Lewis v. Republic Supply Co.

• Decision Date: 01 July 1963
• Docket Number: No. 5922,5922
• Citation: 155 So.2d 200
• Parties: L. B. LEWIS d/b/a Lewis Trucking Company v. REPUBLIC SUPPLY CO. et al.
• Court: Court of Appeal of Louisiana — District of US

Page 200

155 So.2d 200

L. B. LEWIS d/b/a Lewis Trucking Company v. REPUBLIC SUPPLY CO. et al.

No. 5922.

Court of Appeal of Louisiana, First Circuit.

July 1, 1963.

Harold J. Rhodes, Berwick, for appellant.

Jones, Kimball, Harper, Tete & Wetherill, by J. Norwell Harper and James C. Hanchey, Lake Charles, Davidson, Meaux, Onebane & Donohoe, by R. C. Meaux, Lafayette, for appellees.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

LANDRY, Judge.

This cause is before us on the appeal of defendant, L. B. Lewis, d/b/a Lewis Trucking Company (sometimes hereinafter referred to simply as 'Lewis') from the judgment of the trial court dismissing said appellant's third party demand against third party defendants, Republic Supply Company and Colorado Fuel & Iron Corporation (sometimes hereinafter referred to simply as 'Republic' and 'Colorado', respectively, said latter named third party defendant being substituted in place and stead of initially designated third party defendant, John B. Roebling & Sons), upon a plea of prescription by the hereinabove first named defendant and a plea of prescription and exception of no cause of action by said latter named third party defendant.

The facts and circumstances giving rise to this litigation are not in dispute and, insofar as they are pertinent to the issues presented for resolution appear, by the pleadings and evidence adduced on the trial of third party defendants' pleas of prescription, to be as follows:

On or about May 2, 1961, Barnewell Offshore, Inc. filed suit against Lewis seeking judgment in compensation for damages to a drilling rig (known as a drilling mast) allegedly damaged by Lewis, a common carrier, who had contracted to transport plaintiff's said equipment. Plaintiff in the main demand charged the damage to its apparatus occurred when a cable furnished by Lewis broke or parted as the equipment was being unloaded from the truck upon which it was being carried, causing the rig to be thrown to the ground occasioning damages thereto necessitating repairs in the sum of $23,049.83, for which amount plaintiff prayed for judgment in its favor.

Third party plaintiff, Lewis, purchased the cable from third party defendant, Republic, on September 12, 1960, and the accident occurred the following day, September 13, 1960.

Upon trial of the pleas of prescription filed on behalf of appellees, Republic and Colorado, it was established that appellant, Lewis, became aware of the defective nature of the cable not later than September 14, 1960, inasmuch as on either the day of the accident or the day following Lewis advised Republic the cable was defective and requested its replacement.

As previously stated, the main demand of the original plaintiff, Barnwell Offshore, Inc., was filed against defendant, Lewis, on May 2, 1960. The third party petition of defendant, Lewis, was filed September 28, 1961.

Barnwell Offshore, Inc., plaintiff in the main demand, predicated its claim against defendant, Lewis, on the allegation the damage to said plaintiff's property resulted from the active breach of Lewis' obligation as a common carrier in failing to deliver plaintiff's property in the same condition as received and in performing the contract of carriage in a negligent manner. In the alternative, plaintiff in the main demand contends if defendant Lewis was not guilty of a breach of contract, then and in that event, said defendant was negligent in unloading the rig and in furnishing for the undertaking a cable which was neither defective or inadequate for the occasion. In the further alternative, plaintiff in the main demand invokes the doctrine of res ipsa loquitur.

To the principal demand of plaintiff, Barnwell Offshore, Inc., defendant, Lewis, filed an answer coupling therewith his third party petition naming as defendants therein Republic and Colorado against whom third party petitioner prayed for judgment in whatever amount he might be cast to plaintiff in the principal demand. Lewis' third party petition in substance alleges the cable which broke was purchased from defendant Republic the day preceding the accident. It is further alleged the cable was warranted to withstand a certain weight and pressure but parted or broke while being subjected to a lesser pressure and weight. Next it is alleged the cable was warranted by both third party defendants, namely, Republic which sold the cable to third party plaintiff and Colorado which manufactured the cable. Finally, it is contended both Republic and Colorado breached their respective warranties subjecting them to liability to third party petitioner.

The exception of no cause of action interposed on behalf of defendant Colorado is predicated on the ground appellant having sued his immediate vendor, Republic, has no cause of action against Colorado as the manufacturer of the cable and vendor of appellant's vendor. The pleas of prescription filed on behalf of appellees, Republic and Colorado, are founded on the proposition the third party claim asserted herein is in essence an action in redhibition governed by the provisions of LSA-C.C. Articles 2534, 2545 and 2546, wherein the prescriptive period for the institution of actions to annul a sale because of alleged redhibitory vices or defects is fixed at one year.

Predicated upon the ruling in Appalachian Corporation v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539; Marquette Casualty Company v. Brown, 235 La. 245, 103 So.2d 269; and Edward Levy Metals, Inc. v. New Orleans Pub. Belt R., 243 La. 860, 148 So.2d 580, appellant maintains the trial court erred in sustaining appellees' pleas of one year prescription because the third party demand asserted herein is in effect an action for indemnity consequently prescription does not run on such a demand until at least one year from the date liability of the party seeking indemnity is fixed. Based on this premise appellant maintains its third party demand has not prescribed notwithstanding more than one year elapsed between the date of the accident giving rise to the institution of the main demand herein and the date of the filing of appellant's third party complaint because prescription does not commence to run on appellant's third party demand until appellant's liability is fixed by judgment rendered in favor of plaintiff, Barnwell, on the principal demand. In substance, appellant also argues the result advocated is necessary to protect the rights of an initial defendant having a valid third party claim against a party not joined by the original plaintiff for the reason the jurisprudence is established to the effect a defendant having a claim against a third party may not file suit therein until his liability as an initial defendant is fixed under penalty of dismissal of such third party demand on the ground of prematurity, counsel's authority for this latter position being Reserve Insurance Company v. Fabre, La.App., 140 So.2d 438.

In considering the authorities cited and relied upon by esteemed counsel for appellant we note Appalachian Corporation v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539, was an action wherein the plaintiff sued to recover of defendant the amount for which plaintiff was cast in judgment in a tort action brought by defendant's employee against plaintiff alone seeking compensation for injuries received when a warehouse door fell upon him two days following transfer of the warehouse to defendant by plaintiff and while the premises were still in possession and control of defendant. Plaintiff's suit instituted more than one year following the accident, alleged defendant was a co-tort feasor. In overruling defendant's plea of one year prescription, the Supreme Court held in substance the obligation of defendant to the injured employee was in tort but this did not necessarily mean its obligation to plaintiff was the same or that prescription governing plaintiff's claim was the same as that applicable to the claim of the injured employee. The court further held defendant's liability to the employee to be ex delicto while the duty owed plaintiff was for reimbursement of money paid by plaintiff on defendant's behalf.

The court further held plaintiff's claim was for contribution and therefore was not prescribed as it did not arise till plaintiff paid the judgment against it as a consequence of defendant's alleged negligent act. In addition the court concluded the facts of the case placed it within the exception to the contribution rule which holds that one tort feasor may not seek indemnity from a co-tort feasor on the ground that no one can allege his own turpitude or claim an advantage for a wrong. The court then concluded the case fell into the exception noted because, under the circumstances shown, Appalachian was was only technically or constructively at fault whereas the alleged negligence of defendant was the primary cause of the injuries received by defendant's employee.

In Marquette Casualty Company v. Brown, 235 La. 245, 103 So.2d 269, plaintiff, a compensation insurer, sued defendant to recover the sum of compensation benefits paid an employee of plaintiff's insured injured in an automobile accident allegedly caused by defendant's negligence. The accident occurred July 15, 1954 and suit was filed November 15, 1955. Defendant filed a plea of one year prescription which was sustained by the trial court. On Appeal, the Court of Appeal, Orleans (now the Fourth Circuit), reversed the judgment of the lower court and remanded the case for trial. The Supreme Court granted certiorari and in reversing the decision of the appellate court held that to determine the applicable rule of prescription, the nature of the claim sought to be enforced must be ascertained. In essence, the court found plaintiff was seeking enforcement of a right granted directly by statute, namely, LSA-R.S. 23:1101, 1102 and 1103, and also found the question to be resolved was whether the statute conferred upon the employer a...