Dobard v. St. Raymond

161 So. 36, 1935 La. App. LEXIS 279

• Court: Louisiana Court of Appeal
• Decided: April 29, 1935
• Docket: No. 16084.
• Status: Published

Opinion

LECHE, Judge.

Plaintiff, Mrs. Camelia Dobard, brought this suit for damages for alleged injuries caused by the defective condition of the premises No. 813 N. Villere street of which her husband, Louis Dobard, was the lessee. From a judgment rejecting her demand, she has appealed.

The record discloses to our satisfaction that the relationship of landlord and tenant existed between petitioner’s husband and defendant; that the plastering in said premises was in a defective condition; and that a part of said plastering fell causing injury to plaintiff. The accident occurred in the fouvth room which was used as a dining room. As plaintiff was bending over a chair, a large section of the plastering from the ceiling fell upon her. Shortly after the accident, defendant had the plastering in this room as well as in other rooms repaired. The principal contention here seems to be the question of contributory negligence on the part of plaintiff. Contributory negligence was not alleged, but at one point in her testimony plaintiff stated that the plastering was in a very serious condition and looked as though it might fall at any moment. The contention is that placing herself in a position where injury would result from plastering which appeared that it might fall at any moment and her testimony to this effect constituted an enlargement of the pleadings and supplied the plea of contributory negligence. The record clearly shows that the plastering which fell upon petitioner came out of the ceiling while that portion which she said looked as though it might fall at any moment was in the wall, and we do not believe that the question of contributory negligence in this respect has been satisfactorily shown. The only remaining question, therefore, is whether or not there was any negligence on the part of defendant and this is affirmatively shown by the record.

The record discloses that petitioner received no serious injuries as a result of the accident. She was somewhat bruised and shaken up and rather than acute pain .seems to have suffered more from stiffness or soreness from which she appears to have been put to some inconvenience for a period of several weeks. It is our opinion that an award of $175 would cover the damages sustained.

For the reasons assigned, the judgment appealed from is annulled, avoided, and reversed and it is now ordered, adjudged, and decreed that there be judgment herein in favor of plaintiff, Mrs. Camelia Dobard, wife of Louis Dobard, 'and against defendant, Albert St. Raymond, in the full sum of $175, together with legal interest thereon from judicial demand until paid and for all costs.

Reversed.