Carter v. Middleton
| Decision Date | 01 December 1954 |
| Docket Number | No. 8209,8209 |
| Citation | 76 So.2d 594 |
| Parties | J. D. CARTER, Plaintiff-Appellee, v. Dr. Henry H. MIDDLETON, Jr., et al., Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Morgan, Baker & Skeels, Shreveport, for appellants.
Hal R. Henderson, Goff & Caskey, Arcadia, for appellee.
This is a suit for the recovery of damages resulting from the destruction of personal property by fire allegedly caused by the negligence of the defendant, Dr. Henry H. Middleton, Jr., his agents and employees. Joined as a party defendant is Middleton's public liability insurer, the Home Indemnity Company. After trial there was judgment in favor of plaintiff in the principal sum of $962, from which defendants have appealed.
The facts are entirely without significant dispute. Petitioner was the lessee from one Frank M. Dance of certain described property located in Claiborne Parish, Louisiana, and in a barn on the premises had stored several hundred bushels of corn, some hay, several sacks of mixed feed and a lot of miscellaneous tools. The barn also housed several head of hogs and pigs owned by the plaintiff. In the fall of the year 1952 plaintiff sold a quantity of the corn stored in the barn to the defendant, Middleton, at a price of $2 per bushel, and on October 10, 1952 the said defendant sent an employee, one Ed or Rex Barnes, in charge of defendant's 1950 Chevrolet 3/4-ton pickup truck, to load the purchased corn from the barn to the truck. On this mission Barnes was accompanied by a young colored boy, eleven or twelve years of age, by the name of Oliver Ceasar. Some time shortly after noon on the date set forth Barnes backed the Middleton truck up to the barn and there parked the vehicle by leaving it in gear, after shutting off the ignition, in such position that the truck faced down a sloping grade away from the barn. Barnes and Ceasar then proceeded to the task of loading the truck with corn. In this operation Barnes repaired to the loft or upper floor of the barn where the corn was stored, where he filled a tub with ears of corn, lifted the same to a window opening above the truck and dumped the corn into the bed of the truck where it was tramped down and packed by young Ceasar. After being so engaged for a space of some two hours, more or less, Barnes was attracted by a shouted call from Ceasar to the effect that the truck was on fire. Rushing to the window Barnes lowered himself therefrom and upon dropping to the ground rushed to the cab of the truck which he discovered to be in flames, rising, according to his testimony, principally from the floorboard and the cushion of the seat. After an ineffective attempt to smother the flames by throwing dirt thereupon, Barnes reached into the cab, pulled out the flaming seat cushion, which he threw upon the ground a little distance from the vehicle, and then 'took off' at a run from the scene of the conflagration, followed by Ceasar. Barnes testified that he was heading for the road in order that he could summon help. After this unceremonious departure the fire continued its destructive course and completely consumed truck, barn and contents.
Invoking the doctrine of res ipsa loquitur plaintiff alleged the negligence of defendant Middleton's employee as the cause of his loss, asserting that the truck in which the fire originated was at the time under the complete custody and control of Middleton's employee. Plaintiff relies upon the effect of the application of the doctrine and upon the failure of the employee Barnes to take action by releasing the gear shift of the truck, which would have permitted it to roll by force of gravity away from the barn and would have prevented the destruction of the building and its contents.
Counsel for defendants urgently contend that the responsibility placed upon the defendants by application of the doctrine of res ipsa loquitur has been adequately discharged and that it has been established that the fire was not due to any negligence on the part of Middleton or his employees.
The jurisprudence of our state is replete with cases involving the doctrine of res ipsa loquitur, among which we particularly note Maus v. Broderick, 51 La.Ann. 1153, 25 So. 977; Lykiardopoulo v. New Orleans & C. R. Light & Power Co., 127 La. 309, 53 So. 575; Rome v. London & Lancashire Indemnity Company of America, La.App., 169 So. 132; Pizzitola v. Letellier Transfer Co., La.App., 167 So. 158; Loprestie v. Roy Motors, Inc., 191 La. 239, 185 So. 11; Jones v. Shell Petroleum Corporation, 185 La. 1067, 171 So. 447; Royal Ins. Co. v. Collard Motors, Inc., 179 So. 108; Gulf Ins. Co. v. Temple, La.App., 187 So. 814; Davis v. Teche Lines, 200 La. 1, 7 So.2d 365; Gerald v. Standard Oil Co. of Louisiana, 204 La. 690, 16 So.2d 233; Roy v. Louisiana State Department of Agriculture & Immigration, 216 La. 699, 44 So.2d 822; Smith v. United States, 5 Cir., 96 F.2d 976; Asprodites v. Standard Fruit & Steamship Co., 5 Cir., 108 F.2d 728; Daroca v. Metropolitan Life Ins. Co., 5 Cir., 121 F.2d 917; New Orleans & N. E. R. Co. v. McEwen & Murray, 49 La.Ann. 1184, 22 So. 675, 38 L.R.A. 134; Mercer v. Tremont & G. Ry. Co., La.App., 19 So.2d 270; Anderson v. London Guarantee & Accident Co., La.App., 36 So.2d 741; Dupuy v. Graeme Spring & Brake Service, La.App., 19 So.2d 657; Vallette v. Maison Blanche Co., La.App., 29 So.2d 528, 529; Piacun v. Louisiana Coca-Cola Bottling Co., La.App., 33 So.2d 421.
The latest consideration by this court of the application and effect of the doctrine of res ipsa loquitur is found in the case of Leigh v. Johnson-Evans Motors, Inc., 75 So.2d 710, recently decided on rehearing. The Leigh case also involved a matter of loss by fire and was in many respects similar to the case at bar.
Renewed consideration of the above and other cases involving the effect of the doctrine of res ipsa loquitur leads us to the following conclusion:
(1) That the doctrine is properly applied under such circumstances as establish the fact that the offending agent or instrumentality was in the possession and control of defendant, his agents or employees;
(2) That the cause or causes of the occurrences were unknown to plaintiff and could not reasonably have been expected to be within his knowledge.
When the above factors are established the application of the rule then requires:
That the burden of evidence shift to the defendant.
After this shift in the responsibility for bearing the burden of proof has...
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