American Fire & Casualty Co. v. Jackson, 187 F.2d 379 (5th Cir. 1951)

This suit was brought against the defendant as the liability insurer of Carson Furniture Co., Inc., under an owner, landlord, and tenant policy insuring the company against liability for bodily injuries growing out of the operation of premises leased by it, to recover damages for injuries sustained by plaintiff's child, Linda, an infant less than one year old.

The claim was: that plaintiff was manager of the store and, with his family, an occupant of the residence apartment on the mezzanine floor; that when Linda and her mother, as members of his family, upon the father's invitation and with the consent of the corporation, having come up the stairs and proceeded to the apartment twenty feet away, were about to enter it, Linda pulled away from her mother and, because of the negligence¹  of Carson Furniture Company, in maintaining the stairway with insufficient railings, fell through the opening in the stair rail onto the concrete surfacing of the main floor.

Defendant moved to dismiss the complaint for failure to state a cause of action. Its motion to dismiss denied, defendant answered, admitting that it had issued the policy sued on but denying generally plaintiff's allegations of negligence and fault and pleading the contributory negligence of plaintiff and Mrs. Jackson.

At the conclusion of the evidence,²  defendant moved to dismiss and for a directed verdict on the ground that no case of negligence on the part of Carson Company was made out. This motion was reserved, the case was sent to the jury, and there was a verdict for plaintiff for $6500.

Defendant's motion to dismiss and its alternative motion for a new trial on the grounds (1) that the motion for a directed verdict should have been granted, and (2) that the verdict is excessive and appears to have been given under the influence of passion and prejudice, was denied, and defendant has appealed.

Appellant is here insisting that Linda was not an invitee but a mere licensee, but that if she was an invitee, it is the settled jurisprudence of Louisiana as set out in Guidry v. Hamlin, La.App., 188 So. 662; Browne v. Rosenfield's, Inc., La.App., 42 So. 2d 885, and similar cases, that no negligence was shown, no case of liability against its insured made out, and the judgment should be reversed and here rendered.

In the alternative it insists that the judgment should be reversed for abuse of discretion in refusing to grant a new trial because of the excessiveness of the verdict, and the cause should be remanded with directions for trial anew.

Appellee, on his part, insisting with equal vigor that Linda was an invitee and that the cases on which appellant relies for reversal and rendition are not in point, and, further, that there was no abuse of discretion in denying the motion for new trial for excessiveness in the verdict, urges affirmance.

We agree with appellant that the verdict was excessive, as matter not of fact but of law, that is, that there was no basis in pleading or evidence for the submission of the issue of permanent injuries, and, without such, no basis for a verdict of such size. Permanent injuries have not been alleged, and not only is evidence of permanent injury entirely lacking, the evidence offered is completely inconsistent therewith.³ 

As the authorities cited in the brief of appellant show, the Louisiana rule is "One claiming permanent injury must prove it with reasonable certainty; proof that permanency was probable being insufficient." Klein v. Medical Bldg. Realty Co., La.App., 147 So. 122. In Bartholomew v. Impastato, La.App., 12 So. 2d 700, 707, the court said: "It is our view that the opinions voiced by Drs. * * * as to the conditions which may develop in the future, are too speculative to warrant the conclusion that the injuries to the child are permanent." While the case is not from Louisiana but from Texas, Texaco Country Club v. Wade, Tex.Civ.App., 163 S.W.2d 219, 224 is also in point. There a doctor was permitted to testify that there was a two to five percent chance that the plaintiff's disabilities would persist after three years. The appellate court stated: "Under this state of facts, we think that the portion of the jury's verdict which awarded the minor appellee $4,000 for future physical pain, $4,000 for future mental suffering, and $5,000 for future diminished earning capacity, not having been based on competent testimony, should not be allowed to stand," and the judgment was ordered reversed, absent a remittitur of $13,000.

If, therefore, we could agree with appellee that the action of the court below, in refusing to direct a verdict was not error, we should, nevertheless, order the judgment reversed because of the error of the district judge in refusing to grant a motion for new trial for excessiveness in law of the verdict.

Of the opinion, however, for the reasons hereinafter stated, that the denial of the motion to direct a verdict was error and the judgment should be reversed on that ground, the judgment will be reversed for that error, rather than for the excessiveness in law of the verdict.

We agree with appellee: that plaintiff's wife and Linda were on the premises not as mere licensees but, as the wife and daughter of plaintiff, the sub-tenant of Carson, there by invitation of plaintiff and of Carson, the lessee of Wilson, lessor and owner of the premises; and that Wilson and Carson, Inc., and, therefore, the defendant, the insurer, would have been liable if Linda's injuries had been caused by their negligence as alleged.

We agree with appellant, though, that under the law of Louisiana, as fully and carefully set down in Guidry v. Hamlin, supra, a case precisely in point on its facts, and in Browne v. Rosenfield's Inc., supra, no negligence was shown.

The only differences between Guidry v. Hamlin and this case are as follows. There the child was two years old. Here it was less than one. There the lower rail of the bannister was 19½, here it was 27½, inches above the floor. There the suit was against the owner, lessor. Here it is against the insurer of the lessor and his lessee. There the court, assuming that Civil Code Articles 2692 and 2693 placed upon the lessor obligations in favor of a member of the tenant's family, stated his nonliability thus: "* * * the only requirement which might to any extent be considered pertinent here is that the thing leased must be in condition suitable for the purpose for which it was leased. It is apparent that the rail in question was perfectly safe for all persons except those so young or so small as to require special care and attention. There is nothing dangerous to the normal person in such a rail. There is danger only if there is involved one so young as to be incapable of exercising care, and, in the case of so young a person, everyone is justified in assuming that special attention, or care, or supervision, will be afforded by parents or others in authority. * * *" [188 So. 664.]

Appellee, pointing out that the above quoted portions of the opinion state the law as to the liability of a lessor under Sections 2692 and 2693 of the Code and not under Article 2315, which is the basis of liability asserted here, insist that what was said there is not in point here. As this further quotation from the Hamlin case will show, this will not avail him:

"* * * It is true that, under Art. 2315 of the Civil Code, liability to any person, whether tenant or anyone else rightfully on the premises, might result from negligence in creating such a trap as we have referred to; but, surely, even that article cannot be construed as placing upon a house owner liability merely because he does not make his building foolproof, or because he does not so construct it as to make it impossible for infants to injure themselves. There is no negligence because, surely, such a house owner may assume that such very young children will be protected by older persons responsible for them. * * *

"Surely, one who leases a building even for residential purposes and even if he knows that the family of the tenant includes young children, may assume that those in authority will protect such young children and will see to it that they are not permitted to wander alone on galleries, or in other places from which they might fall.

"We do not base freedom from liability upon the contributory negligence of the parents, but solely upon the fact that there is no negligence in the owner of the building in failing to foresee that the parents will not protect their very young children against such dangers."

Browne v. Rosenfield's Inc., while dealing specifically with the attractive nuisance doctrine is to precisely the same purport. This is that, in the law of Louisiana, negligence cannot be predicated of common and ordinary objects such as walls, fences, stairs, and gates, and other used and useful structures and apparatus, and conditions arising in and from the ordinary conduct of a business, which are safe for use by adults, merely because they cannot be safely used by babies unattended by adults, charged with the duty to look after them.

That this is the general law of Louisiana, under Articles 2315 and 2316, and not merely the law of lessor and lessee, is further emphasized by what is said in Biegel v. City of New Orleans, 143 La. 1077, 79 So. 867: "* * * The municipal authorities have a right to presume that, for every child under the age of discretion, there is some one of mature judgment on whom rests the special duty and responsibility for the safety of the child."

The cases of Salter v. Zoder, 216 La. 769, 44 So. 2d 862, and Vidrine v. Evangeline Gravel Co., 6 La.App. 468, on which appellee relies, are not at all in point. In the first case, the negligence charged and proved was the placing on a paved driveway of a stack of lumber covered by galvanized iron extending beyond the edges on all sides, an obstructive condition which was negligent on its face. The only questions argued there were whether the child of the subtenant was a trespasser or a licensee, and the defendant owed the same duties and obligations to the sub-tenant and members of his family as to the tenant, though the sub-tenant paid rent directly to the tenant.

The case would be authority for the holding that Wilson, the owner and lessor of the building here, and Carson Furniture Co., and their insurer would be liable to Linda as the child of the sub-tenant, if negligence had been shown. It is not authority for holding that there was negligence here.

In Vidrine's case, the suit was by an adult, the wife of an employee, for damages caused to her by a cogwheel without a cover which was being operated in connection with a water well, and the court very correctly held: that the plaintiff was entitled to be where she was and to do what she was doing when she got hurt; that defendant was guilty of negligence; and that she was not guilty of contributory negligence.

Defendant's motion for a directed verdict should have been granted. For the failure to grant it, the judgment is reversed and the cause is remanded for further and not inconsistent proceedings.

RUSSELL, Circuit Judge, dissents.

Rehearing denied; RUSSELL, Circuit Judge, dissenting.