Murphy v. Fidelity & Cas. Co. of New York

• Decision Date: 28 May 1964
• Docket Number: No. 10183,10183
• Citation: 165 So.2d 497
• Court: Court of Appeal of Louisiana — District of US
• Parties: Mrs. Ella W. MURPHY and Rivers Claude Murphy,Plaintiffs-Appellees, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK et al., Defendants-Appellants.

Page 497

165 So.2d 497

Mrs. Ella W. MURPHY and Rivers Claude Murphy,Plaintiffs-Appellees, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK et al.,

Defendants-Appellants.

No. 10183.

Court of Appeal of Louisiana, Second Circuit.

May 28, 1964.

Rehearing Denied July 2, 1964.

Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for appellant Fidelity and Cas. Co. of New York.

Cook, Clark, Egan Yancey & King, Shreveport, for appellant, United States Cas. Co.

Booth, Lockard, Jack, Pleasant & Le Sage, Shreveport, for appellees.

Before HARDY, GLADNEY and BOLIN, JJ.

GLADNEY, Judge.

This suit in tort was instituted by the widow and son of Oliver Rivers Murphy who met his death on July 21, 1960 by electrocution caused by contact with uninsulated or inadequately insulated wires conveying lethal charges of electric current. Named as defendants are Mrs. Jessie D. Reeves, her son Joseph Reeves, owners of the building in which the accident occurred, and their insurer, Fidelity and Casualty Company of New York; and Raymond Madden, owner of an adjoining building, and his insurer, United States Casualty Company. When first considered, the trial court sustained separate motions for summary judgment, filed on behalf of the respective defendants, and dismissed plaintiffs' suit. Appeals were perfected to this court and the decision of the lower court reviewed, 138 So.2d 135 (1962), with reversal of the judgment. The motion for summary judgment filed on behalf of Fidelity and Casualty Company of New York, as the Reeves' insurer, was predicated on admitted facts showing that the offending electrical wiring was not owned, used by, or in any way the responsibility of the Reeves but was owned and controlled by Madden. The motion on behalf of United States Casualty Company, as insurer for Madden, was based on established facts that Madden had no knowledge of the existence of said wires, that no difficulty giving notice of any trouble in said wires had been experienced to the date of the alleged accident, that said wires were located in a position completely beyond the physical control of said insurer; and were subject to the control of persons other than Madden.

Plaintiffs' action is predicated upon the provisions of Articles 670 and 2322 of the LSA-Civil Code specifying the responsibility of the owners of buildings for damages caused by the fall or ruin of a wall or any part thereof. This court in reversing the appealed judgment and remanding the cause for further proceedings held that the term 'ruin' as used in LSA-C.C. art. 2322 making the owner of a building answerable for damage occasioned by its ruin, is applicable to defects in parts or appurtenances to the building and ruled that the owner of the building serviced by the wires (Madden), or owner of the building in which the wires were located (Reeves), or both, were liable for the wrongful death of the deceased, an electrical repairman, occasioned by their failure to keep such electric wiring in repair. Upon remand of the case the trial court was presented with three issues: (1) the responsibility vel non of either, or both of the owners and their insurers; (2) the validity of the alternative special pleas of contributory negligence filed on behalf of appellants, and (3) the amount of damages. The same issues confront this court on this appeal.

The prior opinion of this court has thus disposed of the question of negligence by deciding that the failure to keep the electrical wiring in repair, imposed a liability upon the owners of the buildings for the damages occasioned thereby. Thus our former decision on this phase of the suit has become the law of the case and is no longer an issue. Keller v. Thompson, La.App., 134 So.2d 395 (3rd Cir. 1961); Louisiana State Bar Ass'n v. Theard, 225 La. 98, 72 So.2d 310 (1954); City of Gretna v. Aetna Life Ins. Co., 207 La. 1085, 22 So.2d 658 (1945); Hoey v. New Orleans Great Northern R. Co., 164 La. 112, 113 So. 785 (1927); Davis v. Lewis & Lewis, La.App., 72 So.2d 612 (1st Cir. 1954) (cert. granted but this issue not discussed), 226 Ls. 1059, 78 So.2d 173 (1954) and 226 La. 1064, 78 So.2d 174 (1954).

In our prior opinion this court thus restricted the effect of its decree by pronouncing:

'The cross contentions of the two defendant insurers that one assured was not responsible because he was not the owner of the building in which the offending portion of the wires was located and that the other assured was not responsible because she was not the owner of the wires and had no knowledge of their existence, do not appear to us to be appropriate to consideration on a motion for summary judgment, but must and can be resolved only after trial on the merits. Nevertheless, it is obvious that both of these contentions, being inconsistent, cannot be meritorious and perhaps neither can ultimately be sustained under the facts.

'As for lack of knowledge and consequent neglect to repair the existing defect, we regard this question as having been so definitely disposed by our jurisprudence as to obviate the necessity for citation, but by way of reference we cite Davis v. Hochfelder, 153 La. 183, 95 So. 598; Green v. Billia, La.App., 86 So.2d 578 (Orleans, 1956); Tesoro v. Abate, La.App., 173 So. 196 (Orleans, 1937).'

With respect ot the lack of knowledge and consequent neglect to repair the existing defect by the owner of the building, the statement of law as recited above is correct. In the legal application of LSA-C.C. arts. 670, 2322 neither ignorance of the condition of a building, nor the circumstance that the defect could not be easily detected can be successfully urged as a defense by the building owner in an action where damages sought are caused by neglect to repair. The obligation of every property owner to answer in damages for a failure to keep his property in such condition of repair that it will not be dangerous to other persons is imposed by law. Klein v. Young, 163 La. 59, 111 So. 495, 499 (1927). In Thompson v. Commercial National Bank, 156 La. 479, 100 So. 688, 690 in discussing the above mentioned codal provisions, the court commented:

'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. Barnes v. Beirne, 38 La.Ann. 280. While contributory negligence is a complete defense under this article, and is pleaded in this case, defendant oil company has failed to establish such plea. Frank v. Suthon (C.C.) 159 Fed. 174.' See also Matranga v. Hilman, La.App., 94 So.2d 568, 569 and 570 (2nd Cir. 1957) and authorities cited therein.

For a proper determination of the issues, and more particularly for convenient reference, certain uncontroverted facts are now set forth although substantially stated in our preceding opinion:

The defendant, Mrs. Jessie Reeves, is the owner of a two-story building located in the City of Arcadia, Louisiana, constructed sometime prior to the year 1900, which she acquired in or about the year 1930. The first floor of the Reeves' building is partially occupied by the insurance agency conducted by Mrs. Reeves and her son, and the upper floor appears to have been used principally for storage purposes. The defendant, Madden, owns a building immediately adjoining the Reeves' building on the south, in which he operates a clothing store. The two buildings are separated only by a common wall, the lower part constructed of brick and the upper part of wood. In the year 1947 the Reeves' building was damaged by fire and in the course of repair its electrical system was re-wired. Beneath the flooring of the upper story of the Reeves' building there exists a sub-floor, and in the space between these two floors on the Reeves side of the common wall there run two electrical service wires conducting electric current used by Madden in his clothing store. These wires originate in a fuse box at which the current is controlled by a master switch on the wall of the Madden building then enter the Reeves' building, run along the wall therein to a fuse box, and, emerging from said box, continue for a distance inside the south wall of the Reeves' building, where they re-enter the Madden building and serve the specific purpose of lighting the display window of the Madden store, controlled by a switch in or near said location. The electrical conduits, which were in fact BX cables, and the wires encased within them, were energized through and by the electrical supply entering into the Madden building. The wires from the electric power box were attached to the Madden building at a control box at the rear of the Madden building and this supply of electricity energized the wires encased in the cables. The two BX cables in question were attached to a plug box which faced into the inside of the Madden building for the purpose of connecting electrical appliances. The front of this plug box faced into the Madden building between the two floors above mentioned. Only the back or rear of this box or plate faced towards the Reeves building and...