DiMacco v. Henry

286 So. 2d 399, 1973 La. App. LEXIS 5853
CourtLouisiana Court of Appeal
DecidedNovember 30, 1973
DocketNo. 5751
StatusPublished

This text of 286 So. 2d 399 (DiMacco v. Henry) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiMacco v. Henry, 286 So. 2d 399, 1973 La. App. LEXIS 5853 (La. Ct. App. 1973).

Opinion

STOULIG, Judge.

Plaintiff, Benedetto DiMacco, was one of a two-man motorcycle detail assigned by the New Orleans Police Department to convoy a float from Algiers to the City Hall in New Orleans to be used in a St. Joseph’s Day Parade. Some three blocks after the convoy began and before it had crossed the Greater New Orleans Mississippi Bridge, plaintiff was struck in the back by the float causing the injuries forming the basis of this action. Named as defendants were: (1) Kinder Henry, the driver; (2) Blaine Kern Artists, Inc., the builder; (3) Phoenix of Hartford Insurance Company, Kern’s insurer; (4) The Greater New Orleans Italian Cultural Society, sponsor of the parade; and (5) Continental Casualty Company, the Society’s liability insurer for its St. Joseph’s Day activities, including the parade.

After a lengthy trial, judgment in the amount of $10,779 was rendered against Kinder Henry only, from which judgment plaintiff has lodged this appeal reurging the liability of all named defendants and seeking an increase in quantum of damages.1

The facts are not seriously disputed. On March 18, 1967, The Greater New Orleans Italian Cultural Society (hereinafter referred to as the Society) planned its first parade to commemorate St. Joseph’s Day. In this connection, John Fazzio, a member, asked Blaine Kern, a noted New Orleans designer, to donate a float for the parade. Fazzio gave Kern the impression the request for the donation originated with the then New Orleans Police Superintendent Joseph Giarrusso, also a member of the Society, who was one of the prime movers in organizing the parade. In any event, Kern agreed to donate one of the self-contained floats used in a previous Rex parade, and refurbished it to conform to the St. Joseph decor.

According to its designer the unit was propelled by a “mule” or small tractor contained within the float itself. The float measured 16 feet in length, 7 feet in width and 4 feet, 2 inches in height from street level to its base platform covering the tractor, with a second platform 32 inches above it supported by two-by-fours. The driver’s seat was located 6 to 7 feet from the front of the float with a 32-inch high opening between the lower and upper platforms for unobstructed view for existing conditions in all direction. He testified that the driver had a greater degree of visibility than provided by either an automobile or a truck. As additional safety factors, the bottom of the float was never higher than 18 to 20 inches from the ground and a “cowcatcher” effect of bent tubing and plywood was placed in the front to prevent anyone falling from being jammed beneath the float. In several instances during the course of his testimony, Kinder Henry corroborated the driver’s wide range of visibility.

It is undisputed that Mr. Kern told members of the Society that liability insurance should be procured and that they were required to furnish the driver. It developed that the defendant Kinder Henry, an employee of Fazzio’s Bowling Alley, overheard his employer mention the need for obtaining a driver and offered his service. Henry testified that he was interested in driving a float because it would be a unique experience for him to drive a float in a parade. He acknowledged that he was not to be paid for his service. Fazzio then instructed Henry to report to the den in Algiers, and at this point he was met by the two motorcycle officers assigned to accompany the float to City Hall.

[402]*402The police and the driver did not confer on procedure before leaving the den, but the motorcycle officers testified they used a standard “leapfrog” pattern in conducting this escort. Under this procedure one officer would ride ahead and clear traffic for one full block, after which the other officer would conduct the float through the cleared area. In each succeeding block the actions of the officers would be alternated.

On the morning of the accident, Henry backed the float from the den, and in the company of the officers it proceeded uneventfully for three blocks. Both motorcycle officers were stopped at the intersection of Tjeche and Newton Streets, and when the float was approximately 20 feet behind them, Officer Robert F. Miller, Jr., started forward to clear traffic in the next block. Henry did not notice the plaintiff still stopped before him and continued driving the float until it rammed plaintiff in the back as he sat on his motorcycle. Apparently plaintiff was pinned to his vehicle by a piece of the plywood float resting on his back.

After the police conducted an investigation of the accident, former Superintendent Giarrusso instructed that Henry be permitted to continue driving the float, despite the fact that it had been learned at the scene he had an expired drivers license. Thus Henry drove the float to City Hall and then in the parade procession without further mishap. Kern explained that no special skill to drive a float is required other than knowing how to operate a regular motor vehicle.

The driver’s liability is not at issue since he • took no appeal from the judgment against him, based on the finding he failed to see what he should have seen and that this negligence was the proximate cause of the accident.

As to the liability of the designer and its insurer, plaintiff urges they should be cast in judgment under either one of two theories, namely, (1) the float was constructed in such a manner that it did not afford to the driver a clear and unobstructed view of traffic conditions or (2) the public liability policy issued by Phoenix to Kern provided coverage for permissive users of the float. Our review of the record fails to disclose any factual bases upon which either theory of liability may be imposed.

The only explicit testimony in the record quoad visibility indicates the driver had a clear and unobstructed view of conditions in the front, to the sides and to the rear of the float for 360 degrees save and except for two-by-four braces on each of the four corners. Even Henry’s testimony indicates the accident was not the result of restricted visibility because, according to him, he should have been able to see a stopped motorcycle 20 feet in front of him.

On the question of insurance coverage under permissive use, the testimony of Blaine Kern stands uncontradicted that he donated the float and abdicated any responsibility therefor after it left the den. That he specifically instructed the Society to provide insurance is indicated by the fact that it did obtain its own insurance and that Kern’s testimony was not contradicted by any member of the Society with whom he had made arrangements.

A review of the contract of insurance reflects that the tractor or “mule” 2 used to propel the float was not one of the vehicles listed in, or a newly acquired “automobile” within the contemplation of, the Comprehensive General-Automobile Liability Policy issued by Phoenix of Hartford to Blaine Kern Artists, Inc. Since the permissive use clause is only applicable to vehicles described in or contemplated by the general coverage section, it cannot be in[403]*403voked because the tractor does not fall into either of these categories.

While there is a specific endorsement pertaining to parade floats-trailers, the coverage thereunder is limited to floats-trailers “rented to others” and propelled by automotive vehicles “not owned or hired by the insured.” In the instant matter, the float was not rented but gratuitously donated to the Society and the tractor was owned by the insured.

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Related

Little v. State Farm Mutual Automobile Ins. Co.
177 So. 2d 784 (Louisiana Court of Appeal, 1965)

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Bluebook (online)
286 So. 2d 399, 1973 La. App. LEXIS 5853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dimacco-v-henry-lactapp-1973.