Venezie v. Salles

• Decision Date: 18 October 1937
• Docket Number: 16673
• Citation: Venezie v. Salles, 176 So. 407 (La. App. 1937)
• Court: Court of Appeal of Louisiana
• Parties: VENEZIE v. SALLES et al

176 So. 407

VENEZIE v. SALLES et al

No. 16673

Court of Appeal of Louisiana, Orleans.

October 18, 1937

Rehearing denied Nov. 2, 1937.

George P. Nosacka, and Clarence E. Strauch, both of New Orleans, for appellant.

John J Conners and Manuel I. Fisher, both of New Orleans, for appellee.

OPINION

WESTERFIELD Judge.

This is a suit for damages in the amount of $ 2,705 alleged to be due plaintiff for physical injuries resulting from an accident which occurred on the 3d day of March, 1935, when plaintiff fell into a manhole on the premises, No. 140 Dauphine street, owned by the Mercier Realty & Investment Company, and operated by George Salles as a restaurant and barroom. The suit was originally brought against both the owner and occupant of the premises, but the Mercier Realty &amp Investment Company filed an exception of no cause of action which was maintained and the suit dismissed as to it. Antonio Venezie, the plaintiff, acquiesced in the judgment of dismissal and the suit was tried against the defendant Salles alone with the result that judgment was rendered in plaintiff's favor for $ 605. Defendant has appealed, and plaintiff has answered the appeal asking that the judgment be increased to the amount prayed for.

George Salles operated a small restaurant and bar known as the "Palace Sandwich Shop." Antonio Venezie was a good customer of Salles and on March 3, 1935, at about 8:30 a. m. entered the Palace Sandwich Shop for the purpose of eating or drinking, and while there walked towards the rear of the premises with the intention of using the toilet. He fell into an open manhole which was directly in his path and which had been left uncovered by an employee of the defendant. It is alleged that the manhole is in a dark passageway insufficiently lighted, and that on this account, as well as because of the carelessness of defendant's employee in leaving the cover off, the defendant was guilty of negligence in that he failed to keep the premises safe for the use of his customers.

The case is defended upon the ground that the toilet in question is not a public but a private one, maintained for the exclusive use of defendant's employees and not for his customers who were not permitted to use it except upon special occasions and with express permission; that in order to get to the toilet it is necessary to go behind the service counter, through an aisle where the kitchen sinks are located and towards the rear of the defendant's premises, thus invading the privacy of defendant's business. There is also a contention that the plaintiff was guilty of contributory negligence though that defense is not specially pleaded. It is said that there is a sixty watt light over the manhole which is continuously burning night and day, and it is argued that there was no reason why plaintiff could not have seen the open manhole and have avoided it.

The evidence indicates that defendant's business occupies a limited space and that the toilet is situated at the end of a narrow passageway at one end of the bar. The manhole, which is nineteen inches in diameter, is situated near the center of the passage and about one-third the distance from the entrance to the toilet. It is used for the disposal of refuse from the kitchen, the sinks, and the tables. The toilet was unquestionably used by the employees of defendant, both white and black, male and female, because it is the only one on the premises. It was also used by the customers of the defendant and had been frequently used by the plaintiff in this case on former occasions, though he testified that the presence of the manhole was unknown to him prior to the accident. One of the negro employees of the defendant testified that he removed the cover from the manhole on the day of the accident and failed to replace it before he left defendant's place of business on an errand of his employer, the accident occurring during his absence.

Defendant relies upon the contention that the plaintiff was a licensee to whom he owed no greater duty than to refrain from wantonly injuring him. We are referred to Vargas v. Blue Seal Bottling Works, 12 La.App. 652, 126 So. 707, a case decided by this court, in which it was held that a salesman who had entered the premises of a bottling company for the purpose of selling a bottling machine and who remained to witness the operation of a competitor's machine with the permission of the bottling company, and who was injured by the explosion of a bottle, was a licensee at the time of his injury though he occupied the status of an invitee at the beginning of his visit.

We are also referred to a number of cases from other jurisdictions: Herzog v. Hemphill, 7 Cal.App. 116, 93 P. 899; Liveright v. Max Lifsitz Furniture Company, 117 N.J.L. 243, 187 A. 583; Standard Oil Company of Indiana v. Henninger, 100 Ind.App. 674, 196 N.E. 706; Collins v. Sprague's Benson Pharmacy, 124 Neb. 210, 245 N.W. 602.

The Vargas Case is easily distinguishable from the case at bar. Vargas, at the time of his injury, was engaged in observing the operation of a machine manufactured by a competitor and, consequently, he was solely occupied in the gratification of his own interest or curiosity. There was no mutuality of interest. C. J. vol. 37, verbo License, p. 161.

The other cases cited are not so easily disposed of. For example in the Herzog Case, where the proprietor of a tamale stand in San Francisco permitted one of his customers to use...