Shelp v. National Surety Corporation

• Decision Date: 26 June 1964
• Docket Number: No. 20805.,20805.
• Citation: 333 F.2d 431
• Parties: Mary H. SHELP and Genevieve M. McKinney, Appellants, v. NATIONAL SURETY CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

333 F.2d 431 (1964)

Mary H. SHELP and Genevieve M. McKinney, Appellants, v. NATIONAL SURETY CORPORATION, Appellee.

No. 20805.

United States Court of Appeals Fifth Circuit.

June 26, 1964.

Theodore J. Pfister, Jr., Kierr & Gainsburgh, New Orleans, La., for appellants.

Gerard M. Dillon, E. E. Huppenbauer, Curtis, Foster, Dillon & Huppenbauer, New Orleans, La., for defendant-appellee.

Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

The question this diversity tort action presents is whether, under Louisiana law, the lessor or the lessee is responsible for repairs to the doors of leased premises. The case turns on the variance between the French and English texts of Article 2686 of the Code of 1825. That article was the predecessor to Article 2716 of the Louisiana Revised Civil Code of 1870 which was published only in English. The district court held that the 1825 French text of Article 2686, binding the lessee for repair of doors, prevails over the 1870 text of Article 2716. 218 F.Supp. 615. We affirm.

I.

One of the two plaintiffs leased an apartment in the French Quarter in New Orleans; the other was her house-guest. The complaint alleges that an intruder gained access to the apartment through the failure of the front door to close properly, assaulted both ladies, and raped one of them. The plaintiffs sued the lessor's insurer under the Louisiana Direct Action Statute, LSA-R.S. 22:655, alleging that the lessor was at fault "in failing to furnish a safe entrance door". The plaintiffs base their action on Article 2322 of the LSA-Civil Code:

"The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction."

The parties agree that the lessor would be liable to the lessee and to a third person lawfully on the leased premises only if he were responsible for repair of the door.

The district court granted the defendant's motion for a summary judgment on the ground that Article 2716 of the LSA-Civil Code relieves the lessor of liability for defects in the premises which the lessee is obliged to keep in repair. The first and last paragraphs of Article 2716 read:

"The repairs, which must be made at the expense of the tenant, are those which, during the lease, it becomes necessary to make;

* * * * * *

"To windows, shutters, partitions, shop windows, locks and hinges, and everything of that kind, according to the custom of the place."

Article 2716 is an exact copy of the English text of Article 2686 of the Code of 1825.¹ It contains no reference to doors. But the French version of Article 2686 includes repairs to "portes" (doors) among the repairs the lessee must make.² The last paragraph of the French text reads:

"Aux portes, croisées, planches de cloison et de fermeture de boutique, gonds, tarjettes, (targettes) serrures et autres, suivant l\'usage des lieux."

Correctly translated, this paragraph reads:

"To doors, casement windows, wooden partitions and shop shutters, hinges, bolts, locks and other things, according to the custom of the place."³

The French text of Article 2686 of the 1825 Code is identical with the French text of Article 30, Title VIII, p. 278, of the 1808 Code.⁴ The English text of Article 30 follows the French version in that the lessee "is bound to keep in repairs the doors, etc."⁵ This article is derived from Article 1754 of the Code Napoleon (1804)⁶ or, possibly, from the corresponding article of an earlier draft of that code,⁷ the Projet du Gouvernement (1800).⁸ Both the Code Napoleon and the Projet du Gouvernement require the lessee to repair doors of leased premises.

The plaintiffs point out that the legislature promulgated the present code, the Revised Civil Code of 1870, only in English. They argue that there is no ambiguity in Article 2716 and that in construing the Code, as in construing any legislative act, a court is bound by the plain wording of the law: where there is no ambiguity in the language of an article courts cannot change its meaning by resorting to the French text of the Code of 1825.⁹ They rely on an all-fours case, Bradley v. Yancy, 1939, 2 Ct.App. La., 195 So. 110.

II.

It is at least arguable that the catchall phrase "everything of that kind, according to the custom of the place" creates an ambiguity. Repairs to a door are in the nature of repairs to windows, shutters, and partitions.¹⁰ Thus, the lessee has been held liable for the repair of doorknobs.¹¹ Moreover, as a practical matter, it seems reasonable to have the same party liable for all the repairs to a door. Since the lessee must repair the locks and hinges of doors, it is hard to believe that the legislature deliberately intended to release the lessee from liability to repair doors.

More importantly, in Louisiana, as in all civilian jurisdictions, the Civil Code is more than an ordinary legislative act. The Code, doctrinally, constitutes the whole body of private law. A statute, on the other hand, is small in scope, narrow in its objective and, unless it is a petit code, such as the Louisiana Trust Code, is intended to deal with a specific mischief or a specific need. The relation between a code and a statute in the field of private law may be analogized to the relation between the common law and a statute in derogation of the common law.¹² Geny and other outstanding civilians have written learnedly on the subject.¹³ We quote a less renowned authority but a highly respected Louisiana scholar, George Dreyfous, because his comment was provoked by the Bradley v. Yancy misconstruction of Article 2716:

"If the Code were to be construed as an ordinary statute, the Act of 1828 repealing all civil laws in effect before the promulgation of the Code of 1825 would have created anarchy, since it is manifestly impossible to digest all of the laws of a complex society in a single volume less than one-half of the size of the Acts of 1840. The very nature of a code requires that analogies be drawn from its express provisions in deciding cases for which no exact rule can be found in the code and that when an article abstracts the preexisting law the earlier jurisprudence be considered in cases not covered by the abstract."¹⁴

To parallel Marshall's famous maxim, we must never forget that it is a Code we are expounding.

True, Article 6, Section 15, of the Louisiana Constitution of 1812 provided that all laws enacted by the legislature must be written and promulgated in the language in which the United States Constitution was written. In accordance with that requirement, the Louisiana legislature, from 1808 to 1867, enacted its statutes in English. A clerk then translated the statutes into French for publication. The constitutional provision and the legislative practice very properly gave rise to the rule that the English text of Louisiana statutes controls.¹⁵ State v. Ellis, 1857, 12 La.Ann. 390, 392. State v. Mix, 1844, 8 Rob., La. 549; Williams v. Robinson, 1850, 5 La.Ann. 110; Parish of Lafourche v. Parish of Terrebonne, 1882, 34 La.Ann. 1230. There can be no objection to this canon. The French text of a Louisiana statute represented not the legislature's enactment of the original text but a hired clerk's translation. This was not the case with the Codes of 1808 and 1825. Viterbo v. Friedlander, 1887, 120 U.S. 707, 7 S.Ct. 962, 30 L.Ed. 776, on which the plaintiffs rely, is simply wrong. Failure of counsel to present the historical background led the United States Supreme Court into mistakenly applying a rule of statutory construction that was inapplicable to the Civil Code.

III.

The Code of 1808 set the pattern for the Code of 1825. At the time, all Louisiana laws were published, in the newspapers and in book-form, in French and English.¹⁶ The statute directing Louis Moreau-Lislet and James Brown to codify the law did not specify the language to be used,¹⁷ but since the legislature authorized a translation¹⁸ into English, the legislature understood that the projet was prepared in French. The act which adopted the Code of 1808 required that it be printed in both French and English¹⁹ and the legislature directed that in case of "any obscurity or ambiguity, fault or omission, both the English and French texts shall be consulted, and shall mutually serve to the interpretation of one and the other."²⁰

Any doubt as to whether the Code of 1808 was originally drafted in French was dispelled by Moreau-Lislet himself. In Dufour v. Camfranc, 1822, 11 Mart., O.S. 675, 688, 701, Moreau-Lislet called attention to a discrepancy between the English and French texts of Article 7. The report of the decision quotes him as saying:

"We have nothing to do with the imperfections of the translations of the Code. The French text, in which it is known that work was drawn up, leaves no doubt."

In 1822 the Louisiana legislature appointed Moreau-Lislet, Edward Livingston, and Pierre Derbigny to revise the Code by amending it "in such manner as they will deem advisable" and by adding to it "such of the laws as are still in force and not included therein."²¹ As appears from the projet, all articles of the 1808 Code not amended or deleted were transferred to the new code in their original French.²² Among these was Article 30, Title VIII, p. 278, the progenitor of Article 2716 of the 1870 Code. The redactors, therefore, had no intention of changing the sense of the article.

Unfortunately, the English translation of the French text of the Civil Code of 1825 and, for that matter, the Code of Practice of 1825, was spectacularly bad. The Supreme Court of Louisiana has said:

"The definition relied on from the English side of one of the Articles of the Code proves nothing but the ignorance of the person who translated it from the French."²³

Edward Dubuisson, Sr., in his study of the errors in translations in the Codes of Louisiana, has written:

"The conclusion is, therefore,

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