text:
    CLARKE v. SHAFFETT.
    No. 3041.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 5, 1948.
    Rehearing Denied Nov. 10, 1948.
    Writ of Error Refused Dec. 13, 1948.

      Franz Joseph Baddock, of Baton Rouge, for appellant.
    David E. Cooley, of Baton Rouge, for appellee.
   LeBLANC, Judge.

In his petition, plaintiff sets out that at the request.'of one.Sam Shaffett, he furnished certain plumbing fixtures and labor in the construction of a house situated, on a lot of ground in Buffington Heights in East Baton Rouge Parish which the said Sam Shaffett had a written agreement, dated July 29, 1946, to purchase from Marion B. Scobell and Bradley C. Mitten-dorf. The reasonable value of the fixtures and labor is stated to be the sum of $508.65.

He then alleges that .he and Sam Shaffett entered into a written agreement, dated June 26, 1947, to the effect that he would furnish all labor and material to install the said fixtures for the sum of $381 and that the house was completed on or about October, 1947.

Next he alleges that on October 28, 1947, Sam Shaffett- assigned all his rights in the contract which he had to purchase the lot of ground, to the defendant herein, Barbara Shaffett, by an endorsement signed by him on the back of the said contract and on the same day the said lot together with all the improvements thereon was transferred to the said Barbara Shaffett by a recorded act of sale signed by Marion B. Scobell and Bradley C. Mittendorf, as vendors.

He avers that he has made innumerable requests for payment for the plumbing material and labor furnished by him but has never been paid for any part of the same. He does not allege on whom any such demands were made.

Finally, he alleges that Barbara Shaffett had actual or constructive knowledge that he had not been paid for his material and labor when she secured title to the property and that because of his having furnished the same she has been unjustly enriched at his expense.

He prays for judgment against the defendant, Barbara Shaffett, in the sum of $508.65 and, in the alternative, in the event the court should determine that Sam Shaf-fett was the authorized agent of Barbara Shaffett, he asks for a sum representing the' agreed contract price for the fixtures and labor, plus a reasonable value of the additional labor and materials furnished. Further he prays that he be granted a lien on the lot of ground described as being Lot' #9 in Buffington Heights, in the amount of the judgment rendered in his favor.

In a supplemental petition plaintiff alleges that he has reason to believe that the defendant, Barbara Shaffett, is an uneman-; cipated minor and he asks that a tutor ad hoc be appointed to represent her in this proceeding. The, district judge appointed David E. Cooley, attorney at law, as her tutor ad hoc and upon his having qualified and having accepted service, he filed an exception of no right and of no cause of action to the plaintiff’s petition. Upon trial of these exceptions they were sustained in the district court and judgment was rendered against the plaintiff as in case of non-suit and further ordered him to pay the fee of the tutor ad hoc in the sum of $35, taxing the same as costs. Plaintiff has perfected this devolutive appeal and the tutor ad hoc of the defendant minor has answered the appeal asking for an additional fee for his services in representing her before this court.

It appears as though the plaintiff’s petition presents three separate and distinct demands: First, he apparently wants a judgment against the defendant on the contract alleged by him, which he entered into, not with her, but with Sam Shaffett, who is her father, for the full amount he claims, on the ground that when she secured title to the property, she had actual or constructive knowledge of this contract which was one enuring to the benefit of the property she acquired and therefore she has become unjustly enriched to that extent, at his expense, all of which is forbidden under the equitable principles stated in Article 1965 of the Revised Civil Code. Second he asks, in the alternative, that if he cannot recover under the contract that he recover on a quantum meruit, the value of the plumbing material and labor put out by him on the property. This, he seems to contend also he can recover on the ground that the benefits resulting from his material and labor have enured to the property’s enhancement in value and has enriched the defendant who is now the owner of that property. Third, he asks for a lien on the lot of ground on which the building is constructed and, although he does not make any allegation in his petition with respect to any lien, we take it that it could only be a lien, if he has any, arising out of Act No. 298 of 1926 which is known as the Materialman or Builder’s Lien.

In his argument before this court, and in brief, counsel for plaintiff stressed his demand on the ground of unjust enrichment more than on any other point. Relief in any case on that ground is undoubtedly one that is granted under equitable principles which, of course, are very narrowly limited in this State. Under the provisions of Article 21 of our Civil Code, “in all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity.” (Italics ours.) The doctrine involved, which is incorporated in Article 1965, R.C.C., is one which, as appears f-rom the very terms of the article itself, is founded on equitable considerations, because it starts out by stating that “the equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another.” The Article then expressly stipulates that it is only when “the law of the land, and that which the parties have made for themselves by their contract, are silent”, that the courts must apply the principles enunciated “to determine what ought to be incidents to a contract, which are required by equity.”

In this case plaintiff himself alleges a contract with a certain party to furnish certain material and to do certain work at a fixed sum. He sets out the circumstances under which that contract was entered into, these circumstances being that the party with whom he contracted, merely had an agreement to purchase the property on which the labor and material was to be furnished and which agreement is not alleged to have been recorded. He then avers that he performed under the contract and when he completed the job, the party with whom he had contracted, assigned his rights under the agreement to purchase the property, to the defendant whom he is now seeking to hold. He does not allege that this assignee defendant assumed any payments that may have been due him for his work under the contract and in the absence of the contract being recorded, she had a perfect right to take over the property as she did, free of any claims or encumbrances. We might say at this point, however, that we do not see how she could have taken title to the property, for being a minor at that time, she lacked the capacity to enter into any kind of legal contract unassisted by a legal representative.

Be that as it may however, in the absence of an assumption on the part of the defendant, in writing, or in any manner, as far as the petition shows, she was not liable under the law for debts entered into by the assignor of the contract under which she secured title to the property. Whilst it may be that the property which she bought received some benefits from the labor performed and the material furnished by the plaintiff, in the absence of any recorded knowledge of a claim for such material and labor, the law does not make her liable for any part of it.

There is therefore, a good bit of law involved in the issue that is presented and there was also a definite law established between the 'plaintiff and the party withwhom he contracted. There is nothing silent about these matters and, under the very terms of the article of the Code relied upon, we do not see how any of the equitable principles provided therein can be invoked and applied in this case.

Even under any equitable doctrine it would seem that there must be some privity of contract between the parties and here certainly there is nothing in the plaintiff’s petition which indicates in any manner whatsoever that there was any privity of contract between himself and the defendant, Barbara Shaffett, against whom he is prosecuting his claim. We observe that even in his allegation relating to the innumerable demands or requests he made for payment, he does not allege on whom he made them and we would infer from the other allegations of the petition that if he made any they were made against the party with whom he actually contracted, Sam Shaffett, who is not a party to the suit.

All., that we have stated with reference to the plaintiff’s demand on a contract applies to his alternative demand made on a quantum meruit. The defendant not being a party to the transactions that took place between the plaintiff and her father, Sam Shaffett, cannot be held on a. quantum meruit any more than she could be held under a contract. See Doll v. Firemen’s Charitable & Benevolent Association, La.App., 8 So.2d 156, and authorities therein cited, particularly Succession of Kernan, 105 La. 592, 30 So. 239.

The remaining ground on which plaintiff’s claim is based is the lien which he prays to have enforced against the lot of ground and the building constructed on it. As we have already indicated the only lien he could claim would be the one arising under Act No. 298 of 1926 which is the Builders & Materialman’s Lien.

In discussing this phase of the case, we must consider, in the first place, that the law regarding liens is stricti juris. The one claiming a lien must be able to point to the very law under which he claims to exercise his privilege and in all cases it is necessary for him to have strictly observed the formalities prescribed in the law ■granting such lien. Just a casual reading of the act under which a lien may have arisen in this case is sufficient to show that there was no intention ever, on the part of this plaintiff, to comply with its provisions. There is no pretense that he had any more than a verbal agreement, such as he alleges, with the party- who had a contract to purchase the property on which the improvements were to be made, and under the terms of the act, in order to protect his lien, it was necessary, primarily, that the contract be reduced to writing and signed. More important still it was necessary that it be recorded in .the office of the clerk of court or the recorder of mortgages of the parish wherein the work was to be carried on. Failing in these essential particulars, it was impossible for the lien to exist. When the transfer of the property was made to Barbara Shaffett, the defendant, there was nothing of record in the conveyance records of the Parish of East Baton Rouge to prevent her from taking title to the property free from any encumbrances whatsoever. The law gave her the right to rely on the face of the public records in acquiring the property and whatever actual or constructive knowledge she may have had of any other transactions or any other claims relating to the property, could not affect her rights in or title to the property. If the plaintiff had alleged that there was some sort of collusion between Sam Shaffett and his daughter to place this property in her name in order to defeat any claims that may be bearing upon it, he would probably have had some Cause of action to set aside the sale but that would be an entirely different remedy from the one which he is trying to enforce in this proceeding.

Whilst it is true that in Act No. 298 of 1926 which accords a lien to materialmen there is a provision, as appears by Section 11, to the effect that in certain cases the lien may operate against one who is not the owner of the land upon which the work is done, we do not believe that any of the circumstances under which the lien thus operates, appear in this case. As was stated by the Court of Appeal for the Parish of Orleans, in the case of Jackson Homestead Association v. Zimmer, 16 La. App. 647, 134 So. 126, 127, “all that was intended by the section quoted (Sec.ll) was to give to the furnisher of materials the right to a lien effective only to the extent of the right of the tenant or lessee in or to the property. The mere fact that one person -holds an unregistered and unrecorded right to purchase the real estate of another does not give to a third person who furnishes material any right against another innocent party purchasing from the owner, or .lending money on the property on the faith of clear certificates.” The last part of the statement quoted applies particularly to the facts in this case because Sam Shaffett only held an unrecorded agreement to purchase the property, and under that ruling, Barbara Shaffett, an innocent party purchasing the property from -the owners, on a record of conveyance which showed that title to the property was clear, cannot h-ave the lien operate against her as the present owner.

We do not know on what basis the judgment appealed from was one as in case of non-suit. Under our view of the case as it is presented against this defendant we think the judgment should be one of dismissal and it will accordingly be amended in that respect.

The curator ad hoc to the defendant minor is also entitled to an additional fee for services rendered in representing her before this court, as prayed for in the answer to the appeal. A fee of $35 additional will be allowed.

For the reasons stated it is ordered that the judgment appealed from be amended by dismissing the plaintiff’s suit and rejecting his demand against the defendant, in full, and by increasing the amount allowed the curator ad hoc as a fee for representing the defendant by the sum of $35 and taxing the same as costs against the plaintiff, and that as thus amended, the said judgment be affirmed. ' The plaintiff, appellant to pay all other costs of this appeal.


source: Caselaw Access Project

author: PER OURIAM.

license: Public Domain

text:
    DOLL v. DEARIE et al.
    No. 19087.
    Court of Appeal of Louisiana. Orleans.
    Oct. 18, 1948.
    See, also, 37 So.2d 608.
    Marion G. Seebe-r and Delvaille H. Th-eard, both of New Orleans, for plaintiff-appellee.
    Fred G. Veith, of New Orleans, for defendants-appellants.
   PER OURIAM.

Plaintiff-appellee moves for a dismissal of this appeal. H-e sued defendants Melville J. Dearie and three others to quiet a .tax title, and recovered judgment; the defendants were cast for the costs of court. Subsequently, plaintiff brought a rule on only one of the defendants, Melville J. Dearie, which directed him to show cause why the court costs should not be taxed. This rule was made absolute and the costs -were fixed at $61.30. All four defendants were allowed a devolutive -appeal from the judgment which quieted the tax .title; they furnished a proper appeal bond -and perfected their appeal. They wer-e also al-.lo-wed a dev-olutive and suspensive appeal from the judgment taxing costs, and it is this appeal which plaintiff-appellee seeks to have dismissed.

Defendants, were ordered by the -court -below t-o furnish an appeal bond for $100.-00 in support of the devolutive appeal, and ■to furnish a bon-d according to law for support of the suspensive appeal. They furnished only one bond, and that for $100.00.

Dismissal is asked on the grounds (1) that the judgment .taxing costs is only ■ against Melville J. Dearie, and the three other defendants had n-o interest such as would entitle them to appeal therefrom, and (2) that the bond for $100.00 is insufficient to support the suspensive appeal, for the reason that the suspensive appeal bond should have been in the amount required by law, i. e., exceeding- by one-half the amount of the costs taxed.

We are of the opinion that the codefendants of Melville J. Dearie, although they were not made parties to the rule to tax costs, nor cast in the judgment, are interested in it, and they have a right of appeal. They, together with Melville J. Dearie, are liable solidarity for the court costs and are necessarily vitally interested in the amount taxed. According to the provisions of C. P. art. 571, the right of appeal is given not only to those w-ho were parties to the cause in which a judgment has 'been rendered against them, but also to third parties showing that they have been .aggrieved by the judgment.

A bond for $91.95, timely filed, would have been sufficient to support the appeal. The bond , for $100.00 was timely filed and hence can avail; it exceeds by one-half the amount of the judgment appealed from and is also for the amount fixed by the court for the devolutive appeal.

When an appellant obtains an order for both a suspensive and devolutive appeal it does not mean that there are two appeals, but merely expresses the intention that if, for any reason, the appeal should not stay execution of the judgment, it shall nevertheless afford the appellant an opportunity to reverse or amend the judgment. Lafayette v. Parr, 162 La. 385, 110 So. 624. Under the articles of the Code of Practice, it is not required that either the petition, motion for appeal, or appeal bond shall state whether a suspensive or devolutive appeal is applied for. The character and amount of the bond and the time at which it is filed determine the character of the appeal. Grant v. Succession of Grant, 159 La. 535, 105 So. 611. And where a suspensive and devolutive appeal have been taken, the one bond will serve for a suspensive appeal if filed in time; if not, then for a devolutive appeal. Bernheim v. Pessou, 143 La. 609, 79 So. 23; Cortez v. Cortez, 175 La. 179, 143 So. 41.

We perceive no merit in the motion to dismiss, and it is denied.

Motion denied.


author: PER CURIAM.

text:
    POLIZZI v. THIBODAUX.
    No. 18795.
    Court of Appeal of Louisiana. Orleans.
    Oct. 5, 1948.
    For former opinion see 35 So.2d 660.
    Phil Trice, of New Orleans, for plaintiff and appellant.
    Sydney J. Parlongue, of New Orleans, for defendants and appellees.
   PER CURIAM.

Our opinion and decree herein was handed down on June 7th, 1948. On June 28th, 1948, defendants-appellees petitioned for a rehearing.

The application comes ' toó late. The judgment became final and executory on the fifteenth calendar day after rendition, and it was only during the interval that the parties in interest had the right to apply for a rehearing. See Act No. 16 of 1910, § 1, Dart’s Gen.Sta't. § 1450.

Accordingly, the application for rehearing is not considered, having been filed too late.

Application for rehearing not considered.

REGAN, J., takes no part.


author: LE BLANC, Judge.

text:
    BLACK v. AMERICAN MUT. LIABILITY INS. CO. et al.
    No. 3032.
    Court of Appeal of Louisiana. First Circuit
    Oct. 5, 1948.

      Percy & Wirtz, of Baton Rouge, for appellant.
    Brcazeale, Sachse & Wilson, of Baton Rouge, for appellees.
   LE BLANC, Judge.

This is a suit for damages for personal injuries brought by a lady who claims to have sustained a 'serious injury to her right leg when she fell after she had left her seat in a moving picture theater owned and operated by the defendant Capitol Theaters, Inc., in the City of Baton Rouge. Her total demand is for the sum of $5117 including physical pain and suffering, mental anguish, loss of wages and doctor and other medical expenses. She also sues the American Mutual Liability Insurance Company as the liability insurance carrier of the Capitol Theaters, Inc.

In her petition she very accurately described the interior of the theater which is known as the Hart Theater, situated on Convention - Street, the entrance being on the north side of that street. She alleges that when a person enters he walks in a northerly direction through the lobby and then turns to his left and walks down one of the passage ways leading from the lobby to the seats in the theater. There are two such passage ways, one on the extreme northern portion of the theater and the other on the southside of the lobby and there are, towards the western part of the theater, facing the screen, three separate tiers of seats, a large one in the center and the other two being smaller and each •separated from the center one by a passage aisle. In the center, tier of seats, the last two rows are so constructed that the floor level in front of each is higher than the floor level of the passage aisle which separates the center from the northern tier and the floor level in front of t-the last two rows of seats is approximately six inches higher than the floor level in the passage aisle. Consequently one desiring to sit in one of the seats in the last rows must step up from the aisle passage way in order -to reach the floor level to which the said seats are attached.

Plaintiff alleges that at about 3 :30 p. m. December 31, 1946, she purchased an admission ticket at the said theater for the purpose of viewing the picture then being shown and that after entering,, she walked to the northern end of the lobby and entered and walked down the passage way which is extended westward from the lobby towards the rear of the aforementioned tiers of seats and upon reaching the second row of said seats she seated herself in the third seat south from the northern passage way and consequently was in the second -to last row of seats in the center of the theater. She alleges also that the distance between the seat that she was occupying and the back of the seat in the row immediately in front is such that one cannot walk between the two rows of seats without experiencing great difficulty, and that at the time she seated herself the theater was very dark and visibility was very poor.

She then alleges that after having seen the picture which was being shown, at approximately five or five-thirty o’clock, she arose from her seat and started to leave by way of the northern passage aisle in the theater. That the seat immediately next to1 hers was occupied and as she attempted to step into the northern aisle the theater.was very dark and visibility poor and she was unaware of the fact that the s#id passage aisle floor level was lower than the level she was on and she was thrown violently into the aisle injuring her right leg. She avers that she saw no lights burning in the vicinity of her seat which would warn anyone of the difference in the level between the two floors.

■She alleges that the cause of her fall was the negligence of the Capitol Theaters, Inc., its employees, agents or servants, in having the passage aisles constructed in such manner that the floor level of the aisle was lower than the floor level of the platform to which the seats were attached and in allowing the difference in' level to exist without placing any warning, or in failing to maintain such warning at all times. That they knew or should have known of that difference in the levels and knew or should have known that it was not discernable by its patrons, and ■that they also knew or should have known that patrons would fall as a result of that difference unless adequate warning was given of the condition existing.

To her petition both defendants jointly filed an exception of no right or cause of action which, upon being heard by the trial judge, was sustained by him and in a judgment subsequently rendered, her suit was dismissed and her demand rejected at her costs. From that judgment she has taken this devolutive appeal.

The point at issue in the case involves the duties of the operators of a theater, and especially those of the operator of a moving picture theater. We do not think that there is much, dispute with regard to what his duties are in respect to his patrons and invitees who attend the exhibitions that are offered to the public in his theater and the serious question in this case, as we understand it, is whether the operator of the theater should be relieved from liability as a matter of law, on the allegations made in the plaintiff’s petition, or whether, taking all of her allegations to be true, she should not be permitted to offer proof in support of them, with the idea that from such proof, some negligence might appear on the part of the defendant.

The trial judge sustained the exception of no right or cause of action because he found the case of Givens v. De Soto Building Corp. et al., 156 La. 377, 100 So. 534, controlling. The criticism made of his ruling on that point lies principally in the ■fact that that case was decided by the court only after a trial o-n the merits. The trial judge however also referred to the case of Suggs v. Saenger Theatres, Inc., 15 La.App. 142, 130 So. 817, which he did not 'interpret to be in conflict with the Givens case, and it is to be observed that the Suggs case was disposed of on an exception of no cause of action.

Counsel for plaintiff stresses the point that if we accept all the allegations of fact made in the petition as being true and correct, that the same express a cause of action. Whilst we agree with that proposition as a general rule, it is also the rule that even though a plaintiff would ■be able to prove all that is set out in his or her petition and, notwithstanding the proof made under those allegations, he or she could still not recover, an exception of no cause of action is good and should be sustained. Reading all of the allegations made in the plaintiff’s petition in this ■case, in the light' of allegations of a similar nature made i-n the numerous cases ■like it in which the claims of the plaintiff were denied, it strikes us that the latter rule which we have just referred to can well be applied in this case and the exception sustained.

After all, as stated, the matter resolves itself into what are the duties and obligations, under the law, of owners and operators of such places of amusement with regard to their patrons and obviously if these, duties are properly observed by them, they have fulfilled, their legal obligations towards their patrons and are not liable for any injuries they may sustain while in the theater. It is definitely established that operators of such places of amusement are not the insurers of the public nor of their patrons.

We find the law prescribing the duties of operators of such places well expressed in American Jurisprudence Vol. 52 p. 290, at Sec. 46. It is there stated as follows: “Theater and public amusement owners and operators are under the legal duty to their invitees to exercise due care, commensurate with the circumstances, to put and maintain their premises and instrumentalities, and all parts thereof to which persons lawfully present may go, in a safe condition for the uses for which they are intended and designed. Failure of an owner or a proprietor to perform this duty may constitute negligence which renders him answerable in damages to one who suffers injury as a proximate cause of such negligence, if the injured person did not assume the risk of the injury, or contribute to the injury by his own negligence.”

At Sec. 47, it is stated: “It is the general rule, of almost universal acceptance, that an owner or proprietor of a theater or public amusement is bound to exercise a degree of ordinary and reasonable care for the safety and protection of his patrons — the degree of care that would be exercised by an ordinarily careful and prudent man in the same position and circumstances. Generally speaking, this obligation is met when the owner or proprietor makes the premises and instrumentalities as little dangerous as reasonable care can make them, having regard to the method and contrivances necessarily used in conducting such a place, and, it has been said, to the activities and conduct of invitees using such place and instrumentalities in'the manner which they are ordinarily used for the purpose for which they are designed and intended. Such degree' of care is measured by the conduct of the average man, not that of the cautious man of more than average prudence.” Further on it is stated that “it is clear that the owner or proprietor of a theater or public amusement is not an insurer of the safety of his patrons; nor is his duty of care and responsibility '■the same as that of a common carrier of passengers for hire, although in some decisions certain types of public amusement ■have been brought within the rule applicable to such carriers.”

With regard to the construction of the building or premises, at Sec. 49, the law is stated as follows: “One who operates a theater or public amusement is under duty to use ordinary and reasonable care in the construction, equipment, and management of it, having regard to the character of entertainment given and the customary conduct of persons attending such entertainments. * * * In the absence of statutory requirement, however, an owner or operator of a theater is not required, by his duty of due care, to make every place which patrons may use absolutely safe in all circumstances and conditions, and is not charged with liability for everything which may conceivably be regarded as a defect of construction or arrangement. Tims, a step from the aisle of a theater to the floor level w'here seats are situated, va/rying from three and one-half to six and one-half inches, adjoining the space between the back row and the row immediately in front, has been held not to constitute a structural defect z&hich will support an action for injury to a patron. The raising of seats in a motion picture theater above the level of the aisles has been held not to be a defect of construction which justifies recovery against operators of the theater for injury to a patron sustained in stepping from the level of the seats to the aisle in the semi-darkness of the theater.” (Italics ours.)

We are impressecl with the thought that in the italicized Statement with regard to the negligence charged against the defendant theater owner in this case, in constructing the seat arrangement -in its theater by .allowing a difference of approximately ‘ six inches between the aisle floor ■level and the platform to which the seats are attached, we have an expression of the ■rule on that particular point which definitely applies and which, in our opinion, supports the ruling of the trial judge on that phase of the exception. Comparing the language of plaintiff’s allegation charging the particular act of' negligence against the defendant, in having constructed the passage aisle in which she fell, in such a manner that the floor level of that aisle was lower than the floor level in front of the seat from which she had emerged, the difference -being six inches, as also alleged, with the language in the statement just quoted, that a variation -in the level between two such floors of even as much as six and one-half inches does not constitute a structural defect which will support an action such as the one she has brought, we are bound to note the close similarity in the two situations presented and the law being that under such a situation an action for injuries to a patron cannot be supported, we do not see why the defendant in this case should be forced to the necessity of letting the plaintiff adduce proof of all that she has alleged since she could not possibly recover.

However, we do not have to rely only on the statement from the authority we have quoted on this point, for that seems to be exactly what was 'held by the Supreme Court of this State in the Givens case [156 La. 377, 100 So. 535], already referred to. -After considering the testimony which .had been, adduced before the trial court in that case, notwithstanding that, i-t had the case before it on the merits, the court said this: “But we need -no evidence to satisfy us that it is not per se faulty construction to place the seats of an auditorium or theater on a higher level than the a-isles between them; such an arrangement has advantages which are obvious, especially where there is constant coming and going 'through the -aisles while performances are in progress.”

Coming now to what we take to be the -other charge of negligence aimed at the defendant- theater owner, that is, permitting such a condition of construction to exist without placing a warning in the difference between the floor levels, which we understand to mean that the particular spot in the theater was not sufficiently lighted, we refer again to American Jurisprudence, same volume, .at page 295, Sec. 51, where it is stated: “It is a general rule that 'the proprietor of a motion picture 'house must use ordinary and reasonable care for ‘the safety of patrons with respect -to lighting conditions within the theater and in portions thereof, such as steps, aisles, rest rooms, and the like, provided by him for the use, comfort or convenience of patrons, or ‘to which they may properly go as invitees/’ Further' in the same section, it is stated: "Where a patron wens injured m attempting to leave his seat m a theater, it has been held that lighting which was sufficient to enable him to enter safely and find Ms seat was sufficient to enable him to depart safely, and to relieve the proprietor from liability for his injury. It has been held that the proprietor of a motion picture theater is not negligent in failing to light the floor of the theater at a point where there is a change of level between the seats and the aisle, especially where no patron has mffered injury at siteh point althoi^gh thousands have traversed it * * *. In determining what constitutes due care in the lighting of motion picture theaters, two conflicting factors are' t-o be considered: the need for sufficient light t-o enable patrons to find or -leave their seats during the -exhibition of a picture, and- the" need for sufficient darkness for the 'effective showing of a picture without -eye-strain to those observing it.” (-Italics ours.)

Let us now take' those statements of what the law is and apply the language to the allegations charging negligence on that point to the defendant theater owner in this case. In the first place we - find the plaintiff alleging in Art. 13 of her petition that when she seated herself, “the interior of the said "theater was very dark and visibility was- very poor.”" According to further allegations she remained so seated for approximately' two hours and then, in Art. 16, she -alleges that when she attempted to step out into the aisle after having left her seat “the interior of said Hart Theater was dark and visibility poor and she was unaware -of the fact that the passage aisle fl-oor level was lower than the floor -level she was on.” Further she -alleges that she saw no lights burning in the vicinity -of where she fell which Would warn anyone of the difference in the floor level. That she saw no lights herself does not necessarily mean that there were no lights.

But, under the statement of the law, as we have just seen, the proprietor -of a moving picture theater is not negligent merely in fail'ng t-o light the fl-oor of his theater at - a point where there is a change 'of level between the seats and 'the aisle. That seems to he based on the fact that- thousands of people enter such theaters daily and so very few, apparently, are injured. More important still, ft seems to be -based on the very -nature of the business of operating a moving picture -theater, which, as we can -very well take judicial cognizance of, cannot be operated where light is too strongly diffused. That proposition is distinctly stated in the case-of Givens v. De Soto Building Corp., supra. In fact -it is stated a little more strongly and favorably on -behalf -of the theater -ow-ner becaus-.e this is the language used: “Moving pictures, as we have said, require . some degree of darkness; nevertheless such theaters -are never so -dark that -one may not see persons and -objects around him, which -become quite distinct aft-er -a while spent in the .semidarkness. And there is no reason that -we know of, or shown by the evidence -in this case, why persons who have -been in one of these theaters -f-or an hour or so cannot see the floor on which they walk; nor -had defendant (the theater owner) , any reason -to suppose 'that any one would fail to do so.” In the -present case, -plaintiff, as we have -pointed -out, first -alleged that when she seated herself, the interior of the theater was “very dark and visibility was poor.” That was -at a time when she had come from either broad daylight or from more powerful light in the lobby of the theater into this strong darkness where visibility was poor. Under the reasoning of the .Supreme 'Court in the Givens case, which is -thoroughly -sound, if she had occupied her seat in th-e theater for two hours, her -eyesight necessarily had become accustomed to the darkness and to the kind of visibility that existed, and therefore she should have been more capable of seeing her way from her seat than at the time she entered -it.

-Making a comparison again, between what the law -is as stated in the authorities cited, and the allegations of plaintiff’s petition on this charge of negligence against the defendant theater owner, we are of the -opinion that even if she proves everything that she has alleged in her petition on this point, she still could not recover because there is no negligence ■on the part of that defendant.

In brief before this court, counsel for plaintiff invoke the rule of “momentary forgetfulness” which is sometimes -applied -in the law of negligence and refer to -the case of Gustine v. Big Chain Stores, Inc., La.App., 180 So. 852, 854, in.-which that doctrine is discussed. As pointed out in the authority c-it-ed -in that case, th-e rule contemplates that the forgetfulness of a danger b-y which a person may be excused of his negligence is one that is induced by “some sudden and -adequate disturbing cause.” We -find nothing whatever in the record in this -case from which to infer that -plaintiff’s forgetfulness, if any, of the difference -between -the floor levels, was induced 'by any such cause and for that reason we hold that the -rule cannot be -applied. ’

The judgment appealed -from properly disposed of the issues presented in the case and for th-e reasons 'herein stated,' it -is hereby -affirmed at the -costs of the plaintiff, appellant herein.