Lowenburg v. Labor Pool of America, Inc.

• Decision Date: 10 May 1974
• Docket Number: No. 5678,5678
• Citation: 296 So.2d 846
• Parties: Richard H. LOWENBURG v. LABOR POOL OF AMERICA, INC., and Home Indemnity Co.
• Court: Court of Appeal of Louisiana — District of US

Page 846

296 So.2d 846

Richard H. LOWENBURG v. LABOR POOL OF AMERICA, INC., and Home Indemnity Co.

No. 5678.

Court of Appeal of Louisiana, Fourth Circuit.

May 10, 1974.

Rehearings Denied July 3, 1974.

Writ Denied Sept. 24, 1974.

Peter H. Beer, New Orleans, for plaintiff-appellee.

M. N. Grossel-Rossi, New Orleans, for Labor Pool of New Orleans, Inc. and the Home Indemnity Co.

Rudolph R. Schoemann, New Orleans, for America, Compania General de Seguros and Industrial Fire and Casualty Co.

Before STOULIG, J., and MARINO and MALIK, JJ. Pro Tem.

THOMAS J. MALIK, Judge Pro Tem.

This case arises out of an accident on September 18, 1970 involving the plaintiff, a pedestrian, struck by a truck belonging to the defendant Mike Smith being operated by Norman Babin an employee of the defendant Labor Pool of America, Inc. This action was brought against Labor Pool of America, Inc. later changed to Labor Pool of New Orleans, and their insurer, Home Indemnity Co. By subsequent amendment, Mike Smith was brought in as a party-defendant as well as his insurers, Surplus Underwriters, Inc.

After a trial on the merits, the trial court rendered judgment on behalf of the plaintiff against Labor Pool of New Orleans, The Home Indemnity Co., Mike Smith and Compania General de Seguros and Industrial Fire and Casualty Company in the amount of fifty seven thousand, two hundred thirty-five and thirty-eight dollars, ($57,235.38). The third-party petition urged by Labor Pool of America, Inc. and Home Indemnity Co., against Surplus Underwriters Inc. and Mike Smith were dismissed.

Due to amnesia following the accident the plaintiff was unable to testify relative to the usual important aspects concerning the accident itself such as speed of the vehicle, place of impact, etc. This would leave the driver of the defendant's truck as the sole remaining eye-witness as to how this accident occurred, however, although served with a notice of deposition 5 months after filing of the suit, again 8 months after filing of the suit, and finally 9 months after filing of the suit, and lastly a subpoena for the trial, Norman Babin the driver of defendant's vehicle failed to appear to give testimony on either occasion. The trial court cited as reasons for its judgment certain facts brought out by the police report, which were admitted into evidence indicating excessive speed of defendant's vehicle. Babin's failure to testify carried great weight with the trial court. It was a further finding of fact by the trial court that Babin had the last clear chance to avoid the accident and further that his negligence was the proximate cause of the accident. The trial court found the plaintiff free of any contributory negligence.

There can be no question but that the plaintiff possesses immeasurable integrity in admitting his failure to recall the events of that day, as opposed to conjuring up a version of the accident which would enhance his case. It becomes necessary to examine the failure of the defendant driver to appear and give testimony, and this relation to the law cited by the trial court, that the failure of a party to call a witness will create a presumption that the witness' testimony would be adverse to the party so failing to call. Such an argument is valid under certain conditions.

The witness must have particular testimony to give, as

(a). An eye witness, or (b). One having particular knowledge of the facts of a transaction, or (c). An expert witness who has rendered an opinion to the party failing to call him such as a physician or engineer, etc., also (d). The witness should be available to the party failing to call him $ $. It is not necessary that the witness be under the control of the party failing to call him, but if that is so, or if there is a close relationship between them the presumption becomes more obvious.

Babin was served personally at his residence on the several occasions cited. He was driving the offending vehicle which struck plaintiff presumingly as an employee of defendant, Labor Pool of New Orleans, Inc. The truck belonged to Mike Smith, a Third-Party defendant. As pointed out by the trial court,

'There can be no doubt that although plaintiff made every effort to secure the attendance at the trial of the driver, Babin, he was actually without information other than that furnished to him by either the police or his former employer. While, on the other hand, the defendants must have known--or they should have known--and with some effort certainly could have found Babin and produced him on the trial of this cause.'

The Court in Wolfe v. Employers Commercial Union Ins. Co., La.App., 272 So.2d 714 (1973), has cited the law correctly in holding that the failure of a party to call a witness creates a presumption that the witness' testimony would have been unfavorable to that party where the party has the burden of proof or the party has some control over, or a close relationship with the witness. Further this Court has held in many instances, and recently in Penigon v. McNiece, 262 So.2d 407 (1972), where a rear ending vehicle's driver failed to call his guest passenger who was his daughter, her testimony shall be presumed unfavorable to her host driver father. Where the unexplained failure of a litigant to call a witness who possesses peculiar knowledge essential to that party's cause, which witness is available to him and is under his control raises a presumption that that witness' testimony would be detrimental to the party's cause. (See also New Amersterdam Casualty Co. v. Culotta, La.App., 230 So.2d 339 (1970) and Marshall v. So. Farm Bureau Gas Co., La.App., 204 So.2d 665 writ refused, 251 La. 860, 206 So.2d 711 cert. denied 393 U.S. 883, 89 S.Ct. 189, 21 L.Ed.2d 158 (1967)). In the later case involving a wrongful death action brought by parents of deceased 8 year old boy who was struck and killed by a motor vehicle, failure of parents to utilize testimony of deceased boy's companion who witnessed fatal accident or to explain the absence of such companion as a witness created presumption that companion's testimony would be adverse to the parent's cause. The instant case underscores a commitment to this doctrine and in the final analysis this is the only way a trial judge can run a court.

Although our appellate courts have their share of confused and contradictory opinions on various aspects of state jurisprudence, such confusion no longer exists as regards to disturbing a trial court's factual findings on appeal. Our State Supreme Court has recently given us a careful, thorough, and readable opinion in Canter v. Koehring Co., 283 So.2d 716 and had made it clear that when there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual bases for trial court's finding, the appellate court, on review, should not disturb this factual finding in absence of manifest error. A reviewing court must give great weight to factual conclusions of the trier of fact, and where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though appellate court may feel that its own evaluations and inferences are as reasonable. We affirm this reasoning and hold that a reversal on questions of fact requires stronger inducement than that cited by the appellant.

Appellant Surplus Underwriters has urged that the truck driver Norman Babin was the borrowed employee of Carrollton Lumber & Wrecking Co., Inc., at the time of the accident, however, the trial court found that Babin, the driver of the truck, was also on the payroll of Labor Pool of New Orleans, Inc. Mike Smith was the owner of the tractor-trailer which was involved in the unfortunate accident, and he leased his truck, including the driver, to Carrollton Lumber & Wrecking Co., Inc.

We find this argument by Surplus without merit. The record discloses sufficiently that Babin was at all times the employee of Labor Pool of New Orleans, Inc., and subject to their direct orders. He was employed by them and directed by them as to where to go. This control, in the opinion of the Court, is sufficient to hold Babin to be their employee acting in the scope of course of his employment as their employee. To relieve themselves of any such liability Labor Pool should have brought in Carrollton Wrecking Co. as a defendant. The central issue for the Court is not who else may be liable, but rather which, if any, of these defendants are liable.

Insofar as this judgment casts America Compania General de Seguros and Industrial Fire and Casualty Co., we agree with these appellants and, the trial court's judgment in respect to these parties is reversed, said parties not having been served or cited to appear.

The plaintiff initially sued Labor Pool and its insurer, Home Indemnity. After an answer was filed, he supplemented and amended his suit, and made Mike Smith and Surplus Underwriters, Inc., parties. At no time did the plaintiff sue and serve America, Compania General de Seguros and Industrial Fire and Casualty Company. They were not parties to the suit. However, when the court rendered a judgment, it rendered it against the two insurers who were not before the court, but who were only named in the Surplus Underwriters Policy.

Article 6 C.C.P. provides in pertinent part:

Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. The Jurisdiction must be based upon; (1) The service of process on the defendant, or on his agent for the service of process.

In holding Mike Smith liable jointly and in solido, it naturally follows that we would hold his insurer but for the fact that they were not served. It also follows that we agree with the trial court that Labor Pool of New Orleans, Inc. must be held liable to plaintiff for the damages which he sustained due to the negligence...