Adams v. Fidelity & Cas. Co. of N. Y.

• Decision Date: 21 November 1958
• Docket Number: No. 4682,4682
• Citation: 107 So.2d 496
• Court: Court of Appeal of Louisiana — District of US
• Parties: Mrs. Lenora Robison ADAMS, Ind. and for the Use and Benefit of the Minors, Hugh Dean Adams et al. v. FIDELITY AND CASUALTY COMPANY OF NEW YORK et al.

Page 496

107 So.2d 496

Mrs. Lenora Robison ADAMS, Ind. and for the Use and Benefit of the Minors, Hugh Dean Adams et al. v. FIDELITY AND CASUALTY COMPANY OF NEW YORK et al.

No. 4682.

Court of Appeal of Louisiana, First Circuit.

Nov. 21, 1958.

Rehearing Denied Jan. 5, 1959.

Writ of Certiorari Denied Feb. 16, 1959.

Fusilier & Vidrine, Ville Platte, Jos. A. Gladney, Baton Rouge, for appellants.

Breazeale, Sachse, Wilson & Hebert, Dale, Richardson & Dale, Baton Rouge, for appellees.

ELLIS, Judge.

On the 18th day of May, 1956, Herman Adams was employed by the Offshore Company and was fatally injured in an accident in the course of his employment. On May 17, 1957 suit for damages was filed by the surviving widow, individually, and for the use and benefit of the three minor children of decedent, against the hereinafter named individuals and their alleged insurers under the authority of our Louisiana Workmen's Compensation Act, LSA-R.S. 23:1101, Sub. Part E, Rights Against Third Person, to-wit:

'When an injury for which compensation is payable under this Chapter has been sustained under circumstances creating in some person (in this Section referred to as third person) other than the employer a legal liability to pay damages in respect thereto, the injured employee of his dependent may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the injured employee or his dependent against such third person, nor be regarded as establishing a measure of damages for the injury; and such injured employee or his dependent may obtain damages from or proceed at law against such third person to recover damages for the injury.

'Any employer having paid or having become obligated to pay compensation under the provision of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his defendant.'

The parties sued, with the exception of their alleged insurers, and the basis upon which the suit is founded against them is shown in the following quoted articles of plaintiff's petition, to-wit:

'9. That the decedent was doing work in the Yards for said Employer when he was wrongfully killed.

'10. That while he was descending from a tank to the ground, via a large stack of steel, a large iron reel fell on top of him, fatally crushing his head and body.

'11. That the iron reel, weighing over five hundred (500) pounds had been placed on the top of the stack of steel and left there for a period of several months in a perilous and dangerous position, altho the decedent was not aware of said danger prior to his fatal accident.

'12. That the decedent's death was due to the negligence of defendant, Bernard G. Colley, because of the following reasons:

'1. That said Bernard G. Colley was Superintendent of all of the trucks, tractors and vehicles for the Offshore Company and/or Southern Production Company, Inc.

'2. That in his capacity as an Executive Officer, (Stockholder) or Director of all the trucks of said Corporations, he had one of the vehicles under his control to place the iron reel, causing the fatal injury to defendant, upon the stack of steel in the Yards, near the Warehouse, where it remained for several months, in a dangerous and perilous position, due to the nature, size, weight and shape of the reel, until it fell on decedent.

'3. Therefore said Bernard G. Colley was negligent in placing and leaving said reel on the stack of steel until it fatally injured decedent, which negligence was a proximate cause of the death of decedent, and resulting losses to petitioners.

'13. That the decedent's death was due to the negligence of defendant, S. J. Parker, because of the following reasons:

'1. That said S. J. Parker was in charge of the Warehouse and the adjoining Yards of the Offshore Company and or Southern Production Company, Inc.

'2. That in his capacity as an Executive Officer (Stockholder) or director of the principal Warehouse and Yards of said Corporations located in East Baton Rouge Parish, Louisiana, at Arlington, about two (2) miles South of the Louisiana State University Campus; that he had gone by the stack of steel on which the reel had been placed in a dangerous and perilous position, on numerous occasions, and, being the Executive Officer or Director in charge of the Warehouse and adjoining Yards he did see or should have seen the reel where it had remained for several months because he had gone by the stack of steel almost daily.

'3. Therefore, it was negligence on the part of the said S. J. Parker to allow the said reel to remain on the stack of steel, until it fatally injured decedent, whose duty it was to provide a safe place for decedent to work; that his negligence was a proximate cause of decedent's death and resulting losses to petitioners.

'14. That the decedent's death was due to the negligence of defendant John P. Carpenter, because of the following reasons:

'1. That said John P. Carpenter was employed as the Safety Director over all of the operations of the Offshore Company and Southern Production Company, Inc., its Warehouse and adjoining Yards located in the Parish of East Baton Rouge, State of Louisiana.

'2. That in his capacity as an Executive Officer, (Stockholder) or Director of Safety of said Corporations, that he did see or should have seen the reel which had been negligently placed on the stack of steel in a dangerous and perilous position, ass he had inspected the Yards Of many occasions while said reel remained in its dangerous Position.

'3. Therefore it was negligence on the part of John P. Carpenter, Safety Director, Executive Officer or Stockholder of said Corporations to fail to have the reel removed from the top of the high stack of steel as it was his duty to do so in the course of his duties with The Offshore Company or Southern Production Company, Inc., and that said negligence was a proximate cause of decedent's death and resulting losses to petitioners.

'15. That the decedent's death was due to the negligence of defendant, William Hinson Moore, because of the following reasons:

'1. That said William Hinson Moore was Vice President or Assistant to the General Manager in charge of all of the operations of The Offshore Company or Southern Production Company, Inc., and he personally had knowledge of said Corporations.

'2. That in his capacity as an Executive Officer, (Stockholder) or Director, as the Vice President and/or Assistant to the General Manager it was his duty to know that the said reel had been placed on the high stack of steel and left in a dangerous and perilous position; that he had gone by the same and did see it or should have seen it dangerously and perilously placed on top of the high stack of steel where it had remained for several months.

'3. Therefore the said William Hinson Moore was negligent in not having the reel removed from the dangerous position on top of the high stack of steel as it was his duty to do so before it fatally injured the decedent; which negligence was the proximate cause of the decedent's death and resulting losses to petitioners.

'16. That the decedent's death was due to the negligence of defendant, Theo S. Stoneman, because of the following reasons:

'1. That the said Mr. Theo S. Stoneman was the President and General Manager over all of the operations of the Offshore Company which has its principal office in the City of Baton Rouge, Parish of East Baton Rouge, State of Louisiana, and especially of the Warehouse and Yards located at Arlington, approximately two (2) miles South of the Louisiana State University Campus in said Parish and State.

'2. That in his capacity as the President and General Manager, Director, Executive Officer and Stockholder, it was his duty to know that his Superintendent, Bernard G. Colley had been instructed to have the reel placed on top of the high stack of steel; and to know that the said reel had been placed there by Bernard G. Colley with one of the vehicles of the Offshore Company or Southern Production Company, Inc., by the said Bernard G. Colley where it remained in a dangerous and perilous position for several months.

'3. Therefore, it was negligence on the part of the said Theo S. Stoneman in his capacity as President, General Manager, Executive Officer, Director and Stockholder of the Offshore Company in failing to provide a safe place for decedent to work; and it was further negligence on his part in failing to have the reel removed from the top of the stack of steel where it was left in the rickety position, both dangerous and perilous, as result of which it fatally injured the decedent; and his failure to have said reel removed to a safe location was a contributing and proximate cause of the death of decedent and resulting losses to petitioners.'

The defendants filed exceptions of no cause or right of action which was sustained by the lower court and plaintiff's suit dismissed. It is from this judgment that the plaintiffs have appealed.

Counsel for appellees and appellants agree that under LSA-R.S. 23:1032 of our Louisiana Workmen's Compensation statute the rights and remedies granted to an employee or his dependent on account of personal injury for which he is entitled to compensation shall be exclusive of all other rights and remedies of such employee or his dependents. Under the settled jurisprudence of this state this section of the law has been interpreted to mean that the rights under the act are exclusive as to suits against the employer.

The defendants contend that the petition of the plaintiffs does not set forth a cause or right of action against the defendants as it affirmatively alleges that they are officers of the corporation employer and that the failure of the defendants to perform the duties which are alleged as a basis for the cause of action on the part of the latter arose out of their...