63 So. 591 | La. | 1913
Plaintiff, on behalf of herself and minor children, sues the defendant company in damages for the death of her husband, alleged to be due to the fault and neglect of the defendant.
There was judgment in favor of the defendant, and the plaintiff appeals.
The plea in bar was properly overruled.
“The remission or conventional discharge in favor of one of the codebtors in solido discharges all the others, unless the creditor has expressly reserved his rights against the latter.”
The above article is placed in the section entitled: “Of the Remission of the Debt,” and it appears that the words “remission” and “conventional discharge,” found in the article, are used as synonyms. A “remission,” in the civil law, “is a release of a debt”; and “it is conventional when it is expressly granted to the debtor by a creditor having a capacity to alienate.” Bouvier.
In the cases relied upon by defendant on its brief there were conventional remissions of some of the co-obligors. But in this case there was no convention alleged or proved wherein plaintiff released the railway com
“We are aware of no authority that supports the proposition that a mere discontinuance of the suit as to some of the obligors releases all the rest.” Vredenburg v. Behan, 33 La. Ann. 627.
The remission of a debt, under article 2199, C. C., must be conventional, or tacit; and it is tacit “when the creditor voluntarily surrenders to his debtor the original title under private signature which establishes the obligation.”
Here, the remission is not alleged or shown to be conventional or tacit. There was no error in the ruling.
The crew of the engine saw the deceased when he left them going in the direction of the yard of the defendant company, and he was not seen again until he was found under some planks measuring 12 inches in width which had fallen from a pile on defendant’s yard, and which had so injured him that he died within a few days after the accident.
The record is entirely silent as to how the accident happened.
The theory of plaintiff is that the lumber which fell had been improperly and insecurely piled, and that it had suddenly fallen upon the deceased while he was in the discharge of his duties, and that defendant was therefore at fault and responsible to her in damages; but there is no evidence to support her theory. The stack of lumber which fell on the deceased was a temporary pile built on the ground of the defendant company almost in immediate contact with the cars from which it had been unloaded. The testimony shows that the different sizes of lumber as they were taken from the ears were placed in different piles, and distributed along the track; and that these temporary piles remained in such position for only a few hours, when they were transported to other parts of the yard, and piled regularly and permanently. The surrounding sizes of lumber had been taken away, leaving a stack of one by twelve inch boards, four feet broad, and about five or six feet in height. When the surrounding lumber had been taken away, a prop was placed against the outside tier of boards by an employe of defendant, so as to make it more secure. This prop was misplaced and broken, and a part of it was found on the body of the deceased, immediately after the
If the deceased, through his own act, inadvertent though it may be, was the cause of a pile of lumber falling upon him, his widow and heirs cannot recover from the defendant for injuries and damages suffered by him and them.
The judge, who saw and heard the witnesses on the trial, evidently believed the testimony of defendant’s witnesses; and he dismissed plaintiff’s suit There is no reason suggested by the record why this ruling should be disturbed.
Judgment affirmed.