Opinion
No. 16255.
December 16, 1935.
Appeal from First City Court of New Orleans; Alex. Bahns, Judge.
Action by Louis Hooper against Charles V. and Tony Caldarera. From an adverse judgment, the plaintiff appeals.
Reversed and rendered.
Daniel Wendling, of New Orleans, for appellant.
Jos. F. Monie, of New Orleans, for appellees.
Charles V. Caldarera is the operator of a restaurant in this city. On the night of April 5, 1935, he left his brother, Anthony, in charge of the establishment. Plaintiff, Hooper, alleges that on that night he, with a female companion, entered the place and ordered a fish sandwich and that, after waiting for 15 or 20 minutes, he concluded that his order was not being attended to with sufficient promptness and attempted to depart, but that, as he was about to make his exit, he was approached by the said Anthony Caldarera, who addressed a vile epithet to him and then struck him on the head with a pistol. He avers that he was taken to the Charity Hospital, where he remained overnight, and he seeks solidary judgment against Charles and Anthony Caldarera in the sum of $300.
Defendants deny categorically every allegation of plaintiff.
There was judgment for defendants, and plaintiff has appealed.
The record shows without contradiction that Hooper was struck on the head by Anthony Caldarera. Some of the witnesses state that the blow was delivered with a pistol, and some say that it was Caldarera's fist which inflicted the damage. But there is no denial of the fact that the blow was struck. Defendants did not plead that there was any justification for the assault, but, in a very feeble way, they produced evidence in an effort to show that Hooper was intoxicated, and some of the witnesses also state that he had used abusive language; but the principal defense seems to be a reliance on the belief that the operator of such a place may violently attack a customer who fails to wait for or to pay for what he has ordered.
No such right exists. If Hooper's refusal to wait for his order was not justified, or if he declined to pay for what he had ordered, some other legal means of redress should have been adopted.
Both defendants are liable, fortunately, the damage sustained by Hooper was very slight; $75 should be ample to assuage his wounded sensibilities and to compensate him for his physical injuries.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and that there now be judgment in favor of plaintiff, Louis Hooper, and against Charles V. and Anthony Caldarera, jointly, severally, and in solido, in the full sum of $75, with legal interest from judicial demand, and for all costs.
Reversed.