
    No. 5791.
    AHRENS & OTT MANUFACTURING CO. vs. LOUISVILLE & NASHVILLE RAILROAD CO.
    „• Appeal from First City Court, Division “ C, ” No. 53,086.
    ; Sol. Wolf, for plain tiff iand appellee. -
    Denegre, Blair & Cliaffe, for defendant and appellant.
   His Honor,

EMILE CODCHAUX,

rendered .the opinion and decree of the Court as follows:

On Application for Rehearing.

' My findings of fact are that plaintiff originally filed a claim for $3.31-; that subsequently, discovering an error, it reduced the amount thereof by filing an amended claim for $3.15 and, after this latter reduced claim had remained unpaid for more than sixty days after the filing thereof, it filed suit thereon, proved up its claim, and was awarded judgment for the amount thereof; $3.15, with interest and penalties under Act 29 of 1908, which judgment I have affirmed on appeal.

I am clear that the penalities were properly assessed, as the reduced claim upon which plaintiff relied, sued and secured judgment had remained unpaid for more' than sixty days subsequent to the filing thereof.

The unconstitutionality of the Statute has never before been insisted upon before me; and, as no argument or authority has been submitted in support of the contention, I shall rest my decision as. to the constitutional question upon the presumption which exists in favor of the constitutionality of all statutes.

There being no stipulation in the bill of lading to that effect I know of no law which relieves railroads from liability for damages to property due to the ‘ ordinary inci-d'ents of transportation;” moreover not only was such a defense not pleaded,' but I am satisfied that thé damage was not due to the “ordinary incidents of transportation, ”

Opinion and decree, April 17th, 1913.

Original opinion, April 8th, 1913, and writ denied May 27th, 1913.

The rehearing is refused.  