Cagle v. Playland Amusement Inc.

• Decision Date: 17 July 1967
• Docket Number: No. 2559,2559
• Citation: 202 So.2d 396
• Parties: Edward M. CAGLE v. PLAYLAND AMUSEMENT INC., Edward Jacomet, United States Fidelity and Guaranty, and southern Farm Bureau Casualty Company.
• Court: Court of Appeal of Louisiana — District of US

Page 396

202 So.2d 396

Edward M. CAGLE v. PLAYLAND AMUSEMENT INC., Edward Jacomet, United States Fidelity and Guaranty, and southern Farm Bureau Casualty Company.

No. 2559.

Court of Appeal of Louisiana, Fourth Circuit.

July 17, 1967.

Rehearing Denied Oct. 4, 1967.

Dodd, Hirsch, Barker & Meunier, Wilfred H. Boudreaux and Harold J. Lamy, New Orleans, for plaintiff-appellee.

Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Breard Snellings, New Orleans, for United States Fidelity and Guaranty Co. and Playland Amusement, Inc., defendants-appellants.

Porteous & Johnson, John J. Hainkel, Jr., New Orleans, for Southern Farm Bureau Casualty Co., defendant-appellant.

Before McBRIDE, CHASEZ and HALL, JJ.

HALL, Judge.

Plaintiff filed suit for damages for personal injuries, consisting of a gunshot wound, arising from the accidental discharge of a revolver in the hands of Edward Jacomet, a security guard employed by Playland Amusements Inc., operators of an amusement park in the City of New Orleans commonly referred to as 'Pontchatrain Beach'. Situated within the area of the amusement park is a restaurant called the 'Bali Hai', which is also operated by Playland Amusements Inc.

The accident happened under unusual circumstances. The basic facts are undisputed and are briefly as follows. Plaintiff and his wife together with his wife's uncle, Mr. James L. Little, all of whom were residents of Mississippi, after vacationing a few days on the Gulf Coast, decided to come to New Orleans. They drove to New Orleans in a 1964 four-door Chevrolet automobile belonging to Mr. Little. Mr. Little was an elderly gentleman and all of the driving was done by Mrs. Cagle, plaintiff's wife. After arriving in New Orleans they drove out to Pontchatrain Beach intending to have dinner at the Bali Hai restaurant. They arrived at Pontchatrain Beach around 6 P.M. on December 30, 1964. None of them were familiar with the surroundings, although plaintiff had eaten at the restaurant some years before. They approached Pontchatrain Beach from Franklin Avenue and drove into the East Parking Lot which is the parking lot used by customers of the beach. The parking lot for the restaurant customers is the West Parking Lot. In short they drove into the wrong parking lot. The beach and all of the amusement concessions were closed at this time of the year and the parking lot was completely empty. When Mrs. Cagle brought the car to a stop, her husband, the plaintiff, got out and went to seek directions. After he left Mrs. Cagle and Mr. Little got out to stretch their legs. When they did they shut the doors of the car and almost simultaneously realized they had locked the car keys inside. About this time plaintiff, having found no one from whom he could ask directions, returned to the car and was apprised of the situation. One of the party then saw a taxicab parked in an adjoining lot and all three walked over to the cab and asked the driver to radio'phone a General Motors dealer for a duplicate key. The cab driver explained that no place would be open at that time but offered to help them himself. Thereupon they got in his taxicab and were driven around to their car. It was getting dark and the taxi driver parked his taxi so that its lights would shine on the Chevrolet. In order to gain entrance to the car so that the door could be unlocked, the taxi driver, Mr. Little and plaintiff each in turn endeavored to open the small vent window on the driver's side of the Chevrolet by gouging out its rubber seating with a small pen knife belonging to Mr. Little and with a finger nail file belonging to Mrs. Cagle. Their efforts met with no success and it became evident that the window would have to be broken in order to gain entrance. Plaintiff and the taxi driver went off searching for a rock or some other object with which to break the glass. Their search was unsuccessful but when they returned to the car they were accompanied by Edward Jacomet, a security guard employed by the Beach operators. Jacomet pulled his revolver, a .38 Smith & Wesson, and struck the window with it. The gun discharged and the bullet passed through plaintiff's abdomen.

Plaintiff brought suit against the following defendants In solido:

1) Edward Jacomet, alleging negligence on his part,

2) Playland Amusements Inc., employer of Jacomet, on the theory of Respondeat superior,

3) United States Fidelity and Guaranty Company, alleged to be the liability insurer of Playland Amusements Inc.,

4) Southern Farm Bureau Casualty Insurance Company, liability insurer of the Little vehicle, on the theory that Jacomet was 'using' the car with the permission of Mr. Little and therefore was an omnibus insured under the terms of the policy.

The case was tried before a jury and upon the conclusion of the trial nine interrogatories were submitted to the jury to be answered as a special verdict (LSA-C.C.P. Art. 1811). The interrogatories and the jury's answers thereto constituting a special verdict are as follows:

1. WAS MR. EDWARD JACOMET NEGLIGENT? 'YES'

2. IF YOU FIND THAT MR. EDWARD JACOMET WAS NEGLIGENT, DID HIS NEGLIGENCE PROXIMATELY CONTRIBUTE TO THE ACCIDENT AND INJURY TO MR. EDWARD CAGLE? 'YES'

3. WAS MR. EDWARD CAGLE CONTRIBUTORILY NEGLIGENT? 'NO'

4. DID MR. EDWARD CAGLE ASSUME THE RISK? 'NO'

5. IF YOU FIND THAT MR. EDWARD CAGLE CONTRIBUTORILY NEGLIGENT, THEN DID IT PROXIMATELY CONTRIBUTE TO THE ACCIDENT AND TO HIS INJURY? 'NO'

6. WAS MR. JACOMET, AT THE TIME OF THE ACCIDENT, ACTING WITHIN THE COURSE AND SCOPE OF HIS EMPLOYMENT AND INCIDENTAL TO THE FUNCTIONS FOR WHICH HE WAS EMPLOYED BY PLAYLAND AMUSEMENT, INC.? 'YES'

7. WAS EDWARD JACOMET, IN ATTEMPTING TO BREAK THE VENT WINDOW IN THE AUTOMOBILE, USING THE CAR WITHIN THE PURVIEW OF THE AUTOMOBILE LIABILITY INSURANCE POLICY OF MR. JAMES L. LITTLE WITH SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY? 'YES'

8. IF YOUR ANSWER TO NO. 7 IS 'YES', WAS EDWARD JACOMET USING THE SAID CAR WITH PERMISSION, EITHER EXPRESS OR IMPLIED? 'YES'

9. WHAT IS YOUR AWARD FOR ALL THE DAMAGES SUFFERED BY MR. EDWARD CAGLE? $20,000.'

The Trial Judge entered a judgment on the verdict in favor of plaintiff and against all defendants In solido in the sum of $20,000 .00 plus interest and costs; and fixed and taxed as costs the fees of the expert medical witnesses.

All defendants appealed except Edward Jacomet. Plaintiff answered the appeals praying that the amount of the judgment in his favor be increased to the sum of $35,000.00.

Each appellant assigns as error certain findings of the jury. Each of them also contends that the Trial Judge committed certain errors in the judgment rendered by him. None of the appellants however urges error in the first five findings of the jury, and the record fully supports the jury's finding that Jacomet was negligent; that his negligence was the proximate cause of the accident; that plaintiff was not contributorily negligent; and that plaintiff did not assume the risk of injury.

Playland Amusements Inc. and United States Fidelity and Guaranty Company who filed a joint appeal and a joint brief contend that the jury erred in finding that Jacomet, at the time of the accident, was acting within the course and scope of his employment and incidental to the functions for which he was employed by Playland Amusements Inc. They also contend that the jury's award of $20,000.00 for damages suffered by plaintiff is excessive.

Southern Farm Bureau Casualty Insurance Company contends that the jury erred in finding that Jacomet, in attempting to break the vent window in the automobile was 'using' the car within the purview of the automobile liability policy issued to Mr. Little by Southern Farm Bureau Insurance Company. This insurance company further contends that the jury erred in finding that Jacomet had 'permission' to use the Little vehicle, and also contends that the jury's award of $20,000.00 is excessive.

We shall first dispose of appellants' assignments of error to the findings of the jury before discussing their objections to the judgment as rendered.

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Did the jury err in finding by a vote of 9 to 3 that Jacomet, at the time of the accident, was acting within the course and scope of his employment with Playland Amusements Inc.?

Playland Amusements Inc. and United States Fidelity and Guaranty Company contend that although Jacomet was employed as a security guard by Playland his duties were limited to patrolling the fenced inner area of the amusement park, that his responsibilities did not extend to the parking lot, that he was not authorized to wear a pistol at the time of the accident and that in seeking to break the window he was not acting within the course and scope of his employment but merely acting as a good samaritan independently of his duties for Playland.

Two witnesses testified concerning Jacomet's duties, namely Jacomet and Harold G. Gerhardt, the supervisor or chief of Playland's security guard. Jacomet at first testified that his duties were limited to patrolling the fenced interior area of the amusement park. However on cross examination, when confronted with testimony he had given in a deposition taken prior to trial, Jacomet admitted that his duties as security guard included more than merely patrolling the inner beach area. He further admitted that his duties included investigating anything suspicious occurring in the parking lot and testified that on the occasion in question he unlocked the gate and went into the lot because he '* * * wanted to find out what they were doing out there * * * They seemed suspicious out there; they are not supposed to be in that parked lot. The Bali Hai, if they were at the Bali Hai, they'd be at the other parking lot, the west parking lot * * *' He further testified that when he had worked as a day time guard during the preceding summer part of his duties had been to prevent fights in the parking lot, to stop vandalism out there and to give directions to people and assist...