Best v. J & B Drilling Company

• Decision Date: 09 April 1963
• Docket Number: No. 817,817
• Citation: 152 So.2d 119
• Court: Court of Appeal of Louisiana — District of US
• Parties: Frank BEST, Jr., Plaintiff-Appellant, v. J & B DRILLING COMPANY, Inc., et al., Defendants-Appellees, General Insurance Company of America, Intervenor-Appellant.

Page 119

152 So.2d 119

Frank BEST, Jr., Plaintiff-Appellant, v. J & B DRILLING COMPANY, Inc., et al., Defendants-Appellees General Insurance Company of America, Intervenor-Appellant.

No. 817.

Court of Appeal of Louisiana, Third Circuit.

April 9, 1963.

Rehearing Denied May 1, 1963.

Certiorari Refused June 14, 1963.

Jacque Pucheu, Euncie, for plaintiff-appellant.

Plauche & Plauche, by A. L. Plauche, Lake Charles, for intervenor-appellant.

Edgar Perkins, DeQuincy, for defendant-appellee.

Cavanaugh, Hickman, Brame & Holt, by Meredith T. Holt, Lake Charles, for defendant-appellee.

Before TATE, SAVOY and CULPEPPER, JJ.

SAVOY, Judge.

Plaintiff filed this action in tort for damages which he sustained resulting from an accident which occurred on a drilling rig owned and operated by J & B Drilling Co., Inc. Made defendants were J & B Drilling Co., Inc. (hereinafter referred to as J & B), and its insurer, Travelers Insurance Company.

After a lengthy trial, the trial court held that plaintiff's sole remedy was under the Workmen's Compensation Act of this State, and accordingly dismissed his suit. This appeal followed.

In his petition, plaintiff alleged that on December 2, 1960, he was working for Helen Brown as a machinist; that several days prior to December 2, 1960, J & B had plaintiff's employer repair an air compressor used on a drilling rig owned by it; that on the above date plaintiff was sent by his employer, together with another employee, to an oil rig owned by J & B for the purpose of checking said air compressor; that the compressor was delivered to the well site and was installed by employees of J & B. After said installation, plaintiff climbed upon said air compressor to check the unload valve; that while plaintiff was checking the compressor, it exploded, causing him severe injuries. Plaintiff invoked the doctrine of res ipsa loquitur, and pleaded, alternatively, that if the doctrine was not applicable, the employees of J & B were negligent, which negligence consisted of:

1. Mishandling said air compressor causing oil to get in the valves resulting in the explosion;

2. Negligently handling said compressor so as to cause the clogging of lines and the air compressor to explode; and

3. In failing to properly install said compressor so that it would not explode while plaintiff was standing on it.

Defendants filed an answer alleging that any rights which plaintiff may have are exclusively under the provisions of the Workmen's Compensation Act for the reason that the work done at the time of the accident was part of the trade, business and occupation of J & B. Defendants alleged alternatively that if the court should find that the proximate cause of the accident was the negligence of the employees of J & B, then plaintiff was contributorily negligent in the following respects:

1. He failed to keep a proper lookout;

2. He failed to make the proper repair on said compressor; and

3. He failed to follow normal and customary procedures while installing said air compressor.

Defendants also urged that plaintiff assumed the risk of his employment. Defendants also pled in the alternative that at the time of the accident, plaintiff was an employee pro hac vice (for that particular occasion) of J & B.

Defendants filed a third-party petition against Brown. No trial was had on the third-party petition. The court tried only the principal demand.

The compensation carrier of Brown intervened, praying that it be allowed to recover for any compensation and medical paid or which might be paid in the future on behalf of plaintiff.

The air compressor which exploded in the instant case was manufactured by Westinghouse Electric Company. It had been sent by J & B to Brown on two (2) previous occasions for repairs. On the third occasion the compressor was sent to Brown, no repairs were made but the compressor was allowed to run for several hours. The shop foreman at Brown's, being satisfied that the compressor was functioning properly, sent the compressor to the well site. The compressor was delivered to the employees of J & B. Plaintiff also accompanied the truck driver who delivered the compressor. He was instructed by the shop foreman for Brown to check said compressor at the well site, particularly the lines and other attachments to the rig. After the compressor was installed on the rig by employees of J & B, plaintiff climbed on the compressor and instructed an employee of J & B to commence running the compressor at a slow speed. Shortly thereafter plaintiff signaled the driller to increase the speed to the normal rpm (revolutions per minute). The driller complied with plaintiff's request, and an explosion occurred. The head of the high pressure cylinder of the compressor was blow off, causing plaintiff the injuries for which he is suing.

The question for decision is whether, under the facts of this case, the action is one arising in tort or whether it comes under the workmen's compensation statute of this State.

LSA-R.S. 23:1061 reads as follows:

'Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed...