Roppolo v. Pick

• Decision Date: 01 December 1941
• Docket Number: 17675.
• Citation: 4 So.2d 839
• Court: Court of Appeal of Louisiana — District of US
• Parties: ROPPOLO ET UX. v. PICK.

4 So.2d 839

ROPPOLO ET UX. v. PICK.

No. 17675.

Court of Appeal of Louisiana, Orleans.

December 1, 1941

Rehearing Denied Dec. 15, 1941.

A D. Danziger, of New Orleans, for appellants.

Meyer Sabludowsky and John D. Schilleci, both of New Orleans, for appellees.

SIMON, Judge.

Plaintiffs Mrs. Rose Roppolo, and her husband, Steve Roppolo, seek recovery for loss alleged to have been sustained by them as the result of an accident caused by falling plaster in the building located at 1527 Adams Street in the City of New Orleans and occupied by them as a residence.

It is asserted that, at about the hour of 4:30 o'clock, on the morning of February 10, 1940, while the family were asleep, Mrs. Roppolo was injured by the fall of plaster from the ceiling in the bedroom, jointly occupied by her and her husband. On behalf of the wife, judgment is sought for $4,000, and the husband, as master of the community, prays for judgment in his behalf for $125 for the medical expenses sustained in connection with his wife's injuries. It is alleged that the leased building was owned in community by Louis Spiro and his wife, Sarah Lissa, now both deceased, and presently represented by Mrs. Ruby Pick, testamentary executrix duly qualified and confirmed as such in the "consolidated matters entitled 'Succession of Louis Spiro', No. 233,907, and the 'Succession of Sarah Lissa, wife of Louis Spiro', No. 226,841, Section 'C' of the docket of the Civil District Court for the Parish of Orleans * * *". It is to be observed at this moment that, though plaintiffs affirmatively aver the leased premises to have been community property of the decedents, damages are sought only against Mrs. Ruby Pick, in her capacity as testamentary executrix of the succession of Louis Spiro. It is further alleged that the accident "and the resulting injuries * * * are due to the direct result of faulty construction and unsafe condition of said premises."

For answer, defendant denied every allegation of plaintiffs' petition, and averred that, if it were shown that plaintiffs were tenants of the premises in question, plaintiffs, by virtue of the provisions of the rent receipts, assumed all risks incident to occupancy, thus barring their right of recovery.

A trial on the merits of the issues created by the pleadings resulted in a judgment in favor of Mrs. Rose Roppolo for $500 and in favor of Steve Roppolo for $125. Defendant has appealed and plaintiffs have answered the appeal, praying that the amount awarded Mrs. Rose Roppolo be increased to $4,000, as originally prayed for.

We have no difficulty in finding as a fact that the plaster did fall, since the evidence is overwhelmingly to that effect. There can be no dispute that the premises were owned by Louis Spiro, "in community with his wife", now both deceased, and that they were leased by plaintiff, Steve Roppolo, from Louis Spiro, under an oral lease, during the month of November, 1939, and thereafter occupied by plaintiffs as a family residence.

The contention of defendant concerning the assumption of risk by the lessee is based upon a printed waiver which appears upon three rent receipts offered in evidence. This inscription reads as follows:

"Tenant rents this property with the understanding that no damages will be due by cause of fallen plaster or other unforeseen defects, and failure to notify the owner or agent, in writing of any visible defects will serve as contributory negligence and will vitiate all claims."

Defendant contends that the inscription, supra, is in accordance with Act 174 of 1932, which relieves the lessor from responsibility for damages for physical injuries occasioned the lessee or occupant by vices or defects in the leased premises when the lessee "assumes responsibility for the condition of the premises". Section 1. Under Section 2 of the statute, supra, the words "by license of the tenant or occupant" are defined to be "those who derive their right or license to be on the premises from said tenant or occupant, such as sub-tenants, roomers, servants, guests, customers, employees, members of the family and others of a similar status". McFlynn v. Crescent Realty Corporation of Delaware, La.App., 160 So. 454; Paul v. Nolen, La.App., 166 So. 509. In Clay v. Parsons, 144 La. 985, 81 So. 597, it was said:

"Our opinion is that the provisions of the Civil Code that hold the owner of a building answerable for any injury that may befall another because of the landlord's neglect to make repairs are subject to the general law of negligence, and that the obligation thus imposed by law upon the landlord may be dispensed with, not only by a lessee as a condition of his contract of lease, but by any one desiring to occupy the house and willing to assume the risk." (Italics ours.)

In Pecararo v. Grover, 5 La.App. 676, we held: "It is lawful to stipulate in a lease that the lessor shall not be responsible for damages caused by any vice or defect of the leased property.

"With such a stipulation in a lease the lessee cannot recover damages against the lessor for injury received from falling plaster."

(Syllabus, 1 and 2.) (Italics ours.)

Defendant does not contend that there was any assumption of risk on the part of the lessee in the verbal contract of lease. The evidence discloses that the lease contract was oral and that the only agreement or understanding between the lessor and the lessee was the amount of the monthly rental to be paid, there being no stipulation or agreement of an assumption of risk by the lessee as a particular condition of the contract of lease itself. In support of her contention, defendant relies exclusively upon the inscription (supra) contained in the rent receipts offered in evidence. Necessarily, if it be held that there was an assumption of risk on the part of the lessee, it can only find its support in the rent receipt provision quoted above.

The evidence shows that when the negotiations leading up to the contract of lease had been consummated, and the first monthly rental paid in advance, lessee received the rent receipt in question. He testified that he did not read it, being under the belief that it evidenced simply a voucher, or receipt, for the first month's rent in advance, and which would accord him the immediate right of occupancy. It is further shown that the lessor did not direct lessee's attention to the inscription contained in the rent receipt, and, as disclosed by the record, no discussion was had, nor was any notice or warning, verbal or otherwise, directed to the lessee to the effect that the receipts embodied a special contract between them. Defendant must necessarily rely entirely upon the silent delivery and acceptance of the rent receipt to sustain her contention that such a stipulation constituted a contract between them.

From the circumstances of the transaction, lessee unquestionably had the right to regard this rent receipt simply as a receipt or voucher, evidencing payment of the first monthly rental. No stipulation or agreement was entered into, and much less was there ever an understanding between lessor and lessee, that the rent receipt, with its inscription, would constitute a special contract between them and intended, as such, to serve that particular purpose. We are satisfied that such a voucher, or receipt, with its inscription, does not give rise to a contract between the parties and thereby impose upon the lessee the assumption of risk urged by defendant.

We recognize a distinction between rent receipts, commonly used in commercial transactions, and contracts or agreements between parties. The difference is obvious, which, in the one case, permits of no negotiation or discussion, being simply a fulfillment of one's assumed obligations, while, in the other, a contract or agreement between parties is a matter of discussion and arrangement, with full opportunity for deliberate reciprocal action.

In Lawes v. New Orleans Transfer Company, 11 La.App. 170, 123 So. 144, we held that a person who receives a check for baggage entrusted to a transfer company is not bound by an inscription on the baggage check limiting liability of the transfer company, in the absence of proof of assent by the passenger.

The case of Marine Insurance Company v. Rehm, La.App., 177 So. 79, involved the factual situation of a customer parking his automobile in a parking lot, paying the charge therefor, and receiving a tag on which were the words: "* * * We will not be responsible for loss or damage to automobiles * * * by fire, theft, or any other cause whatsoever, except damage * * * while being handled on our premises by our employees under our orders". The automobile was stolen, resulting in a suit for damages, and, it being shown that the customer did not know what was written on the tag until after the theft, we held that such a tag amounted only to a means of identifying his property, or mere receipt, and was not a special contract limiting the liability of the parking lot owner. Hoffman v. Zimmer et al., La.App., 175 So. 115.

Defendant having tendered this special defense, it is well settled that she assumed the obligation of proving the existence of this contract, or...