Hebert v. Valenti
Decision Date | 04 May 1970 |
Docket Number | No. 3739,3739 |
Citation | 235 So.2d 193 |
Parties | Nelson F. HEBERT, Sr. v. Xavier VALENTI et al. |
Court | Court of Appeal of Louisiana — District of US |
Edgar J. Monjure and Louis A. DiRosa, New Orleans, for plaintiff-appellant, Nelson F. Hebert, Sr.
John I. Hulse, IV, of Hammett, Leake & Hammett, New Orleans, for defendant-appellee, Xavier Valenti.
Francis G. Weller, of Deutsch, Kerrigan & Stiles, New Orleans, for defendants-appellants, American Elevator & Electric Co. and Maryland Casualty Co.
J. Walter Ward, Jr., of Christovich & Kearney, New Orleans, for third-party defendant, Great American Ins. Co.
Ignatz G. Kiefer of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for third-party defendants and third-party plaintiffs.
Before BARNETTE, Le SUEUR and DOMENGEAUX, JJ.
The plaintiff herein, Nelson F. Hebert, Sr., was an employee of Jack Pulitzer & Bro., in the capacity of a shipping clerk. His employer had leased two floors of a building located at 129 Chartres Street, in the City of New Orleans, from Xavier Valenti, defendant herein, and owner thereof. In the building is located a freight-type elevator which the lessee used in conducting his business, and which the lesseee had agreed to be responsible for. The lessee, Jack Pulitzer, also had other buildings in his possession which contained elevators, and he had a contract with American Elevator and Electric Company, Inc., for the maintenance and inspection of the several elevators under his control.
On December 18, 1963, plaintiff was in the elevator at 129 Chartres Street together with a fellow employee, Peter Hahlos, over whom he had supervision. The two were on a mission for their employer, Jack Pulitzer & Bro., the essence of which was to remove toys which their employer had stored on the fourth floor of the building, take them down on the elevator, and load them on a truck belonging to Jet Delivery Service. Hebert and Hahlos ascended to the fourth floor of the building, taking with them a hand truck. The elevator stopped a short distance above the fourth floor landing and Hahlos attempted to push the hand truck from the elevator. At this point a wheel on the hand truck became wedged in between the fourth floor landing and the elevator. Efforts to dislodge it were futile and it was decided to lower the elevator and free the wheel in that way. Hahlos who was off the elevator, pulled the cable to start the elevator downward. The plaintiff was standing in the elevator attempting to free the hand truck. At first the elevator moved downward very slowly and in a jerky fashion, but suddenly it descended with great speed. The distance that it fell is in dispute, estimates ranging from three to one and one-half floors, but it was sufficient to produce severe injuries to the plaintiff.
The most plausible explanation of what caused the elevator to fall is to be found in the testimony of the various experts who were heard at the trial. The consensus seems to be that when Hahlos set the controls for descent, the hoist cable began playing out of the drum but because the elevator was struck at the fourth floor it did not descend. When the hand truck was removed the elevator car, having unwound a length of cable, was free to fall and did so. Travelers Insurance Company, the workmen's compensation insurer of Jack Pulitzer & Bro., paid plaintiff workmen's compensation and medical expenses. Nevertheless plaintiff, alleging that his injuries resulted from defective and unsafe conditions in the elevator, sued Xavier Valenti as owner-lessor of the premises, American Elevator & Electric Company, Inc., as the agency responsible for the maintenance of the elevator, and Maryland Casualty Company as the insurer of American Elevator Company, in tort. Traveler's Insurance Company intervened, seeking recovery of the monies already paid to plaintiff by Travelers in the event of a judgment favorable to him. The named defendants filed third party petitions against Peter Hahlos and Great American Insurance Company, the liability insurer of Jet Delivery Service, alleging that Hahlos was an omnibus insured of third party defendant, in that he was loading a truck belonging to Jet Delivery Service at the time of the accident. Valenti also filed third party petitions against Jack M. Pulitzer, Jack M. Pulitzer & Bro., The Travelers Insurance Company, American Elevator & Electric Company, Inc., and Maryland Casualty Company. Third party defendants Jack M. Pulitzer, Jack M. Pulitzer & Bro., and The Travelers Insurance Company also filed a third party petition against American Elevator & Electric Company, Inc., and its insurer, Maryland Casualty Company seeking indemnity. After several days of trial the lower court rendered judgment against plaintiff, dismissing his suit at his cost, and in favor of all defendants. Plaintiff and intervenor appealed from that judgment.
It seems to us that the crucial question insofar as defendant Valenti is concerned is 'who had control of and responsibility for the elevator'? This is so because of Jack Pulitzer, the employer of plaintiff, was the responsible party, then plaintiff's suit must of necessity fall. Under LSA-R.S. 23:1032 it is plain that the Workmen's Compensation Act is an exclusive remedy and deprives employees of the right granted by LSA-C.C. art. 2315 to tort actions against their employers.
Plaintiff argues strongly that defendant Valenti is, as owner of the building in which the accident occurred, the responsible party. He cites articles 670, 2322 and 2695 of our Civil Code, as well as a series of cases from our jurisprudence which he states stand for the proposition that a landlord is subject to 'liability without fault' for personal injuries sustained by his tenant or others through the defective condition of the premises whether he was aware of the defect or not. He also cites but attributes little importance to, LSA-R.S. 9:3221 which reads as follows:
'The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.'
As can be clearly seen this statute allows the landlord to escape the strict liability imposed by the aforementioned civil code articles and transfers his responsibility, insofar as persons on the premises who derive their right to be thereon from the lessee are concerned, to the lessee through contract. This contract may be either oral or written. Atkinson v. Stern, La.App., 175 So. 126; Phillips v. Cohen, La.App., 183 So.2d 473, writs refused, 249 La. 196, 186 So.2d 158. We must therefore look to see whether there was such an assumption of responsibility on the part of the lessee, Pulitzer, and if so, whether there existed a defect of which Valenti knew or should have known.
Jack Pulitzer and Xavier Valenti entered into a written contract of lease on January 1, 1962, which was for the duration of one year or until December 31, 1962. This lease was for the rental of the third floor at 129 Chartres Street in New Orleans at the price of $65.00 per month. The lease further provided that, 'Lessee to pay operation cost of elevator and utility bill for elevator.' Pulitzer's intention was to use the third floor as a storage area for the toys and novelties which he was in the business of selling, an activity requiring the use of a freight elevator. It is clear to us, especially from the testimony given by both Valenti and Pulitzer that the parties' intention was that the use of the elevator in question should pass to Pulitzer vesting him with full responsibility for, and control over, it. Mr. Valenti's testimony is to the effect that he seldom, if ever, used the elevator and that he had a stairway installed so he would not have to make use of the elevator since he did not wish to maintain it. Mr. Pulitzer testified, as did Mr. Valenti, that he assumed that he, Pulitzer, would be responsible for the elevator. Pulitzer maintained a verbal contract with American Elevator Company whereby they would periodically oil, grease and inspect the elevator whereas Valenti had none. All of the city permits, save one, for operation of the elevator were addressed to Pulitzer. Pulitzer paid for all repairs, maintenance, and inspections of the elevator. He further maintained insurance on it. We therefore conclude that under the written lease Pulitzer and not Valenti was responsible for this elevator. That lease also contained the following provision:
'Lessor shall not be liable for any damage to person or property sustained by the Lessee or any other persons, and any such liability is assumed by Lessee.'
Clearly this provision was intended to invoke LSA-R.S. 9:3221 quoted hereinabove, and relieves Valenti of any responsibility for injuries caused by the elevator unless the injuries were caused by a defect of which he knew or should have known.
The written lease expired on December 31, 1962; however, Pulitzer remained in possession of the premises by verbal agreement with Valenti. By the testimony of both parties to the lease it was intended by them that all the provisions of the written lease should remain in full...
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