Finn v. Employers' Liability Assur. Corp., General Acc., Fire & Life Assur. Corp., Intervenor
| Decision Date | 22 May 1962 |
| Docket Number | No. 9719,9719 |
| Citation | 141 So.2d 852 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Mrs. Betty Jean Fuller FINN, Individually and as natural tutrix of the minor, Donna Jeanne Finn, Plaintiff-Appellee, v. The EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Limited, et al., Defendants- Appellants, General Accident, Fire & Life Assurance Corporation, Intervenor-Appellee. |
Cook, Clark, Egan, Yancey & King, Shreveport, Watson, Williams & Brittain, Natchitoches, for appellants.
Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for plaintiff-appellee.
Mayer & Smith, Shreveport, for intervenor-appellee.
Before HARDY, AYRES and BOLIN, JJ.
This is an action in tort wherein plaintiff, in her individual capacity and as natural tutrix of the minor, Donna Jeanne Finn, seeks to recover judgment for damages for the accidental death of her husband, Robert H. Finn, father of the minor. Made defendants are J. H. Williams and his public liability insurer.
A companion case is that of Mrs. Wanda Ware Shuford v. The Employers' Liability Assurance Corporation, Limited, et al., La.App., 141 So.2d 850, wherein plaintiff, in her individual capacity and as natural tutrix of three minor children, seeks to recover judgment for damages for the accidental death of her husband, Wesley Gray Shuford, III, father of the minors. These cases were consolidated for the purpose of trial not only in the district court but also in this court.
Finn and Shuford were accidentally killed June 22, 1959, while in the employ of F. M. Fuller, who was engaged in the erection of a short-wave radio antenna tower for defendant Williams on his plantation at Lake End, Red River Parish, Louisiana. Their deaths were due to the collapse of the tower upon which they were working. In each of these cases the General Accident, Fire & Life Assurance Corporation, Fuller's workmen's compensation liability insurer, intervened and sought reimbursement, out of any recovery by plaintiffs, of compensation paid because of the accidental death of Fuller's aforesaid employees.
In the instant case, plaintiff, in her individual capacity, was awarded damages as follows:
For loss of companionship
love, and affection $ 8,000.00
For loss of support 20,000.00
For funeral expenses 940.00
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Total $28,940.00
and, as natural tutrix of the minor
For loss of companionship,
love, and affection $ 7,000.00
For loss of support 9,000.00
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Total $16,000.00
From a judgment signed in accordance with the aforesaid awards, defendants suspensively appealed. Plaintiff, Mrs. Finn, in answer to the appeal, prayed that the award in her favor be increased to $40,000.00 and, in favor of the minor, to $25,000.00.
To a proper understanding and appreciation of the issues, which will be hereinafter listed and discussed, it appears a re sume of certain of the facts, about which there is little, if any, dispute, is first in order.
The defendant, J. H. Williams, owns farms and ranches comprising approximately 12,000 acres in the Red River Valley. These he operates largely by means of mechanized power equipment, including tractors, trucks, cotton pickers and other harvesting equipment. He also owns and operates a cotton gin and a machine shop for the repair of farm machinery. In 1958, Williams obtained permits from the Federal Communications Commission, authorizing the use of short-wave radio communications in his farming and ranching operations. A 160-foot radio antenna tower was purchased for erection on his Cedar Grove Plantation near Natchitoches.
Williams undertook, with his own employees and two college students, to erect this tower. After the tower was erected to an altitude of 60 feet, the students got scared and quit. He, however, finally determined he was unable to further pursue the task with his own labor and equipment. Therefore, a contract was entered into with F. M. Fuller, a specialist in that line of work, to complete the erection of the tower. Fuller furnished his own employees, and the tower was erected. A base radio station was installed near the tower, and short-wave communications were conducted between the base station and 12 mobile units located in pickup trucks and cars.
Sensing the need for another antenna tower and base station, to permit communications with his ranch at Echo, in Rapides Parish, Williams designed, fabricated, and welded together, in his own machine shop at the Cedar Grove Plantation, a second 160-foot tower. This tower consisted of eight triangular 20-foot sections approximately 20 inches wide. Each section was designed to be bolted together, one on top of the other, by the use of base plates welded to angle irons at each corner of the triangle. The tower wass designed to be guyed at the 60-foot, 120-foot, and 160-foot levels. Steel straps, to which the guy wires were to be attached, were welded onto the sections at these points. Pursuant to a contract between Williams and Fuller, the latter agreed to, and did, erect this tower in Rapides Parish. A base station was placed in operation and the tower served the defendant's farming and ranching operations for a period of time less than a year.
During June, 1959, Williams disposed of his properties at Echo and acquired a plantation at Lake End. Following these transactions, a contract was entered into between Williams and Fuller for the latter to dismantle the tower at Echo and re-erect it at Lake End. Pursuant to this contract, Fuller and his employees dismantled the tower by lowering each 20-foot section to the ground. As thus dismantled, the tower was moved to Lake End, whereupon Fuller proceeded to re-erect it. In the course of this reconstruction, Fuller and two of his employees worked on the ground. Finn and Shuford worked on the tower. A winch truck and lines, by means of a pulley attached to the top of a gin pole approximately 12 feet in length, which was attached to the top section of the tower as it was completed, served to lift the sections of the tower for placement in position. In this manner, the first three sections were erected and permanent guy wires were attached at the 60-foot level. The erection proceeded until four additional 20-foot sections had been erected, bringing the construction to a height of 140 feet. The gin pole was then raised and attached to the top of the 140-foot section and Finn and Shuford were preparing to bring up and attach the guy wires at the 120-foot level when, with scarcely a moment's notice, the tower collapsed and the four sections above the 60-foot level and the gin pole fell to earth, causing instant death of both Finn and Shuford. No guy wires of any kind were attached to the tower above the 60-foot level. The three sections permanently guyed at that level withstood the crash.
After the accident, Fuller erected another 160-foot antenna tower for defendant Williams at Lake End across the road from the first site.
The widows and children of Finn and Shuford were paid funeral expenses and weekly compensation by General Accident, Fire & Life Assurance Corporation, Fuller's workmen's compensation insurer.
Mrs. Finn, on October 14, 1959, filed a direct action in the United States District Court for the Western District of Louisiana, at Shreveport, Louisiana, against The Employers' Liability Assurance Corporation, Limited. In this action it was alleged that the death of Robert H. Finn was due to the negligence of J. H. Williams by the manner in which the tower was constructed and specifically to the faulty and defective welding in the fabrication of the tower. An identical action was filed in the same court by Mrs. Shuford November 5, 1959. The compensation insurer intervened in each of said suits and sought reimbursement of the compensation benefits it had paid as Fuller's insurer.
The United States District Court, on February 4, 1960, sustained a motion by the defendant, The Employers' Liability Assurance Corporation, Limited, and dismissed all claims in excess of the limits of liability contained in the insurance policy sued upon. Whereupon, as will be hereinafter pointed out in more detail, plaintiff voluntarily dismissed her action in the federal court as of nonsuit, and, on February 23, 1960, refiled and reinstituted her action in the Tenth Judicial District Court in and for Red River Parish, Louisiana, against J. H. Williams and The Employers' Liability Assurance Corporation, Limited, and, under the same allegations of negligence as directed against the insurer alone in the federal court, sought damages for herself and her minor child from both defendants, in solido, for the same amounts as claimed in the previous suit. Similar action was taken by Mrs. Shuford, who refiled and reinstituted her suit in the state court for Red River Parish on February 29, 1960. In each of these actions, the workmen's compensation insurer of Fuller again intervened claiming reimbursement of compensation paid.
To these actions, the defendants-appellants filed and urged, to no avail, exceptions to the jurisdiction of the court. The basis of these exceptions was that neither of the defendants was domiciled in or maintained a principal place of business in Red River Parish, and that, under the provisions of the direct-action statute, LSA-R.S. 22:655, the district court in and for Red River Parish had no jurisdiction over these suits against the defendants wherein they were sued in solido.
The defendants likewise filed, on May 5, 1960, and unsuccessfully urged exceptions of no cause and of no right of action to plaintiffs' petitions and to that of the intervenor. The basis of these exceptions was that, under the provisions of the directaction statute, plaintiffs had exhausted their optional remedy by first proceeding against the liability insurer alone, and...
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