OPINION
DREW
Judge.
Plaintiff instituted this suit for damages in the sum of $
2,000, with 5 per cent. per annum interest from May 1, 1932
until paid. He alleged that he had leased from defendant a
part of the second story of a building in the town of
Columbia, Caldwell parish, La., which he used for an office
and sanitarium; that he occupied the building as such from
the year 1926, until the latter part of April, 1932, when he
was forced to move out of said building due to the bad
condition of the roof.
He
alleged that he paid $ 50 per month rent for said building
and that on April 10, 1932, a heavy rain fell during the
night and leaked through the roof to such an extent that the
bedding, furniture, and operating equipment in said building
became wet and damaged beyond repair. He itemized the
damages, amounting to $ 2,000.
He
further alleged that prior to this date the roof had begun to
leak and that he had notified the defendant and requested
that the roof be repaired, which was not done.
Defendant
filed an exception of no cause of action, which was
overruled. He then answered, denying that the roof was in
need of repairs and that it leaked, and denied that plaintiff
had ever notified him that the roof was in need of repairs.
The
lower court rejected the demands of plaintiff and he has
appealed.
There
has been no answer filed to the appeal, and the exception of
no cause of action, therefore, passes out of the case.
The
opinion of the lower court, which is in writing, is as
follows:
"This
is a suit brought by Dr. May for damages alleged to have been
sustained to his furniture and Sanitarium equipment
occasioned by a leaky roof on the building owned by
defendant, which building was rented and occupied for the
purpose of a doctor's office and sanitarium in the town
of Columbia.
"Damages
were set out for various items alleged upon in the aggregate
of two thousand ($ 2,000.00) dollars. The defense is that no
damages were sustained occasioned by a leaky roof as alleged
by the plaintiff, and the defendant set up that his roof was
in perfect condition and denied all of the allegations of
damage set out by plaintiff. The testimony of plaintiff and
defendant is in sharp conflict all the way through. It does
not appear from the testimony of outsiders, that the roof was
in perfect condition at the time and on the occasion set out
by plaintiff; that it did leak, but the proof to sustain
the damages is very indefinite, and in fact is so much so
that the court is at a loss to know how any judgment could be
awarded in the event the court should find that the defendant
was liable for the damages.
"It
is not necessary, however, to go into this question as to the
sufficiency of the proof, as this court will decide the case
from another angle. If the plaintiff's contention as to
the leaky roof is correct, and if, as he states in his
petition and maintains in his testimony, that the roof had
leaked on numerous occasions and over a long period of time,
it is very evident that this case would fall under a long
line of decisions to the effect that the obligation rests
upon the plaintiff to repair the roof and deduct the costs of
said repair from the rent as it accrues, and in this
connection I might say that the proof in the record shows
that this repair which might have been necessary to the roof,
if any, could have been made at an expense of some twenty or
twenty-five dollars, whereas the monthly rental of the
building under the contract of lease was fifty ($ 50.00)
dollars per month.
"Dr.
May had occupied this building for several years and while he
says that he called defendant's attention to the fact
that the roof needed repairs, which fact is denied by
defendant, yet it was his duty in the event the defendant
failed to make the necessary repairs as requested by him, to
have done so and deducted the amount of same out of the rent.
"I
will briefly call attention to some of the cases upon which
this Court will base its decision.
"
Brodtman v. Finerty, 116 La. 1103, 41 So. 329, is a case
where a distinction is drawn between article 2693 and 2694 of
the Civil Code as against article 2695. The case reported in
the 4 Rob. 428 (Scudder v. Paulding), deals with leaky roofs
and it is held that the lessee should have repaired same and
deducted from the rent, which was sufficient to cover it.
"We
find a case in the 21 La.Ann. 714 (Westermeier v. Street),
holding in the same effect in connection with the leaky roof.
We find a case in the 22 La.Ann. 292 (Pesant v. Heartt),
holding to the same general doctrine, and which says that the
failure to make repair will defeat the claim for damages.
Again in the 23 La.Ann. 59 (Diggs v. Maury), the same
doctrine is announced and to the same effect in the 26
La.Ann. 384 (Winn v. Spearing) and the 28 La.Ann.
903 (Welham v. Lingham). The same doctrine is announced in
the 33 La.Ann. 1417 in the case of Lewis v. Pepin.
"In
the 8th Robinson 168, Shall v. Banks, the ruling is laid down
that the lessee must call on lessor to make repairs or put
him in default. Talley v. Alexander, 10 La.Ann. 627,
628, holds that default is necessary. To the same effect is
Favrot v. Mettler, 21 La.Ann. 220, and Larguier
v. White, 29 La.Ann. 156, 159. The same doctrine is
found in 163 La. 382, 111 So. 794, in the case of Hartz v.
Stauffer et al.
"So
with the line of past rulings on this subject we find that
the doctrine has been definitely settled that repair of this
nature must be made by the lessee and deducted from the rent,
and especially so if the rent is sufficient to take care of
the repairs, and that a failure to do this defeats recovery.
"I
find from the evidence in this case that plaintiff has not
proven, by a preponderance of the evidence, that he called
upon the defendant to make the repairs as he should have done
under the law, because, as stated, Dr. May avers that he did
this and the defendant has emphatically denied it. So from
the standpoint of the law this court is of the opinion that
the plaintiff cannot recover and that for two reasons,
because he has not brought himself within the law for this
character of case and for the additional reason that if he
were entitled as a legal proposition to recover damages, the
proof in the record is not sufficiently definite upon which
to base judgment for damages, and as stated at the outset,
this decision turns upon a legal proposition first above
announced. For that reason the demand of plaintiff is
refused."
The
lower court did not directly pass upon the question of the
leaks in the roof, but strongly intimated that the evidence
showed that the roof did leak. The evidence leaves no doubt
in our minds that the roof did leak and that plaintiff's
property was damaged to some extent by getting wet due to the
leaky roof.
The
decision of the lower court is based on the early
jurisprudence of this state, and it cites the following cases
to support it: Scudder v. Paulding, 4 Rob. 428;
Brodtman v. Finerty, 116 La. 1103, 41 So. 329;
Westermeier v. Street, 21 La.Ann. 714; Pesant v.
Heartt, 22 La.Ann. 292; Diggs v. Maury, 23
La.Ann. 59; Winn v. Spearing, 26 La.Ann. 384;
Welham v. Lingham, 28 La.Ann. 903; Lewis v.
Pepin, 33 La.Ann. 1417; Shall v. Banks, 8 Rob.
168; Talley et al. v. Alexander, 10 La.Ann. 627,
628; Favrot v. Mettler, 21 La.Ann. 220; Larguier
v. White, 29 La.Ann. 156; Hartz v. Stauffer et
al., 163 La. 382, 111 So. 794.
The
first eight cases cited above are analyzed by the court in
the case of Boutte v. New Orleans Terminal Co., 139
La. 945, 950, 72 So. 513, 514, and it is shown that most of
them are not in point with the case at bar, and in that case
the following rule was laid down, which has been followed
ever since, i. e.: The right accorded a lessee by article
2694, Revised Civil Code, does not impose upon
lessee any obligation to make the repairs which primarily it
is the duty of the lessor to make. For other cases so
holding, see Landry v. Monteleone, 150 La. 546, 90
So. 919; Morgan v. Cusimano, 2 La.App. 112;
Miller v. Kaiser, 5 La.App. 282; Goldstein v.
Stone, 12 La.App. 702, 127 So. 73; Clark v.
Greco, 13 La.App. 660, 127 So. 647. We quote from the
opinion in the Boutte Case as follows: "In support of
the contention that the plaintiff is prevented from
recovering damages because her mother had the right to have
the repairs made to the balcony herself and pay for the same
with the rent due to the defendant we are referred to the
cases of Scudder v. Paulding, 4 Rob. 428;
Westermeier v. Street, 21 La.Ann. 714; Pesant v.
Heartt, 22 La.Ann. 292; Diggs v. Maury, 23
La.Ann. 59; Winn v. Spearing, 26 La.Ann. 384;
Welham v. Lingham, 28 La.Ann. 903; Lewis v.
Pepin, 33 La.Ann. 1417, 1422; Brodtman v.
Finerty, 116 La. 1103, 1106, 41 So. 329; and Bianchi
v. Del Valle, 117 La. 587, 591, 42 So. 148. "The
decisions cited have no application to the facts of the case
before us. For example, Scudder v. Paulding, 4 Rob.
428, was an action by a lessee to annul the contract of lease
and to recover damages for injury to his furniture on account
of a leak in the roof of the building. It was held to be the
right, not the duty, of the lessee to cause the repairs to be
made, after the lessor had been notified and had neglected to
have them made. Hence it was held that, as it had been in the
power of the lessee to prevent or lessen the damage, and as
he had preferred to stand by and let the damage go on, he
could not put the loss upon the lessor. This is on the
familiar principle that a person cannot base an action for
damages, or for the annulment of a contract, upon a condition
of...
