Turner v. Aetna Cas. & Sur. Co.

• Citation: 175 So.2d 304
• Decision Date: 26 January 1965
• Docket Number: No. 10333,10333
• Parties: Richard and Eula Lee TURNER, Plaintiffs-Appellees, v. The AETNA CASUALTY AND SURETY COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 304

175 So.2d 304

Richard and Eula Lee TURNER, Plaintiffs-Appellees, v. The AETNA CASUALTY AND SURETY COMPANY, Defendant-Appellant.

No. 10333.

Court of Appeal of Louisiana, Second Circuit.

Jan. 26, 1965.

On Rehearing April 28, 1965.

Rehearing Denied May 21, 1965.

Writ Refused June 28, 1965.

Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for appellant.

Bullock & Bullock, Shreveport, for appellees.

Before GLADNEY, AYRES, and BOLIN, JJ.

AYRES, Judge.

This is an action in tort wherein plaintiffs, husband and wife, seek to recover, of their lessor's insurer, damages for personal injuries sustained by the wife and reimbursement of medical expenses incurred by the husband in the treatment of the wife's injuries, as well as for the loss of her wages. The action arose from an accident of October 5, 1962, allegedly caused by a defective condition of the leased premises. The defense is that, as to the occurrence of the accident, plaintiff Eula Lee Turner was guilty of negligence constituting the proximate cause thereof or, in the alternative, contributing to its occurrence .

There was judgment in favor of plaintiff Eula Lee Turner in the principal sum of $3,000.00 and in favor of plaintiff Richard Turner in the principal sum of $374.34. From this judgment defendant appealed. Plaintiff Eula Lee Turner answered the appeal and prayed for an increase in the award.

Plaintiffs' action is predicated upon the provisions of LSA-C.C. Arts. 2322 and 2695. The first of these articles provides:

'The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction,'

and the second:

'The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnity him for the same .'

In accord with the aforesaid statutory provisions, the jurisprudence is well settled that a landlord is responsible for injuries sustained by his tenant because of vices or defects in the leased premises, whether or not he had actual knowledge of the damaged condition of the premises. Lasyone v. Zenoria Lumber Co., 163 La. 185, 111 So. 670 (1927); Ciaccio v. Carbajal, 142 La. 125, 76 So. 583 (1917); Boutte v. New Orleans Terminal Co., 139 La. 945, 72 So. 513 (1916); Sabin v. C & L Development Corporation, 141 So.2d 482, La.App., 1st Cir. 1962; Thompson v. Moran, 19 La.App. 343, 140 So. 291, 1932.

No controversy exists as to the condition of the back porch of the second-story apartment where plaintiff Eula Lee Turner is alleged to have been injured. Access from the back yard to this porch, which is 4 1/2 feet wide by 7 1/2 feet long and 8 feet high, is by means of wooden steps, or stairs. The porch floor to one side at the head of the stairs contained a hole approximately 18 inches wide by 24 inches long. Surrounding the hole, the floor was rotten and the planks jagged at their broken ends. Between the outer wall of the apartment and the hole in the floor was a pathway approximately 24 inches wide, of unbroken flooring, leading from the stairs to the rear entrance to the apartment. That the porch floor was in a dilapidated condition and in a very poor state of repair was established beyond question. This fact does not appear to be disputed. In fact, at the time the premises were rented, lessor's agent was engaged in making repairs, the completion of which was delayed because of his illness and hospital confinement. Thus, from a review of the record, the conclusion is inescapable that the lessor was negligent in his failure to properly maintain the leased premises.

We may observe, however, that, as to the defense urged here, negligence of a defendant is of no importance if plaintiff is guilty of contributory negligence constituting a proximate cause of the accident. Denton v. Fireman's Fund Insurance Company, 158 So.2d 438, 441--442, La.App., 2d Cir. 1963.

A resume of the facts relating to the occurrence of the accident is deemed a prerequisite to an understanding of the issues presented for determination. On the occasion, plaintiff Eula Lee Turner was completing the family wash. She took from the washer, located in the kitchen, three pairs of blue jeans and proceeded through the rear door and onto the porch with the clothes in her hands. Her intention was to descend the stairs and hang the clothes on a line in the back yard to dry. In crossing the porch, she followed the narrow pathway heretofore described and deemed by her to have been safe. She had made use of this pathway at least once a week for a period of time exceeding six months while she and her husband occupied the premises. Nevertheless, in crossing the porch, she stepped on the edge of a plank from which her foot slipped into the hole and came to rest upon the ceiling of the lower apartment, which ceiling was nailed underneath the floor joists of the porch of her apartment. After balancing herself, plaintiff Eula Lee Turner, in stepping out of the hole, stepped backward on the second plank from the hole. The plank broke under her weight of 89 pounds and, as a result of which, she complained her back was wrenched and twisted.

The important question for resolution relates to the alleged contributory negligence of plaintiff Eula Lee Turner. Defendant contends that she was guilty of such negligence at the time of and immediately preceding the accident in that she was not looking where she was stepping. In this regard, we may point out that the fact she was not looking at the time her foot slipped into the hole was established by plaintiff's own testimony.

The principle is well established that one must see those defects in his pathway which are obvious or which may be discovered by a reasonably prudent person in the exercise of ordinary care. White v . City of Alexandria, 216 La. 308, 43 So.2d 618 (1949); Youngblood v . Newspaper Production Company, 158 So.2d 432, La.App., 2d Cir. 1963 (writ refused); Birth v. City of New Orleans, 77 So.2d 233, La.App., Orleans 1955; Hamilton v. City of Monroe, 72 So.2d 576, La.App., 2d Cir.1954; Massicot v. City of New Orleans, 43 So.2d 621, La.App., Orleans 1950.

A further question arises as to whether the aforesaid rule of law is applicable to the facts of the instant case. While plaintiffs, it must be conceded, had knowledge of the general condition of the porch, the record does not establish that the defects were so dangerous that the premises could not be used with the exercise of ordinary care, or that plaintiff Eula Lee Turner was fully aware that such was the case. In this connection, the trial court correctly pointed out that, although it was obvious from the hole in the floor that the back porch was dangerous, the fact that lessor's agent had made use of the porch, bringing in materials to repair the apartment, was an indication that it could be used in safety by the exercise of ordinary care. Moreover, the testimony establishes that the plank upon which plaintiff stepped was not obviously in such condition that it could be expected to break and fall through if she stepped upon it.

Appropriate to the facts of this case, as hereinabove detailed, is an observation of the Supreme Court in Gilliam v. Lumbermens Mutual Casualty Company, 240 La. 697, 124 So.2d 913, 915--916 (1960), wherein it was stated:

'It has long been the jurisprudence that knowledge alone on the part of the injured party that the premises were in a defective condition will not defeat an action for damages against his landlord or the owner of the premises. Wise v. Lavigne, 138 La. 218, 70 So. 103; Boutte v. New Orleans Terminal Co., 139 La. 945, 72 So. 513 and Landry v. Monteleone, 150 La. 546, 90 So. 919. Obviously, the sustaining of injury as the result of a known defect is not conclusive proof of contributory negligence; such negligence cannot be presumed for the burden always rests on the defendant to establish it. * * * it must clearly appear that the defect was so dangerous that the premises could not be used even with the exercise of ordinary care, and that the plaintiff was fully aware that such was the case. * * * See Wilcox v. Lehman, La.App., 12 So.2d 641, citing Estes v. Aetna Casualty & Surety Co.,...