Spanja v. Thibodaux Boiler Works

• Decision Date: 02 June 1941
• Docket Number: 17561.
• Citation: 2 So.2d 668
• Court: Court of Appeal of Louisiana — District of US
• Parties: SPANJA v. THIBODAUX BOILER WORKS, INC., ET AL.

2 So.2d 668

SPANJA v. THIBODAUX BOILER WORKS, INC., ET AL.

No. 17561.

Court of Appeal of Louisiana, Orleans.

June 2, 1941

Rehearing Denied June 30, 1941.

Oliver S. Livaudais, Frank Wm. Hart, and Oliver S. Livaudais, Jr. all of New Orleans, for appellee.

St Clair Adams & Son, of New Orleans, for appellant Thibodaux Boiler Works.

Monroe & Lemann and Walter J. Suthon, Jr., all of New Orleans, for appellant Texas Co.

JANVIER Judge.

This is an action ex delicto. Sam Spanja sustained serious personal injuries while assisting in the transfer of certain heavy machinery from an automobile truck on the banks of a canal to a motor vessel lying in the canal.

The accident occurred in the late afternoon on March 17, 1939, at Empire, Louisiana, which is situated on the West bank of the Mississippi River several miles below the City of New Orleans. The machinery, consisting of two independent units, one a welding machine and the other an air compressor, and the truck on which these units had been transported to Empire, Louisiana, from Thibodaux, Louisiana, belonged to the Thibodaux Boiler Works, Inc., and were in charge of employees of that company, which is engaged principally in the business of repairing steam boilers. The reason for the transportation of this machinery was that it might be used by the Thibodaux Boiler Works, Inc., in making repairs to a boiler of the Texas Company, another corporation, which, as a part of its general business of producing and distributing petroleum products, was drilling an oil well in the Louisiana marshes some six or eight miles from Empire, and which Texas Company had employed the Thibodaux Company to make the said repairs. The vessel to which the said machine was being transferred was known as the "New President" and was owned by plaintiff, Sam Spanja, and Anton Garma and, at the time of the occurrence, had been tied up in the canal by plaintiff and his brother, Chris Spanja, and was in their charge. The vessel, at the time, and plaintiff and his brother were under contract with the Texas Company. There is some dispute over the question of whether this contract was in writing and, while we deem it of no moment that we reach a conclusion on this point, we find it certain from the record that there was no written contract, but that, by verbal understanding, it had been agreed that the vessel would be used as a "stand-by" boat in connection with the drilling operations at that well and, with two men to operate it, would at all times be available for such transportation or other purposes as the Texas Company might require and that it was especially contemplated that it would be used whenever necessary in the transportation of machines, supplies and employees of the Texas Company back and forth between the scene of the drilling operations and Empire.

As illustrative of the duties of the boat and its crew, Garma, one of the owners of the boat, stated that it was to transfer "everything that was supposed to come out, when the truckloads of stuff came there to pick it up and bring it out to the rig, or get the worn out stuff from the rig and bring it in." This agreement also provided that there would be always available on the boat two men to operate it and, while there seems to have been no express understanding relative to the loading and unloading of articles such as might be transported by the boat, it is clear from the record that the two men referred to would load and unload such machinery, supplies, et cetera, as might be within the reasonable limits of their physical strength, and that, where heavier articles might be involved, the Texas Company would supply necessary assistance. It was agreed that, for this use of the boat and for the services of the two men referred to, the Texas Company would pay $11 per day and would furnish fuel and lubricating oil.

Some time before the accident occurred one of the steam boilers of the Texas Company at the well developed trouble and that company communicated with the Thibodaux Company at Thibodaux and described the nature of the trouble. The Thibodaux Company decided to send three employees and the two pieces of machinery mentioned, a welding machine weighing 2,250 pounds and an air compressor weighing about 50 or 100 pounds less. J. V. Chandler, the drilling foreman of the Texas Company at the well, instructed plaintiff, Sam Spanja, to take the boat "New President" to Empire so that it might transport the Thibodaux Company's machinery and employees from that point to the well. Spanja and his brother, Chris Spanja, who at that time was, in accordance with the contract for the use of the boat, the second man thereon, docked the boat alongside the bank of a canal at Empire. When the truck arrived, Willie Dubuisson, the foreman in charge thereof in behalf of the Thibodaux Company, found that in that canal the transfer could not be safely accomplished, and Spanja suggested that another canal a little below would afford a safer and more convenient place. Accordingly, the boat and the truck were taken to the other canal and there the boat was again tied to the bank by Spanja and the transferring of the machinery commenced. The truck was backed to a position near the canal and, when it was in that position, two empty metal gasoline drums of the Texas Company were placed on end on the ground at the rear of the truck. Across these two drums there was then placed a heavy but short board, also belonging to the Texas Company, and then two other heavy and longer boards of the same company were extended from the board across the two drums to the deck of the vessel. Down this ramp or runway the welding machine, which was the heavier of the two (though there is some dispute on this point) was rolled from the truck to the deck of the boat. As the air compressor was being transferred by the same method, for some reason concerning which the witnesses do not agree, it fell from the runway or skids and struck Spanja, who was standing on the ground attempting to guide it down the runway. He was seriously injured.

Spanja seeks recovery in tort, praying for a solidary judgment for $8,904.12 against the Texas Company and the Thibodaux Boiler Works, Inc.

It is his contention that the unloading operation was being carried on by the Thibodaux Boiler Works and that the employees of that company had adopted an unsafe method of unloading in that the machinery was so heavy that it could not be safely transferred in that way and that, therefore, there is liability in that company.

He also charges that he had been sent by the Texas Company to Empire with instructions to assist the employees of the Thibodaux Company and from this he contends that the Texas Company is also liable to him since its "foreman had instructed petitioner to assist in the unloading * * * under instructions from employees of Thibodaux Boiler Works, Inc., who were in charge of said heavy machinery". There is no charge that there was anything defective about the boards or gasoline drums of the Texas Company which were made use of in the construction of the ramp or runway.

The Texas Company first filed an exception of no cause of action, asserting that the petition itself showed that there could be no liability in that company for the reason that, if Spanja could be considered as its employee, his only redress could be a recovery in compensation, whereas, if he was to be considered as an independent contractor, this status could result only from the fact that the Texas Company exercised no control over the manner in which he might perform the services contemplated by his contract, and that, hence, that company could not be liable to him in tort since it did not and could not exercise any control over him at the time of the accident, there being no officer or employee of the Texas Company present at that time.

In other words, the Texas Company contends that, by his petition, he has placed himself on the horns of a dilemma; that, if he is an employee, his recovery cannot be in tort, but must be in compensation, and that, if he is not an employee and, therefore, is an independent contractor engaged in the carrying out of his independent contract, there could be no liability because the petition shows that there were no directions given him and that there was no employee of the Texas Company present at the time of the accident.

This exception was overruled and the Texas Company, while admitting the occurrence of the accident and that there existed a contract for the use of the boat and of the two men, denied that there was any negligence connected with the transferring and averred that, as a matter of fact, the method of transferring had been suggested by Spanja himself. That company also asserted that, in any event, Spanja was an independent contractor engaged in the carrying out of the duties imposed upon him by contract without any direction or control being reserved in the Texas Company.

The Thibodaux Company, by exception of no cause of action, contended that the petition shows that Spanja, when he was loaned by the Texas Company to the Thibodaux Company to assist in the transferring of the machinery, became, "pro hac vice", an employee of the Thibodaux Company and, consequently, became a fellow-servant of the other Thibodaux Company employees who were charged with negligence, the result being, according to the theory of counsel for the Thibodaux Company, that, because of the application of the fellow-servant rule, he, Spanja, cannot recover from the Thibodaux Company.

This exception also was overruled and, after a trial, there was judgment for Spanja solidarily against both defendants for $4,204.12. Both defendants have appealed and plaintiff has answered both appeals requesting that the...