Thompson v. Commercial Nat. Bank
| Decision Date | 30 April 1924 |
| Docket Number | 24565 |
| Court | Louisiana Supreme Court |
| Parties | THOMPSON v. COMMERCIAL NAT. BANK et al |
Rehearing Denied by Whole Court June 7, 1924
Appeal from First Judicial District Court, Parish of Caddo; J. H Stephens, Jr., Judge.
Action by Thomas Thompson against the Commercial National Bank and the Caddo Central Oil & Refining Company. From a judgment for plaintiff, second named defendant appeals.
Judgment amended, and as amended affirmed.
Albert P. Garland, of Shreveport, for appellant.
J. M Grimmet and Robert A. Hunter, both of Shreveport, for appellee.
OPINION
The Commercial National Bank is the owner of a banking house and office building in the city of Shreveport, and the Caddo Central Oil & Refining Company, as its lessee, occupies several offices on the seventh floor of said building.
On June 9, 1920, plaintiff was struck upon the head by a part of the metal framework of an awning precipitated from a window of one of the rooms of defendant oil company. He has brought the present suit to recover of defendants in solido damages in the sum of $ 5,000, as compensation for the injuries received by him. Plaintiff alleges tat said awning was jointly and severally installed and attached to said building by defendants, and that the falling of its framework and the injuries sustained by him were caused by the failure and neglect of defendants to securely affix said awning and its framework to the window and building, and to maintain same in a safe condition.
Defendant oil company denies that it is guilty of any act of negligence in the erection of said awning, and alleges that same was securely attached in the usual manner, and would have remained so, had not the canvas and ropes supporting said awning been completely consumed by a fire caused by the act of some unknown third person in carelessly throwing, from a window above, upon said awning, a cigar, cigarette, or some other lighted article. Defendant oil company alleges that the negligence of this third person in occasioning the destruction of the awning and its ropes by fire was the efficient cause of the injuries inflicted upon plaintiff; that the fault of said person could not have been foreseen or prevented by it; and that, under the law, it is not required to protect the public and plaintiff against such acts.
Although it is not disputed that this awning was erected jointly by both the owner and the lessee, yet it is contended in the brief of counsel for defendant oil company that defendant bank is solely liable in damages to the plaintiff, as said bank is the owner of the building, and, as master, had the superintendence and police of its building, and is therefore responsible for the faults committed therein. R. C. C. art. 177.
This is, undoubtedly, a correct principle of law, where the thing thrown out of the master's house is the causa causans of the injury received by a passerby, or third person. Plaintiff's cause of action, however, is predicated squarely upon the legal proposition that, having erected the awning in question conjointly with the owner of the building, the lessee is bound in solido with the owner, and as a joint tort-feasor, for the injury resulting to plaintiff from defects in the original construction and failure to keep said awning in safe repair.
In the present case, moreover, we do not find from the evidence that the ignition of the awning and ropes by some unknown third person was the proximate cause of the falling of the framework of the awning.
It is clear from the evidence in the case that a part of the metal framework fell from the awning to the sidewalk and struck plaintiff, after the canvas and ropes of the awning had been consumed by fire.
It is also made plain from the record that one of the side rods of the awning became detached from the front rod, into the elbow of which it had been screwed, before the rest of the framework gave way.
It is not disputed that the two side rods, or supports of the awning, tore loose the brackets fastening them to the window, and that the screws in the brackets were drawn out from the woodwork, before a part of the framework toppled over and fell.
The awning at the time of the fire was not fully down, but had been raised at an angle of about 15 degrees. It was attached to the window by screws placed through metalic eyelets in the canvas. This method of construction, evidently, gave a strong additional support to the metal framework. When this support was removed by the destruction of the canvas of the awning by fire, the metal framework, consisting of side rods one and one-fourth to one and one-half inches in diameter and five feet long, and of a front rod three to three and one-half feet long, was precipitated against the sill of the window, and the screws in the brackets of the side rods, thus subjected to a sudden strain, were wrenched from the woodwork of the window. It is true that the defendant oil company was in no way responsible for the fire, which seems to have originated from a lighted match, cigar, or cigarette tossed upon the awning from a window above in the building.
It is also true that, if the awning had been fully down at the time of the fire its framework may have remained intact, after the destruction of the canvas and the ropes. There are two clauses of cases in which this court has exonerated the owner from liability for vices in the original construction of a building or from the fall of any part of the materials composing it:
First. Where there was no fault or negligence imputable to the owner, and there was no original imperfection in the structure. Burton Case, 15 La.Ann. 448.
Second. When the accident is the result of a fortuitous event of vis major. Barnes v. Beirne, 38 La.Ann. 280; 5 Larombiere, 795; Domat 1, p. 481, N. 7.
The defendant oil company, however, does not come within either of these exceptions.
Admitting that said company was free from fault in setting out the fire, yet the evidence discloses that there were defectsin the original construction of the awning. One of the side supports became detached from the elbow of the front support, and the brackets wrenched away the screws attaching the two side supports to the window. It is therefore apparent that the metal framework of the awning, when standing alone, was not affixed to the woodwork of the window in a manner sufficiently safe, nor was one of the side supports securely threaded into the front support. Awnings so constructed on an office building are a constant menace to the public on the sidewalk below, in the event the canvas becomes ignited, whether accidently or intentionally.
As a measure of public safety it therefore becomes necessary that such...
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