Cristadoro v. Von Behren's Heirs

• Decision Date: 21 October 1907
• Docket Number: 16,381
• Citation: 119 La. 1025,44 So. 852
• Parties: CRISTADORO et ux. v. VON BEHREN'S HEIRS et al
• Court: Louisiana Supreme Court

44 So. 852

119 La. 1025

CRISTADORO et ux. v. VON BEHREN'S HEIRS et al

No. 16,381

Supreme Court of Louisiana

October 21, 1907

Rehearing Denied November 18, 1907.

Appeal from Civil District Court, Parish of Orleans; Thomas C. W Ellis, Judge.

Action by Frank A. Cristadoro and wife against the heirs of Ferdinand Von Behren and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Carroll Henderson & Carroll, for appellants.

Frank McGloin and Charles Ferdinand Claiborne, for appellees.

OPINION

PROVOSTY J.

The petition alleges that Von Behren, of whom the defendants are the heirs, was owner of a so-called "camp," consisting mainly of a platform and a house built over the waters of Lake Pontchartrain, at Milneburg, intended to be used as a place of resort and recreation, and which would be leased for that purpose to all persons desiring to rent it; that Von Behren "employed Mrs. Schmitt, the mother of plaintiff Mrs. Cristadoro, to take care of said camp, rent out the same, and collect the revenues therefrom for him; and, in return and consideration for her service, he agreed and contracted with her that she should live in and occupy and use the said camp as a summer home at all times when the same was not leased to other parties, when she should temporarily go to other quarters, and that she should have the right to receive as visitors at said camp all such friends and relatives as should see fit to visit her there"; that under this agreement Mrs. Schmitt, with the full knowledge and consent of the said Von Behren, received at said camp all persons who saw fit to visit her there; that the sole passage to and from said camp was a wharf connecting it with the wharf of the Pontchartrain Railroad; that the plaintiff Mrs. Cristadoro, having gone on a visit to Mrs. Schmitt, her mother, at said camp, was passing upon the said connecting wharf on her return, when the same collapsed, causing her serious injury; that the purpose of plaintiff in leaving was to secure quarters for her mother for the following Sunday, for which day said camp had been leased and her mother would have to find other quarters under her agreement with Von Behren; "that plaintiff Mrs. Cristadoro was lawfully and properly upon said connecting wharf, and was guilty of no negligence or carelessness, and went to said camp as the relative and guest of said Mrs. Schmitt, who had the right, under her contract with Von Behren, to have plaintiff visit her at the said camp; that said connecting wharf, to the knowledge of said Von Behren, was being used, from day to day, by persons who visited said Mrs. Schmitt at said camp with the view of hiring the same, and by the public generally; that said Von Behren held out and offered for rent the said camp, with said connecting wharf, as a place of resort and recreation, and it was his duty to have and keep said wharf in good and proper condition; that the same was not in such order and condition, but that the planks, beams, sills, supports, and other timbers and parts of said connecting wharf were rotten, decayed, defective, and in bad order and condition; that the fall and destruction of said connecting wharf were due to the negligence of said Von Behren and to his failure to have and keep the same and all parts thereof in proper order and condition; and that he became liable and responsible to the plaintiffs for all the damage that they have suffered."

The suit was dismissed on exception of no cause of action. In our opinion a cause of action is shown. Mrs. Cristadoro was rightfully on this wharf, and was injured without any contributing fault on her part, and as the result of the negligence of the person whose duty it was to see to the safety of the wharf; that is to say, of the owner of the wharf, Von Behren.

So plain is this that without another word we might proceed to render judgment, were this court expected simply to administer justice and not also to expound the jurisprudence of the state.

The reason, then, why Mrs. Cristadoro was rightfully on the wharf is that she was a guest of her mother, Mrs. Schmitt, and that Mrs. Schmitt had secured by contract with Von Behren the right to receive visitors; and the reason why, she being rightfully on the wharf, the owner of the wharf is responsible to her for the injury she suffered, is that "the owner of a building is answerable for the damages occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction" (Civ. Code, art. 2322) -- this provision of the Code being nothing more than an application of the principle that "every person is responsible for the damage he occasions, not merely by his act, but by his negligence, his imprudence, or his want of skill" (article 2316, Civ. Code).

The learned counsel for defendants very properly say that there must be a duty before there can be negligence; but, when they say that Von Behren did not owe Mrs. Cristadoro the duty to see to it that this wharf was maintained in proper condition for its ordinary use, they fail to take the foregoing articles of the Code into consideration.

True, in McConnell v. Lemley, 48 La.Ann. 1433, 20 So. 887, 34 L.R.A. 609, 55 Am. St. Rep. 319, this court said that the owner's responsibility under that article is restricted to "neighbors and passengers," and does not extend to visitors, or guests -- in other words, to those outside, not to those inside, of the house; but that construction was departed from in the more recent case of Schoppel v. Daly, 112 La. 202, 36 So. 322, where the court held the owner responsible to the wife of the lessee.

The reasoning of the Lemley Case is that visitors must be treated as persons to whom "the ordinary rule of trespass or contract would apply"; that is to say, who as trespassers have no recourse, and as contractors have recourse only on their contract. But it stands to reason that a visitor is neither a trespasser nor a contractor.

The court seems to have thought that the recourse of the guest was against the lessee; but what if the lessee has not been in fault? Nay, what if, injured by the same accident, he himself...