author: JANVIER, Judge. McBRIDE, Judge

text:
    BOLOGNA v. NEW YORK LIFE INS. CO.
    No. 18531.
    Court of Appeal of Louisiana. Orleans.
    March 28, 1949.
    Rehearing Denied May 9, 1949.
    See 40 So.2d 533.
    Cicero C. Sessions, of New Orleans, for plaintiff-appellant.
    Phelps, Dunbar, Marks & Claverie and Ashton Phelps, all of New Orleans, for defendant-appellee.
   JANVIER, Judge.

This is a suit by the designated beneficiary in a life insurance policy which contains a stipulation for the payment of double the face amount of the policy should the death of the insured result directly from bodily injury effected through external violent and accidental means.

The policy contained a further stipulation to the effect that the double indemnity provided for in the event of such accidental death should not be payable “if the insured’s death resulted, directly or indirectly, from * * * war or any act incident thereto * * *»

The insured, Anthony A. Bologna, died as the result of an accident which occurred while he was a merchant seaman on a vessel traveling in the North Atlantic Ocean on August 19th, 1943. The named beneficiary demanded payment of the face amount of the policy, together with an additional $1,000 as the double indemnity provided for in the event of accidental death.

The insurer has at all times been willing to pay the face amount due on the policy, but has refused to pay the additional $1,-000, asserting that the death of Bologna resulted directly or indirectly from war or an act incident thereto. Plaintiff was unwilling to accept the face amount and brought this suit. Defendant set forth in its answer that the amount due under the policy was the face value thereof, to wit, $1,000 plus interest and dividends, less, however, a policy loan and interest, making the amount due $945.46, and defendant averred that “it has repeatedly tendered, and does hereby tender again * '* * ” this amount. There was judgment in favor of plaintiff for $945.46, and plaintiff was required in that judgment to pay all costs. Plaintiff has appealed.

Subsequent to the appeal plaintiff accepted the amount awarded her under the judgment appealed from without prejudice to her rights to proceed with her appeal. Thus the sole question now before us is whether or not plaintiff is entitled to the additional $1,000 provided-for in the event of accidental death, or whether she should be denied that recovery on the ground that recovery of that double indemnity is barred by the policy clause which provides that it shall not be payable in the event death results directly or indirectly from war or any act incident thereto.

The plaintiff, prior to her first marriage, was Virginia Porretto. She was the wife of Anthony A. Bologna and was the beneficiary named in the policy, and some time after the death of Bologna, she became the wife of Francis B. Ryan, to whom she is now married. The defendant is New York Life Insurance Company.

There is ho dispute over the facts. They are set forth in a written stipulation from which we quote the following pertinent paragraphs :

“A. At the time of his death on August 19, 1943, insured was, and had been since July 24, 1943, an assistant purser, actively engaged in the United States Maritime Service, and was on the aforesaid date serving in such capacity aboard the SS J. Pinckney Henderson, a United States merchant ship, operated on behalf of the War Shipping Administration by the United Fruit Company, having signed on said vessel July 24, 1943 in Galveston, Texas.
“B. On August 19, 1943, while Anthony A. Bologna was still a member of the crew, the Plenderson was travelling in convoy with 56 other merchant ships and 4 armed escort vessels, bound for the United Kingdom. At about 9:20 P.M., at a point about 300 miles off Nova Scotia, the Henderson, which was at that time in convoy position 42, collided with the SS J. H. Senior, a tanker of United States register, travelling in convoy position 32. That at the time of the said collision, the said convoy was operating under orders from and under the operation control of U. S. Navy Commander Eastern Sea Frontier.
“C. At the -time of the said collision, the Henderson was carrying a war cargo consisting of cotton, magnesium, magnesite, glycerine, rosin, wax, oil, carbon black and other combustibles, and on its deck a cargo of army trucks. The Senior was loaded with high octane gasoline and a deck cargo of war planes. Both ships had 'the usual merchant ship complement of armed guards and guns and ammunition for servicing said armament.
“D. Both the Senior and the Henderson, as well'as the other ships and escorts in the convoy were blacked out, as required by convoy regulations; there was no inter-ship communication, and no fog signals were in operation.
“E. Immediately after the collision, which occurred during a dense fog, with moderate wind and slight swells, fire broke out on both vessels. The high octane aviation gasoline from the Senior spread over both ships and ignited the cargo of the Henderson. There was a series of heavy explosions, and in a few minutes both vessels were afire from stem to stern.
“F. Burning oil from the tanks of the Senior spread over the water. The fire on the Henderson spread rapidly, enveloping the decks and living quarters. Many of her crew and armed guards were trapped below decks and perished. All but three of said crew, who were able to gain the decks, were forced overboard by the fire, and also perished. Only three merchant seamen from the Henderson survived, all of whom suffered personal injuries. The flames aboard the Henderson spread so rapidly that it was impossible to lower a single lifeboat or raft.
“G. The flames and fire were so hot and made the Henderson so hot that four men, including Anthony A. Bologna, jumped over the starboard side into the flaming oil and gasoline. The burning gasoline spread from the Senior not only enveloped both ships but covered the sea surrounding the Henderson and was burning at the time the above mentioned men abandoned the Henderson.
“H. Anthony A. Bologna has never been seen nor heard from since he jumped over the starboard side of the Henderson on August 18, 1943 during the fire resulting from the above mentioned'collision.
“I. The Henderson on July 24, 1943 and at all times to and including August 19, 1943 was of American registry and was flying the American flag.”

Since the stipulated facts show that the death of the insured resulted directly and independently of all causes from bodily injury effected solely “through external, violent and accidental means”, and “occurred within ninety days after such injury * * * ,” the burden of showing that nevertheless the double indemnity is not due was placed upon the defendant by its contention that the accident resulted directly or indirectly from war or any act incident thereto, and the defendant is under the duty of showing that that policy provision is effective under the facts shown here. That the burden is on defendant in such situation is well settled. Cutitto v. Metropolitan Life Ins. Co., 185 La. 161, 168 So. 761; Bankson v. Mutual Ben. Health & Accident Ass’n, 208 La. 1008, 24 So.2d 59; Massachusetts Protective Ass’n, Inc., v. Ferguson, 168 La. 271, 121 So. 863; Heiman v. Pan American Life Ins. Co., 183 La. 1045, 165 So. 195; Lafield v. New York Life Ins. Co., La.App., 9 So.2d 248.

It must also be conceded that such a clause as defendant relies on is a valid and binding one provided it is not ambiguous, and that if the facts stipulated make the clause applicable, then the double indemnity was properly denied. Edwards v. Life & Casualty Ins. Co. of Tennessee, 210 La. 1024, 29 So, 50, 51. See, also, 37 C.J., Life Insurance, Section 46, page 383; 45 C.J.S., Insurance, § 849.

In the Edwards case, the Supreme Court said: “ * * * while all ambiguities must be construed in favor of the insured and against the insurer the courts have no authority to change or alter their terms, under the guise of interpretation, when they are couched in clear and unambiguous language, * * *.”

And the Court further stated: “ * * * that according to the great weight of authority a provision in a policy limiting the liability or exempting the insurer from liability while the insured is engaged in the naval or military service is valid and not against public policy, * * *

There is in reality no disagreement between counsel over the fact that in such policies these clauses limiting or exempting from liability are usually of one or the other of two kinds, — in one group are those policies which contain what is commonly known as a “status” clause; in the other are those containing what is usually referred to as a “result” clause. In the former, recovery is denied if the insured is a member of some particular designated group, such as the Army or the Navy. In the other group it is stipulated that recovery will be denied not because of the status of the insured as a member of any particular group, but if his death results from some particular cause.

And in reality counsel do not disagree over the fact that the clause here is a “re-suit” clause and that, therefore, recovery depends upon the cause of the accident and not upon the status of the insured. Counsel for plaintiff asserts that since the clause is a “result” clause and since recovery of double indemnity may be denied only if death resulted from war or any act incident thereto, recovery cannot be denied since, so counsel declares, not only was the insured not engaged in war but, as a matter of fact, there is nothing to show that war was being waged in the locality in. which the accident occurred. And, furthermore, argues counsel the facts show that the accident resulted not from a war hazard but from a marine risk. He says that the danger of a collision at sea is a marine risk, and that, consequently, whatever may be the surrounding circumstances, the cause of the loss was merely a collision at sea which is a marine risk and nothing more.

We disagree with the contention that there was nothing to show that war was being waged in the North Atlantic at that time. Even if we had no knowledge of what was going on in that area, we think that the facts as stipulated unmistakably portray the existence of armed naval conflict. In the first place, both the vessels which collided “had the usual merchant ship complement of armed guards and guns and ammunition for servicing said armament.” And both were loaded with war material. In addition to the fact that both vessels were armed and loaded with war material, which, it is true, was intended for use in other theatres of war, both, and all other vessels in the convoy, were operating without any signals or inter.ship communications in spite of the fact that they were travelling at night and in a fog. All of these facts, which are set forth in the stipulation, show conclusively, we think, that there was constant fear of an attack in that particular theater. And, as a matter of fact, all 'of the vessels were being escorted at that particular point by four armed escort vessels of the United States Navy, and all of these precautions were being taken under orders of the proper officials of the United States Navy. But even without those stipulations, we could not .bind ourselves to the -facts of which the entire world at that time had knowledge. We realize that there are limitations to those facts of which the judicial mind is permitted to take cognizance. But the existence of a war in which our country is an active participant is a fact of which we must be aware as judges as well as citizens. That we may in fact take judicial notice of the existence of such a war has- often been held. Ex parte Zimmerman, 9 Cir., 132 F.2d 442, 445; State Mutual Insurance Co. v. Harmon, 72 Ga.App. 117, 33 S.E.2d 105, 108; Weisman v. United States, 7 Cir., 271 F. 944, 945; Stankus v. New York Life Ins. Co., 312 Mass. 366, 44 N.E.2d 687, 689; Hooker v. New York Life Ins. Co., 7 Cir., 161 F.2d 852.

Counsel for plaintiff, in his brief, says that; “ * * * If there ever was an actual ‘Battle of the Atlantic’ outside of the columns of the newspapers, there is certainly no scintilla of proof in this record that there was such a battle, and there is absolutely nothing in the record to place the áccident in which insured died even in the area where that imaginary battle is supposed to have occurred, much less to establish that his vessel and he were connected with or engaged in that battle when the accident occurred.”

We find ourselves in violent disagreement with the above statement and we conclude from the judicial knowledge, which, we have and are entitled to have, and from the facts as stipulated that there was a battle which was raging at that time and that the vessel on which the insured was travelling was taking part in that battle just as surely as if there had been firing of guns toward an enemy vessel or from an enemy vessel towards it.

Having then concluded that there was a war in progress which was having effect in that particular locality at that particular time, we pass on to a consideration of the question of whether or not the accident was caused directly or indirectly by that war or any act incident thereto. And here we note the very vigorous contention of counsel for plaintiff that, in this connection, we should apply the reasoning found in many cases in which it was attempted to lay-down a rule from which it might be determined whether any particular loss at sea resulted from a risk of the sea or from a hazard of war.

In the first place, we are well convinced that the exclusion clause relied upon by defendant may be applicable even though the accident which is relied on may not have re-suited from actual combat. We agree with what was said by the Supreme Court of Iowa in Eggena v. New York Life Insurance Company, 236 Iowa 262, 18 N.W.2d 530, 534, in which this same clause was relied on by this same defendant, that: “A clause excluding liability in the event death results directly or indirectly from war, we are satisfied, must apply to a member of the military forces, a member of an army tank crew, on active duty, while in the line of duty, acting under orders from superior officers and carrying out a military assignment as a part of his training during the prosecution of war. The death of insured was the direct result of an act incident t'o war. * * * We can conceive of no part of a soldier’s duties while an active member of a military force, except actual combat, which is more directly traceable to war than the performance of the duties in which deceased was engaged at the time of the fatal accident. This would be the common understanding of an injury caused by war and it was so reported by insured’s superior officer. It was a result of war, and as such the exclusionary clause applied.”

• The insured was not engaged in actual combat in Hooker v. New York Life Insurance Company, 161 F.2d 852, and yet the United States Circuit Court of Appeals for the Seventh Circuit held that because of that same clause there could be no recovery. There the Court said: “* * * The insured at the time of his death (May 19, 1943) and previous thereto1 was a captain in the United States Marines, assigned to Company ‘E,’ Third Tank Battalion, Third Marine Division, which was a part of the 21st Regiment of the United States Marines. On the date of the fatal accident this regiment was stationed in New Zealand and was engaged in war training maneuvers over an area of several square miles, about one mile from the bivouac area near Auckland. On the second or third day of the maneuvers Captain Hooker, while playing the role of a scout, was captured by the ‘enemy’ (Company “E”, Second Battalion, 21st Marines), and turned over to a patrol composed of about six members of Company ‘E,’ to be taken as a ‘prisoner’ to their command post. On this return trip, while the patrol had stopped for rest, Captain Hooker, taking the guards by surprise, made a break to escape. In his effort to do so he ran about one hundred yards with the guards in pursuit, when suddenly in the chase he leaped over a fence, breaking through bushes which were later found to cover the edge of a cliff about 60 or 75 feet deep. He fell over the cliff and was discovered below by the chasing patrol. He was semi-conscious and kept repeating such phrases as ‘have to get away’ and ‘can’t be captured.’ The accident happened about 2:30 p. m. and he died a few hours later from the injuries sustained in the fall.

We deem it of no importance that Bologna was in the Merchant Marine service and not actually in the Armed Forces since it is clear that the clause in question is a “result” clause and not a “status” clause.

In Vanderbilt v. Travelers’ Insurance Company, 235 N.Y. 514, 139 N.E. 715, the insured was a civilian. The important thing is not the status of the insured but it is the cause of the accident which resulted in the loss'. And we call attention to the fact that the cause need not be the proximate cause, but may be something which indirectly results from any incident of war, although we may say here that it is common knowledge that our merchant seamen were as actively engaged in fighting the recent war as were the members of the various services usually referred to as our Armed Forces.

When this case was first argued before us, counsel for plaintiff-appellant placed great reliance on the Hooker case, supra, which at that time had not been decided on appeal. That decision has since been reversed by the United States Court of Appeals for the Seventh Circuit, and the decision as rendered by that Court appears to us to be a tremendous barrier in plaintiff’s path. We quote again from that decision: “ * * * To think, as plaintiff would have us do, that war as used and intended by the parties was confined to combat service is to attribute to the word a meaning that is unnatural and unreal. Combat service is only the culmination of the myriad separate and independent acts all of which are an essential part of war. * * * ”

Again we say that counsel for plaintiff vehemently contends that we should follow certain cases relied on by him as laying down a rule by which it may be determined in any given set of circumstances whether the loss has resulted 'from a risk of war or a peril of the sea and he argues that in every case the risk must be definitely put into one category or into the other. We readily concede that ordinarily a. collision at sea may be classified as a marine accident and may be said to result from‘'a peril of the sea. And possibly if we were called upon to determine whether the death of Bologna resulted proximately from a war occurrence or proximately from a marine accident, we might say what the Supreme Court of the United States said in Queen Insurance Co. of America v. Globe & Rutgers Fire Insurance Co., 263 U.S. 487, 44 S.Ct. 175, 68 L.Ed. 402, and what it had previously said in Morgan v. United States, 14 Wall. 531, 20 L.Ed. 738, that possibly as between the two the accident could be said to have resulted proximately from a marine risk. But that is not the question which is presented here, for here the framers of the policy were careful to say that the double indemnity feature is eliminated not only if the loss results proximately from a war risk, but also if it results directly or indirectly from any incident of war.

Queen Insurance Co. v. Globe & Rutgers Fire Insurance Co, supra, is greatly relied upon by plaintiff, and unless analyzed, seems to be very potent authority in her favor. But we think that that case and Morgan v. United States, supra, are clearly distinguishable. In the first place, as we have said, in each of those cases the question involved was whether the loss should be charged to a war risk or to a marine disaster. In other words, the Court was faced with the necessity of definitely placing the loss into one group or into the other. The Court found it necessary to determine the proximate cause and.could not go further and find whether the loss could be traceable indirectly to any other .cause.

The Queen Insurance Company case may be distinguished from the case at bar on the ground that there the ship had not been required to join the convoy, but had done so because the master thought ■ it best, whereas here the ship was in convoy by military orders. It was also forced to operate completely without lights, completely without fog signals, and completely without intership communications, and all of this because of military orders.

That there is a distinction due to the fact that in the Queen Insurance case the ship was not ordered to- join the convoy is obvious and this distinction was pointed out by Mr. Justice Holmes of the Supreme Court of the United States, who was the author of the opinion in that case and who, in Standard Oil Company of New Jersey v. United States, 267 U.S. 76, 45 S.Ct. 211, 69 L.Ed. 519, plainly said that the jurisprudence reached in the Queen Insurance case was based largely on the fact that the vessel had not been taken from the owners by military orders, but had joined the convoy voluntarily.

It is very obvious, too, that even in the Queen Insurance Company case, Mr. Justice Holmes found it a little difficult to reach the conclusion which he did, for he said [263 U.S. 487, 44 S.Ct. 176]: “* * * There are special reasons for keeping in harmony with the marine insurance laws of England, the great field of this business, and as we could not reverse the decision below without overruling Morgan v. United States, we are of opinion that the decree of the Circuit Court of Appeals must be affirmed. * * * ”

Viewing the matter as a whole, our opinion is that such an exclusion clause is effective whether the insured is a member of the Armed Forces or not and whether or not there is actual combat at the time of the accident, provided the conditions are what they were shown to be in the agreed statement of facts.

. In Morgan v. United States, supra, the Supreme Court of the United States was called upon to definitely place the risk in one category or in the other. The United States had chartered a vessel from a private owner and had agreed that if loss should result from a war risk it would be responsible, but that if loss should result from a marine risk the owner would bear that loss. In that situation the Court found that the stranding, because of putting to sea to avoid enemy, attack, was- the result of a marine peril. The Court held that in that situation it could look only to the proximate cause and.could not “proceed further in order to find out whether the fact of war did not create the exigency * *

■•Every marine collision results from some cause. It may be because the helmsman of one ship is careless, or it may be because there is something defective about the steering apparatus of one or both of the vessels involved, or it may be the result of signals being misunderstood. All of those things and many others constitute what may be termed marine risks and any one of those risks might cause an accident in time of peace. But here the cause of the collision was obviously the fact that it was necessary to operate the vessels without signals and under the conditions already set forth, and those necessities were the direct result of the fact that the country was at war and that as an incident of war the ships were required to travel under those extremely dangerous conditions even though both vessels were heavily loaded with war material, explosive, combustible material at that. That in itself was an incident of war. They were both in. a large convoy operating under military orders. That was an incident of war. They were in a fog at night and were operating without lights, signals, or intership communications. These certainly were incidents of war.

It is argued that if double indemnity should be disallowed in this case, it would be necessary to refuse to allow it in any case no matter how remotely the accident might have resulted from war. It is said, for instance, if in any one of our American cities during a war a blackout had been ordered and as a result two- automobiles had collided, it would have been necessary to hold that the double indemnity feature of such a policy would not be effective. Our answer is that always a reasonable interpretation must be given to the clause in the polity-, and we say exactly what the United States Circuit Court of Appeals said in the Hooker case, supra: “Numerous hypothetical injuries have been cited and many others could be conjured to which the exclusion clause might not be applicable. As to some, no- doubt, a plausible argument can be made that such is the case. Generally, as shown by the cases, they may be classified as injuries not peculiar to the military service but tiróse equally likely to occur in civilian life. In other words, they are not the result of military service or war. We need not attempt, however, to draw the line between those which are excluded and those which are not, and neither do we need to- consider or decide hypothetical or imaginary cases. Our duty is to decide the question presented on the facts of this case and not some other.”

As a matter of fact, in Smith v. New York Life Insurance Co., Ohio Com.Pl. 1948, 86 N.E.2d 340, one of those hypothetical situations suggested by plaintiff was actually presented to the Court. There a civilian war worker in a bomb manufacturing plant in this country was killed when certain war material exploded from an unknown-cause. This accident occurred hundreds of miles from a combat area. The same clause which is presented to us was involved and the Court said:

“Counsel for plaintiff take the position that the exceptions must be drawn close to-the battle front and are not intended to include civilian workmen. This ignores the express provisions of the policy. The exemption is not confined to those in military service nor to the locale or vicinity of battle. The term ‘war’ has a far broader meaning than combat or battle and relates, to civilians, soldiers and sailors alike and to any place irrespective of its proximity to or distance from actual conflict.
* * * * * *
“Certainly there can be but little argument, but that the raising, training, equipping and transportation of troops, and the transporting, either by land, sea or water, of munitions of war for use in the waging of an existing war, are incidents of that war, since they are acts which are not incident to anything but war. Is the actual manufacture and handling of high expío-sives designed exclusively for use in the same war to be considered in any other light than that the same constitute acts incident to war? As stated in the case of Eggena v. New York Life Insurance Co., supra [236 Iowa 262, 18 N.W.2d 530], such acts are incident to nothing other than war, and without war would not occur.
“There is a wide difference between making and handling high explosives, the only use of which is for the prosecution of a war and the farmer who raises food, which ultimately may be used to feed the countries’ soldiers, or cotton which may be used in the manufacture of deadly explosives for use in the prosecution of the war. Such acts may be incident to hundreds of activities other than war.
“In the instant case the insured was directly engaged in the preparation of high explosives for exclusive use in the prosecution of the war in which this country was engaged.
“But for the war he would not have been so engaged, so that the conclusion must be reached that he was engaged in an act incident to war and the explosion which caused his death was likewise an act incident to war and that the provision in the policy for payment of double liability does not apply since the facts of insured’s death came within the plain provisions of the exceptions.”

Counsel cite many other eases, several of which have been decided since this case was first argued before us. And we find that these cases indicate a very definite trend towards a holding that an accident resulting from any dangerous situation created because of the existence of a war may be pointed to as an act incident to war.

In Railey v. United Life & Accident Insurance Co., 26 Ga.App. 269, 106 S.E. 203, a soldier of the United States Army was killed or drowned when the ship on which he was being transported to Europe to take part in the first World War collided with another ship. The Court held that he lost his life as the result of an incident of war.

In Selenack v. Prudential Insurance Co., 160 Pa.Super. 242, 50 A.2d 736, 739, the insured was taking part in training demonstrations in this country and he was in the turret of a tank. In order to avoid another vehicle, the tank was driven over an embankment and Selenack was killed. It was argued that his death did not result from military service in time of war. The Court said: “ * * * Death resulting from military service in time of war comprehends death in actual combat but is not so restricted as to exclude death under other circumstances, * *

In Coxe v. Employers’ Liability Corp., Ltd., 2 K.B. 629, a captain in the English army was assigned to guard a railroad station in London. He was struck by a locomotive and killed. The insurance policy involved covered death by accident but excluded recovery for any fatal accident “directly or indirectly caused by, arising from or traceable to * * * war.” The Court held that recovery should be denied, saying: “ * * * the words which I find it impossible to escape from are ‘directly or indirectly.’ ”

In Thompson, Sr. v. New York Life Insurance Co., Com.Pleas S.C., 13 Life Cases 235, the policy which was involved contained provisions identical with those which confront us. There a lieutenant in the United States Army was a member of the crew of an army plane transporting troops back to this country after the surrender of the Japanese but before Congress declared the war to have terminated. The Court said that the transporting of those troops was “casually related to 'the war * * Surely the transporting of munitions of war is also causally related to war.

In Clarke v. New York Life Insurance Co., Com.Pleas S.C., 13 Life Cases, 239, Colonel Clarke was engaged in administrative duty. He was being transported by plane from Athens, Georgia, to Tampa, Florida. The policy which was involved contained the identical provision which is found in the policy in the case at bar. The Court said his death had resulted from war or some act incident thereto, and that “ * * * If it had not been for the war he would.not have been in the army; he would not have been on this airplane. * *

In Stankus v. New York Life Insurance Co, 312 Mass. 366, 44 N.E.2d 687, 688, we again find a policy provision identical with that before us now. A seaman was lost when the vessel on which he was engaged wa9 sunk by a German torpedo in the North Atlantic. Among other things, the Court said: “ * * * The term ‘war* is not limited, restricted or modified by anything appearing in the policy. It refers to no particular type or kind of war, but applies in general to every situation that ordinary people would commonly regard as war. * *

The opinion goes on to discuss the situation which was then existing in the North Atlantic, the Court saying: “In the light of these reports, the attacks upon shipping in the North Atlantic during the summer and fall of 1941, the damage to two1 of our destroyers and the sinking of a third by submarines were events that arose out of attempts to stop the flow of war materials and supplies to Great Britain. While the nationality of these submarines is not mentioned in the statement of agreed facts, the conclusion is inescapable that they belonged to a nation at war with Great Britain. Great Britain was then at war with Germany and Italy. The President, on September 11, 1941, had stated that German or Italian vessels of war entered these waters at their peril. The sinking by German or Italian submarines of ships belonging to a belligerent nation, or of ships of another nation convoying war materials and supplies to a belligerent nation, is the usual result of waging war by one nation against another, Prize Cases (The Amy Warwick), 2 Black 635, 17 L.Ed. 459, and the torpedoing of the Reuben Janies while convoying vessels engaged in such traffic was an act that arose out of the prosecution of such a war.' It follows that the death of the insured arose directly or indirectly from war and was not a risk covered by the double indemnity provisions of the policy. Vanderbilt v. Travelers’ Ins. Co., 112 Misc. 248, 184 N.Y.S. 54; Id., 235 N.Y. 514, 139 N.E. 715; Letts v. Excess Ins. Co., 32 T.L.R. 361. See Coxe v. Employers’ Liability Assurance Corporation, Ltd., [1916], 2 K.B. 629; Parker v. Anderson, 112 Vt. 371, 25 A.2d 41.”

If the sinking of our vessels in that area at that time was, as we know it was, the result of war, then surely the throwing aside of all precautions in an effort to avoid the possibility of sinking was the direct result of an incident of war and the consequent accidents, this and no doubt others, which resulted, were traceable directly to incidents of war.

Counsel for plaintiff places much reliance on Johnson v. Mutual Life Insurance Co., 154 Ga. 653, 115 S.E. 14. There the insured, a soldier, was on a troop train in the United States. He was killed when his head struck an overhanging girder. The Court held that his death did not result from war or any incident thereto, but the Court very plainly said that there had been no showing that the accident had occurred during wartime. As a matter of fact, the accident occurred almost a year after the declaration of the Armistice which ended World War One. •

Counsel for plaintiff points with great confidence to the decision of the Supreme Court of Louisiana in Edwards v. Life & Casualty Insurance Co. of Tenn., 210 La. 1024, 29 So.2d 50, 53. In that case two policies of insurance were involved. When suit was brought on those two policies, the defendant took the position that the clause which precluded recovery was a status clause; in other words, that the insured was a member of the Armed Forces and, not having obtained' the permission of the insurer and not having paid the additional premium required, had lost the coverage of the policy. Our Supreme Court held that the clauses involved in those policies were “result” clauses insofar as that particular case was concerned. And the Court said that since the coverage of the policies would have been lost only if the death of the insured resulted from a risk of war, there could be recovery since the death had resulted from pneumonia contracted in this country and occurring in a hospital in this country. The Supreme Court said: “* * * it appears there is nothing that would even remotely indicate any causal connection between the insured’s death and the naval service in which he was enrolled at the time of his death * *

In the case before us it will not do to say that because the accident — a collision at sea — might have occurred had there been no war and had the ships been travel-ling under peacetime conditions, such a collision occurred solely and only as the result of a marine risk and was not indirectly the result of war or any act incident thereto. While, as we have said, it cannot be denied that certain marine risks always exist, the risk of collision here was tremendously enhanced by the conditions under which these vessels were travelling and therefore, in our opinion, these conditions were, to say the least, indirectly, if not directly, the cause of the disaster.

We are not impressed by the argument that the exclusion clause relied on by plaintiff is vague in that it does not with definiteness and precision point out just what should be considered as acts incident to war and that, therefore, because of that vagueness the clause should not be enforced.

It is always a dangerous thing to attempt to set forth with definiteness and precision all of the various facts or situations which may be contemplated in such a clause. If it is attempted to include all possible situations then there is always the fear that one or more may be omitted and if so, iit will certainly be argued that by including those set forth there was manifested an intention to exclude all others. It is safer to word such an exclusion in general terms and to leave it to the courts when necessary to determine just whether the facts of any particular case do or do not bring it within the contemplation of the clause. That is what was done here. And our conclusion is that the facts presented make the clause applicable and bar the claim of plaintiff for double indemnity.

Since the defendant tendered the amount which was awarded in the judgment below, it is obvious that the district court was correct in requiring plaintiff to pay the costs.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.

McBRIDE, Judge

(dissenting).

It is my opinion that the plaintiff is entitled to recover the $1,000 under the double indemnity provisions of the policy for two reasons: (1) that the exclusionary clause relied upon by the insurance company is too vague and ambiguous to be invoked, in that it does not with certainty and precision point out just what are to be considered acts incidental to war, and (2) that Bologna’s death resulted not “directly or indirectly from war or any act incident thereto,” but from an incident of a peril of navigation which is prevalent in times of peace as well as in times of war.

I concede that a war risk exclusion is not against public policy, and that such provision will be enforced, for it is a part of the contract between the parties. But when one buys a policy of insurance, and an exclusion from coverage is stipulated in the policy, the exclusion must be couched in crystal-clear language that will inform a reasonable person exactly under what circumstances the insurer is to be absolved from liability in the event of the maturity of the policy. No “catch-all” exclusion clause such as the one we have considered should be applied to such facts as we find involved here. My colleagues are of the opinion .that an insurer who attempts to include all possible situations might overlook one or more, which circumstance might militate against a successful defense by the insurer in certain cases. They say that it is safer for the insurer to word the exclusion in general terms, and to leave it to the courts to determine whether the facts of any given case are within the contemplation of the'limitation of the insurer’s liability. My answer to that is that when one buys life coverage, he does so for the protection of his beneficiary, and is well within his rights in relying on that protection being there when the policy becomes payable. He does not contemplate buying a lawsuit, and is entitled to know exactly in what particulars and under what circumstances and facts the insurer is to escape liability under the exclusion from coverage clause. My thought is that an insurer must spell out the exclusion.

It is a cardinal rule in construing insurance policies that all ambiguities are to be resolved most strongly against the insurance company. No' citation of authority on that point is necessary.

I doubt very much if, at the time the policy was issued (June, 1936, long- before the outbreak of the war), the author of the clause had in mind that the death of a merchant seaman resulting from an unexplained collision between merchant ships was intended to be included in the provisions limiting the liability of the insurance company.

I doubt most seriously that the author of the clause intended that the word "war” would have any meaning other than the popular conception of the word, that is, open combat with an enemy on land, sea, or in the air, or actual contact with the enemy. And assuming that the insured, Bologna, was a reasonable person, it cannot be doubted that he had no other conception of the meaning of the word “war.”

My colleagues believe that the word “war” is to be construed in a broad and technical sense, rather than in its ordinary sense. With this I cannot agree. I can only say that the phraseology of insurance contracts is that chosen by the insurer, and the contract, in a prepared and fixed form, is tendered to the prospective policyholder, who is often without technical training and who rarely accepts the policy with a technician at his elbow.

Frankly, I do not comprehend exactly what the insurer intended to exclude from policy protection. Are the words “incident of war” to embrace incidents which are remotely connected with armed hostilities? If so, how remotely connected? I could recite many hypothetical cases which would be extreme to say the least, but if the arguments of the defendant are to prevail, almost every accidental death occurring during a period of war could be somehow traceable to the war, and be deemed incidental to war.

If the insurance company had intended that a death occurring under circumstances prevalent in the instant case was to be without the policy range of protection, it would have been simple enough for the defendant to have added to the limitation clause “or any act incident to perils of the sea during war.”

I would be unwilling to place a construction on the vague and ambiguous limitation of liability clause so as to have it encompass a case such as the instant one.

It must be borne in mind that Bologna was not engaged with the armed forces, but was a member of the United States Maritime Service, serving as Assistant Purser on a merchant ship. He maintained his civilian status, for it is true that seamen in the Maritime Service have never been classified as other than civilians.

From the birth of navigation, when man discovered that a fallen tree would bear his weight downstream and that by the use of a pole or rough paddle he could check, accelerate, and direct its course, catastrophes on the water have been all too common.

Tire stipulation of facts recites that both vessels had the usual complement of armed guards and guns, with ammunition for servicing said armament — which can be said to be true also of most any vessel that plied the seas during the late war- — - but nonetheless, by carrying such armament, and perhaps having an armed escort, the vessels cannot be taken out of the category of merchant ships. The armed guards and the fore and aft guns were installed on the vessels involved herein, and upon other ships flying the American flag, as a means o-f repelling attacks by submarines, airplanes, and other hostile craft. The armed guards, the guns and ammunition, and the armed escort had nothing whatever to do with Bologna’s accidental death.

The prevailing opinion recites that both vessels were loaded with war materials. It may be said that during war practically all cargo can be classified as war cargo. This would even extend down to vehicles loaded with materials carried to and from war plants and shipyards by the humble ferries plying the Mississippi River. If the argument of the defendant is to prevail, any insured who was a member of the crew of most any kind of water craft could be considered engaged in the war, and his activities would bar recovery of the double indemnity benefits under the exclusionary provisions of the policy contract.

The stipulation of facts recites that the vessels were travelling in convoy on s foggy night without signals or intership communication, but nevertheless, in my opinion, the “SS J. Pinckney Henderson” was not engaged in a warlike operation. In the case of Nordling v. Gibbon et al., D.C., 62 F.Supp. 932, the court was concerned with the death of a merchant seaman who was insured under a policy providing for payment for loss of life and bodily injury “occasioned by capture, seizure, destruction by men of war, piracy, takings at sea, arrest, restraints and detainments and other warlike operations * * The insured was a member of the crew of a vessel sailing from Cuba bound for Baltimore, carrying a cargo of molasses to a distillery at Baltimore to be used to manufacture alcohol which in turn was to be used in the manufacture of powder and other war materials. The ship proceeded under orders of the Navy Department completely blacked-out, and collided with another vessel which was also travelling under black-out conditions by'order of the Navy Department. The ship of whose crew the insured was a member sank, and the insured died. The court was of the opinion that the question involved was whether death was occasioned by “other warlike operations”, and in resolving the question held that the collision did not result from warlike operations.

In Yorkshire Dale Steamship Co., Ltd., v. Ministry of War, Transport, Times Law Reports, June 5, 1942, Vol. LVIII, p. 263, Lord Porter said, at page 269: “ * * * (III) in the case of a ship proceeding on a voyage which is not in itself a war-like operation, absence of lights, sailing in convoy, and zigzagging are not separately or in combination a war-like operation, nor indeed is it a war-like operation to follow the course set by the naval officer in charge of the convoy * * * ”

On Page 267, Lord Wright commented: ■“ * * * Lord Dunedin summed up the position briefly. After observing that the Matiana case (supra) was a clear decision that the escorting vessel of a convoy was engaged in a war-like operation while the escorted vessel was not * * * ”

To quote further from the case, the Lord Chancellor stated, on page 264: “ * * * It is for this reason that sailing without lights, or sailing in convoy, are regarded as circumstances which do not in themselves convert marine risks into war risks * ■ * ”

While there are several cases wherein the construction of “results” clauses identical with or similar to those relied upon by the present insurer were involved, an examination will show that not one contains facts analogous to those of the instant case.

In Eggena v. New York Life Ins. Co., 236 Iowa 262, 18 N.W.2d 530, 533, the insured, a member of the United States Army, was fatally injured when the tank in which he was training fell from a bridge during routine army maneuvers. The court held that military personnel must be trained in the actual field work which will be encountered later in combat, and that a soldier’s training should be considered an essential and integral part of prosecuting a war. The court said: “It was not a hazard of normal life but a hazard of one who was engaged in military service only.”

In Hooker v. New York Life Ins. Co., 161 F.2d 852, 857, decided by the United States Circuit Court of Appeals for the Seventh Circuit, with one judge dissenting, the insured was a captain in the United States Marine Corps and met an accidental death in New Zealand while engaged in war training maneuvers. The court said: “The circumstances surrounding the unfortunate accident which befell insured point unerringly to the conclusion that he was engaged in ‘an act incident to war.’ The total objective of his military service was to prepare himself and those under his command to aid his country in winning the war. Solely for the accomplishment of this objective he and those under his command were stationed in New Zealand, a place designated for their training. They were engaged in an activity under military command as one of the necessary steps in the conduct of the war. The insured was in New Zealand because of war and his activities were because of war and a part of war. The activities in which he was engaged and which resulted in his death were in no wise conumon to a civilian. * * * ” (Italics mine.)

In Vanderbilt v. Travelers Ins. Co., 235 N.Y. 514, 139 N.E. 715, the insured, a civilian, was a passenger on tire British Steamer “Lusitania” and was drowned when the ship was sunk by a torpedo launched from a German submarine. It will be noted that the death resulted from the action of a belligerent enemy, and the court properly held that the sinking of the vessel resulted from an act of war within the contemplation of the clause limiting policy protection, and exonerated the defendant company.

In Coxe v. Employers’ Liab. Assur. Corp., 2 K.B. 926, the policyholder was a captain in the British Army on active duty patroling outposts along a railroad track, and during a black-out was struck by a locomotive and killed. The court held, and I believe properly so, that the death, which occurred while the insured was performing military duties, was an incident of war.

I cannot refrain from making this observation here: If Captain Hooker had been a civilian and a member of the train’s crew, and had been killed through the train colliding with another, then 'I would say that the facts were analogous to those in the Bologna case, and if the court had been confronted with those facts, I am not at all sure that the insurer would have been absolved under the exclusionary clauses contained in the policy.

In Stankus v. New York Life Ins. Co., 312 Mass. 366, 44 N.E.2d 687, 688, the insured was a member of the Navy and a crewman of the “USS Reuben Jones,” a naval vessel which was torpedoed by an enemy submarine, resulting in his death. Here again we find a case where the exclusionary clauses were undoubtedly applied only because death resulted during military service and from enemy action.

In Smith v. New York Life Ins. Co., Ohio Com.Pl. 1948, 86 N.E.2d 340, the insured was a civilian worker in a plant manufacturing bombs to be used by the military. The case was decided by the Court of Common Pleas for Franklin County, Ohio, which is a trial court, and I heartily disagree with the conclusion reached by the judge, believing his opinion to be exceedingly farfetched. A research fails to reveal whether an appeal from the judgment was prosecuted.

Railey v. United Life and Accident Ins. Co., 26 Ga.App. 269, 106 S.E. 203, involved a soldier who was killed when the ship on which he was being transported to Europe to take part in the First World War collided with another vessel. Here again we have the military aspect. The insured was killed while engaged in military duty.

In Selenack v. Prudential Ins. Co., 160 Pa.Super. 242, 50 A.2d 736, the military status of the insured is prominent. He was killed during army training in this country while riding in the turret of a tank.

In Thompson, Sr., v. New York Life Ins. Co., Com.Pl. S.C., 13 Life Cases 235, liability was limited to the premiums paid if death resulted from an act of war or any act incident to war while the insured was in the military service of any country engaged in war, or if death resulted from operating or riding in any kind of aircraft, whether as a passenger or otherwise. The insured, who was a navigator attached to a troop carrier command in the Pacific Area, left Okinawa by plane bound for Iwo Jima on a troop ferrying mission. The plane reported by radio from the vicinity of the Bonin Islands, but was not thereafter heard from and no trace of it was ever found. Under the peculiar provisions of the exclusionary clauses, and under the facts of the case, there is no doubt that the court correctly held that the insured died in the performance of military duties which were incidental to the prosecution of the war.

In Clarke v. New York Life Ins. Co., 13 Life Cases 239, decided by the Court of Common pleas, Sumpter County, S. C., the limitation clauses were similar to those involved in the Thompson case. Clarke was assigned to an administrative post in army aviation, but was accidentally killed while riding in an airplane on active duty. In addition to applying the war risk clause, the court also found that recovery on the policy was barred by virtue of prohibited “aviation activities.”

Thus, it will be seen that in each of those cases which were persuasive to my colleagues, except the Smith and the Vanderbilt cases, the insured was killed while performing duties which were only performed by those in the armed service. In the Vanderbilt case, although the insured was a civilian, he came to his death as the result of an act of war perpetrated by an enemy of the country whose flag was flown by the “Lusitania.” The Smith case, involving a worker in a munitions plant, does not impress me in the least.

Even assuming that the exclusionary clause in Bologna’s policy is free from ambiguity, my opinion is that it can avail the defendant nothing, and that the insurance company is liable for double indemnity. The manner of the insured’s death was such as was likely to happen to a civilian as well as to one engaged in military service. The courts made that point in at least 'two of the cases cited in the majority opinion. In the Hooker case it was said: “The activities in which he was engaged and which resulted in his death were in no wise common to a civilian.”

And in the Eggena case we find: “Here the deceased came to his death riding in an army tank as a member of a crew in training for war, which is not a cause of death common to civilian life.”

Bologna was not in any manner engaged in war within the context and contemplation of the disputed clause. He was pursuing his duties as a merchant seaman while attached to a merchant vessel not engaged in hostilities, and his death was an incident of a peril of navigation and not directly or indirectly as a result of war. The chain of causation is: the collision of the ships, the resulting fire on the “Henderson,” followed by Bologna’s leap into the flaming sea. What caused the vessels to collide is not shown by the record, and it may be that the accident occurred through faulty steering apparatus on .one or both of the vessels involved, or from negligence or misunderstood signals, all of which things constitute what might properly be classified as marine perils, and any one of which might cause ships to collide in broad daylight during times of the most tranquil peace and under the most ideal sailing conditions.

The incident of war factor, in my mind, does not enter the case, and I cannot lead myself to the belief that Bologna’s death was an incident of war. I quite agree with what Judge Dawkins, of the United States District Court, said in Savage v. Sun Life Assur. Co. of Canada, 57 F.Supp. 620, 621, wherein was involved a policy which excluded double indemnity for death resulting from war or any act incident thereto: “The phrase ‘incident thereto’ would seem to contemplate an incident such as the striking of an enemy mine, or the loss of life in the act of .taking off or landing of a military plane from an aircraft carrier, etc.”

My opinion is that the judgment appealed from should be reversed, and that plaintiff .should recover.

I respectfully dissent '


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    DE CUERS v. CRANE CO. et al.
    No. 19106.
    Court of Appeal of Louisiana. Orleans.
    April 11, 1949.
    Rehearing Denied May 9, 1949.

      Mark W. Malloy, of New Orleans, for plaintiff-appellee.
    Rosen, Kammer, Wolff, Hopkins, & Burke and Alfred C. Kammer, all of New Orleans, for D. H. Holmes Co., Ltd. and Maryland Casualty Co.
    Edward Rightor and W. H. Sellers, both of New Orleans, for George J. Glover Co., Inc. and Employers’ Liability Assur. Corporation, Limited.
    Christovich & Kearney and Alvin R. Christovich, all of New Orleans, for American Heating & Plumbing Co.
    Frank T. Doyle and Nicholas Masters, both of New Orleans, for Crane Co. and Hartford Accident & Indemnity Co.
   JANVIER, Judge.

During the years 1946-47, D. H. Holmes Company, Ltd., a corporation which operates a large department store in downtown New Orleans, undertook certain additions and alterations including- the installation of new elevators and escalators in its store building. It employed George J. Glover Co., Inc., as contractor to do this work. During the course of the work, on the morning of September 16th, 1946, shortly before 10:00 o’clock, Miss Hilda DeCuers, while on her way- to her place of employment in another nearby department store, was walking along Iberville Street near the rear entrance of the Holmes’ establishment. Because of the work which was going on, there had been constructed on the sidewalk a work bench alongside the building, and material, lumber and debris were piled on the sidewalk so that a barricade had been erected which prevented pedestrians from continuing along the sidewalk and made it necessary that they walk in the street at that point. Miss DeCuers did this, and while she was passing in the street near the curb she sustained injuries when several pieces of large pipe, six inches in diameter and twenty feet long, which had been stacked on the sidewalk longitudinally with the curb, became dislodged and rolled into the street, striking her and knocking her down.

She brought this suit for damages against D. H. Holmes Company, Ltd., its liability insurance carrier, Maryland Casualty Company, George J. Glover Co., Inc., and its liability insurance carrier, The Employers’ Liability Assurance Corporation, Ltd., and The Crane Company, which corporation had furnished the pipe and had unloaded it and stacked it on the sidewalk and the liability insurance carrier of The Crane Company, to wit: Hartford Accident and Indemnity Co. She prayed for solidary judgment against all six defendants in the sum of $15,528. She charged negligence in the three defendants, D. H. Holmes Company, Ltd., George J. Glover Co., Inc., and The Crane Company in the following particulars: in failing to provide a safe and proper pathway for pedestrians; in negligently placing, piling and stacking heavy metal pipes in a spot and in a position which made it dangerous to passersby; in failing to take proper precautions to prevent such an accident from occurring; and in failing to provide adequate employees, watchmen and barricades to safeguard passersby.

The Holmes Company and its liability insurance carrier, Maryland Casualty Company, answered denying all negligence on the part of the Holmes Company and averring, in the alternative1 that if it he shown that the Holmes Company was in any way negligent, that Miss DeCuers herself had been at fault.

“In removing the barricade and endeavoring to pass on the sidewalk where building material had been placed;
“In not crossing to the sidewalk on the opposite side of the street upon reaching the barricade, in order that she might continue her passage in safety;
“In walking in the street when other means were provided for her passage; and
“In walking in the street and failing to exercise proper care and caution, for by so doing, she could have avoided injury to herself.”

These defendants averred that the above acts of negligence on the part of plaintiff constituted contributory negligence and should prevent recovery by her.

The Holmes Company and the Maryland Casualty Company then averred that the George J. Glover Co., Inc., had contracted to do the work which was in progress at that time, and that in that contract the Glover Company had assumed full responsibility for any such occurrences, and the Holmes Company and the Maryland Casualty Company then called the Glover Company in warranty and prayed that, in the alternative that if there be judgment rendered against them, in turn, each have similar judgment in warranty against the George J. Glover Company, Inc.

The Crane Company and the Hartford Accident and Indemnity Company denied all of the allegations of plaintiff’s petition which charged negligence against The Crane Company, and by supplemental answer then pleaded that, in the alternative that The Crane Company be held to be in any way at fault the proximate cause of the accident was the contributory negligence of Miss DeCuers.

George J. Glover Co., Inc., and The Employers’ Liability Assurance Corporation, Ltd., denied any negligence on the part of the George J. Glover Co., Inc., and averred in the alternative that if it should appear that there was any negligence in the George J. Glover Co., Inc., that the contributory negligence o.f plaintiff should bar her recovery, and they charged specific acts of negligence practically identical with those alleged by the Holmes Company and the Maryland Casualty Company.

By supplemental answer, George J. Glover Co., Inc., alleged that by subcontract the American Heating and Plumbing Company, a partnership, had undertaken to do a certain part of the work which was then in progress and that the pipe, which had been stacked on the sidewalk and which had fallen and caused the injury to Miss DeCuers, had been ordered by the said American Heating and Plumbing Company and had been placed on the sidewalk for use by that partnership, and that in the subcontract under which that partnership had agreed to perform its part of the general contract, the subcontractor had tak-en cognizance of the stipulations set forth in the main contract and, as a result of those stipulations, had agreed to indemnify and hold harmless the general contractor against any such claim for damages as that presented in ifchis case. The George J. Glover Co., Inc., then called the said partnership and -the individual members thereof in warranty and prayed that, in the event that it, George J. Glover Co., Inc., be held liable for plaintiff’s injuries, it in turn have judgment in warranty against the said partnership and the individual members for a like amount.

The American Heating and Plumbing Company filed exceptions of no cause of action and no right of action to this call in warranty and prayed that the order permitting the American Heating and Plumbing Company, and the individual partners, to be called in warranty be set aside and annulled as having been improvidentfly signed. These exceptions were maintained and the call in warranty was ordered dismissed, but a rehearing was granted and, on rehearing, the exceptions were overruled. The American Heating and Plumbing Company and the individual partners then answered, denying the right of the George J. Glover Co., Inc., to call them in warranty and averring that they had nothing whatever to do with the stacking of the pipe; that none of the employees of the partnership was present at the time of the delivery or 'at the time of the accident, and that there was no negligence whatever on the part of the said partnership or of any of its employees.

After a lengthy trial, there was judgment in favor of plaintiff for $1,764 solidarity against D. H. Holmes Company, Ltd., Maryland Casualty Company, George J. Glover Co., Inc., The Employers’ Liability Assurance Corporation, Ltd., The Crane Company and the Hartford Accident and Indemnity Company. There was also judgment in favor of defendants, D. H. Holmes Company, Ltd., and Maryland Casualty Company in warranty against George J. Glover Co., Inc., for $1,764 and there was further judgment in favor of American Heating and Plumbing Company and t'he individual partners, and their insurer, the Fidelity & Casualty Company of New York (although that insurer was not made a party defendant in the call in warranty), and against George J. Glover Co., Inc., and its insurer, Employers’ Liability Assurance Corporation, Ltd., dismissing the call in warranty of George J. Glover Co., Inc.

D. H. Holmes Company, Ltd., and Maryland Casualty Company appealed from the judgment in favor of Miss DeCuers and against those corporations. The Crane Company and Hartford Accident and Indemnity Company appealed from the judgment against those corporations. George J. Glover Co., Inc., and The Employers’ Liability Assurance Corporation, Ltd., appealed -from the judgment dismissing the call in warranty against the American Heating and Plumbing Company and the individual partners; and George J. Glover Co., Inc., and The Employers’ Liability Assurance Corportion, Ltd., also appealed from the judgment in favor of the plaintiff and against those corporations, and George J. Glover Co., Inc., and The Employers’ Liability Assurance Corporation, Ltd., also appealed from the judgment insofar as it ran in favor of D. H. Holmes Company, Ltd., and Maryland Casualty Company in warranty and against George J. Glover Co., Inc., and The Employer’s Liability Assurance Corporation, Ltd.

Plaintiff has answered the appeal praying that the amount awarded her be increased to $4,000.

There is practically no disagreement over the facts and no evidence whatever to show any fault on the part of plaintiff. She was employed at another large department store located nearby and was walking along the upper side of Iberville Street between Bourbon and Dauphine Streets. When she reached that part of the sidewalk across which the barricade had been erected, it became necessary that she step from the curb into the street and walk alongside the curb to the other end of the barricade, or that she cross the street to the lower side of Iberville Street.

We find no force whatever in the argument that she should have crossed to the other side of the street instead of proceeding in the street around the barricade. This course would have required her to cross the street in the path of vehicles and would have required that she again cross the street on reaching the corner of Dau-phine Street. In doing so she would have been confronted with greater dangers than those which were presented by the course which she did adopt. In the numerous briefs and in oral argument, none of the attorneys for the various defendants made any suggestion whatever as to any act on her part which constituted negligence. Miss DeCuers says that “the pipes were stacked on the sidewalk one on top of the other, in a slanting position, very near the curb.”

She added that “for no reason at al'l the pipes rolled down and hit me on the foot and threw me down, and my hand went under and the pipes came rolling down on the hand.”

The real controversy arises over the question of which, if any, of the various defendants should be held responsible.

The Holmes Company owns and operates the store and it had entered into a written contract with George J. Glover Co., Inc., under which that company had undertaken to do the work of altering and remodelling a portion of the store. This contract contained two stipulations reading as follows:

“If either party to this contract should suffer damage in any manner because of any wrongful act .or neglect of the other party or of any one employed by him, then he shall be reimbursed by the other party for such damage.”
$1 % :}i i}i . #
“The contractor agrees that he is as fully responsible to the Owner for the acts and omissions of his subcontractors and of persons either directly or indirectly employed by them, as he is for the acts and omissions of persons directly employed by him.”

The contract provided that the Glover Company would be paid on what is known as a “cost plus” basis, that is to say, the contractor was to keep an accurate account of all costs of labor and material and was to be reimbursed for those costs, and in addition, was to be paid a fixed percentage thereof which would represent its own cost of operation and profit. The Glover Company in turn had contracted with the partnership known as American Heating and Plumbing Company to do a certain part of the work, also under a “cost plus” contract, and this subcontract provided that this work should be performed under certain stipulations set forth in the principal contract, one of which provided that the subcontractor (the partnership, American Heating and Plumbing Company) would “ * * * be bound to the Contractor by the terms of the Agreement, General Conditions, Drawings and Specifications, and to assume toward him all the obligations and responsibilities that he, by those documents, assumes toward the Owners.”

The work of American Heating Company was of a nature which would have interfered with the store operations of the Holmes Company, so it was understood that that partnership would perform its work only at night after the store had dosed. However, because the furnishers of the materials used by that partnership would make deliveries only in the daytime hours, the American Heating Company had no employee available to receive its material when delivered at the scene of the work, and since the Glover Company, because of the nature of its contract with the Holmes Company found it necessary to receive and check all material delivered to the “job”, it was arranged by American Pleating and Plumbing Company that the Glover Company would accept such material as might be delivered in the daytime for the use of the former company. Therefore, when, on September 13, 1947, the American Pleating Company ordered this particular pipe from The Crane Company, The Crane Company was told to instruct its driver, who would deliver the pipe, to see an employee of the Glover Company for acceptance of delivery. Accordingly, the dray or delivery receipt prepared by The Crane Company which accompanied the pipe when it was delivered at the scene on the morning of September 16th, showed the following: “See Geo. J. Glover’s man for deliv.”

As an additional reason for this notation, it is shown that at that time the American Company was performing other work for the Holmes Company directly and it was thought advisable to identify this particular pipe as being part of the material which was going into the contract which it was performing, as a subcontractor for the Glover Company. The record shows that the Glover Company had been notified on the day before this pipe was delivered that it would arrive on the next morning and that, accordingly, a space on the sidewalk had been cleared so that the pipe might be put there. On the next morning, which was the morning on which the accident later occurred, the driver of The Crane Company, accompanied by a helper, arrived at the scene at a time which, from the record, we fix at about 8 :S0 a. m. When the driver of the Crane truck reached the Holmes store, he asked for a representative of the Glover Company and learned that the proper man who should receive the shipment for the Glover Company and for the American Company could not be located at that time.

Very near to that same entrance of the Holmes establishment was the desk of H. J. Lais, who says that he was employed by the Holmes Company “in a checking capacity” and whose duty it was “to receive freight and other deliveries to D. H. Holmes.” Lais was at his desk near the entrance when the pipe arrived, and he says that he knew that Enderline, the proper employee of the Glover Company, was not there just at that moment so that he, Lais, “told the driver to put this pipe off here.” He says that he signed the dray receipt and that the driver and his helper unloaded four of the ten lengths of pipe which were placed on the sidewalk parallel to the curb and parallel to one another. He says: “We chocked them at each end, one in the center, * * * »

When these first four- pieces of pipe had been laid alongside one another and chocked, Enderline arrived on the scene to take charge of the receiving of the pipe. Lais gave him the receipt which he, Lais, had signed so that after the completion of the delivery, he could give the receipt to the proper person. The record shows that the other six sections of pipe were then unloaded, the first three being placed on top of the four in the “valleys”, the next two on top of those three and the last on top of the two so that the ten were then stacked in what all of the witnesses term “a pyramid”. When this unloading and stacking was completed, the Crane employees left. This was at approximately 9:15 a. m. The accident occurred at about 9:40 or 9:45 a. m. so that between the final unloading of the pipe and the occurrence of the accident about twenty-five or thirty minutes had elapsed.

We shall first consider whether there is any liability in the Crane Company, since, so far as the record affirmatively shows, its employees were the last persons who actually handled the pipe before the occurrence of the accident. It is obvious that plaintiff could not be expected to know just what was the cause of the falling of the pipe. She was walking along the street in a place in which she was forced to walk and was under no duty to- 'anticipate that the pipe stacked on the sidewalk would fall or roll. Nor was there any reason why she should notice just what may have caused it to do so. Under these circumstances, she had a right to rely upon the doctrine of res ipsa loquitur and to call upon those who were responsible .for the presence of the pipe on the sidewalk, if they would escape liability, to show that there was no negligence on their part. Lykiardopoulo v. N. O. & C. R. Light & Power Co., 127 La. 309, 53 So. 575, Ann.Cas.1912A, 976; Hake v. Air Reduction Sales Co., 210 La. 810, 28 So.2d 441; Plunkett v. United Electric Service, 214 La. 145, 36 So.2d 704, 3 A.L.R.2d 1437; Horrell v. Gulf & Valley Cotton Oil Co., li La.App. 603, 131 So. 709.

But the employees of The Crane Company had been gone for about one-half hour, or possibly more, and there was much activity on the sidewalk and in the street at that time of the morning. There was, in fact, a work bench on the sidewalk against the building itself alongside the pipe, and there has not been negatived the possibility that the pipe may. have been struck by some one working at that work bench. Then, too, it was shown that there was considerable activity in the street, and it requires no imagination at all to picture the situation a-s it must have existed at that time of the morning. Mr. Lais says that trucks delivering merchandise to the Holmes Company frequently stopped at that entrance, and Mr. McCutcheon, another employee, a special officer and watchman, says that he was near the door and that there was “much traffic back and forth”. He added: “It seemed like a truck came by and jarred the pipe loose.”

In view of these possibilities, we do not think that The Crane Company should be held liable because we feel that the doctrine of res ipsa loquitur should not be applied without proof that there was no intervening occurrence between the stacking of the pipe and the happening of the accident, which might itself have been the cause thereof. See Hake v. Air Reduction Sales Co., syllabus No. 2, supra and Plunkett v. United Electric Service, syllabus No. 3, supra.

All of the witnesses who were present when the pipe was ■ stacked say that it was stacked and chocked properly and in the usual way. They say that there was sand on the sidewalk which would have aided in preventing the pipe from rolling, and that, in addition to this sand, four chocks were placed on the sidewalk side of the bottom length of pipe nearest the curb. If the accident had occurred immediately after the pipe had been stacked and before any possible intervening occurrence could have caused it to fall, then under the doctrine of res ipsa loquitur the Crane Company should be held liable. But we feel, in view of the length of time which intervened and because o'f the many possible occurrences which might have caused the accident, it would not be proper to hold that company liable under the doctrine referred to.

We next consider the contention of plaintiff that the Holmes Company was at fault and that, therefore, it and its liability insurance carrier should be held liable. We note from the petition that it is not charged that the Holmes Company is liable because of its ownership of the adjacent premises. The only charges are directed at the negligence of that company and the other defendants in 'failing to provide a proper passageway, and in connection with the stacking and chocking of the pipe. As a matter of fact, under the firmly established jurisprudence of this state, no liability based on the ownership of the adjacent premises could be charged to the Holmes Company, and it could not be held responsible without evidence showing that the falling of the pipe was the result of its negligence. Far from showing this, the record establishes the fact that the Holmes Company had nothing whatever to do with the stacking of the pipe and was in no way involved or concerned with its presence on the sidewalk, except that the pipe was to be used in the carrying out of the contract by the Glover Company and its subcontractors. The Glover Company was an independent contractor and over its work the Holmes Company had no control. Its only right was to see that the contract was carried out in accordance with its terms, but it could not interfere in any way with the conduct or progress of the work.

It is well settled that where a contractor undertakes to do work for an owner under a contract which provides that the owner shall furnish the plans and specifications and that his only right shall be to' insist that the job be done in accordance with those plans and specifications, the contractor does not become the agent or employee of the owner. Therefore, the owner is not liable to third persons who may be injured through fault of the contractor or his employees. Robideaux v. Hebert, 118 La. 1089, 43 So. 887, 12 L.R.A.,N.S., 632; Crysel v. Gifford-Hill & Co., La.App., 158 So. 264; West Bros. v. Pierson, La.App., 2 So.2d 71. This rule is applicable as well where a cost plus contract is involved as where the contract provides for a fixed compensation. Standard Oil Co. v. Fontenot, 198 La. 644, 4 So.2d 634; Underwood v. Davies, 5 Cir., 287 F. 776.

The mere fact that, because of the operations of the contractor or subcontractor, a dangerous situation was created on the sidewalk alongside the place of business of the Holmes Company did not make that company liable for an accident which might result. McCormack v. Robin, 126 La. 594, 52 So. 779, 139 Am.St.Rep. 549; Henrichs v. New Orleans Public Service, Inc., et al., La.App,, 192 So. 383.

Lest it be thought that the Holmes Company should be held liable because of the fact that its employee Lais may have been at fault in not making certain that the pipe was so stacked and chocked that it could not possibly roll, we hasten to say that in our opinion Lais, in undertaking to receive the pipe and to give the instructions as to the place in which it should be stacked and in assisting in chocking it, did not act as an employee of the Holmes Company, but acted in fact as an employee of either the Glover Company, who, as general contractor, was required to check in all material, or as the employee of the American Company by which partnership the pipe was to be used, or as the employee of both the Glover Company and the American Company. The Holmes Company had nothing whatever to do with receiving or stacking or otherwise handling any of the material which was to go into the work. Its employee, Lais, was not furnished for the purpose of receiving that material. He had his own job to do—to receive merchandise for the Holmes store. When he undertook to do what he did on that occasion and what he had done on other occasions, he did -so not as an employee of the Holmes Company. He said that whenever material came, if the representative of the contractor or of the subcontractor was not present, “I did all I could to help them all out * * *»

We think, then, that, even if the record showed that Lais was negligent in any way in connection with the receiving and the stacking of this pipe, that negligence could not properly be charged against the Holmes Company.

We pass on to a consideration of the charge that the Glover Company was at fault, and we note again that there is no charge by plaintiff that the American Company was in any way to blame and, in fact, plaintiff did not sue that partnership, which is in the case only as a result of the call in warranty made against it by the Glover Company.

Witnesses of the Glover Company and others, too, state that it was a part of the duty of that company to receive and “check in” all material delivered .for use in the job and that this cfcity to check in all material existed whether it was to be used by the Glover Company or by any of the subcontractors. H. J. Enderline, an employee of the Glover Company, says that it was his duty to receive and check in all such material, and when he heard that this pipe had arrived he went “out there to see if it was properly stacked and the proper amount of goods received for Glover Company.”

Charles R. Spahr, the superintendent of the Glover Company, says that there was nothing unusual about the receipt by that company of such material, and that in all cases he had to check such material. He says that in doing so he acted for the Glover Company as well as in the interest of the subcontractor by whom the material was to be used.

It is clear that the Glover Company received the pipe and approved the method of stacking and chocking it, and that the pipe received was in the custody of the Glover Company from the time at which it was unloaded until the occurrence of the accident. And since the material remained in the possession and under the control of the Glover Company, we do not think that what we have said about the doctrine of res ipsa loquitur and its non-application as against The Crane Company can be said in behalf of the Glover Company, since it is apparent that the Glover Company, because of the doctrine of res ipsa loquitur, is placed under the necessity of explaining how the accident occurred.

Surely Miss DeCuers could have no knowledge of the cause of the falling of the pipe, and it follows that she had the legal right to call on the corporation or corporations in whose possession it was to explain ■the accident and, if they would avoid liability, to prove that they were without fault. This the Glover Company has plainly .failed to do, since no explanation whatever has been offered. Under such circumstances, liability could have been avoided only by affirmatively showing that, without fault on the part of the Glover Company, some intervening third party was responsible for the rolling of the pipe, and that this occurred in spite of the fact that it was properly stacked and chocked.

We think that the view which we take as to the duty of Glover Company to affirmatively show that it was without fault is not inconsistent with what we said concerning the absence of liability of The Crane Company. As to The Crane Company, because of the lapse of time, plaintiff, if she would rely upon the doctrine of -res ipsa loquitur, was under the necessity of showing that no other cause had intervened during that time, and she could not, or did not, show this. In the case of the Glover Company, however, it remained in control and possession of the pipe during all of that time, and if there was an intervening cause, the duty of proving such cause was placed upon it if it would avoid the result of the presumption which is created by the doctrine of res ipsa loquitur. We, therefore, feel that there is liability in the Glover Company and in its liability insurance carrier.

We have not seen in any of the briefs nor heard anything in oral argument which would indicate that the amount allowed plaintiff is excessive. In her answer to the appeal plaintiff has suggested that the amount awarded her should be increased to $4,000. It was stipulated that she lost commissions amounting to $130, and also that her claim for loss of salary should be eliminated since all salary which she would have earned was paid to her by her employer. She was awarded medical expenses amounting to $49 and $85 for loss of clothing, SO' that oif the total amount awarded, her, to wit $1,764, $1,500 was for suffering and physical injuries.

She says that she was “all bruised, my chin was bruised, my arm was bruised and my right leg and the great toe of my right foot was bruised * * *.”

She said that she was required to remain in bed for one month, and that after that she was partially disabled for an additional three weeks. Her physician said that, in addition to general contusions, she suffered “a fracture of the distal phalanx of the right great toe and chipped fractures of the terminal phalanges of the third and fourth fingers of the right hand.”

He said that she was quite nervous. Apparently his treatment consisted principally in attempting to quiet her nerves.

The record shows that she has completely recovered and that there is no permanent disability. In view of these facts the amount, $1,500, for physical injuries was correct, and the awards for actual losses are 'sustained by the evidence.

We, therefore, pass on to a study of the question of whether the American Company and the component partners thereof can be held liable, under the call in warranty, to the Glover Company. The contention of counsel for that Company is that the exceptions of no cause of action and no right of action should have been sustained, and that, on those exceptions, the call in warranty of the Glover Company should have been dismissed. Counsel argue that this call in warranty contains no charge in which the Glover Company “even suggested any wrongful act, neglect or fault, on the part of American.”

The contention is that in the call in warranty the Glover Company should have set out in detail just what acts of the American Company rendered that partnership liable to the Glover Company in the event the Glover Company should be held liable to plaintiff. The Glover Company, in the call in warranty, alleged that the pipe had been placed on the sidewalk on orders of and for use of the American Company, and it then referred to the allegations of plaintiff’s petition charging negligence. It then referred to the stipulations in the contract by which the contractor agreed to hold the owner harmless and the subcontractors agreed to hold the contractor harmless should any loss result as the fault of the subcontractor.

We think that, fairly interpreted, the allegations of the call in warranty are that if there was fault in the placing of the pipe on the sidewalk as alleged by plaintiff, that fault is in reality chargeable against the American Company and that if, as a result of that fault, the Glover Company could be held liable to plaintiff, then for the same reason the subcontractor should be held liable to the Glover Company. Under the circumstances, it was not necessary that the Glover Company in the call in warranty repeat against the American Company all the charges which, in the original petition, plaintiff made against the Glover Company. Accordingly, the exceptions to the call in warranty were properly overruled.

But although the exceptions were properly overruled, it seems clear from the facts that the American Company and its component partners cannot be held liable in warranty to the Glover Company. If there was any fault in the American Company in something that Lais or Ender-line did, and since both those employees,— the former of the Holmes Company and the latter of the Glover Company,- — in everything that they did acted as well for the Glover Company as for the American Company, the result would be that the Glover Company and the American Company would be joint tortfeasors and, as such, solidary obligors. But the American Company was not sued by plaintiff, and the inescapable result is that that company cannot be brought in by call in warranty by the other joint tortfeasors. The general rule which prevents one solidary obligor from calling on another is stated in Appalachian Corporation v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539, 541, as follows-: “It is undoubtedly -the general rule of law and jurisprudence that where two or more parties, acting in concert, or are legally held to have acted in concert, commit a wrongful act from which damages result to a third party, the party who is compelled to respond and to pay for the injury can have no action for indemnity against the other party or parties to the wrongful act. The rule has its foundation in public policy, that no one can allege his own turpitude or claim an advantage for his own wrong. The courts in such a case will leave the parties in the position in which they have placed themselves, and will not undertake to adjust equities between them, nor to inquire into the comparative or relative culpability as between them.” See, also, Winford v. Bullock, 210 La. 301, 26 So.2d 822.

It is true that it is now established that if a solidary judgment is rendered against two tortfeasors and one is required to pay the entire judgment, that one may force the other to contribute its share of the amount paid. Quatray v. Wicker, 178 La. 289, 151 So. 208. But that rule which permits contribution in certain situations applies only where the plaintiff has prosecuted the case to final judgment against both solidary obligors, and, it is settled that if the plaintiff sues only one, or, having sued both, abandons the case as to one, the one remaining in the case as a defendant has no right to insist that the other also be kept in the case as a defendant. Nor has the one sued the right to call upon the other for contribution. Spanja v. Thibodaux Boiler Works, La.App., 37 So. 2d 615; Winrod v. Bullock, supra; American Employers’ Insurance Co. v. Gulf States Utilities Co., La.App., 4 So.2d 628.

It is true too that there have been cases in which it has been held that though both defendants have been held solidarily liable, the liability of one was only technical and that, therefore, the one only technically liable might require the other to pay the entire judgment. Sutton v. Champagne, 141 La. 469, 75 So. 209; Appalachian Corporation v. Brooklyn Cooperage Co., Inc., supra.

But if this rule which in some cases like the Sutton case permits the one solidary obligor to- require the other to pay the entire amount is applicable at all to the facts of this case, it would rather work against the Glover Company than in favor of it. We say this because we feel that if, as a matter o-f fact, the American Company could be considered as a joint tortfeasor with the Glover Company, the liability which would result against the American Company would be purely technical, since the true fault was the negligence of Underline, the employee of the Glover Company, who supervised and approved the stacking of the pipe and under whose custody it remained until the occurrence of the accident. Thus if the American Company could be said to be liable at all that liability would result from the negligence of the employee of the Glover Company who was only technically a borrowed employee of the American Company for the purpose of receiving and stacking the pipe and maintaining custody over it. However, the Glover Company, under the well established rules to which we have already referred, had no right under the facts set forth to call the American Company in warranty. It alone, between those two', was sued and, being a joint tortfeasor, it cannot call the other joint tortfeasor in warranty. It necessarily 'follows that the judgment, insofar as it dismissed the call in warranty against the American Company, was correct.

The judgment appealed from is amended so as to' read as 'follows:

It is ordered adjudged and decreed that there be judgment herein in favor of Miss Hilda DeCuers, plaintiff, and against the defendants, George J. Glover Co., Inc., and The Employers’ Liability Assurance Corporation, Ltd., jointly, severally and in solido, in the full sum of $1,764 with legal interest thereon from judicial demand, until paid, and for all costs.

It is further ordered, adjudged and decreed that there be judgment in favor of D. H. Holmes Company, Ltd., and Maryland Casualty Company, and The Crane Company and Hartford Accident and Indemnity Company, dismissing plaintiff’s suit as to those defendants;

It is 'further ordered, adjudged and decreed that the call in warranty of D. H. Holmes Company, Ltd., and Maryland Casualty Company against George J. Glover Co., Inc., is dismissed; and

It is further ordered, adjudged and decreed that there be judgment in favor of American Heating and Plumbing Company and the individual partners thereof, Edward H. Loubat, Numa I. Helwick, Lea-n-der Marx and Archibald Marx, dismissing the call in warranty filed by the George J. Glover Co., Inc. In all other respects the judgment appeals.! from is affirmed.

Amended and affirmed.