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24 Tul. L. Rev. 66 (1949-1950)
Theory of a Case in Louisiana

handle is hein.journals/tulr24 and id is 86 raw text is: THE THEORY OF A CASE IN LOUISIANA LEON D. HUBERT, JR.t On September 11, 1918 the Supreme Judicial Court of Massa- chusetts decided two cases in each of which the defendant was the Child's Dining Hall Co.1 In one case, the plaintiff Ash had been injured by a tack in a piece of blueberry pie served to her by the defendant. In the other, the plaintiff Friend had been injured by stones in a dish of baked beans which had been served to her by the defendant. Ash's lawyer based his case on negligence, which he was unable to prove and so lost his case; whereas Friend's lawyer based his case on implied warranty and was successful. In both cases, Chief Justice Rugg was the organ of the court and in neither case was any reference made to the other. While the legalistic distinction between a case sounding in tort and one sounding in contract was probably so clear and proper to both the lawyers and judges involved that no reference was even made to the manifest inconsistency in ultimate result between the two cases, yet to Miss Ash and Miss Friend it all must have seemed merely a difference between blueberry pie and baked beans. Indeed, it would be difficult to justify the cases on any other basis to any group of laymen whose objective was to administer consistent justice. Had Miss Ash and Miss Friend lived in the seventeenth century the result in their cases would have been more understandable, because at that time the role of the lawyer in choosing the proper writ with which to assert his client's rights was very important.2 But the history of the procedural reform movement clearly shows that the operation of the common law writ system in such a way as to defeat justice and make cases turn upon such differences as were involved in the Child's Dining Hall cases, was one of the prin- cipal defects of that system intended to be done away with by the adoption of the Procedural Codes.8 It would be useless to repeat tAssociate Professor of Law, College of Law, Tulane University. 'Ash v. Child's Dining Hall Co., 231 Mass. 86, 120 N. E. 396 (1918); Friend v. Child's Dining Hall Co., 231 Mass. 65, 120 N. E. 407 (1918). 2The authorities on the importance of choosing the right writ have been collected and discussed previously in this review. Hubert, The Writ System in Real Actions: A Louisiana Anomaly, 22 Tulane L. Rev. 459 (1948). 3Consider for instance the following passage from the First Report of the New York Commissions on Practice and Pleading (1848): It has been praised as a logical and useful science. We are more disposed to pronounce it a system of dialectics, very fit for the school- men with whom it originated, but unfit for the practical business of life . .. See also Pomeroy, Remedies and Remedial Rights by the Civil Action (Covington's 5th ed. 1929) 610, 620, §§ 404, 411.

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