Brandon v. Gottlieb , 16 La. App. 676 ( 1931 )

LeBLANC, J.

Plaintiffs are the father and mother of a young negro hoy who was injured in an elevator accident in the Cangelosi building in the city of Baton Rouge, on Thursday, July 21, 1927, and died as a result of his injuries on the following Saturday, July 23, 1927. They seek-to recover damages in the sum of $12,000 for the death of their son, which, they allege was caused through the negligence of the lessee of the building, Lewis Gottlieb, in maintaining an old and dilapidated elevator therein and in not having an experienced and competent tender operating it on the day that he was injured. The Metropolitan Casualty Insurance Company of New York, indemnitor of the lessee of the building, is also made party defendant to the suit, and judgment is prayed for against both defendants in solido.

Plaintiffs allege in their petition that there had been a pretended adjustment and settlement of all .claims for liability, which they aver was obtained under certain circumstances and conditions detailed by them at length, all of which they attack on the ground of fraud and misrepresentation on the part of defendant .Gottlieb’s agent, M. E. Byrd, and also on the part of one W. A. Merchant, claim adjuster and representative of the Metropolitan Casualty Company, the other defendant.

This purported settlement in compromise or release, as it is styled, formed the basis of an exception of no cause of action; which was sustained by the district court in December, 1927. On appeal to this court, the judgment of the lower court on the exception was reversed and the case was remanded to the district court for further trial on the merits. See Brandon v. Gottlieb et al., 8 La. App. 415.

Defendants resist the claim on three grounds: (1) That the settlement in which plaintiffs accepted $350 was a complete adjustment of- any and all claims they might, have against them, and operated as a release which they aver that it is, from all liability whatever for any damages ■ that might arise out of the injury and death of their son, all charges of fraud and misrepresentation are of course denied; (2) that- there was no negligence on , the part of the lessee of the building whatsoever; and (3) that plaintiffs’ son, by his own wanton and gross negligence contributed to his -own injury and resulting death.

It was on .the Friday following the Thursday on which the.accident happened that the question of a settlement was first broached. Byrd, Gottlieb’s, agent, had gone to the hospital where the injured boy was, to see how he was getting along. He says that while there he was asked something by the boy’s father as to how the expenses were going to be paid. He answered him that he thought the company (meaning no doubt' the insurance company) would pay all the doctors’ and hospital expenses. With ’ this opening, which offered an opportunity of adjusting what might eventually turn out to be, as it subsequently did, a large. .claim for damages, Byrd lost no tihie in getting into communication with Merchant, the claim adjuster of the insuranee company. Merchant came from New Orleans -to Baton ■ Rouge on the, .following day, Saturday, and, after a hurried investigation -of the accident, he and Byrd had a conference with-the boy’s father and one of. the latter’s friends named Joe King. A proposition to pay $850 cash for a release from all claims for damages, at the same time disclaiming all liability, was submitted, but it was not accepted that day. It was the same proposition which however resulted in the signing of the release by the plaintiffs a few days later.

It seems that from the very beginning there was no hope for the boy’s recovery. Byrd appreciated that fact, as the testimony reveals. It was on the very Saturday that they were trying to effect a settlement that he died, and we hesitate to think that, on that unfortunate day for them, his parents were in a condition of mind to. consider and carefully weigh the details of a proposition which meant the relinquishment of any and all claims for damages for the death of their son. The matter of settlement did not seem to be that pressing, and it might have been more proper .to defer for a day or two at least the opening of any negotiations leading thereto.

However, as already noted, plaintiffs did not accept on that day, the orfer made to them, and we would not be disposed to set aside the release because of these agents’ impropriety alone, if their action may be so termed, were it not for another more important and serious circumstance surrounding its. confection, which in our opinion, affects its validity.

In their investigations of 'the accident, Byrd and Merchant learned that there was but "one person who claimed to have seen how it happened. That was- Mrs. O. P. Kennedy, a lady who With her husband occupied offices on the second floor of the building. She was interviewed by them and gave an account which would appear unfavorable to the defendants. In making their offer to the plaintiffs, Byrd and Merchant laid before .them their theory as to how their son was injured, based on facts learned by them, which would indicate that he alone was at fault. They did not, however, give them the information which they had obtained from Mrs. Kennedy, according to which, the boy was injured through the gross carelessness of the operator of the elevator. Their reason for withholding that information they say, was because Mrs. Kennedy refused to commit her statement to writing and also because of some remark made by her which satisfied them that she was not telling the truth. The fact that they did not believe her did not give them the right to suppress what she had told them when they came to deal with the plaintiffs in order to obtain a release from them. The latter were entitled •to the benefit of that information as well as the other information they had received and judge for themselves of its truth or falsity. It would have been fairer not to give them any of the knowledge they had and let them make their own independent investigation. By disclosing only a part of it and suppressing some, they led these plaintiffs into an error of fact, which it may be said “comes under the head of fraud’’ which is sufficient to invalidate the contract. Civ. Code, arts. 1821, 1832, also Civ. Code, art. 1847, pars. 2 and 5.

In view of the conclusion we have reached with regard to the release, we can dispose of the defendants’ contention that it cannot be set aside until plaintiffs have returned or tendered the return of the money they received, by referring again to •the former judgment rendered by this court in this case reported in the 8 La. App. at page 415, from which we quote:

“No one can retain the benefits under a contract and lawfully avoid its consequences. There will be restitutio in integrum. The party who wishes to avoid, the consequences must first offer to restore the other to the situation he occupied previous to the contract. Although we are not referred to any statutory law to that effect, we believe that this is an elementary rule in.' jurisprudence. The Civil Code, Art. 1913, provides that in order to enforce a commutative contract or- to secure damages for its non-performance, one must first tender to perform his part of the obligations under the contract, hut we are not referred to any article providing that in order to set aside a transaction one must offer to return that which he may have received when the transaction was, entered into, and for that reason, we say that such a rule originated in jurisprudence and is solely founded upon equity. Our Supreme Court substantially so held in the case of Germaine v. Mallerich, 31 La. Ann. 372, where it says that ‘it is purely an equitable rule, and would be abused by allowing wrongdoers to avail themselves, of it as a condition precedent to the undoing of their own illegal acts.’ ”

We now reach the merits of the controversy.

It will be recalled that there were two specific charges of negligence against the defendant Gottlieb: One, that he maintained .as the only elevator available to the public in this building this old, inferior, and antiquated type, in which the accident occurred; and the other that he had in charge thereof, as operator that day, an inexperienced and incompetent one-armed negro man, through whose wanton and willful negligence the boy was injured and subsequently died.

Outside of the testimony of Mrs. Kennedy, who says that it looked like an antique, and who refers co it as being “old and rickety,” we find nothing in the record to show that the elevator was faulty in construction, or that it was “dangerous and hazardous and a death trap in itself,” as is alleged in plaintiff’s petition. True it was, not of the modern express type, but Professor Hamilton Johnson,' professor of mechanical engineering at Louisiana State University, who had examined it carefully, says that it “is of the ordinary type of small, moderate speed elevator.” It is of standard make, and he also testifies that at the time he examined it, “the machinery seemed all right.” We find that it had been constantly in use by the public as well as the tenants of the building. Moreover, it is not pretended now that the condition or the age of the elevator was the proximate cause of the accident, so we can pass on to the other charge of negligence; that is,, the incompetencel and inexperience of the operator and his wanton and willful carelessness in injuring the plaintiffs’ son.

To condemn the defendants in damages on this, charge, we would have to accept Mrs. Kennedy’s testimony at its full face value and decide the case on that evidence alone.

In the first place, her testimony hears a stain left by the remark she is reported to have made when she was first interviewed by Byrd and Merchant. She seemed solicitous about Byrd’s interest in the matter, and told them both, so they say under oath, that “if necessary she would swear to a lie to help him.” That was the remark which, they say, satisfied them that she was not telling the truth about the accident and which served as their reason for not revealing the information she gave them ,to the plaintiffs, when they were negotiating with them for a compromise. It is true that in rebuttal Mrs. Kennedy denies having madé such remark, but she admits that her husband was present at the interview referred to and heard all ■that was said, and yet he does not join her in her denial of this most damaging assertion against, her as a witness. His silence under the circumstances is rather significant.

More important, however, in our consideration of her testimony, is the fact that we are unable to grasp the details of her version of the actual happening. And these are most important. She has the operator of the elevator doing too much, at one time, with his single arm and hand, to charge him with responsibility for this boy’s death. She says that he was arguing with' the boy; that while arguing with-him,' he was shoving him and edging him away from the door the boy insisted on entering; that he closed the door, pinning the boy in it as he did so, and then started the elevator by turning the wheel which was used as the control. All of this, according to her' further statement, took, place “in a very short space of time” as necessarily it had. That a one-armed, and as is claimed, inexperienced elevator tender could have done all this in the time it .took for this accident to happen, seems to us to be highly improbable, if indeed, not physically impossible.

She would make it appear that the boy’s body was pinned or jammed in the door of the cage surrounding the elevator shaft, and that, as the elevator went down, the boy was struck on the side of his face by the iron bar forming the .top part of the frame of the opening in the carrier. Considering the small space of only a few inches between the cage and the carrier, that also would seem physically impossible. If his body was so pinned and it was the iron bar across the opening of that descending elevator that struck him, then indeed, as Professor Johnson says, either one of two things would have happened;' The elevator would have stopped, or else the boy’s body would have been cut in two. Neither of these things happened, and we are left again in utter uncertainty as to how the accident occurred under her version of it or the theory advanced on behalf of the plaintiffs.

On the other hand, there is abundant proof to show that this unfortunate boy was unusually meddlesome, especially* so about and around elevators-. He seemed to have a hobby to try and do “stunts” around them. This is shown not only with reference to the elevator in which he was injured, but also to the one in the Court House building when he had occasion to go .there. He worked in a drug store on the lower floor of the Cangelosi building, and had strict and positive instruction not to use the’ elevator unless he was delivering soft drinks to the tenants in the building. At the time he was injured, he was not and had not been engaged on such errand. He had been warned repeatedly about the danger he seemed to be inviting, but was stubborn a-nd gave no heed to the warnings.

The operator of the elevator cloes not know how the accident happened. He denies that he argued- with the boy, as he says that he did not even stop' at the second flo.or on which he was, as no signal was given for a stop. He had taken some passengers to the third floor, and, as he was going down again, on passing the second floor and when the floor of the elevator was about two feet below the second floor of the building,-he heard what he refers to as “a burst into the door, and •the next thing was something fell on the top" of it” (meaning the top of the elevator).. This something was the body of that poor boy, who once again, most probably, had not obeyed the instructions given to him, and had failed to heed the warnings of danger.

We are not aware from the judgment of the lower court which dismisses the' suit whether it was on the ground that the plaintiffs were bound by the release which they had signed, or they had failed to prove their case on the merits. Inasmuch, however, as we have the whole record before us on the merits, and w© fail to find it shown that this accident happened by reason of the negligence and carelessness of the defendant Gottlieb, the judgment dismissing the suit against him and his indemnitor, the Metropolitan Casualty Insurance Company of New York, will be affirmed.