Wallace v. Pan American Fire & Cas. Co.

• Decision Date: 17 November 1977
• Docket Number: No. 5961,5961
• Citation: 352 So.2d 1048
• Parties: John WALLACE, Plaintiff-Appellee, v. PAN AMERICAN FIRE AND CASUALTY COMPANY et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 1048

352 So.2d 1048

John WALLACE, Plaintiff-Appellee, v. PAN AMERICAN FIRE AND CASUALTY COMPANY et al., Defendants-Appellants.

No. 5961.

Court of Appeal of Louisiana, Third Circuit.

Nov. 17, 1977.

Rehearing Denied Dec. 14, 1977.

Writ Refused Jan. 30, 1978.

Bolen, Halcomb, Bolton & Erwin by Frank R. Bolton, Jr., Alexandria, for defendants-appellants, H. L. Hunt and Fidelity and Cas. Co. of New York.

Stafford, Randow, O'Neal, & Smith by Grove Stafford, Jr., Alexandria, for defendants-appellants, Wanda Petroleum Co. and Ins. Co. of North America.

Roy B. Tuck, Jr., Leesville, for plaintiff-appellee, H. F. McMullen.

Jackson & Smith by S. Chris Smith, III, Leesville, for plaintiff-appellee, John Wallace.

Gold, Hall, Hammill & Little by John F. Simon, Alexandria, for defendants-appellees, Vernon Parish School Bd. and Traders & Gen. Ins. Co.

Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for defendants-appellees, Jesse Scoggins, d/b/a Star Butane Gas and Pan American Fire & Cas. Co.

Cabra, Leach & Tilley by William E. Tilley, Leesville, for defendant-appellee, Hardy Hicks.

Plauche, Smith, Hebert & Nieset by A. Lane Plauche, Lake Charles, for Pan American Fire as Workmen's Compensation Insuror of Shawson Gas & Motor Co., Inc.

Before DOMENGEAUX, GUIDRY and ROGERS, JJ.

ROGERS, Judge.

The above numbered and entitled matter was consolidated for trial in the district court with McMullen v. Pan American Fire & Casualty Co. et al., 352 So.2d 1058 (La.App. 3rd Cir. 1977) our docket no. 5962. The cases remain consolidated on appeal and we decide both of these cases today. The facts and law are common in both cases, however, a description of injuries sustained by H. F. McMullen and our conclusions in regard to the quantum of damages awarded to McMullen are set forth in a separate opinion handed down this date.

Both plaintiffs, John Wallace and H. F. McMullen received severe injuries in an explosion that took place at the Evans High School in Vernon Parish, on October 23, 1970. John Wallace was awarded general and special damages totaling $166,215.55 and H. F. McMullen was awarded damages in the sum of $140,993.76. As a result of a restricted release granted by both plaintiffs to one held to be a joint tortfeasor, i. e., Jesse Scoggins d/b/a Star Butane Gas Co., the award to each plaintiff was reduced by 1/4th or to the total sum of $124,661.66 to John Wallace and $105,745.32 to H. F. McMullen.

By petition and several supplemental petitions the following parties were originally made defendants:

(1) Traders and General Ins. Co. (Traders), as the insurer of the Vernon Parish School Board;

(2) Hardy O. Hicks (Hicks), a co-employee of plaintiffs, all of whom were employed by Shawson Gas & Motor Co., Inc. (Shawson Gas) (3) W. V. McRae, president and Ralph D. McRae, vice-president both of whom were joined as executive officers of Shawson Gas and their insurer, Pan American Fire & Casualty Co. (Pan American);

(4) Jesse Scoggins doing business as Star Butane Gas Co., and his insurer, Pan American;

(5) Wanda Petroleum, Inc. (Wanda) and its insurer the Insurance Company of North America (ICNA);

(6) Hunt Oil Co.;

(7) Hunt Petroleum Co.;

(8) H. L. Hunt (Hunt) and his insurer, Continental Insurance Co. By stipulation all parties recognized, acknowledged and agreed that The Fidelity and Casualty Company of New York (Fidelity) was the correct insurer of Hunt.

Pan American intervened in both proceedings as the workmen's compensation insurer of Shawson Gas seeking reimbursement out of the proceeds of any judgment rendered in favor of plaintiffs and against defendants for workmen's compensation and medical expenses which were paid prior to the date of the filing of the petition of intervention or which might be paid by intervenor in the future, said petition of intervention being filed pursuant to the provisions of LSA-R.S. 23:1101-1103.

There were several third party demands filed seeking indemnity and/or contribution, these being as follows: (a) Jesse Scoggins d/b/a Star Butane and its insurer, Pan American filed a third party demand against Wanda and Hunt and their insurers seeking indemnity; (b) Wanda and its insurer, ICNA filed a third party demand seeking indemnity and/or contribution from Hunt and his insurer, Fidelity; (c) Hunt, Hunt Oil Co., Hunt Petroleum Co. and Fidelity filed a third party demand against Jesse Scoggins, d/b/a Star Butane and Pan American seeking indemnity and/or contribution. We observe at this point that neither the trial court's written reasons for judgment nor the final judgment rendered and signed in these consolidated matters disposes of any of these third party demands.

Prior to trial plaintiffs entered into a compromise arrangement with Jesse Scoggins d/b/a Star Butane and its insurer, Pan American, William V. and Ralph D. McRae, executive officers of Shawson Gas and their insurer, Pan American, as a result of which plaintiffs granted to said parties a restricted release specifically reserving all of their rights against the remaining defendants. In the compromise arrangement, Pan American, as the workmen's compensation insurer of Shawson Gas, relinquished its right to reimbursement for compensation and medical expenses previously paid and to be paid in the future and agreed to dismiss its intervention with prejudice. Following the consummation of this compromise arrangement, an order was granted in each case dismissing these actions with prejudice against Jesse Scoggins, d/b/a Star Butane and its insurer Pan American and William V. and Ralph D. McRae as executive officers of Shawson Gas, together with their insurer Pan American. Additionally, an order was rendered dismissing the intervention of Pan American as the workmen's compensation insurer of Shawson Gas.

Following trial, the trial court, for written reasons assigned, rendered judgment in favor of plaintiffs and against Hunt and his insurer, Fidelity; Wanda, and its insurer, ICNA; and, Hardy O. Hicks. The trial court's written reasons for judgment also found Jesse Scoggins d/b/a Star Butane tortiously liable in solido with the above named defendants however, considering the restricted release previously granted by plaintiffs and recognizing the remaining defendants' rights to contribution reduced the quantum of the judgment by 1/4th.

Hunt and his insurer, Fidelity, and Wanda and its insurer, ICNA appeal. Hardy O. Hicks did not appeal. Plaintiffs answered the appeals and ask an increase in quantum.

FACTS

The facts of the case are rather involved, and the issues are numerous. The trial judge has summarized the facts well and concisely and we adopt most of the factual background that he presented in his Reasons for Judgment as follows:

"In April or May of 1970, Mr. Jackson, an employee of Star Butane, suspected that the gas tank at the Evans School might have a leak as the tank seemed to be using more gas than he thought it should. This fact was called to the attention of the school's principal who requested that the system remain operational until the end of the school term.

In June or July of 1970 Star sent some employees to the Evans School to check the system for any leaks and to then do any necessary repairs. The valve at the tank was found to be open and gas occupied the lines from the tank to the appliances within the school. Bubbles were observed rising in water on the ground directly above the underground line. No smell of gas was detectable from the bubbles but the gaseous substance did burn when a lighted match was thrown into the water. A portion of this line was then dug up and found to be rusted, full of holes and leaking. This portion of old pipe was replaced with 40 foot of new pipe but the system would not hold sufficient air pressure. Mr. Dowden, one of the employees then reported to the janitor and Steve Deason that the system needed changing and not to connect the tank. Mr. Dowden testified that he did not smell gas, either inside or outside of the building, although he did not check the tank to see if the gas was odorized. The Vernon Parish School Board was notified and they then awarded a contract to Shawson Gas to replace the outside lines. By October 23, Shawson Gas, without removing the old outside lines, had constructed and pressure tested a new outside line running from the one-thousand (1000) gallon butane storage tank south of the school to the swing joint where the gas lines entered the building. Mr. McMullen and Mr. Wallace had the job of opening and closing the ditches in which the new lines were placed. Mr. Vernon McRae, the president and general manager of Shawson Gas, was responsible for supervising the laying of these lines through his capacity as executive officer. Mr. Hardy Hicks who held an all phase card of competency from the Louisiana Liquified Petroleum Gas Commission, made all the connections in the line and did the work of connecting the new outside line to the existing gas lines and appliances within the building. Tom Russel was Mr. Hicks' helper in connection with these activities. When this work was completed, Mr. Hicks turned on the gas at the tank and began opening the stop valves just outside the building on each lead-in one at a time so that the testing and lighting of the pilot lights in the appliances could be accomplished. Then the testing and lighting began in the elementary or north wing of the building. By the time Mr. Hicks reached the east side of the high school side of the building, it was raining extremely hard and to keep from having to make intermittent trips back out into the rain, Mr. Hicks proceeded along the east side of the high school wing and opened all five of the outside stop valves serving this wing. This permitted gas to flow into the inside lines which served the home economics room, the girl's restroom, the sick room, the boy's restroom and the science room. There were five service lines with one line going into each room although...