Marbury v. Louisiana Highway Commission

• Decision Date: 29 March 1934
• Docket Number: 4691
• Citation: 153 So. 590
• Court: Court of Appeal of Louisiana — District of US
• Parties: MARBURY et al. v. LOUISIANA HIGHWAY COMMISSION

153 So. 590

MARBURY et al. v. LOUISIANA HIGHWAY COMMISSION

No. 4691

Court of Appeal of Louisiana, Second Circuit.

March 29, 1934

Rehearing denied May 4, 1934.

Elder &amp Elder, of Ruston, for appellants.

E. R Stoker, of Baton Rouge, and Lewis L. Morgan and A. S. Cain Jr., both of New Orleans, for appellee.

OPINION

TALIAFERRO, Judge.

Plaintiffs have owned since the year 1928 a tract of woodland, containing twelve acres, between one-fourth and one-half of a mile east of the corporate limits of the town of Ruston, La. The tract fronts on the concrete highway (Dixie-Overland) 1,000 feet and on the Farmerville-Ruston gravel highway over 500 feet. It was purchased by plaintiffs with the view of converting it into residential subdivisions to Ruston. They paid $ 400 per acre for it. It was under fence.

In the year 1929 the Louisiana Highway Commission gave Nelson Brothers of Memphis, Tenn., a contract to construct a concrete highway between Ruston and the village of Choudrant, some ten miles east, generally along the route of the pre-existing gravel road between these places. Plaintiffs gave no right of way deed to the commission to any part of their land, but the blueprints and plans delineating the proposed concrete highway clearly disclosed that the 80-foot right of way therefor included a strip of 10 feet in width along the entire front of plaintiffs' property, 1,000 feet.

The workmen and employees of Nelson Brothers, without the permission of plaintiffs, and doubtless because of the plans and specifications under which they were building the road, trespassed upon plaintiffs' land along a large portion of its front, if not the entirety thereof, and cut down thirty-six pine, gum, and oak trees thereon. This suit was instituted to recover damages from the Highway Commission on account of said trespass.

The defense of the commission is that Nelson Brothers, in executing the contract for the building of said highway, was an independent contractor, for whose torts defendant is not responsible.

Plaintiffs' demands were rejected by the lower court, and they prosecute this appeal.

The judge of the court a quo reduced his findings of fact and reasons for judgment to writing. These are in the record. Our study of the case has convinced us that so far as the facts are concerned the lower court's findings are correct, except in one particular which we shall comment on hereafter. Counsel for plaintiffs find no fault therewith, except in the instance referred to. We do not agree with the lower court as to the law applicable to these facts. We quote the following from its reasons for judgment:

"The evidence in the case shows that the Louisiana Highway Commission, the defendant herein, entered into a contract, under date of July 9, 1929, with Nelson Brothers, under and by virtue of which contract said Nelson Brothers agreed and bound themselves to furnish and deliver all materials, and equipment, and do, perform and furnish all labor necessary for the satisfactory completion of that certain highway project known as State Bond project No. 4000, and which is that portion of route No. 4 lying and being between the Town of Ruston and the Town of Choudrant, for a fixed sum of money. All the work, under this contract, was to be done by the contractors in accordance with the plans, specifications and special provisions prepared by the Commission, and, further, it was to be done under the directions of the engineer of the Commission, whose decision as to the true construction and meaning of the plans and specifications was to be final.

"Thus it is readily seen, from a reading of the contract, that the Louisiana Highway Commission did not undertake the completion of this highway project itself and itself furnish all materials, equipment and labor necessary to its completion, but that it contracted the whole thereof to Nelson Brothers, reserving to itself such directory and supervisory powers as were necessary to see that the contractors did the work in strict accordance with the plans and specifications furnished by the Commission.

"Plaintiffs affirmatively allege that the trespass complained of was done by the contractors. The plaintiffs themselves, in their testimony, admit that the trespass and damage resulting therefrom were done by the employees of the contractors. They knew of no instance where any employee of the defendant went upon their property or cut any trees thereon. The fact is well established that the trees were cut by the employees of the contractors.

"Plaintiffs contend that defendant's resident engineer, Mr. K. N. Saubrey, directed and caused the contractors to commit the alleged trespass. It will be noted from the evidence that defendant owned only a sixty-foot right of way at the point where the highway adjoins plaintiffs' property. The plans prepared by defendant and furnished to the contractors show an eighty-foot right of way. Thus, the right of way shown on the plans took in ten feet of plaintiffs' property to which defendant had not acquired title. It is obvious that the contractors, whose duty it was, under the contract, to clear the right of way, undertook to follow the plans and, in doing so, unlawfully entered upon plaintiffs' property and cut their trees to the extent alleged in their petition. But the evidence does not show that defendant, or its resident engineer, Mr. Saubrey, directed or instructed the contractors to go upon plaintiffs' land and cut these trees. Mr. Saubrey testified for defendant, and it is his testimony that he told the contractors not to go beyond the limits of the old right of way, and there is no testimony in the record to contradict him on that point. It is true that he told plaintiff, Mr. Atkinson, that he understood that defendant had obtained a right of way from plaintiffs or he would not have allowed the contractors' employees to go on plaintiffs' land and cut the trees, but that statement does not mean that Mr. Saubrey told them to go on plaintiffs' land and cut their trees, or that defendant is responsible therefor. No such construction can be logically placed upon his testimony.

"Defendant presents the defense and the argument in support thereof that the contractors, Nelson Brothers, whose employees did the damage to plaintiffs' property, were independent contractors, and for whose acts of trespass while performing the contract, defendant is not liable.

"The defense is well founded in the jurisprudence of this State.

"Under the plain terms and provisions of the contract between the Louisiana Highway Commission and Nelson Brothers, interpreted in the light of the holding of the Supreme Court of Louisiana in the case of Beck v. Dubach Lumber Co. et al., 171 La. 423, 131 So. 196, and the authorities therein cited, Nelson Brothers were independent contractors. In that case the Court held that the defendants were not liable for the acts of trespass committed by their independent contractors.

"A similar issue to the one at bar was presented to the Court of Appeal in the case of Alonzo L. Harper v. Police Jury of Bienville Parish, 2 La.App. 21. The facts in that case were that the Louisiana Highway Commission and the Police Jury of Bienville Parish gave Smith a contract to build a gravel road. Smith sub-contracted the work to McDermott. Harper sued the Police Jury and Smith and McDermott for damages for illegally trespassing on his enclosed premises by using the same as a passageway to haul gravel and damaging the same by ruining grass and skinning up fruit trees and making deep ruts on the premises. The court gave plaintiff judgment against the contractors, but rejected his demands as to the Police Jury. The Court of Appeal said:

" "The lower court rejected plaintiff's demand as against the Police Jury, which, we think, was proper. In taking the action it did, as hereinafter mentioned, it acted in its governmental capacity and was not, we think, responsible in damages.'

"Considering all the evidence in the case and the law applicable thereto, the plaintiffs have failed to make out their case, and, accordingly, their demands against defendant, Louisiana Highway Commission, must be rejected. And it is so ordered."

It is well-established law that as a rule the employer is not responsible for the torts and negligence of an independent contractor; but, as with most rules of law, there are exceptions to this rule. One is where the duties of the independent contractor require the handling of dangerous instrumentalities ( Montgomery v. Gulf Ref. Co., 168 La. 73, 74, 121 So. 578); and another is, as in the case before us, where the execution of the contract as written, not the manner and method of executing it, causes injury or damage to another in his personal or property rights. In the present case, the blueprint of the profile of the highway in front of plaintiffs' property, which was the guide to Nelson Brothers, in the execution of the contract with the Highway Commission, clearly disclosed that it included 10 feet of plaintiffs' land along the entire front thereof. It was the duty of the contractor to clear the right of way of the road of all timber or trees. It was in fulfillment of this obligation that the trespass was made on plaintiffs' land. It was caused by a literal following of the contract of which the blueprint was made a part, and which, in its entirety, was prepared by defendant.

The ownership of the land within the 80-foot strip embraced in the highway was of no concern to Nelson Brothers. No duty was imposed on it to secure the right to enter on any part thereof. That duty devolved upon the commission and they had the right to assume, and doubtless did assume, that the commission had secured the right to enter on and clear the 10-foot strip...