Brown v. B & G Crane Service, Inc.

• Decision Date: 08 March 1965
• Docket Number: No. 1784,1784
• Citation: 172 So.2d 708
• Court: Court of Appeal of Louisiana — District of US
• Parties: Raymond BROWN et al. v. B & G CRANE SERVICE, INC., and/or Sun Erection Co., Inc., and Aetna Casualty & Surety Company.

Page 708

172 So.2d 708

Raymond BROWN et al. v. B & G CRANE SERVICE, INC., and/or Sun Erection Co., Inc. and Aetna Casualty & Surety Company.

No. 1784.

Court of Appeal of Louisiana, Fourth Circuit.

March 8, 1965.

Ralph E. Orpys, New Orleans, for plaintiffs-appellants.

Adams & Reese, Richard C. Baldwin, New Orleans, for defendants-appellees.

Christovich & Kearney, Lawrence J. Ernst, New Orleans, for intervenor-appellant.

Before McBRIDE, CHASEZ and BARNETTE, JJ.

CHRIS T. BARNETTE, Judge pro tem.

This is a suit in tort brought by two injured workmen. The merits of the case are not before us at this time, and the only question we must decide at this stage of the proceeding is whether the motion for summary judgment dismissing the suit should have been granted or denied. From a district court summary judgment dismissing their suit, plaintiffs and intervenor have appealed.

There appears to be no dispute that plaintiffs Raymond M. Brown and Jack O'Shea, employed as iron workers on a structural steel building under construction by George Construction Company, were injured in the course of employment, March 15, 1963. The Great American Insurance Company, compensation insurer of George Construction Company, has made substantial payments of workmen's compensation benefits to the injured workmen.

A structural steel beam, or truss, on which plaintiffs were working was knocked to the ground from a considerable height when a second truss being hoisted into position came into contact with it or in some manner cut a supporting cable. The crane was at the time owned and being operated by the defendants B and G Crane Service, Inc., and Sun Erection Company, Inc., whose public liability insurer is Aetna Casualty and Surety Company, all made defendants herein.

Plaintiffs have brought suit in tort against defendants on the allegation that the cause of their accident and resultant injuries was the negligent operation of defendant's crane by its operator and employee. The Great American Insurance Company has intervened to be reimbursed on account of compensation paid and to be paid.

Depositions of the two injured workmen and George Salvaggio, who on the date of the accident was secretary-treasurer of George Construction Company, were taken. Thereafter a motion for summary judgment was filed on behalf of defendants based on the authority of Truitt v. B & G Crane Service, Inc., 165 So.2d 874, (La.App.4th Cir. 1964). Defendants contend that the 'borrowed servant' doctrine, discussed and applied by this Court in the Truitt case, is applicable in the instant case.

On October 23, 1964, the motion for summary judgment was heard, argued and submitted and judgment entered in favor of defendants as prayed for dismissing plaintiffs' suit. Attached to plaintiffs' answer to the motion for summary judgment are affidavits by plaintiffs Brown and O'Shea each containing an allegation of 'possible' or 'probable' mechanical defect in defendant's crane. No reasons for judgment are given, and we assume the trial court based its judgment on the 'Truitt case.

Summary judgment procedure made its debut into the procedural law of Louisiana with the adoption of the Code of Civil Procedure by Act 15 of 1960. It is substantially as provided in Rule 56(a)--(c), Federal Rules of Civil Procedure. It is to be noted under 'Official Revision Comments' following LSA-C.C.P. art. 966, it was not contemplated that this procedure would be successfully utilized Often. Evidently it was intended that it be used sparingly and not as a substitute for trial.

Since this device was adopted into our law, quite a few occasions have arisen for our courts to apply it; and in setting out jurisprudential guidelines to govern its application, we have, of necessity, given much consideration to the federal cases prior to 1960. We have now fairly well defined our own limits of application and they may be stated rather simply.

If the pleadings, supporting affidavits, depositions, and exhibits submitted in connection with the motion for summary judgment reveal that there exists no genuine issue of material fact, a summary judgment should be granted as a matter of law. Stated conversely, it should be denied if there is (1) a genuine issue of fact and (2) it is material to the case. The party making the motion carries the burden of proof.

Formall allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact. A genuine issue is a triable issue and the interest of justice, at the risk of some delay and possible expense, is best served by resolving all doubt against the granting of the motion for summary judgment. It is not enough that the court has grave doubt that the party alleging a cause can sustain his contention to deny him his day in court.

We have attempted in the foregoing statement to summarize the opinions of the courts in the following cases: Haspel v. Treece, 150 So.2d 120 (La.App.4th Cir. 1963); McDonald v. Grande Corporation, 148 So.2d 441 (La.App.3rd Cir. 1962); Touchet v. Fireman's Insurance Co. of Newark, N.J., 146 So.2d 441 (La.App.3rd Cir. 1962); Walmsley v. Gilmore, 144 So.2d 625 (La.App.4th...