Hawayek v. Simmons

• Decision Date: 26 November 1956
• Docket Number: No. 20745,20745
• Citation: 91 So.2d 49,61 A.L.R.2d 1254
• Court: Court of Appeal of Louisiana — District of US
• Parties: Alberto HAWAYEK v. William J. SIMMONS and The Employers Liability Assurance Corporation, Limited.

Page 49

91 So.2d 49

61 A.L.R.2d 1254

Alberto HAWAYEK v. William J. SIMMONS and The Employers Liability Assurance Corporation, Limited.

No. 20745.

Court of Appeal of Louisiana, Orleans.

Nov. 26, 1956.

Benjamin E. Loup and A. J. Marciante, New Orleans, for plaintiff and appellant.

Felicien P. Lozes and James H. Drury, New Orleans, for defendants and appellees.

McBRIDE, Judge.

On April 25, 1954, at about noontime, Alberto Hawayek and his brother-in-law, William J. Simmons, were fishing from an open boat propelled by an outboard motor in Lake Pontchartrain near what is known as 'Hospital Foundation.' Simmons was casting a lure with a treble fishhook or cluster of three hooks by means of a five-foot rod equipped with a casting reel. Simmons, after making an overhand cast, felt his lure strike some obstruction, and looking around he found the treble hook loged in plaintiff's cheek. It developed that the fishhook had struck Hawayek in the right eye. Claiming that his eye was badly injured, Hawayek brought this suit against Simmons and his liability insurer, in solido, for the sum of $21,104 for personal injuries, medical expenses and other damages. The petition alleges that Simmons ws negligent in several specified respects. The answer of the defendants is that there was no fault or negligence on the part of Simmons, and, in the alternative, defendants set up and specially plead that by going fishing plaintiff had assumed the risks in connection therewith and, therefore, cannot recover.

After a trial on the merits of the case, there was judgment in favor of plaintiff for the sum of $154.65, representing the amount of the medical and hospital expenses due plaintiff under the provisions of the policy of liability insurance issued to Simmons by the defendant, The Employers' Liability Assurance Corporation, Ltd., as set out in 'Coverage B--Medical Payments' thereof.

The plaintiff has appealed from said judgment.

The trial court was of the opinion that the amount of $154.65 was due to plaintiff under the policy contract without regard to any negligence on the part of Simmons. However, the judge disallowed all other claims made by plaintiff for the reason that he felt plaintiff had not sustained the burden or proving negligence on Simmons' part. In his written reasons for judgment the trial made these observations:

'* * * Plaintiff himself testified that he did not see what happened. He stated that he felt a stinging sensation in his eye and that upon placing his hand on his eye he extracted therefrom a single hook on the fishing line of the defendant. He does not know how it got there. Defendant, on the other hand, states that he had on his line at the time a lure with a treble hook or cluster of three hooks, that his cast was an overhand cast, and what when he felt an obstruction and looked around he found the treble hook lodged in plaintiff's cheek.

'That was all the testimony before the Court. It is just as reasonable to assume that plaintiff was in error when he stated he did not move, as it is to assume that defendant was in error when he stated that he cast overhand. This Court cannot decide the case on possibilities or probabilities. The plaintiff must prove his case with reasonable certainty.'

His counsel concede that plaintiff was unsuccessful in proving that Simmons was guilty of any acts of commission or omission which might be deemed to be negligent, but it is strenuously contended that notwithstanding that where is no proof of Simmons' negligence that a recovery by plaintiff is in order under the doctrine of res ipsa loquitur which, it is said, has peculiar application to the case.

The evidence shows that just prior to and at the time defendant's lure struck him in the eye plaintiff was seated in the forward part of the eighteen-foot boat with his head bowed looking into the water, and we are convinced that he did not see Simmons make the cast. Plaintiff states that he does not know the reason for the lure coming into contact with his face. He says that he felt the stinging sensation in his eye, and that he extracted from his eye the hook on the fishing line of his companion. Simmons did not explain any of his actions nor did he state that no negligent act on his part caused his hook to become lodged in plaintiff's eye. All he said was that he made an overhand cast and then felt an obstruction and looking around he saw that the accident had happened.

We believe under these circumstances that the doctrine of res ipsa loquitur is clearly admissible in the case. The leading authority in this state enunciating the doctrine is Lykiardopoulo v. New Orleans & C.R., Light & Power Co., 127 La. 309, 53 So. 575, 576, in which the Supreme Court said:

'* * * In cases where the plaintiff cannot be expected to have any information as to the causes of the accident, whereas the defendant, on the contrary, must be assumed to be fully informed on the subject, and where the accident is of the kind which ordinarily do not occur when due care has been exercised, the rule of evidence is that the accident speaks for itself--res ipsa loquitur--that is to say, that a presumption of negligence arises from the fact itself of the accident. In such cases, the plaintiff not only need not allege the particular acts of omission or commission from which the accident has resulted, but need not even prove them. The accident itself makes out a prima facie case, and the burden is on defendant to show absence of negligence. Res ipsa Loquitur. * * *'

The doctrine has been applied in a variety of cases by the courts of this state, and the theory underlying the doctrine is that the rights of a person who is injured in an accident under circumstances which leave the cause of the accident unknown to him must be protected. As a result of the doctrine there then arises the legal presumption of the superior knowledge on the part of the owner, possessor or operator of the instrumentality which caused the injury. Roy v. Louisiana State Department of Agriculture & Immigration, 216 La. 699, 44 So.2d 822; Plunkett v. United Electric Service, 214 La. 145, 36 So.2d 704, 3 A.L.R.2d 1437; Gerald v. Standard Oil Co. of Louisiana, 204 La. 690, 16 So.2d 233; Loprestie v. Roy Motors, Inc., 191 La. 239, 185 So. 11; Jones v. Shell Petroleum Corp., 185 La. 1067, 171 So. 447; Mercer v. Tremont & G. Ry. Co., La.App., 19 So.2d 270; Gershner v. Gulf Refining Co., La.App., 171 So. 399; Rome v. London & Lancashire Indemnity Co. of America, La.App., 169 So. 132; Pizzitola v. Letellier Transfer Co., La.App., 167 So. 158.

The doctrine of res ipsa liquitur furnishes a rule of evidence, the applicability of which is to be determined on the conclusion of the trial. Roy v. Louisiana State Department of Agriculture & Immigration, supra; Plunkett v. United Electric Service, supra; Gerald v. Standard Oil Co. of Louisiana, supra.

In the case at bar the plaintiff's attention was directed to a fish alongside the boat when Simmons' lure struck him in the eye. As he was not looking at defendant, of course it was not possible for him to say exactly what defendant did that might have caused the accident, and we believe that under the circumstances of the case we must assume that Simmons was fully informed as to what caused the lure to damage plaintiff's eye, while the plaintiff, as we have said, clearly did not have any such information. It seems to us that when a fisherman makes an overhead-forward cast, his lure would not be expected to take a lateral and horizontal tangent and strike another person in the boat but for some fault or negligence on the part of the one who makes the cast. Under the established jurisprudence of the State and under such facts there necessarily arises the presumption that Simmons was negligent from the happening of the accident itself--res ipsa loquitur.

We do not believe that it can even be questioned that the defendants have not shown that Simmons was free from negligence in connection with the occurrence. To absolve themselves from liability, the burden was upon defendants to show that Simmons was guilty of no negligence and in the absence of such a showing, we can only presume that the accident occurred through some fault of Simmons who had sole charge of the instrumentality which caused the injury to plaintiff.

When the doctrine of res ipsa loquitur is applied in a damage suit, the defendant is charged with the duty of showing his freedom from negligence, i.e., that he did not do anything that he should not have done, that he left undone nothing he should have done and that he neglected no legal duty which he might have owed to the plaintiff. Watkins v. Gulf Refining Co., 206 La. 942, 20 So.2d 273; Horrell v. Gulf & Valley Cotton Oil Co., 15 La.App. 603, 131 So. 709; Vargas v. Blue Seal Bottling Works, 12 La.App. 652, 126 So. 707.

The defendants point out that plaintiff's petition only contains certain specific charges of negligence but no general charge of negligence against Simmons, and they argue that whereas a general charge of negligence is not alleged, the doctrine of res ipsa loquitur cannot be admitted into the case. We can see no valid force in this argument.

Under our settled jurisprudence the doctrine is applicable even where there is made no allegation of general negligence whatsoever and only acts of specific negligence are alleged. This court had occasion to pass on that proposition in the case of Pizzitola v. Letellier Transfer Co., Inc., supra (167 So. 159), wherein we said:

'But it is asserted that unless the petition contains a general charge of negligence, we are without warrant for treating specific allegations of fault as surplusage. However, it is too well settled to require the citation of authority that a general allegation of negligence is merely the pleader's own conclusion of law. If, by reason of the fact of the happening of the accident, the burden is cast upon the defendant to show a freedom from...