Ledner v. Caddo Transfer & Warehouse Co.

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 [368] 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.”