Melancon v. Mizell

• Decision Date: 09 January 1950
• Docket Number: No. 39219,39219
• Citation: 44 So.2d 826,216 La. 711
• Parties: MELANCON v. MIZELL et al.
• Court: Louisiana Supreme Court

Page 826

44 So.2d 826

216 La. 711

MELANCON v. MIZELL et al.

No. 39219.

Supreme Court of Louisiana.

Jan. 9, 1950.

Rehearing Denied Feb. 13, 1950.

Ott & Richardson, Bogalusa, for plaintiff.

Ernest A. Carrere, Jr., and Edward F. Stauss, Jr., New Orleans, for defendant and appellee.

HAMITER, Justice.

A writ of certiorari, issued to the Court of Appeal of the First Circuit on the application of plaintiff brings this controversy before us for review.

The suit was instituted against Floyd M. Mizell, a termite control operator licensed by the Louisiana Pest Control Commission, and also against the Western Casualty & Surety Company, the surety on the named operator's bond given pursuant to the provisions of Act 124 of 1942, to recover damages allegedly sustained by the plaintiff as a result of Mizell's nonperformance of a termite contract.

Service of process on Mizell was never made. The surety, after receiving citation, tendered exceptions of no right and no cause of action. These were sustained by the district court and the suit, as to the exceptor, was dismissed. On an appeal to the Court of Appeal the judgment was affirmed, 37 So.2d 52.

For the purpose of passing upon the exceptions the well pleaded allegations of fact of the original and supplemental petitions, together with the recitals of the annexed documents, must be accepted as correct. These disclose a factual situation as follows: On January 25, 1947, plaintiff, Aynaud Melancon, contracted in writing to purchase, for a cash consideration of $11,000, the home of Lyman Mattox and his wife located near Bogalusa. The contract provided, among other things that 'Termite inspection is to be made, and if conditions are not found satisfactory agreement must be made to remedy condition.' In keeping with that provision, Mattox, on the same date, entered into a written agreement respecting the house with defendant Mizell who obligated himself, in consideration of $160 cash paid to him, 'to eradicate all substerranean termites therein and all non-subterranean termites in open construction therein, during a period of two years from date hereof * * *,' the work to be commenced on January 27, 1947, and completed without delay. Also contained in Mizell's agreement were provisions reading: 'Termite contract transferrable on change of owner * * * termite proof and inspect regularly * * * no repairs needed.'

Previously Mizell had applied for, and had obtained from the Louisiana Pest Control Commission (created by Act 124 of 1942), a license to engage in the profession of termite control and eradication; and in connection therewith he had furnished the bond to which reference is made in the following extract from the rules and regulations adopted by such commission: 'The applicant must furnish to the Chairman of the Commission a surety or fidelity bond in the amount of Two Thousand ($2,000.00) Dollars (on forms to be furnished by the Commission), as a guarantee to faithfully and honestly engage in the professions of entomology, termite eradication, control and eradication of household insects, fumigation, or rodent control, and to carry out all contracts entered into.'

The bond so furnished bears date of September 19, 1946, was signed by Mizell as principal and the Western Casualty & Surety Company as surety, and was approved for the Commission by its then Chairman, Harry D. Wilson. In part it states:

'Whereas, under the provisions of Section 6 of said Act [Act 124 of 1942], all applicants for licenses to carry on such work are required to execute a bond in the aforesaid amount conditioned, respectively, upon their honestly conducting said business; and

'Whereas, Section 7 of said Act requires that each pest control operator licensed thereunder shall enter into a written contract with the property holder employing him to control or eradicate termites, in which such contract the pest control operator shall guarantee for a period of two (2) years the performance of the terms of said contract;

'Now therefore, the conditions of this obligation are such, That, if the said Floyd Monroe Mizell, Principal herein, shall honestly conduct said business; shall enter into written contracts with all property holders employing him to control or eradicate termites, in which contracts he shall guarantee for a period of two (2) years the performance of the terms thereof; and shall perform such contracts in all their terms and provisions, including the guarantee clause thereof, then this obligation shall be null and void; otherwise, to remain in full force and effect.

'The term of this bond shall be from July 1st, 1946, to July 1st, 1948, and same shall cover all liability, according to its terms, incurred by the said Principal under any contracts entered into by him during the aforesaid period, in his capacity as a pest control operator conducting business under the terms and provisions of said Act 124 of 1942.' (Italics and brackets ours.)

Relying upon the written agreement between Mizell and Mattox (particularly the statement therein that no repairs were needed), and having concluded that the house had been or would be promptly freed of termites, plaintiff on January 29, 1947, consummated his purchase of the Mattox property by paying the cash consideration of $11,000 and receiving a deed evidencing his title. Shortly thereafter, upon taking possession of the premises, he found that the house was heavily infested with termites. Whereupon he notified Mizell of his finding and demanded that the condition be remedied in accordance with the termite contract. Mizell failed to satisfy the complaint in any manner, even refusing to return and inspect the premises.

Because of the presence of the termites extensive repairs to the house were necessary. Also, plaintiff was required to retain the services of another operator in order to properly treat the building and eradicate the termites.

In praying for a solidary judgment against Mizell and the defendant surety, awarding damages in the sum of $865.56, plaintiff makes the following additional allegations: 'Your petitioner further avers that the said Mizell was guilty of gross negligence in complying with the provisions of the contract entered into by him, as aforesaid, in the following respects: in failing to properly inspect the premises and to ascertain the extent of the infestation of said building with termites even though such infestation could have been easily ascertained had a proper inspection been made; by failing to use the proper materials and methods in exterminating termites from said building; by failing to disclose to your petitioner the true condition of the building as a result of the infestation with termites; by misleading your petitioner into believing that the house was free of termites and no repairs were needed; by the failure of the said Mizell to remedy the condition of the business after this condition was called to his attention and repeated demands made upon him to correct same.'

From the pleadings it does not appear that Mizell is charged by plaintiff with fraudulent practices in causing the damages for which judgment is sought. True, he alleges that the assertion that no repairs were needed misled him into believing that the house was free of termites. But this allegation does not disclose an intention on the part of Mizell to mislead or defraud; in fact it is found under and in connection with the general accusation of gross negligence. Plaintiff's action, as we appreciate it, is predicated on the theory that Mizell breached his contract by failing to faithfully perform the work which he undertook and guaranteed to do; and that, by reason of such failure of performance, his surety under the bond given pursuant to Act 124 of 1942, is liable for the resulting damages. The Court of Appeal considered that to be the theory of the action, and the following extract from the brief of plaintiff's counsel further indicates that it is: 'The petition filed herein shows a contract and a guarantee of the work, and the obligation of the defendant insurance company for the faithful performance of the contract. If plaintiff can prove what he alleges he has a cause of action against the insurance company, and the exception of no cause or right of action should be overruled.'

As shown above, and in accordance with the rules and regulations of the Pest Control Commission, Mizell's bond is expressly conditioned on the performance of his contracts in all their terms and provisions. However, defense counsel contend, and the Court of Appeal held, that since the bond is purely statutory and Act 124 of 1942 (under which it was given) stipulates for it (in Section 6) only the condition that the principal shall honestly conduct his business, the provision relating to the performance of contracts was improperly required by the Commission and erroneously contained therein. Hence, the question presented for determination is whether the bond's controverted provision or condition (assuming the bond to be purely statutory) is authorized by Act 124 of 1942.

In approaching this question we consider first the history and development of that statute. The initial legislation in this state on the subject of pest control and eradication was Act 57 of 1930, the object of which, as stated in its title, was to regulate the practice of entomological, pathological and tree surgery work, and to prevent fraudulent practices in those professional services. To that end the 1930 statute, in Section 1, created a Horticultural Commission, composed of the Commissioner of Agriculture and Immigration, the State Entomologist and the Director of Extension; and it granted to that Commission power to make rules and regulations to govern the qualifications of those conducting such professional services and to prevent fraudulent practices. An applicant for a license to engage in the work was required (under Section 4) to furnish a $500 bond, payable...