Dejean v. Louisiana Western R. Co.

• Decision Date: 29 October 1928
• Docket Number: 28471
• Citation: 167 La. 111,118 So. 822
• Court: Louisiana Supreme Court
• Parties: DEJEAN v. LOUISIANA WESTERN R. CO

118 So. 822

167 La. 111

DEJEAN v. LOUISIANA WESTERN R. CO

No. 28471

Supreme Court of Louisiana

October 29, 1928

Appeal from Fifteenth Judicial District Court, Parish of Acadia; W W. Bailey, Judge.

Suit by Armand L. Dejean against the Louisiana Western Railroad Company. Judgment for plaintiff, and defendant appeals.

Amended and affirmed.

Denegre Leovy & Chaffe, of New Orleans, and Pugh & Buatt, of Crowley for appellant.

John W. Lewis, of Opelousas, and W. J. Carmouche, of Crowley, for appellee.

LAND, J. O'NIELL, C. J., concurs in the decree

OPINION

LAND, J.

Plaintiff has brought the present suit to recover of defendant company the value of 25 bales of cotton, purchased by plaintiff from the Rayne Cotton Gin Company, and destroyed by fire September 17, 1924, while loaded in a car of defendant company on a spur track near the plant of the gin company at Rayne, La.

At the time of the fire, the cotton had been consigned to order of Rayne Cotton Gin Company, notify Armand L. Dejean, Opelousas, La.

Judgment was rendered in the lower court in favor of plaintiff in the net sum of $ 2,579.15, with interest from September 17, 1924, and defendant company has appealed.

1. Plaintiff alleges that the loss of the cotton was occasioned solely through the gross negligence of defendant company, and was in no way due to his fault.

Defendant company denies any negligence on its part, and avers that the fire that burned the cotton had its origin in the gin of the Rayne Cotton Gin Company, and that the destruction of the cotton was brought about by "such accidental and uncontrollable event."

Defendant company specifically avers in its answer:

"That said cotton, no doubt, caught fire from either a match or a small piece of steel or other metal when the cotton was ginned, causing a spark to develop which was smothered when the bale was packed, and, afterwards burned its way out from the inside of the bale or bales, after said bales were placed in the car; or from a spark from the fire in the gin for which your defendant was not responsible."

The liability of defendant company for the cotton received for shipment is fixed by article 2754 of the Civil Code, which reads as follows:

"Carriers and watermen are liable for the loss or damage of the things entrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events."

The words "accidental and uncontrollable events," as used in this article of the Civil Code, arethe equivalents of "cas fortuit" and "force majeure" of the French text.

The "cas fortuit" or "fortuitous event" is defined as --

"That which happens by a cause which we cannot resist." R. C. C. art. 3556(15).

"Those accidents are said to be caused by superior force ['force majeure'] which human prudence can neither foresee nor prevent." R. C. C. art. 3556(14).

"The term 'vis major' (superior force) is used in the civil law in the same way that the words, 'act of God,' are used in the common law, and so also is the term 'casus fortuitus.'

"By the act of God is meant inevitable accident or casualty."

Brousseau & Co. v. Ship Hudson, 11 La.Ann. 427.

In the Brousseau & Co. Case, the court quoted the following extract from Story on Bailments:

"By 'inevitable accident' is meant any accident produced by any physical cause, which is irresistible; such as a loss by lightning or storms, by the perils of the seas, by an inundation, or earthquake, or by sudden death or illness. By 'irresistible force' is meant, such an interposition of human agency, as is, from its nature and power, absolutely uncontrollable."

In Eugster & Co. v. West & Co., 35 La.Ann. 119, 121, 48 Am. Rep. 232, the court said:

"The Pandectes Francaises teach that 'on entend par cas fortuits les accidens qu'on n'a pu ni prevoir ni empecher. So Emerigon on Insurances, 285, by accident ('cas fortuit') is meant a superior force which cannot be foreseen nor resisted. In its legal sense, 'fortuitous event' is synonymous with 'act of God' of the common law."

"The carrier must prove the precise cause of the loss. It will not suffice to prove merely due diligence, but the carrier must prove, moreover, that the accident was occasioned by a fortuitous event, or by irresistible force, or by a defect of the thing itself, or by a fault of the shipper. Fuzier-Herman, Code Civil, vol. 4, p. 419, No. 1. * * *

"In the civil law loss by fire is not considered a fortuitous event, as it arises almost invariably from some act of man."

Lehman, Stern & Co. v. Morgan's Louisiana & Texas R. & S. S. Co., 115 La., pages 8 and 9, 38 So. 873, 875, 70 L. R. A. 562, 112 Am. St. Rep. 259, 5 Ann. Cas. 818.

As the accident in this case was not occasioned by a fortuitous event nor by irresistible force, defendant company must be held liable, even though due diligence may have been exercised on its part in inspecting the shipment when received and in sealing the car at the time.

2. The next defense urged by defendant company is that plaintiff has no interest in this suit by reason of the fact that he has been paid in full by the insurance company.

The sight draft found in the record is as follows:

"Loan Draft -- No. 14.

"Atlanta, Ga., September 23, 1924.

"[Stamped] No. Pro. 84-61.

"Cotton Insurance Association of Atlanta, Ga. At sight pay to the order of Armand L. Dejean and Opelousas-St. Landry Bank & Trust Co. Opelousas, La. $ 2,630.83 Two Thousand Six Hundred Thirty Dollars Eighty-three cents, which sum is advanced as a loan repayable only to the extent of any net collection I may make from any carrier, bailee or others on account of loss to 25 bales of cotton due to fire at Rayne, Louisiana on or about September 18th, 1924, or from any insurance effected by any carrier, bailee or others on said property, and as security for such repayment we hereby pledge to National Fire Insurance Company the said claim and to deliver to them duly endorsed the bills of Lading for said property, and we agree to enter and prosecute suit against said Railroad, carrier, bailee or otherson said claim with all due diligence at the expense and under the exclusive direction and control of the said National Fire Insurance Company.

"[Signed] John S. Hudgins, for Manager.

"To the Cotton Insurance Association through the Citizens' & Southern Bank -- Atlanta, Ga.

"(Loan Receipt Attached.) MKD. 'P -- D'

"Claim No. 19022.

"[Signed] J.S.H., Loss Clerk.

"[Stamped] Paid Sep. 29, 1924. Check No. 22965.

"[Stamped] Paid Collection Department, Sep. 29, 1924. The Citizens' and Southern Bank, Atlanta, Ga."

Indorsed:

"Notice -- All parties to whom this draft is payable must endorse in ink. Received from the National Fire Insurance Company the amount as stated herein, subject to the conditions named in face of draft.

"[Signed] Armand L. Dejean."

The policy in this case was issued by the National Fire Insurance Company through the Cotton Insurance Association, of which the National Fire Insurance Company is a member, and was paid by the National Fire Insurance Company. The draft is signed by John S. Hudgins, the loss adjuster, who passes on all losses and makes settlement for same. Tr. p. 88.

No insurance for the loss of the cotton has been paid under the policy to plaintiff, the assured, but a loan or advance has been made to him by the insurance company, to be repaid by him to the extent of any net collection the assured may make from the carrier on account of the destruction of the 25 bales of cotton by fire at Rayne, La., on or about September 18, 1924.

It is clear, therefore, that plaintiff has an interest in the prosecution of the present suit.

3. The bill of lading in this case contains the following stipulation in paragraph (c) of section 2:

"Any carrier or party liable on account of loss or damage to any of said property shall have the full benefit of any insurance that may have been effected upon or on account of said property, so far as this shall not avoid the policies or contracts of insurance: Provided, That the carrier reimburse the claimant for the premium paid thereon."

In the event the judgment rendered against defendant company should exceed the amount received by plaintiff from the National Fire Insurance Company, defendant company claims, under the benefit of the insurance clause in the bill of lading, that it is entitled to credit for this amount, less the premium paid by plaintiff.

And, if the judgment rendered against defendant company should be less than the amount received by plaintiff from the insurance company, then defendant company prays that the demand of plaintiff be rejected.

It is provided in paragraph 6 of the policy issued to plaintiff that:

"Upon presentation of proof of a loss to cotton described in Paragraph One of this form, while in possession of any carrier or other bailee, this Company, provided that all provisions of this policy have been complied with, will advance, as a loan to the assured or the holder of a certificate issued as provided herein, the amount of the damage to said cotton, repayable only to the extent of any recovery from such carrier or other bailee; however it is understood that this insurance shall not cover cotton for which any carrier or bailee may be liable, or shipped under a bill of lading containing a stipulation that the carrier may have the benefit of any insurance thereon, nor where any carrier or other bailee has insurance which would attach if this policy had not been issued, and this insurance shall not issue to the benefit of any carrier or other bailee."

Under these stipulations in the...