Fouchaux v. Board of Com'rs of Port of New Orleans, 35286.

• Court: Supreme Court of Louisiana
• Writing for the Court: LAND, Justice.
• Citation: 190 So. 373,193 La. 182
• Parties: FOUCHAUX v. BOARD OF COM'RS OF PORT OF NEW ORLEANS.
• Docket Number: 35286.
• Decision Date: 29 May 1939

190 So. 373

193 La. 182

FOUCHAUX
v.
BOARD OF COM'RS OF PORT OF NEW ORLEANS.

No. 35286.

Supreme Court of Louisiana.

May 29, 1939

Rehearing Denied June 26, 1939.

Certiorari or Writ of Review to Court of Appeal, Parish of Orleans.

Personal injury action by Douglas Fouchaux against the Board of Commissioners of the Port of New Orleans. A judgment dismissing the action was affirmed by the Court of Appeal, 186 So. 103, and the plaintiff applies for certiorari or writ of review.

Affirmed.

[193 La. 183] Proteous, Johnson & Humphrey, of New Orleans, for applicant.

Lewis L. Morgan and Philip S. Pugh, Jr., both of New Orleans, for respondent.

James Wilkinson, Geo Piazza, and Cameron C. McCann, all of New Orleans, for amicus curiae.

LAND, Justice.

Plaintiff alleges that he is an employee of the International Harvester Company. That the International Harvester Company leased a portion of a building and an elevator and a portion of the wharf from the defendant, the Board of Commissioners of the Port of New Orleans; that it was provided in the lease that the elevator and wharf would be maintained in a safe and proper condition by the defendant, the Board of Commissioners of the Port of New Orleans. Plaintiff further alleges that on the 14th day of June 1935, he was a [193 La. 184] tractor driver pulling two loaded trailers on the large elevator of the defendant, and that the elevator fell before the second trailer was completely on the elevator. When the elevator fell, the tractor and trailers fell with it and plaintiff was seriously and permanently injured.

It is further alleged that the wharf and elevator leased to the International Harvester Company, and under the supervision and control of the defendant, should have been properly supervised and maintained by the defendant in accordance with the terms of the lease, and defendant owed petitioner the duty of properly maintaining the elevator.

Defendant Board of Commissioners of the Port of New Orleans, filed an exception of no cause or right of action, which was maintained in the district court, and this judgment on appeal was affirmed by the Court of Appeal for the Parish of Orleans, and plaintiff's suit was dismissed at his costs.

The case is now before the Supreme Court on a writ of review herein granted.

In our opinion, the judgment of the Court of Appeal is correct for the following reasons:

If plaintiff had been an employee of the Dock Board, he may have sued...