteen?
“A. Yes, sir, a tally for nineteen; I do not know who put that there; I don’t know who it was who numbered them from ‘one to nineteen’; I don’t know what it represents; I suppose it represents the number of pieces.
“Q. Do you find any extension table listed in there?
“A. I do not.
“Q. Don’t you find an extension table listed on the bill of lading?
“A. Yes, sir.
“Q. How do you explain that?
“A. Well, that is the railroad man’s experience; I don’t know Why they dropped the extension table in making out the freight bill.
“Q. You are willing to stand on the receipt and say that you only received eighteen pieces?
“A. I don’t say that; I say that we received eighteen pieces to the best of my knowledge and belief.
“Q. And upon that, you are willing to swear that you delivered everything, except the extension table?
“A. No, sir; I say that we delivered eighteen pieces; what those were, I don’t know.
“Q. Mr. McCall, you swear that you delivered these goods to Mr. Ledner?
“A. No, sir; I did not check them or make a delivery myself.
“Q. So that you don’t know if they were delivered to Mr. Ledner?
“A. I don’t know; I know that we delivered eighteen pieces, according to this receipt.”

The receipt, Plaintiff’s Exhibit 5, describes eighteen separate packages. The extension table mentioned on the bill of lading is not included in the eighteen pieces described on the receipt. However, the warehouse and transfer company also received this table from the railroad eoxlipany, as it delivered the table to plaintiff. Therefore the warehouse and transfer company must have received nineteen pieces from the railroad company.

R. A. Ford testified that he was foreman of the warehouse and transfer company’s warehouse No. 3, and that:

”Q. Were you present when Mr. Ledner and your men separated this shipment?
“A. Yes, sir; I Helped him.
‘‘Q. Did he seem satisfied?
“A. He seemed satisfied as to the numbers; the only thing he found one of them split up; this particular crate or hox he noticed that it was broken some.
sfc sfc & Jj:
“Q. Did you count the cases when Mr. Ledner came there?
“A. No, sir.
”Q. How did you know, then, when you all had finished segregating Mr. Ledner’s goods?
“A. I didn’t know.
“Q. Did he leave satisfied that it was separated?
‘‘A. I suppose he did; didn’t say anything about it.
“Q. He didn’t say anything about one piece being short?
‘‘A. No, sir; he didn’t say a word.”
W. L. Adams testified that he was the person who had receipted to the railroad company for the shipment, and that:
”Q. What were the circumstances under which you signed the receipt?
‘‘A. I was out there I don’t know how many days, it was one or two, after the shipment was received, and Mr. Ellington made the statement that the shipment was delivered O. K. to the driver and the driver had failed to sign, and asked me to sign it, which I did, as it had been customary for years.
“Q. How many days after the delivery was that?
“A. I could not state.
‘‘Q. Did you read this, when you signed it?
“A. I could not say that I did.
, * sis * *
“Q. Didn’t you see the name, C. Ledner?
“A. Probably I did see it, but I did not pay any attention to it; I took the statement from Mr. Ellington, as it was customary when he would say evefything was O. K., would go ahead and sign.
“Q. Didn’t you sign for nineteen pieces?
“A. I don’t know; I didn’t pay attention; I can’t say.”

Plaintiff’s wife testified that the articles, whose value 'is sued for, were never received by her husband and she described each of the missing articles and named its value.

We have carefully read and considered the evidence, and it convinces us that the warehouse and transfer company did receive all of the packages mentioned in the bill of lading.

Our learned brother of the district court was of a different opinion. We regret that a written opinion was not rendered by him, as we are slow to reverse the finding of the trial 'judge on an issue of fact, and should like to have had the benefit of his reasons for judgment.

The warehouse and transfer company having received nineteen packages and only delivered eighteen of them must respond to plaintiff for the value of the goods contained in the missing package, in the absence of a legal excuse for not delivering the missing package, and no such excuse has been proved in this case. Gibbons v. Y. & M. V. R. R. Co., 130 La. 671, 58 So. 505.

Counsel for the warehouse and transfer company urge that there was no contractual relation between plaintiff and it, but the evidence shows that it dealt with plaintiff as the owner of the goods and delivered to him eighteen of the nineteen packages and must be held liable for the value of the missing package.

The only evidence as to the contents .of the missing package and the value of the different articles making up such contents is the testimony of plaintiff and his wife, who both swear positively that the articles listed in the petition were in the package, and that they were respectively worth the value put upon them therein. Their testimony was not disputed, and it must therefore be taken as establishing these allegations of the petition.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that plaintiff, Charles Ledner, do have and recover judgment against defendant Caddo Transfer & Warehouse Company for $558, with legal interest thereon from judicial demand, and costs of both courts.


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    No. 2952
    Second Circuit
    VASCOCU v. POLICE JURY OF NATCHITOCHES PARISH
    (November 18, 1929. Opinion and Decree.)
    Marcus L. Dismukes, of Natchitoches, attorney for plaintiff, appellant.
    S. R. Thomas, of Natchitoches, attorney for ■ defendant, appellee.
   STATEMENT OP THE CASE

REYNOLDS, J.

This is an action under Act No. 56 of 1918. Plaintiff sues defendant for $130 with legal interest thereon from judicial demand as the value of two cows and two calves which, he alleges, died as the result of being dipped for the eradication of cattle tick. He alleges that the dipping was done under and by authority of laws of the state of Louisiana and ordinances of the police jury of Natchitoches parish and under the supervision and control of the police jury and of the live stock sanitary board of the state of Louisiana and of the Department of Agriculture of the United States by an inspector duly appointed by and acting for these authorities, and that the dipping was compulsory.

One cow and one calf are alleged to have died April 18, 1919, and the other cow and calf November 15, 1918.

It is also alleged that demand was made on the police jury for payment, and the demand refused.

Citation in the action was served on April 15, 1921.

Defendant interposed a plea of prescription of one year, and, on trial, the plea was sustained and plaintiff’s suit dismissed, and he has appealed.

OPINION

The act in question provides:

“That any person in any parish in this State shall be entitled to recover from such parish a reasonable compensation for any live stock owned by such person that may hereafter be killed or permanently injured in the process of dipping or as a result of such dipping for the eradication of the cattle tick, where such dipping was done under the supervision of the Live Stock Sanitary Board or its agents, employees or representatives or where such cattle dipping is done under the supervision and direction of inspectors employed or appointed by the police juries of the several parishes of the State of Louisiana. * * *
“That any owner of live stock making claim for damage for death or injury of such live stock shall make proof of the amount of his loss or damage to the police jury and when conclusive proof has been made or submitted to the police jury and there being no evidence of contributory negligence on the part of the owner and the police jury is satisfied that the said owner has suffered such loss, then the police jury shall pay to such owner out of the general fund of the said parish such amount as will compensate him for his loss or damage but if the police jury shall refuse to pay such claim or any part of them then the owner shall have the right of action against the parish within [which] such damage occurred.”

And the question presented for our deci'sion is whether the right of action granted is • one ex delicto and therefore prescribed when the suit was brought.

It will be observed that the right of action is not made dependent on negligence on the part of the inspectors employed by the parish in the process of dipping the cattle.

The statute fixes no time within which the action granted shall be commenced, and the question presented by the appeal appears to be res novo.

Foster v. City of New Orleans, 155 La. 889, 99 So. 686, was an action to recover damage done to plaintiff’s property by the construction of a swimming pool in front of it by the city; and the court held that the suit was not one ex delicto, but rather one to recover compensation under, the Constitution for damage done to plaintiff’s property for a public purpose’ and therefore not barred by the prescription of one year.

Inge v. Police Jury, 14 La. Ann. 117, was an action to recover damage done to plaintiff’s land by the construction of a public levee. A plea of prescription of one year was interposed by the police jury, and dealing with the plea the court said:

“Appellant has plead prescription and relies' upon Article 3501 of The Civil Code, which declares that actions resulting from . offences or quasi-offences are prescribed by one year.
“This Article does not apply to the present case. The damages contended for do not result from an offence or a quasi-of-fence,’ but result from a law authorizing for the public good, the partial destruction óí property by the construction of a levee, *■ * * for it would be exposed to inundation, and the same law provides for comjierisation for the damages suffered * * *”

Wé are" 'of the opinion that plaintiff’s action belongs in the same class of cases as the 'two. above cited, and that the plea of prescription was erroneously sustained.

it is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, the plea of prescription overruled, and the case remanded to the district court for further proceedings according to law.