Lucas v. Deville

• Decision Date: 21 December 1979
• Docket Number: No. 7185,7185
• Parties: B. J. LUCAS, Plaintiff-Appellant, v. W. E. "Coon" DEVILLE et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 804

385 So.2d 804

B. J. LUCAS, Plaintiff-Appellant, v. W. E. "Coon" DEVILLE et al., Defendants-Appellees.

No. 7185.

Court of Appeal of Louisiana, Third Circuit.

Dec. 21, 1979.

Dissenting Opinion Dec. 26, 1979.

Rehearing Denied Feb. 4, 1980.

On Rehearing April 9, 1980.

Writs Refused June 13, 1980.

Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-appellant.

Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Gravel, Roy & Burnes, Camille F. Gravel, Jr. and Anna Dow, Alexandria, for defendants-appellees.

Before CULPEPPER, DOMENGEAUX, GUIDRY, FORET and STOKER, JJ.

STOKER, Judge.

This is a suit by plaintiff-appellant, B. J. Lucas, for personal injuries sustained in an industrial accident. The accident occurred on August 6, 1979, while Lucas was performing services for his employer, Pelican Truck Lines, Inc. There are two defendants in this case. One of the defendants is W. E. "Coon" Deville, also an employee of Pelican Truck Lines, Inc. and who plaintiff alleges is an executive officer of Pelican Truck Lines, Inc. The other defendant is Market Insurance Company, the comprehensive general liability insurer of Pelican Truck Lines, Inc. The petition alleges that plaintiff's injuries resulted from negligence on the part of W. E. "Coon" Deville; therefore, this is an "executive officer" suit, so called. ¹

The issues are (1) was Deville negligent so as to be liable to plaintiff, and if so, (2) was Deville an executive officer of Pelican Truck Lines, Inc., so as to be within the liability coverage of the policy of Market Insurance Company, and if so, (3) did Market's policy contain exclusions of coverage under the circumstances, and (4) if plaintiff is entitled to recover from one or both defendants, what amount will compensate plaintiff for his damages?

We avail ourselves of the statement of facts contained in the trial court's reasons for judgment. We also set forth its holding relative to the liability issue. We quote in part therefrom as follows:

FACTS

Sometime before August 6, 1976, Mr. A. D. Chisum of Sicily Island, who was in the sand, gravel and cement business, decided to sell a cement hopper and agreed with an unidentified buyer to dismantle the hopper and put it in transportable condition. Around August 4, 1976, Chisum telephoned the Pelican Truck Lines, Inc. office in Jena and asked for help in getting the hopper down and onto a set of wheels. On August 5, 1976 Chisum met with W. E. Deville, a truck pusher for Pelican, and showed him the hopper and the site from which it was to be removed. In the telephone call and during the on site inspection, Chisum represented to Deville that the hopper was empty.

The hopper involved was a large rectangular box standing upright on four legs. The box portion was eight feet square on the top and bottom and twelve feet tall with a cone or pyramid shaped bottom fitted with a gate valve at the lower end through which dry cement could be emptied by gravity into a truck below. Including the four steel legs, the overall height was approximately forty feet. The empty weight of the structure was in the ten to fifteen thousand pound range. The hopper was equipped with a vibrator that could shake the cement enough to cause it to flow if it became packed inside. On the top there was a manhole cover which was by design water tight and which could be unbolted and removed to permit access to the interior of the bin.

The bin was as indicated, 8 X 8 X 12 feet. It thus could contain 768 cubic feet of material. The bottom part of the bin below the 12 foot tall "box", was cone or pyramid shaped with an 8 X 8 foot base. The "height" of the cone or pyramid was not given and thus its cubic capacity cannot be exactly computed. It can reasonably be estimated however that the total capacity was probably in the neighborhood of 800 cubic feet.

This particular bin was being used to store and load dry cement. Such material weighs 94 pounds per cubic foot. Thus, the contents of this bin could weigh up to about 75,200 pounds. At 27 cubic feet per cubic yard, one yard of dry cement would weigh 2,468 pounds. There may be some variation in the weight of cement as Mr. Chisum testified a yard might weigh between 2,500 and 3,800 pounds.

Pelican Truck Lines generally moves oil field equipment. It had in the past moved one cement hopper and had on other occasions moved similar hoppers used by oil drilling operators to hold drilling mud compounds. The method used to move the drilling mud hoppers is the same as used in this case. These other hoppers were similar in design but were usually smaller or mounted lower than Mr. Chisum's hopper.

The procedure envisioned by Deville was one using two gin pole trucks and drivers, including plaintiff, who were familiar with the procedure. Mr. Lucas was to place his truck, which was Pelican's largest gin pole truck, on one side of the hopper and reel out a length of cable from a winch through the upright gin poles. The cable was attached to the cement bin. Another gin pole truck was positioned on the other side of the cement bin and rigged up on similar fashion. Somehow the legs on one side of the bin were hinged and the legs on the side opposite from the hinges were unbolted or cut. The smaller of the two trucks was to pull the bin over from the hinged side. The larger truck, driven by plaintiff, was to be used to gradually let the bin down so it would end up laying on its side. Mr. Lucas was to operate the powered winch on his truck from inside the cab and gradually let cable out to control the downward movement of the hopper.

The operation commenced as planned on the morning of August 6, 1976. Mr. Chisum was present and the bottom gate of the hopper was open. No cement was coming out of the bin. Mr. Lucas was in the position assigned to him by Mr. Deville. The other truck pulled the hopper over as planned while Lucas gradually released cable from his side. Suddenly as the hopper reached the point where it would tip over, gravity and the weight of the hopper overwhelmed Mr. Lucas's equipment. His truck was tipped up on its back wheels. The cable disengaged or broke and the truck dropped back into its normal upright position. The up and down motions were forceful enough to break the seat from which Mr. Lucas was operating the winch. He sustained a facial laceration and immediately complained of severe back pain. He needed assistance to get out of the truck and was immediately transported to the LaSalle General Hospital near Jena, Louisiana.

After the accident Mr. Chisum's employees removed approximately five cubic yards of unmixed dry portland cement from the bin which purportedly had been empty, but which in fact was not. The load on the cable of Mr. Lucas's truck was thus underestimated by between 12,340 and 19,000 pounds. In effect, the bin being lowered weighed about twice what was expected. Instead of 10,000 to 15,000 pounds, there were up to about 34,000 pounds of load being lowered. The overload was at least 12,340 pounds.

Pelican owned a large mobile crane which was not employed in the August 6th attempt that resulted in this litigation. Its lifting capacity was not established in this case. Mr. Deville was authorized to select what equipment was needed for a given job. He elected to use the procedure described above to dismantle or lower Chisum's cement hopper.

W. E. Deville was authorized by Pelican Truck Lines to supervise any job assigned to one of his crews. He was employed as a "truck pusher" by Pelican. He could select what equipment would be used. He could call a crew off a job or stop work or direct that work not be started if in his opinion the equipment was not in good working order or not suitable for a given task or if other unsatisfactory conditions were encountered. On this job, he could have directed that the equipment movement not be undertaken if the cement bin had still been connected to an electrical power source. He could have done the same thing had he noticed or had been informed the bin contained a significant quantity of cement. He was empowered to call out Pelican's crane if he determined it was needed. He was a member of Pelican's board of directors.

The corporate president, David Deville, was generally regarded by W. E. Deville and the other truck pushers as being the only corporate officer who could agree on behalf of Pelican that Pelican would enter into a contract to perform a given job. David Deville controlled hiring of personnel. Pelican is a closely held corporation that in fact is operated by David Deville alone. The board of directors seldom or never meets.

In the trial court's conclusions, it stated the following:

This Court is of the opinion this accident was most unfortunate and the reason for it is readily apparent now. Nevertheless, the question of whether or not W. E. Deville was negligent turns on the facts and information available to him before the accident. As related above, Pelican regularly moves heavy objects but does not do so often for customers in the cement business. Here, W. E. Deville was dealing with someone he knew had been engaged in the cement business for some time. Thus, it is my belief Deville was reasonable in accepting Chisum's verbal assurance the hopper was empty. Furthermore, the door at the bottom of the hopper was open and no product was coming out. The conclusion, that the hopper was empty was erroneous but in this case Deville had ample and reasonable cause to believe it was true. Under such circumstances, I believe it would be unreasonable to conclude he had a duty to look further. The evidence reflects he had no reason to suspect Chisum was in error and thus was not on any notice this object was likely to be so much heavier than it appeared to be. It is my view the equipment employed on this job was adequate to handle the empty hopper easily.

Mr. Deville had a duty to provide reasonably safe equipment that was adequate to handle the job to...