James v. Lykes Bros. S. S. Co.

• Decision Date: 03 May 1965
• Docket Number: No. 1816,1816
• Court: Court of Appeal of Louisiana — District of US
• Parties: Davis JAMES v. LYKES BROS. S.S. CO., Inc. and Hartford Accident & Indemnity Co. and Lumbermens Mutual Casualty Company.

Page 444

175 So.2d 444

Davis JAMES v. LYKES BROS. S.S. CO., Inc. and Hartford Accident & Indemnity Co. and Lumbermens Mutual Casualty Company.

No. 1816.

Court of Appeal of Louisiana, Fourth Circuit.

May 3, 1965.

Rehearings Denied June 7, 1965.

J. Stanley Wagner, Leon J. Jarreau, New Orleans, for plaintiff-appellee.

Clay, Coleman, Dutrey & Thomson, Jack W. Thomson, Jr., New Orleans, for intervenor-appellee.

Hammett, Leake & Hammett, Robert E. Leake, Jr., New Orleans, for defendants-appellants.

Before SAMUEL, CHASEZ and BARNETTE, JJ.

CHRIS T. BARNETTE, Judge pro tem.

From a judgment in favor of plaintiff, Davis James, against the defendants Lykes Brothers Steamship Co., Inc., Hartford Accident and Indemnity Co., and Lumbermens Mutual Casualty Company, in solido, in the sum of $50,000.00 and in favor of the intervenor, Hayes Drayage and Storage Co., Inc., against the same defendants in the sum of $11,700.55, defendants have appealed suspensively.

The statement of the case and the facts are so accurately set out in great detail by the able trial judge in his 'Reasons for Judgment' that we quote the following excepts therefrom which we adopt in full as our statement of the case:

'This is a case involving an accident which occurred on October 21, 1961, on the Celeste Street wharf, in New Orleans. The plaintiff, Davis James, was employed as a truck driver for Hayes Drayage & Storage Company, Inc. and about 1:30 P.M. on the day in question, which was a Saturday, he was severely injured when several bundles of mahogany lumber, each bundle weighing in the neighborhood of 900 pounds, fell on him. He alleges that the bundles were caused to fall by the actions of one James Bell, a lift truck operator, employed by Lykes Bros. S.S. Co., in his negligent attempts to unload them from the Hayes truck. He pled res ipsa loquitur, and in the alternative, active negligence upon the part of Bell and lack of contributory negligence on his own part. The employer, Hayes Drayage & Storage Co., Inc. intervened seeking to recover by way of surogation, both legal and conventional, the amounts expended by it for the account of plaintiff under the Workmen's Compensation Act and for additional medical expenses.

'Plaintiff filed his original suit on October 8, 1962, naming Lykes Bros. S.S. Co., Inc., as employer of James Bell, and its insurer, Hartford Accident & Indemnity Company, as defendants. On Monday, October 22, 1963, plaintiff amended his suit to add a defendant, Lumbermens Mutual Insurance Company, as insurer of James Bell, under the 'loading and unloading' coverage afforded with respect to the truck which was being unloaded at the time of the accident. Subsequently on May 20, 1963, a second amended petition was filed, the effect of which was to correct and change the name of the last named defendant to Lumbermens Mutual Casualty Company. The original intervention by Hayes Drayage & Storage Co., Inc. was filed on October 22, 1962, and was later amended to include the additionally named defendant, Lumbermens Mutual Casualty Company.

'The merits of this case require the Court to resolve a conflict in factual evidence. Having done so, this Court finds that, on the day in question, Hayes Drayage had contracted with Lykes Brothers to move a large amount of bundled mahogany lumber from the Stuyvesant Street docks to the Celeste Street wharf in New Orleans. The bundles were square in shape, and apparently averaged about two feet square, and were from 10 to 20 feet in length. They were bound into bundless by means of a steel binding band on each end of the bundle. They were loaded at the Stuyvesant Street docks by the Hayes people, on the Hayes trucks, and were unloaded at the Celeste Street whart by Lykes employees.

'On the day in question, the plaintiff, James, had previously trucked two loads and been unloaded uneventfully. On his third load the accident occurred. Four persons testified, as eye witnesses to its occurrence, James the plaintiff, Bell the lift truck driver, another truck driver named Willie Hall, and Joseph Gagliano, a watchman over the Lykes Brothers cargo located between sections 1--25 on the said wharf, employed by the Lehon Protective Police Service, under contract to Lykes.

'The James truck was a large trailer and tractor, with an overall length of approximately fifty feet, and with the flat trailer portion thereof about thirty five feet long. The bundles of wood were loaded in two sets, one group being on the front portion of the trailer, and the other group in the rear, end to end. They were loaded on sticks of lumber placed from side to side on the trailer, to furnish them a firm foundation on the truck bed, and to provide room for the insertion of the prongs of the lift truck for loading and unloading. The bundles were then bound firmly on the truck by means of large chains, which were tied on either side of the truck bed by passing the ends through a steel rail running along the side of the truck, and, after being tied, each end is further fastened by hooking the end of the chain back upon the chain itself, using a hook which is located on each end of the chain. In this manner each chain is made hand tight, and then is further tightened by the use of a chain binder, which is a device about two feet long, with a hook on either end, and provided with a lever, which, when depressed, caused the hooks to come together some four to six inches. In this manner, the hooks of the binder were inserted in links of the chain, and when the lever was depressed they came together, causing the chain holding the load to become very tight around the load.

'James testified that there were four such chains on his load, and the other witnesses didn't know exactly how many held the load.

'All witnesses agreed that the Celeste Street wharf was a very long, enclosed, steel building, covered with corrogated steel, about two hundred feet wide, and equipped with a series of sliding doors, on steel rollers, most of which doors were closed on the day in question.

'It is also agreed that when James arrived, he parked his truck in the middle of the work area in the center of the wharf, facing upstream, with the left side of the truck on the river side of the wharf, and the right side on the Tchoupitoulas Street side of the wharf, and that the said truck was parked in front of what is known as Section 13 of said wharf.

'All witnesses testified that, before it actually fell, the load on James' truck was solid and stable, even while he worked on it to prepare it for unloading, and even after he had succeeded in loosening all the chains which braced it.

'At this point there arose some conflicts in the testimony of the witnesses. The Court had the opportunity to hear these witnesses examined, and cross-examined, and to question them, and also to observe their demeanor while testifying, and finds that the events leading up to the accident were as follows:

'James drove his truck to the position previously described and started to prepare it for unloading. He succeeded in loosening the first three chains without difficulty, but on the fourth and last chain, the one nearest the front of the truck, the chain binder was jammed and he could not release it; that he worked on this chain binder about five minutes when the next Hayes truck, driven by one Willie Hall, drove up and parked some thirty feet in the rear of James' truck, and that when Hall saw James was having trouble with the chain binder, he went to help him, as is customary; that James and Hall got a small lift truck, which was standing idly by and drove it next to the left side of James' truck where the jammed binder was, and putting a pallet board on top of it, stood on the pallet board where they were then high enough to work on the jammed binder; that they succeeded in releasing the binder, at which point the load was still sturdy, and James untied the chain on the left, or river, side of the truck while Hall backed the small lift truck some fifteen or twenty feet away to the point it had been located before they used it; that James went around the front of his truck and began to untie the chain on the right, or Tchoupitoulas Street, side of his truck, when Bell, Without any signal from anyone, began to unload the truck; that Bell inserted the prongs of his lift truck as far as they could reach under the load, and that when he lifted the prongs to raise the load from the truck bed, the points of the prongs of the lift truck, projecting under the bundless on the rights side of the truck, disturbed these bundles, caused the bottom bundles to move, which in turn caused the top boundles to topple over, and all on James, who was busy untying his chain on the right side of the truck.

'The Court finds that any other explanation of the cause of the accident is not supported by the facts. * * *'

The next several pages of the 'Reasons for Judgment' contain a review of the testimony of the witnesses in detail which we find no reason to repeat. We fully agree with the trial court's factual findings as to the cause of the accident.

Two special defenses were pleaded.

The statutory employee doctrine was pleaded on behalf of Lykes and its insurer Hartford as follows:

'* * * that the operations in which plaintiff was engaged at the time of the accident are a regular part of Lykes' business; that plaintiff was an employee of Hayes who was performing part of Lykes' regular business under contract, that the Louisiana Workmen's Compensation Law is applicable to the facts of this case and that under said law, particularly RS 23:1061, Lykes was the 'statutory employer' of plaintiff, and plaintiff's sole remedy is in workmen's compensation and that plaintiff has already compromised, settled and discharged all of his rights under said compensation law by proceedings in this court with Hayes Drayage and Storage Co., Inc., and he has no remedy in tort.'

Lumbermens Mutual Casualty Company pleaded...