Miller v. Hortman-Salmen Co., Inc.

• Decision Date: 30 January 1933
• Docket Number: 14336
• Citation: 145 So. 786
• Court: Court of Appeal of Louisiana — District of US
• Parties: MILLER v. HORTMAN-SALMEN CO., INC

145 So. 786

MILLER v. HORTMAN-SALMEN CO., INC

No. 14336

Court of Appeal of Louisiana, Orleans.

January 30, 1933

Lemle Moreno & Lemle, of New Orleans, for appellant.

Harry M. Mayo, Jr., of New Orleans, for appellee.

OPINION

HIGGINS J.

This is an action by a mortgage creditor against the defendant as a tort-feasor to recover the sum of $ 300 for having demolished a Pontiac sedan automobile, upon which the plaintiff held a chattel mortgage. The damage is alleged to have resulted from a collision between the Pontiac automobile and a 11/2-ton White lumber truck of the defendant on the Gentilly road on December 21, 1929, at 6:30 p. m. The petition alleges that the plaintiff is the holder and owner of a certain matured note secured by a chattel mortgage on the Pontiac sedan, on which there is a balance of $ 289.25 with 8 per cent. interest from October 27, 1929, until paid, and 25 per cent. attorney's fees; that he remitted that part of his claim in excess of $ 300 in order to give the first city court jurisdiction; that the Pontiac sedan was being driven on Gentilly road in the direction of Little Woods at a moderate rate of speed on its right side of the road; that the defendant's truck was being driven by its employee on the same roadway toward New Orleans; that the truck, without any warning, suddenly ran from its right side of the road to the left, striking the left front and left side of the Pontiac car with such force that it was completely demolished and rendered worthless and plaintiff was thereby deprived of the security for the said note; that the truck driver was at fault in not keeping the truck under proper control; that he was driving on the wrong side of the road; and that he failed to keep a proper lookout, all in violation of the city traffic ordinance, No. 7490 C. C. S.

Defendant filed an exception of no right or cause of action on the ground that the alleged right of action was vested in the owner of the Pontiac sedan and not in the mortgage creditor, and then answered, admitting the collision, but denying that plaintiff was the holder of a mortgage on the automobile and that the driver of the truck was in any way at fault. Defendant also specially pleaded that the claim for damages to the Pontiac automobile had been compromised, settled, and liquidated by the defendant with Mr. and Mrs. M. J. Sangassan, the owners of the car, in writing, on February 4, 1930, and that the said compromise settlement of the damage claim is a bar to any recovery herein by the plaintiff against the defendant.

The trial judge overruled the exception of no right or cause of action, and, on the trial on the merits, rendered judgment in favor of the defendant, dismissing the plaintiff's suit.

It was agreed in argument at the bar and in the briefs by the attorneys for both parties that the dismissal of the suit by the trial judge was the result of sustaining the special defense that the claim had been compromised.

With reference to the exception of no right or cause of action the law is clear that where one tortiously damages property on which there is an outstanding mortgage, the mortgagee, as well as the mortgagor, has a right to sue the offender for the damages sustained by him. In dealing with this subject the Supreme Court, in Plauche-Locke Securities, Inc., v. Securities Sales Co. of La., Inc., 169 La. 601, 603, 125 So. 729, stated: "The principal question in this case is whether a creditor, who holds a chattel mortgage on property belonging to an insolvent debtor, and who has no other security, has a right of action for the value of the mortgaged property against one who, being an ordinary creditor of the mortgagor, secretly and without the knowledge of either the mortgagor or mortgagee, takes the property out of the parish where the mortgage is recorded, and conceals it, and afterwards disposes of it for his own advantage, and thereby causes the mortgagee to lose his claim. The district court decided that the mortgagor had such a right of action, for tort, and the defendant has appealed from the decision." In affirming the decision of the lower court in favor of the plaintiff, the Supreme Court in effect stated that it was unnecessary for the mortgage debtor or owner of the property to be made a party defendant and that, in addition to the right granted to the mortgage creditor under the chattel mortgage law to criminally prosecute the party who removed or concealed the mortgage property, the holder of the notes secured by the mortgage had a right to proceed independently of the mortgagor against the person who had wrongfully caused the damage to the property securing the mortgage notes. See, also, Jones on Mortgages (8th Ed.) VI., 2, par. 857-8, p. 176-7; 41 C. J., 652; articles 2315 and 2316, R. C. C.; Arnold v. Broad, 15 Colo.App. 389, 62 P. 577; Equitable Securities v. Montrose & D. Canal Co., 20 Colo.App. 465, 79 P. 747; Mathews v. Silsby Bros. et al., 198 Iowa 1392, 201 N.W. 94, 37 A.L.R. 1116; Delano v. Smith, et al., 206 Mass. 365, 92 N.E. 500, 30 L. R. A. (N.S.) 474; Jeffers v. Pease et al., 74 Vt. 215, 52 A. 422. We conclude that the trial court properly overruled the exception of no right or cause of action.

On the merits the record shows that three eyewitnesses to the accident testified: Mrs. Marion Sangassan, the driver of the Pontiac sedan and the wife of the owner thereof; M. M. Love, a colored man, who was driving a truck following the Pontiac sedan, both witnesses for the plaintiff; and Walter Jackson, the driver of the truck, a witness for the defendant.

The testimony of the plaintiff's witnesses is to the effect that on the evening in question, between 5:30 and 7:00 p. m., the Pontiac sedan was being driven by Mrs. Sangassan on the Gentilly road in the direction of Little Woods, at a rate of speed estimated between 18 and 25 miles an hour on its extreme right side of the roadway; that the truck was on the same roadway going toward New Orleans at a speed estimated at 15 miles an hour; that as the two vehicles approached each other and came in close proximity, estimated to be between 8 and 10 feet, the truck suddenly and without any warning ran from its right side of the road to the left, violently striking the sedan on the left front and left side, crushing the left front fender and ripping off the running board and left rear fender, and knocking the rear of the sedan off the road, so that it was on an angle of 45 degrees; that it was extremely cold and had been raining and the road was wet.

The truck driver stated that he was driving a 11/2-ton White lumber truck of the defendant on the Gentilly road in the direction of New Orleans on his extreme right side of the road, at a speed of about 12 or 15 miles an hour, around 6:30 p. m. on the day in question; that it was raining and sleeting and it was very cold; that the sedan came on his side of the road and struck the left front fender and wheel of the truck and both vehicles came to a rest in such a position as to block traffic; that it was very dark and that he could see only about 20 feet in front of the truck; that he did not see which way the Pontiac car came from and was unaware of its approach until all of a sudden he heard a loud scream and a car struck the truck on the left front fender; that he did not see the Pontiac car until after the vehicles collided.

There is some testimony in the record given by another defendant witness who came upon the scene after the accident, but he was unable to state whether the cars had been moved in the interim.

From the testimony of the plaintiff and Mr. Sangassan, a defendant witness, it appears that the plaintiff had no other security for his note than the mortgage on the Pontiac sedan and that the mortgagor is practically insolvent.

We feel that the plaintiff has proven, by a preponderance...