Glain v. Sparandeo

44 So. 120 | La. | 1906

On Motion to Dismiss Appeal.

MONROE, J.

Plaintiff (appellee) moves to dismiss the appeal herein, on the ground that it was taken by motion, and without citation, during a term of the court subsequent to that in which the judgment appealed from was rendered.

The judgment' was rendered on June 26th ■of one term, and signed on October 15th of the next term, and the appeal was taken on the day after the signing. It was properly taken by motion in open court and citation was unnecessary. Louque’s Digest, pp. 15, 16, Tit. “Appeal” 1 (b) Nos. 1, 2, 3, 8, 9, 10, 11; .Sackett, Grymes & Co. v. Attaway, 11 La. Ann. 181; Consolidated Association v. Mason et al., 24 La. Ann. 518.

The motion to dismiss therefore overruled.

Statement of Case.

Plaintiff, by original petition, alleges that "he leased from defendant a portion of eer-tain premises (a room) opening upon a side gallery; that, while moving out, the gallery .gave way, and he was precipitated to the .ground and injured; that the supports of the .gallery were rotten, but that the defect was not apparent; and that defendant was negligent in failing to have the gallery inspected, and is liable, on his warranty as les•.sor, in damages for said injury. By supplemental petition, he alleges that he was lowering a dresser over the railing of the gallery when the railing and posts gave way, causing the dresser to jerk and pull him over. Defendant filed an exception of “no cause ■of action,” and answered that defendant, having failed to pay his rent, was notified to vacate the premises on July 31, 1905, but failed to do so, and that on August 7th, the .date of the alleged accident, he had ceased to be a tenant of defendant, and was a trespasser, or third person, to whom defendant was under no contractual obligation.

It appears from the record, and the admission of counsel, that plaintiff gave a bond for costs, in the sum of $25, and that subsequently defendant obtained an ex parte order directing him to furnish an additional ’bond, in a like sum, which order (made April 10th) was served April 11th on plaintiff’s attorney; that on April 23d defendant ruled plaintiff to show cause why his suit should not be dismissed, on the ground that the additional bond had not been furnished; that before the return day of the rule (April 27th) the additional bond had been furnished, and that the rule was dismissed.

It further appears that plaintiff had paid his rent up to July 13th, but that, not paying in full for the succeeding month, he was notified to move out, and was in the act of doing so when the accident occurred. A portion of his furniture had been carried out through the front of the house, but it was decided to lower a bureau, or dresser, over the railing of the back gallery down into the yard. Merrick and Taylor, two men who had been hired for the purpose, lifted the dresser over the railing, and rested it on the edge of the gallery, while plaintiff held one end of a rope, the other end of which had been tied around the dresser, and the dresser was then pushed off the edge of the gallery, thus bringing the strain of its weight, by means of the rope, plus, as we think, part of the weight of the men, upon the railing, which at that moment gave way, precipitating men and dresser into the yard below. The dresser was provided with three drawers, and several witnesses say that they had not been removed, and were filled with books, crockery, etc., whilst other witnesses testified that they had been removed. "We are inclined to think that they had been removed. Plaintiff and Taylor testify that the dresser was lifted over the railing, and was then launched from the edge of the gallery without their touching or pressing against the railing. ' Merrick testifies that he pressed against the railing, and we think they all did, and, as the railing gave way when the dresser was launched in the air, that its giving way was caused by their pressing against it in conjunction with the strain of the rope to which the weight of the dresser was then applied. There is some pretense that the attempt to remove the dresser in the manner described was made because there was a hole in the landing of the front stairway,. but the real reason appears to us to have been that it involved less work. Whether the wood of the railing was rotten or sound is not shown with any certainty. Plaintiff was not seriously injured, though he appears to have taken rather a long holiday, and the judge a quo awarded him $75. Defendant prosecutes the appeal.

Opinion.

The lessor, we think, is as much bound for the safety, for ordinary use, of the necessary approaches and exits to and from the apartments which he lets as for the safety of the apartments themselves. The exception of no cause of action was therefore properly overruled.

Section 4 of Act No. 136, p, 190, of 1880, entitling defendant to require “bond or other security” for costs, is not confined in its application to one bond to be given at the inception of the litigation, but may be invoked, from time to time, as occasion may require. In the instant case, however, the second order upon the subject was not served on plaintiff, or at his domicile, but on his attorney; and, in the absence of proof of the authority of the attorney in the premises, and in view of the fact that the second bond was furnished before the day fixed for the hearing of the rule to dismiss, we are of opinion that the rule was properly discharged. On the merits, we think the case is with the defendant. The use to which the railing of the gallery was subjected was not the ordinary use for which the lessor is presumed to have warranted it, and, whilst persons, in moving heavy articles, may choose to rely on such supports, they do so at their own risk when the customary and safer way is open to them.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be-annulled, avoided, and reversed, and that plaintiff’s demand be rejected, and his suit dismissed, at his cost in both courts.