Spurlock v. Boyce-Harvey Machinery, BOYCE-HARVEY

• Decision Date: 06 October 1956
• Docket Number: BOYCE-HARVEY,No. 4243,4243
• Citation: 90 So.2d 417
• Court: Court of Appeal of Louisiana — District of US
• Parties: George SPURLOCK, Plaintiff-Appellee, v.MACHINERY, Inc. and The Travelers Insurance Company, Defendants-Appellants, American Mutual Liability Insurance Company, Intervenor-Appellee.

Page 417

90 So.2d 417

George SPURLOCK, Plaintiff-Appellee, v. BOYCE-HARVEY MACHINERY, Inc. and The Travelers Insurance Company, Defendants-Appellants American Mutual Liability Insurance Company, Intervenor-Appellee.

No. 4243.

Court of Appeal of Louisiana, First Circuit.

Oct. 6, 1956.

Rehearing Denied Nov. 26, 1956.

Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellants.

Dodd Hirsch & Barker, Baton Rouge, for plaintiff.

Breazeale, Sachse & Wilson, Baton Rouge, for intervenor.

TATE, Judge.

This case primarily concerns interpretation of the 'loading and unloading' clause of an automobile liability insurance policy and determination as to which--if either--of two insurers is the primary insurer of the loss herein.

Plaintiff Spurlock, a truck driver for Garig Transfer, Inc., was hurt while picking up a shipment for his truck at the Boyce-Harvey Machinery, Inc., shipping dock. He filed suit for his personal injuries against Boyce-Harvey and its general liability insurer, The Travelers Insurance Company. Garig's compensation insurer, the American Mutual Liability Insurance Company, intervened as workmen's compensation subrogee for compensation and medical expenses it had paid to or for Spurlock as a result of the injury.

By third party petition, call in warranty, and recoventional demand the Travelers Insurance Company ('Travelers') seeks to hold the American Mutual Liability Insurance Company ('American Mutual') primarily liable for all tort damages sustained by Spurlock in the accident, based upon the 'loading and unloading' clause of the automobile liability policy issued by American Mutual to the Garig Transfer, Inc., plaintiff's employer, covering the operation of the truck owned by Garig which plaintiff was loading at the time of the accident.

Boyce-Harvey and Travelers appeal from judgment against them in the total amount of $6,558.72, which judgment also dismissed their reconventional demand, third party complaint, and call in warranty against American Mutual.

1. Facts and Factual Issues

On September 26, 1952, plaintiff Spurlock as truckdriver for Garig drove to the Boyce-Harvey premises in Baton Rouge to pick up a shipment of 50 grader blades for delivery to various consignees. Prior to Spurlock's arrival, these grader blades had been brought by a Boyce-Harvey employee (Ben Dunn) to the loading platform.

Each steel grader blade was 6 feet long, 6 inches wide, 1 inch thick, and weighed 53 pounds. These blades were stacked in two bundles, resting on 2 4 boards; each bundle containing 25 blades divided into two stacks and tightly bound at both ends with wire. The bundles were approximately 13 inches high and were placed with the ends close to the edge of the loading platform, to which plaintiff's truck backed so that the floor of the truck body was flush level with the said loading dock.

On Spurlock's arrival, Bennie Jones, a Boyce-Harvey employee, came to the dock with the bill of lading and with a hammer and address tags. In the presence of Spurlock, Bennie Jones cut the wire bindings on both ends of one bundle by striking with the hammer the taut binding wire against the sharp edge of one of the bound blades. Jones then began to place the address tags on the individual blades by pulling the top blade forward from the stack toward the truck a few inches and then attaching the tag through a hole in the front end of the blade. Spurlock stood in or near the back of the truck and shoved or pulled each blade, after Jones tagged it, into the body of the vehicle.

When the first bundle had been entirely loaded, Bennie Jones turned to the second bundle and cut the wire binding on the end adjacent to the truck. As he was cutting the second binding at the rear of the bundle, Spurlock stepped from the truck, and his foot was struck and fractured by the fall of three of these heavy blades off the stack previously held by the taut binding. The blades immediately fell when Bennie struck and cut the second set of wire bindings, apparently releasing the blades.

We think the District Court correctly held that the doctrine of res ipsa loquitur applied under the circumstances of this case. 'It is well established in the Louisiana jurisprudence that the doctrine of res ipsa loquitur must be applied to a case if the accident which damaged plaintiff was caused by an agency or instrumentality within the actual or constructive control of the defendant, if the accident is of a kind which ordinarily does not occur in the absence of negligence, and if the evidence as to the true explanation of the accident is more readily accessible to the defendant than to the plaintiff.' Northwestern Mutual Fire Ass'n v. Allain, 226 La. 788, 77 So.2d 395, at page 397 and cases cited therein. See also Saunders v. Walker, 229 La. 426, 86 So.2d 89; Bush v. Bookter, La.App. 1 Cir., 47 So.2d 77, Malone, 'Res Ipsa Loquitur', 4 La.L.Rev. 70.

We agree with the District Court's conclusions:

'From the testimony there is no room here for any presumption other than that defendant, Boyce-Harvey Machinery, Inc. and its employees were guilty of negligence either in the manner in which the bundles were stacked on the timbers of in the manner in which Jones struck the wires on the last bundle with his hammer or by the failure to check the bundles to prevent the stacks from rolling when the stacks were freed from each other's support or by some other acts or ommission or commission which said defendants because of their superior knowledge should know about. * * *

'Bennie Jones made no attempt to explain the reason why the stack of blades fell over, except to say that the blades fell on plaintiff's foot and that 'the wires might have been tight'. There is a presumption of negligence by contincing evidence. * * *

'Dunn is still in the employ of said defendant. He should have been in position to know something about the manner in which these bundles were stacked on the dunnage boards. Because of the failure to call him as a witness for the defendants we must assume that his testimony would have been unfavorable.

'In the absence of positive showing of freedom from fault the conclusion is inescapable that the defendant, Boyce-Harvey Machinery, Inc., through its employees, was guilty of negligence the consequences of which was the injury to plaintiff's foot for which he here seeks damages.'

Cases which similarly hold liable the owner or custodian of goods or equipment which fell so as to injure persons on the premises include: Washington v. T. Smith & Son, La.App., 68 So.2d 337, certiorari denied; Patrick v. T. Smith & Son, La.App., 56 So.2d 190; Mercer v. Tremont & Gulf Ry. Co., La.App., 19 So.2d 270, certiorari denied; Gremillion v. American Creosote Works, Inc., La.App., 14 So.2d 72.

Further, as the Mercer case holds, the business guest or invitee is owed the duty by the owner of the property of reasonable care with respect to the condition of the premises. And, as the Patrick and Gremillion cases hold, such business invitee is not contributorily negligent or does not assume the risk so as to bar his recovery by his failure to anticipate the hazard caused by the condition of the premises or the negligent manner of the handling of the goods which fall, when the hazard is not obvious.

The District Court correctly held that there was nothing to the outward eye to suggest a possibility of danger in the manner in which the blades of the second bundle was stacked; and as a matter of fact, this is the first time that such blades had ever so fallen in the extended experience of both Spurlock and Jones.

Cases such as Fradger v. Shaffer-Stein Corp., La.App., 73 So.2d 612, relied upon by defendant-appellants in support of their contention that recovery should be denied plaintiff-appellee because of his contributory negligence or assumption of the risk, are factually distinguished from the present, since they concerned situations of known and obvious dangers or dangers which should have been observed in the exercise of reasonable care.

As to damages: The special damages are proven. And we do not feel the award of $5,000 to plaintiff to be manifestly either insufficient or excessive for personal injuries, which consisted of the fracture of the two main weight bearing bones of his right foot, severe pain at the time of the accident, present discomfort and residual pain and disability from time to time and a permanent disability of 10 to 15%, especially causing discomfort and pain on weight bearing necessary in plaintiff's occupation. Plaintiff was also in a cast for approximately 2 months suffering some pain and discomfort during this time. See Eleazar v. Illinois Cerntral Railroad Co., La.App., 24 So.2d 387.

2. Liability of American Mutual under its 'loading and unloading' clause.

As of the time of judgment, the District Court correctly dismissed appellant's claim in reconvention and warranty that American Mutual was primarily (or at least also) liable for the personal injury sustained by plaintiff Spurlock on the ground that Jones (although Boyce-Harvey's employee) and/or his employer Boyce-Harvey was an omnibus insured (in the same manner as was plaintiff Spurlock himself under the automobile liability policy issued by American Mutual to Garig and covering operation of the truck belonging to Garig and used by Spurlock in the course of his employment with said firm. American Mutual's automobile liability policy included a 'loading and unloading' clause, as a result of which the coverage included those injured by the negligent acts of those authorizedly loading and unloading said truck.

For at the time this case was decided by the able District Court, even were Jones held to be such an omnibus assured under the clause in question, nevertheless under the exclusion clauses preventing receovery of tort damages by any employee of the 'insured', ¹ the law of Louisiana was to the effect that Spurlock, as an employee of Garig, the Named...