Dykes v. North River Ins. Co., 9057

• Decision Date: 13 November 1972
• Docket Number: No. 9057,9057
• Citation: 270 So.2d 329
• Parties: Robert DYKES v. NORTH RIVER INSURANCE COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 329

270 So.2d 329

Robert DYKES v. NORTH RIVER INSURANCE COMPANY et al.

No. 9057.

Court of Appeal of Louisiana, First Circuit.

Nov. 13, 1972.

Rehearing Denied Dec. 26, 1972.

Writ Refused Feb. 1, 1973.

L. B. Ponder, Jr., Amite, for appellant.

Tom H. Matheny Pittman & Matheny, Hammond, for Carl Cutrer and Olympic Ins. Co.

Robert A. Collins, New Orleans, for Davill Petroleum Co., Inc., and North River Ins. Co.

Before LANDRY, TUCKER and CUTRER, JJ.

LANDRY, Judge.

Plaintiff Dykes (Appellant) appeals from a judgment dismissing his action in tort, and awarding him workmen's compensation at the rate of $10.00 weekly for eight weeks because of injuries received while Appellant was changing a large truck tire, the rim of which blew off and struck Appellant in the face. We affirm.

The basic facts are that on February 2, 1969, Appellant and two companions were employed by one Ray Holliday, operator of a Phillips 66 Service Station located in Kentwood, Louisiana, to install two new 10 20 tires on a truck owned by Carl Eugene Cutrer (Cutrer), the insured of Olympic Insurance Company (Olympic), for the agreed sum of $5.00. Cutrer had employed Holliday to do the chore for $6.50. Holliday operated the station pursuant to a lease from Davill Petroleum Company (Davill), whose chief stockholder, T. H. Davidge (Davidge) was record owner of the premises. Davill is insured by defendant, North River Insurance Company (North River). Davidge personally leased the property to Phillips 66 Petroleum Company (Phillips), which concern subleased to Davill, which in turn subleased to Holliday.

Plaintiff brings his action in tort against Holliday, Davill, North River and Cutrer, contending in effect that Holliday was the subcontractor of Davill, whose business is operating a chain of service stations. It is contended that Cutrer was aware the wheel in question was defective, and negligently failed to inform Holliday and Appellant of this fact. Appellant also invokes the doctrine of res ipsa loquitur insofar as his tort claim is concerned. Alternatively, Appellant claims workmen's compensation benefits as Holliday's employee, during disability alleged to have lasted six months, and for an additional 100 weeks compensation for asserted facial disfigurement. The trial court granted Appellant judgment against North River for compensation at the rate of $10.00 weekly for 8 weeks, together with medical expense in the sum of $719.00. Plaintiff appealed praying for judgment in tort, and alternatively for the compensation demanded. North River and Davill answered plaintiff's appeal praying for reversal of the judgment rendered against North River for compensation and medical expense awarded, and alternatively praying that if compensation be found due plaintiff in any amount, the award of the trial court be affirmed. However, in brief and oral argument before this court, Davill and North River have abandoned their attempt to reverse the award granted below, and simply ask that the trial court's judgment be affirmed.

Appellant maintains the trial court erred in (1) failing to grant compensation for facial disfigurement; (2) failure to grant adequate compensation for disability; (3) failing to grant compensation against the alleged 'principal contractor', Davill, and (4) failure to allow damages in tort against the alleged tort-feasors, Cutrer and Holliday.

We will first consider Appellant's claim in tort which is based on the alleged negligence of Cutrer and Holliday in failing to inform Appellant of known defects in the wheel which exploded and Holliday's reputed negligence in failing to furnish Appellant with adequate and safe tools and equipment to perform the work.

It suffices to say that the charge of negligence as respects the adequacy of equipment and tools is totally without foundation in the record.

As regards the contention that Holliday and Cutrer were aware of defects in subject wheel, proof on this issue consists of the testimony of Appellant's brother, mother and stepfather to the effect that approximately an hour and a half after the accident, they visited Holliday's station, and heard an unidentified party state in Cutrer's presence that Cutrer should have been aware the wheel was sprung. This unidentified party was reputed to have stated that he had been expecting something of the sort to happen, and Cutrer agreed that he too had been expecting such an occurrence. This testimony was denied by Cutrer. The trial court resolved this divergence of testimony in favor of defendants. Based on the record, we find no manifest error in this conclusion of fact. It is elementary that the finding of fact by a trial court will not be disturbed on appeal unless shown to be manifestly erroneous, especially where the issue resolved depends upon the credibility of witnesses. Dorsey v. Couteau, La.App., 264 So.2d 800.

In support of the contention that the doctrine of res ipsa loquitur applies to the asserted tort claim, Appellant cites several cases which simply pronounce the general rules and circumstances in which the rule may be invoked.

It is settled law that the principle of res ipsa loquitur is a rule of evidence to be applied at the end of the case when all of the evidence has been heard. American Employers' Insurance Company v. Fagot, La.App., 250 So.2d 842. Res ipsa loquitur, being a rule of evidence which creates a presumption of negligence, is to be sparingly applied, and should be resorted to only where the demands of justice make its application necessary. McCann v. Baton Rouge General Hospital, La.App., 258 So.2d 618.

As a general rule, one of the principal elements of the res ipsa loquitur doctrine is defendant's knowledge and control of the instrumentality which causes the injury. Lutheran Church of Good Shepherd of Baton Rouge v. Canfield, La.App., 233 So.2d 331. However, defendant's actual control at the time of injury is not always a necessary element, as evidenced by that line of authorities which apply res ipsa loquitur to injuries occasioned by exploding bottles of carbonated beverages. See, for example, Johnson v. Louisiana Coca Cola Company, La.App., 63 So.2d 459.

The record discloses that Cutrer has owned trucks for many years. It does not appear that he was particularly adept or expert in the repair of vehicles or that he was peculiarly qualified to determine wheel defects by mere inspection. He had left the vehicle at the station to have the tires changed. He was not present when the accident occurred. He exercised no actual control or supervision over the work.

Appellant's brother, Jimmy Dykes, and Henry Dunlap assisted Appellant in changing the tires. Being a former Army truck driver and heavy equipment operator, Appellant was thoroughly skilled in changing large truck tires. Appellant did most of the work, his assistants serving mainly to hand him tools as needed. Appellant's testimony indicates that the entire time he was changing subject tire, nothing indicated that the wheel was in any way defective or sprung. His testimony further shows that he first realized something was wrong with the wheel or rim when he attempted to replace the wheel on the vehicle. At this time, Appellant experienced difficulty in aligning the wheel on the lugs, which prompted him to remark to his assistants that the wheel was sprung, and immediately thereafter the accident occurred.

Considering all the circumstances of this case, we do not regard it as a proper instance in which to apply the doctrine of res ipsa loquitur. Here the instrument was under the control of Appellant who was knowledgeable in the matter of changing large truck tires. Cutrer was not present and had no control over...