Marshall v. Beno Truck Equipment, Inc.

• Decision Date: 25 June 1985
• Docket Number: No. 84,84
• Citation: Marshall v. Beno Truck Equipment, Inc., 481 So.2d 1022 (La. App. 1985)
• Parties: Milton MARSHALL v. BENO TRUCK EQUIPMENT, INC., et al. CA 0578.
• Court: Court of Appeal of Louisiana

Page 1022

481 So.2d 1022

Milton MARSHALL v. BENO TRUCK EQUIPMENT, INC., et al.

No. 84 CA 0578.

Court of Appeal of Louisiana First Circuit.

June 25, 1985.

On Rehearing Dec. 11, 1985.

Per Curiam Jan. 15, 1986.

Dan C. Garner and John G. Munoz, New Orleans, for plaintiff-appellee Milton Marshall.

James W. Hailey and Andrew L. Hemlin, Metairie, for intervenor-appellee Maryland Cas. Ins. Co.

Stanley Loeb, New Orleans, for third party defendant-appellee Maryland Cas. Ins. Co.

Donald R. Smith, Baton Rouge, for defendant-appellee Beno Truck Equipment, Inc., Beno Crane Rental, Inc.

Dean A. Sutherland, New Orleans, for defendant-appellant Hartford Acc. Indem. Co. and Heil Co.

Lucas Giordano, New Orleans, for defendant-appellee Southern American.

John S. White, Jr., Baton Rouge, for defendant-appellee Leasing Service, Inc.

Edwin W. Fleshman, Baton Rouge, for defendant-appellee The Travelers Ins. Co. and its' insured Beno Truck Equipment Inc.

William A. Norfolk, Baton Rouge, for defendant-appellee Beno Truck Equipment Inc.

Before COLE, CARTER and LANIER, JJ.

CARTER, Judge.

This matter comes before us on an appeal taken by defendants, The Heil Company (Heil) and Hartford Accident & Indemnity Company (Hartford), Heil's liability insurer, from a jury verdict finding defendants solely liable for damages suffered by plaintiff, Milton Marshall, as a result of a work-related accident.

FACTS

On August 31, 1978, the date of the accident, Marshall was employed by Thomas Heard Construction Company as a mechanic. Plaintiff was twenty-two years old at the time, had a ninth grade education, and had eight years of experience as a mechanic.

The day before the accident, a dump truck belonging to Thomas Heard Construction Company became bogged in a muddy construction site on Airline Highway near State Police Troop A. In the process of freeing the bogged truck, the truck's differential gear, which is located on the rear axle of the truck, broke. Plaintiff arrived at the scene the next day to repair the truck. At the time, the "dump bed" was in a raised position. Plaintiff removed the differential gear from the truck, brought it back to the shop for repair, and then returned to the construction site with the repaired gear.

Plaintiff placed the differential gear in its proper position on the rear axle with the help of R.T. Turner, a co-worker. Plaintiff positioned himself so that he was sitting on a cross-bar of the chassis underneath the raised dump bed with his back toward the cab of the truck and his knees supporting the differential gear in place. Turner walked away from the truck as plaintiff was finishing the repair job. Plaintiff was bent over the differential gear bolting it to the axle when he suddenly felt pressure on his shoulders. Pinned between the dump bed and the rear axle, plaintiff was crushed as the dump bed continued to lower itself. Turner, hearing the commotion, ran back to the truck, jumped into the cab, and activated a mechanism to raise the dump bed. The engine of the truck was not running at any point during this incident.

As a result of this accident, plaintiff suffered severe and permanent injuries, requiring four extended hospital stays and three surgeries.

On August 29, 1979, plaintiff filed suit in the Nineteenth Judicial District Court against Beno Truck Equipment, Inc. (Beno Truck), Beno's Crane Rental, Inc., and Leasing Services, Inc. All of these defendants are Louisiana corporations. On August 31, 1979, plaintiff filed suit on this same cause of action in the U.S. District Court for the Eastern District of Louisiana against Heil, Peabody-Gallion Corporation, and Garwood Company, foreign corporations or foreign business entities.

Heil was served with the federal suit through the Louisiana Secretary of State on September 6, 1979. Heil was added as a party defendant in the state court action on September 30, 1980. Other defendants were named in the state court action subsequent to the petition being filed, and various third-party demands were made by the litigants. By way of voluntary dismissals and directed verdicts, all defendants except Beno Truck, Heil, and Hartford, were dismissed from the state suit.

Heil filed a motion to dismiss the federal suit on jurisdictional grounds. Plaintiff, through his attorney, subsequently filed a "Motion for Voluntary Dismissal" in the federal court action. On November 25, 1981, plaintiff's motion was granted, and the federal suit was dismissed.

The state court action proceeded to trial. The jury reached the conclusion that Beno Truck was not at fault, that plaintiff was not contributorily negligent, and that Heil was solely liable for plaintiff's injuries. A formal judgment on that verdict was signed on November 4, 1983. From that judgment, Heil and Hartford appeal, assigning the following specifications of error: ¹

1. Permitting the jury to consider the financial condition of defendant, Beno Truck, was prejudicial reversible error.

2. The jury's finding that Beno Truck was not at fault was manifestly erroneous.

3. The trial judge erred in permitting questions on the subject of "recall."

4. The trial judge erred in permitting testimony and evidence concerning standards which did not apply to dump trucks and were mentioned for the first time during trial.

5. The jury's finding that Heil was at fault was manifestly erroneous.

6. The jury's finding that Marshall was not contributorily negligent was manifestly erroneous.

7. The jury's award of $1,150,000.00 in damages was excessive and constituted an abuse of the jury's discretion.

8. The trial judge erred in denying the Heil's exception of prescription.

SPECIFICATION OF ERROR NO. 1

The "inability to pay" rule in Louisiana allowing a defendant to assert evidence of his impecunious condition at the time of trial was one of longstanding. Williams v. McManus, 38 La.Ann. 161 (1886); Loyacano v. Jurgens, 50 La.Ann. 441, 23 So. 717 (1898). In the past, it was proper to consider the defendant's inability to pay a judgment in assessing damages. Guy v. Tonglet, 379 So.2d 744 (La.1980); Daly v. Kiel, 106 La. 170, 30 So. 254 (1901); Tarver v. U-Haul Company, Inc., 362 So.2d 1157 (La.App. 2nd Cir.1978).

However, the Louisiana Supreme Court declared the "inability to pay" rule is no longer applicable in Louisiana Courts in the recent case of Rodriguez v. Traylor, 468 So.2d 1186 (La.1985). In reversing nearly one hundred years of jurisprudence, the Court stated:

The inability to pay rule originated in Williams v. McManus, 38 La.Ann. 161 (1886) and Loyacanno v. Jurgens, , 23 So. 717 (1898) and has been applied by Louisiana courts ever since. The rationale for this jurisprudentially created rule is found in Cole v. Sherill, 7 So.2d 205 (La.App. 2d Cir.1942):

It has never been good policy to bankrupt one to pay another even though the award granted is not in line with other cases involving the same injuries and might not fully compensate the plaintiff for injuries he received. Fair justice between both parties must be arrived at. (7 So.2d at 211).

While the inability to pay rule has been applied by the courts of this state, it has not gone unquestioned. In Davis v. Moore, 353 So.2d 740 (La.App. 4th Cir.1978), in concurring opinions by Judge, now Associate Justice Lemmon of this Court and Judge Boutall, termination of the inability to pay rule was advocated. Moreover, in Daniels v. Conn, 382 So.2d 945 (La.1980) this court restricted the use of inability to pay rule by preventing its application to joint tortfeasors where one joint tortfeasor was solvent. While Louisiana has begun to restrict the inability to pay doctrine, other jurisdictions have never sanctioned its use. In Laidlaw v. Sage, 158 N.Y. 73, 52 N.E. 679 (App.Div.1899), the court stated:

It has ever been the theory of our government, and a cardinal principal of our jurisprudence, that the rich and poor stand alike in courts of justice, and neither the wealth of one nor the poverty of the other shall be permitted to affect the administration of the law.

See also Chilvers v. New York Magazine Company, 114 Misc.2d 996, 453 N.Y.S.2d 153 (1982); Taulborg v. Andresen, 119 Neb. 273, 228 N.W. 528 (1930); Singles v. Union Pacific Railroad Company, 174 Neb. 816, 119 N.W.2d 680 (1963); Lutz Industries v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333 (1955); Watson v. White, 309 N.C. 498, 308 S.E.2d 268 (1983); Story v. Green, 164 Cal. 768, 130 P. 870 (1913); Allard v. La. Plain, 125 Me. 44, 130 A. 737 (1925); Jones & Adams v. George, 227 Ill. 64, 81 N.E. 4 (1907). While we are hesitant to overrule a longstanding jurisprudential rule after careful consideration, we feel that the wealth or poverty of a party to a lawsuit is not a proper consideration in the determination of compensatory damages. Each litigant should stand equal in the eyes of the law regardless of his financial standing. When the inability to pay rule originated in this State there were no bankruptcy laws in effect and a defendant was subject to losing virtually everything he owned. While the policy behind the inability to pay rule, to prevent the bankruptcy of a defendant, is still a valid concern, with todays modern bankruptcy courts and extensive protections to defendants by virtue of the bankruptcy laws, we feel that this is a more proper consideration for bankruptcy courts and experienced bankruptcy judges rather than an jury which has no expertise in the modern day protections for those who are forced to declare bankruptcy. See La.R.S. 13:3881. We therefore conclude that the trial court should not have permitted the jury to hear evidence of the defendant's inability to pay.

In the case sub judice, Beno Truck was allowed, over objection, to introduce evidence of its financial condition and its liability insurance policy with limits of $100,000.00. Al Cortelloni, President of Beno Truck, testified that he had almost sold Beno Truck for $800,000.00 recently, but that with the debts...