113 So. 840 | La. | 1927
Plaintiff sues for the value of his stolen automobile insured against theft by defendant. The defense is that he breached the following warranty clause of the policy, to wit:
"In consideration of a reduction in premium, it is warranted by the insured that the automobile insured under this policy will be continuously equipped with a locking device, known as `Sargeant lock.' The insured undertakes during the currency of this policy, to use all diligence and care in maintaining the efficiency of said locking device and in locking the automobile when leaving it unattended."
On the other hand, the adjuster for the defendant and its attorney testify that plaintiff told them he had locked only theswitch, and had not locked the "transmission." And the adjuster testifies further, that plaintiff told him that "he never used that lock [i.e. the transmission lock], for the reason that he is very stout and it was difficult for him to stoop down to lock [unlock?] it. * * * And he even stooped down to show me how difficult it would be for him to use a key — to turn the key."
And this court has repeatedly and uniformly held that the burden rests on the appellant to show that the judgment appealed from is erroneous; that in cases involving only issues of fact the finding of the trial judge or jury will not be disturbed unless there be manifest error and such error pointed out; that a mere pointing out of conflicting evidence is not a pointing out of error. Hanton v. N.O. C.R.L. P. Co.,