Givens v. De Soto Bldg. Co.

• Decision Date: 17 March 1924
• Docket Number: 24423
• Citation: 156 La. 377,100 So. 534
• Court: Louisiana Supreme Court
• Parties: GIVENS v. DE SOTO BLDG. CO. et al

100 So. 534

156 La. 377

GIVENS v. DE SOTO BLDG. CO. et al

No. 24423

Supreme Court of Louisiana

March 17, 1924

Rehearing Denied by Division B May 12, 1924

Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage Judge.

Action by Mrs. Lulu Dickinson Givens against the De Soto Building Company and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

Walter S. Lewis, of New Orleans, for appellant.

Charles Rosen, of New Orleans, for appellee Saenger Amusement Co Inc.

ST. PAUL, J. DAWKINS, LAND, and LECHE, JJ.

OPINION

ST. PAUL, J.

The Saenger Amusement Company leases, and operates as a moving picture show, a theater building owned by the De Soto Building Company. The balcony seats are on a platform elevated about 8 inches above the aisle. Moving pictures are, and of necessity must be, shown in semidarkness.

On September 12, 1917, plaintiff visited this theater for the first time, and occupied a balcony seat. She alleges that when she got up to leave she did not know, and was not warned by posted notices or otherwise, of the abrupt change in the floor level; that "there were no safeguards thrown around said drop to protect patrons of said theater," and that, the dim light thereabout did not suffice for her to see it. Wherefore she claims damages from both defendants.

The gravamen of her complaint is that said drop was a serious defect in construction and dangerous to patrons of the theater; that it was gross negligence in the owner so to construct the building, knowing that it was to be used as a moving picture show, and in the lessee in failing to remedy said defect before inviting the public to see its pictures.

The case was tried by jury, who heard the witnesses, visited the scene, and returned a unanimous verdict for both defendants. The trial judge refused a new trial because the verdict "impressed him as being correct" (November 25, 1919).

Thereafter plaintiff appealed from the verdict in so far as same was in favor of the lessee (Saenger Company), but abandoned the case against the owner of the building (De Soto Company). This appeal was lodged here on January 6, 1921.

I.

On February 19, 1924, the appellee Saenger Company moved to dismiss the appeal, on the ground that the De Soto Company is a necessary party, but filed no brief in support thereof until February 25th, when the appeal was argued on the merits. Plaintiff had, in the first instance, the right to sue the Saenger Company alone for its alleged negligence, and, having that right, she might have abandoned her claim against the De Soto Company even in the lower court without the least grounds for complaint on the part of the Saenger Company. It follows, therefore, that she may exercise the same right in the appellate court.

Whatever rights the Saenger Company may have (if any) over against the De Soto Company should it eventually be held liable herein are neither here nor there, and cannot be affected by any action or inaction on the part of plaintiff.

II.

On February 25, 1924, the very day the case was argued on the merits, plaintiff moved to remand the case to show that "after the trial a light was placed right on a level with the said step, at a very small cost, and without in any manner affecting the operation of the show."

This cannot be done. Aside from the fact that it would be unreasonable to remand a case for the purpose of taking new evidence therein, more than four years after the trial, and more than three years after the appeal was lodged here, such evidence would be clearly inadmissible.

In 29 Cyc. 616 (verbo Negligence), we find:

"Whilst some courts hold to the contrary (Kansas and Utah) the great weight of authority is that evidence of changes or repairs made subsequently to the injury, or as to precautions taken subsequently to prevent recurrence of injury, is not admissible as showing negligence or as amounting to an admission of negligence. The reason for the rule is that the effect of declaring such evidence competent would be to inform a defendant that, if he makes changes or repairs, he does it under a penalty; for, if the evidence is competent, it operates as a confession that he was guilty of prior wrong. True policy and sound reason require that men should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrongdoers. A rule,...