
    Martin Paul AUCOIN v. PHOENIX ASSURANCE COMPANY OF NEW YORK.
    No. 6066.
    Court of Appeal of Louisiana. First Circuit.
    June 1, 1964.
    
      Simmons & Savoie, by Felix H. Savoie, Jr., Napoleonville, for appellant.
    Montgomery, Barnett, Brown & Read, by Peter H. Beer, New Orleans, for appel-lee.
    Before ELLIS, LOTTINGER, HER-GET, LANDRY and REID, JJ.
   HERGET, Judge.

Plaintiff, Martin Paul Aucoin, appealed from a judgment in favor of defendant, Phoenix Assurance Company of New York, rejecting his demands and dismissing his suit at his costs.

Phoenix Assurance Company of New York was the personal liability insurer of Floyd Dugas. Mr. Dugas had purchased from Mr. Aucoin, a friend, a television antenna tower. Mr. Dugas had erected a portion of the tower, following which Plaintiff gratuitously suggested his desire and willingness to complete the erection of the tower. The tower, which was to be approximately fifty feet in height when erected, was sent to Mr. Dugas in five sections of even lengths. Dugas had erected three of the sections and Aucoin was to assemble the remaining two. Aucoin went to the residence of Dugas for the purpose of completing the erection of the tower and brought with him his personal safety belt. Aucoin, with no assistance or advice from Dugas, fastened the safety belt, locked same around the antenna tower and erected the fourth section of the tower. Plaintiff was in the act of erecting the last, or fifth, section of the tower and to do so he had to climb to the utmost height of the fourth section. .Plaintiff had tied the end of the fifth section with a rope attached to his safety belt. He leaned forward to take hold of the last section of the antenna tower and set same in place and as he leaned back against the support of the safety belt the belt became unfastened in some unexplained manner, in consequence of which Plaintiff fell from the tower some forty feet to the ground severely injuring himself.

On the trial of the case no factual showing was made of any act of negligence on the part of Dugas which could have conceivably caused the fall of Plaintiff and, in fact, Plaintiff positively testified his fall resulted from the safety belt becoming unfastened, the reason for which he was unable to explain.

In order to hold Defendant insurer liable to Plaintiff, it is imperative Plaintiff’s injuries must have been caused, or resulted from some negligent act on the part of Dugas, the insured. This negligence must be shown and the burden of such proof is on the Plaintiff. Defendant, Phoenix Assurance Company of New York, is not the insurer of Plaintiff. Its liability to Plaintiff attaches only upon proof of negligence on the part of its assured, Dugas.

For these reasons the judgment is affirmed.  