Odum v. Newstadt's Shoe Stores

• Decision Date: 07 February 1940
• Docket Number: 5955.
• Citation: 194 So. 81
• Parties: ODUM v. NEWSTADT'S SHOE STORES ET AL.
• Court: Court of Appeal of Louisiana — District of US

194 So. 81

ODUM v. NEWSTADT'S SHOE STORES ET AL.

No. 5955.

Court of Appeal of Louisiana, Second Circuit.

February 7, 1940

Appeal from First Judicial District Court, Parish of Caddo; Robt. J O'Neal, Judge.

Action by Sadie Louise Odum against Newstadt's Shoe Stores and others for injuries resulting from the wearing of shoes purchased from defendants. An exception of no cause of action was sustained, and, from the judgment dismissing the petition, plaintiff appeals.

Affirmed.

Albert E. Bryson, of Shreveport, for appellant.

Isaac Abramson, of Shreveport, for appellees.

HAMITER, Judge.

Defendants herein, being the commercial partnership of Newstadt Shoe Stores and the individual partners thereof, successfully urged in the trial court an exception of no cause of action and from the judgment dismissing her suit plaintiff appealed.

The allegations of fact of the petition, which are taken as true for the purpose of considering the case on the mentioned exception, disclose that plaintiff went into the store of defendants in Shreveport, Louisiana, on June 24, 1938, and asked to be fitted with white, dress, high-heel pumps. She looked at many of them and ultimately made a selection. Both shoes of the pair selected were tried on, and she agreed after receiving assurance from the salesman, that they fitted her feet. The left shoe she had decided to buy was then wrapped with a right shoe of the same model, fashion, style and appearance but which was one-half size smaller; and for these she paid the agreed purchase price. Her feet at that time were normal in every respect.

The following day plaintiff visited in New Orleans, Louisiana, and then and there wore the shoes for the first time. The right foot, at the joint of the big toe, became, during that day, exceedingly painful, swollen and inflamed, all because of the shoe worn thereon. She was then in a situation where she could not effect an exchange of the footwear or avoid their use. Thinking that the injury resulted by reason of the newness of the shoe, she thereafter wore the pair in and around the premises where she stayed in an effort to bring about their softness.

After returning to her home in Shreveport on July 12, 1938, her right foot required medical attention; and on September 12, 1938, an operation was performed thereon and about one-half inch of the bone of the great toe was removed.

It is charged in the petition that, " the direct, proximate, sole and only cause for plaintiff's injury was the mistake and negligence on the part of defendants' agent in wrapping up and delivering to her one shoe which she did not buy, did not fit her and was too small" ; and plaintiff prays that defendants be condemned to pay her damages arising from the physical injuries sustained in the amount of $6,110.

Plaintiff's counsel, in aid of the action, calls attention to Civil Code article 2315, wherein it states: " Every act whatever of man that causes damages to another, obliges him by whose fault it happened to repair it" ; and also the following provisions of Section 13 of Civil Code article 3556:

" Fault.--There are in law three degrees of faults: the gross, the slight, and the very slight fault.

" The gross fault is that which proceeds from inexcusable negligence or ignorance; it is considered as nearly equal to fraud.

" The slight fault is that want of care which a prudent man usually takes of his business. " The very slight fault is that which is excusable, and for which no responsibility is incurred."

He then argues that the act of the salesman in delivering to plaintiff a misfit shoe which injured her was at least a slight fault, and his employers, defendants herein, are obliged to stand the damages flowing from the injuries.

In determining liability under those codal provisions, consideration must be given to the question of whether or not the aggrieved party was also at fault in the commission of the act that resulted in the damages. There can be no recovery if he was guilty of negligence that had a causal connection with the complained of occurrence; provided, of course, the last clear chance or discovered peril doctrine is not applicable, as in this case.

The position of defendants herein under their exception of no cause of action is that the alleged injuries of plaintiff resulted from her persistent wearing of the right shoe after she realized that it produced pain and did not fit. Ordinarily, contributory negligence, which they in effect urge, must be...