judge of Div."S." of the Sivil District Oourt. Perish of Orleans,acting,by order of the Oourt of Appeal,la the place of Judge Max Link» 1 spiel, recused.
Lafayette Theatre Sempany, V* Junius Hart Plano Houee, Ltd. & al., Appellant.
HO.8166.
OH HEHBAB1H0.
The judgment of the Sourt a qua was in favor of plaintiff against defendant, Junius Hart Piano Houae Ltd., as pravdd for, and in favor of defendant.William Sallagher, dismissing plaintiff! Suit as to him.
This Oourt, on appeal, reversed and annulled the judgment against the Hart Plano House and affirmed the judgment in favor of William Sallagher. A re-examination of this case satisfies us the oorreotness of our former opinion and deoree.
The evidence falls to establish any demage whatever to the organ during the time it was on deposit with Sallagher. This defendant is,therefore, olearly without fault. Hor is the evidence any more convincing to fasten liability on the Hart Piano House.
While in the custody of the Hart Piano House, in its store and during its removal to the Sallagher Warehouse, the organ was oare-fully handled by men experienced in the business.
The evidence relied on by plaintiff to show damage to the instrument during the transportation nf thereof from the store of the Hart Piano Houee to the Sallagher Warehouse is in the nature of general statements, the burden of whioh merely establishes the general bad condition of the organ. This is a condition whioh would be expeot-ed to be found in a second-hand instrument, whioh this organ was.
The testimony of Heoaud, the expert called on behalf of plaintiff, was based on an examination made some three months after plaintiff had,resumed control of the organ. It is worthless as throw*240ing arty light on the issues involved herein. The organ had been removed by plaintiff, its employees not being shown to have been exper-ienoed in that line of business, from the Gallagher Warehouse to the Cresoent Theatre, where it was first deposited on the stage;and,thereafter, being found to be in the way, was placed "in the loft with the rigging"; where, presumably, as it is not shown otherwise, the examina tion of Mr. He«and was made.
Shore is no mere reason to hold that the damage found by Mr* Heoend occurred during the time of the removal of the organ from the Hart Piano House,by experienced men, to the Gallagher Warehouse, than that it occurred while the Instrument was undergoing its several removals by plaintiff's inexperienced employees from the Warehouse to the stage of the Crescent Theatre and then to the "loft with the rigging." If we were dealing in probabilities, the latter one would commend lteelf to our reason and judgment.
But however that may he, plaintiff has no/eatab listed, with that degree of eertainty required by law, either that the damage te the organ was due to the hegligence of the Hart Plano House or its employees, or the amount of the alleged damage.
for the reasons assigned, our former opinion and decree is re-instated and made the final judgment of this Court.