Pflieger v. Haws
| Decision Date | 21 December 1964 |
| Docket Number | No. 6218,6218 |
| Citation | 180 So.2d 892 |
| Parties | Charles PFLIEGER v. Albert P. HAWS et al. |
| Court | Court of Appeal of Louisiana — District of US |
Martin, Himel, Morel & Daly, by William J. Daly, of Porteous & Johnson, by Parnell J. Hyland, New Orleans, for appellant.
Mary M. Robinson, Baton Rouge, for Dudley A. Guglielmo, etc.
Leonard Greenburg, Houma, Robert N. Ryan, of Bienvenu & Culver, by J. S. Arceneaux, New Orleans, for intervenor-appellee.
Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.*
For written reasons assigned the trial court rendered judgment in favor of Mrs. Charles Pflieger, widow of Charles Pflieger, and her two minor children, Jefferson Henry Pflieger and Virginia Evelyn Pflieger, against the defendants, Albert P. Haws, Marquette Casualty Company, John's Trucking Service, Inc., and Canal Insurance Company in solido in the full sum of $8,613.99, one-half thereof for the benefit of said widow individually and the remaining half to said widow, as tutrix of, and for the use and benefit of, her aforesaid two minor children, with legal interest from the date of judicial demand until paid and in favor of Security Insurance Company, Intervenor, for the sum of $2,205.84 against Mrs. Charles Pflieger and the minor children to be paid from the aforesaid judgment in their favor, comprising compensation payments and medical expenses made by it to Mrs. Pflieger, payable out of the judgment of $8,613.99. From this judgment all defendants appealed.
In this court all defendants filed exceptions of no right or no cause of action. Plaintiff filed answer to these exceptions.
The suit is one in tort arising out of an accident which occurred on June 5, 1961 in which Charles Pflieger sustained physical injuries. Subsequent to the trial but prior to judgment in the District Court, Mr. Pflieger died and his wife and children were substituted as parties plaintiff.
Plaintiff, Charles Pflieger, a truck driver, employed by Duplantis Truck, Line, Inc., was ordered by his employer to deliver a heavy piece of oil field equipment, known as a 'kelly joint in a rat hole and a kelly bushing', to the Humble Oil Company dock at Point au Chien in Terrebonne Parish. Upon arrival at the dock, the barge on which delivery was to be made had not yet arrived and while waiting, Mr. Pflieger sojourned to a nearby store where he met defendant, Albert P. Haws, who was likewise awaiting the arrival of the barge to deliver a load of 'drill collars', heavy pieces of oil field equipment. Neither of the drivers was accompanied by a helper, referred to in the parlance of the trade of oil field workers as a 'swamper'. Accordingly, it was mutually agreed each would assist the other in unloading their respective trucks. A ramp was provided at the dock landing for loading and unloading barges. This extended from the bayou bank to the barge. The ramp could be raised and lowered by cables supported by two wooden uprights on each side thereof, of an estimated height of ten to twelve feet.
The accident occurred when the drill collars on Haws' truck were being loaded. Haws was operating his truck and winch and Pflieger attached the cable and hook by tying onto the drill collars. The drill collars were then hoisted from the bed of the trailer by Haws manipulating the winch and were maneuvered to clear the uprights so as to lower them onto the barge. Prior to the accident four drill collars, two at a time, had been properly delivered to and positioned on the barge. The parties were engaged in loading two more drill collars when the accident occurred. Pflieger had fastened the cable around the drill collars and Haws had by the use of the cable and winch raised the collars to load same. Pflieger, walking off the ramp, heard what he described as a peculiar noise and, sensing danger, dove to the ground by the bayou bank. The load fell. In consequence, the injuries sued for resulted to plaintiff's left foot.
In this court all defendants have filed identical exceptions of no cause or right of action as follows:
.'
In view of the fact that the above exception was filed in this court and after a complete trial on the merits in the District Court, the exception which is really one of no cause of action would properly be considered not on the petition alone but upon the evidence introduced in the record prior to the filing of this petition.
In the case of Bartholomew v. Impastato, 12 So.2d 700, the Orleans Court of Appeal with Judge, now Justice, McCaleb as the organ of the court stated:
Again, in Rheuark v. Terminal Mud & Chemical Co., 213 La. 732, 35 So.2d 592, the Supreme Court of Louisiana held that 'Testimony is not admissible to show no cause of action, but if it is introduced without objection, it has effect of enlarging the pleadings and may be considered as through written in the petition.'
Again, in Janvier & Co. v. Fritz, 180 So. 172, Orleans, now Fourth Circuit Court of Appeal, followed the rule when it held that an exception of no cause and of no right of action, which was filed in appellate court after record had been made up, would be considered in connection with allegations and proof in record, as distinguished from similar exception filed in limine which is addressed to allegations of petition alone.
In the case of Roy O. Martin Lumber Co. v. Saint Denis Securities Co., 225 La. 51, 72 So.2d 257, the Supreme Court of Louisiana, in considering a complaint of counsel for the plaintiff that the trial judge was without authority to consider, on the hearing of the exception of no right of action, evidence showing that Jones was without power to offer to sell the real property belonging to defendant corporation for the reason that the question of Jones' authority, or his lack of it, was a matter for the merits of the case, held:
'This contention is without merit because (1) the evidence, which was received at the hearing of the exception without objection, had the effect of enlarging the pleadings, Rheuark v. Terminal Mud & Chemical Co., 213 La. 732, 35 So.2d 592, compare Duplain v. Wiltz, La.App., 174 So. 652, * * *.'
In view of the fact that it would be necessary to consider the entire record in this case, we will not consider or decide the case on an exception of no cause or right of action. A decision on the merits would dispose also of the exception.
Without question, the evidence tendered on the trial of the case conclusively shows Pflieger at the time he was injured must be categorized as an employee pro hac vice of John's Trucking Service, Inc., and recovery for his injuries sustained is exclusively restricted to relief under the Workmen's Compensation Act of Louisiana, LSA-R.S. 23:1032; Spanja v. Thibodaux Boiler Works, La.App., 2 So.2d 668; Dixon v. Herrin Transportation Co., La.App., 81 So.2d 159.
At the time plaintiff was injured he was engaged in an act unloading a truck belonging to John's Trucking Service and was in no way performing any duty connected with his employer.
In Dixon v. Herrin Transportation Company, La.App., 81 So.2d 159, at page 164, the Court said:
'In the Spanja v. Thibodaux Boiler Works, Inc., case, supra, the opinion clearly distinguishes the applicable principle from that which was asserted by the Supreme Court in Rooney v. Overseas Ry., Inc. (173 La. 183, 136 So. 486), supra, on the ground that Spanja, in pursuit of the activity in which he was engaged at the time of the accident, was not performing any work which was connected with the responsibility of his employer, The Texas Company, but was assisting with a job which was exclusively an undertaking of Thibodaux Boiler Works, Inc. Under these circumstances the court held that Spanja had become an employee, pro hac vice, of the Thibodaux Boiler Works, Inc., and as a result the fellow servant doctrine applied. The distinction from the holding in Rooney v. Overseas Ry., Inc., supra, is obvious for in that case the employee, Rooney, had simply undertaken a job which was clearly in the scope of the business of his employer and was in no sense or circumstance connected with the work of the Overseas Ry.
'Similarly, in Speed v. Page (59 So.2d 138), supra, the holding of this court, as...
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