author: ELLIS, Judge. TATE, Judge

text:
    NIAGARA FIRE INSURANCE COMPANY v. Herman SHUFF and Minneapolis Fire and Marine Insurance Company.
    No. 4358.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 4, 1957.
    Rebearing Denied March 25, 1957.
    Plauche & Stockwell, Lake Charles, for appellant.
    Guste, Barnett & Little, James M. Col-omb, Jr., New Orleans, for appellees.
   ELLIS, Judge.

This suit was instituted by Niagara Fire Insurance Company, insurer of two automobiles owned by Port Finance Company, Incorporated, against Herman Shuff and his insurer to recover damages in the amount of $1,731.36 for the total destruction of the two automobiles by fire. The fire occurred on February 1, 19S0 on the premises of Elton Motor Company, owned and operated by Herman Shuff, where the automobiles had been brought for repairs.

An exception of no cause or right of action was overruled and after trial on the merits judgment was rendered for the defendants and plaintiff has appealed.

It was stipulated by and between opposing counsel in the trial on the merits that the automobiles in question were totally destroyed in the fire; that Niagara Fire Insurance Company was a subrogee; that Minneapolis Fire and Marine Insurance Company had issued garage keepers’ legal liability endorsements to the Elton Motor Company, and that the damages amounted to $1,431.17. After the stipulations were made, plaintiff rested his case, relying on the doctrine of res ipsa loquitur.

The defendants introduced the testimony of two witnesses. Lloyd Joseph Darbonne, the first witness, was a brother-in-law of Herman Shuff and was working in a managerial capacity at Elton Motor Company on February 1, 1950, and testified substantially as follows: that no smoking was allowed in the body shop or the overhauling department; the building was constructed of tin over a wooden frame except for the oil storage building which had wooden siding; Darbonne was the last one to leave the shop on the afternoon of the fire and he checked the premises and locked the doors before he left, leaving one light in the show room burning. He left about 6:30 P.M. and about 7:00 P.M. was notified of the fire. He returned to the Elton Motor Company and saw that a fire had started in the attic and he could do nothing without a mask. Darbonne testified that the building had been rewired about a year before the fire and that the wiring seemed to be in excellent condition.

The second witness called by the defendant was Jack Gordon Jenkins, a member of the Elton Volunteer Fire Department, who lived a block and a half from the motor company, and was one of the first to arrive on the scene. There was apparently a small fire burning in the attic when he arrived, and with the aid of an unidentified bystander he took a fire extinguisher from the wall and emptied the contents on the fire.

The tidal judge in his written opinion relied greatly on Wex Malone’s Article “Res Ipsa Loquitur and Proof by Inference,” 4 L.L.R. 70, 80-81, which contained the following concise statement of the law on this subject and with which we thoroughly agree:

“Where bailed goods, for example, are destroyed by a general fire of unexplained origin on the bailee’s premises, no inference of negligence arises despite the unusualness of the occurrence and the fact that the bailee is commonly regarded as being in exclusive possession and control of both the premises and the goods. The fact remains that the defendant’s situation with respect to the occurrence was not such as to exclude a large number of inferences as to the cause of the fire— all pointing away from responsibility on his part. The peril of fire from almost unlimited sources is too omnipresent to permit of such free conjecture.
“If it be shown, however, that the bailed property was an automobile in the defendant’s garage, and that it was destroyed by fire which originated at a time when the defendant or his employee was actively at work upon the car, and further, if it appears that the flame was restricted in area to the immediate vicinity of the vehicle itself— the doctrine might properly be applied. The narrow area of the conflagration excludes many inferences which otherwise would present themselves, and the defendant’s close physical relationship to the vehicle serves to subordinate still other explanations as to how the fire might have arisen. In short, the requirement of physical control by the defendant appears to mean no more than that the defendant’s situation with respect to the accident must be such as to leave little room for competing inferences with respect to the cause of the mishap.”

Plaintiff urges the application of the doctrine of res ipsa loquitur and contends that the defendants failed completely to go “forward with the evidence in this case where the application of the doctrine of res ipsa loquitur is required by law and all standards of justice and equity.”

The plaintiff contends that the defendants should have been in the position to supply the trial court with much more information about the fire than they did considering the number of witnesses that were available. They cite the case of Wood v. Becker Welding Shop, La.App., 34 So.2d 924, 926, and admit that no specific mention was made of the doctrine but they contend that the following language indicates that the doctrine of res ipsa loquitur was actually applied:

“Also, in the case of Gulf & Ship Island R. Co. v. Sutter Motor Company, 12 La.App. 495, 126 So. 458, it was held: ‘Where automobile was left in defendant’s garage in good condition and on next day found in garage in damaged condition, burden was on defendant, as bailee for hire, to prove that cause of damage was neither his negligence nor negligence of employees.’ ”

It is evident that the cited case is entirely different from the case at bar. The facts as presented in the Wood case, supra, are similar to those in the cases of Royal Insurance Co., Ltd., of Liverpool, England v. Collard Motors, La.App., 179 So. 108; Jones v. Shell Petroleum Corporation, 185 La. 1067, 171 So. 447; Scott v. Sample, 148 La. 627, 87 So. 478; Austin v. Heath, 168 La. 605, 122 So. 865; Luke v. Security Storage & Van Co., La.App., 24 So.2d 692, Leigh v. Johnson-Evans Motors, La.App., 75 So.2d 710. In these cases a single vehicle was destroyed or damaged while under the control of the bailee and, in fact, the vehicle was being worked on by the bailee. In none of the cases where the doctrine of res ipsa loquitur was applied was there a fire which destroyed not only one vehicle but the entire establishment in which the vehicle was located.

Similar to the cases on a limited fire is the case of Hartford Fire Insurance Company v. Doll, 5 La.App. 226, which was also relied upon by the plaintiff. This case involved the theft of plaintiff’s car from defendant’s parking lot.

Since the doctrine of res ipsa loquitur is not applicable in the case at bar, there is no merit in plaintiff’s contention that the defendants failed to make any showing whatsoever regarding the occurrence of the fire and that defendants failed to rebut .the presumption or inference of negligence arising from the doctrine.

Plaintiff also' relied on the case of Poydras Fruit Company, Inc., v. Weinberger Banana Company, Inc., 189 La. 940, 181 So. 452, 455 which involved the destruction of a ship by fire following an explosion, and quotes the following language from that case: ,

“A bailee who fails to return the property according to the contract of bailment is liable to the bailor for the value of the property unless the bailee shows that the property was lost or destroyed without fault or negligence’ on his part. Nicholls v. Roland, 11 Mart.,O.S., 190; Ford v. Simmons, 13 La.Ann. 397; Schwartz, Kauffman & Co. v. Baer, 21 La.Ann. 601; Thomas v. Darden, 22 La.Ann. 413. But, when the bailee shows that the property was destroyed by fire, and there is nothing in the showing made by the bailee to indicate that there wás'fault or negligence on his part, the burden of proof rests upon the bailor to show that there was fault or negligence on the part of the bailee. McCullom v. Porter, Thomas & Foley, 17 La.Ann, 89; Gibbons v. Yazoo & M. V. R. Co., 130 La. 671, 58 So. 505; Scott v. Sample, 148 La. 627, 87 So. 478; Austin v. Heath, 168 La. 605, 122 So. 865; Cau v. Texas & Pacific Ry. Co., 194 U.S. 427, 24 S.Ct. 663, 48 L.Ed. 1053.”

A careful reading of this quotation reveals that no mention of the doctrine of res ipsa loquitur was made but, to the contrary, it expresses, a theory which supports defendant’s contentions.

The plaintiff cited the case of Davis v. Teche Lines, 200 La. 1, 7 So.2d 365, 367, iff support of his contention that the defendants should have shown all the facts surrounding the fire known to them, and quotes the following:

"It appears that this employee willingly and freely gave all the information in his possession as to, the manner in which and where the fire originated.”

Obviously the testimony of one employee would not have exhausted the defendant’s’ "available witnesses in a case where the fire destroyed a bus, bus station, and the plaintiff’s adjoining building.

The case of Luke v. Security Storage & Van Co., La.App., 24 So.2d 692, 693, was cited by plaintiffs as authority for the proposition that the defendants have not fulfilled their duty as bailee until they have shown all facts of which they have' or should have control. Upon examining the language relied upon in that case to support this proposition, it is apparent that the theory of the Collard case, supra, which has already been distinguished from the case at bar, has been re-stated. The doctrine o’f res ipsa loquitur was not mentioned in the Luke case, supra, and the court took the ■ following -'position: ■

“We know of no rule of law in this State which requires that a bailee for hire, in order to escape liability for loss by fire of goods entrusted to it, must show exactly how the fire originated. All that is required is that the bailee must show that it was free of negligence ; that it did all that a reasonably prudent person would have done in looking after the goods entrusted to it.”

In the case of Bush v. Bookter, La.App., 47 So.2d 77, which was a suit for damages to plaintiffs hair and scalp caused by the application of a hairdressing solution, the doctrine of res ipsa loquitur was applied. Plaintiff has cited this case in support of his contentions but the fact situation presented in that case is far removed from those in the case at bar and the holding in that case is totally unrelated to the one at bar.

For the reasons set forth above the judgment appealed from is hereby affirmed.

TATE, Judge

(concurring).

The result is correct according to the prevailing jurisprudence. I feel it only fair to state that probably other judges than myself feel that neither logic nor equity support the prevailing proposition that the doctrine of res ipsa loquitur does not apply in circumstances such as these.

The reason, supposedly, that the garage-man is not called upon to exculpate himself from negligence when a car entrusted to his care is destroyed in a fire which arises on his premises although not in the immediate vicinity of the deposited car, is that the fire could arise from a number of causes other than the negligence of the garageman. It is frankly difficult for me to think of many.

For instance, if the wiring was defective and caused the fire, then certainly the duty to inspect and replace same should be on the garageman, who has control of the premises, rather than the owner who brings his car there for repairs. If another customer left a burning cigarette on the premises, again certainly the duty is upon the garageman to inspect and discover same before it spreads and destroys the property of others left in his care, rather than upon the car owner to come and inspect the premises continually during the time his car remains in the other’s premises for repairs.

If the cause of the fire is something of general nature, applying not only to the-premises in question but to the entire town, it certainly seems to me that this evidence by its very nature would be easily available to the garageman in exculpation of his liability. Likewise, if the fire on the garage-man’s premises commences through the negligence of a third party, this information is much more readily available to the ga-rageman, who has control of his premises, than to the car owner who has no duty whatsoever to inspect or care for the other’s garage.

The leaving of a car by an owner for repairs by a garageman has been held to be a “compensated deposit” under the civil law, Article 2938, LSA-Civil Code, or a “bailment for mutual benefit” under the common law, 8 C.J.S., Verbo Bail-ments, § 8, p. 243; but in either event, the depositary or bailee is held only to the duty of ordinary care and diligence, 8 C.J.S., Verbo Bailments, § 27, p. 269.

Actually, taking a realistic view of the situation under modern conditions, the relationship is more closely akin to a bailment (deposit) for the sole benefit of the bailee (depositary) or garage owner: It is ordinarily not of material importance to the car owner which garage performs the repairs and, in fact, car owners frequently chose the repair garage on the basis of the lowest estimate; whereas the garageman has certainly a vital interest in securing the contract, namely that he shall make a profit from same. Where the bailment is for the sole benefit of the bailee, he is bound to exercise great care or extraordinary diligence, and is responsible for but the slightest neglect causing damage to the subject matter of the bailment, 8 C.J.S., Verbo Bailments, § 29, p. 280. See Article 2938, LSA-Civil Code, providing for rigid accountability in such circumstances.

Taking a realistic view of the relationship between the parties, and of the much greater availability of information concerning the cause of the fire to the ga-rageman than to the car owner, it seems to me that an inadequate duty is placed upon the garage owner in case of fire, simply to produce some witness to testify, perhaps perfunctorily, that “all was well” on the day of the fire.

In the present case, for instance, the assistant manager testified that he checked the premises at 6:30 p. m. before locking same and that he found no fire started. Upon this testimony defendant was exculpated from liability for the fire which started at 7 p. m.

The car owner has no way of determining whether actually a careful check was made. Whether, for instance, a salesman of the garageman came later to look at some records, leaving a burning cigarette; whether in the knowledge of the owner of the garage, the wiring was defective; whether some workingman had left a rag subject to spontaneous combustion in the accessible attic where the fire started; the only witness produced by defendant did not necessarily know. Neither — and much less so — could the owner of the car, perhaps miles away; nor was he anywhere nearly as able as the garageman to make an adequate investigation as to the cause of the fire in the latter’s premises, subject to the latter’s control and manned by the latter’s employees.

The premium is thus put upon non-investigation by the owner of the premises and upon his non-disclosure of relevant facts.

For instance, in Poydras Fruit Company, Inc., v. Weinberger Banana Company, Inc., 189 La. 940, 181 So. 4S2, the owner of a vessel destroyed while chartered by defendant would not have recovered damages had not the charterer discovered or disclosed that the chief engineer had sent a crewman down to the boiler-room immediately before the explosion which destroyed the vessel. Had, for instance, the second mate who knew nothing of this fact been put on the stand to testify that immediately before the explosion “all was well” and that the company always followed suitable precautions, then this testimony would have satisfied the relatively slight duty presently put upon one who has the possession of the property of another during which possession the other’s property is destroyed.

It does not take the eye of a prophet to discern a trend in the jurisprudence cited to us by appellant reevaluating the relative duties and rights of the parties in the light of modern conditions, to which trend the result in the present case is contrary. But this Court is an inferior appellate court and cannot do otherwise than follow the prevailing jurisprudence, in the absence of legislative action or of a definitive reinterpretation of earlier precedents by our Supreme Court.

For the above and foregoing reasons, I respectfully concur.


source: Caselaw Access Project

author: TATE, Judge.' PER CURIAM.

license: Public Domain

text:
    LOUISIANA STATE BOARD OF MEDICAL EXAMINERS v. J. E. STEPHENSON.
    No. 4345.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 4, 1957.
    Rehearing Denied March 25, 1957.
    Jack L. Simms, Leesville, for appellant.
    Adams & Reese, New Orleans, Wood & Jackson, Leesville, for appellee.
   TATE, Judge.'

Plaintiff Board obtained a permanent 'injunction under LSA-R.S. 37:1286 • of the Medical Practice Act restraining defendant Stephenson from “in any manner prac-tising medicine” until he shall have obtained the necessary certificate required by law.

It is well established by our jurisprudence that included in the activities which cannot be engaged in without a medical license is the practice of chiropractic, or the holding oneself out to the public as being engaged in the business of diagnosing illness and treating same by application of physical force to (i. e., the manual “adjusting” of) the joints of the body, especially the vertibrae of the spinal column; LSA-R.S. 37:1261; Louisiana State Board of Medical Examiners v. Fife, 162 La. 681, 111 So. 58, 54 A.L.R. 594; State Board of Medical Examiners v. Cronk, 157 La. 321, 102 So. 415; State Board of Medical Examiners v. Mooring, La.App., 86 So.2d 641; State Board of Medical Examiners v. Wimberly, La.App., 85 So.2d 679; State Board of Medical Examiners v. Adams, La.App., 84 So.2d 282; State Board of Medical Examiners v. Barber, La.App., 78 So.2d 60; State Board of Medical Examiners v. Fisher, La.App., 76 So.2d 56; State Board of Medical Examiners v. Booth, La. App., 76 So.2d 15; State Board of Medical Examiners v. Tackett, La.App., 71 So. 2d 137; State Board of Medical Examiners v. McHenery, La.App., 69 So.2d 592.

The plaintiff Board called two w..nesses, both paid investigators. John Huber testified that in October, 1955, Dr. Stephenson had treated him by the manual massage utilized by chiropractic techniques to reduce his blood pressure. Louis Whitesell testified that in October and again in December of 1955, Dr. Stephenson had treated him by massage and physical pressure on the spine, head, and neck for his sinus complaints.

Pointing out that both Huber and White-sell admitted that they had never seen the defendant Stephenson since the dates of treatment, approximately seven and four months respectively before the petition was filed, counsel for Stephenson urges with considerable astuteness that plaintiff Board had not borne its burden of proving that defendant Stephenson was engaging in similar practices at the time of filing the petition herein, which alleged Stephenson “is holding himself out” as “in the business of diagnosing, treating, curing or relieving bodily or mentally diseases” in violation of the Medical Practice Act of Louisiana.

Stephenson had availed himself of his constitutional privilege against self incrimination and had refused to testify other than to his name and address. Other than the testimony of these two investigators, and the fact that the DeRidder telephone book listed petitioner as “Dr.” Stephenson, the Board made no further effort to prove that Stephenson had continued in the practice of chiropractic, or had been engaged in said practice other than on the three occasions to which its investigators testified ; although he did admit that some members of the audience at his trial were his “patients”.

Therefore, defendant urges, the drastic remedy of the injunction, placing the full power of the State on the side of one individual or group of individuals, and restricting the liberty of another individual upon penalty of contempt, should not be granted except where the established facts are clear and convincing, Johnson v. Nora, La.App. 2 Cir., 87 So.2d 757.

We think, however, the District Court could without manifest error draw an inference from this proof of the illegal practice of chiropractic, or medicine, on three occasions over two months, as corroborated by the telephone listing and the use of the title “Doctor”, that defendant continued in such practice up through the time the injunction suit was filed four months later— at least, in the absence of contrary testimony by defendant.

“Proof of the existence at a particular time of a fact of a continuous nature gives-rise to an inference or rebuttable presumption that the fact exists at a subsequent, time. * * * The limits of time within' which the inference of continuance possesses sufficient probative force to be relevant' vary with each case. Always strongest ira the beginning the inference steadily diminishes in force with lapse of time.” 31 C.J.S., Evidence, § 124, pp. 736-737. “[T]he presumption applies to statutory violations of a continuous nature, such as engaging in a business or profession, or doing some other act, without having secured the required license or permit,” 31 C.J.S., p. 745, Idem.

See 20 Am.Jr. 205, Section 207; Texas & N. O. Ry. Co. v. Miller & Co., La.App. Orleans, 4 So.2d 762 (syllabus 6); State v. Fray, 214 Iowa 53, 241 N.W. 663, 81 A.L.R.. 286. See also: State v. Rose, 147 La. 243, 247-249, 84 So. 643.

For the above and foregoing reasons, the judgment of the District Court is affirmed-

Affirmed.

On Application for Rehearing

PER CURIAM.

On February 4, 1957 this Court rendered its opinion in 'the -above entitled matter and thereafter the defendant-appellant timely filed his application for a rehearing, on same.

On March 8, 1957 defendant-appellant supplementing his original application for a rehearing asked leave of the Court to-“orally argue his application for a rehearing, and after due consideration given to same, that a rehearing be granted herein and finally that the judgment of the Lower Court be reversed and set aside.”

On March 12, 1957 defendant-appellant filed an exception of no right and no cause of action, the basis of which being, want of verification or defective verification to plaintiff’s-appellee’s original petition filed in the Lower Court.

As to the motion asking leave to orally argue.the application for a rehearing we wish to point out that the rules of this Court as well as that of the Supreme Court of this state specifically provide that oral argument will not be allowed in support of or in opposition to an application for a rehearing and for that reason same is denied; See Rule 11, Section 4 of Supreme Court Rules and Rules of Court of Appeal, First Circuit, Page 662 of West’s LSA Revised Statutes Vol. 8.

As to the exception of no right and of no cause of action based on the want of verification or defective verification of plaintiff’s original petition filed in the Lower Court, we wish to specifically point out that according to the Pleadings and Practice Act now incorporated in the LSA Revised Statutes of 1950 as 13:3601(5), Paragraph (b) provides as follows:

“Want of verification or defective verification must be taken advantage of, if at all, in the case of a petition by exception filed in limine litis, and in all such cases the court may in its discretion, allow the verification to be supplied or amended upon terms as to the payment of costs, or otherwise, as it may deem proper.”

See also Bond v. Texas & P. Ry. Co., 181 La. 763, 160 So. 406.

Defendant-appellant has only seen fit to attack the verification in this appellate court and failed to raise the issue in limine litis. Therefore, for the above and foregoing reasons said exception is overruled.

On the application for a rehearing and after studying same it is likewise refused..

Application for rehearing refused.


author: McBRIDE, Judge.

text:
    Walter A. ROUX v. Phillip ATTARDO and Nola Cabs, Inc.
    No. 20755.
    Court of Appeal of Louisiana. Orleans.
    March 11, 1957.

      Henry L. Oulliber, Jr., and Robert J. Pi-tard, New Orleans, for defendants and appellants.
    Charles E. McHale, Jr., New Orleans, for plaintiff and appellee.
   McBRIDE, Judge.

Plaintiff, Walter A. Roux, seeks a recovery in damages in solido against Phillip Attardo, a taxicab driver, and his liability insurer, Nola Cabs, Inc., for personal injuries sustained on March 25, 1955, about 5 :30 p. m., when he was allegedly struck by the taxicab operated by Attardo, who is sometimes hereinafter referred to as the defendant.

The case was tried by jury. From a verdict and judgment in plaintiff’s favor for $1,033.18, defendants have perfected this appeal. Appellee has answered ■ the '.appeal praying that the judgment be increased to the sum of $2,009.18.

There is no dispute as to certain facts. At the time of the alleged accident, competition was keen in the taxicab business in the vicinity of the University Place entrance to the Roosevelt Hotel, and three taxicab starters were stationed there each “hustling” fares for his respective cab company. Roux, the plaintiff, was temporarily employed as starter by the New Orleans Cab Company. Defendant, Attardo, drove up in his cab and discharged a passenger or passengers, after which he made some remarks which caused Roux to approach the cab and speak some words to him. Then Roux stepped from the sidewalk onto University Place.

The petition alleges:

“ * * * Defendant Attardo then gunned his motor and started his car in the direction of uptown, striking plaintiff’s left leg just below hip left knee with the left front bumper of the vehicle.
* * * * * £
“That plaintiff received serious and painful injuries outlined below as a proximate result of the gross carelessness and negligence of defendant, Phillip Attardo, in the following particulars :
“(a) Failure to maintain a proper lookout at and immediately prior to impact with plaintiff.
“(b) Failure to maintain proper control over his vehicle at and immediately prior to impact with petitioner.
“(c) Failure to let plaintiff get out of the street before pulling away from the hotel into the path of plaintiff.
“(d) Shouting to plaintiff to make him turn around in the street, thus placing plaintiff in a dangerous situation easily accessible to being struck by At-tardo’s car coming1 out from a stopped position in front of the entrance to the Roosevelt Hotel.
“(e) Failure to sound his horn or warn- plaintiff of the approaching danger of his taxicab.”

'The answer alleges that plaintiff’s injuries, if any, were caused through his own fault in:

“1. Making a vicious attack upon the defendant cab driver.
“2. In punching and attacking the driver of a moving vehicle.
“3. Failing to use proper care and caution, especially in view of the fact that a vehicle was moving.”

In a plea made in the alternative, defendants charge that plaintiff was guilty of contributory negligence in the above-enumerated respects.

Roux testified that after defendant had assisted his passengers in alighting from the cab and collected his fare, he returned to the driver’s seat and then called Roux a scab and a vile name. Roux claims he was incensed, but rather than create a disturbance at the hotel entrance he offered to “go around the corner” with defendant and settle the matter.

Roux says he then stepped into the street with the intention of crossing to the other side and that when he had reached about midway of the street, Attardo called out “hey, Roux” and he thereupon turned to reverse his course and had traversed a few feet when Attardo started his cab rapidly forward with the result that the left side of its front bumper struck him on the left leg throwing him against a limousine which was at the time parked at the curb. Roux stated he endeavored to grab the left rear fender of the cab to steady himself and keep from falling but the fender struck him in the abdomen precipitating him to the pavement.

Molinary, one of the taxi starters, in a large measure corroborates Roux’s statements. This witness stated he heard defendant call Roux a scab and a vile name and then heard Roux offer to settle the matter elsewhere. Molinary says he saw Roux step from the curb to the street level, and that Attardo accelerated his car which moved forward and knocked Roux into the side of the limousine and then Roux fell into the side of the moving cab. The only material difference we are able to discern as between Roux’s statements and those made by Molinary is that the latter said Roux reached a point about seven feet from the curbing when he was hit by the cab.

Plain tiff’s other witness was Barras who drives a taxicab. Barras was seated in his vehicle at the cab stand near the hotel. He could hear none of the conversation between Roux and defendant, but he states he saw the cab start forward and strike Roux, and it appeared to him as though Roux made a grab for the cab as he was falling to the surface of the street.

Attardo gives a different version of the affair. He denied he called Roux names or that he initially made any remarks to him at all and insisted that what he said was “watch the New Orleans cabs,” and that these words were addressed to his starter. Attardo said Roux then came up to the cab and grabbed him saying: “ * * * what you trying to do, make fun of my company.” Defendant claims that he and not Roux offered to fight it out and that Roux ran into the street just as he was starting the cab forward which necessitated his bringing the cab to an abrupt stop with screeching brakes. He says Roux then started toward the cab and “bumps his knee on my bumper. That’s what caused his injury.” Attardo further stated that Roux came to the side of the cab and punched at his face and “I was defenseless so I pulled right off.” Attardo denies that his cab ran into Roux or that Roux ever fell to the pavement.

Kostella, the policeman on duty near the hotel, appeared for defendants. This witness stated he was walking away from the entrance when his attention was attracted by the screeching of automobile brakes. Upon facing the direction whence the sound emanated, he saw Roux “either punching or grabbing at the taxicab driver.” He claims the cab did not run into Roux or that he was knocked down.-

The above constitutes the gist of the pertinent testimony respecting the occurrence under investigation, and we must comment that there appear discrepancies, which need not be pointed out, in the statements of all of the eyewitnesses. However, the composite of the testimony adduced by plaintiff would show that Attardo negligently ran Roux down.

The jury believed that testimony and concluded that plaintiff had made out a case of negligence by a preponderance of the evidence. After reading and analyzing the transcript of the testimony, we, as a reviewing court, could not possibly say that the jury incorrectly resolved the factual issues as no manifest error appears. To reverse the judgment would simply mean that we should entirely disregard what plaintiff and his witnesses had to say and to adopt as the truth the statements of Attardo and Kostella which the jury rejected.

No matter what it was that caused Roux to go into the street or howsoever great was the animosity existing between the parties, Attardo could and should have avoided running into him. Our own thought is that At-tardo drove his cab off in a display of temper unmindful of what might be the, consequences of his act and he was grossly at fault and guilty of one or more of the specifications of negligence contained in the petition.

It should be mentioned that defendants •made strenuous effort to impeach plaintiff's •credibility by a showing that he at one time had been charged with and convicted of •theft and that on another occasion he was •charged with carrying a concealed weapon. Plaintiff at first denied that the latter charge had been made against him, but he later, retracted this denial. But, be that as it may, the jury heard and weighed all of the testimony, and notwithstanding the attempt at impeachment of plaintiff’s' testimony was willing to accept his testimony as worthy of belief.

Great weight attaches to the findings of fact by a jury as well as by a trial judge and to their ability to judge the credibility of witnesses where there is sharp conflict in testimony, and in the absence of clear and manifest error the appellate court will not reverse the judgment on the question of defendant’s liability. Nixon v. New Orleans Ry. & Light Co., 121 La. 447, 46 So. 568; Goothye v. DeLatour, 108 La. 286, 32 So. 391; Moore v. Blanchard, La.App., 35 So.2d 667; Tillman v. Cangelosi, La.App., 40 So.2d 523.

Plaintiff went to the Charity Hospital for examination, and after being given first aid treatment the hospital physicians dismissed him on the same day advising that he see his private doctor.

Roux saw Dr. Carlo P. Cabibi a few days later, but the record does not show for what period of time he remained under Dr. Cab-ibi’s care. Dr. Cabibi diagnosed plaintiff’s complaints as generalized contusions of the back, chest and both legs, especially the left, with contusions of the right lower rib cage and a lumbosacral sprain and strain. The patient was given sedation and from time to time received diathermy treatment. He was instructed to apply heat to the injury. A back brace was prescribed. Dr. Cabibi evaluated plaintiff’s disability at eight to ten weeks.

At the behest of plaintiff’s counsel, Dr. Edward T. Haslam, orthopedic surgeon, made an examination of plaintiff on April 20, 1955. He testified that the patient walk-ed with a limp, hurried off his right foot, and had muscle spasm in his low back region. Bending was limited and accompanied by increased spasm in the muscles of the back. Dr. Haslam stated this objective finding could not be voluntarily controlled by the patient. He further testified:

“Q. Could you testify * * * . would you give us your opinion as to the type and severity of pain that this man underwent as a result of this lum-bosacral sprain that you found? A. Well, I think only what I described in my history. I mean the type of thing • he told me he was experiencing was the sort of pain that people with lumbo-sacral sprains and contusion of the coccyx usually have, that is, pain with the bowel movements, coughing and sneezing and * * * ”

Dr. Haslam stated that while a physician can never predict how long a person will be incapacitated from such injury, he believed that a period of 2i/£ to 31/2 months could be considered as the average time.

Roux claims that he was unable to return to the duties of cab driver, which was his regular occupation, for 3i/z to 4 months, while h'is wife testified he was incapacitated for more than 5 months. In view of this uncertain testimony both from the lay witnesses and the doctors, we are unable to determine exactly how much loss of earnings Roux sustained by virtue of his injuries, but we are convinced that he was incapacitated from working for a considerable time. His salary was $28 per week.

Plaintiff incurred medical expenses amounting to $63.18, consisting of the sum of $23.18 for a back brace and the bill of Dr. Cabibi for $40. He also presented a bill for $25 rendered by Dr. Haslam to his attorney for the orthopedic examination of April 20, 1955, and a report thereon and a bill of $45 for X-ray pictures of plaintiff which Dr. Haslam required in connection with his examination, which is likewise made out to plaintiff’s attorney. The amounts of these bills cannot be allowed as items of damage for the reason that there is no law which renders the defendant in a damage suit liable for the bill of a physician for examining an injured plaintiff when the sole purpose of the examination is to acquaint the physician with the claimant’s condition in order to equip and prepare himself to testify in the case as an expert witness. See O’Connor v. American Mutual Liability Ins. Co., La.App., 87 So.2d 16.

In addition to the bill of Dr. Cabibi and for the cost of the back brace, the judgment would allow plaintiff $970 for his personal injuries, pain and suffering, and loss of earnings, whatever they may be, and as plaintiff has sustained no permanent injuries we believe that the judgment generally does substantial justice and there is no-reason why it should be disturbed or revised in any way.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.


author: REGAN, Judge.

text:
    STATE ex rel. Walter H. S. WOLFNER v. FAIRFAX SHIPSIDE STORAGE, Inc.
    No. 20776.
    Court of Appeal of Louisiana. Orleans.
    March 11, 1957.

      Richard B. Montgomery, Jr., New Orleans, for defendant-appellant.
    Charles Kohlmeyer, Jr., H. Martin Hun-ley, Jr., Lemle & Kelleher, New Orleans, for plaintiff-appellee.
   REGAN, Judge.

Plaintiff, Walter H. S. Wolfner, the owner of at least two percent of the corporation’s stock for more than six months and engaged in a non-competitive business, instituted this suit endeavoring to obtain a writ of mandamus directed to the defendant, Fairfax Shipside Storage, Inc., ordering it to permit plaintiff to examine the books thereof.

Defendant pleaded the exceptions of no right of action and of estoppel, which subsequently, at the request of its counsel, were referred to the merits, and then answered denying that the plaintiff possessed the right which is ordinarily conferred upon a stockholder to examine the books of the corporation.

From a judgment overruling the exception of no right of action and the plea of estoppel and making the writ of mandamus peremptory, defendant has prosecuted this appeal.

The record reveals that the defendant was incorporated March 31, 1947. The articles thereof authorized the issuance of 500 shares of Class “A” stock of $100 par value, of which 152 shares were actually issued. It was created for the purpose of conducting a general storage business, including the storage of cotton upon which loans had been made by the United States Government; despite efforts to procure this type of business it was unsuccessful in inducing the Commodity Credit Corporation, an agency of the government, to use the corporation’s storage facilities. Its management learned, through Richard Muckerman of St. Louis, that the plaintiff, a resident of the State of Illinois, was in a position to obtain this kind of business, provided the defendant’s storage facilities met the requirements of the Commodity Credit Corporation. The business contact was made and, thereafter, the interested parties engaged in a discussion of their respective financial interests.

Plaintiff suggested that instead of receiving as remuneration from the corporation, a commission on the rentals for storage, it would be more profitable tax-wise to have stock of the corporation issued to him. The defendant agreed with this idea and, accordingly, the charter of the corporation was amended and a Class “B”’ stock was created which consisted of 18,000 shares. The amendment to the charter stipulated that this stock was “without any right or privilege to participate or vote in the affairs', conduct or management of this corporation.” The Class “A” stock had been given “full and exclusive voting rights and privileges in the affairs and management of this corporation” in the original charter, and these rights were reiterated in the amendment.

Defendant, as a result of an agreement, between plaintiff and its other stockholders, placed a value of $1 per share upon the stock. The plaintiff performed the services of obtaining the cotton, it being understood that his stock would ultimately be redeemed for $10 per share and that such redemption would be out of the first monies received from storage fees on cotton secured by plaintiff to be stored in defendant’s warehouse on the basis of 5 cents per bale per month for every bale in storage. It was estimated that the cotton would remain in storage about three years.

The President and Secretary of the defendant corporation, in conformity with the requirements of the Business Corporation Act, filed the usual affidavit in the Mortgage and Secretary of State Offices relating that Class “B” stock was issued for the consideration of “good will of and the services rendered by the holder or holders of said shares” and it was therein asserted that the good will and services, in the opinion of the Directorate of the corporation, were valued at $18,000 or $1 per share for 18,000 shares.

It is unimportant in determining the issues involved herein, but it is significant to note that the four original incorporators of the defendant corporation who, as owners of the stock thereof, possessed exclusive voting privileges and the right to manage the affairs of the corporation, sold their holdings in November, 1949, to the J. H. R. Investment Company of St. Louis, Missouri.

Defendant maintains that the exceptional conditions under which the stock was issued, as reflected by the amendment of its charter, had the effect of causing plaintiff to waive his right to examine the books and, in addition thereto, this right was further restricted by the very nature of the agreement to redeem the stock at $10 per share out of the first earnings accruing from the storage of cotton which had been procured by the plaintiff.

Plaintiff simply contends that neither the conditions under which the stock was issued nor the method of redemption thereof either restricted or caused plaintiff to waive his statutory right to examine the books of the corporation.

The only question posed for our consideration is whether the charter restriction placed on plaintiff’s stock together with the method of redemption thereof , had the effect of depriving him of his statutory right to examine the books of the corporation.

The trial judge likewise believed that the foregoing question was the only one posed for his consideration and it was his opinion that the plaintiff met all of the requirements imposed by LSA-R.S. 12:38E and, therefore, he was entitled to examine the books of the defendant corporation.

This Section of the Business Corporation Act provides:

“Every, shareholder, except a business competitor, who has been the holder of record of at least two per cent of all outstanding shares of the corporation for at least six months shall have the right to examine, in person or by agent or attorney, at any reasonable time, for any proper and reasonable purpose, any and all of the books and records of the corporation, and to make extracts therefrom.”

In conformity with the above section of the Act plaintiff established, without contradiction, his qualifications as a stockholder to examine the corporation’s books for the reason that the evidence adduced herein revealed, without equivocation, that he owned more than two percent of all of the outstanding shares of the corporation for at least six months prior to his request for examination of the books thereof and that he was not engaged in a competitive business.

The amendment to the charter may only be interpreted to mean that the stock issued to plaintiff was to possess no voting privileges and was to confer upon the stockholder thereof no power of management. It does not either specifically or by implication provide that the stockholder is deprived of his stautory right to examine the corporation’s books. It would have been very simple indeed to have inserted such a restriction in the amendment to the charter had the Officers and Directors of the corporation, all experienced businessmen, so desired, but even assuming, without deciding, that such a restriction would have been lawful or not contra bonos mores, the amendment cannot be construed so as to conform to the defendant’s contention and thus restrict plaintiff’s right to examine the books of the corporation.

We are likewise of the opinion that the method of redeeming the stock, irrespective of whether we accept the plaintiff’s or defendant’s version thereof, did not restrict plaintiff’s right to or estop him from examining the books of the corporation. The trial judge, in disposing of this contention by the defendant, observed:

“Assuming arguendo (but without deciding) that Relator might waive his right to an inspection of the books and records, such waiver must perforce be clear, direct and unequivocal. The Court does not find that Relator waived such rights in this case either directly or by compelling inference.”

It is too well settled to need citation in support thereof that the doctrine of estoppel is not favored by the courts and it must be proved by the most positive evidence and cannot rest upon a foundation of inference, implication and innuendo.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

      . August, 1949.

      . 2,500 shares were purchased from plaintiff at $10 per share by Richard Mucker-man in 1950 or 1951, who was then President of J. H. R. Investment Company of St. Louis, which owned the defendant corporation. Ho was also President of the defendant corporation when the answer to this suit was filed.

      . Plaintiff disputes this statement and asserts that the stock would be redeemed from “the net earnings over the expenses of operation.”

      . LSA-R.S. 12:1.

      . Alcee P. Neeb of New Orleans; William J. Kearney of New Orleans; George M. Morris and Merl M. Bowman of Kansas City, Missouri.

      . Richard Muckerman was the President of that Corporation and he is also the President of the defendant herein.

      . This stock was issued by the defendant to the plaintiff, as revealed by the amendment to the corporation’s charter, “without any right or privilege to participate or vote in the affairs, conduct or management of this corporation.”

      . Plaintiff’s stock was to be redeemed at $10 per share out of the first monies accruing from the storage fees on cotton stored in defendant’s warehouse on the basis of 5 cents per bale per month.

      . LSA-R.S. 12:38E.


author: JANVIER, Judge. REGAN, Judge. McBRIDE, Judge. REGAN, Judge

text:
    Elsie ELLSWORTH, wife of and Henry DUNN v. C. J. TEDESCO and American Fire and Casualty Company.
    No. 20742.
    Court of Appeal of Louisiana. Orleans.
    Jan. 2, 1957.
    On Rehearing March 25, 1957.
    Writ of Certiorari Granted May 7, 1957.

      Tucker & Schonekas, New Orleans, for plaintiffs-appellants.
    D. A. McGovern, III and Adams & Reese, New Orleans, for defendants-ap-pellees.
   JANVIER, Judge.

This litigation results from a tragic occurrence in a very small bathroom in which four young children were in some manner rendered unconscious, three recovering with little or no harmful results but the youngest, a girl of about two years of age, drowning in water in the bathtub.

The suit was brought against C. J. Tedesco, the landlord from whom the premises were rented, and against American Fire and Casualty Company, his insurer.

The charges are that the gas water heater in the bathroom was defective in at least three particulars, with the result that gas escaped into the room or that, because of the defective venting of the heater, the children were overcome by fumes of the burning gas, and the smallest of the children either was overcome in the tub and drowned, or was first overcome and then fell into the tub.

Henry Dunn, the father, and Elsie Dunn, the mother, who are separated, brought this suit for the loss sustained by each in the death of the daughter, and Henry Dunn, the father suing for the use and benefit of each of the three who survived, claimed on behalf of each the damage which each had suffered.

The defendants admitted that there was in existence a liability insurance policy issued by the defendant insurer with a limit of $5,000 for the damage sustained by any one person and a limit of $10,000 to all persons who might be injured in any one occurrence.

The defendants denied that there were any defects in the heater, and averred •that the accident was caused by the fact that the four young children locked themselves in the very small room with the heat•er burning and were overcome by the heat .and humidity and carbon monoxide which resulted from the burning of the heater for too long a time with so many persons in such a small room. Defendants also •charged in the alternative that there was •contributory negligence in the mother who was in charge of the children in permitting the four children to enter the small 'bathroom at the same time with the hot water running and the heater burning and with the window and the door shut.

The Board of Administrators of 'Charity Hospital of Louisiana at New Orleans intervened and prayed that, in the event liability be found in defendants, there be judgment in favor of the said intervener for the cost of the hospital services made necessary by the accident.

There was judgment in favor of the father, Henry .Dunn, for the use and benefit of each of the three surviving children in the sum of $200 each, and there was further judgment dismissing the suit of the father and of the mother. In the judgment no mention was made of the claim of the intervener.

The mother and the father appealed from the judgment in so far as it dismissed their claims, but the father did not appeal on behalf of the three surviving children in an effort to have the amounts awarded to each of them increased.

Counsel for defendants, erroneously believing that the father had appealed on behalf of the three surviving children, filed what is termed an answer to the appeal and prayed that the judgments in favor of those surviving children be reversed and that their claims be dismissed. When it was called to the attention of counsel for defendants that there had been no appeal on behalf of the surviving children and that consequently the answer to the appeal could have no effect, they readily acknowledged that those judgments were final and could not be reversed. Consequently, there remains only the question of whether there is liability in defendants for the death of the youngest child.

In his reasons for judgment the District Judge found that the hot water heater was defective. He said:

“The hot water heater in this case was defective. As a result thereof the minor children, Henry Dunn, Jr., Roy Dunn and Marilyn Dunn, were asphyxiated and are entitled to damages.
“The death of the minor child, Carol Dunn, was caused by drowning. Whether this child became unconscious as a result of inhaling fumes from the defective gas heater before her death by drowning, or drowned before she inhaled a sufficient amount of these fumes to become unconscious, is uncertain. Either conjecture is plausible. This Court cannot decide the case on the basis of possibilities or even probabilities. The burden of proof is on plaintiff to establish with reasonable certainty the cause of death.”

It is the contention of plaintiffs that the heater was defective in at least three particulars. It was of the instantaneous coil type in which a pilot light is, or should be, constantly burning. The large burner, which is under the coils through which the water passes, is automatically turned on when any hot water faucet is opened and, as the gas enters the large burner, it is ignited by the constantly burning pilot light. In modern heaters — this was a 1918 model — there is an automatic cutoff valve on the gas line which shuts off the main gas supply whenever the pilot light is extinguished, so that if the said pilot light is thus accidentally extinguished, gas cannot enter the large burner and will not escape into the room. .Such a safety valve is required by tthe building code and associated regulations of the City of New Orleans and it is shown that there was no such valve on this heater.

The building code regulations also require that in each water heater there be either a built in down draft diverter, or that there be one in the vent pipe above the heater. Such a down draft diverter is intended to have the effect of preventing the extinguishing of the flame of the burner by wind or down draft coming down the vent. Whether this heater was so equipped we shall discuss later.

It is also claimed by plaintiff that there was no cover or wind deflecting cap on the top of the vent pipe which extended above the roof of the building and through which vent the burned gases of the heater are permitted to escape into the outer air. The purpose of such a cap or wind deflector is to prevent rain from falling down the vent into the heater and to assist in preventing a down draft from extinguishing the flame of the burner. Whether this heater was so equipped we shall discuss later.

The exact size of the heater is not shown, but it appears that it was located in the very small bathroom in the half of the double cottage which was occupied by the mother and some of the children and that, though located on that side, it served to furnish hot water to the other side of the double cottage as well, so that whenever a hot water faucet was turned on on either side, the heater would be started.

The size of the room is referred to as being approximately four feet in width. However, the exact measurements are shown to have been 45 inches in width, 11 feet in length and 7 feet from the floor to the ceiling. In this room the.re was one window and one door and apparently no other openings though it does appear that the door did not fit its opening well and that there thus remained, even when the door was closed, cracks which afforded a total opening of about 36 square inches.

The mother is a deaf mute and no evidence could be obtained from her, though it is shown that she sent the four children into the bathroom to bathe together as was the custom. Sometime later, though how much later we cannot ascertain, the mother became alarmed and attempted to enter the room. In some manner she broke open the door and found the three older children on the floor unconscious and the youngest dead, though at that time the mother did not know this.

We cannot determine from the record just where the little girl was, though a neighbor who came over soon after said that the little girl was lying on the side of the tub and that her feet were in the water which was in the tub; that she was very wet and “her feet felt like she had boiled something.” When this neighbor, Edna. Thompson, and Herman Fulton, another neighbor came over, the air in the room-, was very hot and there was a tremendous, amount of condensation, referred to as sweating — “water was dripping from the-panes in the window which was closed.” Edna Thompson said that she “didn’t get to. see if the gas was on in there or anything,”' and Herman Fulton, the other neighbor, says that he “didn’t notice” gas.

Later two patrolmen, Lucien Cassard, Jr., and George Wilt, arrived from the crash or emergency squad and they made every effort to revive the little girl, but with no success. They said that the water in the tub was still hot, and apparently this was about an hour or an hour and a half after the occurrence. Edna Thompson said that the water was still running from the heater into the tub though she did not notice whether that water was hot. The two-police officers said that they noticed a “slight odor of gas fumes,” but when asked why they had not mentioned the gas in their report, admitted that they had not mentioned it but said that in those reports they did not go into detail. It seems to us that in that situation, whether or not gas was-in the room, was a most important detail..

An autopsy was performed, and the report, called the “protocol”, convinces us that the death of the little girl was due to drowning and, while it is possible that the drowning had been preceded by asphyxiation, there is nothing in the report which indicates asphyxiation.

Dr. Stanley Durlacher, admittedly an expert in pathology and toxicology, the chief pathologist and toxicologist in the office of the Parish Coroner, who did not perform the autopsy but who later examined parts of some of the internal organs of the little girl, stated that the report indicated “death by drowning” and that the color of these specimens which were exhibited to him led him to believe that there had been no asphyxiation. He said that in the report there was no evidence of carbon monoxide. Dr. Durlacher said that •whenever there is asphyxiation from carbon monoxide, the internal organs which were ■exhibited take on a very noticeable cherry red color and that in this case there was no ■such color.

Dr. Durlacher also said that almost always when there is asphyxiation as the result of the inhaling of natural gas, there is vomiting. There was no vomiting by .any of the children.

The doctor was told the size of the room, ■the saturated condition of the air and of the water and the number of children who were in the room, and he was asked what might be the result of these conditions and he answered: “All those factors can produce conditions where people can be overcome and pass out. There is no question about it.” He also said: “People can pass ■out from a high humidity without it being necessarily a lack of oxygen at all. * * * I am answering that heat, high humidity and too high a concentration can certainly ■cause people to pass out.”

Dr. William H. Harris, Jr., a pathologist ■who testified on behalf of plaintiffs, was asked: “Children can be overcome from other causes than from gas, can they not?” He answered: “Yfes, sir!” He was shown a text book, apparently on the subject of asphyxiation and causes of unconsciousness, and was asked whether he agreed with the following statement which appeared therein:

“Fatalities have occurred among persons imprisoned in a small room closeted without ventilation, in such case asphyxiation is due as much to the insufficient oxygen supply as to excessive collection of carbon dioxide. It is likely that the heat, humidity and other deleterious effects produced by such confinement contribute to the fatal outcome.”

He answered:

“With that general statement, yes, sir, I would agree. I think the important part. of that statement is in the first part where it emphasizes a closed space, and I think that it takes a pretty good enclosure to deplete the available oxygen.”

When shown the protocol which, as we have already said, is the report of the autopsy, Dr. Harris said:

“There is nothing in this protocol to indicate that this individual could not have been overcome by inhalation of gas to the point of unconsciousness. There’s nothing in here at the same time that would indicate that asphyxia, which apparently was the cause of death, was due to inhalation of gas but rather that drowning was the direct cause of death.”

We have no difficulty in agreeing with the District Judge in his finding that the heater was defective, but we are not at all sure that it is shown with any reasonable certainty that the defects were the cause of the unfortunate accident. It is very evident that plaintiffs rely most on the charge .that the absence of a safety cutoff valve was probably the principal cause of the tragedy. Such a defect is a serious one and makes the operation of such a heater extremely dangerous. But the evidence convinces us that the heater was burning certainly only a very short time before the children became unconscious. When the first neighbor entered the room the water in the tub was very hot and when the patrolmen arrived sometime later, they found it still hot. Since the water -was running when the first neigh-bo: entered the room, if the heater had not been burning, the water would have been cold and it would not have taken long for the cold water running into the tub to have made all the water cold or certainly it would not have been extremely hot as it was when the patrolmen arrived. Then, too, there was a tremendous amount of condensation in the room and the room also was very hot. If the heater had not been burning for quite sometime and the gas had been escaping, there would not have been the tremendous condensation which was found. If the heater was burning, the absence of the safety cutoff valve, while a dangerous defect, had nothing to do with this particular accident.

The contention that there was no down draft diverter on the heater is annihilated by the testimony of an expert witness produced by plaintiffs. This witness, Henry Buse, a graduate engineer, was placed on the stand to prove the defects in the heater, and yet when asked whether there was such a down draft diverter on this particular heater, which was in evidence in the courtroom, he said that there was such a down draft diverter which was built into the heater itself, and when asked: “There is nothing wrong with this down draft divert-er? he answered: “No, sir.”

It is possible that the evidence of another witness as to the absence of such a diverter was based on the fact that usually these diverters are placed above the heater and are easily noticeable, whereas this divert-er was built into the heater itself and was apparently overlooked by the witness who said that there was no such diverter in this heater.

There is some dispute as to whether there was a cap over the top of the vent pipe and it is shown that such a cap is required by the building code. However, the witness who testified that there was no such cap said that he had noticed its absence five days after the accident when he was called to make an inspection as a result of an explosion caused when the mother of the children attempted to light the burner with a match. The defendant, Tedesco, says that he is certain that there was such a cap and he suggests that it might have been blown off by the explosion five days after the occurrence on which this suit is based, and which explosion occurred before the inspection was made by the witness who says that there was no such cap. At any rate, here again we say that if there was no such cap, and it is complained that its absence might cause the burner to be extinguished, we feel that the evidence by no means demonstrates that the burner was not in operation or that its going out was the cause of this tragedy.

A detailed analysis of the testimony of every witness convinces us that it has not been shown by a preponderance of the evidence that the little girl whose death resulted from drowning was first asphyxiated or rendered unconscious as a result of defects in the water heater, or by any other condition for which the defendant landlord or his insurer may be held liable. We confess our inability to say definitely just what did cause the unconsciousness which no doubt preceded the drowning and it is possible, of course, that there was asphyxiation, but to so conclude from this record would be to indulge in speculation.

It is not necessary that there be proof beyond a reasonable doubt, but it is necessary that there be a preponderance of the evidence and where, as here, there is another explanation which is at least as reasonable as is the claim of plaintiffs, we cannot allow the mere possibility to prevail.

In Orgeron v. Hourgettes, La.App., 67 So.2d 746, 747, in a somewhat similar situation in which it was claimed that a death had resulted from asphyxiation, we said:

“Under these circumstances we are unable to hold that Mrs. Orgeron’s death resulted from the asphyxiation or that her inhalation of the monoxide gas accelerated her death from the pre-existing heart ailment. If plaintiff is allowed to recover, the recovery would rest solely on conjecture.”

The judgment appealed from is affirmed at the cost of appellants.

Affirmed.

REGAN, Judge.

I respectfully dissent. It is my opinion that the defendants are liable for the death of the youngest child for the reason that factually this case is encompassed by the general rule that a civil case need not be proven beyond a reasonable doubt. My examination of the record convinces me that sufficient evidence was offered during the course of the trial hereof to reasonably prove that the child died as a result of the defective heater per se or in consequence of the defective installation thereof.

On Rehearing

McBRIDE, Judge.

In their application for a rehearing counsel for the plaintiffs, among other things, suggested that we erred in the finding of certain facts, and in order to allow plaintiffs every opportunity to point out any errors, factual or otherwise, we agreed to a rehearing in the matter.

The case has been masterfully argued and briefed, and after again studying the record very closely, we must come to the same conclusions we reached after the first hearing.

If there is liability in defendants, such would result from LSA-C.C. arts. 670, 2315, and 2322, the pertinent parts of which read as follows:

“Art. 670. Every one is bound to keep his buildings in repair, so that neither their fall, nor that of any part of the materials composing them, may injure the neighbors or passengers, under the penalty of all losses and damages, which may result from the neglect of the owner in that respect.”
“Art. 2315. Every act whatever of man that causes damage to another, obliges him by, whose fault it happened to repair it; * * *.”
“Art. 2322. The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

See Davis v. Hochfelder, 153 La. 183, 95 So. 598; Cheatham v. Bohrer, La.App., 17 So.2d 492, and Gaida v. Hourgettes, La.App., 67 So.2d 737.

In order to recover, therefore, the burden is upon the plaintiffs to make their case legally certain by proving that there was a defect in the heater in the bathroom in which the asphyxiations took place and that as a result of this defect, the child of plaintiffs met her unfortunate death. We said in our original opinion and we now reiterate that the water heater in the bathroom, which was antiquated, was defective in that it did not possess a safety cut-off valve.

Unquestionably this was a very serious defect. The record shows that the purpose of such valve is to automatically stop the flow of gas in the event the pilot light is extinguished so that there would be no gas emitted by the burners when there is no flame to consume it.

Under the circumstances as appear from the record, we can hardly conceive that the pilot light was eve'r extinguished so that unburned gas flowed into the small room for the simple reason, as we stated before, that the water heater is an instantaneous one and the moment there was no flame to heat the coils, the flow of hot water was not possible. When the members of the police force arrived at the premises some time after the accident, they found the water in the tub was still hot, and if cold water had been flowing from the heater as a result of the extinguishment of the pilot, it is an axiomatic fact that this would have manifested itself by making the water in the tub cold. The police officers say the water was extremely hot. Another fact is that the neighbor who rushed into the bathroom almost immediately after the room was broken into stated there was no odor of gas.

The expert testimony is to the effect that the component parts of natural gas, which is used in this vicinity, are largely methane and certain inert gas and a small percentage of carbon dioxide. Dr. Durlacher states that the inhalation of natural gas has no toxic effect and that persons who inhale natural gas experience nausea, vomit, and have headaches, which is about the severity of the effects. This expert pointed out that if the natural gas was of great density in the room, this could exclude oxygen and that anyone therein could be overcome, not as a result of breathing in the gas itself but because of the fact that the person is not inhaling oxygen. In other words, it is the exclusion of the oxygen which does the damage.

Dr. Durlacher -stated as an interesting fact that since natural gas has been used in the City of New Orleans, he knows of only one suicide by gas, and that in the particular case he had in mind an individual tied a plastic sheet around his head and over the gas jet and in that manner eliminated all outside air.

From the testimony of Buse, the heating expert, it appears plain to us that natural gas of sufficient density to exclude all oxygen could not possibly have entered the room for the simple reason, as stated by Buse, that the odor of natural gas will not linger unless all oxygen has been eliminated. As said before, the neighbor who rushed into the room sensed no gas odor. One policeman said there was an odor of gas,, but no mention of this appears in his report.

We are absolutely certain from the evidence before us that the child’s death under investigation did not occur as a result of escaping natural gas, and we rule that out. as a cause.

This eliminates from further consideration the absence of a cap over the top of the vent pipe, if in fact there was none. All that could have happened in such event is that the flame would have been extinguished which would have permitted a flow of unburned natural gas which was not the case.

Sight cannot be lost of the fact that the four children were in a closed room. It is true that Buse testified that the crack about the door created substantial ventilation, but with all due respect to this expert the room must have been exceedingly close. The expert evidence is overwhelming to the effect that the children could have been overcome from deleterious effects produced by confinement. Carbon dioxide is caused by combustion and carbon dioxide can come from breathing, and to either of these the asphyxiation of the children could be attributed under the circumstances.

The experts were unable to say whether the deceased child had been the subject of asphyxia, or if so what caused it, and whether this led to her death by drowning.

Frankly, we do not .know what caused the demise of the little girl, but we unhesitatingly stand firm in our conclusion that there is no evidence that a defect in the premises brought it about or was a contributing cause. Hence, plaintiffs cannot be successful in their demands. They have not borne the burden of proving their case by a preponderance of evidence. It was encumbent that they show that their child •died because of vices or defects in the premises. See Burch v. Mathson, La.App., 26 So.2d 230; Dugas v. Mayer, La.App., 179 So. 607; Castain v. Lograco, La.App., 152 So. 153; Boudro v. United States Fidelity & Guaranty Co., La.App., 145 So. 294; Potter v. Soady Bldg. Co., Inc., La. App., 144 So. 183; Cosey v. Scott, 17 La. App. 680, 137 So. 361. The happening of the accident raises no presumption that the landlord was negligent or that he failed to keep his building in repair. Boudro v. United States Fidelity & Guaranty Co., supra.

For the reasons assigned, our original decree is reinstated and made the final judgment of the court.

Original decree reinstated.

REGAN, Judge

(dissenting).

I respectfully reiterate my dissent which was attached to the original opinion of this court.


author: ROBERTS, Justice.

text:
    Leonard H. DAVIS, Appellant, v. Charles W. SPENGLER, a/k/a C. W. Spengler, Appellee.
    Supreme Court of Florida, Special Division B.
    March 6, 1957.
    John E. Mathews, Jr., Jacksonville, for appellant.
    J. Edwin Gay and Bedell & Bedell, Jacksonville, for appellee.
   ROBERTS, Justice.

The parties hereto, Davis and Spengler, were partners doing business under the firm-name of “S & D Sales Company.” A controversy arose as to the division of the partnership profits, and the instant suit was filed by the appellant Davis against the appellee Spengler for an accounting and a dissolution of the partnership. The Chancellor heard the evidence and entered a decree in favor of Spengler, finding that Davis had already received more of the partnership profits than he was entitled to “under the principles of law which justice and equity dictate should be applied,” and that there was nothing more due and owing to him from the partnership or from Spengler. He awarded the entire remaining cash assets of the partnership (some $7,900) to Spengler and dissolved the partnership. Davis has appealed.

The partnership was formed early in 1949 for the principal purpose of selling an awning manufactured by the W. L. Rives Company, a corporation in which Davis and Spengler each had a small interest. Through the joint efforts of Davis and Spengler, a sales outlet for this awning through Sears Roebuck stores was obtained; and in May of 1949, a contract was entered into between the Rives Company and the S & D Sales Company, designating the partnership as “the only recognized sales organization authorized to sell and promote the Rives awning” and declaring that “a real and vested interest accrues to both parties by this relationship”. The contract provided for the payment of a sales commission to the partnership at the rate of IS percent of the net invoiced amount of sales made to Sears stores, and 20 percent of such amount on others. The partners orally agreed to divide the commissions equally after the payment of sales expenses, and in October of 1949 a written agreement to this effect was executed by them.

No useful purpose would be served in recounting in detail the operations of the partners in their partnership and “sideline” activities. For the purpose of this discussion it is sufficient to say that, until August of 1951, substantially equal amounts of time and effort were contributed by the partners in promoting the awning sales; and they jointly engaged in another partnership venture during the remainder of 1951 and the first two months of 1952. Davis became ill sometime prior to June of 1952 and in that month was hospitalized for an operation. Thereafter, Davis contributed little or nothing to the partnership venture. He and Spengler continued to see each other frequently, on the golf course and on social occasions; and at the end of each year Spengler (who kept the partnership records at his home and made the partnership income tax return) would advise Davis of the amount of partnership profit to show on his own personal income tax return — which in each year “happened” to be exactly one-half of the amount remaining in the partnership bank account at the end of the tax year, plus previous amounts paid to Davis.

In 1954, Davis attended a stockholders’ meeting of the Rives Company and discovered that the commissions paid by the Rives Company to S & D Sales Company far exceeded twice the amount of the partnership profits received by Davis. It was stipulated that from August 17, 1950 (the date when the partnership bank account was set up) until August 31, 1954, Spengler had withdrawn or been paid $45,650 from the partnership bank account, compared with $24,388.73 withdrawn by or paid to Davis during this period. Spengler admitted that, after Davis went to the hospital and thereafter withdrew from active participation in the partnership, he had intentionally reduced the percentage of partnership profits agreed upon by them without advising Davis that he was doing so. Spengler said the main reason he didn’t tell Davis about this was because Davis didn’t ask him about it — although he admitted proposing to Davis a change in the territorial operation of the partnership, which Davis would not agree to.

As to the unequal distribution of profits made prior to August 1951, the Chancellor made various findings of fact and concluded that the unequal division had been agreed to by. Davis and acted upon by the parties. There was evidence which, if believed by the Chancellor, supported this conclusion and it will not be disturbed.

The Chancellor’s decision as to the distribution of the profits after August 1951 is another matter. As to this, the Chancellor found that Davis abandoned the partnership and refused, without reasonable cause, to perform any services in its behalf after August 1951, except for minor services performed during January and February, 1952. He concluded that Spengler was entitled “to either (1) be allowed compensation in addition to his share of the profits for the services he rendered to the partnership, or (2) make a deduction against plaintiff’s share of the profits for the time he failed to perform services and money he failed to expend for travelling on behalf of the partnership, in conformity with the rules of law set forth below.” He cited in support of his conclusion Montgomery v. Burch, Tex.Civ.App., 11 S.W.2d 545, 546 and quoted from that opinion the following:

“Mr. Gilmore, in his work on Partnership, at page 385, recognizes the rule to be that one partner is not ordinarily entitled to charge extra compensation for his services in the partnership business against his partner, but qualifies that rule as follows: ‘An exception to the general rule is recognized where the difference in ■extent or importance of the services actually rendered by the various partners was dearly not contemplated by them when ■they entered into the partnership relation. Thus, where one partner willfully violates his duties as partner by neglecting the ■business, leaving it all together to the care of his co-partner, the latter was held entitled to credit for his services in addition to his share of the profits.’ ”

We think the Chancellor properly applied the exception to the rule insofar as the sale of awnings to dealers other than Sears stores is concerned. But, as to the Sears sales, the following facts are pertinent: In September 1951, the Sears people advised the Rives Company to dispense with the services of the S & D Company insofar as sales to Sears stores were •concerned, and thereafter the Rives Company concealed from Sears the fact that they were continuing to pay a commission to the S & D Company on sales to Sears. Rives reduced the sales commission originally agreed upon between Rives and S & D and employed Mrs. Rives’ son-in-law to act as the sales representative with Sears, and S & D representatives were “persona non grata” in Sears stores. Spengler himself testified that in 1953 he visited only six Sears stores and in 1954 only three Sears stores, all of which were already selling the Rives awning, and it is not clear from the record just what these visits accomplished.

Thus, for all practical purposes the Sears account was, as described by Mr. Rives, a “captive market” upon which the Rives Company paid a sales commission to S & D ■despite the cessation of sales activities by the partnership in this respect — albeit unwillingly and, according to Mrs. Rives, upon legal advice that the contract with S & D could not be broken. In other words, the partnership was being paid for its initial activities in securing the Sears account and not for any current or future sales activities in this respect. The parties considered and treated the Sears account as an established asset of the partnership under its contract with Rives; and it was reasonable for Davis to expect, as he did, that he was receiving and would receive his full 50 percent of the partnership profit attributable to the Sears account without further effort on his part. Davis admittedly failed to carry his part of the partnership load, after his recovery from his illness, insofar as the promotion of new sales among dealers other than Sears was concerned; and, under the exception to the general rule quoted above, we will not disturb the Chancellor’s ruling that Spengler is entitled to credit from Davis’ share of the partnership profits attributable to such new sales. But under no view that can be taken of the evidence can it be held that Davis abandoned the partnership insofar as the Sears account is concerned, nor that he refused without reasonable cause to perform any services in connection with this account. Thus, there was no justification for allocating to Spengler the “lion’s share” of the sales commissions paid to S & D on account of the sales to Sears — and that is apparently what the Chancellor did.

We find no error in that portion of the decree relating to the partnership profits for the years 1949, 1950 and 1951, and that portion of the decree is affirmed. That portion of the decree relating to the partnership profits for the years 1952, 1953 and 1954 is reversed and the cause remanded for further proceedings not inconsistent herewith.

Affirmed in part and reversed in part and remanded.

TERRELL, C. J., BUFORD, J., and KNOTT, Associate Justice, concur.


author: DREW, Justice.

text:
    Warren D. HINCHEE et ux., Petitioners, v. Charles E. FISHER et ux., Respondents.
    Supreme Court of Florida, Special Division A.
    March 6, 1957.
    Paul B. Johnson and Herbert Went-worth, Tampa, for petitioners.
    William T. Fussel and Cody Fowler, Tampa, for respondents.
   DREW, Justice.

May 26, 1955, Charles E. Fisher and his wife, Renee R. Fisher, hereinafter called the Fishers, filed their amended complaint against Warren D. Iiinchce and Jean P. Hinchee, his wife, hereinafter called the Hinchees. The complaint alleged that the Fishers in 1953 were the owners of a lease containing an option to purchase said real estate located in Hillsborough County, Florida and that at said time they, the said Fishers, were in a precarious financial condition and were having difficulty meeting the payments on the lease. It is alleged that the Hinchees, friends of the Fishers, suggested to the Fishers that they assign the lease to the Hinchees and that they would proceed to work out a refinancing of the entire property and, when such had been accomplished, would reconvey the same to the Fishers. The complaint then alleges the details of the transaction and of the events which took place in connection with the refinancing and further alleges that after the same was arranged and worked out, the Hin-chees refused to reconvey the said property to the Fishers. The Fishers in the complaint admitted owing the Hinchees some $4,500 and alleged that “plaintiffs now stand ready, willing and able and do tender and offer to pay” such sum and any other amounts found to be due the Hin-chees. Such sum of money, however, was not paid into the registry of the court as had been theretofore ordered by the trial judge in the same order he had entered allowing the amended complaint, the allegations of which we have narrated, to be filed. The case lay dormant in the trial court for about eight months and then on February 1, 1956, pursuant to a motion made by the defendants Hinchee, an order was entered by the trial court “that the motion to dismiss the amended complaint be and the same is hereby granted.” The basis of the motion granted was the failure of the Fishers to pay into the registry of the court the sum of money which had been required by the trial judge in the previous order. It is pertinent to note that the trial court ordered the payment of said sum into the registry of the court within ten days and it was some eight months thereafter before the complaint was dismissed for the failure to do so.

Certiorari was taken to this Court from the order last above mentioned but on motion duly made here the certiorari proceedings were dismissed by us on May 30, 1956 for the reason the order sought to be reviewed was a final decree reviewable only by appeal. Fisher v. Hinchee, Fla.1956, 88 So.2d 640.

July 12, 1956 the Fishers filed another complaint against the Hinchees. A motion to dismiss the complaint was promptly made by the Hinchees on numerous grounds, one of which was that the cause of action alleged was the same as that contained in the former suit, the parties were the same and that, therefore, the plaintiffs were estopped from maintaining said action by the doctrine of res adjudicata. The trial court denied the motion to dismiss and this action is now before us on certiorari.

While the phraseology of the complaint in the latter action differs to some degree from that in the former, we find that the cause of action is the identical one and the litigation is between the same parties. The complaint in the second suit charged defendants with the same conduct, under the same alleged agreement as the first. The prayer for relief in the first suit requested the court to require a conveyance of the real estate to plaintiffs, or to “impress a lien or constructive trust upon said property for the amount of damages this Court may determine shall be due said plaintiffs,” and “grant such other relief as it may deem meet and proper.” This prayer and the statements in the body of the first complaint are broad enough to include the relief requested in the second complaint which drops the specific request for direct conveyance, but retains an impressed trust concept.

In Gordon v. Gordon, Fla.1952, 59 So. 2d 40, 43, in discussing the question of res adjudicata we said:

“We have held as a general proposition that when a final decree or judgment of a court of competent jurisdiction becomes absolute it puts at rest and entombs in eternal quiescence every justiciable, as well as every actually adjudicated, issue. This pronouncement is considered by us as controlling only when res adjudicata is the proper test. By this we mean it is not controlling except in an instance wherein the second suit is between the same parties and is predicated upon the same cause of action as was the first.”

In Hay v. Salisbury, 1926, 92 Fla. 446, 109 So. 617 we held that where the essential elements of the cause of action are the same in both cases, res adjudicata applies to preclude the second suit. The fact that an unjust enrichment type of relief is made more explicit in the second complaint does not alter the conclusion that for purposes of applying res adjudicata the second complaint is equivalent to the first. See Murphy v. Murphy, 1942, 151 Fla. 370, 10 So.2d 136; Caldwell v. Massachusetts Bonding and Ins. Co., 1947, 158 Fla. 677, 29 So.2d 694. Broadly stated, the purpose of the doctrine of res adjudicata is to prevent the relitigation of matters and to enforce the court’s power to finally determine legal interests. It is the latter aspect of the doctrine which is operative in this case.

In the original suit the trial judge dismissed the complaint on defendants’ motion, because plaintiffs failed to comply with his order requiring them to pay into court the money alleged to have been tendered by them. The dismissal is of the type provided for in Rule 1.35(b), 1954 Rules of Civil Procedure, 30 F.S.A.: “For failure of the plaintiff to comply with any order of court, a defendant may move for dismissal of any action or of any claim against him. * * * ” “Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision * * * shall operate as an adjudication tipon the merits * * (Emphasis supplied.)

An “adjudication upon the merits” has the effect of establishing a “final judgment” for purposes of appeal (e. g. Howard v. Ziegler, 40 So.2d 776 [Fla.1949]), and will supply a foundation for the application of the doctrine of res ad-judicata, e. g. Armstrong v. County of Manatee, 1905, 49 Fla. 273, 37 So. 938. Rule 1.35(b) provides that dismissals such as the one involved in this case “shall operate as an adjudication upon the merits.” Thus, the dismissal of the first complaint in the present controversy was a “final judgment” reviewable only by appeal, and such was the effect of our order in Fisher v. Hinchee, supra. Since the judgment has not been timely set aside on appeal or vacated, the doctrine of res adjudicata applies t.o prevent another action upon the same matter. This rule must be considered as a part of the new scheme of pleading introduced by the 1954 Rules of Civil Procedure. “A judgment on the merits does not require a determination of the controversy after a trial or hearing on controverted facts. It is sufficient if the record shows that the parties might have had their controversies determined according to their respective rights if they had presented all their evidence and the court had applied the law.” Olsen v. Muskegon Piston Ring Co., 6 Cir., 1941, 117 F.2d 163, 165. Since the rule created the policy determination it is not necessary to enter into an academic discussion of legal philosophy. We point out, however, that the policy for terminating, litigation in one proceeding is the major force behind this and similar rules; and that adequate safeguards protect less sure-footed litigants under the provisions allowing liberal amendment, voluntary non-suits, transfers of actions and timely appeals.

The effect of Rule 1.35(b) in connection with the subject under discussion has not been considered before in this jurisdiction. (But Cf. Hassenteufel v. Howard Johnson, Inc., of Florida, Fla. 1951, 52 So.2d 810, decided before the rule became effective). We have found no clear, informative discussion in the Federal courts where substantially the same rule is in use. However, there are two Federal opinions which are closely analogous and which support the foregoing- interpretation.

In Fischer v. Dover S.S. Co., Inc., D.C., E.D.N.Y.1954, 121 F.Supp. 528, 530, affirmed 2 Cir., 1955, 218 F.2d 682, a complaint was dismissed because the plaintiff failed to comply with an order granting a motion for dismissal of the complaint unless the plaintiff appeared by a certain time for a physical examination requested by the defendant under Rule 37 of the Federal Rules of Civil Procedure, 28 U.S.C.A. A second suit on substantially the same cause of action was dismissed on the ground that the dismissal in the first action was an adjudication upon the merits. Citing the equivalent Federal rule, rule 41(b), Federal Rules of Civil Procedure, the court held: “The said judgment of dismissal, though entered without a trial had the same effect and barred a subsequent action for the same claim.”

In American National Bank & Trust Company of Chicago v. United States, 1944, 79 U.S.App.D.C. 62, 142 F.2d 571, 572, the circuit court ruled that a dismissal for want of prosecution was on the merits so as to prevent a second suit under the doctrine of res adjudicata. The court interpreted Rule 41(b), Federal Rules of Civil Procedure, to provide that where “(1) the dismissal was on the court’s motion, (2) by rule 41(b) such a dismissal, unless otherwise specified in the order, operates as an adjudication upon the merits, and (3) the court did not otherwise specify in the order, the dismissal necessarily operated as an adjudication upon the merits” [in such manner as to preclude a second suit on the same matter.]

Respondent relies heavily on the case of Universal Const. Co. v. City of Fort Lauderdale, Fla.1953, 68 So.2d 366. Not only was this case decided before the adoption of the new rules in 1954 but the underlying facts which prompted us to hold as we did in that case are not present here.

Certiorari is granted and the questioned order is quashed with directions to dismiss the complaint.

TERRELL, C. J., and ROBERTS and THORNAL, JJ., concur.