Grigsby v. Morgan & Lindsey

• Citation: 148 So. 506
• Decision Date: 05 June 1933
• Docket Number: 4546
• Parties: GRIGSBY v. MORGAN & LINDSEY ET AL
• Court: Court of Appeal of Louisiana (US)

148 So. 506

GRIGSBY v. MORGAN & LINDSEY ET AL

No. 4546

Court of Appeal of Louisiana, Second Circuit.

June 5, 1933

Goff &amp Goff, of Arcadia, for appellant.

B. A Hamilton, of Jasper, Tex., and Madison, Madison & Fuller, of Monroe, for appellees Morgan & Lindsey.

Barksdale Warren & Barksdale, of Ruston, for appellee Holstead.

OPINION

TALIAFERRO Judge.

Plaintiff seeks to recover judgment against Judge B. Holstead and Morgan & Lindsey, a commercial copartnership, for injuries to her right foot and ankle resulting from a fall sustained by her, caused by the heel of her shoe hanging in an opening in the floor, adjacent to a metal ventilator, of a store building in Ruston, La., owned by said Holstead and leased by him to the copartnership. This happened May 5, 1931.

In the original petition the lessee's name and juridical entity are given as "Morgan & Lindsey Chain Stores," a corporation of the city of Jasper in the state of Texas, of which B. Morgan, of same residence, is president. It developed from the contents of exceptions thereafter filed that the lessee was a copartnership and not a corporation, and that its correct trade-name and title is "Morgan & Lindsey," composed of B. Morgan and B. G. Lindsey, of Jasper, Tex., and C. A. Morgan of Monroe, La. The original petition and citation thereunder were served on Holstead, April 5, 1932, and on R. O. Stinson, Ruston manager of Morgan & Lindsey, on same day. The citation served on lessee was directed to Morgan & Lindsey Chain Store. On motion of defendant this service and citation were set aside by the court. After this was done, plaintiff filed a supplemental and amended petition May 17, 1932, wherein the errors in the original petition as to name and legal character of said lessee were corrected, and this amended petition, with copy of original petition, was served on May 28. Exceptions of no cause or right of action, of misjoinder, and a plea of prescription of one year were filed by Morgan & Lindsey. These were overruled. The plea of prescription is based upon the state of facts pleaded therein, viz.: "That plaintiff herein alleges that she received injury through the fault and negligence of this defendant on May 5th, 1931; that the petition filed herein April 4th, 1932, and the citations and attempted services thereof are and were illegal, null and void, and of no effect as to this defendant; and that the so called amended and supplemental petition of plaintiff was filed May 17th, 1932, and that such filing and the subsequent service thereof both occurred more than one year after the alleged accident, of which plaintiff complains."

All exceptions and pleas filed have been abandoned except the plea of prescription.

Petitioner alleges that she frequently shopped in defendant's place of business in Ruston, and when injured she was therein for the purpose of making a purchase, and, while being waited on by one of the clerks, the heel of the shoe on her right foot "got caught and fastened in a defective place in the floor, (3)5C at or near a ventilator in said floor, causing her to fall," inflicting certain painful and permanent injuries for which defendants, as lessor and lessee of said building, are liable to her. She further alleges that the hole and defect in said floor, caused by a floor board not reaching the ventilator, and the ventilator itself being below the floor level, is a defect not clearly visible to customers entering and moving along the aisle from the front, but was known to, or should have been known to, said owner and his lessee, and should have been repaired by them; that thereby said defendants failed in their legal duty to keep said building in a safe condition for those coming therein as customers; and that it was gross negligence on their part to allow said defective condition of the floor to remain as it was at the time she was injured. She avers freedom from fault on her part. The elements of damages sued for are enumerated as follows: For professional services of Dr. J.

J. Bennett

$ 85.00

To Ruston-Lincoln Sanitarium for

X-ray

10.00

For pain and suffering from the

injuries and bruises to her foot,

ankle, and body

3,000.00

For deformity of her foot and the

injury to her appearance in trying to

move about

2,500.00

For inability to perform her usual

duties

1,000.00

Defendant Holstead admits ownership of the building occupied by Morgan & Lindsey and lease thereof by him to them. In all other respects he denies the allegations of the petition.

Morgan & Lindsey admits lease and occupancy of the Holstead building to conduct a general mercantile business therein, and that same was open to its customers and to the public generally. All other allegations of the petition are denied. Neither defendant charges plaintiff with negligence.

The lower court awarded plaintiff judgment for $ 600, and she prosecutes this appeal, complaining of the inadequacy of the amount of the judgment. Both defendants answered the appeal praying that the judgment in favor of plaintiff be reversed. Morgan & Lindsey also filed a plea of prescription in this court identical in salient parts as the one filed in the lower court.

Plea of Prescription.

Defendants are sued as joint tort-feasors. If they sustain this relationship to each other, their liability to plaintiff, if any, as a result of their offense, is in solido. No citation of authority in support of this principle is necessary. Two of the most recent cases so holding are: Gardiner v. Erskine et al., 170 La. 212, 127 So. 604; Jones v. Maestri, Com'r, 170 La. 290, 127 So. 631. It has been frequently held that a suit by a guest or customer of the tenant against the landlord or tenant for damages caused by a defect in the leased building is one ex delicto, and is therefore barred by the prescription of one year. Civ. Code, art. 2315. However, "a citation served upon one debtor in solido, or his acknowledgment of the debt, interrupts the prescription with regard to all the others and even their heirs." Civ. Code, art. 3552.

It is urged by Morgan & Lindsey that the service made under the original petition, which was quashed by the court, was so illegal, null, and void, that no effect whatever followed same; that the current of prescription against it was not even interrupted thereby, and that as a valid service was only made on it on May 28, 1932, over one year after the alleged injury, that prescription barring the suit had attached.

We find it unnecessary to pass on this question. It is our opinion that the timely service made on Judge Holstead interrupted the running of prescription against Morgan & Lindsey. We think there was perfect solidarity of obligation between these defendants, and, if this is true, there can be no doubt of the correctness of our conclusion. Counsel for Morgan & Lindsey contend, and correctly so, that, if the solidarity of obligation between it and Holstead is imperfect, the service on the latter did not interrupt prescription as to the former, citing: Civ. Code, art. 2077; Corning v. Wood, 15 La.Ann. 168; Jacobs v. Williams, 12 Rob. 183; Gay v. Blanchard, 32 La.Ann. 497, 502. In the first of the cited cases it was held by the court that an acknowledgment of the debt by the maker of a note does not interrupt prescription as to the indorser. The court said: "They are not debtors in solido in the meaning of arts. 2092, 3517 of the Civil Code, which declare that a suit brought against one of the debtors in solido, or his acknowledgment of the debt, interrupts prescription as to the rest. Per Curiam: The maker and endorser do not bind themselves at the same time, or by the same contract, but by different and successive contracts, without any privity or reciprocity." In the second of these cited cases, it was held that suit against the acceptors of a bill of exchange does not interrupt prescription as to the drawer and maker. This decision expressly affirms the principle enunciated in Jacobs v. Williams, referred to above, and states that that decision overruled the earlier one of Allain v. Longer, 4 La. 151, 152, which held that a suit against an indorser of a note interrupted prescription as to the maker and other indorsers. In Gay v. Blanchard, supra, the court succinctly gives the reasons for the holdings in the previous cases, although there was solidarity of obligation as between the person cited and those not cited before prescription accrued. The court said:

"Solidarity may be perfect or imperfect. In the former the co-obligors are mandataries of each other; in the latter they are not. (3)5C

"It is perfect, and the obligors are the mandataries of each other, when by the same act, at the same time, they bind themselves to the performance of the same thing. It is imperfect (and they are not mandataries of each other) when they bind themselves to the same thing by different acts or at different times."

Basing their argument upon the doctrine of these three cases, counsel for Morgan & Lindsey say that, if both defendants are liable to plaintiff for the injuries complained of, such liability arose, not from the same act, nor at same time, but from different acts and at different times, under different rules of law; that the tenant's obligation springs from the general law of negligence (article 2315, Civ. Code), while that of the landlord arises from special provisions of the Code.

Article 2077 of the Civil Code and the decisions cited by defendant commented on supra, have reference to conventional obligations and not to liability consequent to tortious acts. This latter liability is founded upon the law of negligence appearing under different titles and chapters of the Code. Article 2322, falling under the chapter dealing with "Offences and Quasi Offences," reads as follows:...