Phoenix Indemnity Co. v. Givens

• Decision Date: 24 March 1959
• Docket Number: No. 17403.,17403.
• Citation: 263 F.2d 858
• Parties: PHOENIX INDEMNITY CO. and Joseph Jurisich Marine Service, Inc., Appellants, v. Marcus L. GIVENS, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

263 F.2d 858 (1959)

PHOENIX INDEMNITY CO. and Joseph Jurisich Marine Service, Inc., Appellants, v. Marcus L. GIVENS, Appellee.

No. 17403.

United States Court of Appeals Fifth Circuit.

February 12, 1959.

Rehearing Denied March 24, 1959.

Richard B. Montgomery, Jr., Henry O'Connor, Peter H. Beer, New Orleans, La., for appellants.

David R. Normann, Normann & Normann, New Orleans, La., for appellee.

Before HUTCHESON, Chief Judge, and CAMERON and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

Marcus Givens worked with his hands. He farmed, logged, and finally succeeded in getting a job as a roustabout in the Venice oil field near the mouth of the Mississippi River. He cannot read or write. Tuesday, April 26, 1955, was to have been an eventful day for him. That Tuesday he was to advance from roustabout to wireline helper and to exchange the insecurity of working in an oil field labor pool for the relative security of regular employment with the California Company.

Thursday afternoon, April 21, 1955, Givens was paid off in Buras, a small town near Venice, Louisiana. He set off in his car for his home in Monticello, Mississippi. The highway between Buras and Empire is a two-lane road eighteen feet wide. At 7:45 p.m., near Empire, travelling south toward Buras, was a tractor-trailer owned by Folse Drayage Company and operated by one of its employees. The trailer was hauling a Link Belt dragline owned by Jurisich Marine Service, Inc. Joseph Meadows, an employee of Jurisich's and a dragline operator, had helped load the dragline on the trailer. He followed in his car to help unload. A dragline is a tall steel crane, sixty feet high (or long, when the boom is lowered), carrying heavy steel lines for dragging, mounted on a cab, the cab in turn mounted on a crawler or tractor. This dragline weighed between 50,000 and 55,000 pounds. It was loaded cross-wise. The tracks of the crawler section (thirteen feet, four inches wide) extended two feet seven inches beyond each side of the trailer platform.

The window on the driver's side of Givens' car was open. He rested his elbow on the window ledge and his hand on the top of the window. Night had settled on the road. There were no lights on the dragline. At a curve in the road Givens passed a police car, then the truck section of the tractor-trailer. Suddenly, before he could swerve to avoid the protruding dragline, the tracks of the crawler scraped across the front of his car, caught his forearm, and tore off his arm above the elbow. The severed arm fell on the road.

Givens sued Folse and its insurer (Highway Insurance Underwriters) and Jurisich and its insurer (Phoenix Indemnity Company). He recovered a verdict of $80,000 against Folse and Jurisich and their insurers. Folse and its insurer did not appeal. Jurisich and Phoenix appealed, contending that the trial court erred: (1) in failing to sustain their motion for a directed verdict and for a judgment notwithstanding the verdict; (2) in not granting a new trial on the ground that the jury's award was excessive; (3) in allowing certain evidence to be introduced. We affirm.

I.

A. Folse Drayage owned and operated tractor-trailers used in its business of hauling equipment, particularly oil field equipment. The day before the accident Jurisich arranged by telephone for Folse to haul two draglines from a job location near Belle Chasse to Buras. Folse agreed to furnish a tractor-trailer and a driver to haul the equipment, Jurisich to pay $15 an hour for the truck and driver.

Folse Drayage has a certificate as a "common carrier of special commodities over irregular routes", issued by the Louisiana Public Service Commission. Folse applied to the Louisiana Department of Public Safety, Division of State Police for, and was granted, a permit to move "overlength, overwidth" draglines. The permit was granted for "daylight hours only", "red flags to be displayed on load". The permit described the overall length as sixty feet, with the front end overhang as twenty feet, the maximum overwidth two feet (an understatement by seven inches) and a gross weight of 64,000 pounds (an understatement by about 20,000 pounds).

The day of the accident Reed Roberson, a negro, drove the tractor-trailer to the location of the draglines. When he arrived, he met Meadows, the white dragline operator for Jurisich. The first dragline was delivered successfully. By the time the second was loaded, it was late enough in the day for both Roberson and Meadows to know that it would have to be hauled at night.

The record shows that Meadows assumed responsibility for the loading. Skids are used to enable a dragline to crawl onto the trailer. Meadows determined where the skids would be placed. Whether the dragline would be loaded crosswise or lengthwise was dependent on the placement of the skids. Joseph Jurisich testified that he gave "instructions" to Meadows "to load the machines * * * to track them on up on the trailer". He testified also that Meadows was to unload them * * * and to follow the dragline down the highway". Jurisich testified that, "it is customary in his business operations and in the movement of a dragline such as this that his operator loads it on the truck."

Folse testified that "normally and customarily when he would rent this equipment to Mr. Jurisich for movement of draglines, the "crane operator", Meadows determines which way the dragline should be loaded on the crane". Roberson testified that the tractor-trailer had been converted so as to permit the loading of a dragline lengthwise. He put the skids where Mr. Meadows told him to put the skids. "After he told me to load from the side that's the onliest way I put them." Considering the custom between the parties of handling of equipment and the relationship between the negro truck driver and the white dragline operator there is no doubt in our minds that Meadows participated in the loading and assumed such control that he and his employer must be held responsible for the negligent loading, to the extent it caused the accident.

His responsibility did not come to an end when the truck started to roll. As Jurisich testified, he instructed his dragline operator to follow the loaded trailer and "take the proper precautions to remedy danger * * * even to unload the dragline if necessary". Meadows acknowledged that "it was too late and it was too dangerous for him to proceed" and he claims that he warned Roberson and told him to stop. Roberson contradicted such statements and denied that Meadows told him anything between the time he left Belle Chasse and the scene of the accident. Roberson stuck firmly to his statement: "I have to take orders" from the man "I'm moving the equipment for".

B. Appellant argues strongly that Folse, as a common carrier and independent contractor legally could not relinquish responsibility for safe loading and carriage. We view this argument as immaterial to the liability of Jurisich for the negligent acts of its employees. Folse is liable for the acts of Roberson. So too is Jurisich for the independent though concurrent negligence of Meadows. As the record shows, and as the jury must have believed, Meadows was in control of the loading and movement of the draglines. We cannot allow a fine-spun theory to deny the existence of a fact evident almost beyond dispute.

Appellant relies heavily on Fontenot v. National Transfer Co., La.App., 1 Cir., 1957, 99 So.2d 795, 796, for authority that Jurisich by law could not be responsible. All that Fontenot held, however, was that on the facts of that case the transfer company had "complete control of loading, hauling and unloading".¹ That is not this case. Control is a question of fact. Jackson v. Blue, 4 Cir., 1945, 152 F.2d 67. On the facts, Meadows, acting for his employer and on instructions of his employer, told Roberson how to load the dragline and had sufficient control to have instructed Roberson not to move the dragline until there was light enough to diminish the danger of accident.

C. Appellant argues that assuming that Meadows was negligent in some degree in loading the draglines, such negligence was not the proximate cause of the accident; the proximate cause was the intervening act of Roberson in driving at night.

The appellant confuses proximate cause with sole cause. The fact that some other cause (driving the trailer at night) concurred with Meadows' negligence (in loading the draglines) does not relieve Meadows' employer. There may be two or more coexisting and cooperating forces, each a proximate cause. Morgan Hill Paving Co. v. Fonville, 1928, 218 Ala. 566, 119 So. 610, 622.

As we view this case, Meadows' participation in the loading and movement did not stop at the moment the truck was loaded. He was guilty of continuing negligence from the time he loaded the dragline onto the trailer until the time of the accident. It was within his power, and it was his duty to order Roberson not to move the dangerously loaded trailer when he knew that it could not be delivered during daylight hours. He failed to halt the trip when darkness arrived. At Port Sulphur, after dark, the protruding dragline scraped an automobile passing...