Bourgeois v. Indemnity Ins. Co. of North America
| Decision Date | 20 October 1952 |
| Docket Number | No. 19947,19947 |
| Citation | 60 So.2d 718 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | BOURGEOIS et al. v. INDEMNITY INS. CO. OF NORTH AMERICA. |
Bert W. Clarke, W. W. Thimmesch, Metairie, for plaintiffs and appellees.
Lemle & Kelleher, Harry B. Kelleher, Carl J. Schumacher, Jr., New Orleans, for defendant and appellant.
Mrs. Mildred Bourgeois, wife of Glenn M. Bourgeois, while a volunteer worker in the cafeteria of St. Catherine of Sienna School, fell over a bench in the cafeteria and sustained a fracture of her left arm below the elbow and a sprained wrist. She and her husband brought this suit for damages against the Indemnity Insurance Company of North America, the public liability insurance carrier of the said school, she praying for judgment for $1500 for her physical injuries, and Mr. Bourgeois praying for judgment for $194.50, the amount expended by him as head and master of the community for doctors' bills and medical expenses made necessary by Mrs. Bourgeois' injuries. They did not make the school itself a party defendant.
At the outset, it may be well to state that it is conceded that if there is liability, the amount prayed for by each plaintiff is correct.
Plaintiffs allege that the 'accident was caused through the actions of students of St. Catherine of Sienna School * * *; that the said students were paying students of the school and that their parents had paid for them a tuition to the school; that it was the duty and obligation of the said school to have proper supervision over the activities of the cafeteria, and that there should have been some teachers or other personnel of the school on duty; that the failure of the said school to properly supervise the conduct of the students in the cafeteria constituted negligence which was the proximate and direct cause of the injuries; that had there been proper supervision in the cafeteria afforded by the school, the teacher or other supervisor should have been able and would have been able to stop the students from placing in her path the bench which constituted a hazard.'
Defendant admitted that it had issued a policy of public liability insurance to the school, but denied liability to plaintiffs, and averred that the accident resulted from carelessness and negligence on the part of Mrs. Bourgeois 'in not looking where she was walking and in so failing to see the obvious which she should have seen * * *;' and 'in failing to act as a reasonable and prudent person would under the same or similar circumstances.' And, in the alternative that it should appear that there was any fault on the part of the school for which the defendant would otherwise be liable, defendant especially pleaded the contributory negligence of Mrs. Bourgeois in the particulars above set forth.
There was judgment for each plaintiff in the amount prayed for and defendant has appealed.
There is practically no disagreement over the facts. Mrs. Bourgeois, a member of the Mothers' Club of the school, for about four years had been a volunteer worker in the cafeteria. She and many other mothers of the pupils took turns in assisting in the serving of lunch. None of them received any pay for their services. The cafeteria and all of the volunteer workers were under the supervision of Nuns and paid lay teachers. Mrs. Bourgeois said that her duties required her to 'see the lunches are served and to afterwards sort of clear up the cafeteria.'
She had carried some soft drink bottles and milk bottles to the end of an aisle and had there deposited them in a case in the corner when the accident occurred. She says:
She also said:
Mrs. Bourgeois says, and there is no contradiction of her statement, that the entire occurrence covered the space of only a second or two. In other words, she had walked down the aisle to the place at which she had deposited the bottles and had immediately turned to retrace her steps and, in that short space of time during which she was placing the bottles in the case, the bench was moved, probably by one or more of the students. It is not contended that the child or children who moved the bench did so with any intention of causing Mrs. Bourgeois to fall. Under these facts, what is the obligation of the school?
Counsel for plaintiffs direct attention to Article 2320 of our Civil Code, LSA-C.C. art. 2320, the second paragraph of which provides that:
'Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.'
Counsel realize that the codal article also provides that:
'In the above cases, responsibility only attaches, when the * * * teachers and artisans, might have prevented the act which caused the damage, and have not done it.'
They say, however, that there can be no doubt that the accident could have been prevented had one of the supervisors, a Nun, or a lay teacher (all of whom were at other parts of the cafeteria) been at the spot at the time at which the bench was moved, and that the fact that there was no such person present at that exact spot, at that exact time, was fault on the part of the school and creates liability for what could have been prevented.
In the first place, we have no doubt at all that there can be no liability in such situation unless there is fault on the part of the person whose act results in the damage. Article 2320, and in fact that articles which follow Article 2315, do not create liability without fault. All of those articles are to be read together with Article 2315. This was held in Johnson v. Butterworth, 180 La. 586, 157 So. 121. Assuming for the moment, however, that there was fault on the part of the student or students who moved the bench, there are, nevertheless, other serious legal obstacles in the path of plaintiffs.
We are not at all sure that it was intended by the redactors of our present Civil Code that a 'teacher' or a school, as our schools are conducted today, should be held liable for the...
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...provisions of Article 3541. Article 2315, supra, is to be read together with Articles 3536, 3537 and 3541. Bourgeois v. Indemnity Ins. Co. of North America, La.App.1952, 60 So.2d 718; Young v. McCullium, La. App., 74 So.2d That the above cited statutes are applicable to actions ex delicto h......
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