
    EDWARD LEVY METALS, INC. v. NEW ORLEANS PUBLIC BELT RAILROAD v. SOUTHERN SCRAP MATERIALS COMPANY, Ltd.
    No. 21561.
    Court of Appeal of Louisiana. Fourth Circuit.
    March 12, 1962.
    Rehearing Denied April 2, 1962.
    Certiorari Granted May 18, 1962.
    
      Jones, Walker, Waechter, Poitevent, Car-rere & Denegre, Pat W. Browne, Jr., New Orleans, for defendant-third-party plaintiff-appellant.
    Herbert S. Weil and Walter F. Marcus, New Orleans, for third-party defendant-appellee.
    Before McBRIDE, YARRUT and SAMUEL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit for the value of certain scrap steel placed by it in defendant’s possession. Defendant answered and filed a third-party petition against Southern Scrap Materials Co., Ltd., seeking a judgment against the latter in such amount as might be found to be due by defendant to plaintiff in the original suit. Southern Scrap filed an exception of prescription of one and two years to the third-party petition. There was judgment in the trial court maintaining the exception and dismissing the third-party petition. Third-party plaintiff has appealed therefrom.

The original petition, filed on February 18, 1959, alleges that during the month of February, 1957, plaintiff loaded a freight car with scrap steel and turned the same over to the defendant with instructions to deliver the steel to a certain warehouse for loading on a ship then in the Port of New Orleans; all of the steel could not be so loaded and plaintiff ordered defendant to hold the remainder pending further instructions; plaintiff was later advised by defendant that, through error on defendant’s part, the steel was delivered to Southern Scrap whose stevedores had loaded the steel on a ship for the account of Southern Scrap. Plaintiff’s suit was for $2,030.32, the alleged value of the steel.

On April 22, 1959, defendant filed an answer in the form of a general denial. On May 1, 1959, defendant filed a third-party petition against Southern Scrap, alleging that on or about March 1, 1957, New Orleans Public Belt Railroad had placed the particular railroad car at the Galvez Street Wharf and that the steel contained in the car was unloaded for the account of the third-party defendant. The third-party petition does not contain an allegation to the effect that the steel cannot be returned, or is not available for return, for any reason, nor is there any allegation as to the date the delivery to Southern Scrap came to the knowledge of the railroad. The prayer of the third-party petition is that plaintiff’s suit be dismissed and, alternatively, in the event of a judgment against third-party plaintiff, there be a like judgment, for the principal amount of the first judgment, including interest and costs, rendered in favor of third-party petitioner against the third-party defendant.

On July 1, 1959, the third-party defendant filed exceptions to the third-party petition, alleging and pleading that said petition was prescribed by the prescription of one and two years.

The sole issue presented for our determination is the period of prescription applicable to the third-party complaint. Southern Scrap contends (1) that the railroad’s action is in tort and therefore, under LSA-C.C. Art. 3536, prescribed in one year, and (2) that under LSA-R.S. 45:1100 (relative to actions by or against common carriers and specifically including loss of shipments of freight) the action is prescribed in two years. The railroad contends that its action is in quasi contract which, under LSA-C.C. Art. 3544, is governed by the prescriptive period of ten years.

In those cases in which the plaintiff has the choice of two remedies, one in contract or quasi contract and the other in tort as the result of an offense or quasi offense, our settled jurisprudence is that such a plaintiff can elect the remedy to be pursued and the character he gives his pleadings and the form of his action control the prescription applicable; and when such a plaintiff sues only for the value of property wrongfully taken or detained, the action is regarded as one for damages arising out of and based on an offense or quasi offense and the prescription of one year is applicable. Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d 574; McGuire v. Monroe Scrap Material Co., 189 La. 573, 180 So. 413; Carter-Allen Jewelry Co. v. Overstreet, 165 La. 887, 116 So. 222; Liles v. Barnhart, 152 La. 419, 93 So. 490; Martin v. Texas Co., 150 La. 556, 90 So. 922.

Articles 2301 and 2312 of the LSA-Civil Code provide, in substance, that he who receives what is not due to him, whether through error or knowingly, is obligated and bound to restore the same in kind, if it remain, or its value, if it be destroyed or injured by his fault. These articles appear in that Chapter of the Civil Code entitled “Of Quasi Contracts” and the action thereunder is governed by the prescriptive period of ten years set forth in Civil Code Art. 3544.

Therefore, in the instant case the railroad had an action in quasi contract, first for the return of the steel, and secondly for its value if Southern Scrap was unable to restore it in kind. It also had an action in tort for the value of the steel wrongfully appropriated. And, as determined by the above cited Supreme Court cases, it is the tort, or ex delicto action, which the railroad has chosen. For in its third-party complaint the railroad does not seek the return of the steel. It seeks only a judgment against Southern Scrap for the principal amount, including interest and costs, of any judgment which may be rendered against it in favor of the plaintiff in the original suit. And in that suit the original plaintiff has prayed only for the value of the steel. In neither petition is there a prayer for the return of the steel or, in default thereof, for its value.

It is quite clear that prescription does not run against a party who is unable to bring an action. Tucker v. LeGette, La.App., 8 So.2d 339; Succession of Galiano, La.App., 195 So. 377; Hogh v. Baloga, La.App., 180 So. 215. For this reason we are concerned with the question of when the railroad’s right and cause of action in tort arose against the third-party defendant, if in fact it ever did arise, and we are of the opinion that the question is settled by, and that we must follow, the case of Douglas v. Haro, 32 So.2d 387 (in the Court of Appeal) and 214 La. 1099, 39 So.2d 744 (in the Supreme Court).

Douglas involved a “compensated deposit”, or under common law terminology, “a bailment”, a relationship indistinguishable from the instant case on the point now being discussed. In Douglas plaintiff operated a garage and accepted for storage therein an automobile owned by a local bank. A plaintiff employee took the automobile out of the garage and became involved in a collision with a car operated by the defendant. Plaintiff filed suit for the damages to the deposited automobile and exceptions of no right or cause of action were filed to plaintiff’s petition. The sole question thus presented was whether an action can be brought by a depositary against a third-party tort-feasor for damages to the subject matter of the deposit in the absence of the payment of such damages by the depositary to the depositor and in the absence of demand for such payment. The Court of Appeal for the Parish of Orleans, the predecessor of this court, maintained the exceptions and affirmed the judgment of the district court dismissing the suit on the grounds that plaintiff had suffered no damage and therefore had no right or cause of action.

When Douglas came before the Supreme Court on review, that Court reversed the judgment of the Court of Appeal and remanded the case to the trial court in order that the depositor (the owner of the automobile) might be impleaded in the suit. Although the Supreme Court said it was not necessary to express an opinion on whether or not the plaintiff had no interest to sue because he had suffered no loss and alleged no demand from the depositor for restitution, it is quite clear to us that the Supreme Court, by its action in reversing and remanding, must have held that the depositary had a right and cause of action against the third-party tort-feasor. Certainly the im-pleading of the depositor could not by itself give rise to a right or cause of action which did not exist in the absence of such an impleader.

We consider ourselves bound by Douglas as finally decided by the Supreme Court and therefore must conclude in the instant case that the railroad’s right and cause of action in tort against Southern Scrap arose when the steel was wrongfully appropriated by the latter and that at any time thereafter the railroad could have brought its action ex delicto against Southern Scrap, although in order to properly do so it would have been necessary to implead the original plaintiff, Edward Levy Metals. Under all of the cases herein cited we must also conclude that the railroad’s third-party petition is an action ex delicto and is barred by the prescription of one year.

We are aware of Article 2164 of the LSA-Code of Civil Procedure which in part provides: “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” We are also aware of Comment (a) which appears under Article 2164 and states the article insures that the “theory of the case” doctrine is not applicable under the Code. While there can be little doubt that the cases first cited are based upon the “theory of a case” doctrine (see 24 Tul.L.Rev. 66), we are unable to do anything other than follow that Supreme Court jurisprudence. For here all of the facts occurred, the pleadings were filed, the exception of prescription was heard and judgment rendered thereon by the trial court, prior to the effective date (January 1, 1961) of the Code of Civil Procedure. And Sec. 4 (B) (2) (b) of Act IS of 1960, under which act the Code was adopted, prevents the Code from changing the legal effect of any judicial, official, or procedural act done or attempted, or of any failure to act, prior to said effective date.

Our decision maintaining prescription of one year makes it unnecessary for us to consider the contention of the third-party defendant relative to the prescription of two years.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

YARRUT, Judge

(dissenting).

I am constrained to dissent from the majority opinion affirming the judgment of the district court which maintained the pleas of prescription of one and two years against the third-party action filed by defendant carrier. The pleas should have been overruled.

The essential allegations of both primary and third-party petitions are correctly stated by the majority opinion, but for brief repetition they are: That plaintiff delivered a carload of scrap iron to defendant to await instructions. Instead, defendant delivered it to the third-party defendant who, in error, loaded it on board a ship for transshipment. Plaintiff contends this was a violation of its contract of carriage, and prays to recover the market value of the scrap iron from defendant.

After pleading a general denial, defendant filed a third-party action making Southern Scrap Materials Co., Ltd., third-party defendant, in which it alleged the shipment was delivered to third-party defendant in error. Defendant then prayed for the same judgment against its third-party defendant as may be rendered against it in the main demand.

Third-party defendant’s pleas of prescription of one and two years are based on the contention that third-party plaintiff’s suit seeks recovery of the value of the scrap iron, instead of its restoration, which characterized it as a suit ex delicto, prescribed by one year; or alternatively, then two years under LSA-R.S. 45:1100, making claims by or against a carrier prescribe in two years from date of shipment. Prior to LSA-R.S. 45:1100, the period was ten years. Sizeler v. Employers’ Liability Assur. Corp., 102 So.2d 326.

In this case plaintiff’s suit was filed within two years, but more than one year after the contract of carriage.

Plaintiff’s suit is clearly one for breach of contract and was filed in time. The third-party action, tracking plaintiff’s prayer for relief, is clearly quasi ex contractu and, between it and the third-party defendant, is governed by the prescription of 10 years. LSA-C.C. Art. 3544.

The statutory prescription of two years under LSA-R.S. 45:1100 is applicable only to those who are direct parties to the contract of carriage (consignor, consignee and carrier).

The LSA-Civil Code Articles, covering quasi contracts, clearly define them as follows :

“Art. 2301. He who receives what is not due to him; whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.”
“Art. 2312. If the thing unduly received is an immovable property or a corporeal movable, he who has received it, is bound to restore it in kind, if it remain, or its value, if it be destroyed or injured by his fault; he is even answerable for its loss by fortuitous event, if he has received it in bad faith.”
“Art. 2313. If he who has received bona fide, has sold the thing, he is bound to restore only the price of the sale.
“If he has received in bad faith, he is bound besides this restitution to indemnify fully the person who has paid.”

The allegations of plaintiff’s petition are that a shipment of scrap iron was delivered in error to third-party defendant, which apparently has been lost, so plaintiff sues for its value. In not asking first for the return of the scrap iron, but simply for its value, third-party defendant contends defendant has thereby elected to sue for damages ex delicto, subject to the one-year prescription. The majority opinion cites authorities to the effect that a demand for value is one ex delicto not ex contractu or quasi ex con-tractu. None of these authorities involve claims against a carrier of freight, whose liability for loss or damage is fixed by statute, giving no choice to the shipper. Hence, any demand for loss or damage to the shipment must necessarily be ex con-tractu.

The measure of damage for loss or failure of carrier to deliver is fixed by law as the fair market value of goods at place of. destination at time when delivery should have been made. Piazza v. Louisiana & A. Ry. Co., La.App., 46 So.2d 670; LSA-R.S. 45:-913-1099.

We have no doubt that the third-party demand, tracking that of plaintiff, is based on a quasi-contract as clearly expressed in the case of Broussard v. Friedman, La.App., 40 So.2d 669, as follows:

“ * * * His liability under such circumstances is fixed by the terms of Article 2301 of the Civil Code, which obliges the one who has received ‘what is not due to him, whether he receives it through error or knowingly * * * to restore it to him from whom he has unduly received it.’ Articles 2312 and 2313 we believe also to be pertinent to the issue involved. The first of these two articles as far as it applies, reads as follows: ‘If the thing unduly received is an immovable property or a corporeal movable, he who has received it, is bound to restore it in kind, if it remain, or its value if it be destroyed or injured by his fault; * * *.’ The second provides that ‘if he who has received bona fide, has sold the thing, he is bound to restore only the price of the sale. If he has received in bad faith, he is bound besides this restitution to indemnify fully the person who has paid.’
“Nowhere in his petition does plaintiff charge the defendant with having wilfully done anything wrong or illegally caused him injury or damage. He does not allege bad faith or even a lack of good faith on his part in having sent his men to his brother’s property to pick up the roller mill. The bona fides of the one receiving the property seems to be an important factor in applying the provisions of the various articles of the Civil Code which we have cited. * * * ”

There can be no question that third-party defendant, if unable to restore the scrap iron itself, is bound for the price. Inability to restore in kind is peculiarly within third-party defendant’s knowledge. It must offer to restore and, if unable to do so, must pay the value. It would be vain and useless for a plaintiff to first demand the return of his property, before asking for the value, when his petition creates a prima facie case that his property has been lost. The burden of proof is on third-party defendant. Kramer v. Freeman, et al., 198 La. 244, 3 So.2d 609; City National Bank of Baton Rouge v. Louisiana Sav. Bank & Trust Company, 216 La. 262, 43 So.2d 602.

If plaintiff’s main action were prescribed, then the third-party petition would, on its face, state no cause of action.

As the suit of plaintiff, shipper, was filed within two years against the carrier, the liability of any third-party to the carrier is-subject to the 10-year prescription under LSA-C.C. Art. 3544.

The case of Douglas v. Haro, 214 La. 1099, 39 So.2d 744, cited in the majority opinion, is inapposite here. In that case a garage owner brought suit in tort within a year against a third party who damaged the owner’s automobile in a highway collision while in possession of and being driven by the garage owner’s employee. All that the Court held in that case was that the owner of the automobile had to be made a party to the suit to avoid a multiplicity of actions, without expressly passing on whether or not a depositary has sufficient interest alone to maintain an action for the possession of the deposit wrongfully taken from him. In the cited case the depositary sued in tort. Here the suit is quasi ex contractu; and no question of prescription was involved in the cited case.

The judgment of the district court maintaining the plea of prescription against the third-party action was erroneous and should be reversed and the case remanded for trial.  