Opinion
No. 16049.
June 22, 1936.
Appeal from Civil District Court, Parish of Orleans; Michel Provosty, Judge.
On application for rehearing.
For former opinion, see 168 So. 384.
Azzo J. Plough, of New Orleans (James F. Galloway, of Gulfport, Miss., of counsel), for appellant.
Legier, McEnerny Waguespack, of New Orleans, for appellee.
Counsel criticises our opinion in this case on the ground that it is not in accord with the holding in Muntz v. Algiers Gretna R. R. Co., 114 La. 437, 38 So. 410. The Muntz Case is authority for the proposition that one may be called in warranty if he be in privity with the defendant in the suit and that privity may be established by stipulation pour autrui in the contract, whereas the cases cited by us all hold that there must be a privity between the plaintiff and the party called in warranty to support the call. We recognize the fact that the Muntz Case is a qualification of the doctrine of the cases discussed by us, but its effect, when applied to this case, cannot alter the result, since it is not pretended, or proved, that there was any privity of contract between the defendant in this case and the succession of Wood, called in warranty.
The application for rehearing is refused.
Rehearing refused.