
    NO. 7989.
    J. D. WEATHERSBY. VS LOUISVILLE & NASHVILLE R. R. CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   OPINION.

By Ilia Hohor John St. Paul.

Plaintiff anas for alleged loa ea auatained on a ahipment of corn flour, aaid to have Been damaged by dampneaa and duat, whilst under an open ahed where defendant had atorad it after arrival.

Por answer the defendant deniea other liability than that of warehouseman; denies any negligence as suoh; denies the extent and quantum of the alleged damage.

I.

It is .admitted that defendant's liability is that of a warehouseman only. But where merchandise held on storage feven by a carrier) consists of a perishable commodity, liable to be damaged by damp and fog, it should be stored in a warehouse of other dry place, and not under an open shed without other adequate protection against the weather. Coate Bros vs N. O. Terminal Co, 139 La 958.

In the case before us it is shown that the commodity was particularly liable to damage from moisture; that it was stored under an open shed only thirty or forty feet wide, and surrounded but not covered by tarpaulins.

II.

The evidence herein is not as full as it might -bo as to the extent of the damage dona by the moisture, and possibly this may be due to the stand first taken by the defendant when the claim was presented; towlt, not a denial that such damage had ocourred, hut a denial of liability in any event; as plaintiff had been notified that the shipment had arrived, was aware of "local conditions", and if not satisfied with defendant's storage facilities should have stored his goods elsewhere. In which position defendant persisted from June 18th 1918 to August 29th, 1918, and apparently shifted therefrom only when it filed its answer herein.

And whilst we do not take this as an unqualified admission that suoh damages had occurred, nevertheless it is entitled to some consideration as being indicative of this at least; that it was easier to question plaintiff's to right under the alleged facts than question the facts themselves. And where a party gives a reason for his conduct and decision touohing anything in controversy, he cannot after litigation is begun change his ground and put his conduct upon another and different consideration. Vicknair vs Southside Plantation Co, 10 Orleans App 43; citing Railway Co vs Mc Carthy, 96 U. S. 267, and Warner vs Fabacher, 6 Orleans App 37.

III.

For the rest, defendant's own witnesses show that the shipment was damaged somewhat, even if but slightly, first in aotual transportation and afterwards in storage. and avan though the full extent of the damages Is established only by the testimony of plaintiff alone, yet that testimony Impresses us as fair, full and honest; and it is certain that it satisfied the trial Judge who heard it from the mouth of the witness himself.

May 2nd 1921.

That testimony shows that the whole shipment had been damaged from the exposure; that one purchaser rejected the flour absolutely, that another claimed a reduction, and that the whole lot was eventually sold below coit, all because of its condition.

XV.

Plaintiff claims only the difference between the oost of the flour to him and the price whioh he reoeived for it; he olaims nothing for lost profits. He admits that the market was falling, but says that the fall took place whilst he was trying to dispose of-an article difficult to sell on account of its condition. He swaers that had the flour not been damaged he could and would have disposed of earlier and at a profit. And on the whole wo think that ha has made out suoh a case as warrented the judgment in his favor.

The Judgment appealed from is therefore affirmed and made executory against James C. Davis, Director General Of Railroads, as agent of the United States, at his oost in both oourts.

Hew Orleans la,  