Guidry v. Hamlin

Decision Date08 May 1939
Docket Number17160
Citation188 So. 662
CourtCourt of Appeal of Louisiana — District of US
PartiesGUIDRY v. HAMLIN.

Rehearing Denied May 22, 1939

Writ of Certiorari Denied June 26, 1939

Appeal from Civil District Court, Parish of Orleans; Nat W. Bond Judge.

Action by Harold Guidry, for the use and benefit of his minor child Barbara Ann Guidry, against Walter Hamlin, to recover damages for injuries, wherein the board of administrators of the Charity Hospital of Louisiana at New Orleans intervened as party plaintiff. Judgment for defendant, and plaintiff and intervener appeal.

Affirmed.

Jos Rosenberg, of New Orleans, for plaintiff-appellant.

Cyril F. Dumaine, Special Counsel, of New Orleans, for intervenor-appellant.

Curtis, Hall & Foster, of New Orleans, for appellee.

JANVIER, Judge.

Defendant, Walter B. Hamlin, is the owner of the premises No. 1512 Constance Street in New Orleans. On April 3, 1938, while the upper floor of this building was occupied under lease as a dwelling by Mr. and Mrs. Harold Guidry, their minor daughter, Barbara Ann, at that time 25 1/2 months old, sustained injuries when she fell about 18 feet from the second story rear porch to the ground.

On her behalf her father brings this suit against Hamlin, claiming, for her use and benefit, $3,500, charging that the fall resulted from the fault of the lessor in providing a porch bannister consisting of two horizontal rails without vertical " pickets", which would have made it impossible for the child to fall. It is not alleged that any part of the gallery, or of the bannister, broke or gave way, but it is averred merely that the lower rail of the said bannister, which was parallel with the floor of the gallery, was about 19 1/2 inches above the said floor and that, thus, there was left a space of about 19 1/2 inches through which any such child might fall.

The child received treatment at the Charity Hospital of Louisiana at New Orleans and, therefore, the Board of Administrators of that institution, proceeding under authority of Section 1 of Act No. 230 of 1932, intervened as party-plaintiff and asserted its right, should judgment be rendered against defendant, to recover the sum of $51, by subrogation pro tanto, for the services rendered.

Since, in plaintiff's petition, there was no charge that any part of the said rail broke, defendant filed an exception of no cause of action on the theory that there is no duty in a lessor, or in an owner of improved property, to provide any particular kind of porch rail and that, since the rail which was provided did not break or prove defective, there could be no liability in the owner of the property. This exception was overruled.

After a trial on the merits, judgment was rendered for defendant. The judge a quo rendered written reasons for his conclusion, among which we find the following:

" I have thoroughly gone into the law. The plaintiff has not charged any defective condition but merely alleged that there was an opening in the porch railing which permitted the child to fall through. I am firmly of the opinion that when you lease the premises in good sound condition, you lease it as is and assume any risk. The child did not lease the premises, and when the father and mother leased it, the parents assumed the risk for and on behalf of the minor child. I can not see that there was any faulty construction, but I wanted to give the plaintiff an opportunity to go to the Court of Appeal with a complete record."

From the judgment, plaintiff has appealed, as has the intervenor.

In the brief submitted in this court on behalf of the principal appellant, it is stated that the judgment was rendered on exception of no cause of action. This, as we have stated, is not correct, the judgment having been rendered only after a trial on the merits.

There is practically no dispute on the facts. The bannister is shown to have consisted of two parallel rails, as alleged, the lower, however, 18 inches above the floor instead of 19 1/2 inches, as charged, and the upper a foot or so above the lower. There are no upright " pickets" or other rails attached to these parallel horizontal rails and there is thus left open a space 18 inches high between the gallery floor and the lower edge of the lower rail. This bannister, consisting of the two rails described, was, on the day of the accident, in identically the same condition in which it was at the time the father of the injured child leased the premises.

The record makes it reasonably certain that the child fell under the lower rail and not over it and, since so young a child is incapable of being negligent in a legal sense, the question of law presented is whether an owner of property, who provides such a rail, is negligent to such an extent as to render himself liable for injuries so sustained.

Plaintiff, in his brief, relies upon Articles 2322, 2692 and 2693 of the Civil Code, and maintains that under any or all of these articles the said property owner is liable. These articles read as follows:

2322. " The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction."

2692. " The lessor is bound from the very nature of the contract, and without any clause to that effect:

" 1. To deliver the thing leased to the lessee.
" 2. To maintain the thing in a condition such as to serve for the use for which it is hired.
" 3. To cause the lessee to be in a peaceable possession of the thing during the continuance of the lease."

2693. " The lessor is bound to deliver the thing in good condition, and free from any repairs. He ought to make during the continuance of the lease, all the repairs which may accidentally become necessary; except those which the tenant is...

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  • Buxton v. Amoco Oil Co.
    • United States
    • U.S. District Court — Western District of Louisiana
    • November 20, 1987
    ...due to structural vice or neglect to repair." Hero v. Hankins, 5 Cir., 247 F. 664, 666. Likewise and to the same effect is Guidry v. Hamlin, La.App., 188 So. 662, 664, wherein the Orleans Court of Appeals in a well considered opinion "We note that the word `ruin' as it appeared in Article 2......
  • 93-813 La.App. 3 Cir. 4/13/94, Winchell v. Johnson Properties, Inc.
    • United States
    • Court of Appeal of Louisiana — District of US
    • April 13, 1994
    ...See Davis v. Royal Globe Insurance Co., 257 La. 523, 242 So.2d 839 (1970). As noted in Davis, favorably quoting from Guidry v. Hamlin, 188 So. 662, 664 (La.App.Orl.1939): "The article was said to have 'no reference to any situation except that in which some part of the building collapses, o......
  • Tillman v. Johnson, CA
    • United States
    • Court of Appeal of Louisiana — District of US
    • November 20, 1992
    ...Insurance Companies, 257 La. 523, 242 So.2d 839 (1970); Montgomery v. Cantelli, 174 So.2d 238 (La.App. 4th Cir.1965); Guidry v. Hamlin, 188 So. 662, 664 (La.App.Orl.1939). "10. Davis v. Royal-Globe Insurance Companies, 257 La. 523, 242 So.2d 839 (1970); Montgomery v. Cantelli, 174 So.2d 238......
  • Moczygemba v. Danos & Curole Marine Contractors, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 26, 1977
    ...due to structural vice or neglect to repair." Hero v. Hankins, 5 Cir., 247 F. 664, 666. Likewise and to the same effect is Guidry v. Hamlin, La.App., 188 So. 662, 664, wherein the Orleans Court of Appeals in a well considered opinion said:"We note that the word 'ruin' as it appeared in Arti......
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