Medina v. Hanson

Labauve, J.

The plaintiffs and appellants claim of tho defendant the sum of $411, with interest. They allege, in substance, that in January, 1860, they had contracted to deliver to James Martin, at the Atlantic dry dock, at Algiers, a certain quantity of white oak (ship timber), from thirty-five to forty pieces ; of •which twenty-one pieces were then some eight miles below Algiers, lying in the Mississippi river; that said Hanson agreed to tow the said twenty-one pieces of timber from where they were to said dry dock, and proceeded down the river with his job-boat Downs, to where the timber was, bnt concluded that said timber could not be towed up then, in the condition it was then in; and petitioners purchased a flatboat, which they delivered to said Hanson to convey the said timber ; that said Hanson went back and commenced placing in said flatboat the said timber; and, having put in seven pieces, night came, and the labor was suspended until next morning; but, that said Hanson fastened the boat in so bad a manner that she broke loose in the night and floated down, with said flatboat and timber attached to her, and that the fourteen pieces, which had not been put in said flatboat, were lost; that this loss was caused by the carelessness and negligence of said Hanson, etc., and he prays accordingly.

The defendant answered by a general denial, but admitted the undertaking ; denied, at the same time, the neglect imputed to him; that the loss was caused by an unforeseen storm. He claims in reconvention $500, for which he prays judgment.

The District court dismissed plaintiffs’ demand, and gave judgment for defendant in reconvention, for $34 and costs.

We find in the record a bill of exceptions, taken by plain tiffs ; but, as a decision upon it would not change the conclusion we have come to, we have not thought necessary to pass upon it.

The testimony shows that the weather was fine in the commencement of the night; that the steamboat had two anchors out (one at each end), and a line ashore, tied to an old log; there was nothing else to tie it to. The flatboat was properly fastened. In the night a storm came on; everything got loose — steamboat, flatboat and timber. The timbers that were not put on the flatboat were lost.

It is true that steamboats are common carriers, and, as such, are hold to the most strict vigilance and responsibility. They must deliver what they have received, unless they prove that the loss has been occasioned by accidental and uncontrollable events. C. G. Art. 2725.

The loss of the timber is proven, as alleged; it was then incumbent on the defendant to show the accidental and uncontrollable event which had caused the loss. He has done so by proving a storm which put everything adrift in the river. But it is contended that he had been neglectful in not securing properly his steamboat, the flatboat andtlie timber. We have carefully examined the testimony, and we think, with the district judge, that the defendant is not responsible. We are of opinion that the judgment appealed from is erroneous in allowing the defendant thirty-four dollars in reconvention against the plaintiff. We believe that defendant has failed to make out his demand in reconvention.

It is therefore ordered and decreed, that the judgment of the District court be annulled and avoided ; it is further ordered and decreed, that there be judgment against plaintiff, and that there be also a judgment against the defendant on his rcconventional demand. It is further ordered and decreed, that plaintiff pay costs incurred in the District court, and that the defendant pay those of appeal.