Lussan v. Grain Dealers Mutual Insurance Company, 18234.

• Decision Date: 17 June 1960
• Docket Number: No. 18234.,18234.
• Citation: 280 F.2d 491
• Parties: Eugene J. LUSSAN, Appellant, v. GRAIN DEALERS MUTUAL INSURANCE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

280 F.2d 491 (1960)

Eugene J. LUSSAN, Appellant, v. GRAIN DEALERS MUTUAL INSURANCE COMPANY, Appellee.

No. 18234.

United States Court of Appeals Fifth Circuit.

June 17, 1960.

John B. Hattier, New Orleans, La., for appellant.

John P. Hammond, New Orleans, La., Montgomery, Barnett, Brown & Read, New Orleans, La., of counsel, for appellee.

Before RIVES, Chief Judge, and CAMERON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This case presents the question whether an action which a human being would normally take may be considered by a jury to be that which the law's ordinary prudent person would have taken under such circumstances.

What brings this all about was a wasp — or a bee — it really doesn't matter for bees and wasps are both of the order hymenoptera, and while a wasp, unlike the bee, is predacious in habit, both sting human beings, or humans fear they will. The wasp did not intrude upon a pastoral scene or disturb the tranquillity of nature's order. What this wasp did — perhaps innocently while wafted by convection or the force of unnatural currents generated by the ceaseless motion of man's nearby machines — was to find itself an unwelcome passenger in an automobile then moving toward, of all places, Elysian Fields — not on the banks of Oceanus, but a major thoroughfare in the City of New Orleans on the Mississippi.

With the wasp was the defendant — owner and driver of the vehicle. Two others were with him in the front seat as his mobile guests. The wasp flew in — or his presence was suddenly discovered. Like thousands of others confronted with the imminent fear of a sting by such air-borne agents, the defendant driver swatted at the wasp. Whether he hit the wasp, no one knows. But momentarily the defendant driver apparently thought this menace had flown his coupe. The wasp, however, was not yet through. One of the passengers suddenly looked down and hollered out "watch out, it's still alive." Instinctively the defendant driver looked down at the floorboard and simultaneously made a sweeping swat at the wasp or where the wasp was thought to be. The wasp with all his capacity for harm scarcely could have thought itself so powerful. For without ever stinging anyone, or perhaps for that matter even being there at all, this anonymous bug brought substantial damage to one of the guests. Unconscious probably that it had set in motion the law's but-for chain reaction of causation, the wasp was the blame in fact. For when the driver by involuntary reflex took the swat, he lurched just enough to pull the steering wheel over to crash the moving car into a vehicle parked at the curb.

The traditional twelve good men performing their function in the jury system by which men drawn from all walks of life pass upon behavior of their fellow men, heard these uncontradicted facts. Instructed by the judge in a clear fashion on the law of due care in a charge to which no exception was taken, the jury in nine minutes returned a verdict for the driver. The plaintiff, appellant here, injured...