Liberty Mutual Insurance Company v. Falgoust

• Decision Date: 17 November 1967
• Docket Number: No. 23268.,23268.
• Citation: 386 F.2d 248
• Parties: LIBERTY MUTUAL INSURANCE COMPANY and Monsanto Chemical Company, Appellants, v. Mrs. Winnie Ruth Brown FALGOUST et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

386 F.2d 248 (1967)

LIBERTY MUTUAL INSURANCE COMPANY and Monsanto Chemical Company, Appellants, v. Mrs. Winnie Ruth Brown FALGOUST et al., Appellees.

No. 23268.

United States Court of Appeals Fifth Circuit.

November 17, 1967.

John V. Baus, of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., Ignatz G. Kiefer, New Orleans, La., for appellants.

Calvin H. McBride, James D. McGovern, Jr., New Orleans, La., Chester Francipane, Metairie, La., for Harold J. Reiss.

Thomas J. Wyllie, of Adams & Reese, New Orleans, La., for B. & G. Crane Service, Inc. and Aetna Casualty & Surety Co. Monroe & Lemann, Melvin I. Schwartzman, Andrew P. Carter, Eugene G. Taggart, W. Malcolm Stevenson, New Orleans, La., for appellee, Louisiana Power & Light Co.

Price & Francipane, Metairie, La., for appellee, Harnischfeger Corporation.

Pascal F. Calogero, Jr., of Landrieu, Calogero & Kronlage, New Orleans, La., for appellees, Mrs. Winnie Ruth Brown Falgoust and Mary Lynn Falgoust, and Employers' Liability Assurance Corporation (Intervenor).

Gerald P. Fedoroff, New Orleans, La., for John Dibert Falgoust.

Before RIVES, GOLDBERG and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

In these Louisiana diversity damage suits growing out of the death of one worker and injury to another, the attack of appellants is against the failure of the trial judge to grant their motion for a directed verdict or judgment notwithstanding the verdict and, alternatively, against the denial of a new trial.

On July 13, 1961, Francis T. Falgoust was killed and Harold Reiss sustained physical injuries when the boom of a crane with which they were working came into contact with an overhead uninsulated 13,800-volt power line at Monsanto Chemical Company's plant at Luling, Louisiana.

Suits were filed by the widow of Francis T. Falgoust and his minor children, a seven-year-old daughter and a nineteen-year-old married son,¹ as a result of the death of Falgoust; also, by Harold Reiss for physical injuries; and were consolidated for trial. They charged negligence by a number of co-defendants.² The matter was submitted on written interrogatories to the jury which found that defendant Monsanto Chemical Company and its insurer Liberty Mutual Insurance Company were solely responsible for the accident³ and that Falgoust and Reiss were not contributorily negligent.⁴ Judgment was rendered accordingly.⁵

In their appeal Monsanto and its insurer Liberty Mutual present two issues for our consideration: first, that there was no reasonable evidence on which the jury could find that Monsanto was at fault in causing this accident and that Falgoust and Reiss were not contributorily negligent and/or assumed the risk; secondly, that the only evidence presented to the jury established that the work undertaken by Welding & Manufacturing Company, employer of Falgoust and Reiss, was part of the "trade, business or occupation" of Monsanto, requiring the conclusion that Falgoust and Reiss were statutory employees of Monsanto and that their rights and remedies were governed exclusively by the Louisiana Workmen's Compensation. La. R.S. 23:1032, 23:- 1061.

The evidence shows that Monsanto, a manufacturer of agricultural chemicals, was expanding its manufacturing facilities at Luling by capital improvements which consisted of construction of additional plant facilities and the installation of several large cylindrical steel vessels. It was necessary that these vessels be unloaded from two railroad gondolas at a spur track at the plant, thence that they be transported to a jobsite on the plant grounds where they would be erected and structural steel buildings would be fabricated and erected to surround them. Monsanto contracted with Welding & Manufacturing Company to do this work. Welding in turn secured the services of a 35-ton truck-crane with operator and oiler-driver from B. & G. Crane Service, Inc., to lift the tanks off the rail cars to trailer trucks. Falgoust and Reiss were iron workers employed by Welding to work with the crane operator and driver supplied by B. & G. On the second day of work, one of the vessels had been lifted off the rail cars without incident, and the crane operator was preparing to remove another vessel when the boom, not having been fully lowered, came into contact with the high-voltage line resulting in the accident. All of the workers had been warned of the danger of the power line which was about 30 feet high above ground level, and it is clear that had the boom of the crane been fully lowered it could have passed safely under the wire. However, the evidence is in sharp conflict as to why the operator moved his crane into the line without lowering the boom, appellants claiming that the evidence shows that Falgoust signaled him to move into the line, appellees denying this and producing contradictory witnesses. In any event, the matter was clearly a question of fact for the jury's determination.

Monsanto directed its plant civil engineer, Senior Design Engineer Pearson, to be temporary coordinator on the job. He coordinated the work with the contractor, secured the location and worked closely with the contractor in the execution of his work. He spotted the two railroad gondolas carrying the vessels, one directly beneath the high-voltage line and the other just east of the power line, at a point requested by Welding. In doing so, it was planned that all of the unloading work would be done east of the high-voltage power line which crossed the spur track. The vessels would then be unloaded and moved via plant roads to the job-site. However, it was later discovered that because there were low wires which obstructed movement of the vessels over the route originally planned, it was necessary to use an alternate route, thus requiring the crane to traverse a number of times under the high-voltage line. Pearson said that had he known the original plan was not feasible because the vessels could not be moved under these low wires, he would not have spotted the railroad cars at a point beneath the high-voltage line. However, he had not gone out and determined in advance whether the vessels could be moved over the originally planned route before spotting the cars. He conceded that if the rail cars had been spotted at a point on the spur track west of the high-power wire, the work could have been done without having to traverse the crane under this line, except to move it into the rail site.

It was also possible for Monsanto to have the power shut off and de-energize the high-voltage line. Pearson, the plant engineer, had considered de-energizing the line while the work was going on and discussed the matter with either Monsanto's plant maintenance superintendent or the plant Engineering Department. The decision was made by Monsanto not to de-energize the line because there was a risk in not having two power sources in the event of a power failure. It would have been necessary to coordinate the work with Louisiana Power & Light Company, whose line it was, to de-energize the line. However, the record discloses that it had been done before.

Plaintiffs contend, therefore, that Monsanto failed to exercise reasonable care for the safety of the workers on this job in that it failed to provide a safe place to work and its coordinator could have selected a site for the spotting of the rail cars which would have been a safe place rather than a site directly beneath the high-voltage line; also, that there was lack of due care in Monsanto's failure to de-energize the line by having the power on the high-voltage line shut off, and thus render the area safe in which to work. Plaintiffs cite in support of their contention the Louisiana case of Sherrill v. United States Fidelity & Guaranty Co., La.App., 3 Cir., 132 So.2d 72 (1961), quoting from 65 C.J.S. Negligence § 50, p. 545, as follows:

"However, even though the invitee has knowledge of the danger, or the defect is obvious, the duty of the owner or occupant to use reasonable care to keep the premises reasonably safe for invitees remains, and it runs concurrently with the duty of the invitee to protect himself, so that, where the invitee does not fully appreciate the danger or is without fault, the owner or occupant may be held liable for the jury."

These disputed issues of fact were, of course, for the jury's determination. The scope of our review in cases of this kind has been recapitulated recently by Judge Thornberry on behalf of the Court in Helene Curtis Industries, Inc. v. Pruitt, 5 Cir., 1967, 385 F.2d 841, as follows:

"The test employed by the Fifth Circuit is that a fact issue must be submitted to the jury if reasonable men could differ on the conclusions to be reached from the evidence presented. Isaacs v. American Petrofina, 5th Cir. 1966, 368 F.2d 193; Wells v. Warren 5th Cir. 1964, 328 F.2d 666. We must view the evidence and all reasonable inferences most favorably to the party against whom the motion is made. Moreover, only the evidence and the reasonable inferences which support Appellee\'s theory may be considered. Wilkerson v. McCarthy, 1949, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Berry v. United States, 1941, 312 U.S. 450, 61 S.Ct. 637, 85 L.Ed. 945. Indeed, after Planters Planters Manufacturing Co. v. Protection Mutual Insurance Co., 5 Cir., 1967, 380 F.2d 869, our sole function is to ascertain if there is a rational basis in the record for the jury\'s verdict."

In Jones & Laughlin Steel Corporation v. Matherne, 5 Cir., 1965, 348 F.2d 394, this Court said:

"Both the district court and this Court must consider the evidence in its strongest light in favor of the party against whom a motion for directed verdict or for judgment n. o. v. is made, and must give that party the advantage of every fair and reasonable inference which the evidence justifies."

In Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946), the Supreme Court said, in a case in which ...