Nelson F. HEBERT, Sr. v. Xavier VALENTI et al.
No. 3739.
Court of Appeal of Louisiana, Fourth Circuit.
May 4, 1970.
235 So. 2d 193
Before BARNETTE, Le SUEUR and DOMENGEAUX, JJ.
John I. Hulse, IV, of Hammett, Leake & Hammett, New Orleans, for defendant-appellee, Xavier Valenti.
Francis G. Weller, of Deutsch, Kerrigan & Stiles, New Orleans, for defendants-appellees, American Elevator & Electric Co. and Maryland Casualty Co.
J. Walter Ward, Jr., of Christovich & Kearney, New Orleans, for third-party defendant, Great American Ins. Co.
Ignatz G. Kiefer of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for third-party defendants and third-party plaintiffs.
The plaintiff herein, Nelson F. Hebert, Sr., was an employee of Jack Pulitzer & Bro., in the capacity of a shipping clerk. His employer had leased two floors of a building located at 129 Chartres Street, in the City of New Orleans, from Xavier Valenti, defendant herein, and owner thereof. In the building is located a freight-type elevator which the lessee used in conducting his business, and which the lessee had agreed to be responsible for. The lessee, Jack Pulitzer, also had other buildings in his possession which contained elevators, and he had a contract with American Elevator and Electric Company, Inc., for the maintenance and inspection of the several elevators under his control.
On December 18, 1963, plaintiff was in the elevator at 129 Chartres Street together with a fellow employee, Peter Hahlos, over whom he had supervision. The two were on a mission for their employer, Jack Pulitzer & Bro., the essence of which was to remove toys which their employer had stored on the fourth floor of the building, take them down on the elevator, and load them on a truck belonging to Jet Delivery Service. Hebert and Hahlos ascended to the fourth floor of the building, taking with them a hand truck. The elevator stopped a short distance above the fourth floor landing and Hahlos attempted to push the hand truck from the elevator. At this point a wheel on the hand truck became wedged in between the fourth floor landing and the elevator. Efforts to dislodge it were futile and it was decided to lower the elevator and free the wheel in that way. Hahlos who was off the elevator, pulled the cable to start the elevator downward. The plaintiff was standing in the elevator attempting to free the hand truck. At first the elevator moved downward very slowly and in a jerky fashion, but suddenly it descended with great speed. The distance that it fell is in dispute, estimates ranging from three to one and one-half floors, but it was sufficient to produce severe injuries to the plaintiff.
It seems to us that the crucial question insofar as defendant Valenti is concerned is “who had control of and responsibility for the elevator“? This is so because if Jack Pulitzer, the employer of plaintiff, was the responsible party, then plaintiff‘s suit must of necessity fall. Under
Plaintiff argues strongly that defendant Valenti is, as owner of the building in which the accident occurred, the responsible party. He cites
“\xc2\xa7 3221. Assumption of responsibility by lessee; liability of owner.
“The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.”
As can be clearly seen this statute allows the landlord to escape the strict liability imposed by the aforementioned civil code articles and transfers his responsibility, insofar as persons on the premises who derive their right to be thereon from the lessee
Jack Pulitzer and Xavier Valenti entered into a written contract of lease on January 1, 1962, which was for the duration of one year or until December 31, 1962. This lease was for the rental of the third floor at 129 Chartres Street in New Orleans at the price of $65.00 per month. The lease further provided that, “Lessee to pay operation cost of elevator and utility bill for elevator.” Pulitzer‘s intention was to use the third floor as a storage area for the toys and novelties which he was in the business of selling, an activity requiring the use of a freight elevator. It is clear to us, especially from the testimony given by both Valenti and Pulitzer that the parties’ intention was that the use of the elevator in question should pass to Pulitzer vesting him with full responsibility for, and control over, it. Mr. Valenti‘s testimony is to the effect that he seldom, if ever, used the elevator and that he had a stairway installed so he would not have to make use of the elevator since he did not wish to maintain it. Mr. Pulitzer testified, as did Mr. Valenti, that he assumed that he, Pulitzer, would be responsible for the elevator. Pulitzer maintained a verbal contract with American Elevator Company whereby they would periodically oil, grease and inspect the elevator whereas Valenti had none. All of the city permits, save one, for operation of the elevator were addressed to Pulitzer. Pulitzer paid for all repairs, maintenance, and inspections of the elevator. He further maintained insurance on it. We therefore conclude that under the written lease Pulitzer and not Valenti was responsible for this elevator. That lease also contained the following provision:
“Lessor shall not be liable for any damage to person or property sustained by the Lessee or any other persons, and any such liability is assumed by Lessee.”
Clearly this provision was intended to invoke
The written lease expired on December 31, 1962; however, Pulitzer remained in possession of the premises by verbal agreement with Valenti. By the testimony of both parties to the lease it was intended by them that all the provisions of the written lease should remain in full force and effect between them and that nothing should be changed save only that Pulitzer would have the right to use an additional floor, i. e., the fourth floor, for an added rent of $35.00 per month. Much is made by counsel of whether this constituted a tacit reconduction of the old lease or a new verbal lease between Valenti and Pulitzer; however, insofar as the issues of this case are concerned the point is moot since if the old lease was reconducted, then all its provisions were in effect by written contract, and if it was not, then they were still a part of the new verbal lease by agreement of the parties. It is well settled in our jurisprudence that in interpreting the terms of a contract, the intention of the parties is the law of the case.
Our conclusion regarding responsibility for the elevator under the written lease is therefore also valid at the time of the accident and defendant Valenti cannot be looked to for recovery by plaintiff unless there existed a defect in the elevator of which he knew or should have known. We therefore turn our attention to the elevator itself, as well as the possible existence of any circumstances from which negligence could be attributed to either defendant.
The record discloses that the elevator at 129 Chartres Street was of ancient vintage, having been installed around the turn of the century, and was of the drum type and nonautomatic. It stopped automatically only on the top and bottom floors, at which points it was set so that it would stop slightly above the floor when empty. Thus when loaded it would not stop below the floor, facilitating the unloading process. The elevator‘s drum on which the hoist cable was wound operated with direct electrical current. Most of the remainder of its parts including the controls, governor, and safety devices were mechanical.
The elevator was inspected regularly at the direction of Pulitzer by American Elevator and Electric Company. It was also inspected yearly by the representatives of the City of New Orleans. Pulitzer‘s employees, including the plaintiff, made regular use of the elevator to haul his goods. None of these people ever pointed out, complained of, or as far as we can tell from the record, noticed any specific dangerous condition. The only exception occurred when the city made a recommendation that the gates at the landings be kept closed. Although the elevator was very old and all of the persons using and/or inspecting it were well aware of the fact, it always functioned normally both before and after the accident. No major repairs were ever made on the machine. Furthermore, while this elevator did not meet the standards which modern elevators must meet in order to be approved in the City of New Orleans it never failed to receive permits for operation from the city. This is due to a provision in the American Standard Safety Code as adopted in the Building Code of the City of New Orleans permitting elevators which are not dangerous to life or health to operate with whatever equipment was legal at the time of the adoption of the Code, if they were so operating at that time. Plaintiff complains that had the elevator been equipped with a safety apparatus known as a slack cable device, the cable would never have unwound while the car was stationary and the accident would not have happened. To sustain this allegation he called an expert witness, the president of an uninvolved elevator company, who testified that such a device could have been installed on the elevator at a modest cost and would have prevented the accident, since it would have stopped the cable from playing out while the car was stationary. The defendants also called an expert, one Mr. Payes, the current Plan Examiner and former Elevator Inspector for the City of New Orleans, who testified that the city does not require slack cable devices on elevators which were operating prior to the adoption by the city of the American Standard Safety Code, as this one was, and that he had never seen such a device on this type of elevator either as original equipment or as a later addition. He further testified that to attempt to install such a device on this type of elevator would be prohibitively expensive and might be hazardous. Most significantly he stated that the city would not issue a permit for the installation of a slack cable device on this elevator and hence it could not be legally installed. We cannot say therefore that the defendants were negligent because of the lack of a slack cable device on the elevator.
Finally, much is made by plaintiff of the gap that existed between the elevator platform and the fourth floor landing. The highest estimate of the size of this gap was made by plaintiff‘s expert witness, who said it to be 2\xc2\xbd inches. All of the expert witnesses who testified on the point agreed that the maximum gap allowed under the American Standard Safety Code is 1\xc2\xbd inches. However, Mr. Payes testified that wider gaps are tolerated in elevators which were in operation prior to the city‘s adoption of the Code. These are tolerated and permits are issued for the operation of such elevators, he said, so long as they are not hazardous. He further testified that the gap is one of the points checked by the inspectors, that no recommendation had ever been made by the city that the gap in this elevator be narrowed, and that the city had always issued permits for the operation of this elevator. Hahlos, who testified that the wheels on the cart which caught in between the elevator and the floor, were from four to five inches in diameter, said that they
It is elementary in our law that the judgment of the trial judge who saw and heard the witnesses may not be disturbed by an appellate court in the absence of manifest error. While the trial judge in this case gave no reasons for his judgment, it is consistent with our own findings that there was no negligence on the part of defendant, American Elevator and Electric Co., that defendant Xavier Valenti was not responsible to plaintiff under the facts of this case, but rather Jack Pulitzer, if anyone, was the responsible party, and that plaintiff‘s only remedy against him lies in the Workmen‘s Compensation Act. In view of these findings we need not reach the issue of contributory negligence on the part of plaintiff, and we find no error in the trial court‘s judgment.
With regard to defendants’ third-party demands against Great American Insurance Company and Peter Hahlos the judgment of the trial court was silent, and this silence constitutes a rejection of said third-party demands.
For the foregoing reasons the judgment of the trial court is affirmed at appellants’ cost.
Affirmed.