Simmons v. Travelers Ins. Co.

• Decision Date: 17 April 1974
• Docket Number: No. 4496,4496
• Citation: 295 So.2d 550
• Parties: Jack C. SIMMONS, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 550

295 So.2d 550

Jack C. SIMMONS, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellants.

No. 4496.

Court of Appeal of Louisiana, Third Circuit.

April 17, 1974.

Rehearings Denied June 26, 1974.

Writs Refused Sept. 13, 1974.

Brame, Bergstedt & Brame, by John E. Bergstedt, Lake Charles, for defendant-appellant, Mississippi Valley.

Holt & Woodley, by Edmund E. Woodley, Lake Charles, for defendant-appellant, Travelers Ins. Co.

Francis E. Mire, Lake Charles, for plaintiff-appellee.

Plauche, Smith & Hebert, Allen L. Smith, Jr. Lake Charles, for defendant-appellee.

Larry A. Roach, Lake Charles, for defendant-appellee.

Irwin Hancock, in pro. per.

Before FRUGE , CULPEPPER AND DOMENGEAUX, JJ.

FRUGE , Judge.

This is an action seeking damages for personal injuries. Plaintiff, Jack C. Simmons, sustained injuries while employed as an ironworker by Nat Harrison Associates, Inc., during construction of a calcine coke storage facility under a general contract with the Lake Charles Harbor and Terminal District. Multiple defendants were joined, numerous pleadings filed, and preliminary rulings entered in advance of trial on the merits.

A jury trial was held and defendants, Randolph M. Foster, his insurer, Travelers Insurance Company, and Mississippi Valley Structural Steel Company, were found negligent and liable, in solido, to plaintiff in the amount of $132,500. Appeals were perfected by these defendants. After a careful review of the record, we amend the judgment of the trial court and affirm.

Suit was initially brought against several parties, some of whom were alleged to occupy executive officer status in Nat Harrison Associaties, Inc. (subsequently referred to as 'Associates'). For purposes of this appeal, the issue of executive office liability is raised only in regard to irvin B. Hancock and Randolph M. Foster. The jury found only the latter liable for plaintiff's injuries, as an executive officer of Associates.

Defendants-appellants, Randolph M. Foster and his insurer, Travelers Insurance Company (hereinafter referred to as 'Travelers'), asserted, on appeal, that the trial court erred in overruling the exceptions of lack of jurisdiction, filed on behalf of Irvin B. Hancock and Randolph M. Foster, and in refusing to grant the exception of prescription filed by Randolph M. Foster.

In regard to the jurisdictional issue, we conclude the following. Although Messrs. Foster and Hancock were present in this state in a representative capacity on behalf of Associates, the long-arm statute, LSA-R.S. 13:3201, conferred jurisdiction over the person of both of these parties, and subjected them to the authority of the trial court. Section (c) of this statute provides personal jurisdiction over a non-resident as to a cause of action arising from the non-resident's '. . . causing injury or damage by an offense or quasi offense committed through an act or omission in this state;.'

In regard to Section (c), the following was said in the case of Jones v. Davis, 233 So.2d 310, 319 (La.App. 2nd Cir., 1970), writ refused 256 La. 80, 235 So.2d 101:

'Under the rule announced in the McGee case (McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223), it seems clear that the commission of a tort through an act or omission in the state would be a sufficient minimum contact to provide a basis for personal jurisdiction over a non-resident tort-feasor. Although this question has not, to our knowledge, been determined by the United States Supreme Court, it has been adjudicated by other courts.' (Citations omitted.)

It was also stated:

'. . . the provisions of the Louisiana statute granting the courts jurisdiction over a non-resident on a cause of action based on the commission of an offense, or quasi offense, through an act or omission in Louisiana is a valid exercise of power and does not violate the requirements of due process.'

See also Carey v. Daunis, 274 So.2d 447, 448 (La.App. 4th Cir., 1973), wherein the Jones case, supra, was cited with approval.

In regard to the issue of prescription, the following facts are relevant. Suit was filed March 31, 1971, and Travelers was made defendant as general liability insurer of the alleged executive officers of Associates. On June 5, 1972, Mr. Foster was added as an additional defendant by an amending and supplemental petition. Since approximately one and one-half years had passed subsequent to the accident, Mr. Foster raised the exception of prescription as a bar to plaintiff's cause of action against him personally.

We believe, as did the trial court, that this exception is not well founded in law. As determined in the recent case of Pearson v. Hartford Accident & Indemnity Company, 281 So.2d 724 (La.1973), where a solidary obligation exists, as in the case of an insured and his liability insurer, a timely suit filed against either of these solidary obligors interrupts prescription as to both of them. La.Civil Code art. 2097. Therefore, the timely suit against Travelers interrupted prescription against its insured, Mr. Foster.

Defendants-appellants, Mr. Foster and Travelers, appealed the jury's determination of his negligence and liability founded upon breach of an alleged duty owed the plaintiff. Mississippi Valley Structural Steel Company likewise appealed the jury's determination of negligence and liability on their part.

Plaintiff-appellee answered the appeal, and asserted negligence and liability on the part of Mr. Hancock and prayed for an increase in the amount of damages awarded. Travelers, as workmen's compensation insurer of Associates, appealed and asked for an alteration in the trial court's judgment to permit it recovery for medical expense payments made subsequent to the trial of this matter.

In regard to the paramount issue of liability on the part of Messrs. Foster and Hancock, and Mississippi Valley Structural Steel Company, we are called upon to consider the propriety of the jury's determination. We must consider whether there is evidence of record which, if reasonably evaluated, would sustain the jury's verdict.

The facts surrounding the accident are: On the aforementioned date, the plaintiff was one of several ironworkers constructing an inverted cone hopper inside a concrete silo, which would upon completion allow calcine coke to dump onto a conveyor belt at the bottom of the silo. During the initial construction stages of the cone, a compression ring or ring girder was erected on a concrete ledge, at the very top of the silo. However, the four-piece compression ring in the silo where the accident occurred did not fit the dimensions of the concrete ledge and it had to be pulled into shape and braces welded to hold it in place. As a result, the top circumference of the cone was slightly out of round. The sides of the cone were then constructed from the top down by connecting several 20--30 foot long steel plates to the compression ring, thereby forming a circle. Each plate had 'fit up lugs' which were supposed to match up with corresponding rods on the compression ring. Once the plate was in place, bolts would then be connected to secure the plate until welding took place. In the case at hand, however, the plates did not fit. Often the 'lugs' had to be knocked off and rewelded. In addition, the plates often had to be forced into place by the ironworker's own manual force or with the help of a crane which was used to hoist the large steel plates from the floor to the place of installation.

The accident sued on herein occurred as the plaintiff and two other ironworkers were attempting to erect the third plate in the top stage of the cone. Because of the fact that the silo was almost completely enclosed, the crane mentioned above (belonging to the defendant, Mike Queenan, and operated by the defendant, Rick Queenan) was situated outside the silo with a line dropping from the silo top to the floor where the steel plates were connected. Because the ironworkers were on scaffolds about 28 feet high, hand signals were utilized by the plaintiff to the ironworker (labor steward) in charge on the ground inside the silo. This ironworker, in turn, would then transmit the signal given to the crane operator via walkie-talkie.

At the time of the accident herein, the steel plate in question had been raised to the level where plaintiff and his co-workers had tried to force it into place. Several bolts and lugs were secured on one end of the plate and the crane cable was then attached to the other end to help pull (force) the plate into place. The signal to begin raising the plate was given and received by the crane operator. Immediately thereafter, plaintiff began to hear the attached bolts or lugs on the other end give way, so he gave the signal to stop the hoisting and started yelling. The crane operator did not receive the signal sent and the plate which continued to be hoisted snapped away from the compression ring, striking the plaintiff and knocking him from the scaffold onto the floor. Simmons was very seriously injured by the fall.¹

The issue of Mississippi Valley Structual Steel Company's negligence is decided upon the following facts. Plaintiff's employer, Associates, entered into a general contract with the Lake Charles Harbor and Terminal District for the construction of a calcine coke bulk handling facility. Associates originally sub-contracted the installation of the conical hopper bottoms to Suwanee Construction Company and Pridgen Engineering Company. The Pridgen Engineering Company sub-contracted the fabrication of the steel plates for the hopper cone to defendant-appellant herein, Mississippi Valley Structural Steel Company (hereinafter referred to as 'Steel Company'). A drawing for the preparation of the steel plates was made by Pridgen Engineering Company and submitted to the Steel Company. From this drawing, shop plans were made by the Steel Company and materials were fabricated in accordance...