Rossville Commercial Alcohol Corp. v. Dennis Sheen Transfer Co., Inc.

• Decision Date: 30 November 1931
• Docket Number: 13,898
• Citation: 18 La.App. 725,138 So. 183
• Court: Court of Appeal of Louisiana — District of US
• Parties: ROSSVILLE COMMERCIAL ALCOHOL CORP. v. DENNIS SHEEN TRANSFER CO., INC., ET AL

138 So. 183

18 La.App. 725

ROSSVILLE COMMERCIAL ALCOHOL CORP. v. DENNIS SHEEN TRANSFER CO., INC., ET AL

No. 13,898

Court of Appeals of Louisiana, Orleans

November 30, 1931

Rehearing Refused January 11, 1932.

Writs of Certiorari and Review Refused by Supreme Court February 29, 1932.

Appeal from the Civil District Court, Parish of Orleans, Division "A". Hon. Hugh C. Cage, Judge.

Action by Rossville Commercial Alcohol Corporation against the Dennis Sheen Transfer Company, Inc., et al.

There was judgment dismissing the suit, and plaintiff appealed.

Judgment reversed and remanded.

Judgment reversed and case remanded.

Brian &amp Brian, of New Orleans, attorneys for plaintiff, appellant.

Milner & Porteous and F. Carter Johnson, Jr., of New Orleans attorneys for defendants, appellees.

OPINION

JANVIER, J.

Plaintiff, an alcohol manufacturing company, appeals from a judgment dismissing, on exception of no cause of action, its suit to recover from defendant, a trucking and draying corporation, and from defendant's insurers, payment for the damage caused when an overhead pipe line of plaintiff was struck by a large iron boiler, which was being transported on a truck of defendant drayage corporation. The original petition alleges that the pipe line in question had been erected some seventeen years prior to the accident; that it extended from plaintiff's manufacturing establishment across a public highway at an elevation of twelve and one-half feet above the roadway; that a large sign was placed nearby to warn persons using the highway to be on the lookout for the pipe line; that the boiler, which was being transported on the said truck, extended some thirteen or fourteen feet into the air, and that the proximate cause of the damage to the said pipe line was the carelessness of the driver of the said truck in not noticing either the said pipe line itself or the warning sign referred to.

In the petition, however, is found no allegation to the effect that, at the time of the erection of the pipe line, permission had been secured from the "proper authority," as required by Revised Statutes, sec. 916, nor does there appear an averment to the effect that a permit has since been obtained from the board of state engineers, as is required by the terms of Act No. 185 of 1928. The pertinent portion of the act of 1928 reads as follows:

"Whoever shall make, on the bank of any river or navigable stream of this State, any work tending to alter the course of the water or increase its rapidity, or make its navigation more difficult; or who shall make on the river bank, or on any highway or bridge, or in other place of public use, without the permission of the Board of State Engineers, any work tending to hinder and embarrass such public use, shall, upon conviction, be compelled to pay the sum of one hundred dollars for each offense; and the court shall further order the nuisance to be removed at the expense of the party convicted."

Except for two changes, that act is identical with the earlier law, Revised Statutes, sec. 916. These two changes are as follows:

In the earlier law it is required that permission be obtained before the erection of any work which tends to hinder or embarrass the public use of the road, whereas, in the act of 1928 the word "and" is used instead of the word "or" between the word "hinder" and the word "embarrass." The other change is that, in the earlier enactment, the permission was required to be obtained from "the proper authority," whereas, in the later act, it is required that the permission be obtained from the "Board of State Engineers."

Defendants contend that it is apparent from the petition itself that the said structure is, to some extent, a hindrance and an embarrassment to the public in the free use of the highway; that the petition fails to disclose that the necessary permission for the construction and maintenance of the line has ever been obtained, and defendants also maintain that the erection and continued existence of the said pipe line is violative of Act No. 240 of 1914, which amends section 3379 of the Revised Statutes so as to read as follows:

"Be it enacted by the General Assembly of the State of Louisiana, that Section 3379 of the Revised Statutes of the State of Louisiana be amended and re-enacted to read as follows:--

"Article 3379:--If any person shall erect or cause to be erected any bars across any public roads, or lay any timber thereon or obstruct in any manner the free passage thereof he shall be deemed guilty of a misdemeanor and upon conviction shall be subject to a fine of not more than One Hundred ($ 100.00) Dollars, or imprisonment not more than ninety days, or both in the discretion of the court, and he shall further forfeit and pay the sum of Fifty Dollars to be recovered by any person suing for the same and to the use and benefit of the person so suing."

It is argued that thus the petition itself discloses a violation by petitioner of tho state statutes, which violation, it is alleged, constitutes negligence per se, and prevents recovery, regardless of the fault of the driver of the truck; in other words, that the petition shows contributory negligence, i. e., the violation of the statutes, and that this contributory negligence bars recovery.

The drayage company's insurer, also made defendant, excepts on the additional ground that no right of action exists in plaintiff to maintain a direct action against it, the insurer. Plaintiff counters with the charge that, not only do the laws of this state create a right of action directly against the insurer, but that, after the accident, the representatives of the insurer agreed to accept liability for the damage, and instructed plaintiff to have the repair work done and to send the bills therefor to the insurer.

We shall first consider and discuss the question of whether or not the petition alleges facts sufficient to warrant the holding that the failure to obtain the permit referred to bars recovery in any event, and whether or not Act No. 240 of 1914 makes such a pipe line unlawful, regardless of whether or not a permit was secured.

We believe it unnecessary to determine whether, in enacting the statute of 1928, the legislators intended to require that owners of already existing structures should obtain permits for the continued maintenance and use thereof, and we do not deem it necessary to settle the question of whether or not the existence of the structure for seventeen years raises a presumption that permission for its erection and for its continued existence had previously been obtained, because we have reached the conclusion that, even if either, or both, of the said statutes were violated in that no permit was obtained either from the "proper authority," as required by the first act, when the structure was erected, or from the board of state engineers, as required by the second statute, that failure had no causal connection with the accident--was not the proximate cause thereof--and therefore would not deprive plaintiff of its right to recover, if that right is otherwise shown to exist.

It is not every wrongful act of a plaintiff which constitutes such contributory negligence as will bar recovery. Only those acts without the occurrence of which the accident would not have taken place are, in the eyes of the law, to be taken into consideration. It may be true that it is negligence per se to violate a law, but, unless the violation results proximately in causing damage, no liability results merely because of the violation.

"* * * The modern rule is that, while the violation of a statute is negligence, yet to entitle the plaintiff seeking to recover damages for an injury sustained, he must show a causal connection between the injury received and the disregard of the statutory prohibition or mandate--that the injury was the proximate result." Ruling Case Law, vol. 22, sec. 91, p. 206, verbo Proximate Cause.

To operate an automobile without a driver's license is wrongful, and, technically, is negligence per se, but, if the evidence shows that the automobile was properly operated, liability does not result solely because of the technical violation. In many municipalities it is prohibited by ordinance for trains to block street crossings for more than a prescribed time, but, if train operatives violate such an ordinance and block a crossing longer than is permitted, an automobile driver who runs into the train will, nevertheless, be liable for the resulting damage.

In Michel Bros., Inc., v. Chas. Mallynn, 3 La.App. 69, it was held that there was no causal connection between the wrongful act of another driver in running into a parked car and the fact that the parked car had stopped on the wrong side of the road in violation of law. See, also, Roby v. Peter Graham, Inc., 3 La.App. 521.

In Bellocq v. De Soto Hotel Company, No. 8567 Orleans Appeal, unreported [see Louisiana and Southern Digest], we find a case in which a mechanic working on an automobile in a city street was struck by a window screen which fell from one of the windows of the De Soto Hotel. A city ordinance prohibited making repairs to automobiles in city streets. The court held that there was no causal connection between the violation of the ordinance and the ultimate damage. To the same effect see Central Glass Company v. Heiderich, 6 Orleans App. 336; Stout v. Lewis, 11 La.App. 503, 123 So. 346.

It cannot reasonably be argued that the "proper authority," whether it was the police jury or the board of engineers, would not have given the permit, had it been requested, because the continued existence of the structure for seventeen years, without protest and without other accident, is conclusive proof of the fact that the elevation was...