Horrell v. Gulf & Valley Cotton Oil Co., Inc.

• Decision Date: 15 December 1930
• Docket Number: 13,453
• Citation: 15 La.App. 603,131 So. 709
• Parties: HORRELL ET AL. v. GULF & VALLEY COTTON OIL CO., INC.
• Court: Court of Appeal of Louisiana — District of US

131 So. 709

15 La.App. 603

HORRELL ET AL. v. GULF & VALLEY COTTON OIL CO., INC.

No. 13,453

Court of Appeals of Louisiana, Orleans

December 15, 1930

Rehearing Refused January 19, 1931.

Writs of Certiorari and Review Refused by Supreme Court March 3 1931.

Appeal from Civil District Court, Parish of Orleans, Division "E". Hon. Wm. H. Byrnes, Jr., Judge.

Action by William Francis Horrell, Sr., et al. against Gulf & Valley Cotton Oil Company, Inc.

There was judgment for plaintiffs, and defendant appealed.

Judgment affirmed.

Merrick Schwarz, Guste, Barnett & Redmann, of New Orleans, attorneys for plaintiffs, appellees.

Rosen Kammer, Wolff & Farrar, of New Orleans, attorneys for defendant, appellant.

OPINION

JANVIER, J.

This litigation results from the death of Walter J. Horrell, a young man twenty-four years of age, who died because of severe burns which he sustained while engaged in doing certain repair and reconstruction work in the manufacturing plant of defendant.

The plaintiffs, as the suit was originally filed were: (1) William Francis Horrell, Sr., father of the decedent; (2) Mrs. Jennie Furey Horrell, mother; (3) Edward Allen Horrell, minor brother; (4) Miriam Horrell, minor sister; (5) William Francis Horrell, Jr., brother, of full age. The petition charged that the decedent, at the time of the accident, was employed by his father, William Francis Horrell, Sr., one of the petitioners, and that he was engaged in assisting in "the setting up of brick work and construction of one of the furnaces"; that this work was being done under contract between his father, the said Horrell, Sr., as contractor, and the defendant as principal; that, while decedent was engaged in said work, a deodorizing tank, nearby, exploded; that in the said tank which exploded there was superheated steam and a solution of caustic soda, both of which, as a result of the explosion, were showered upon decedent and others, and that he received such severe steam and acid burns that he died some twenty hours later, after suffering terrible agony; that the explosion of the tank was the result of the negligence of defendant, or of its employees, or agents, or officers, and that defendant is therefore liable to petitioners. Decedent's automobile, standing nearby, was damaged, and this item is also sued for by the survivors.

Defendant's answer is in effect a general denial, though certain allegations are admitted to be true.

When the case came on for trial and the first witness was called by counsel for plaintiff, counsel for defendant objected to the introduction of any evidence on the ground that the petition failed to disclose a cause of action. That objection, we are told, was based on six distinct grounds, as follows:

(1) That the petition did not negative the existence of a wife and child, or children, of decedent, and that neither a mother, nor a father, nor a brother, nor a sister, has any right of action until it is alleged and shown that there is in existence neither a wife nor a child of decedent.

(2) That the brothers and sister of the decedent, even in the absence of a wife or child, have no right of action where there is a mother or a father living.

(3) That even the father has no right of action for the expenses of last illness, burial of the deceased, and for damages to deceased's automobile, because, deceased being a major, these expenses may be claimed only by his personal representative; that is to say, his administrator, or his executor, or by his heirs, after judgment of possession.

(4) That the father has no right or cause of action for the cost of a burial plot, this not being an element of damage within the contemplation of article 2315 of the Civil Code.

(5) That the mother has no right of action for medical services and expenses made necessary by her nervous shock, as these are community debts for which the husband alone can recover.

(6) That, no matter who may be entitled to recover for the death of decedent, the recovery should be in compensation under Act 20 of 1914, as amended, and not in tort under article 2315 of the Civil Code.

1. On this ground the exception was properly maintained because article 2315 of the Civil Code, under which this suit is brought, as amended by Act No. 120 of 1908, gives to the parents a right of action for the death of a child only in the absence of a surviving widow or children. Thus a petition which does not negative the existence of a widow and children fails to show a right of action in any of the more distant relatives. Blackburn v. La. Ry. & Navigation Co., 128 La. 319, 54 So. 865; Underwood v. Gulf Refining Co., 128 La. 968, 55 So. 641; Register et ux. v. Harrell, 131 La. 983, 60 So. 638; Marshall v. La. State Rice Milling Co., 144 La. 828, 81 So. 331; Stearns v. Love Drilling Co., Inc., 5 La.App. 174.

However, it is equally clear that the district judge exercised proper discretion in granting to plaintiffs the right to amend, in order that they might make the allegation that there was in existence neither wife nor child of decedent. It is within the discretion of the trial court to permit amendments where the petition is defective because of insufficient allegation only. Where the petition manifestly alleges every fact that can be alleged, and yet a cause of action is not disclosed, no amendment should be permitted, because no amendment can cure such defect. Here, however, the deficiency results, not from the plaintiffs' inability to make the proper allegation with regard to the absence of a wife and of a child, but merely from oversight in omitting such allegation from the original petition. In Blackburn v. La. Ry. & Navigation Co., supra, an amendment was permitted. In Register et ux. v. Harrell, supra, the Supreme Court held that to permit such an amendment was within the discretion of the court. In Stearns v. Love Drilling Co., Inc., supra, this court remanded to the district court a suit in order that such an amendment might be made in that court. In Cazeaux v. N. O. Public Service, Inc., 14 La.App. 320, 124 So. 685, 687, we said:

"* * * The whole trend of modern procedure is to do away with technicalities and to permit amendments where no cause of action is based upon the insufficiency of the allegations of the petition."

2. That the brothers and sisters have no right of action for the death of a brother, where the petition shows that there are a father and a mother still living, is evident from a mere reading of the codal provision to the effect that it is only in default of a wife or child, or father or mother, that the brothers and sisters have a right of action. Since the petition affirmatively alleged the existence of persons in a class preceding in right to brothers and sister, no amendment could be effective in eliminating that obstacle to the claim of the collaterals, and the petition was properly dismissed so far as they were concerned.

3. and 4. It appears to us that the objection was well founded on grounds 3 and 4, and that these items should have been eliminated, but we are unable to say whether they were taken into consideration by the jury in fixing the amounts awarded.

5. On ground 5 the objection was well founded, and no recovery should be allowed the mother for her medical expenses, et cetera, as these are recoverable only by the husband as head and master of the community. In Shield v. F. Johnson & Son Co., Ltd., et al., 132 La. 773, 61 So. 787, 788, 47 L. R. A. (N. S.) 1080, the Supreme Court said:

"Both defendants excepted, on the ground of no cause of action. This exception is aimed, in part, at those items of damages set forth in the petition for doctor bills, nurse bills, drug bills, clothing, and hospital ambulance service connected with the injury alleged by plaintiff.

"These are expenses of the community for which the husband is responsible; and he alone can recover therefor."

6. Ground 6 of the exception presents the principal defense upon which defendant relies, and in support of it is made the following contention: That, according to the petition, defendant is engaged in one of the hazardous enterprises within the contemplation of paragraph 2 of section 1 of Act No. 20 of 1914 (Workmen's Compensation Act of Louisiana); that under paragraph 1 of section 6 of that act no principal, within the contemplation of the act, may contract with any one else to do any part of the general work which comes within the category of the trade, business, or occupation of the principal, or any part of the work undertaken by the principal by contract, without becoming liable to the employees of the independent or subcontractor for such compensation as may become due to such employees or their dependents; that the remedy provided by the Workmen's Compensation Act is exclusive, that is to say, that a master who is liable in compensation cannot be also liable to the same employee in tort for the same injuries; that the work decedent was engaged in doing was a part of the trade, business, or occupation of defendant, and that, thus, under paragraph 1 of section 6 of the statute, defendant, if liable at all, is liable in compensation and not in tort. It may be well at this time to set forth in full paragraph 1 of section 6 of the act:

"* * * Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he has contracted to perform, and contracts with any other person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act wh...