author: ICENNON, Judge.

text:
    ALLEN v. SHREVEPORT THEATRE CORPORATION.
    No. 7393.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 28, 1949.
    Rehearing Denied Nov. 23, 1949.
    .Paul R. ■ Mayer, Shreveport, for appellant.
    Irion & Switzer, Shreveport, Harry A. Johnson, Jr., Shreveport, C. C. Burton, Jr., Shreveport, for appellee.
   ICENNON, Judge.

Alleging that he was a paying guest at the Star Theatre at 1050 Texas Avenue in Shreveport, Louisiana on the night of November 4, 1948, and that he suffered injury when struck by falling portions of the ceiling of the building in which the theatre was operated, plaintiff filed this suit in tort for $1651.00.

Defendant filed a general denial, and on trial of the case defended on the ground that defendant did not own the building and, as lessee, was not responsible for repairs to, or the condition of, the ceiling and consequently was not responsible to plaintiff for his injuries.

The District Court gave judgment for defendant,, noting that the lessee is not required under Article 2716 of the Revised Civil Code to maintain or repair the ceiling, and in answer to plaintiff’s contention that defendant should have demanded that the owner repair the ceiling and keep. it. in good condition and, upon his failure to do so, was authorized to make the necessary repairs and deduct same from the rent, the learned District Judge noted that there was no proof -that the lessee had knowledge of -the defect actually or constructively and, in the absence of such knowledge, was not negligent in failing to give notice to the landlord or to make repairs.

From the judgment in favor of defendant, plaintiff prosecutes this appeal.

The facts, other than the extent of plaintiff’s loss, are not in dispute. The defendant corporation operates a motion picture theatre in the 1000 block of Texas Avenue in the City of Shreveport, Louisiana, which caters to colored patrons. Plaintiff on the night alleged was a paying patron and had the misfortune of 'being in attendance at the time a portion of the ceiling immediately above his head fell. He, along with others who were in the audience, made a hasty exit. The record shows that he suffered damage to his clothing and person. In view of,the conclusion we have reached on the law applicable to the case, it would serve no useful purpose to consider the extent of this damage.

We note in the theatre cases cited by both plaintiff and defendant that the Courts .have discussed the liability and duties of “an owner and operator , of a moving picture show” as in the case of Bentz v. Saenger-Ehrlich Enterprises, Inc., La.App., 197 So. 659, 661, -or as the “proprietors of places of amusement” as in the case of Cassanova v. Paramount-Richards Theatres, Inc., et al., 204 La. 813,, 16 So.2d 444. The opinions do not show whether or not the operator-of the theatre in the several cases was also the owner of the building, in which case, of course, it would be unnecessary to distinguish the liability of the operator as against the liability of the landlord. One of the cases involved wet and slippery floors; another a burning film; another defective seats. In none of these cases did the Court discuss the possible distinction between the patron’s rights against the building owner as distinguished from his right of action against the “operator” of the theatre.

Plaintiff cites in brief the case of Welcek v. Saenger Theatres Corporation, et al., La.App., 5 So.2d 577, 580, and counsel includes in his brief the following quotation from that case:

“ 'In accordance with general principles elsewhere considered, where a patron of a theater or other place of public amusement is injured, and the thing that caused the injury is wholly and exclusively under the control and management of the proprietor, and the accident is such as in the ordinary course of events would not have happened if proper care had been exercised, its occurrence raises a presumption or permits of an inference of negligence on the part of the proprietor, and casts on him the burden to introduce evidence sufficient to overthrow this inference or presumption, * * *.’ ”
“ 'This doctrine is more peculiarly applicable in tort actions arising from accidents because of defective theatre buildings or the equipment therein. In such cases when plaintiff proves his right to be in the theatre when injured, the accident causing the injury and consequent damages, a prima facie case is made out. Res ipsa loquitur, under such facts, is applicable. To escape liability, defendant is then required to prove freedom from negligence on his part as the or a cause of the accident.’ ”

The above extracts clearly set forth the law of this State applicable to one who is the “owner and operator” of a motion picture theatre.

In the case before us, plaintiff did not make the owner of the theatre building a party to the suit nor was the owner called in warranty by the defendant lessee. The case turns upon the question as to whether or not a theatre operator, who leases the premises from another, is responsible to a patron for injury resulting from the falling of a. defective ceiling; or, to put the matter differently, is the tenant-operator considered a “proprietor” and responsible under the statement of law from the above quoted Wel-cek case.

This is a tort action and the burden is on the plaintiff to show that his. injury’resulted solely from the fault of the defendant or from the joint negligence of defendant and a co-tort-feasor. The Revised Civil Code, Article 670, makes the owner responsible to persons lawfully in a building who.are injured by falling plaster, as was the plaintiff in the present case. The Article, refers to “ * * * losses and damages, which may result from the neglect of the owner * * * ” with respect to falling materials. No mention is made of a similar responsibility on the lessee of an offending building. For the-present defendant to be held responsible, there must be some negligence shown on its part and in the absence of proof that the defendant lessee had actual knowledge, or, under the circumstances, should have had knowledge of a defective condition in the ceiling, plaintiff has not made out a case of “fault” under Article 2315 of the Civil Code.

As stated in the case of Vanosby v. Creidman, 15 La.App. 488, 131 So. 702, 703:

“ * * * a landlord is bound to know if his building is safe for the purposes for which he rents it and if a tenant, or person lawfully therein, is injured as the result of vices and defects, whether of original construction or because of failure to make proper repairs, under articles 670 and 2322 of the Civil Code, he is answerable in damages.” (Italics ours.)

Plaintiff has cited no article of the Code or other authority for his contention that a tenant operating a business on leased premises is responsible for damages resulting from the falling of a defective ceiling. This right to recover under the above cited codal ’ articles is only against the owner. Therefore, in the absence of the proof of separate negligence on the part of the defendant lessee, such as the continued operation of the theatre with knowledge of a defective and dangerous condition, plaintiff is without right of recovery against such lessee under Article 23-15 of the Civil Code.

No useful purpose would be served by an obiter dictum discussion of theatre injuries for which an operator-lessee would be responsible, or cases in which the owner only would be responsible, and possible cases in which both owner and lessee would be liable to an injured patron. Sufficient for'this case is it to say that had plaintiff's injury resulted from equipment placed in the building by the operator of the theatre, or been due to contact with equipment peculiar to the operation of motion picture theatres, or were the accident-due to some defect or condition made more dangerous by the ■ darkened conditions under which films are shown, or were the accident due to a lack of repairs to the floor or lower wall portions ■ of the building, for which repair the lessee is responsible under Article 2716 of the Civil Code, a different question would be presented.

We find it unnecessary to determine whether or not the .doctrine of res ipsa loquitur is applicable- for the reason that the owner of the building is not a party to this suit and, under our appreciation of the law as above discussed, the record discloses that plaintiff has no right of action against the defendant lessee.

The Court notes with interest -the expeditious manner in which this case was processed- in the District Court. The suit was filed January 24, 1949; defendant answered February 3, 1949; trial-was- had on February 15, 1949, only three weeks after suit was filed. After delay of approximately two months, the case was argued and submitted on April 18th. Only two weeks later the District Court rendered judgment. An application for rehearing, filed on May 6th, was submitted on May 16th, passed upon before the end of May and orders of appeal entered on June 1st.

Thus, in a period of four months and one week, the case was completely processed in District Court from filing of suit to granting of orders of appeal, and this in the face of delay of over two months for the preparation of transcript, briefing and setting of the case for argument. Thanks to this lack of delay, the decision of the Court of Appeal will be rendered in less than twelve months from the happening of the accident on November 4, 1948. The prompt disposition of a lawsuit is always desirable. Justice delayed, in some instances, becomes close to, if not equivalent to, justice denied. This Court entertains the hope that other members of the Bench and Bar of this district will continue to lend their best efforts to the prompt disposition of cases, without neglect, of course, to the substantial- rights of the parties who may be litigants-.

The judgment appealed from is affirmed, with costs.


source: Caselaw Access Project

author: McCALEB, Justice.

license: Public Domain

text:
    215 La. 1115
    DI CRISTINA v. WEISER.
    No. 39018.
    Supreme Court of Louisiana.
    June 30, 1949.
    Rehearing Denied Nov. 7, 1949.
    Charles E. Cabibi, New Orleans, for plaintiff and appellee.
    William J. Daly, John D. Nix, Jr., New Orleans, for defendant and appellant.
   McCALEB, Justice.

This is a suit for specific performance of a contract to sell and purchase real estate. On February 6, 1946, plaintiff offered to purchase the premises 2231-33 Canal Street in the city of New Orleans for $40,000 cash, contingent upon his ability to borrow $30,000 from a homestead or other source at a rate of interest not to exceed 5% and for a period of nqt less than fifteen years. The offer was exe■cuted on a standard form provided by the Real Estate Board of- New Orleans and was addressed to C. E. Stauss, agent for the defendant, Mrs. Norma Conlon Weiser. It provided, among -other things, that a formal act of sale was to be passed on or prior to April 2, 1946, at purchaser’s expense, before a Notary Public of his choice and that, upon acceptance of the offer, he would deposit with the realtor the sum of $4000 in cash. It also stipulated:

“In the event that purchaser fails to comply with this agreement within the time specified, the vendor shall have the right, either .to declare the deposit, ipso facto, forfeited, without formality and without placing purchaser in default, time being of the essence of this contract; or the vendor may demand specific performance. * * * In the event that the vendor does not comply with this agreement to sell within the time specified, the purchaser shall have the right either to demand the return of double the deposit, or specific performance.”

Upon obtaining plaintiff’s signature, the real estate agent contacted the defendant and endeavored to have her accept the offer. She informed him that she would not sign until the contract was approved by her attorney, Mr. Warren V. Miller (now deceased). The realtor thereupon communicated with Mr. Miller, who was ill at home and unable to transact business. Mr. Miller advised the realtor to consult his office associate, Mr. John H. Hammell, Jr., who was attending to his affairs during his absence. Accordingly, Mr. Stauss repaired to Mr. Hammell’s office where the latter read the contract and approved it as to form with the exception of the phrase “time being of the essence of this contract” which he deleted in ink because (according to his testimony) he knew that Mr. Miller had a “fetish” against that provision. After obtaining Mr. Hammell’s approval (except as above stated), Mr. Stauss brought the offer to Mrs. Weiser; it was accepted in writing by her and the deletion of the phrase “time being of the essence of this contract” was “o. k’d” by both parties.

Subsequently, plaintiff applied to the Whitney National Bank for a $30,000 loan and, on February 15th, it agreed to lend that amount provided it be secured by a mortgage not only on the Canal Street property (the subject of the contract) but also on other properties situated on Nashville and St. Charles Avenues standing in plaintiff’s name. The bank also requested that it be furnished with the deed of Mrs. Weiser. On March 12th, Mr. Stauss obtained the deed from Mr. Miller and delivered it to the bank on the following day. Nothing further was done toward the consummation of a sale on or before April 2nd, as stipulated in the contract, and that date passed apparently without notice.

Later, on May 6, 1946, the attorney for the bank rejected defendant’s title on the ground that it was suggestive of serious litigation. Thereafter, the matter remained dormant until July 11th, when Mr. Miller, in answer to the letter of May 6th of the bank’s attorney, wrote to plaintiff disputing the title defects complained of therein and requested that plaintiff notify him whether or not he intended to take title to the property. On July 17th, plaintiff’s attorney answered Mr. Miller’s letter stating that plaintiff wanted to consummate the transaction and that he would be willing to do so on August 1st provided certain defects in the title were corrected. Thereafter, a series of discussions and negotiations were had between plaintiff’s counsel and Mr. Miller, having in view a reparation of the alleged defects in the title. Finally, after certain curative work, it was agreed between them that the act of sale would be passed on October 1st. Defendant was notified to this effect during the latter part of September by Mr. Miller’s wife (as he was then too ill to contact her himself). Defendant testifies that she was surprised by Mrs. Miller’s message as she'was without knowledge' of, Mr. Miller’s conferences and agreements and that she had long since assumed (after April 2nd) that the contract was at an end. Becoming alarmed by the sudden turn of events, she consulted her present counsel respecting her rights and was advised by them that she was not obliged to convey the property. ■

Upon defendant’s failure to appear and execute the deed on October 1, 1946, plaintiff placed her formally in default and thereafter brought this suit for a specific performance coupled with a demand for ■damages 'and attorneys’ fees..

In the lower court, there was judgment ordering a specific performance and plaintiff was awarded $1,117.50 for costs and attorneys’ fees. Wherefore this appeal.

Defendant’s main ground of resistance is, as suggested above, that plaintiff defaulted under' the agreement in failing to take title on or before April 2, 1946 arid that, therefore, he is not in a position to demand specific performance.

In view of the stipulation that the purchaser is in default without formality upon his failure to take title to the property on or before April 2, 1946, it would appear that defendant’s plea is well founded as the language contained in the form of contract used by the parties is very clear and explicit.

But plaintiff maintains that a noncompliance with the provision did not have the effect of placing him, ipso facto, in default because time is not of the essence of the contract. And, as proof of the validity of this argument, plaintiff’s counsel points to the deletion by the parties of the phrase “time being of the essence of this contract” which is contained in the printed ■form used in the confection of the agreement.

The contention cannot be sustained. In the first place, the deletion of the phrase “time being of the essence of this contract” did not affect the clarity of the language which remained and, therefore, strictly speaking, there is no room for interpretation — for the condition reads “in the event that purchaser fails to comply with this agreement within the time specified, the vendor shall have the right, either to declare the deposit, ipso facto, forfeited, without formality and without placing purchaser in default or the vendor may demand specific performance”.

Article 1945 of the Civil Code provides that legal agreements have the effect of law upon the parties and “none but the parties can abrogate or modify them”; that the courts are bound to give legal effect to all contracts according to the true intent of the parties and that the intent “is to be de termined by the words of the contract, when these are clear and explicit and lead to no absurd consequences”.

However, it is suggested (and with some- plausibility that, in examining the contract as a whole, we are bound to give due consideration to the action of the parties in deleting the phrase “time being of the essence of this contract” inasmuch as its .elimination seems to be inconsistent with a strict enforcement of the remaining provisions which declare that failure to perform within the time specified renders the purchaser in default without formality. Viewed in this light, it would be imperative to determine whether the parties really intended to give credence to the time stipulation, as clearly expressed in the contract. Assuming, therefore, that the deletion makes the provision obscure, we would be required to resort to extrinsic evidence in order to perceive the true intent of the parties. Holloway Gravel Co., Inc., v. McKowen et al. 200 La. 917, 9 So.2d 228; Rudman v. Dupuis, 206 La. 1061, 20 So.2d 363; Krauss v. Fry, 209 La. 250, 24 So.2d 464 and Voelker v. Spearman, La.App., 26 So.2d 232. .

But even this method of interpretation avails nothing to plaintiff. Albeit, the only parol evidence which sheds any light on the reason for the elimination of the phrase “time being of the essence of this contract” reveals that it was done merely because defendant’s lawyer disliked the expression'and was in the habit of striking it out 'of all real estate contracts upon which he was required to give an opinion. Defendant testified that she paid little attention to the deletion as it was-her understanding, from the language of the contract, that the sale had to be passed on or before April 2, 1946, otherwise, the contract would be at an end. Plaintiff signed the offer before the phrase was eliminated; he did not testify as to his belief respecting the effect of the elimination and it apparently did not give him any concern whatever. Hence, we hold that the contract required plaintiff to take title on or before April 2, 1946 and that, by its terms, he defaulted by his failure to do so.

Since plaintiff was in default on and after April 2, 1946, he could not subsequently place defendant in default as Article 1913 of the Civil Code provides that, in commutative contracts where reciprocal obligations are to be performed at the same time, “the party who wishes to put the other in default, must, at the time and place expressed in, or implied by the agreement, offer or perform, as the contract requires, that which on his part was to be performed, .otherwise the opposite party will not be legally put in default.” See Stafford, Derbes & Roy v. De Gruy, 172 La. 160, 133 So. 430.

Plaintiff also contends that, even if it be held that he was required to take title on or before April 2, 1946, defendant’s attorney waived the performance of this condition and that she is now estopped from relying thereon.

This proposition is not tenable. Inasmuch as. this is a contract to purchase and sell real estate, any extension of time for performance, where failure to comply, ipso facto, places the offeror in default, would have to be in writing under Article 2276 of the Civil Code. Counsel for defendant made timely objection to any parol evidence offered by plaintiff for the purpose of showing that defendant’s former attorney had consented to an extension of time. The objection should have been sustained.

In Conklin v. Caffall, 189 La. 301, 179 So. 434, 437, wilth Chief Justice O’Niell as organ of the Court, it was said:

“On the trial of the case Conklin offered to testify that the reason why he did not comply with the conditions of the instrument dated February 3, 1933, within the three years stipulated was that Caffall verbally consented to extend the time for complying with the conditions. This testimony was objected to on the ground, stated in article 2276 of the Revised Civil Code, that parol evidence is not admissible against or beyond what is contained in a written contract, nor as to what may have been said by the parties before or at the time of making the contract, or since. This rule of evidence does not forbid the proof of a subsequent verbal agreement, modifying or even abrogating a written contract, if the contract or agreement is one which is not required to be in writing. Salley v. Louviere, 183 La. 92, 162 So. 811. But a ■contract to transfer immovable property must be in writing. Rev. Civ. Code, art. 2275. And, according to article 2462 of the Revised Civil Code, as amended by Act No. 27 of 1920, p. 28, a promise or option .to sell real estate is not valid unless given in writing. Hence an extension .of the time stipulated in a written promise or option to buy or sell real estate must be in writing. And it has been decided that the acceptance of an option for the purchase of real estate must be made in writing and tendered to the proposer before the expiration of the time stipulated in the option. Barchus v. Johnson, 151 La. 985, 92 So. 566.”

Thus, in the instant matter any oral agreement by defendant’s former attorney waiving plaintiff’s default or agreeing to extend the time of performance was inadmissible in evidence and not binding on defendant. And, even if the agreement to extend had been in writing, it would not be enforceable against defendant for the reason that her attorney did not have written authority to contract for her with reference to the real estate. Articles 2992 and 2997 of the Civil Code; Muggah v. Greig, 2 La. 593; Badon v. Badon, 4 La. 166; Mumford v. McKinney, 21 La.Ann. 547; Hackenburg v. Gartskamp, 30 La.Ann. 898; McKenzie v. Bacon, 40 La.Ann. 157, 4 So. 65; Whelage v. Lotz, 44 La.Ann. 600, 10 So. 933; Noble v. Plouf, 154 La. 429, 97 So. 599; Lewis v. King, 157 La. 718, 103 So. 19; Turner v. Snype, 162 La. 117, 110 So. 109.

Counsel 'for plaintiff asserts that Conklin v. Caffall, supra, may be distinguished from the instant case because, here, time is not of the essence of the contract and that, at all events, plaintiff’s failure to comply within the time specified was shown to be caused solely by the fault of the defendant in delaying the title examination for approximately five weeks.

The point that the defendant delayed the title examination 'for approximately five weeks is wholly without merit. While it is true that defendant’s former counsel did not immediately forward a certified copy of the title deed to the Whitney Bank upon reqúest, neither the bank, plaintiff nor any one else complained about the delay. As a matter of fact, there is no showing whatever that the sale could riot have been passed within the time specified in the agreement or that the delay in receiving a copy' of the deed impeded the examination to any extent.

Counsel’s other contention that the ruling in Conklin. v. Caffall is inapplicable because time is not of the essence of this contract is not well founded because we have hereinbefore held directly to the contrary. For this reason, the case of Johnson v. Shreveport Properties, 213 La. 485, 35 So.2d 25 is hot in point. Lamar v. Young, 211 La. 837, 30 So.2d 853, another case cited by plaintiff,- is in line with our ruling here as, there, the demand was denied on the ground that plaintiff defaulted by failing to take title within the time specified, as time was of the essence of the contract.

Counsel also relies upon the decision of the Court of Appeal for the Parish of Orleans in Coci v. Johness, Inc., La.App., 37 So.2d 823, where it was held that a verbal agreement extending a time limit set in a contract to sell real estate could be proved by parol evidence. That decision, insofar as it may be contrary to Conklin v. Caffall, cannot be followed.

The judgment appealed from is reversed and plaintiff’s suit dismissed at his costs.

'HAMITER, J., concurs in the decree.

O’NIELL, C. J., takes no part.


author: DORE, Judge.

text:
    WALLER v. STONE & WEBSTER ENGINEERING CORPORATION.
    No. 3162.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 25, 1949.
    Hirsch & Greene, Baton Rouge, for appellant.
    Taylor, Porter, Brooks & Fuller, Baton Rouge, -for appellee.
   DORE, Judge.

Clyde H. Waller died on October 18, 1948, while in the discharge of his duties as warehouse foreman of the defendant, Stone & Webster Engineering Corp.

His widow, Mrs. Bessie . L. ■ Woodward Waller, alleging that the death of her husband was caused by a cerebral hemorrhage, brought about by his heavy and strenuous duties as said warehouse foreman, while employed by defendant,- ’brings' this action demanding workmen’s compensation herself as surviving dependent widow. for

The defense was to the effect that although the death occurred while decedent was employed in defendant’s warehouse, it was not caused by any accident within the terms of the Workmen’s Compensation Act, Act No-. 20 of 1914, as amended, and that, therefore, the widow is not entitled to workmen’s compensation.

The District Court rejected the demands of plaintiff and dismissed the suit, and from the judgment, she has appealed.

The preponderance of the evidence is to the effect that the decedent was employed in -a supervisory position under the title of foreman in defendant’s warehouse, with three manual laborers working under him. His main duties consisted of checking goods placed or delivered by his fellow-employees and under his direction. It was not part of his regular duties to perform any of this manual labor himself, but there is some evidence to the effect that at times he assisted the laborers in moving goods, including some heavy machinery. It does not appear from the evidence, however, that these extra duties which he performed on occasions were strenuous, and were merely performed when he was shorthanded. The evidence is also to the effect that on the day of his death, Mr. Waller was in good spirits and appeared to be feeling very well. It is shown that a short time prior to his death, he picked up a flange to a meter which was in the aisle of the warehouse, and at that time, remarked that if the meter itself was not removed, someone would trip over it. The remark was made to his fellow-employee, Storey, one of the laborers, and Storey states that the other two laborers were not there at that time, and that a few minutes later Mr. Waller was found dead, slumped in a chair next to his desk in his office, ánd it was found that the meter had been moved some fifteen feet.

Plaintiff contends that under these facts, the remark made by Mr. Waller, plus the indication that he was the only one who could have moved the meter, that he did so and that his exertion in moving the meter (which weighed 54 lbs.), can be considered the cause of his -cerebral hemorrhage or coronary occlusion, from which he died immediately thereafter. However, to us, the remark made by Mr. Waller indicates that he did not intend to and did not remove the meter.

It may be pointed out at this point that the warehouse in which Mr. Waller worked was a building about thirty-five by forty feet in dimension, and that there were two-small offices in the building close to one another, one occupied by Mr. Waller, and the other by another supervisory employee of the defendant company. It is further shown that there were some thirteen people employed in this warehouse and .that Mr. Waller’s activities could be, and were, witnessed by these employees, and the preponderance of their testimony is to the effect that he performed very little, if any, manual labor.’ He had been seen just a few minutes prior to being found slumped in his chair in his office, and right afterwards, Dr. Dennis Casey was called, as well as Dr. J. W. Watson. Dr. Casey diagnosed the death as being caused by a coronary occlusion, and Dr. Watson, as being caused by a cerebral hemorrhage. These were the only two physicians to testify in the case, and there was no testimony, adduced showing the physical condition of plaintiff prior to his death, -such as to whether or not he suffered from hypertension or from arteriosclerosis, although Dr. Casey did testify that the most common cause of both cerebral hemorrhage and coronary occlusion is-arteriosclerosis, along, with, or without, hypertension. . Both doctors admit that either a cerebral hemorrhage or a coronary occlusion could occur without any physical strain.

Plaintiff contends, first, that this court should find from the evidence that her deceased - husband was engaged in heavy, arduous and strenuous work, and that as the accident occurred while he was employed in a hazardous occupation as defined by the Workmen’s Compensation Act, his death is compensable under and within the terms of the act. Since the preponderance of the evidence is to the effect that the decedent had a supervisory position, and only engaged in manual labor-occasionally, although not required to do so, we cannot agree with plaintiff’s first contention.

Plaintiff’s second contention is that even should the court find that the decedent was not engaged in heavy, arduous or strenuous work, and that, therefore, for that reason, plaintiff should be denied relief, then it is submitted that such a requirement is -beyond the scope -and meaning of the compensation law. Counsel for plaintiff states in his brief: “By referring to the law, we do not find one single bit of legislation to support the contention that there must have .been hea-vy, -arduous or strenuous activity, before an award for compensation -can be made.” It is true that the law itself does not say what kind of activity must be shown, but it is further true, as -shown by all our jurisprudence, that before an accident can be established, it must be shown that there was a causal connection between the employment activity and the resulting injury or death, and the jurisprudence is to the effect unless some specifi-c act resulting in injury or death can be shown, or unless it be shown that the nature of the work itself was sufficiently strenuous, or the nature of the work, plus the conditions under which it was done, to cause injury or death, then no causal connection could be deemed established.

Act No. 20 of 1914, § 38, as amended, Act No. 38 of 1918, defines the word “accident” as being, “an -unexpected or unforeseen event happening, suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.” The section of the Act further provides that; “The terms ‘Injury’ and ‘Personal Injuries’ shall include only injuries by violence -to the physical structure of the body and such diseases or infections as naturally result therefrom.”

This case is similar to the case of Siscoe v. Cooley, et al., La.App., 9 So.2d 313, 314, except that in the cited case, the decedent was subjected to conditions much more apt to occasion his -death than in the case at bar. In the Siscoe case, the decedent occupied the position of engineer with a steam laundry, and he was in -charge of all mechanical work, and like the case at bar, his duties were primarily supervisory, the required heavy manual labor being- performed by a Negro assistant.

For some days prior to his death, he experienced slight dizzy spells, they having occurred once or twice a week. Because of these, he consulted a physician, who found that he was suffering from high blood pressure. It may b-e noted that in the case -at bar there is no showing that the decedent was suffering from high blood pressure. Decedent worked from 6:30 in the morning until 8:00 in the morning oiling the laundry’s machinery, with the 'help of his assistant. During the remainder of the morning, decedent was engaged in testing rivets of a boiler by striking them with a one-pound hammer. At 1:10 in the afternoon, decedent was engaged in painting the head of the boiler, and continued this activity until -about 2:00 o’clock. It is shown that the sun shone on him while he was doing his painting work, but it does not appear that extreme and excessive heat prevailed.

Shortly before 2:00 o’clock, decedent ceased his painting and walked into the marking room of the laundry, which measured twenty feet by fourteen -feet, and had numerous open windows. His purpose in going into the marking room was to- determine whether the marking machine was ready for -cleaning. This cleaning job was accomplished by blowing compressed air into the machine through a hose regulated by a valve.

Within ten minutes after leaving his paint job, he was found in a helpless condition, lying on the floor next to the marking machine. Evidently, the cleaning process had not commenced for the air valve was closed. Tie breathed deeply three times and then expired.

The physician who was summoned appeared after death and concluded that the decedent died “from .a-cute occlusion of the blood vessels to the heart, coronary vessels”. This medical expert thought that ■one with, high blood pressure should not paint a boiler in the 'hot sun; but, 'he also observed that a person could die of heart disease, such as decedent had, while walking along the street.

The court states, “It is well recognized that if excessive heat, or heavy lifting, or straining, although usual and customary, causes or contributes to a physical breakdown or accelerates its happening, the legal requirements necessary to constitute an accident are present and such cases are com-pensable. But compensation is not due where no causal connection exists between the employment and the complained of disability or death.” (Citing various cases.)

Among the cases cited by the court in that decision is the case of Nickelberry v. Ritchie Grocer Company et al., La.App.; 199 So. 415, from which is quoted the following:

“The case therefore presents a situation where the plaintiff admittedly is suffering from a disease of the heart. When the disease began, what was its origin, and the rapidity with which it has progressed, are all matters of pure speculation. The mere fact that a workman develops heart disease while employed by another does not entitle him to compensation. The employer is not the insurer of his employees. (Underscoring ours.) There must be an accident to furnish the basis of any such claim, that it to say, something sudden, undesigned or unexpected and that accident must either cause or aggravate the disease which is the cause of the disability.” ■

The court concluded as follows:

“Decedent’s death, as we appreciate the evidence adduced, is not traceable to his employment with the Monroe Steam Laundry; and the demands of plaintiff were correctly rejected.”

■ Counsel for plaintiff in his brief admits that the case of Siscoe v. Cooley, supra, as well as the cases of Murray v. Mengel Co., La.App., 9 So.2d 818, Warren v. Town of Winnfield, La.App., 38 So.2d 171, Lampkin v. Kent Piling Co., La.App., 34 So.2d 76, all hold that in order to recover for injury or death, in any case which' was not caused by objective causes, that the injured party must have been engaged in unusually hard, strenuous or heavy work, or working in an area or under conditions which were conducive to bring about that injury or death.

Nevertheless, plaintiff feels that the case of Robichaux v. Realty Operators, Inc., 195 La. 70, 196 So. 23, and the case of Hester v. Tremont Lumber Company, La. App., 15 So.2d 94, in defining an “accident”, tend to support the plaintiff’s position in this case. We cannot agree with that contention.-

The Robichaux case involves a callous growth on which a blow was sustained, and quoting from the syllabus of that case:

“Evidence 'Concerning blow suffered while at work, at point where workman already had a callous growth which was developing into an abscess, held to authorize award of compensation on ground that osteomye-litis necessitating amputation of finger was caused by. ‘accident’.”

In the case of Hester v. Tremont Lumber Company, supra, there is some indication that the decedent might 'have had high blood pressure even though he did not complain of any trouble or illness until the day of his death, and, in any event, the testimony clearly shows that for several years preceding the date of his death, he had been a boiler maker and had been doing general repair work of that kind; and that for several days prior to his death he had been repairing a boiler, and on the day of his death, at about 2:30 in the afternoon, and for a day or two prior thereto, had been, and was, riveting a boiler; that the labor being performed by him was heavy and hard and done under great strain. Certainly the facts in that case do not exist in the case at bar.

We fail to see where either the Robi-chaux case, the Tremont case, or any other case cited by the plaintiff, can support his position. It is our conclusion that deceT dent’s death cannot be attributed to any accident, but was the result of natural causes unconnected with his employment, and that, therefore, under our jurisprudence, she has failed to establish her easel

For these reasons, the judgment appealed from is affirmed.


author: LE BLANC, Judge.

text:
    PLAUCHE et al. v. ALBERT.
    No. 3166.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 25, 1949.
    George S. Womack, Baton Rouge, K. K. Kennedy, Baton Rouge, Durrett & Hardin, Baton Rouge, for appellants.
    DeBlieu?c & Hinton, Baton Rouge, for appellee.
   LE BLANC, Judge.

In June, 1940, Joseph J. Boyd, who owned a large tract of land in the 9th ward of the Parish of East Baton Rouge, located on the continuation of Government Street and running back to Florida Street, laid the same out as a subdivision to be known as North Goodwood. He divided the area into blocks which were subdivided into lots to be sold to persons who would construct residences on them. He established certain restrictions pertaining to certain parts of the subdivision and had the same recorded in the -Conveyance Records of the Parish of East Baton Rouge and any person buying a lot in that part of the subdivision governed by the restrictions purchased the same subject to the restrictions and agreed to abide by the same.

Among the restrictions was one which read as follows: “No building, except as herein specified, shall be erected nearer than 20 feet to either side line of said lot or lots, but this covenant shall not apply to garages or out-houses, located on any portion of the rear quarter of the lot or lots, which may be placed not nearer than 2 feet to the side lines and the rear line, but shall not be placed any nearer than 75 feet to any street.” Another restriction with which we are concerned in this case reads as follows : “No building shall be erected on any part of the -property -hereinabove described other than a single family dwelling and a garage or out-house, to be used in connection with the said single family dwelling.”

On February 13, 1942, the defendant herein, Harry J. Albert, bought one of the lots in that area in which these restrictions operated and -his deed specifically recited that the property described therein was subject to the restrictions and servitudes of record of North Goodwood Subdivision.

The several plaintiffs in this suit are all owners of lots which they had acquired in the subdivision or which they owned prior to the time that the defendant started to construct a building upon the lot he had bought, in violation, as they allege, of the two particular restrictions which have just been quoted. They instituted this suit which is a proceeding for an injunction, seeking to prohibit and enjoin him from building any garage or out-house closer than 75 feet from Donmoor Avenue, one of the streets bounding his property, and to have him remove the building as presently constructed on his said lot.

In their petition, after setting out that they are the owners of the respective lots belonging to each and that the defendant is the owner of the lot which he acquired in February, 1942, subject to the restrictions which have never been abandoned and which are still in full force and effect, and after he had started the construction of a building upon the rear of the lot purchased by him, being Lot 1 of Square 3, and believing that the said building was a garage or other out-house which was being built in violation of the 75 feet restriction, they notified him that he was in violation of the restrictions. They alleged that the defendant informed them that he was not violating the restrictions and refused to inform them of the exact nature of the building he was constructing. They then alleged that when the building had reached a certain stage of completion believing that it was not being constructed in accordance with the restrictions, they again notified him by, petition dated March 11, 1947, and in answer .thereto they received a letter from an attorney at law, representing the defendant, in which it was stated that defendant had no intention of violating the restrictions and that he intended to abide by the same. They then aver that it was not until the building was completed that they became fully aware of the fact that the defendant did not intend to abide 'by the restrictions and the building which he had erected and completed was a garage apartment which violated one of the restrictions in that it is not a building for a single family dwelling nor is it to be used in connection with a single family dwelling and also that it violated a further restriction in being nearer than 75 feet to Don-moor Avenue. ,

A rule nisi was issued and the defendant was ordered to show cause why a permanent injunction should not be ordered as prayed for. In answer to the rule the defendant filed a motion in which he averred that, the particular restrictions he was charged with having violated had been waived and abandoned by reason of the fact that there had been repeated, flagrant violations, previous to the filing of this suit by the plaintiffs, by a majority of owners of corner lots .situated in the subdivision. In his motion defendant also suggested that ■he desired to submit expert testimony to the court with reference to the violations which he stated had existed, which expert testimony could only be produced by a sur-' veyor, and he accordingly asked that the court appoint a surveyor to determine the nature and description of all violations of the restrictions as set out by him and that the matter be continued until such time as the survey and the report of the surveyor could be made. The court granted the continuance, at the end of which time defend-’ ant filed his answer to the rule for injunction in which he admitted that in constructing the garage on his premises, he located it -nearer than 75 feet to Donmoor Avenue, and in a sense that was a violation of one of the restrictions but he again defends his action on the ground that that restriction had ’ been waived, abandoned and relinquished by universal acquiescence and common consent by the land owners, and therefore there could be no right of action to enforce it against him and to seek the injunction that was being asked. As a further defense to the rule for injunction, defendant alleged that the lots he bought front on Florida Street and, that as is well known, all property fronting on that street has become highly commercialized within the past few years. He avers that the properties directly adjacent to his are being used for commercial purposes and that all property fronting on both sides of Florida Street previously' subjected to building restrictions has changed to such an extent that there cannot equitably be any further enforcement of the original restrictions placed on the property which he acquired.

After trial of the rule in the court below there was judgment in favor of plaintiffs ordering an injunction prohibiting the defendant from using the building' which he had constructed on the property for any other purpose than a garage located not nearer than 75 feet from Donmoor Avenue, or as a single family dwelling as provided for in the restrictions; further in the event he elected to use the said building as a garage and not as a single family dwelling he shall move the same a distance of 75 feet beyond Donmoor Avenue, such removal to be affected within 60 days, .and failing in this he shall remove the same from the property altogether within 90 days. From that judgment the defendant has taken this appeal.

On the appeal a large portion of the argument of counsel for defendant is leveled at the form of, or the course which the proceeding took in the lower court. The contention is that the proceeding initiated in the lower court as a rule nisi for an injunction, that it was tried in that court solely on that rule and that there has never been a trial on the merits which was necessary in order that a final judgment might be rendered on the question as to whether or not there is to.be a 'permanent injunction ordered. In other words counsel claims that even though the court heard all of the testimony that might have been produced on the trial of the merits as well as on the trial of the rule for the injunction, nevertheless it was necessary for all the same evidence to be offered and introduced orna trial of .the case1 on the merits before there could be a definitive judgment rendered.. Counsel .may be right on the contention he makes as we think that that is the proper procedure in matters .of this kind unless by some form of agreement the court be permitted to consider the testimony on the rule as testimony adduced on trial of the cas.e on. the merits in order to. render such a judgment. This, according to the judgment and final decree that was signed by the trial judge, seems to be exactly what toqk place in the trial of this case for, as we note, the signed judgment which follows the signed written reasons handed down by the trial judge reads this way: "This cause having been tried according to previous assignment upon the rule nisi herein issued on the 24th day of October, 1947, under a stipulation of all pa/r-ties that a trial ,of the rule would be considered as tried on the merits * * (Italics ours.) We find no stipulation in the record nor do we find reference'to any in the extract from the minutes of the court but the statement contained in the judgment and decree has to be taken -as conclusive that there was such a stipulation and that all parties agreed that the trial which was had on the rule was to be considered as a trial also on the merits of the case. This, we think, takes care of the contention made by counsel for defendant on this point.

As pointed out in the statement of the case, there are two contentions made by the defendant on the merits, which have to be considered. There is no question as to the validity and the legality of these, building restrictions promulgated by the owner of a tract of land and their effect as being binding upon purchasers of lots who construct a building thereon. Defendant admits the restrictions, and in effect, admits their validity and that he would be bound by them were it. not for the fact, as he contends that they have been waived and abandoned by the proprietor of the subdivision in having permitted their flagrant violation in several instances. The other contention involves more or less a legal proposition, that is whether or not the commercializing of the property adjacent to the restricted area, has the effect, as a matter of equity, of limiting or even doing away with the restrictions.

In order to sustain his first point that the violations which he admits can no longer be considered as such because those restrictions • have been abandoned and waived, .the defendant produced the testimony of the surveyor he had asked to have appointed by the court and who had made a map of the subdivision. The surveyor is a man by the name of Taxie Craft, a licenced Civil Engineer, whose qualifications are not questioned. According to his, map and his testimony, it does appear that there are nine lots in -the subdivision which are affected by the 75 foot garage restriction on which garages have been built and only three of those nine are situated more than 75 feet from any street or avenue, the other six being less than that distance from a side street. That of course is a point which operates in favor of the defendant ■because certainly if two-thirds of the garages on the whole property are built in violation of the restrictions, it wouldn’t be fair to force him to a full compliance. Instead of six we are only able to account for five which apparently violate the restrictions in so far as the distance is concerned, two of them are situated at such comparatively close a distance to 75 feet as to hold in those cases, that there was a substantial compliance with the restrictions. For instance one is 73.9 feet. We might mention here also that although it does not appear in the testimony, in brief of counsel fpr plaintiffs it is stated that one that is less than two feet short of the required distance has been moved in order to comply with the restrictions. With regard to the other, we find competent authority to the effect that a violation of such a .restriction must be one that substantially defeats the object of the whole general scheme intended by the restriction in order to make consent on the part of the owners amount to a release. See Thompson On Real Property, Vol. 4 page 557.. Another of the garages claimed to have been built in violation of the restrictions, and which is 56.7 from the street, is a garage that is attached to the house itself, and the restrictions do not apply to garages built that way. Another violation called to the attention of the court is with regard to the construction of a garage that was built before the restrictions went into effect and certainly that cannot be used as an instance of the waiver or abandonment of the restriction. Another which is admittedly built within 75 feet appears to be that of an owner who informed the court at the beginning of the trial of this case that he would remove it in the event that the suit was decided in favor of the plaintiffs.

The testimony isn’t very clear regarding these alleged violations and what is proposed to be done about some, in some instances, but the district judge commented on that phase of the matter and stated that whatever breaches had been shown were not sufficiently numerous, in his opinion as to defeat the whole scheme of the development of the subdivision. We are inclined to agree with him on that.

Aside from all this, it strikes us, as it did the district judge, that this particular violation was not as influencing on his decision as was the nature of the building itself and the purpose for whioh'the defendant is using it, and which constituted another violation. The testimony satisfies us that this defendant is presently using that building, hot as a garage but as a warehouse, as he himself styles it, in connection with his business as a plasterer and contractor. The building is stored with material, he maintains his truck there and it is shown that material is often delivered on the premises to make the whole thing appear that he is definitely conducting his business from that point and using the building for whatever purpose he can in this connection. He spoke of having had plans drawn for the construction of a very costly dwelling and even introduced an architect’s drawing of a very elaborate house, but from his own testimony it is apparent that he has abandoned all idea of ever building a residence on the property and therefore his continued use of the building as he is doing, is strictly in violation of the restrictions placed on the subdivision.

With regard to the other point raised, that is that the property adjoining the restricted area has. 'become commercialized within the. last few years, and the purposes of the restrictions have become frustrated, that same argument was presented recently to the Supreme Court of our State in the case, of Alfortish v. Wagner, 200 La. 198, 7 So.2d 708 and it was there decided adversely to the contention now being made on behalf of the defendant.

After a careful consideration of all the issues involved, we are satisfied that the judgment of the lower court is correct and it is therefore affirmed.


text:
    MUNSON v. BROUILLETTE.
    No. 3169.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 25, 1949.
    Asht.on L.. Stewart, Baton Rouge, .for appellant.
    Sargent Pitcher, Jr., Baton -Rouge, for. appellee.
   LE BLANC, Judge.

The defendant in this case, Edward J. Brouillette, had a home in Suburb Istrouma in the Parish of East Baton Rouge’ which' he wanted to sell. He advertised it in the local newspapers, the advertisement stating that the price was $7900. He also posted a for-Sale sign “By Owner” on the lot in front of the home. That was during the month of January, 1949.

William Warren Munson, the plaintiff, conducts a real estate business in the City of Baton Rouge. One of his agents, J. B. Myers, as early as November, 1948, had endeavored to have the defendant list the property with him but nothing resulted from that contact.

It so happened that in January, 1949, Myers had some prospective purchasers, Mr. and Mrs. M. W. Alford, who were anxious to buy a home in the same vicinity where defendant’s property was situated: They had read the advertisement in the newspaper and had even called the telephone number listed in the advertisement to find out who owned' the property and to make inquiries concerning it. On the morning following, that is January 26, 1949, Myers took them to that neighborhood to show them, as he states, “what property we had.” He claims that he had again contacted the defendant on January 25, 1949, but that we seriously doubt, because according to his further testimony, he did not offer the property to the Al-fords on January 26, until it was called to his attention, presumably by the “for-sale” sign, that it was for sale.

In the afternoon of January 26, after he had taken' Mrs. Alford back home, Myers called Mrs. Brouillette over the telephone and told her that he had a prospective purchaser for the property and wanted to know if it would be agreeable to show them the house. Mrs. Brouillette agreed and in discussing the price at that time told him that they wanted $7900 net and that his commission would be whatever he obtained over that amount. Figuring on a commission of 5 per cent would have made the purchase- price approximately $8300. There isn’t any dispute regarding the fact that there was a valid verbal agreement entered into between them at that time. There is lot said in the testimony and in argument about the property having been “listed” with the agent but we do not think that the testimony revealed a listing agreement as that term is construed in the real estate business. However, there was a definite verbal agreement, between them, that Myers was authorized to show the property and to offer it to these particular prospects at a price which would net the Brouillettes $7900 and whatever he would get over that amount would be his commission.

He showed the property and the house to the Alfords and offered it to them for $8300 which price they were unwilling to pay. Further negotiations between him and the Brouillettes resulted in them reducing the net amount they wanted to the sum of $7800 and according to Myers’ testimony, he' would take a proportionate cut in his commission and would offer the property for $8150. There was no agreement written and 'signed but that is the most that ever'< was understood by and agreed to between them. The property was again offered to the Alfords for that price ■and they again declined to buy. From then on there is considerable conflict in the testimony and; the only definite proof which appears before the court is that on January 28, 1949, Brouillette sold the property to the Alfords for the sum of $7800. Upon receiving that information the plaintiff filed this suit against him for a commission of $390, based on the ground that he had the property for sale and that he had procured a purchaser who was, ready, willing and able to pay for the same and that nevertheless the defendant sold it from under him and deprived him of his commission of 5 per cent of $7800, or $390, which amount he seeks to recover judgment for.

There was an exception of no cause of action filed which was referred to the merits and now seems to have been abandoned. The defendant then answered and admitted to a great extent all of the facts which have been more or less detailed up to the time where the testimony becomes conflicting but specifically avers, in defense to the suit, that plaintiff’s agent, Myers, having become unable to get the prospective purchasers to pay the price of $8150, called him and told him that the deal was off as the, Alfords were no longer interested in the house. He then denies that he at any time entered into a contract with plaintiff or any of his representatives but the principal defense is that he only sold the house after the plaintiff, through his representative, had notified him that the deal was off, as far as he was concerned.

After hearing the testimony, the trial judge rendered a written opinion on which he based his' conclusion that the plaintiff could not recover principally on the ground that the agent had abandoned his efforts to interest his clients in the purchase of the property at the figure he had in mind and he accordingly rendered judgment dismissing the suit. Plaintiff has taken this appeal.

If the trial judge was correct in the conclusion he reached, after hearing the testimony and appraising it, that Myers had called Mrs. Brouillette and told her, as she testified, that he could not get the prospective purchasers to pay $8150 for the property, and that he “washed his hands of the deal”, we are of the opinion that that constituted an abandonment of further efforts on his part to try to sell the property and released the defendant from any Obligation he may have incurred under the agreement that existed between them.

It strikes us that from the very beginning, the plaintiff’s representative undertook a rather hard task in trying to sell a property for $8300, or for $8150, which had been publicly advertised for sale for $7900 by the owner himself. His task was all the more difficult in this case because his own clients knew that it was being advertised and in fact had inquired about it from the owner before he got permission to show it to them. Naturally he was unable to get them to pay a higher price than the advertised sale price, which he had to do in order to get his commission and, according to some of the testimony found in the record, he abandoned his efforts to do so and so notified the defendant.

Myers denies this, and there appears the conflict in the testimony on this important point in the case. The trial judge seems to have had but little doubt however and if he had any, resolved it in favor of the defendant. To do so, he had to rely almost entirely on the testimony of Mrs. Brouil-lette who testified that she was the one that had the telephone conversation with Myers as her husband was not at home at the moment. Mrs. Brouillette in detailing what happened says that after Mr. Myers ■had taken them to their home, the Alfords came back and Mrs. Alford asked if she would mind them looking over the house before making a decision. At that visit, nothing was said by any of them about Mr. Myers nor was his name ever mentioned. When her husband returned at noon she told him that the Alfords had been to see the house without Mr. Myers. About 1:30 that day, after having talked to her husband and after he had returned to work, she called up Mr. Myers’ office. He wasn’t in right then but called her back in about an hour’s time. She asked him if Mr. and Mrs. Alford, had bought the house and he told her no, that he had just been to their place, that he had done everything so that they could buy the house, having deducted part of his commission and then she says he told her that he “washed his hands of the case with Mr. and Mrs. Alford, and that he might meet some future clients, and that he would contact me as he did before.” She is very positive in saying that he used the exact words that he “washed his hands of the Alfords”. We can hardly construe that expression in any other way than to mean that he was through with trying to sell the property to the Alfords and was no longer interested in what was done with the property as far as they were concerned. Whilst it is true that he intimated that he might get some future clients who would be interested in the property, there is nothing to indicate that Mrs. Brouillette agreed to anything like that. The only agreement he ever had with the Brouillettes was that he could show and offer their property to the particular prospects he had at the time, meaning the Alfords, and that, in our opinion, was far from constituting a “listing” of the property with him which his counsel now insists that he had.

Counsel for plaintiff places great reliance on the case of Grace Realty Co. v. Peytavin Planting Co., Inc., 156 La. 93, 94, 100 So. 62, 43 A.L.R. 1096 and whilst it is true that in that case the contract or agreement between the owner of the property and the real-estate agent was pretty much in the same form as the agreement in this case, it is distinctly shown in that case that the agent never had any intimation even, given by the principal, that his services or his relations between them would be terminated. Here it is not a case of the principal having given any such notice but it was the agent who himself abandoned all negotiations and told the principal that he washed his hands of the whole deal as far as the prospects he then had were concerned. In the cited case the court stresses the point of bad faith on the part of the principal and that is no doubt an element which should enter into consideration in deciding a case like this. There is no question of good or bad faith in this case however, as it was only after the agent had notified the principal that he, in effect, was no longer interested in the deal, that plaintiffs took it upon themselves to sell the' property not for the price which they originally had in mind, but for $100 less, in their effort to give him a chance to sell it and make a commission. We are inclined to agree with the trial judge that this is a case where the agent impeded the sale rather than facilitated it and therefore he is not entitled to recover.

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


author: McBRIDE, Judge.

text:
    COURTIN v. LENZ.
    No. 18713.
    Court of Appeal of Louisiana. Orleans.
    Nov. 14, 1949.

      Harry R. Cabral, New Orleans, for plaintiff and appellant.
    Benjamin Y. Wolf, New Orleans, for defendant and appellee.
   McBRIDE, Judge.

Plaintiff, an attorney, prosecutes this appeal from a judgment of the First City Court of New Orleans maintaining defendant’s exceptions of want of jurisdiction ra-tione materiae, nonjoinder of parties defendant, and no cause of action, and dismissing plaintiff’s suit, in which he sued defendant for' $200 on a quantum meruit for professional services rendered defendant’s wife in representing her'in a suit in which she successfully obtained a judgment of divorce from defendant.

The proceedings from which the judgment of divorce emanated were commenced by the husband, who sought a divorce on the ground that he and his wife had been separated for more than two years. The wife employed plaintiff, who filed her answer to the suit and by way of reconvention claimed, on behalf of the wife, that she, and not the husband, was entitled to the decree of divorce. The demand of the husband was rejected and a judgment of divorce was rendered in- favor of the wife. There was no property belonging to the community of acquets and gains which existed between the parties.

The exceptions are based on the respective theories: (1) that the claim is incidental to the divorce suit and should have been asserted therein; (2) that the judgment of divorce dissolved the community between the parties, and that as the debt is one for which the community is liable, then the wife owes one-half the amount and is a necessary party defendant; and (3) that the wife’s failure to claim in the divorce proceedings the amount due her attorney for his services constituted a waiver of such claim; and alternatively that if there be liability in the husband, he is not liable for more than one-half of the amount of the at* torney’s charges.

We perceive no merit in any of the exceptions, and the lower court clearly erred in maintaining them and dismissing plaintiff’s suit. The contentions advanced by defendant are fully answered by the now well established jurisprudence.

In a suit in which a woman obtains a judgment of divorce or of separation from bed and board, her attorney’s fee is a community debt and is, therefore, chargeable, on a quantum meruit basis, to the husband. Goodwin v. Goodwin, 207 La. 690, 21 So. 2d 875; Martin v. Martin, 191 La. 761, 186 So. 94; New v. New, 186 La. 1017, 173 So. 748; Shipp v. Shipp, 183 La. 1025, 165 So. 189; Balfe v. Balfe, 165 La. 283, 115 So. 489; Lester v. Lester, 160 La. 708, 107 So. 499; Gosserand v. Monteleone, 159 La. 316, 105 So. 356, 42 A.L.R. 310; Benedict v. Holmes, 104 La. 528, 29 So. 256.

Where the wife seeks recovery of her attorney’s fees, she must demand same in the separation or divorce proceedings, and if she does not assert her claim in the proceedings in which the fee is incurred, she is deemed to have waived it. In August v. Blache, 200 La. 1029, 9 So.2d 402, 406, the Supreme Court said: “ * * * our opinion is that any claim that Mrs. Blaohe may have had against Mr. Blache for the * * * recovery of the fees incurred in the suit for a separation from bed and board, must be considered as having been abandoned by the failure of Mrs. Blache to claim reimbursement for such fees in the proceedings in which the fees were incurred.”

But, when the wife’s attorney demands payment from the husband of the amount due him for his professional services, he cannot assert the claim in the divorce or separation suit, for the obvious and simple reason that he is not a party to that suit. The Court, when concerned with this proposition in the case of Jones v. Jones, 200 La. 911, 9 So.2d 227, 228, said: “ * * * However, the judgment should be amended to allow the defendant the attorney’s fees instead of ordering them to be paid to the attorney. The attorney is not a party to the suit, and that part of the judgment ordering the fees to be paid to the attorney is erroneous.” ■

Perhaps tire wife of the defendant in the. ■case before us might have successfully asserted a claim in the divorce suit for the fee which her attorney now seeks to recover from her husband, but her failure to make the claim in the divorce proceedings in no wise poses a barrier to the attorney’s right to sue the husband in another action for the amount due him.

In Gosserand v. Monteleone, supra, the Court said [159 La. 316, 105 So. 358]:

“The law lays down certain specific causes for which a separation from bed and board or a divorce may be granted by the court, and the law also recognizes the right of a wife to institute and prosecute a suit for that purpose against her husband.'
“This right carries with it the right to employ counsel to institute and prosecute such a suit. No good and valid reason is suggested or can be suggested why the attorney thus employed may not recover for his services against the husband as head and master of the community.
“If the attorneys in such a case are not entitled to recover against the husband or the community, then the law giving the right to the wife to sue for a separation or divorce and to employ counsel for that purpose, as said by the court in the Purser & Magruder Case, is a dead letter, or is a barren one, as was said in the Benedict Case. The wife would find herself vested with a legal right but without practically any remedy or the authority to vindicate such right.”

In Benedict et al., v. Holmes, supra [104 La. 528, 29 So. 257], the wife was successful in a suit against her husband for a separation from bed and board and separation of property. The wife’s attorneys, after the parties had made an extra-judicial settlement, of the judgment and community property, filed suit against the husband alone for the amount of their fee, and the question for determination, as stated by the Court, was: “Is the fee of the wife’s counsel in a suit successfully prosecuted against her husband * * * a legal charge against the community.”

In resolving the question, the Court commented as follows:

“The wife has a recognized legal right to institute against her husband a suit for divorce or separation of property upon grounds that are specified in the law; but, if she cannot charge her attorney’s fees and cost against the assets of the community in the event she obtains a decree of separation and dissolution, the right is practically a barren one, if she possesses no separate property.
“If the husband’s course of conduct be such as to justify the dissolution of the marriage and the dissolution of the community on the petition of the wife, it would seem that in such case the cost and attorney’s fees incident thereto ought to go against the community assets in the course of its liquidation, or against the husband personally if he takes the same to himself. * * *
“In our opinion, the fees of the attorney of the wife who has successfully prosecuted against her husband a suit for separation from bed and board and a separation of property, has a right of action against the latter, as head and master of the community, for the payment of his fee, as it constitutes a charge against the community, and is payable from its assets. * * * ”

However, the Court found that the amount claimed was excessive and reduced it to $1,000, but taxed only half of that sum against the husband, citing R.C.C. 1371 and 2409. Plaintiffs filed a petition for an amendment of the judgment, contending that it should have been against the husband and for the full amount and not for one-half, their position being that: “ * * * the court having decided the debt was a claim against the community, it stands on the same footing as any other debt of the community, and the husband, who was its head and master, is bound for the whole, regardless of' any settlement he may have made with his wife, subject only to his recourse against her, if he have any, for the recovery of one-half.”

And further that: “ * * * it is evident from a reading of the act of settlement and compromise between this husband and wife, found in the record, that he intended to give, and Mrs. Holmes to receive, the six thousand dollars (mentioned in that act) not for her share of the community.”

The Court said, on rehearing:

■ “It is now .considered that the first of these contentions is sound in law and that the second is supported, at least, by the strongest probability. But the first suffices.
The former decree of the court should be amended so as to charge the defendant with the payment of the whole of the one thousand dollars.”

Unquestionably, then, the wife’s counsel has the right to pursue the husband, as head and master of the community, for the amount due for services rendered to the wife who is successful in her suit, and as the claim is against the community of ac-quets and gains, the husband is bound for it as for any other community liability. The wife is not a necessary party to such suit.

It is ordered, adjudged, and decreed that the judgment appealed from be reversed, and defendant’s exceptions to plaintiff’s suit are overruled, and the matter is remanded to the lower court for further proceedings according to law; defendant-appellee is to pay the costs of this appeal, while all other costs are to await the final determination of the matter.

Reversed and remanded.


text:
    BROWNE et ux. v. ROSENFIELD’S, Inc. et al.
    No. 3157.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 25, 1949.

      W. F. Kline, Clinton, for appellant.
    Taylor, Porter, Brooks & Fuller, Baton Rouge, for appellee.
   LE BLANC, Judge.

This suit involves the application of the attractive ■ nuisance doctrine. ■ The child in this case is the son of the plaintiffs O. G. Browne and Mrs. Margaret Browne. At the time he sustained the injury on which the demand for damages' is based, on March 25, 1948, he was six years old. As far as his age is concerned, therefore,' he would come within the application of the doctrine.

According to the allegations of their petition, their son was attracted to the movement of the escalator which is used- in the defendant Rosenfield’s store in Baton Rouge; It is alleged that he went on the said escalator “and in some way his left hand became enmeshed in the mechanism of the said escalator causing several of his fingers on the left hand to become mangled and distorted”. It is further alleged that there is no attendant who watches after the said escalator, or there wasn’t any at the time of his accident, and this s'eems to be the only allegation of negligence on the part of Rosenfield’s, Inc., owner and operator of the store, as it is further alleged, that the failure of the said Rosenfield’s, Inc. “to keep a constant attendant to prevent children of young and tender years from being attracted to the said escalator as to want to> ride thereon and make it amusing and enjoyable when the same is dangerous if not properly used”, constitutes negligence for which it is sought to be held liable. The damages claimed amount to the sum of $10,-050. and judgment is prayed for against both Rosenfield’s, Inc., and its alleged public liability insurer, Aetna Casualty and Surety Company, in solido.

The defendant, Rosenfield’s, Inc., was improperly styled as it is made to appear in an exception filed that its proper name is Ros-enfield’s Dry Goods Company, Ltd. In its. proper name, and jointly with the Aetna Casualty and Surety Company, an exception of no right of cause of action was filed which was sustained in the district court and from a judgment dismissing the plaintiffs’ suit plaintiffs have taken this appeal.

It looks as though the important question to be determined in the case is whether an escalator is such a dangerous instrumentality in itself as to be classed as an attractive nuisance and therefore requires the constant presence of an attendant or guard to keep children of tender years who may be attracted by its movements from riding on them alone or injuring thems'elves in some way or other.

As is well known, escalators are modern mechanical contrivances used in buildings of several stories, to more easily and readily transport people from one floor to the other. From our observation they are used principally in large department stores and their purpose of course is for the use of customers who go into those establishments and not as.a means of amusement for children or anybody else. In this way they have to some extent taken the place of elevators which are also run by some type of mechanism but. necessarily have to be operated by an attendant. In the case of elevators, the attendant is charged with the responsibility of seeing that they are safely operated and we would say also, to guard against children of tender years doing anything around them by which they might become injured. Escalators, as we know, operate by some means of mechanism but require nobody to operate them and if an attendant or guard were to be used it would be simply for the purpose of keeping children or irresponsible people from doing things on or about them which they should not do and by reason of which they may sustain some injury.

In the case of Marquette v. Cangelosi, La.App., 148 So. 88, this court had under consideration the claim of a father and mother for the death of a thirteen year old boy who had been killed in an elevator accident in the Cangelosi building in Baton Rouge. The decision did not rest on the application of the attractive nuisance doctrine, although it had been invoked by the plaintiff. The doctrine was discussed however, and, after describing the situation of the elevator in the building, the same being close to the main entrance from the street, and after citing certain authorities which were thought to be pertinent, it was stated: “It is therefore extremely doubtful that the elevator, situated as it was, and which was used by defendant in his business, could be characterized as an attractive nuisance”. It would seem that an important consideration is to be given to the use that is made of the instrumentality in order to. classify it as an attractive nuisance or not. The case of Peters v. Pearce, 146 La. 902, 84 So. 198, 199, was cited in the Marquette case, and quoted from to the following effect: “Strangers are not liable to children for negligence in carrying on their business beyond what would be their liability to others, as well as children, who are equally free of blame.” (Italics ours.) Certainly, in the modern everyday way of conducting the business of a department store, escalators are a very convenient and necessary means of carrying on that business. Their universal use, since they have been made so practical, is almost a guarantee in itself of the safety in their means of normal operation and if this court was doubtful that the elevator referred to in the Marquette case was' an attractive nuisance, we have still stronger doubt that the escalator in this case can be so classified.

In discussing the doctrine of attractive nuisance under the title “Negligence”, American Jurisprudence, Volume 38, page 815, Section 149, and in commenting on the nature and kind of the attraction, has this to say: “The character of the instrumentality by which the injury complained of was received is of great importance in determining liability under the attractive nuisance doctrine. * * * Great, if not insurmountable, difficulty is experienced in attempting to state the kinds of machines, objects, or conditions which may be deemed attractions within the meaning of the attractive nuisance doctrine. In fact, the difficulty of determining the kinds of things to which the attractive nuisance doctrine is properly applicable has been regarded by some courts as a reason for rejecting the doctrine altogether. The fact that a thing is attractive to children is not of itself a ground for invoking the attractive nuisance doctrine. Clearly, not everything which may possibly excite the curiosity of a child amounts to an attractive nuisance. If everything containing some element of danger to a boy, of which a plaything possibly can be made by him, amounts to an attractive nuisance, there is almost no limit to the application of the doctrine. In order to invoke liability under the attractive nuisance doctrine, it must be shown that the instrumentality or condition relied upon to constitute the attraction was a sufficient allurement as likely to attract children upon the premises, and that the instrumentality was fraught with such danger to young children as reasonably to require that precautions be taken to prevent children from coming in conflict therewith. The tendency of the courts is to exclude from the application of the attractive nuisance doctrine things not in their nature dangerous or peculiarly alluring or attractive to children, natural conditions, common or ordinary objects such as walls, fences, and gates, simple tools and appliances and conditions arising from the ordinary conduct of a business.” •

In this case, the child was not attracted to the premises, as it came in the store with its mother who was there to do some shopping, and, since the escalator was an appliance, and its operation a condition arising out of the conduct of the business of that store, it would be excluded from the application of the doctrine under the authority cited.

The trial judge in his short written reasons for judgment disposed of the case by stating that because, in his opinion, an escalator was not per se a dangerous in-strumentálity, a plaintiff seeking to recover for an injury sustained while using one must not only allege but prove actionable negligence on the part of the defendant. We agree with him when he says that an escalator is not per se a dangerous instrumentality and as that seems' to be also one of the elements required in order to invoke the doctrine as is pointed out in the quotation from American Jurisprudence, we agree with him that even under the allegations contained in the petition of the plaintiffs in this case, they have no. cause of action. ,

There are not many cases on the subject of escalators considered in their relation to the doctrine of attractive nuisance. . The only one we have been referred to and have been able to find in which the doctrine was applied to such an appliance is that of Hillerbrand v. May Mercantile Co., 141 Mo. App. 122, 121 S.W. 326. Rather significantly, we observe that the ruling in this case which was followed in California in Takashi Kataoka, v. May Department Stores Co., Cal.App., 139 P.2d 25, was changed in a subsequent opinion. See 60 Cal.App. 2d 177, 140 P.2d, 467, 469. The same case was before the Federal District Court of California, 28 F.Supp. 3, and the following is quoted from syllabus 2: “An escalator in department store, not being artificial, uncommon, or dangerous, but being on ordinary, common instrumentality built and constructed for ordinary and common use, did not constitute an ‘attractive nuisance’ so as to justify recovery under attractive nuisance doctrine for injuries sustained by 4 year old child when his hand was caught in small opening at end of escalator where steps went under the floor.”

" In Mills et al. v. Lit Brothers, 347 Pa. 174, 32 A.2d 10, the court also refused to apply the doctrine in the case of a three and one-half year old child who was injured in an escalator accident.

All the other escalator accident cases we have found were decided on the issue of negligence and the attractive nuisance doctrine was not discussed. The weight of authority therefore is to exclude esclators from the application of the rule. We are in accord with that authority, from, which it follows that we find the judgment appealed from is correct and it is therefore affirmed.