author: McBride, judge.

text:
    Oscar J. ANDREPONT v. Dr. Alton OCHSNER.
    No. 20423.
    Court of Appeal of Louisiana. Orleans.
    Dec. 5, 1955.

      Adams & Reese, New Orleans, for defendants and appellants.
    John E. Fleury, Gretna, Gordon Boswell, and Stanley E. Loeb, New Orleans, for plaintiff and appellee.
   McBride, judge.

This is a suit brought by Oscar J. Andre-pont' against Dr. Alton Ochsner and the Aetna Casualty & Surety Company, the latter having been made a party defendant by supplemental and amended petition. The said surety company is the public liability carrier of Dr. Alton Ochsner, the Foundation-Hospital, and Alton Ochsner Medical Foundation.

Plaintiff, who resides in St. Landry Parish, was referred to the Ochsner Clinic in New Orleans by his private physician for diagnosis of his complaints. He was first seen at the Clinic by a Dr. Bradford, who sent him to Foundation Hospital, Jefferson Parish, for treatment and surgery. After X-rays and various laboratory tests had been made, plaintiff was advised to have his left lung removed and he arranged with Dr. Alton Ochsner, a surgeon, to perform the operation, which is called a pneumonectomy.

Plaintiff entered the Foundation Hospital on March 14, 1949, and March 21 was selected as the date on which the operation was to be performed. On that morning he was taken to the induction room, where a Dr. David A. Davis undertook to administer an anesthetic. Dr. Davis started the procedure with sodium pentothal which is injected into the vein, and shortly thereafter proceeded to administer cyclopro-pane and oxygen to which was added a small amount of ether. Then plaintiff was conveyed to the operating room. From the evidence it appears that the anesthetic machine and operating table are first located in the induction room where the patient is administered the anesthetic and then is taken into the operating room where it is set in proper placement for use during the operation.

When the plaintiff was fully under the effect of the anesthetic, Dr. Ochsner proceeded to make the required incision in his left side and almost simultaneously there, was an explosion- and fire. What actually exploded was the gaseous mixture being administered to anesthetize the patient. As a result of the explosion and fire, nearly all of the glass part of the anesthetic machine was damaged, as well as the bottles holding the ether, and the re-breathing bag. The mask which is placed over the patient’s mouth and nose was damaged or destroyed.

Of course, the operation was immediately halted, the incision in the patient’s side was sutured, and a tracheotomy performed. The testimony shows that a tracheotomy is a slit in the patient’s throat above the breastbone through which a small tube to facilitate breathing can be introduced.

It is not disputed that plaintiff was injured. He brought this suit against Dr. Alton Ochsner seeking to recover the sum of $50,000. ” The petition alleges that Dr. Ochsner procured, furnished, and provided ■the anesthetic gases, as well as the anesthetic machine and its appliances, or that he caused the same to be procured and provided for; that the explosion and fire were caused solely and entirely by the gross fault, negligence, and carelessness of the defendant, Dr. Ochsner, in the selection of the kind of anesthetics which he administered to plaintiff, which together with the instrumentalities used were under the control of said defendant, his assistants, employees, and nurses; that Dr. Ochsner was also at fault in failing to take the necessary precautions and preventatives against the occurrence of an explosion while using the type of anesthetic gas that was administered to plaintiff; that the exact cause of the explosion and fire is unknown to plaintiff but the cause is within the knowledge of the said defendant.

Dr. Ochsner made answer to the petition denying that he was negligent or at fault or that he was in any way responsible for the accident. The answer further alleges that the explosion and 'fire occurred without fault on the part of anyone as all reasonable and necessary precautions had been taken to prevent such occurrence.

Subsequently the plaintiff filed a supplemental and amended petition in which he reiterated all of the allegations of the original petition; he further alleged that the Aetna Casualty & Surety Company is the public liability insurer of Dr. Alton Ochs-ner, the Foundation Hospital, and Ochsner Medical Foundation; that if the anesthesiologist and nurses were not the employees of Dr. Ochsner, they were the employees and agents of Foundation Hospital or of Ochsner Medical Foundation, and they acted in the course and scope of their employment; that if the anesthetic appliances and instrumentalities had not been procured, furnished, and provided by Dr. Alton Ochsner, they were provided by Foundation Hospital or by Ochsner Medical Foundation for use by their, agents and employees. It is alleged by plaintiff that he had set forth all knowledge he has concerning the accident and he pleads the doctrine of res ipsa loquitur. The prayer of the petition is that Dr. Alton Ochsner and Aetna Casualty & Surety Company be cited to appear and answer plaintiff’s demand, and that after all due proceedings there be judgment in favor of petitioner and against Dr. Alton Ochsner and Aetna Casualty & Surety Company, in solido, for the full sum of $50,000, with legal interest thereon from the date of judicial demand until paid and for all costs.

Aetna Casualty & Surety Company interposed a plea of prescription of one year to the demand made against it in the supplemental and amended petition. This exception was overruled by the lower court and referred to the merits of the case. Whereupon the surety company made answer, the pith of which is that it reiterates and adopts the answer made by Dr. Ochsner to the original petition; it denied that Dr. Ochsner, the Foundation Hospital, or Alton Ochsner Medical Foundation were in any way negligent or at fault and that they are not legally responsible for the explosion which occurred during the course of the operation; it pleads further that the doctrine of res ipsa loquitur has no application.

After the case. was tried on the issues presented by the pleadings, there was judgment rendered in favor of the plaintiff, Oscar J. Andrepont, and against the defendants, Dr. Alton Ochsner and Aetna Casualty & Surety Company, for the sum of $30,000. The said defendants have taken this appeal.

Aetna Casualty & Surety Company also complains of the judgment that was rendered May 28, 1952, overruling and referring to the merits its plea of prescription of one year prescribed by LSA-C.C. art. 3536 for offenses and quasi offenses. The exceptor reurges the exception, which is aimed at plaintiff’s attempt to implead the exceptor as defendant as the insurer of Foundation Hospital and Alton Ochsner Medical Foundation.

The accident in the operating room happened on March 21, 1949, and plaintiff filed his suit for damages against Dr. Ochsner on November 25 of the same year. It was not until May 18, 1951, some twenty-six months after the accident and about eighteen months after the suit had been brought, that plaintiff filed the supplemental petition bringing into the case as a party defendant the Aetna Casualty & Surety Company as insurer not only for Dr. Alton Ochsner but also as insurer for the Foundation Hospital and Alton Ochsner Medical Foundation. In his original petition plaintiff alleged:

“That on March 21st, 1949, plaintiff was taken to the operating room at ‘Foundation Hospital’ where the said defendant, Dr. Alton Ochsner, undertook to perform the operation, and, without the knowledge of plaintiff and in pursuing his purpose, of operating upon plaintiff, Oscar J. Andrepont, and removing his left lung, decided to and elected to and did administer to plaintiff, either personally or through his assistants, employees and nurses, and caused to be administered to said plaintiff a general anesthetic in the nature of certain gases or combination of gases, the name of which is unknown to plaintiff but is well known to and within the knowledge of defendant, for the purpose of placing plaintiff in a state of unconsciousness from the influence of said gases and in order to remove plaintiff’s left, lung ■while plaintiff was in said unconscious condition.”

The supplemental and amended petition alleges:

“That policy provides and stipulates that Aetna Casualty and Surety Company (would) indemnify its aforesaid insured, Alton Ochsner and Foundation Hospital and Ochsner Medical' Foundation, or any of them, against liability imposed by law in damages for the injuries petitioner sustained at the time and place and in the manner described and declared on in his original petition in the entitled cause.
* * * - ■* * *
“ ‘If the aforesaid anesthetist and nurses were not Alton Ochsner’s employees, they were employees or agents of Foundation Hospital or of Ochsner Medical Foundation, and they were then and there acting in the course and scope of their employment.’
* * * * * *
“ ‘If the said anesthetic, appliances and instrumentalities were not procured, furnished and provided by Alton Ochsner, they were provided by Foundation Hospital or by Ochsner Medical Foundation for use by their aforesaid agents and employees in petitioner’s surgical operation.’ ”

The evidence shows that Dr. Alton Ochsner is the President of the nonprofit corporation known as Alton Ochsner Medical Foundation, which is the owner and Operator of the Foundation Hospital, in which the accident occurred. This being so, the only question presented by the plea of prescription is whether the bringing of the suit against Dr.. Alton Ochsner individually within a year of the date of plaintiff’s injuries had the effect of interrupting the prescription of one year -as .against the corporation Alton Ochsner Medical. Foundation and its public liability insurer, Aetna Casualty & Surety Company. If the filing of the original suit interrupted prescription as to the surety company, the plea is unavailing to said defendant.

We think that the filing of the suit against Dr. Ochsner did have the effect of interrupting prescription, and we fail to see any merit in the plea. The settled jurisprudence warrants our view.

In 1927 this court decided the case of Norwich Union Ind. Co. v. Judlin & Whitmire, 7 La.App. 379, which was a suit for damages for personal injuries resulting from the operation of a motor truck owned and operated by a corporation named Peter Judlin, Inc. The suit was brought originally against Peter Judlin as owner of the truck, -but on the -trial of the case it de-* veloped that the truck was not owned by Peter Judlin but was owned and operated by the corporation known as Peter Jud-lin, Inc., of which Peter Judlin was the President. Thereafter the plaintiff filed a supplemental petition praying for judgment against the corporation, Peter Judlin, Inc. In the meantime a year had elapsed from the time of the accident; Peter Judlin, Inc., pleaded prescription. We overruled the plea saying that the suit and citation against Peter Judlin individually “though insufficient, to base a judgment against Peter Judlin, Inc., was sufficient to interrupt prescription against the latter.” The Supreme Court refused to grant a writ of review.

The principle involved in the above-cited case can not be distinguished from the principle involved in the instant case.

In support of our decision in Norwich Union Ind. Co. v. Judlin & Whitmire, we cited the case of Gueble v. Town of Lafayette (inadvertently giving the title as Campbell v. Hart), 118 La. 494, 43 So. 63, wherein it was held that a citation addressed to the Mayor of the Town of Lafayette, although it was not sufficient to sustain a judgment against the town, was sufficient to interrupt prescription of the claim against the town. In that case the principle underlying the rule is that a citation addressed to the wrong party may give sufficient information to the right party to cause an interruption of the period of prescription of the claim against him, even though the citation could not be the basis for a valid judgment against either party. We said: .

“* * * While we hold that matters for that purpose were stayed, we hold that the knowledge brought home to the mayor, who was the proper person to whom that knowledge should have been conveyed, had the effect of interrupting the running of prescription.”

In Jackson v. American Employers’ Insurance Co., 202 La. 23, 11 So.2d 225, in which both the Norwich Union Indemnity Co. v. Judlin & Whitmire and Gueble v. Town of Lafayette cases were cited, the facts were that three insurance companies were doing business as a group under the title “The Employers’ Group of Boston, Mass.,” letterheads of which bore the names of all three companies, having the same office for their claim department, the same telephone, same manager and same employees in that department. The Supreme Court held that the filing of suit against one of the companies under a mistaken belief that it was the insurer under a policy covering an automobile which caused the injury was sufficient to interrupt the one-year period of prescription against the company which had issued the policy.

Our courts have adopted a liberal attitude free from the fatalities of technicalities in cases involving analogous situations. Where a defendant is sued in a representative. capacity, such as receiver of an insolvent corporation, or administrator of a succession, and is later sued in his. individual capacity on the same cause of action, the first suit.has been held to interrupt prescription running on the demand. Succession of Saunders, 37 La.Ann. 769; Vernon v. Illinois Cent. R. Co., 154 La. 370, 97 So. 493; Anding v. Texas & P. Ry. Co., 158 La. 412, 104 So. 190; Warn v. Mexican Petroleum Corporation, 6 La.App. 55; Calamia v. Mayer, La.App., 174 So. 668. It makes no difference that the plaintiff has no right to bring the action. Flower v. O’Connor, 17 La. 213; Bell v. Mix, 1 Rob., 393; Blanc v. Dupre, 36 La.App. 847; Becnel v. Waguespack, 40 La.Ann. 109; Boyd v. Heine, 41 La.Ann. 393, 6 So. 714; Wolf & Sons v. New Orleans Tailor-made Pants Co., 110 La. 427, 34 So. 590; Ray v. Liberty Industrial Life Ins. Co., La.App., 180 So. 855.

In Bowerman v. Pacific Mut. Ins. Co., 212 La. 999, 34 So.2d 53, 55, a workmen’s compensation case, the Supreme Court held that prescription was not interrupted as to the insurer of the employer by the filing of the suit against an improper defendant, but we notice that the Court was careful to say:

“* * * since the prescriptive pe--riod had expired without the filing of a suit against the true insurer, and since there was no proof that the insurer had notice or ‘actual knowledge that plaintiff' was asserting his claim by instituting suit within the prescriptive period, the plea of prescription is ,valid.” (Italics ours).

In the recent case of Davis v. Lewis & Lewis, 226 La. 1059, 78 So.2d 173, the Supreme Court held that where the insurer’s identity was unknown to plaintiff, service of citation on the accident adjustor for the insurer within one year of the accident on a petition seeking to make the insurer a defendant through the adjustor gave the insurer sufficient notice and .knowledge that plaintiff was asserting his claim as against the insurer so as to interrupt the one-year period of prescription.

■ Thus it appears that all of the cases seem to be based on the theory that the knowledge of the demand, its origin, and basis, are imparted to the defendant even' though the original suit was brought against the wrong defendant or against the defendant in an improper capacity, and even when brought by an improper plaintiff. So long as the proper person has been apprised of the demand in any legal capacity, prescription is interrupted.

Notwithstanding the fact that the suit was directed against Dr. Alton Ochs-ner in an individual capacity, nevertheless he, in the capacity of President of Alton Ochsner Medical Foundation, which owns and conducts the Foundation Hospital, was fully apprised of the plaintiff’s demand for $50,000 as well as the nature of that demand. The suit forcibly gave notice to Dr. Ochsner, as President of the corporation, that plaintiff sought redress for the injuries which he had sústained in the operating room in Foundation Hospital on March . 21, 1949. There is nothing better settled in our jurisprudence than that the knowledge of a president of a corporation relating to its affairs and business is knowledge to the corporation. Serio v. American Brewing Co., 141 La. 290, 74 So. 998, L.R.A.1917E, 516; State v. B. F. Williams Cypress Co., Id., 131 La. 62, 58 So. 1033; 132 La. 949, 61 So. 988, Ann.Cas. 1914D, 1290; Provident Life & Trust Co. v. Fidelity Ins. Trust & Safe Deposit Co., 203 Pa. 82, 52 A. 34, 36; Antrim Lumber Co. v. Bolinger & Co., 121 La. 306, 46 So. 337; National Park Bank v. Concordia Land & Timber Co., 159 La. 86, 105 So. 234.

Due to the peculiar circumstances which exist in the instant case, which bear a closeness in resemblance to those existing in many of the cited cases, we think that suit having been brought within the year against Dr. Ochsner had the legal effect of interrupting the one-year prescription as against Alton Ochsner Medical Foundation and its insurer, Aetna Casualty &, Surety Co., followed by a suspension of prescription against both during the pendency, of the suit. Continental Supply Co. v. Fisher, 156 La. 101, 100 So. 64. Plaintiff, then, had the right to bring into the suit by way of the supplemental and amended petition either or both even though more than one year had elapsed between the date of the accident and the date on which the supplemental and amended petition was filed. Act No. 195 of 1948, as amended, now LSA-R.S, 22:655; see also Sewell v. Newton, La.App., 152 So. 389.

The operation had been in progress for from ten to twenty minutes and Dr. Ochs-ner had opened the patient’s chest by having gone through the skin and the superficial muscles when the explosion occurred. Dr. Davis at the time was connecting a water monometer (which is an instrument used to measure the amount of pressure on the inside of the patient’s chest) with the anesthetizing system. He states there was a flash of fire and an explosion, but he does not know which came first, the fire or the explosion. However, he stated positively that it was the mixture which was being used to anesthetize the patient that exploded. The fire took place in the vicinity of the anesthetic machine but neither Dr. Ochsner nor Dr. Davis could .state what was its cause. None of the other persons who were present in the operating room, two or three assistants to Dr. Ochsner whose names do not appear in the testimony, were called upon to testify. Drs. Ochsner and Davis asserted there was no electrical equipment or units in the room from which a spark could have come, and Dr. Ochsner “feels sure” the cause of the occurrence was static electricity. He states that he knows of just such an accident which happened at another hospital about ten or twelve years before. Dr. Davis, by indulging in a process of elimination, “guessed” that there had been a static electric spark. Dr. Ochsner told of the concern shared generally about static electricity in operating rooms and mentioned that scientists are constantly , making a study of the subject and that as a result of these studies changes are made in operating room methods almost yearly. Dr. Davis referred to static electricity as one of those things about which “one does not know enough to teach a whole lot.”

Dr. John Adriani, an eminent specialist in the field of anesthesiology, was called as an expert by defendants. The witness is well qualified as an expert in that branch of medicine; he is the author of four books on the subject, has written many articles, and has perfected a filter that is widely used on anesthetic machines. Dr. Adriani testified that the most common cause of explosions, which are themselves uncommon, in anesthetic machines is static electricity. He defines static electricity as electricity that “is not in motion.” Static electricity and lightning are one and the same except, of course, that lightning is on a larger scale. Dr. Adriani stated that static electricity is being generated at all times, such as when one walks, moves his hand, combs his hair, etc. In operating rooms it is necessary that obj ects be continually in motion during surgical procedures and when objects are moved and come into contact with others, electrons will be generated when the objects are pulled apart, and thus the possibility of static electricity is continuously present. He stated that all couplings on the anesthetizing equipment are composed of brass, and he believed that the static discharge most likely occurred when the brass couplings were brought into contact. The tubing connecting the monometer with the anesthetic machine, not being conductive, is a circumstance creating a dangerous a-rea in which static electricity might be generated when the two parts are separated. The removal of the tube could cause an accumulation of static electricity.

Dr. Adriani believes that the prevention of static electricity ’ is not possible, but hé stated that its accumulation might be minimized by making, everything in the operating. room as conductive as possible and .by eliminating such objects that are non-conductive. He said a conductive substance is one that allows easy passage .of electrons. As an example, rubber will not permit the passage of electrons-but a brass chain will. It is not possible to do away with all nonconductive articles such as rubber gloves as these must be used by :the surgeon. He also spoke of the clothing worn by those in the operating room. It is recognized that cotton material will conduct better and generate less static electricity than silk or nylon. Some parts of the anesthetic machine are of rubber and therefore are nonconductive, but at the present time there is being incorporated into the composition of rubber a substance which makes it conductive, but nothing has ever been developed by science that is “foolproof” against static electricity.

According to Dr. Adriani the operating room in which the accident took place had a conductive floor. In 1949 conductive floors in operating rooms were not generally recommended, but a procedure called “intercoupling” was stressed then. Inter-coupling is the equivalent of grounding and connects the patient, surgeon, operating table, anesthesiologist and the anesthetic machine on a grounded level so that no spark can occur between any of the five objects. However, Dr. Adriani stated that no one could say how long a particular floor will remain conductive. Such substance as a coating of wax might render it nonconductive and he knows of floors that have become nonconductive and consequently are ineffectual. All objects in the room to be at the same static potential would have to be in contact with the conductive floor and all persons in the room would have to be wearing conductive shoes or have some similar contact between the feet and the floor.. The witness made the further observation that if the floor was conductive and was clean and free of film it would remain conductive, and if all objects, and all persons in that room were in electrical contact with the conductive floor, it is most unlikely that a static spark could be generated.

The anesthetic machine came in for some discussion. It had been acquired-along with other equipment by the Foundation Hospital some six years before from the U. S. Army which formerly operated the hospital, and Drs. Ochsner and Davis were in accord that the machine was standard as far as machines in use in this locality go. Dr. Adriani agreed that the anesthetic machine rated as standard both in 1949 and at the time of the trial.

Drs. Ochsner and Davis each wore the conventional and recommended operating room garb, which is a cotton cloth “scrub suit” which consists of a shirt, pants, cap, mask, and socks. Their shoes were old leather ones. The use' of old shoes is necessary because- perspiration from the hu-inan body contains salt and the salt residue resulting from perspiration makes the shoes conductive,- salt being a good conductor.

It is well agreed that the anesthetic gas is explosive. Dr. Davis explained that there are other gases which are not explosive, but patients will suffer ill effects from their use. Dr. Davis had full charge of selecting the type of anesthetic and he iikewise had full charge of the anesthetic machine throughout the operation. He had been chosen to' be the anesthesiologist by the anesthesiological staff of the Foundation Hospital. ' Dr. Ochsner had nothing to do with his selection.

■ We now reach the most important question,' and that is, what were the steps taken by the Foundation-Hospital -and-its employee, Dr. Davis, to see to it that the danger -from-' static electricity was minimized. Dr.' Davis stated there are certain precautions which are commonly employed to lessen the likelihood of the development 6f- static1 electricity. • When asked -what precautions, he himself had taken, he made this answer:

“By virtue of the clothing which I was wearing; by virtue of the connection between the operating table, myself and the patient with the floor of the Operating Room, it should be possible for any static which might develop to be grounded. At no time during the minutes preceding the explosion was I out of contact with any part of the apparatus which should not have been grounded. It has always been part of my training and the training of everyone to keep oneself constantly grounded, and in contact with something that is grounded.”

Dr. Davis testified that the anesthetic machine was grounded because it rests on metal wheels having rubber tires, but he did not remember if there was any drag chain on the carriage and as far as he knows there was no drag chain on the operating table. The statement that rubber tires serve as a ground cannot be reconciled with Dr. Adriani’s assertion that- rubber is a nonconductive substance.

Dr. Ochsner, when asked the question as to what he did to prevent the occurrence of a static electric spark, stated that he had done nothing, but subsequently he explained this answer by saying that the operating surgeon is under no duty to do anything in particular except to avoid the wearing of improper clothing.

Earl A. -Oster, Jr., is the maintenance man of Foundation Hospital and has been employed there since 1946. He has a grammar school education and has had special training in’taking care of electrical medical equipment in the U. S. Army Medical Supply in St. Louis, Missouri. He has also studied electricity, radio and electronics. Oster states that the floor in the operating room was conductive as shown by an examination he -made with an instrument’ he called an ohmmeter. He claims that "all equipment, including the operating tables, was conductive. The method used to prevent static electricity in operating rooms is to ground everything by putting ground straps on them, and “we grounded everything.” These ground straps mentioned by Oster were referred to by Dr. Davis as drag chains. Oster said that “a lot of times” Dr. Grant would tell him whenever a ground strap had been broken off or had been taken out of use and that he would “come up and put on a strap right away so that it would be properly grounded.” Oster saw the anesthetic machine after the explosion had occurred but he could not recall whether it had a ground strap.

Carroll S. Crawford, a qualified consulting engineer, appeared as an expert witness on behalf of plaintiff. He.reiterated the other testimony to the effect that if there is a conductive flooring and all objects and persons in the room are in contact with the floor, there could be no static charge because everything would be at the same level or' potential. He further made the significant statement that if everything possible was done from an electrical standpoint and static electricity occurs, such occurrence must necessarily result from human failure.

The learned trial judge in his reasons for judgment stated that it was his opinion that the doctrine of res ipsa loquitur was applicable, and that taking into consideration the testimony of the various witnesses, a case of negligence on the part of Dr. Ochsner had been established.

Counsel in the case are very much in a controversy on the question of whether in a case such as we have under consideration the doctrine of res ipsa loquitur can be applied. The plaintiff’s position is that as a result of that doctrine he is under no obligation whatfever to show any negligence on the part of anyone, and that if the defendants would escape liability they must shoulder the burden of showing that there was no fault on their part from which the accident in the operating room resulted.

Per contra, the defendants vehemently maintain that the doctrine has no application to the case and that there can be no recovery since the plaintiff has not successfully carried the burden placed on him by law of proving negligence. .They also adopt the alternative position that if the doctrine of res ipsa loquitur does apply to the case, then defendants have exculpated themselves from liability by Having shown that there was no negligence, because such accidents in operating rooms cannot be avoided. Their first argument" is that’the doctrine does - not apply in a malpractice suit against a physician or surgeon for the reason that persons engaged in the medical profession should not be required at their peril to explain why their treatment of a patient or an operation on a patient was not successful and failed to produce the desired results.

There was a similar controversy 'in Meyer v. St. Paul-Mercury Indemnity Co. of St. Paul, Minn., La.App., 61 So.2d 901, 905, decided by us, which was a malpractice action brought by a patient whose tóoth became dislodged and found its way into one of her lungs during the process of the Administration of an anesthetic prior to the extraction of her teeth. This court held that the doctrine of res ipsa loquitur was applicable, but found ’ that" the evidence established that both the anesthetist and the oral surgeon had done all that reasonably careful practitioners in their respective professions could have been expected to do and, hence, they were not liable. During the course of our opinion we said:

“We havé- no doubt at all that' the doctrine of res ipsa loquitur has no application where, in the ordinary suit against a physician, a surgeon, or a dentist for malpractice, all that is shown is that the desired result was not accomplished. On the other hand, however, we think that where the complaint is not based on the failure to obtain satisfactory results, but is based on the charge that; during the rendering of the professional services, there occurred some untoward' event, or some omission or act from which there resulted something not ordinarily found to result during such treatment or operation, the physician, or the surgeon, or the dentist may be required to show that such unusual occurrence did not result from negligence on his part.
* * * ’ * * *
“We conclude that the mere fact that the anesthetist, who was administering the anesthetic, and the dentist, who was to remove the teeth, were professional people, both engaged in the performance of professional duties, «does not in itself prevent the application of the doctrine res ipsa loquitur, .and that the doctrine in certain situations such as have been suggested, may-have application.
* * * * *
“Where the doctrine res ipsa lo-quitur is applied, the defendant need •not show just what was the cause of the occurrence, but must show that there was no fault from which the accident resulted. We think the situation is the same as that which is present where a passenger is injured on a common carrier, and in which situation, the Supreme Cpurt had the following to say in Cusimano v. New Orleans Public Service, 170 La. 95, 127 So. 376, 378:
“ ‘Our conclusion is that the doctrine of the Hopkins, Spurlock, and Le-Blanc cases [Hopkins v. New Orleans R. & L. Co., 150 La. 61, 90 So. 512, 19 A.L.R. 1362; Spurlock v. Shreveport Traction Co., 118 La. 1, 42 So. 575; LeBlanc v. Sweet, 107 La. 335, 31 So. 766] is correct in so far as these cases hold that, where a passenger is injured, the burden of proof is on the carrier to show that it was free from any negligence which might have caused the • accident, but that the doctrine of those cases is too broad (if such be their doctrine) in holding that the carrier can discharge such burden of proof only by showing how and why the passenger was injured, even though it does show that the injury occurred through no negligence of its own.’ ”

Meyer v. St. Paul-Mercury Indemnity Co. of St. Paul, Minn., supra, was reviewed by the Supreme Court and on rehearing, 225 La. 618, 634, 73 So.2d 781, 786, the Court said:

“The rule makes it incumbent on the physician, surgeon or dentist who becomes defendant in a malpractice case to show that he is possessed of the required skill and competence indicated and that in applying that skill to the given case he used reasonable care and diligence along with his best judgment. The rule therefore may be said to bear some relation to the doctrine of res ipsa loquitur which places the burden on a defendant having control of the dangerous instrumentality which caused an accident to show his freedom from negligence in a case where such accident would not ordinarily have occurred had proper care and use been made of the instrumentality. As stated by the Court of Appeal in- its opinion in this case, however, that does not mean that the defendant must show just what was the cause of the occurrence.
“In this case the rule may well apply to the anesthetist, Dr. Evelyn Katz as she was the one handling the dangerous instrumentality which came in contact with the plaintiff’s upper teeth and allegedly caused one to become dislodged. * * *”

Dr. Ochsner is charged with negligence in the selection of the type of anesthetic which was to be administered to plaintiff, and it is alleged that the instrumentality by which the anesthetic was administered was under his control, or under the- control of his assistants, employees, and nurses. He is also alleged to have heen at fault for having failed to take any precautions and preventatives against the occurrence of the explosion.

There was no negligence or lack of skill or competence on the part of Dr. Alton Ochsner. We do not think that the law placed the burden on him of exculpating himself from negligence or explaining that there was no negligence on the part of the Foundation Hospital or ©n the part of the persons who were in the operating room at the time of the accident. The record shows that Dr. Ochsnér possessed the required skill and competence and that in applying that skill in the operation he used reasonable care and diligence. Dr. Ochsner was graduated from Washington University in St. Louis, Missouri, in the year 1920, and since then has made his specialty the field of surgery. He performs as many as twenty to twenty-five operations each week. There is no substance in those averments that he selected the wrong type of anesthetic or that the instru-mentalities used to administer it were under his control or that he had control or supervision of the anesthesiologist or the equipment. Nor can it be said that he was guilty of selecting an incompetent anesthesiologist, for the record shows that he had nothing to do with the choice of Dr. Davis, but rather Dr. Davis was selected by the anesthesiological staff, of Foundation Hospital. It is true Dr. Ochsner at one point in his testimony made the statement that he had done nothing to prevent the explosion, but we are satisfied with his subsequent explanation that the operating surgeon is not required to do anything except to make certain that he is garbed in the proper and conventional operating room clothing. The testimony is clear to the effect that Dr. Davis was exclusively in the employ of Foundation Hospital, which paid his salary, and that the hospital is owned by the corporation called Alton Ochsner Medical Foundation.

In speaking of the rule, that the law only exacts of physicians and surgeons that degree of skill and care which is usually possessed and exercised by practitioners of their profession in the same locality or community and makes it their duty to use reasonable care and diligence along with their best judgment, as being applicable to an operating surgeon, the Supreme Court on the rehearing in Meyer v. St. Paul-Mercury Indemnity Company, supra, also said:

“* * * But Dr. Leopold Levy,, the operating oral surgeon, had nothing to do with the instrument; it never was under his' control, and we fail to see why he should be called on to exculpate himself from negligence in the use of it. As to him it would seem that liability would have' to be determined on some other ground and that in order to free himself he would have to show the skill required under the rule and that in preparing for the extraction of plaintiff’s tééth he exercised reasonable care and diligence and used his best judgment.”

. .The instant case differs from the cited case in which the Supreme Court held that “the rule, .therefore may b.e said to bear some relation to the doctrine of res ipsa loquitur” as to Drs. Levy and Katz who were the defendants.

We believe that the doctrine of res ipsa loquitur applies without limitations in the instant case as to Foundation Hospital, whose insurer, the Aetna Casualty & Surety Company, was made defendant in the supplemental and amended petition and is sought to be held liable. With respect to Foundation Hospital we do not believe that the explosion of the anesthetic machine is to be considered from any different point of view than other explosions which have been the subject of litigation in which the doctrine of res ipsa loquitur has- been held to apply. This certainly is one of those cases where the plaintiff cannot be expected to have any information as to the-cause or causes of the explosion whereas the'Foundation Hospital, .on the contrary, is assumed by the law to be fully informed! on that subject matter, and as it was arc accident of that type which ordinarily does not occur when due care has been exercised, the rule of evidence that the accident speaks for itself, res ipsa loquitur, raises a presumption of negligence from the fact of the accident itself, and if a defendant is to free himself from liability he must show that there was no negligence at all on his part. Lykiardopoulo v. New Orleans & C. R., Light & Power Co., 127 La. 309, 53 So. 575.

After' reading and rereading and carefully sifting all of the evidence adduced in the case before us, there is .only one logical and reasonable conclusion that can be arrived at and -that is that the proximate cause of the explosion which resulted in plaintiff’s injuries was occasioned by some fault on the part of the agents or employees of Foundation Hospital in not taking thos.e precautions which were necessary against the danger attending the occurrence of a static electric charge. The surety company has not proven that the agents and servants of Foundation Hospital were not guilty ’ of negligence and consequently it has not exculpated itself from liability.

We are satisfied that there was nothing wrong either with the gas or the anesthetic machine; the machine was considered standard in 1949 and was still rated standard at the time of the trial. We are satisfied, too, that the Foundation Hospital.employed a competent physician as anesthesiologist in the person of Dr. David A. Davis, as the evidence reflects his experience and competence in his , particular medical specialty.

But we are not satisfied that Foundation Hospital has shown that it had done everything that is recognized as- necessary, to minimize thé danger from the generation Of static electricity. The defense witnesses testified in a sort-of general Way that the hospital had .taken certain precautions, but> the1 evidence as a whole leads us to the belief that all of the precautions required by-the rules-of safety as applied to operating rooms had not been taken.

As before stated, the testimony of all of fhe expert witnesses makes it very plain that' in order to promote safety in an. operating room and to guard against the oc-. currence and effect of static electricity, it, is required that as many, conductive objects as possible be used and'that such non-conductive articles as can be, done without should be eliminated. There is unanimity in the opinions of the witnesses that the grounding of objects wherever possible is necessary to promote the highest.degree of safety; but notwithstanding this, thé Foum dation Hospital has failed :to show that the operating table itself and the carriage on which the anesthetic machine rested.were properly grounded; Oster went to the operating room after the accident, but he did not notice whether there-was a ground strap, or as Dr. Davis called it, a 'drag chain, on the anesthetic machine’s carriage! Oster made no mention of a strap on the operating table, Dr. ■ Davis does not know whether the' anesthetic - machine dwas grounded and as far as he could see-there was no drag chain on the operating table..

Reverting back to the testimony of Dr. Adriani, there is a .likely possibility - that a static electric spark, which .everyone agreed must have been tjie cause of .the - accident, was generated by .the.,, couplings of the anesthetic machine and -the spark could not be drained off to the flo.or on account of the want of a ground strap on the carriage of .the. machine, .which is equipped with metal wheels with rubber tires; which we understand . are nonco.nductive. - At least the Foundation Hospital has not made it certain that the lack of. the ground strap was not the cause of the .accident. Our. appreciation of the evidence, is that no accident. could have happened if there had been a proper grounding-.-

Our conclusion is.that the defense' has fallen--short of carrying the. burden imposed on it by the doctrine of -res ipsa loquitur, that .is, proving its freedom from negligence in the matter of the accident and plaintiff’s consequent injuries.. Linder the law we must presume that the accident, happened as a result of negligence, and as there is liability in Foundation Hospital to plaintiff, the defendant insurer must respond in damages.

. After the accident plaintiff was taken to his room and did not regain consciousness until the following morning. In addition to suffering severe pains in .the head, he had excruciating pains in the nose and his throat was “afire and burning” and he could not talk. There were several doctors and hospital attendants present and apparently plaintiff was given sedation, for when he awoke the next time, Dr. Ochsner was present and plaintiff ■ wrote on paper the words “ice” and “fire” and he was asked where the fire was and plaintiff pointed to his throat. Although the record does not show it, it is reasonable to suppose that as a. result of the gas becoming aflame, plaintiff inhaled some of the fire. Plaintiff also had burns of the tongue and mucous membrane of the mouth, throat and nose; there was a probable fracture at the anterior end of the base of the skull, which his physician testified was consistent with the presence of cerebrospinal rhinorrhea; and ecchymosis of both eyes, and intra-cranial aerocele in subdural and subarach-noid spaces. We have mentioned that a tracheotomy was performed immediately after the explosion, and as a result there remains a scar on the throat approximately 2Yz inches long which cannot be concealed unless plaintiff wears a collar. The treatment of the cerebrospinal rhinorrhea required eight spinal punctures or taps; the spinal punctures produced headaches and the cerebrospinal'rhinorrhea caused a -temporary loss of smell. Subsequently, -plaintiff suffered from ulcers of the stomach and was treated for that condition .after the accident occurred, and the testimony of plaintiff’s physician is that the ulcerous condition could "have been brought about from the effects of the accident. At the time of the trial plaintiff had made considerable recovery and was continuing to show betterment of. condition, but nevertheless he says he was unable to work in his grocery store, was still under the care of a physician, and had some difficulty in his speech.

It was not until two weeks after the accident before the pneumonectomy was performed on plaintiff.

Plaintiff at the time of the accident was about 55 years of age, and it is true that he was afflicted with a serious disease, which was diagnosed as cancer of the left lung, but plaintiff’s said condition does not mitigate against his right to recover damages. A tort-feasor owes as much duty to avoid injuring the sick as the well.

No one could doubt that plaintiff must have suffered excruciating pains, both physical and mental, and it is not difficult to understand plaintiff’s mental state when he was taken into the operating room the second time after having gone through a harrowing experience the first time he had. been taken into that room.

The evidence also shows that, plaintiff had some additional expenses at the hospital and was called upon to make some incidental expenditures, all as a result of the accident. He also testified that he had to employ a clerk to operate his grocery store and that in addition to having the salary of the clerk to pay, he also suffered a loss in net business earnings.

We think that considering all of the circumstances shown in the case that the judgment of $30,000 given plaintiff by the trial judge is excessive and our thought is that it should be reduced to a proper figure, say $15,000. There is no rale or standard by which plaintiff’s injuries can be measured, but we think said amount will do substantial justice. .

Therefore, for the reasons assigned, insofar as the judgment casts Dr. Alton J.’ Ochsner b.e and the same is hereby avoided and reversed and the judgment is amended so as to run in favor of Dr. Alton Ochsner dismissing plaintiff’s- suit' at his cost; the judgment is further amended so as to cast Aetna Casualty & Surety Company for the sum of $15,000;' as thus amended amdi in all other respects, the judgment is affirmed.

All other costs are to be borne by Aetna Casualty & Surety Company.

Reversed in part; amended and affirmed in part.

REGAN, J., concurs.


source: Caselaw Access Project

author: ELLIS, Judge. TATE, Judge.

license: Public Domain

text:
    Elie KLINE v. C. W. DAWSON d/b/a C. W. Dawson Equipment Co.
    No. 4103.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 22, 1955.
    Rehearing Denied Dec. 30, 1955.
    Writ of Certiorari Granted Feb. 23, 1956.
    White &’ May, Baton Rouge, for appellant.
    Durrett & Hardin, Baton Rouge, for ap-pellee.
   ELLIS, Judge.

■ Plaintiff has filed this, suit for. workmen’s compensation benefits as a result of injuries received on April 19th .while employed as a caterpillar tractor operator by his brother Joseph Kline,'who was engaged in the logging business.

Plaintiff is seeking to hold liable the C. W. Dawson Lumber. Company and the individual members of this partnership as the principal contractor of his brother, Joseph Kline, together with the insurer of this partnership. There were quite a number of pleadings filed in the case due to plaintiff’s inability to name and cite the proper partners in his first petition. The defendant has filed exceptions based upon a contention that the partnership has never jet been sued and, therefore, the individual members cannot be held liable to judgment.

Because of the fact that we believe the judgment of the lower court should he amended so as to render same on the merits instead of on the exception and as thus amended, affirmed, it is unnecessary to go into the multiplicity of pleadings •or exceptions filed thereto.

It was plaintiff’s contention that Joseph Kline was employed by the C. W. Dawson Dumber Company to haul timber which it had purchased from one Negocia, and that when the plaintiff was injured during the course and scope of his employment while working for his brother, Joseph Kline, the lumber company became liable to him as “principal” under LSA — R.S. 23:1061. The defendant denied' having employed Joseph Kline and denied that the timber which he was hauling had been bought by it or was owned by it and, on the contrary, alleged that Joseph Kline had been employed by Negocia to haul logs which the latter owned and cut from a tract of timber he had purchased, and that the Lumber Company was buying the logs delivered at their mill at a price of $30 per thousand for hardwood and $40 per thousand for cypress, with the understanding that they were to withhold $12 stumpage for hardwood and $13 stumpage for the cypress logs, plus $5 per thousand for cutting the logs for Negocia, the purchaser of the tract of timber and the owner of the logs, and to pay the difference to Joseph Kline who had been employed by Negocia to haul the logs .to the Dawson Lumber Company mill. .

The main question in the case is one- of fact as to whether there was any employer-employee relationship between plaintiff and Dawson Lumber Company, or- whether, as contended by the defendants, there was only a relationship of vendor or vendee or buyer and seller.

At the end of the trial defendants re-urged and refiled their exception of no right of action and the learned Judge of the lower court, being of the opinion that the case was governed by Smith v. Crossett Lumber Co., La.App., 72 So.2d 895, and that there was a relationship of buyer and seller only in the present case, sustained the exceptions of no right of action and dismissed plaintiff’s suit, and it is from this judgment that plaintiff has appealed.

It is shown that a party by the name of Negocia purchased a tract of timber and that he sold some of it to the Dawson Lumber Company and some to one Brunt and one Joe Major. Negocia testified that prior to his purchase of the tract of timber from one Guerin, he was interested- in obtaining a purchaser and that he saw Jack or John Kline, who was engaged in the log hauling business and who was a brother of Joseph Kline, plaintiff’s -immediate employer. It appears that Kline was unable to buy the timber or logs from Negocia but got in touch with the Dawson Lumber Company who told John Kline that they would purchase the logs delivered at their mill for $30 per thousand for hardwbod and $40 per thousand for Cypress. John Kline' then ’told Negocia that they would'pay him $12 a thousand plus $5 per thousand for cutting the logs. John Kline testified that Negocia then asked him who he could get to haul the logs and Kline told him that he couldn’t do it as he was ‘engaged at that time, and John Kline testified he saw his brother, Joseph Kline, and told him that Negocia had this timber for which he was to receive from the Dawson Lumber Company the agreed price and which would leave him $12 and $13 a thousand for the hauling. In other words, under Kline’s testimony there was nothing more nor less than a relationship of buyer and seller. Negocia first stated that he had never hired Joseph Kline to haul- the timber, however,, he-admitted later in his .testimony that Dawson Lumber-- Company did not buy the., tract of- standing timber at all and had only agreed to buy the logs for so much stump-age plus the cutting cost.

Joseph Kline’s testimony is not too impressive and evidently did not impress the trial judge as he depended principally upon ,the testimony of John Kline in arriving at his decision. Robert C. Dawson, Sr., member of the Dawson Lumber Company partnership, testified that John Kline had called him with regard to the Negocia timber and that he told him he would be interested in buying the logs delivered to the mill at a given price of $30 for the hardwood and $40 for the cypress but that they would hold out $12 stumpage and $5 for cutting,'or $17, for Mr. Negocia when they paid Joseph Kline for the logs. The difference, of course, would belong to Kline whom the testimony shows was employed by Negocia and not the Dawson Lumber Company. John Kline’s testimony w.hen considered in the light of the other testimony in the record is convincing that Negocia knew he was to pay for the hauling or to hire the logs hauled to Dawson’s mill. For example, John Kline testified that Negocia asked “me to haul it but I couldn’t.” He-further testified that he and Negocia had -a discussion about who was to haul the logs and the latter asked him if he would find somebody to haul them, and John told him that he would see his •brother, Joseph Kline, which he .did. Joseph Kline practically admits the truthfulness of John’s testimony that the latter saw him and told'him of the Negocia deal and that he wanted somebody to haul the logs and told him the price,. and Joseph Kline did' see -Negocia."

In addition to the facts above discussed the record shows that premiums for compensation insurance was deducted from the check given Joseph Kline for delivering the l'ogs. Plaintiff places great stress upon this fact, ho-wever, being- of the opinion that the facts heretofore discussed reveal a buyer-seller rather than an employet-employee relationship and no Compensation, therefore, being due, it is well' settled that such an erroneous deduction' of k premium for compensation insurance has no binding effect and should be- returned and such a tender was made in the present case. See Franz v. Sun Indemnity Co. of New York, La.App., 7 So.2d 636.

We therefore find the judgment of the District Court to be manifestly correct except that counsel for defendant in answering the appeal asked that the judgment be amended so as to render judgment on the merits rather than on the exception of no right of action, and in the alternative that it be affirmed as rendered. The basis of the defendant’s answer and request for a decision on the merits is contained in the case of Bartholomew v. Impastato, La.App., 12 So.2d 700, which held in effect that motions for judgment, directed verdicts and demurrers to evidence being a procedural pleading of the common law and unknown in • our system may not be invoked in Louisiana by disguising them with the label exception of no right or cause of action, and if the defendant doubted the sufficiency of the evidence presented by the plaintiff to sustain his demand and does not 'see fit to contradict the evidence which has been submitted, he unquestionably.-has the right to have the court determine- the sufficiency of plaintiff's 'evidence by resting his case and in such instances a judgment should be rendered on the merits in favor of one side or the other. . We agree with .this principle of law.

It is therefore ordered that the plaintiff’s suit be dismissed at. his cost and the judgment of the District Court as amended be affirmed.

TATE, Judge.

. I respectfully dissent. In my opinion, as a matter of law, the “go between” who hired plaintiff’s employer to haul logs to the Dawson Lumber Company was legally an agent thereof. .

In my opinion, the majority has correctly found that there was no'employer-employee relationship existing between the C. W. Dawson Lumber Company, and plaintiff’s immediate employer (his brother, Joseph Kline, hereinafter called “Joseph”). But the majority has overlooked the liability of the C. W. Dawson Lumber Company, as principal, to injured employees of independent contractors executing the principal’s business under LSA-R.S. 23:1061. ■

Joseph, plaintiff’s employer, was certainly not a seller of the timber to the Dawson Lumber Company. He was just as certainly an independent contractor engaged to haul the logs to the Dawson Lumber Company mill at New Roads at a base price of $13 per thousand feet, furnishing his own truck, tractor, equipment and labor.

If the majority now contends .that Joseph was hired to do this hauling by Nego-cia (or Nicosia; the owner of the timber), the record indicates to the contrary that Joseph was paid for the' háuling by the Dawson Lumber Company. The District Court found the testimony of Jack Kline (a third brother, hereinafter denoted as “Jack”) more credible than that of Joseph as to how the hauling contract was con-fected. Accepting Jack’s testimony as correct over Joseph’s, t-he strongest inference to be drawn from Jack’s testimony, is that he told his. brother to see Negocia — not Dawson, as Joseph testified — to arrange about the hauling. (Both Negocia and Joseph deny this.)

The record indicates, however, without contradiction that Negocia had offered to sell (or had accepted the lumber company’s continuing counter offer to buy) his timber, cut into logs, at a gross base price of $17 per thousand feet, and Negocia did not pay for the hauling, zvhich was paid for by the Dawson Lumber Company. The Dawson Lumber Company was clearly the party employing Joseph to haul the logs as independent contractor. It is undisputed that Joseph, plaintiff’s employer, was initially told by Jack Kline to go make arrangements with either Negocia or Dawson to do the hauling. Even according to Jack Kline, Negocia was not going to pay for these services since Negocia had simply offered to sell (or accepted a counter offer to buy) at $17 per thousand feet, without reference to payment for the hauling. Negocia could not be the employer, for he was not paying for these services:

Negocia repeatedly denied any part in the confection of the hauling contract (Tr— 80, Tr-84, Tr-87), and he is somewhat corroborated by the undisputed testimony by both Jack Kline and Negocia that insofar as Negocia was concerned, he was only interested in the sale of the logs at a gross price of $17 per thousand feet. It was immaterial either to Negocia or to Dawson .who did the hauling, so long as the logs were hauled; - but it was Dawson, not Negocia, who paid for the hauling.

It should be added that the record, shows Jack. Kline to be a trusted and longtime employee or contractor of the Dawson Lumber Company, still so employed and depending for his livelihood at the time of the trial; which perhaps is one reason his testimony was educed most reluctantly ■insofar as favorable to his brother.

I think the testimony clearly indicates that Jack Kline, although perhaps originally the agent of Negocia to sell the logs at $17 per thousand feet cut, became as a matter of law the agent of Dawson for purposes of accepting this offer (or, perhaps, rather of making a continuing counter offer to purchase same at $17 -per thousand) and for purposes of hiring someone (i. e., Joseph) to do the hauling at a base price of $13 per thousand. For the record indicates without contradiction • that Jack informed Dawson of Negocia’s willingness to sell the logs at $17 per thousand feet cut, that Dawson made a counter offer to purchase same at $30 per thousa'nd' delivered 'at his mill, thereupon constituting Jack Kline as Dawson’s agent for purposes of making this counter offer; that Jack Kline accepted Negocia’s offered price ($17 per thousand feet) on behalf of Dawson Lumber Company, and further independently made the offer at the base price of $13 per thousand feet to Joseph (plaintiff’s employee) to’ do the hauling to Dawson’s mill, still on behalf of Dawson and as Dawson’s agent in' communicating the counter offer; that these arrangements were ratified on behalf of Dawson Lumber Company by R. C. “Bobby” Dawson, Jr.; that subsequently, stumpage for Negocia was withheld by Dawson, and Joseph was paid by Dawson for hauling. In fact, Dawson deducted premiums for compensation insurance coverage from Joseph’s pay, although after the accident these premiums were refunded in an excess credit allowed in a settlement for some logs hauled.

Jack Kline could not possibly be Nego-cia’s ■ agent for . purposes of offering Joseph the contract to haul the logs, because both Negocia and Jack testified that the offer and counter offer between Negocia and Dawson communicated was that of $17 per thousand feet. Negocia never accepted, and so far as the record indicates was never communicated, an offer to sell at a gross price of $30 per thousand, from which Negocia was to pay for the hauling. In my opinion, the evidence indicates that in this transaction, as in general economic activity, Jack Kline was an agent of the Dawson Lumber Company to help them secure logs at their sawmill, and as Dawson’s agent, he arranged on behalf of Dawson both to purchase Negocia’s timber and, separately with Joseph,' to haul it to the Dawson sawmill.

The situation here is easily distinguished from Smith v. Crossett Lumber Co., La.App., 72 So.2d 895, relied upon by the District Court and the majority herein. A buyer-seller relationship was held to exist in the- Smith case where the plaintiff’s employer “secured his own timber, hired his own employees, produced pulpwood, hauled and transported it to the Missouri Pacific Railroad” where it was loaded and sold, 72 So.2d 896. (Italics mine.)

This type of recovery by an employee of an independent contractor against the principal who employed the contractor has been definitely sustained since Seabury v. Arkansas Natural Gas Corporation, 171 La. 199, 130 So. 1. For a reasonably recent case allowing recovery of such an. employee, where the contractor was paid to haul gravel at so much per cubic yard (just as here the contractor was employed to haul logs at so much per thousand feet), see Whitman v. Central Sur. & Ins. Corp., La.App., 41 So.2d 116. See also Malone,. Louisiana Workmen’s Compensation, Chapter 6, Section 121 and Section 122, pages 140 to 144 respectively; see also Section 123’.

For the above and foregoing reasons,, I respectfully dissent from the majority opinion dismissing the suit of this seriously crippled employee.

      . Dawson, appearing on the stand subsequent to the testimony by Joseph that be went to see Dawson to make arrange-. ments to haul Negocia’s logs, did not testify to contradict or to confirm this testimony of the ratification of the employment of1 Joseph by Jack, although he did reply “No” to- a question, “Did you yourself go to Joseph Kline and tell him you wanted” him to haul the logs? (Tr-20.) This is far from a denial that Joseph went 'to see him to make arrangements. '


author: TATE,' Judge. ■

text:
    Mrs. Cecile T. PARKER, d/b/a Louisiana State Barber College, Plaintiff-Appellant, v. BOARD OF BARBER EXAMINERS, Defendant-Appellee.
    No. 4092.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 22, 1955.
    Rehearing Denied Dec. 30, 1955.

      Oliver P. Schulingkamp, New Orleans, for appellant.
    ’ Emile M. Weber, Baton Rouge, for ap-pellee.
   TATE,' Judge. ■

These proceedings concern the power of a State administrative agency to revoke approval of a barber college without an administrative hearing, which agency approval is necessary to the school’s existence.

Petitioner, Mrs. Cecile Parker/ doing business as the Louisiana State Barber College, filed this rule against the Board of Barber Examiners, praying- for stay of an order disapproving her school as an authorized barber college, and for judgment in due course annulling said order and reinstating Louisiana State Barber College as an authorized barber school. ■ Petitioner appeals from judgment of District Court denying the relief sought after trial on the merits.

Upon her husband’s death in 1950, petitioner (herself an authorized barber and teacher) continued to run the Louisiana State Barber College, which had received consistent approval from the Board of Barber Examiners' during its previous almost twenty years of existence. The record indicates that during the latter part of 1953, the Board felt that petitioner was not maintaining the curricula or standards required by statute and its rules and regulations. In the course of a Board meeting held at the college, on October 6, 1953, primarily to examine applicants for barber training, these matters were called to petitioner’s attention, and certain improvements were requested. In January 1954, the Board sent petitioner a letter stating that by action taken at the January Board meeting'“the school is disapproved until such time as you comply with the necessary curriculum governing barber schools”. However, certain adjustments were immediately made, and the school was reapproved and continued in operation, the Board continuing to approve applications of students to enter the school and to maintain regular inspection of the premises and the attendance.

The record is devoid of any further notice to petitioner of deficiency, formal or otherwise, until petitioner received a registered letter dated February. 16,. 1955, or more than a year later. This letter stated: “jt becomes necessary at this- time to disapprove the school” for certain specified violations.

Simultaneously, the Board sent a registered letter to each of the school’s 10-15 students stating in part: “You are hereby notified that the Louisiana State Barber College is being disapproved this date. Any student who attends the school after this date will do so at his own risk, and will be liable to having charges preferred for working without a license”; which, as counsel for petitioner observed, “resulted in these students fleeing the plaintiff’s school as they would the plague”.

To simplify the legal issues, it should be observed that as to the Board meeting- of October,. 1953 (the only one at which petitioner was present when the matters giving rise to this litigation were discussed), the Board’s Secretary himself testified it was only a “general discussion, * '* * ■ on- a friendly basis”, an “informal situation”. .This meeting, or ‘ others of which petitioner had no advance notice and at which, she was not present, could not be a “hearing” in the legal or constitutional sense, lacking notice and' reasonable opportunity to be heard concerning specified issues, Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288; 73 C.J.S., Public Administrative Bodies and Procedure, § 132 — Elements and Essentials of Hearing in General, p. 456.

Petitioner alleges that she has been deprived without a hearing of a valuable property right in this going barber college which had been in existence 23 years, and urges: (1) the order of the Board disapproving her school is' void because she did not receive the notice and hearing allegedly required by the statute regulating the subject; or (2) if (as the Board contends) the statute does not require such hearing, then she has been deprived of her property .without due ‘process of law in contravention of Art. 1, Section 2, La. Constitution-LSA, and U. S. Constitution, Fourteenth Amendment, since “due process” requires a hearing before she is deprived of her property.,

Barbering is a business affecting the ¡public health, safety, and welfare which the Legislature may constitutionally regulate under its police power, Board of Barber Examiners of Louisiana v. Parker, 190 La. 214, 182 So. 485. The Legislature has comprehensively exercised this constitutional power in several enactments consolidated and incorporated as Chapter 5, “Barbers”, of Title 37, Sections 341 et seq., LSA-Revised Statutes of 1950. Administration of these regulations is entrusted to the Board of Barber Examiners.

It is illegal to practice barbering, or serve as apprentice to a barber, without a “certificate of registration” issued by the Board pursuant to certain statutory requirements, LSA-R.S. 37:349. As a necessary preliminary to receive such cer-tifiates, inter alia, an applicant must have “graduated from a school of barbering approved by the board”, LSA-R.S. 37:355.

The statute further provides : “ISTo school of barbering shall be approved by the board” unless certain specified admission, curriculum, and instruction requirements are met, LSA-R.S. 37:357.

Although in the remaining portion of Part I. “Licensing and Regulation”, Sections 341-376' inclusive, there are provisions concerning suspension, revocation, or refusal to issue or to renew “certificate of registration” as barber or apprentice, LSA-R.S. 37:365, but only after “notice in writing” and “public hearing”, LSA-R.S. 37:366, there is no further reference in the statute to approval or revocation of approval of barber schools, although several other sections manifest that barber schools are subject to regulation by the Board.

In urging that the regulatory statute requires a hearing with reasonable notice before issuance of an order, and that the order herein is invalid since it failed to comply with these statutory prerequisites, petitioner chiefly relies on LSA-R.S. 37 414 “Investigations”, which provides:

' “The practice and procedure of the board with respect to any investigation by ‘ the board authorized by this Part shall be in accordance with rules and regulations promulgated by the board, which shall provide for a reasonable notice to all persons affected by orders to be made by the board after the investigation, opportunity to be heard either in person or by counsel, and opportunity to introduce testimony in their behalf at a public hearing held for that purpose.” (Italics ours).

However, the Board correctly urges that these statutory requirements apply only to investigations authorized under “this Part”, that is, Part II, “Unfair Competition and Trade Practices” LSA-R.S'.. 37 :- 411 through 425. This section does not apply to Part I, “Licensing and Regulation”, in which is contained provisions relative to approval of barber colleges.

Thus the statutory regulations do not provide any mandatory requirement for notice and hearing before approving or dis-approving barber colleges. And, it may be added, they do not contain any specific provision for judicial review of actions of the Board in- regard to such matters; for the only section of the entire Chapter pertaining to judicial review is LSA-R.S. 37:421, contained also in Part II, and specifically limited to “Any applicant or licensee * * * aggrieved by any action of the board taken under any of the provisions of this Part * * *.” (i. e., Part II.)

On behalf of the Board, it is argued that the Board has exclusive authority to approve or disapprove schools of barbering, and that “this is a power solely within the discretion of the Board and not even subject to judicial review”. This argument has the demerit of overlooking Article 1, Section 6, La.Const., which provides: “All courts shall be open, and every person for injury done him his rights, lands, goods, person or reputation shall have adequate remedy by due process of law”. Such a construction would render the statutory provision unconstitutional; Meyer v. Board of Trustees, 199 La. 633, 6 So.2d 713.

On the other hand, petitioner urges that in order to satisfy the constitutional requirement of “due process”, it is sacramental that one affected be given a formal notice of specific charges and a formal hearing with opportunity to present favorable testimony and to question unfavorable testimony, before an order is issued by. an administrative agency.

It is true that due process necessitates a hearing before final action, that all shall have their “day in court”. “The ‘due process of law’ provision in the Constitution is designed to exclude oppression and arbitrary power from every branch of the government. * * * It means that no person shall be deprived of life, liberty, property, or of any right granted him by statute, unless the matter involved shall first have been adjudicated against him upon trial conducted according to established rules regulating judicial proceedings. It forbids condemnation without a hearing”, Dupuy v. Tedora, 204 La. 560, 15 So.2d 886, at page 890. “ ‘Due process of law in its procedural aspect requires a notice and opportunity to be heard in an orderly proceeding adapted to the nature of the case, in accord with established rules’ ”, Vaughan v. Housing Authority of New Orleans, La.App., 80 So.2d 561, 565.

But we do not feel that the “due process” requirement is the' constitutional strait-jacket claimed by petitioner; that an administrative agency may never issue an order affecting the private right of an individual subject to its regulation without formal notice and hearing before such order. The due process requirement may -also be satisfied if a full hearing in the ■ courts is available after the administrative order, with judicial power to stay irreparable injury to him affected.

The Legislature “may prescribe a procedure in which the initial order is upon legislative or wholly administrative consideration [without hearing] and the full hearing is afforded in a [subsequent] court action. If the court proceeding includes the full right to present evidence, to meet issues, and to explore the evidence, and conclusions of the legislative or administrative agent, due process of law exists. * * * However, if-the state procedure consists of administrative consideration without hearing, and court consideration [merely by way of review of the determination below without new evidence or ex-ploratiori by cross-examination, á federal court will set aside the final order as without' due process”, Jordan v. American Eagle Fire Ins. Co., 83 U.S.App.D.C. 192, 169 F.2d 281, at page 290. See 42 Am. Jur.- 474 — 5, Verbo “Public Administrative Law”, Section 135, “Necessity for Notice and Hearing”; 73 C.J.S., Public Administrative Bodies and Procedure, § 130-Notice and Hearing, pp. 452, 454-455.

We further agree with the Board that the Legislature constitutionally delegated to it the power to determine whether or not barber colleges possessed, the specific requirements prescribed by the Legislature as a prerequisite for approval (LSA-R.S. 37:357; see footnote 1 above). “ ‘The authority of the Legislature to delegate to the administrative boards and agencies of the state the power and authority of ascertaining and determining the facts upon which the laws are to be applied and enforced cannot be' .seriously disputed’ ”, State ex rel. Porterie v. Housing Authority of New Orleans, 190 La. 710, 182 So. 725, at page 739; cited and approved in Hunter Co. Inc., v. McHugh, 202 La. 97, 11 So.2d 495. See also National Bank of Commerce in New Orleans v. Board of Supervisors, 206 La. 913, 20 So.2d 264.

Nor is the Act unconstitutional for failure to provide in the Act itself for judicial review of Board actions of approval or disapproval of barber schools;, for when the statute is silent in this regard,, in accord with the presumption of constitutionality of legislative enactments, it is. presumed that the Legislature did not seek to deprive the aggrieved person of his ordinary right to trial de novo and review of adverse action in the courts, State ex rel. Rathe v. Jefferson Parish School Board,. 206 La. 317, 19 So.2d 153 at 166, Meyer v. Board of Trustees, 199 La. 633, 6 So.2d 713. As stated in the Meyer case, concerning an administrative, agency adjudicating individual rights through a statute which did not specifically provide for judicial review, “The jurisprudence is clear that where a Board has original power to determine matters submitted to it under a statute that, after it has acted, the legal correctness of its action may he attacked in court by a party claiming an adverse legal right (cases cited)”, 6 So.2d 717.

But although we hold the statute in itself not unconstitutional, we do feel that by the application of'it in the present instance petitioner has been deprived of property without due process of law.

Implicit in all the cases above cited, and explicitly Stated in some of them, is this principle:

“The requirements of due process have. been held satisfied where resort may be had to the courts to have the action of an administrative officer or body reviewed, except zvhere no stay of the effect of the order appealed is provided, and zuhere, meanwhile, irreparable injury .will result,” 73 C.J.S., Public Administrative Bodies and Procedure, § 60 — -Due Process of Law in General, p. 386. (Italics ours.)

Or again stated:

“A statute vesting administrative officers with summary powers need not-necessarily provide for notice and hearing prior to the .exercise of such powers, but if it does not provide for notice and hearing 'and leaves no remedy whatever against unwarranted action in ■ the exercise of suck powers, it is unconstitutional as a denial of due process of law,” 42 Am.’Jur. 362, Verbo “Public Administrative Law”,- Section 57 “Summary Powers”. (Italics ours.)

See: Porter v. Investors’ Syndicate, 286 U.S. 461, 52 S.Ct. 617, 76 L.Ed. 1226; Montana Power Co. v. Public Service Commission of Montana, D.C., 12 F.Supp. 946.

If the effects of the Board’s order of .disapproval can be stayed. until the judicial hearing and determination, then a person who feels aggrieved by a Board’s summary order cannot complain of a de-prival of property without due process of law. But in this instance, although petitioner under an allegation of irreparable injury had the right to seek an immediate restraining -order and other judicial in-junctive ■ relief, nevertheless the courts could not protect petitioner from irreparable injury: For upon simple order of the Board without hearing, the petitioner’s school was effectively closed; the students quit, since (restraining order or npt) they could, attend petitioner’s barber,college only at the risk .of receiving no credit, for time and money spent if judicial review upheld the Board action. The' students could not be expected,to be-so interested in petitioner’s welfare as to gamble their time and money on her behalf (although amazingly enough, the record reflects that one student still attends the school).

It is entirely possible that the Board has the power under its rule-making powers to qualify the effect of ah 'order of disapproval to permit students to receive credit for 'attending- a previously approved barber college until judicial hearing and determination (however this results). In any event, the record herein does not reflect such need for urgent action by way of public emergency to justify the summary order 'effectively -putting plaintiff out of 'business, without - opportunity ■ for notice 'and hearing and judicial review to determine whether the discretion of the Board was abused; and for this reason we hold that the order of the Board herein deprives petitioner of property without due process of- law, and should be vacated and set aside.

It should be added that the record herein reflects that the Board was patient and considerate and apparently sincere in its attempt to protect the interests both of the public and of the private parties concerned, without statutory guidance and in the legal vacuum created by the hiatus of the-law in this regard. But the same power which may have been used justly in this instance, could be arbitrarily and unjustly used by a less well-intentioned Board t'o put a citizen out of business before the arbitrary action could be taken to court. Our State and national constitutions have fixed certain mandatory procedural safeguards for the liberty and property of our citizens entitled “due process of law”, which our courts are duty-bound to enforce. It is the same principle by which we try un-1 doubted murderers rather than hang them outright; not because the murderers do not deserve immediate hanging, but because otherwise innocent men might be hung just as quickly.

For the above and foregoing reasons, the judgment of the District Court herein is reversed. It is ordered, adjudged, and decreed that there be judgment herein in favor of petitioner, Mrs. Cecile T. Parker, d/b/a Louisiana State Barber College, and against the defendant, the Board of Barber Examiners, State of Louisiana, annulling — and ordering said Board to recall, vacate, and set aside — the order of der-fendant Board of February 16, 1955, disapproving petitioner’s school.; further (in accordance with petitioner’s prayer) ordering the defendant Board to notify in writing all of the students of petitioner’s school of this action. This, decree is without prejudice to defendant Board to subset quently reinstate disapproval of petitioner’s school, providing the requirements of due process of law are satisfied. Defendant-appellee, being a “public board or con> mission,” is dispensed from paying court costs under LSA-R.S. 13:4521, other than court reporter costs in the trial court, which latter are assessed against appellee-Board.

Reversed and rendered.

      . LSA-R.S. 37:357 “Approved schools of Ijarbering

      “No school of barbering shall be approved by the board unless:
      “(1) It requires, as a prerequisite to admission, graduation from the ■ eighth grade of grammar school or its equivalent thereof in education, as determined by an examination conducted by the board and approved by the Vocational Education Division of the Department of Education;
      “(2) It requires, as a prerequisite to graduation, a course of instruction of not less than fifteen hundred hours, completed within nine months, with no more than eight hours to any working day. This course of instruction shall include the following subjects: scientific fdnda-mentals of barber!* g; hygiene; bacteriology; history of the hair, skin, muscles, and nerves; structure of the head, face, and neck; elementary chemistry as it relates to sterilization and asepsis; diseases of the skin; hair glands; and the massaging and manipulating of the muscles of the body above the seventh cervical vertebra; hair cutting and shaving; and the arranging, dressing, coloring, bleaching, and tinting of the hair;
      . “(3) It requires, that all instructors shall have been licensed barbers.for fiv.e years, with certificates of high school education or the equivalent thereof; that all ássistant instructors shall'have graduated from high school and shall. have been licensed barbers for three years; that each instructor and assistant instructor . shall have graduated in a course embracing all the theory and scientific manipulation taught in schools approved by the board of barber examiners, and shall have passed an examination, compiled and held by the board of barber examiners to qualify him as an instructor and teacher;
      “(4) A'sign is placed in front of the .barber school, reading: ‘Barber School Only’.”

      . LSA-R.S. 37:359 provides that the Board shall examine applicants to enter ¡ an approved barber school “to determine their educational qualifications”. LSA-R.S. 37. :373 provides that all barber shops and colleges shall observe certain specified " sanitary regulations. LSA-R.S. 37:374, providing that the Board may make “reasonable rules and regulations for the administration and enforcement” of the Act and may prescribe sanitary requirements for barber shops and schools, fur- ■ ther provides that each barber shop and school shall post these regulations in a .conspicuous place when furnished with a copy by the board. LSA-R.S. 37:375 . provides that any barber shop or school may be entered and inspected any time during business hours by a representative of the board. The entire Chapter contains • ho other reference than these to barber schools.

      . Cf. Day v. Department of Institutions, 228 La. 105, 81 So.2d 826; Young v. Charity Hospital, 226 La. 708, 77 So.2d 13; Boucher v. Division of Employment Security, 226 La. 227, 75 So.2d 343.

      . See also Section 37:424 of Part II: “Nothing in this Part abrogates or affects any provisions of * * * Part I of this Chapter.”
      , While by a strained construction, the initial section of Part II, LSA-R.S. 37 :- 411 might be read as: “The board of barber examiners shall act as a control board for the purpose of administering this Part. It shall have any powers necessary for the purpose of administering and enforcing this Part. [In addition,] Generally, it may: (1) Supervise, investigate and regulate the barbering indus-' try of the state.” (Italics and words in. brackets added by us). Thus, while the italicized portions actually contained in the section seem to limit its application to Part II “Unfair Competition”, the • word “generally” might imply the general supervisory function in addition to the particular duties. ■
      However, assuming the meaning is unclear and we are therefore entitled to refer to the source statutes to explain the meaning since the Revised Statutes are continuations of the laws revised and consolidated therein, LSA-R.S. 1:16, Perkins v. Brothers of Christian Schools, La.App. 1 Cir., 71 So.2d 400, Note, “Louisiana Revised Statutes of 1950 — Effect”, 15 La.Law Review 472; by examination of the source statute, Section 4, Act 48 •of 1936, it seems that the described general .powers given- to the board are given to it as the instrumentality for the purpose of specifically accomplishing the price-fixing, or “unfair competition and trade practices”, provisions of Act 48 of 1936, which are incorporated .in the Revised Statutes as Part H. (The basic source statute for Part I is an earlier independent enactment, Act 247 of >1928.)

      . See LSA-R..S'. 37:874, Part I: “The board may make reasonable, rules and .regulations for the administration and en-foreement of the provisions of this Part * * * >>