Trahan v. Liberty Mut. Ins. Co.

• Decision Date: 29 January 1973
• Docket Number: No. 4067,4067
• Citation: 273 So.2d 331
• Parties: Jeanette Jean TRAHAN et al., Plaintiffs-Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 331

273 So.2d 331

Jeanette Jean TRAHAN et al., Plaintiffs-Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.

No. 4067.

Court of Appeal of Louisiana, Third Circuit.

Jan. 29, 1973.

Rehearing Denied Mar. 7, 1973.

Writ Refused April 12, 1973.

Armentor & Wattigny, by Gerard B. Wattigny, Milton LeBlanc, Jr., and Henry A. Bernard, Jr., New Iberia, Broussard, Broussard & Moresi by Paul G. Moresi, Jr., Thompson & Sellers by Roger C. Sellers, Abbeville, for plaintiffs-appellants.

Davidson, Meaux, Onebane & Donohoe by John G. Torian, II, Lafayette, Scofield, Bergstedt & Gerard by Thomas M. Bergstedt, Lake Charles, for defendants-appellees.

Before FRUGE , HOOD and DOMENGEAUX, JJ.

DOMENGEAUX, Judge.

We are concerned in this case, and in those of Chrzanowski et al. v. Liberty Mutual Insurance Company et al., La.App., 273 So.2d 338; Nunez et al. v. Liberty Mutual Insurance Company et al., La.App., 273 So.2d 339; Fuselier et al. v. Liberty Mutual Insurance Company et al., La.App., 273 So.2d 339, all of which were consolidated for trial and have remained so on appeal, with the appeals of trial court judgments based on a jury verdict, dismissing the claims of four widows and their children against six executive officers of their late husbands' employer, and their insurers. The facts and law, insofar as is relevant to our conclusion, are common to all four cases and we therefore discuss them only in this opinion. Separate judgments based on the discussion and reasons herein contained will be rendered in each of the other three cases.

On February 19, 1970, the four decedents, Josef Chrzanowski, John Hollier, Obra Suire, and Lennis Landry were in the employ of Diamond Crystal Salt Company in the latter's mine at Jefferson Island, Louisiana. At approximately 7:00 A.M. that morning the four men entered the salt mine, which was then being worked at the 1,300 foot level (actually 1,241 feet below sea level) and commenced operations in an area called SW3. Approximately two hours later, while the four men were in a corridor measuring 30 feet in height and 70 ffet in width, a huge slab of salt fell from the ceiling and killed all four.

Their widows filed suit, for themselves and on behalf of their children, against six executive officers of Diamond Crystal, alleging that their negligence was the sole cause of the accident, and against their liability insurers, Liberty Mutual Insurance Company, and The Insurance Company of North America. The six officers were: Russell Rudolph, executive vice-president of Diamond Crystal; Charles Cronenworth, production superintendent of Diamond Crystal; Gayle Petrick, plant manager at Jefferson Island; Richard Sieferman, mine superintendent at Jefferson Island; Charles Dixon, mine engineer at Jefferson Island, and Paul C. Bergeron, superintendent of administrative services at Jefferson Island. The defendants denied the plaintiffs' allegations and additionally pled the contributory negligence of Josef Chrzanowski, general mine foreman at Jefferson Island, and John Hollier, shift production foreman.

The trial lasted two weeks, after which time the jury rendered a verdict absolving all defendants of liability. All of the plaintiffs appealed alleging that error was committed in the following specifics:

1. The trial court did not charge the jury on the doctrine of res ipsa loquitur.

2. The trial court refused to allow the introduction of evidence regarding roof control practices in the mine after the accident.

3. The verdict and the judgments thereon were clearly and manifestly erroneous and contrary to the weight of the law and the evidence.

The first specification of error is disposed of by Article 1793 of our Code of Civil Procedure which reads as follows:

At the close of the evidence or at an earlier time during the trial as the court reasonably directs, a party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury.

A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.

The record is devoid of any indication that plaintiffs objected to the trial judge's failure to give the instructions regarding res ipsa loquitur, and indeed the plaintiffs do not allege that they made such objection. Accordingly, plaintiffs may not complain of the matter on appeal. Mulkey v. Aetna Casualty and Surety Company, La.App., 210 So.2d 897; Gryder v. Travelers Insurance Company, La.App., 193 So.2d 532.

In any event, we do not consider the doctrine of res ipsa loquitur to be applicable to the case at bar.

Three elements are necessary to the application of res ipsa loquitur. The plaintiff must show that:

1. The offending instrumentality was within the exclusive control of the defendant, or the freedom from fault of all persons through whose hands it passed after leaving the defendant's exclusive control.

2. The explanation of the occurrence of the accident is more readily available to the defendant than it is to the plaintiff.

3. The accident was such as would not ordinarily occur in the absence of negligence.

In evaluating the first prerequisite in light of the evidence we note imprimis that the plaintiffs are suing not the Diamond Crystal Salt Company, owner of the mine, but rather six of its employees. The evidence shows that each defendant had some control of the mine, but none had exclusive control. Neither did the defendants as a group have the exclusive control of the mine. The evidence is clear that Josef Chrzanowski as general mine foreman, and John Hollier as shift production foreman, shared in the control of the mine, with the former's power being at least as great as that of some of the defendants. This is conceded by plaintiffs in their brief wherein they indicate their recognition of the possibility that the doctrine of res ipsa loquitur would not be applicable to Chrzanowski and Hollier. The mere fact that those two individuals shared in the control, of course, defeats the exclusivity of the defendants' control and we therefore need look no farther for other persons who might have shared therein. Accordingly it is seen that plaintiffs have not met even the first criterion for the application of res ipsa loquitur and we therefore readily conclude that the doctrine is inapplicable to the case at bar.

Plaintiffs' second specification of error is likewise without merit. The rule that evidence of improvements made by the defendant after the accident is inadmissible, was announced by our Supreme Court in Givens v. De Soto Building Company et al., 156 La. 377, 100 So. 534, with the following language:

In 29 Cyc. 616 (verbo Negligence), we find:

'Whilst some courts hold to the contrary (Kansas and Utah) the great weight of authority is that evidence of changes or repairs made subsequently to the injury, or as to precautions taken subsequently to prevent recurrence of injury, is not admissible as showing negligence or as amounting to an admission of negligence. The reason for the rule is that the effect of declaring such evidence competent would be to inform a defendant that, if he makes changes or repairs, he does it under a penalty; for, if the evidence is competent, it operates as a confession that he was guilty of prior wrong. True policy and sound reason require that men should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrongdoers. A rule, which so operates as to deter men from profiting by experience and availing themselves of new information, has nothing to commend it, for it is neither expedient nor just. No one should be placed in the embarrassing attitude of being compelled to choose between the risk of another accident by maintaining the status quo, and the equally uninviting alternative of taking proper steps to remove the danger and thereby 'making evidence against himself which would act prejudicially to his defense in the minds of the jury.''

Plaintiff direct our attention to the case of Gauche v. Ford Motor Company et al., 226 So.2d 198, wherein is contained some dicta indicating that evidence of repairs made subsequent to the accident may be admissible in corroboration of other evidence of negligence. In our opinion our brothers of the Fourth Circuit Court of Appeal deviated from the rule of Givens, supra, by their expression of those views. Our Supreme Court has in no way modified or deviated from the Givens holding excluding such evidence, and we are therefore bound to follow it. Accordingly we reject plaintiffs' arguments in this regard.

Plaintiffs' third specification of error attacks the jury's verdict in general and we therefore turn now to an examination of the entire case against the defendants.

The evidence shows that the mining operations at Diamond Crystal Salt Company's Jefferson Island mine descended from the 1,000 foot level to the 1,300 foot level in 1965. At that time the company called in a Canadian mining consultant firm, C.I.M., to make an investigation and render advice regarding how they should proceed at the new depth. C.I.M. recommended, inter alia, that the room size be increased from 65 to 100 feet in width. The consultants' recommendations were followed and the rooms at the 1,300 foot depth were made 100 feet wide with cross cuts, or corridors, 70 feet wide.

Certain roof control measures were put into effect, consisting primarily of scaling, a process of tapping the roof with a steel bar and visually observing it to determine if there are any loose scales of salt, and if so knocking them down....