Marsalis v. La Salle

• Decision Date: 11 March 1957
• Docket Number: No. 20676,20676
• Citation: 94 So.2d 120
• Parties: Corlnne DUBROCA, Wife of and James R. MARSALIS, v. Shelby P. LA SALLE, d/b/a Second Street Food Store.
• Court: Court of Appeal of Louisiana — District of US

Page 120

94 So.2d 120

Corlnne DUBROCA, Wife of and James R. MARSALIS, v. Shelby P. LA SALLE, d/b/a Second Street Food Store.

No. 20676.

Court of Appeal of Louisiana, Orleans.

March 11, 1957.

Rehearing Denied April 15, 1957.

Writ of Certiorari Denied June 10, 1957.

McDonald & Buchler and Roy L. Price, Metairie, for defendant-appellant.

Claude F. Kammer and William V. Dunne, New Orleans, for plaintiffs-appellees.

McBRIDE, Judge.

Plaintiffs bring this suit for damages against Shelby P. LaSalle, the defendant, as a result of Mrs. Marsalis' having been bitten or scratched by a Siamese cat on January 12, 1953, in a store in Jefferson Parish, of which the defendant is proprietor, the occurrence having taken place while Mrs. Marsalis, who was accompanied by her husband, was shopping. The cat is the pet of defendant's minor son. Mrs. Marsalia is asserting her claim for personal injuries and her husband is seeking reimbursement of the costs of the medical treatment of his wife. From a judgment in favor of plaintiffs, defendant appeals.

While the testimony on the point is in conflict, we believe that it preponderates to the effect that after Mrs. Marsalis sustained her injury, Marsalis requested defendant to keep the cat under observation for fourteen days until it could be determined whether the animal was rabid and what medical precautions Mrs. Marsalis should take against being infected by rabies. We quote Marsalis' words:

'Then I asked Mr. LaSalle to lock the cat up for 14 days, and we had a little discussion about the time element relative to keeping a cat up that had bitten someone to note its condition after that period of time, and I asked him to be sure and lock it up, because I didn't want my wife to take rabies treatment because there were numerous cats in the neighborhood that were reported rabid in the Jefferson Herald and Times, and a number of the papers, and there was quite an incident--

'I asked him to keep the cat up, to lock it up, and he said he would. * * *'

The defendant denies there had been any such conversation regarding the restraining of the cat for the purpose of observation, and his testimony is that neither Mr. nor Mrs. Marsalis considered the injury dangerous. He quoted Mrs. Marsalis as having said:

'Oh, it is nothing; don't worry about it.'

We do not doubt that the defendant and his wife, she having been present in the store when the incident occurred, well knew of the serious consequences that could arise from the bite of an animal, nor do we doubt that they agreed to be cooperative in the matter by observing the state of health of the cat during the period of incubation of rabies. At one point we find Mrs. LaSalle let slip this significant statement:

'Well, I think my husband notified me not to let it out and I have got that much sense to know that if a cat ever scratches anybody--'

According to her statement the cat stayed:

'* * * indoors where we always kept it on the opposite side of the grocery, it's a basement house, and part of the basement is the store and the opposite side is our domicile and that's where he was. He was supposed to be at all times.'

At any rate, on the evening of the fourth or fifth day after the episode in the grocery store the cat escaped and the only explanation given is by Mrs. LaSalle, who testified that this occurred as she and some friends were making their exit via the basement door. The cat was gone for about a month, and in the meantime its whereabouts was not known. Upon returning home the animal gave no evidence whatever of being infected.

Two days after she had sustained the injuries, Mrs. Marsalis sought advice from her friend and neighbor, Dr. Homer Kirgis, whose specialty is in the medical field of neurosurgery. He thought Mrs. Marsalis should first determine whether the cat had been inoculated and then consult her family physician. When it was learned a few days later that the animal had strayed from defendant's premises, Dr. Kirgis urged Mrs. Marsalis to see her family doctor and admonished her to contact the Pasteur Treatment Ward of the Charity Hospital in New Orleans. However, Dr. Kirgis subsequently undertook to administer the Pasteur treatment himself at his home, the first injection being made about January 23, 1953. This treatment consists of a number of injections of a prophylactic vaccine for rabies and we are informed that some persons are extremely allergic to the serum. Mrs. Marsalis was evidently in this category as she suffered a noxious reaction to the serum which brought about some ill effects.

In his reasons for judgment the trial judge said:

'* * * This cat had not previously bitten or scratched anyone and ordinarily was a gentle, well behaved pet. While the cat should have been under observation to determine whether or not it had rabies it escaped from the defendant's home, the defendant's explanation of said escape being that the cat got out one night while he and his wife and another couple were preparing to leave to go out to dinner. * * *

'The Court holds that the defendant is liable both as a result of the relationship to the plaintiffs as store-keeper and customer and because of the even more proximate cause of the injuries which resulted from the defendant allowing the cat to escape. Obviously it was the defendant's duty to use a high degree of precaution and care in order that the cat might be kept under observation and this he failed to do.'

It is uncontroverted that there is no liability in defendant merely because the cat bit or scratched Mrs. Marsalis. Never before had the animal exhibited any vicious traits or tendencies and it had been, as the court found, a gentle and well-behaved pet and defendant was guilty of no negligence in allowing it to frequent his premises.

The law applicable to the owning and harboring of domestic animals and the liability of the owner or harborer thereof is well settled to the effect that when such animal suddenly and without prior warning displays a vicious nature, the owner or harborer is not liable in damages. But if in the past there has been any occurrence which is sufficient to have given notice that the animal is vicious or dangerous, then there is liability in the owner or harborer for such damage as may be caused by the animal. Tillman v. Cook, La.App., 3 So.2d 230; Thomas v. Pecoraro, La.App., 164 So. 435; Woulfe v. D'Antoni, La.App., 158 So. 394; Anderson v. D'Ingianni, 16 La.App. 560, 134 So. 412; White v. Sens, 13 La.App. 343, 127 So. 413.

In Mercer v. Marston, 3 La.App. 97, we said:

'* * * it is clear that liability rests on two bases, namely:

'1. Injury by an animal; and

'2. Fault or negligence on the part of the owner.'

We stated in Perez-Sandi v. Berges, 12 L.App. 191, 125 So. 185, 186:

'* * * previous knowledge of the vicious tendency of an animal was necessary to hold its owner answerable in damages. This is our appreciation of the present state of the law in Louisiana, * * *.'

From the reasons for judgment it is evident that the trial court was of the opinion that this rule of law does not apply in the case of a storekeeper and that because the relationship of storekeeper and customer existed between the parties the defendant is liable. This was an erroneous conclusion. The keeping of a domestic animal per se in a place of business does not constitute negligence and is insufficient to render the proprietor liable in damages. All the law exacts of a storekeeper is that he keep his premises in a reasonably safe condition and use ordinary care with respect to patrons and others lawfully in his place of business. The defendant not having had notice or knowledge that the animal possessed vicious tendencies or that persons entering his business establishment would be exposed to danger because of the animal's presence, he is not liable.

The trial judge also concluded that there was liability in defendant for having failed 'to use a high degree of precaution and care in order that the cat might be kept under observation.' This conclusion is the focal point in the case.

The general basis of the law of tort in Louisiana is found in LSA-C.C. art. 2315 which in part reads as follows:

'Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; * * *.'

Under our jurisprudence negligence is actionable only when it is the violation or disregard of some legal duty. In Prescott v. Central Contracting Co., 162 La. 885, 111 So. 269, 270, the Court said:

'* * * it is a well-recognized rule of law that negligence is the violation or disregard of some duty.'

The Supreme Court in P. Olivier & Sons, Inc., v. Board of Com'rs of Lake Charles Harbor and Terminal Dist., 181 La. 802, 160 So. 419, 420, made this observation:

'A tort is a private wrong, independent of contract. It is a breach of legal duty, * * *.'

In Weadock v. Eagle Indemnity Co., 15 So.2d 132, 138, the Court of Appeals for the Second Circuit had this to say:

'Every tort action embraces three distinct elements, viz.:

'1. Existence of legal duty from defendant to plaintiff;

'2. Breach of that duty, and

'3. Damage as a proximate result.'

Unless a man is responsible for another person's injury or distress, ordinarily he is under no legal duty or obligation of giving him aid, help or assistance, or to go to his relief.

It is a well-recognized principle of law that:

'One who sees another in peril, for which he is in no way responsible and which is entirely disconnected from any agency or instrumentality with whose control he is concerned, is not under any legal obligation to attempt to rescue such person, * * *.' 65 C.J.S., Negligence, § 57, p. 550.

In Plutner v. Silver Associates, Inc., 186 Misc. 1025, 61 N.Y.S.2d 594, 595, it was said:

'Concededly, there is no legal duty to offer relief or assistance to one who is sick or injured. It is true that there may be a strong moral and humanitarian obligation to furnish such aid and assistance under...