Thibodeaux v. Parks Equipment Co.

• Decision Date: 16 November 1965
• Docket Number: No. 6450,6450
• Parties: Herman THIBODEAUX, Plaintiff-Appellee-Appellant, v. PARKS EQUIPMENT COMPANY et al., Defendants-Appellees-Appellants (Except Hartford Accident & Indemnity Company-Appellant).
• Court: Court of Appeal of Louisiana — District of US

Page 232

185 So.2d 232

39 A.L.R.3d 1392

Herman THIBODEAUX, Plaintiff-Appellee-Appellant, v. PARKS EQUIPMENT COMPANY et al Defendants-Appellees-Appellants (Except Hartford Accident & Indemnity Company-Appellant).

No. 6450.

Court of Appeal of Louisiana, First Circuit.

Nov. 16, 1965.

Writs Refused Feb. 4, 1966.

On Rehearing April 4, 1966.

Writ Refused May 19, 1966.

E. Leland Richardson, of Dale, Richardson & Dale, Baton Rouge, for Hartford Accident & Indemnity Co., Charles W. Lane, III, of Jones, Walker, Waechter, Poitevent, Carrere & Denegre and John V. Baus, for Dover Corporation, M. Truman Woodward, Jr., of Milling, Saal, Saunders, Benson & Woodward and Bernard J. Caillouet and Peter R. Monrose, Jr., New Orleans, for Humble Oil & Refining Co., R. Gordon Kean, Jr., of Sanders, Miller, Downing, Rubin & Kean, Baton Rouge, Bean & Manning, Houston, Tex., for Parks Equipment Co.

Wallace A. Hunter, of Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, Strickland & Cole, Port Allen, for plaintiff, Robert J. Vandaworker, of Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for Travelers Ins. Co., Charles W. Wilson, of Watson, Blanche, Wilson, Posner & Thibaut, Baton Rouge, for Delta Tank Mfg. Co.

Before ELLIS, LOTTINGER, LANDRY, REID and BAILES, JJ.

ELLIS, Judge.

Plaintiff was injured in an accident while working in the course and scope of his employment with Delta Tank Manufacturing Company, Inc., on March 10, 1959, and suffered complete total and permanent disability for which he was being paid workmen's compensation by his employer, generally hereinafter referred to as 'Delta'.

On March 9, 1960, plaintiff filed suit in tort in the United States District Court, Eastern District of Louisiana, entitled 'Herman Thibodeaux, plaintiff, vs. Parks Equipment Company and Humble Oil and Refining Company, defendants', which suit bore Civil Action No. 2308 on the docket of that court.

On August 31, 1960, plaintiff filed this suit naming as defendants Parks Equipment Company, and its alleged insurer, The Travelers Insurance Company, and Humble Oil and Refining Company.

On March 22, 1961, plaintiff filed a supplemental and amending petition naming as defendants for the first time Ashbury S. Parks and his alleged insurer, The Travelers Insurance Company, and Hartford Accident & Indemnity Company as the insurer of the executive officers, directors and stockholders of Delta.

In the supplemental and amending petition, the plaintiff alleged 'the proximate cause of said accident was the joint and concurring negligence of defendants, Parks Equipment Company and Humble Oil and Refining Company and Mr. Ashbury S. Parks, and the executive officers, directors and stockholders of Delta Tank Manufacturing Company'. In this supplemental petition plaintiff alleged that 'The executive officers, directors and stockholders of Delta Tank Manufacturing Company, the names of all of whom are not known to plaintiff, but well known to defendant, and including particularly, but not exclusively, the following: Hal S. Phillips, W . V. Rathbone, Ross Baze, Jack Patton, and Glen Opel, were negligent in the following respects, all proximately causing the accident and the resulting injuries and damages: * * *'. Plaintiff further alleged in this supplemental and amending petition that the proximate cause of the accident was the joint and concurring negligence of defendants, Parks Equipment Company and Humble Oil and Refining Company and Ashbury S. Parks, and the executive officers, directors and stockholders of Delta Tank Manufacturing Company.

Humble Oil and Refining Company filed an answer to the plaintiff's original petition and a third party demand against Delta, Parks Equipment Company and The Travelers Insurance Company and thereafter amended its third party petition to include Ashbury S. Parks, Hartford Accident & Indemnity Company, as the insurer of the executive officers, directors and stockholders of Delta, and Delta in its corporate capacity. In its amending petition Humble Oil and Refining Company alleged on information and belief 'that Hal S. Phillips, Bill Born, Don Jenkins, Jack Patton, Glen Opel, Otis Waguespack and Ross B. Bage are, and were at all times pertinent hereto, executive officers, directors and/or stockholders of Delta Tank Manufacturing Company.'

Travelers filed exceptions of no cause of action to the petitions of plaintiff and the third party petition filed by Humble contending the policy thereby which had insured Parks Equipment Company excluded 'products hazard' and failed to provide coverage in this suit. The trial court sustained these exceptions, thereby dismissing plaintiff's suit and the third party action against Travelers, from which judgments both plaintiff and third party petitioner (Humble) appealed. This court, composed of a three member panel, reversed the trial court. See Thibodeaux v. Parks Equipment Company, La.App., 140 So.2d 215. The organ of the court herein was a member of that panel and dissented from the majority, being of the opinion that the judgment of the lower court maintaining the exception of no cause of action was absolutely correct and should be affirmed. A rehearing was applied for by Travelers and denied by this court by two members of that panel with the writer herein again dissenting and Travelers applied to the Louisiana Supreme Court for a writ of certiorari which was duly denied by the Supreme Court on the grounds that the judgment of the Court of Appeal was not final. The Supreme Court then added:

'However, our refusal of this writ is not to be construed as an indication that we approve the result on the exception of no cause of action.'

Parks Equipment Company answered the original and supplemental petitions, filed a third party demand against Delta Tank Manufacturing Company, Inc., Humble Oil and Refining Company, and Hartford Accident & Indemnity Company, as the insurer of the executive officers, directors and stockholders of Delta, alleging on information and belief that Hal S. Phillips, Bill Bourne, Don Jenkins, Jack Patton, Glen Opel, Otis Waguespack and Ross B. Baze are, and were at all times pertinent hereto, executive officers, directors and/or stockholders of Delta Tank Manufacturing Company. These are the same parties named as executive officers, directors and/or stockholders in the answer and third party petition of Humble .

Plaintiff filed a second supplemental petition naming as defendant Dover Corporation, as the alleged successor of Parks Equipment Company, and Dover filed an answer and third party claim against Parks Equipment Company, A. S. Parks, The Travelers Insurance Company, Delta Tank Manufacturing Company, Inc., Hartford Accident & Indemnity Company and Humble Oil and Refining Company.

All defendants, who are also third party plaintiffs, allege that the plaintiff was guilty of contributory negligence, if not in the specific language, substantially as Hartford alternatively charged plaintiff with contributory negligence as follows:

'19. In the alternative, and in the alternative only, should the Court find that an executive officer, director, or stockholder of Delta Tank Manufacturing Company was guilty of any negligence which was a proximate cause of the accident involved herein, which is emphatically denied, then and in that event, and in that event only, this defendant pleads contributory negligence on the part of the plaintiff, which was a proximate cause of the accident, and bars recovery herein, which contributory negligence consisted particularly, but not exclusively, of the following:

1. In attempting to stop a leak by hammering on the valve while the unit was under high pressure which was a dangerous and hazardous undertaking, against all safety rules, all within the full and complete knowledge of the plaintiff.

2. In failing to follow the usual practice and safe practice, and failing to follow safety rules and regulations, by relieving the pressure in the unit prior to attempting to tighten any valves or bolts where a leak occurred.

3. In attempting to remedy the leak in the unit in a careless and reckless manner and failing to follow the usual customary and safe practice, all of which the plaintiff well knew and had complete knowledge of at the time of the accident.

4. In carelessly, negligently, and recklessly attempting to remedy a leak in the unit by hammering on the valve without releasing the pressure in the unit which resulted in the accident referred to in plaintiff's petition.

5. In failing to follow and conform to the usual and customary practice of releasing the pressure in the unit prior to attempting to correct a leak in the unit.

6. Plaintiff, being in full charge of the testing of the unit, and with the vast experience that plaintiff had had in connection with testing such units, and with full knowledge of the danger inherit in such operation, carelessly, negligently, and wantonly attempted to remedy a leak while the unit was under high pressure, and knew or should have known that to try to tighten the valve in question when it was under high pressure, with a hammer, was dangerous, risky, and contrary to all safety rules and practices.'

All parties answered the numerous third party demands and the case was duly tried, which resulted in a voluminous record.

The District Court rendered judgment rejecting the demands of the plaintiff against all defendants and dismissed without prejudice and as non-suit all third party demands, except as to Hartford Accident & Indemnity Company. The judgment on the main demand against Hartford is as follows:

'This action came on to be tried before the Court, without a jury, pursuant to regular assignment on Monday, May 11, 1964. Present in Court: Wallace A. Hunter of Durrett, Hardin, Hunter, Dameron & Fritchie and T. C. Strickland of Strickland & Cole, counsel for plaintiff; R. Gordon Kean of Sanders, Miller, Downing, Rubin & Kean, counsel for Parks Equipment Company; ...