Green v. Hodges Stock Yard, Inc.

552 So. 2d 435, 1989 La. App. LEXIS 1733, 1989 WL 119644
CourtLouisiana Court of Appeal
DecidedOctober 12, 1989
Docket88-CA-2395
StatusPublished
Cited by3 cases

This text of 552 So. 2d 435 (Green v. Hodges Stock Yard, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Green v. Hodges Stock Yard, Inc., 552 So. 2d 435, 1989 La. App. LEXIS 1733, 1989 WL 119644 (La. Ct. App. 1989).

Opinion

552 So.2d 435 (1989)

Floyd GREEN
v.
HODGES STOCK YARD, INC.

No. 88-CA-2395.

Court of Appeal of Louisiana, Fourth Circuit.

October 12, 1989.

Michael J. Begoun, William W. Rosen, Herman, Herman, Katz & Cotlar, New Orleans, for plaintiff-appellee.

C. Ellis Henican, Henican, James & Cleveland, Metairie, for defendant-appellant.

Regel L. Bisso, Hulse, Nelson & Wanek, Brad G. Theard, Young, Richaud, Theard & Myers, New Orleans, for third party defendant-appellant.

Before BARRY, WARD and WILLIAMS, JJ.

BARRY, Judge.

In 1980 Floyd Green leased warehouse space from Hodges Stock Yard, Inc. [Hodges] to store vending machines. In September, 1983 Green discovered that some of the machines were corroded. Green sued Hodges alleging negligent maintenance caused corrosion of vending machines stored on the leased premises. Hodges *436 reconvened for past due rent and third partied Continental Casualty Company as the casualty insurer at the time of the alleged damage. Hodges also claimed Continental repudiated its coverage which caused Hodges legal expenses. Continental third partied Great American Insurance alleging it was Hodges' insurer.

Hodges' motion for a directed verdict was granted. The court ruled in favor of Hodges as reconvenor against Green for $1,700.00 past due rent.[1] The court took no action on the third party demands but stated that all parties' rights were reserved. Green previously appealed the directed verdict which we reversed and remanded. Green v. Hodges Stock Yard, Inc., 508 So.2d 934 (La.App. 4 Cir.1987). After remand Hodges third partied Great American Insurance Company.

After trial on the merits the trial court rendered judgment in favor of Hodges on Green's claim, in favor of Great American Insurance and against Hodges dismissing its third party claim for defense costs, and dismissing with prejudice all other third party demands. Green appeals the judgment against him on his principal demand against Hodges. Hodges appeals the dismissal of its third party claims against Great American Insurance and Continental Insurance Companies.

FACTUAL TESTIMONY

Floyd Green testified that he verbally leased storage space for $100.00 per month from Hodges Stock Yards beginning in July or August, 1980. He inspected the area and found no water or leaks. Green stored thirty-one 8-10 year old vending machines and he had the only key to the premises.

In September, 1983 Green went to remove several machines and discovered they were corroded. The worst damage was on machines stored in the rear and which were there the longest. Green cleaned, compounded and repainted the machines, then sold thirty-one machines for $20,000.00. He said that each machine was worth $2,000.

Green contacted a corrosion expert, Reginald Daughdrill, who inspected the premises and found a twelve to fifteen inch hole in the back wall about six to eight inches above the floor. Green felt cold air coming through the hole from about two feet away. On cross-examination he conceded that he went into the storage area thirty or more times from 1980 to 1983, never saw a hole or felt cold air, and did not know when the hole was made. Green's first knowledge of the hole was when Daughdrill located it, but he did not remember whether he told Hodges and never gave Hodges written notice.

Reginald Daughdrill testified that he inspected the premises on February 2, 1984 and found watermarks and corrosion on the five machines he could reach. He took rust scrappings from two and dust and paint from the other three. There was an opening in the roof, but he did not believe water entered Green's area from that source. Daughdrill could feel cold air, he found moisture on the rear floor, and discovered the hole in a wall which separated a cold storage area. He testified that cold air saturated Green's space and caused condensation and ultimately corrosion. He said the cold air could be felt when a person entered the building.

Daughdrill stated the outside temperature on the day of his inspection was 60 degrees with 58% relative humidity. In Green's area it was 49 degrees with 93% relative humidity. A certified copy of the U.S. Department of Commerce records of the local climatological data for the New Orleans area for June, 1983—January, 1984 was introduced. Daughdrill said the difference between the inside and outside temperature, especially during the summer, would create a great deal of condensation and corrosion. When asked whether that condition was present prior to December, 1983, he stated there was no way to tell. *437 He could not determine the period of time over which the corrosion occurred.

During questioning by the Court, Daughdrill conceded that he did not measure the temperature, or the volume of air coming through the 1.5 square foot hole in the wall, or the size of Green's storage area. He admitted that he could not state how much the temperature in Green's area was lowered due to air entering through the hole.

After this Court remanded the directed verdict, Francis Schumacher, Hodges' air conditioning and refrigeration mechanic, testified that he made daily inspections of the cold storage areas in the building where Green's machines were stored. He stated that two or three months before Hodges sold the property on December 16, 1983 the Board of Health discovered a hole in an area leased by Charlie Gresham who stored chickens behind Green's space. Schumacher said it was a small hole (the size of his hand) which did not go through the wall and no cold air escaped. Foam was sprayed within a couple of days to close the hole which had been made by Gresham's workmen. He said the Board of Health continued to check regularly. Schumacher had no trouble maintaining the temperature in Gresham's area except once when an expansion valve malfunctioned.

Curtis Lemoine, owner of Southern Coating and Waterproofing, Inc., and others purchased Hodges' building on December 16, 1983. Lemoine testified that he inspected the building prior to the sale, but could not get into Green's locked area. He noted there were holes in the building, but not in the refrigerated sections where he paid the electric bill. He said Green owed back rent, but never complained about a wall hole in his area. Hodges never personally saw any hole in Green's storage area.

Fred Mercier, Lemoine's maintenance man from April, 1984, testified that he first saw a hole in August or September, 1984 after there had been a break-in. Green's space was vacant at that time. Mercier sprayed foam to close the hole.

John Klees, a retired Hodges' employee who took care of the building from 1980, said he did not see a hole in the wall between Green's storage area and the egg storage company until 1987. Only one of Green's machines was in storage at that time. From 1980-1984 he inspected the premises often and said such a hole would have been called to his attention because of its effect on the temperature of the cooler.

Richard Hodges, employed by Hodges in 1980-1983, testified that he went to the building two or three times a year and reviewed the property with the manager. He noted that Charlie Gresham of Imperial Foods occupied a refrigerated area and he checked Gresham's thermostats when he inspected the building. His last visit was several months before the December, 1983 sale. Although he never met Green, he spoke to him ten to twenty times over the years. Green never complained of a hole in the wall. Hodges did see the hole after trial.

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552 So. 2d 435, 1989 La. App. LEXIS 1733, 1989 WL 119644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-hodges-stock-yard-inc-lactapp-1989.