Meine v. Mossler Auto Exchange Inc

• Decision Date: 25 February 1929
• Docket Number: 10,699
• Court: Court of Appeal of Louisiana — District of US
• Parties: MEINE v. MOSSLER AUTO EXCHANGE INC

120 So. 533

10 La.App. 65

MEINE v. MOSSLER AUTO EXCHANGE INC

No. 10,699

Court of Appeals of Louisiana, Orleans

February 25, 1929

Appeal from Civil District Court, Parish of Orleans, Division "B." Hon. Mark M. Boatner, Judge.

Action by Emile L. Meine against Mossler Auto Exchange, Inc.

There was judgment for plaintiff and defendant appealed.

Judgment affirmed.

Nicholas G. Carbajal and Frank P. Krieger, of New Orleans, attorneys for plaintiff, appellee.

Brian and Brian, of New Orleans, attorneys for defendant appellant.

OPINION

JANVIER J.

This is a suit for the alleged value of a used car left with a second-hand automobile company for sale and stolen while in its possession.

Heretofore in the matter entitled Emile L. Meine vs. Mossler Auto Exchange, Inc., 1 La.App. 545, this court passed upon a suit between these same parties, and involving the value of the same car. In that suit plaintiff alleged that he had sold his car to defendant and he sought to recover the purchase price. The proof showed that there had been no sale, but that the car had been left with defendant to be "tried out" and that it was stolen after the trial, but before plaintiff was notified to come and take it away.

In this second suit defendant pleads res judicata, estoppel and the prescription of one year (which plea of prescription, however, has since been abandoned), and on the merits, contends that its only liability is that of a bailee. That it is not an insurer but can only be held for negligence.

The plea of res judicata and the plea of estoppel are based respectively on the decision and on the allegations in the first suit. A reading of the decision in that suit shows that this court did not pass upon the question of whether defendant was liable as bailee and based its refusal to hold defendant liable solely on the ground that a contract of sale was alleged but not proven. This court said:

"But plaintiff's counsel argues that the defendant is liable to him as a depository or broker because he failed to take proper precautions for the safety of his property. Without discussing the merits of this contention, we observe that it is a totally different cause of action from that set out in plaintiff's petition and inconsistent therewith. Plaintiff cannot be heard in argument against his pleadings. Louisiana Digest, Vol. VI, Verbo Pleadings, Par. 11. Having sued on a contract of sale the issue tendered is one of sale vel non and when the evidence showing a totally different situation is presented by way of defense, plaintiff may not shift his position in an effort to establish defendant's liability upon a different cause of action consistent with the developments."

Emile L. Meine vs. Mossler Auto Exchange, Inc., 1 La.App. 545.

It is plain, then, that since, in that case, the liability vel non of defendant as bailee was not considered, and since the question of whether or not there is liability as bailee is the only question presented here, the first suit does not constitute res judicata.

It is next urged that plaintiff, having alleged in the first suit that the car was sold to defendant, is now estopped to claim that it was left with defendant to be sold by it as agent. This is a more serious question and, at first glance, would seem to be an insurmountable obstacle in plaintiff's path.

However, if this plea is good, a very strange and inequitable result might follow. For instance, let us assume that plaintiff left his car with defendant, believing in good faith that defendant had agreed to buy it. Let us further assume that on failure to receive his money plaintiff brought suit and defendant, as it did here, was able to prove that there had in fact been no sale. Let us assume further that the car had not been stolen but was still actually in possession of defendant. Could defendant in the second suit be heard to say "you cannot sue me again because you guessed wrong the first time, and since you guessed wrong once, I can now keep your car." We believe that no such result should be allowed and, yet, to sustain the plea of estoppel here would make such a result possible in any similar case.

We think the plea of estoppel should be overruled for two reasons:

First, because the allegations made in the first suit did no harm to defendant and did not lead it into a harmful or damaging attitude, and,

Second because...