Monnier v. Godbold

• Decision Date: 12 February 1906
• Docket Number: 15,682
• Citation: 40 So. 604,116 La. 165
• Court: Louisiana Supreme Court
• Parties: MONNIER v. GODBOLD et al

40 So. 604

116 La. 165

MONNIER v. GODBOLD et al

No. 15,682

Supreme Court of Louisiana

February 12, 1906

Appeal from Civil District Court, Parish of Orleans; John St. Paul Judge.

Action by Jules Monnier against Fabius C. Godbold and Walter T Taylor. Judgment for defendants, and plaintiff appeals. Affirmed.

Miller Dufour & Dufour, for appellant.

Richardson & Soule, Rice & Montgomery, and Henry L. Garland, for appellees.

NICHOLLS J. MONROE, J., dissents.

OPINION

NICHOLLS, J.

Statement of the Case.

Plaintiff brought this suit for damages against defendants, as members of the state board of pharmacy, established by Act No. 66, p. 74, of the General Assembly of the year 1888. He claims the sum of $ 3,884 for attorney's fees and losses in business and exemplary damages from defendants in solido, by reason of their refusal to register as a pharmacist under the act mentioned, without examination, or the exhibition of a diploma, until ordered to do so by the judgment of the Supreme Court in the suit of State ex rel. Monnier v. Board of Pharmacy, 110 La. 99, 34 So. 159.

Plaintiff alleged that defendants, as members of the board, voted in favor of the said action taken by it. He avers that the action of the defendants in so doing was tortious, willful, and malicious.

Defendants set up various exceptions, such as no cause of action and the prescription of one year. They pleaded the general issue, and averred that their action was under and by virtue of a resolution of the board adopted in 1895, and that the then Attorney General of the state advised them that in his judgment the resolution was within the power of the board.

There was judgment in the district court in favor of the defendants, and plaintiff appealed.

Opinion.

The positions taken by plaintiff, as shown by the brief filed on his behalf, were:

(1) A mistake as to his duty and honest intention will not excuse a public officer who neglects or refuses to do a ministerial act which the law requires absolutely to be done by him. A. & E. Enc. of Law, vol. 23, p. 377.

A public officer depriving one of his legal rights, through "novel but unsound principles," cannot claim to be acting in good faith. All the more is he liable when the highest law officer in the state advises him that his action is, at best, doubtful. The act complained of was a continuous one. The plea of prescription of one year does not apply. Drews v. Williams, 50 La.Ann. 579, 23 So. 897.

And those urged by the defendants were:

(1) When the defendants in a suit for damages, being public officers acting in the conscientious, even if mistaken, discharge of their duties, under the advice of competent counsel and of the highest law officer of the state, are admittedly without malice, they cannot be made liable in damages as for a tort.

(2) A plaintiff, an admitted violator of the law, now invoked by him for 14 years, lacks clean hands for recovery of damages against those charged with its execution, who conscientiously, even though mistakenly, but on the highest legal advice, refuse his claim for registry thereunder.

(3) Damages can be recovered only when the act complained of is the proximate cause. Brice v. Jones, 5 La.Ann. 635, 636.

(4) Attorney's fees, if recoverable at all from the opposite party, are not so where the party has acted in good faith, except in certain cases specified in law.

(5) The prescription of one year from the date of the alleged wrong is the prescription applicable to the cause at bar. Talle v. De Monasterio, 48 La.Ann. 1235, 20 So. 687; Edwards v. Turner, 6 Rob. 382; Crow v. Sheriff, 45 La.Ann. 1227, 12 So. 122; Brown v. Clingman, 47 La.Ann. 25, 16 south. 564.

It was the duty of the plaintiff to have done everything in his power to minimize the damages resulting (if any) from the situation. Levy v. Carondelet Canal Co., 34 La.Ann. 180; Tardos v. Railroad Co., 35 La.Ann. 16; Beers v. Board of Health, 35 La.Ann. 1132, 48 Am. Rep. 256; Insurance Company v. Werlein, 42 La.Ann. 1046, 8 So. 435, 11 L.R.A. 361.

The items of damages claimed by the plaintiff are set out in a bill annexed to plaintiff's petition as follows:

Attorney's fees for the institution

and prosecution of suit No. 67,743,

the sum of

$ 1,000 00

The costs of printing briefs filed in

Supreme Court in said suit No.

67,743

14 50

Expenses paid by plaintiff to competent

persons, pharmacists, druggists or

or apothecaries, at different

times, to supply and fill plaintiff's

position as pharmacists in Robin's

Pharmacy, where he was employed

from beginning of said suit, including

also the board of said respective

parties, which was a part of

the compensation or pay for said

place, all as is shown in detail as

to dates, names, and amounts, etc.,

in statement filed as part hereof,

the sum of

516 25

Amount of actual loss of salary and

board which plaintiff would have

earned had been in the actual

pursuit of his occupation or employment

in said place, during pendency

of said suit, at a salary of

$ 30 per month, and his board and

lodging which he would have had,

had he been able to discharge the

duties of said position, $ 20.00 or

$ 50.00 per month, for all of which

he lost by reason of the acts and

conduct of said defendants

516 25

Actual loss and damages resulting

from the uneasiness, anxiety, and

distress of mind caused to petitioner

by the aforesaid willful, unlawful,

and malicious acts and conduct

of defendants, which were in

flagrant contempt of the law

1,000 00

Punitory or exemplary damages for

which each one of the defendants

in this suit should be condemned to

pay for their willful, malicious, and

unlawful acts and conduct in the

premises

1,000 00

$ 4,047 00

The district court assigned the following reasons for its judgment:

"The evidence in this case failed to establish any malice on the part of the board of pharmacy at the time when they refused to register the plaintiff. On the contrary, it shows that they acted on the advice of two Attorney Generals of the state and of special counsel. However erroneous that advice might have been, and however mistaken they were, I am not of the opinion that they are liable in damages for their action. Public officers who, in good faith and in acting in the line of their duties, honestly mistake the extent of their powers and the nature of their duties, are not liable for the damages caused by them in the honest discharge of those duties, however much they may be in error.

"Judgment for defendants."

The act for the violation of whose provisions in his favor plaintiff relies on is Act No. 66, p. 74, of 1888, entitled:

"An act to regulate the practice of pharmacy, to regulate the sale of compounded medicines, drugs, preparations and prescriptions, to regulate the sale of poisons, to create a state board of pharmacy and to regulate the fees and emoluments thereof, to prevent the practice of pharmacy by unauthorized persons, and to provide for the trial and punishment of violators of the provisions of this act by fine or imprisonment."

The first section of the act provides that it shall hereafter be unlawful for any other than a registered pharmacist to compound medicines, drugs, or chemicals, or to institute or conduct any apothecary or drug store, or pharmacy shop for compounding drugs, medicines, or chemicals, or for any person to be employed therein, or placed in charge thereof, for the purpose of compounding drugs or chemicals under prescriptions or otherwise.

The second section provides that any person 21 years of age shall be entitled to registration as a duly registered pharmacist on exhibiting to the board of pharmacy a diploma from any college or school of pharmacy, in Europe or America, of good and respectable standing, the status of the institution as to respectability and standing to be judged and approved by said board, together with the affidavit of the applicant, stating his age, nativity, and that he is the bona fide holder of the diploma, and the person named therein, and that he is a regular graduate or alumnus of said institution, or, in case that said applicant shall produce no diploma as hereinabove set forth, it shall be sufficient for him to present an affidavit that he has had four year's practical experience in the manipulation and compounding of physicians prescriptions under the supervision of a registered pharmacist, who shall also attest the truth of the said affidavit by swearing thereto, if said registered pharmacist be alive and resident in the state of Louisiana, and said affidavit shall set forth the age of the applicant, the place of his nativity, and when and where he has practiced pharmacy, said affidavits to be preserved on file by the board of pharmacy as a part of its records.

The third section provides that the foregoing provisions of this act shall not apply to or affect any person who shall be engaged in the actual preparation, compounding, and dispensing of medicines or drugs and apothecary business as proprietor of the same, or as qualified assistant therein, at the time of the passage of this act, except in so far as relates to registration and fees provided in section 5. A qualified assistant engaged in the business at the time of the passage of this act is one who has not had less than two years' practical experience in the preparations compounding, and dispensing of medicines or drugs in the drug and apothecary business. All other actual assistants actually engaged in the business at the time of the passage of this act shall, upon the completion of a like term of two years' experience, be entitled to registration as qualified assistants without examination, provided that nothing contained in this act shall, in any manner whatever, interfere with the business of...