Emile M. Babst Co., Inc. v. Nichols Const. Corp.

• Decision Date: 16 January 1986
• Docket Number: Nos. 84,s. 84
• Citation: 68 A.L.R.4th 377,488 So.2d 699
• Court: Court of Appeal of Louisiana — District of US
• Parties: EMILE M. BABST COMPANY, INC. v. NICHOLS CONSTRUCTION CORPORATION, United States Fidelity & Guaranty Company, B. Drew Achee, d/b/a Achee Specialty Rentals and Maryland Casualty Company. UNITED STATES FIDELITY & GUARANTY COMPANY and Nichols Construction Corporation v. EMILE M. BABST COMPANY, INC., Frank Donal Allen and Achee Specialty Rentals. CA 0897, 84 CA 0898. 488 So.2d 699, 68 A.L.R.4th 377

Page 699

488 So.2d 699

EMILE M. BABST COMPANY, INC. v. NICHOLS CONSTRUCTION CORPORATION, United States Fidelity &

Guaranty Company, B. Drew Achee, d/b/a Achee

Specialty Rentals and Maryland Casualty

Company.

UNITED STATES FIDELITY & GUARANTY COMPANY and Nichols

Construction Corporation v. EMILE M. BABST COMPANY, INC., Frank Donal Allen and Achee

Specialty Rentals.

Nos. 84 CA 0897, 84 CA 0898.

488 So.2d 699, 68 A.L.R.4th 377

Court of Appeal of Louisiana First Circuit.

Jan. 16, 1986.

Laurence D. Rudman, New Orleans, for Emile M. Babst Co., Inc.

Paul Marks, Jr., Baton Rouge, for United State Fidelity & Guar. Co. and Nichols Const. Corp.

John L. Dardenne, Jr., Baton Rouge, for Maryland Cas. Co.

David A. LeClere, Baton Rouge, for Nichols Const. Corp.

Before GROVER L. COVINGTON, C.J., and WATKINS and SHORTESS, JJ.

WATKINS, Judge.

These consolidated actions arise from an accident that occurred June 13, 1979, when a loading machine commonly called a cherrypicker fell from a dock that was under construction into the Mississippi River, damaging both the dock and the cherrypicker, and necessitating the removal the cherrypicker from the Mississippi River by crane. The cherrypicker was operated by Frank Donald Allen, an employee of Emile M. Babst Company, Inc. which was a subcontractor of Raymond International, Inc., the principal contractor for construction of the dock. Babst was insured against liability by Maryland Casualty Company. The cherrypicker was owned by Nichols Construction Corporation and leased by Nichols to B. Drew Achee d/b/a/ Achee Specialty Rentals, and sublet by Achee to Babst. Nichols was insured by United States Fidelity & Guaranty Company against damage to the cherrypicker and against liability for its use.

Babst sued Nichols, USF & G, and Achee, or in the alternative Maryland, for cost of repairs to the dock and cost of removal of the cherrypicker from the Mississippi River, both of which were paid for by Babst. Nichols and USF & G in a separate suit sued Babst for damage to the cherrypicker, USF & G suing as subrogee of Nichols and Nichols suing individually under a $5000.00 deductible. Named defendant in that suit were not only Babst, but also Frank Donald Allen and Achee Specialty Rentals. Later, USF & G and Nichols also sued Grove Manufacturing Company, the manufacturer of the cherrypicker, but these proceedings were dropped at the beginning of the trial. In the suit against Babst, Allen, and Achee, Babst and Allen answered and filed a reconventional demand against Nichols and USF & G. Further, Allen sued Nichols, USF & G and Achee for personal injuries and Babst filed a third party demand against Maryland for any sum it was forced to pay in Nichols' and USF & G's suit and for failure to defend Nichols' suit. There were thus basically two suits, one brought by Babst and one by Nichols, with the associated reconventional demand and third party demand. The two suits were filed in separate parishes, one in East Baton Rouge Parish and one in St. James Parish, but the two suits were consolidated before trial which took place in East Baton Rouge Parish.

At the trial, it was stipulated:

(1) In the event judgment was rendered in favor of Babst and against Nichols and USF & G, the amount of the judgment would be $70,103.61, plus legal interest and costs.

(2) In the event judgment was rendered in favor of Nichols and USF & G and against Babst, the amount of the judgment would be $17,159.80 in favor of USF & G and $5000.00 in favor of Nichols.

(3) In the event judgment was rendered in favor of Babst and against Maryland, the amount of the judgment would be $55,450.67 for repairs to the dock, plus legal interest and costs. Nothing was to be paid by Maryland for the expense to Babst of removing the cherrypicker from the Mississippi River.

At the conclusion of the trial, the trial court gave oral reasons for judgment, in accordance with which judgment was rendered. Allen and Achee had taken no part in the trial, Achee being bankrupt.

The judgment rendered by the trial court awarded Babst $55,450.67 against Maryland. The trial court further denied Babst's demand against Nichols and USF & G, and Nichols' and USF & G's claim against Babst, finding both Babst and Nichols to have been contributorily negligent for the fall of the cherrypicker. From this judgment, all parties to the trial appealed.

We amend and render.

CLAIMS INVOLVING NICHOLS and USF & G

Babst seeks to recover from Nichols and USF & G for cost of repairs to the dock and cost of removal of the cherrypicker from the Mississippi River. Nichols and USF & G (as subrogee to Nichols) seek to recover from Babst for cost of repairs to the cherrypicker. The trial court denied both claims, finding both Babst and Nichols to have been at fault, Nichols for furnishing a mechanically defective cherrypicker and Babst (as employer of Allen) to have been negligent in operating the cherrypicker. We agree with these findings of the trial court.

Raymond International was constructing a dock on the bank of the Mississippi River to accommodate vessels carrying energy producing liquids for the United States Department of Energy. Babst as subcontractor by written contract undertook to perform part of the work.

The dock projected into the Mississippi River. On the surface of the dock was an oil dam, an elevated part of the dock floor used to prevent the spread of waste oil. A 42" pipe ran along the edge of the dock.

The cherrypicker was positioned on the dock to lift a 42" blind flange, which was to be attached to the end of the 42" pipe. The blind flange weighed several thousand pounds. The cherrypicker had four outrigger pads, which were designed to support the weight of the cherrypicker and a lifted object when the cherrypicker was lifting a load. The cherrypicker when the outrigger pads were not extended was supported by four rubber tires.

Allen, the operator of the cherrypicker, testified that he extended these pads and lifted the blind flange from a truck by use of the boom attached to the cherrypicker. He was turning the boom in a counter-clockwise direction. As the boom and load reached the 11:00 o'clock position, the load began to swing without control slowly in a still further counter-clockwise direction. Allen attempted to use the braking mechanism on the cherrypicker that was designed to halt the turning of the boom, to no avail. Finally, it became obvious the cherrypicker would topple over, and Allen jumped from the cherrypicker. The cherrypicker fell from the dock, damaging the dock, into the Mississippi River. The cherrypicker was recovered by Babst by use of a crane the next day.

Robert McKenzie, an expert who testified for Nichols, stated that two of the wheels of the cherrypicker were positioned on the top of the oil dam which extended across the surface of the dock. The outrigger pads were designed to be separately adjusted to compensate for unevenness of surface. Even with use of the adjustment, the trial court found, as McKenzie had testified, that two wheels of the cherrypicker would have been ten or eleven inches higher than the other two wheels. Thus, part of the weight of the cherrypicker would have been supported by the two wheels, rather than the outrigger pads. The manual furnished by Grove, the manufacturer, stated that to lift a load, the cherrypicker must be supported solely by the outrigger pads. Allen and hence Babst were negligent in positioning the cherrypicker so that part of its weight would be supported by the tires rather than the outrigger pads.

The boom worked hydraulically. The cherrypicker while it was on the construction site had had numerous problems with its hydraulic system, and a drum of hydraulic fluid had been left at the site, presumably to replace hydraulic fluid that had leaked. Also, subsequent inspection revealed defects in the mechanism of the arm or boom, for which Nichols must be held responsible. Thus, Nichols was in part at fault.

The trial court found that had the cherrypicker been leveled, the failure of the boom would not have caused the accident. Conversely, had a part of the boom mechanism not failed, the unevenness of the cherrypicker would not have caused the accident. Hence, the trial court found both parties, Babst and Nichols, at fault. In this conclusion, we cannot say the trial court was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Thus, we hold that Nichols and USF & G are not liable to Babst for cost of repairs to the dock, and Babst is not liable to Nichols and USF & G for cost of repairs to the cherrypicker.

Babst also seeks to recover from Nichols and USF & G for cost of removing the cherrypicker from the Mississippi River, under a theory of negotiorum gestio. The difficulty with this theory, which would permit one to recover for an act undertaken on behalf of another, is that Babst was in fact at fault for the toppling of the cherrypicker into the Mississippi River, as the cherrypicker was not level when the blind flange was lifted. We therefore find no error in the trial court...