Opinion
No. 2308.
July 15, 1966. Rehearing Denied October 5, 1966. Writ Refused November 18, 1966.
Appeal from the Twenty Fourth Judicial District Court in and for the Parish of Jefferson, Division "C", No. 57-852; John C. Boutall, Judge.
Nathan Greenberg, Gretna, Solomon S. Goldman, New Orleans, for plaintiffs-appellees.
Louis DeSonier, Jr., Parish Atty., Robert I. Broussard, Asst. Parish Atty., for defendant-appellant, Fourth Jefferson Drainage District.
Adams Reese, Henry B. Alsobrook, Jr., New Orleans, for defendant-appellant, Bituminous Cas. Corp.
Before McBRIDE, REGAN and YARRUT, JJ.
The plaintiff, Jake Pasqua, filed this suit against the defendants, Fourth Jefferson Drainage District and Bituminous Casualty Corporation, its insurer, endeavoring to recover the sum of $800.00 representing damages for the loss of fifteen head of cattle which he asserts died of arsenic poison as the result of the negligence of an employee of the Drainage District in using arsenate of lead, a poisonous chemical, to spray vegetation growing along the banks of the Duncan Canal, which is within the territorial jurisdiction of the Drainage District.
The defendants answered and generally denied the foregoing accusations of negligence. In addition thereto, the Drainage District filed a third party petition against Bituminous, requesting reimbursement predicated upon the assumption that Bituminous was its liability insurer in this instance.
The Drainage District asserted its governmental immunity by virtue of an exception of no cause or right of action filed herein.
After a trial on the merits, the lower court rendered judgment in favor of the plaintiff and against both defendants in the sum of $800.00. From that judgment, the defendants have prosecuted this appeal.
This proceeding was consolidated with two other suits emanating from the same incident, entitled, "Lezina v. Fourth Jefferson Drainage District, et al.", La. App., 190 So.2d 97 and "Lepine v. Fourth Jefferson Drainage District, et al.", La. App., 190 So.2d 101. In those cases, the plaintiffs simultaneously sued the defendants for damages emanating from the death of their cattle which they assert resulted from the negligence of an employee of the Drainage District in using arsenate of lead, a poisonous chemical, to spray vegetation growing along the banks of the Duncan Canal, which is within the territorial jurisdiction of the Drainage District.
For the reasons assigned in the Lezina case, the judgment of the lower court is reversed in so far as it concluded that Bituminous Casualty Company was liable to the plaintiff. Judgment in favor of the plaintiff and against the Fourth Jefferson Drainage District in the amount of $800.00 is affirmed.
All costs incurred herein are to be paid by the defendant, the Fourth Jefferson Drainage District.
Reversed in part and affirmed in part.