Green v. Southern Furniture Co.
| Decision Date | 25 March 1957 |
| Docket Number | Nos. 4350--4352,s. 4350--4352 |
| Parties | Sylvester GREEN et ux., Plaintiffs-Appellees-Appellants, v. SOUTHERN FURNITURE COMPANY, Inc., et al., De fendants-Appellants-Appellees. Daniel G. BAILEY et ux., Plaintiffs-Appellees--Appellants, v. SOUTHERN FURNITURE COMPANY, Inc., et al., De fendants-Appellants-Appellees. Mrs. Rogenia LEGER, Plaintiff-Appellee-Appellant, v. SOUTHERN FURNITURE COMPANY, Inc., et al., De fendants-Appellants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Wood & Jackson, Leesville, La., for plaintiff-appellant.
Plauche & Plauche, Lake Charles, La., for defendant-appellant, Southern Furniture Co. et al., tenant.
Porter & Stewart, Lake Charles, La., for defendant-appellee Kaplan et al. (owners).
Robert L. Collings, Lake Charles, La., for plaintiff-appellant.
Plauche & Plauche, Lake Charles, La., for defendant-appellant, Southern Furniture Co. et al., tenant.
Porter & Stewart, Lake Charles, La., for defendant-appellee Kaplan et al. (owners).
Essentially, the question involved in this appeal is whether legal liability for personal injuries to third persons attached to the landlord or to his tenant, or to both, when the canopy of a store building owned by the former and leased by the latter fell and injured three lady pedestrians.
In this opinion we will give reasons for judgment as to the questions of law common to the separate suits, involving the same defendants; in which individual discussions of quantum and decrees will be rendered, Green 94 So.2d 525, Bailey 94 So.2d 527, and Leger 94 So.2d 529.
The store building in question was located at 718 Ryan Street in the main business district of the city of Lake Charles. Shortly after noon on August 30, 1955, the canopy attached to the store building and overhanging the sidewalk fell and injured the three lady plaintiffs. As the District Court found, the evidence is substantially in agreement that the principal cause of the canopy's collapse was that an iron supporting rod holding up the store canopy was pulled loose from the rotted piece of lumber to which attached by the additional weight of approximately five tons of water collected on top of the canopy after two days of downpour. The water had collected on the roof of the canopy because the drainage downspout did not drain the water off fast enough, either because basically the downspout did not afford sufficient outlet to take care of the not-usual downpour or because (although there is no evidence to support, or to contradict, this argument) it had been allowed to become clogged with leaves and other refuse.
The board which gave way causing the collapse had become rotted by the seepage of water over an undeterminable period of time. The rotted condition of this lumber could not have been detected by inspection. Neither the owner nor the tenant had knowledge or notice of this structural defect.
The three ladies injured were Mesdames Cora Green, Rogenia Leger, and Eulith Bailey; and they, together with Sylvester Green, husband of the former, and Daniel Bailey, husband of the latter,--Mrs. Leger was a widow--brought suit for personal injuries and medical expenses sustained as a result of the accident.
Made defendants were: Southern Furniture Company, Inc., the tenant, and its public liability insurer, the General Accident Fire & Life Assurance Corporation, Ltd. (hereinafter sometimes jointly referred to as the 'tenant' or as 'Southern'); and Mrs. Ida I. Kaplan, David Kaplan, and Mrs. Patricia Kaplan, the owners in indivision of the property and their public liability insurer, the Phoenix Indemnity Company (hereinafter sometimes jointly referred to as the 'owner'). By third-party petitions, both the owner and the tenant called the other opposing defendants in warranty should they be cast.
The District Court entered judgment in favor of the plaintiffs and against Southern; rejecting all demands against the owner. The tenant appealed, urging that the owner be held liable and alternatively that the amounts awarded be reduced. The plaintiffs also appealed the dismissal of their suit as against the owner. The latter answered the appeals urging affirmance of the judgments, and alternatively (besides reduction of the award) that if it--the owner--be cast, then that there be judgment over in its favor and against Southern, in accordance with its third party petition and call in warranty.
Briefly, the opposing legal contentions of both sets of defendant-litigants may be summarized as follows: The owner-lessor argues that the tenant assumed in the written lease full responsibility for liability to others resulting from structural defects (except when the owner failed to repair same after notice); and therefore under LSA-R.S. 9:3221 (), permitting such assumption as against third persons, is the proper party to be cast for damages herein. Contrariwise, the tenant argues that by the terms of the lease the owner reserved responsibility for structural defects and therefore retains its ancient civil law liability to others injured as a result of failures of the parts excepted from the tenant's assumption of liability.
We deem it advisable to discuss the pertinent law before discussing its application to the particular lease provisions with which we are concerned herein.
Under the Louisiana civil law, unlike the rule in common law jurisdictions, the owner-lessor is held to strict liability, or liability without fault, for personal injuries sustained by others through the defective condition of the leased premises. Comment, 'Lessor's Liability in Louisiana', 7 La.L.Rev. 406; Comment, 'Liability of Lessor to Third Persons Lawfully on the Leased Premises,' 16 Tul.L.Rev. 448.
LSA-Civil Code, Articles 670 and 2322,1 provide that the owner of a building is liable for damages caused by its ruin or fall, whether a result of neglect to repair it or of a vice in its original construction. 'Neither ignorance of the condition of the building nor the circumstance that the defect could not be easily detected can be successfully urged as a defense by the owner,' Thompson v. Commercial Nat. Bank, 156 La. 479 at page 486, 100 So. 688, at page 690; see also Roppolo v. Pick, La.App. Orleans, 4 So.2d 839, and the authorities cited therein (syllabus 5); Thiel v. Kern, La.App. Orleans, 34 So.2d 296 (certiorari denied), and authorities cited therein (syllabus 1). These cases hold that, for purposes of suits by injured tenants or third persons against him, knowledge of even latent defects for which he is responsible is imputed to the owner; he is presumed to know of them. See, among recent cases, Green v. Billa, La.App. Orleans, 86 So.2d 578, Gaida v. Hourgettes, La.App. Orleans, 67 So.2d 737.
Parenthetically, it should be remarked that the similar liability of the Lessor under LSA-Civil Code, Articles 2693 and 2695,2 to which we are also cited as a basis for liability, is not necessarily coextensive with that of the Owner under LSA-Civil Code, Articles 670 and 2322. The lessor's liability under the former codal articles has been held to be only to the tenant and not to third persons (not even to the tenant's wife), where the lessor was not the owner of the property (as under a sublease), Duplain v. Wiltz, La.App. Orleans, 194 So. 60, Graff v. Marmelzadt, La.App. Orleans, 194 So. 62, both cases noted, 2 La. Law Review 744; see: Girouard v. Agate, La.App. 1 Cir., 44 So.2d 388, Tesoro v. Abate, La.App. Orleans, 173 So. 196, 197. However, other cases are said to hold to the contrary, Comment, 16 Tul.L.Rev. 448 at 451, Note, 26 Tul.L.Rev. 103 at 105; and although these cases so cited do rest liability to third persons upon the lessor's duties under LSA-Civil Code, Articles 2692--2695, Thomson v. Cooke, 147 La. 922, 86 So. 332, Robinson v. Fossett, La.App. 2 Cir., 33 So.2d 546, Willis v. Cahn, La.App. 2 Cir., 164 So. 452, Potter v. Soady Bldg. Co., La.App. 2 Cir., 144 So. 183, they do so without discussion of any difference between the liability of the owner and the lessor; and it may be significant that the facts therein show that certainly in the latter three cases, and probably in the other (Thomson) case cited, the landlord was also the owner of the property leased. Decision as to this distinction is unnecessary herein where the lessor's liability to the third persons for their injuries sustained can be predicated upon its legal liability as owner of the leased premises.
However, these strict codal obligations of the owner-lessor as to the condition of the premises may validly be assumed by the tenant as a condition of the lease; and thereby will be barred the tenant's recovery for damage sustained through structural defects for which the owner would otherwise be responsible. Clay v. Parsons, 144 La. 985, 81 So. 597; Pecararo v. Grover, Orleans, 5 La.App. 676. Likewise, the tenant could assume, as between himself and the owner, the latter's liability to third persons for personal and other injuries resulting from structural defects, Terrenova v. Feldner, La.App. Orleans, 28 So.2d 287, discussed in detail below.
But as squarely held by Klein v. Young, 1927, 163 La. 59, 111 So. 495, although the lessee might validly assume such obligation as between himself and the owner-lessor, this assumption of liability by the tenant could not absolve the owner of responsibility to third persons injured through defects in the premises for which the owner was liable under the Civil Code, nor could it affect the rights of third persons to recover resultant damages from the owner. However, the effect of this Klein case was modified and largely overruled by the legislative enactment of Act 174 of 1932, discussed immediately hereafter, see, e.g., Paul v. Nolen, La.App. Orleans, 166 So. 509.
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