Dinet v. Orleans Dredging Co., Inc.

• Decision Date: 29 June 1933
• Docket Number: 14475
• Court: Court of Appeal of Louisiana — District of US
• Parties: DINET ET AL. v. ORLEANS DREDGING CO., INC., ET AL

149 So. 126

DINET ET AL. v. ORLEANS DREDGING CO., INC., ET AL

No. 14475

Court of Appeal of Louisiana, Orleans.

June 29, 1933

Rehearing denied October 16, 1933.

Henry &amp Cooper and A. M. Suthon, all of New Orleans, for appellants Raymond Concrete Pile Co., Inc. and American Mutual Liability Ins. Co.

Deutsch & Kerrigan & Burke, of New Orleans, for appellant Orleans Dredging Co.

Alvin R. Christovich and Frank T. Doyle, both of New Orleans, for appellant Union Indemnity Co.

Lewis R. Graham and Harry R. Cabral, both of New Orleans, for appellees.

Milling Godchaux, Saal & Milling and Lawrence K. Benson, all of New Orleans, amici curiae.

OPINION

HIGGINS Judge.

Plaintiffs bring this suit for damages against the defendants, Orleans Dredging Company, Inc., its insurance carrier, Union Indemnity Company, Raymond Concrete Pile Company, and its insurance carrier, American Mutual Liability Insurance Company, in solido, for the death of their minor son, who was drowned in a pit alleged to have been dug by the defendants on the shore of Lake Pontchartrain, at Spanish Fort, this city.

The insurance carriers of the respective companies were sued direct under and by virtue of the provisions of Act No. 55 of 1930.

The charges of negligence against the defendants are that their agents and employees dug a large and deep trench on the shore of Lake Pontchartrain adjacent to a sea wall which the said defendants were constructing, within 50 feet of a public bathing beach, and failed to place any signs giving warning to bathers of the presence of the pit, or deep water.

The defendants denied liability, the dredging company claiming that the pit was dug by the agents of the Raymond Concrete Pile Company as an independent contractor, and therefore it was not responsible for the tort, the pile company contending that the excavation was made by the employees of the dredging company, for whose acts it was not responsible, and all of the defendants pleaded contributory negligence.

The jury rendered a verdict in favor of the plaintiffs and against all the defendants, in solido, for the sum of $ 10,000, and the trial judge refused a new trial. Defendants have appealed. Plaintiffs have answered the appeals and asked that the award be increased to the sum of $ 15,000.

The Union Indemnity Company went into the hands of a receiver and upon proper motion and order the receiver was made a party to the suit.

The record shows that the Board of Levee Commissioners of the Orleans Levee District, generally referred to as the Orleans Levee Board, entered into a written contract with the Orleans Dredging Company, Inc., for the purpose of having a sea wall constructed along the shore of Lake Pontchartrain; that the dredging company contracted in writing with the Raymond Concrete Pile Company to drive the piling and do the concrete work in connection with the project; that about three weeks prior to the time of the accident Mr. McGraw, the superintendent for the pile company, needed some filling upon which to rest the pile driver in order to properly operate it and ordered a dredging machine of the dredging company to excavate earth for that purpose; that he designated the place where the filling was to be taken from and the amount of it; that the trench was about 200 feet long, 25 feet wide, and 5 to 7 feet deep, and was situated on the eastern side of a pier which extended out into the lake and began at a distance of 40 or 50 feet therefrom, and 30 feet from the concrete base of the sea wall; that west of the pier is a public bathing beach which is operated by the Pontchartrain Beach Company under a lease with the Orleans Levee Board; that the water on both sides of the pier was shallow for several hundred feet out in the lake, except at the place where the pit was dug; that people bathed and waded on both sides of the pier; that when the tide came in on several occasions prior to the time of the accident, the waters completely covered the shore and obliterated any view of the trench; that there was neither any guard stationed, nor signs posted to warn bathers of the presence of the pit; that on Sunday, May 31, 1931, about 4 o'clock p. m., the plaintiffs' son, age 14 years, while bathing with several companions, came toward shore on the eastern side of the pier, or the side where the pit was located, and, due to the fact that the tide was in, the shore and the pit were completely covered by water; that the water near the shore was muddy due to the wave-wash, so that one walking along the shore could not see the pit; that the plaintiffs' minor son and another companion, who were unable to swim, walked into the pit and were drowned; that another boy with them, who could swim, also stepped into the trench, but swam out safely; that after the fatal accident no effort was made to post any notice of warning to those using the beach and four other persons walked into the trench, but, fortunately, were rescued; and that it was only after these last occurrences that a guard was placed on duty and danger signs posted.

Mr. Davy, the Orleans Levee Board engineer, testified that the beach of Lake Pontchartrain, beginning at Bayou St. John and continuing 2,500 feet west, was leased to the Pontchartrain Beach Company, which was engaged in the business of operating a public bathing place. The pit, therefore, was dug in a part of the beach which was under lease to the Pontchartrain Beach Company. Mr. Davy's testimony also establishes the fact that the bathing concession was in actual operation by the lessee and neither the levee board, nor the lessee, placed any restrictions upon using the beach east of the pier. He also states that while the greater part of the crowd of bathers confine themselves to the west of the pier, no attempt was made to prevent persons from wading or swimming on the east side of the pier.

We experience little difficulty in arriving at the conclusion that those who dug the pit were guilty of negligence in digging it adjacent to a public bathing beach and leaving it remain in both an unguarded and unprotected condition, and without giving the bathers any warning whatsoever of the presence of this hazard, particularly when the workmen and the officers of both defendant companies knew that bathers and waders used the beach on both sides of the pier. R. C. C. arts. 451, 452, 2315, 2316 and 2317; Nemet v. City of Kenosha, 169 Wis. 379, 172 N.W. 711; Zeller v. Southern Yacht Club, 34 La.Ann. 837; Burns v. Crescent Gun & Rod Club, 116 La. 1038, 1043, 41 So. 249; Allen v. Atlas Oil Co., 140 La. 184, 72 So. 919; 45 Corp. Jur., 201.

The plea of contributory negligence is predicated on the ground that the boy elected to come in on the east or dangerous side of the pier, rather than on the west or safe side thereof; that as he did not know how to swim he should have explored to determine the depth of the water in which he was walking; that the presence of the machinery on the shore behind the sea wall was an indication that the beach at that point was not to be used by bathers; and that he was negligent in running and playing in the water when he could not see the bottom on account of the muddy condition of the water due to the wash of the waves on the shore.

The evidence convinces us that the east side of the pier was just as safe for bathers as the west side, the only exception being the pit in question. As the trench was closer to shore than the shallow water in which the boys had been playing and wading, no one would presume that there would be a sudden step-off into deep water adjacent to the sea wall, or closer to shore, particularly where there was no notice or warning given of this unusual condition. Certainly the machinery located on the shore was no indication of any hidden danger. The cloudy condition of the water prevented the boy from seeing the pit, and we feel that he had a right to assume that the water would continue shallow to the shore line since there was no warning to the contrary. The plea of contributory negligence is overruled. In view of the above conclusions that it was negligence to dig the pit and leave it unprotected and without warning notices of its presence and that the boy was not guilty of contributory negligence, it follows that either the dredging company or the pile company, or both of them, are liable. The plaintiffs contend that these companies are joint tort-feasors and are, therefore, liable in solido, the dredging company on the theory that the principal is responsible to a third person for the tortious acts of his servant, and the pile company on the ground that an agent is liable to a third person for his own tort, citing Jones v. Maestri, ...