Allen v. Yantis

• Decision Date: 05 June 1940
• Docket Number: 2128.
• Citation: 196 So. 530
• Court: Court of Appeal of Louisiana — District of US
• Parties: ALLEN ET AL. v. YANTIS.

196 So. 530

ALLEN ET AL. v. YANTIS.

No. 2128.

Court of Appeal of Louisiana, First Circuit.

June 5, 1940

Appeal from District Court, Parish of Calcasieu; John T. Hood Judge.

Proceeding under the Workmen's Compensation Act by Mrs. Etta Allen as widow of deceased employee and as duly qualified natural tutrix of her minor child, opposed by Harold Yantis employer, to recover compensation for widow and minor child on account of the death of the employee. From a judgment dismissing the suit, claimant appeals.

Reversed with directions.

Robert R. Stone, of Lake Charles, for appellant.

Plauche & Stockwell, of Lake Charles, for appellee.

OTT Judge.

The plaintiff is the widow and duly qualified natural tutrix of her minor child and brings this suit to recover compensation for herself and in behalf of her minor child on account of the death of her husband and the father of the minor, the death of the deceased husband and father having resulted from an injury which he received while in the employ of the defendant on November 21, 1936. She asks for compensation in the total sum of $1,458, being 46 1/4 per cent of his weekly wage of $10.50 for a period of 300 weeks.

The plaintiff alleges in her petition that her deceased husband at the time of his injury was employed by Harold Yantis, the defendant, working in his capacity as a farm laborer on defendant's farm, and at the time he was injured he was following the duties devolving on him as a farm laborer at a task designated for him to do by his employer; that at the time he was injured he was helping to load a gasoline motortruck with rough rice stored on the lower floor of a barn on the farm of the defendant when the barn collapsed upon him, crushing him to such an extent as to cause his death a few days later.

The defendant filed a motion to strike out certain allegations in the petition, a plea of prescription, an exception of no cause or right of action and a plea of prematurity. The trial court sustained the motion to strike out and the plea of prescription and dismissed the suit. The plaintiff appealed to this court and the judgment was reversed and the case remanded. 190 So. 236.

The trial court then took up and considered the exception of no cause or right of action, and in a written opinion wherein he gave extended reasons, sustained the exception of no cause or right of action and again dismissed the suit. The plaintiff has taken an appeal from this last judgment which dismissed her suit on this exception, and she is again asking us to reverse the judgment of the trial court and permit her case to be heard on the merits.

The pertinent part of the reasons given by the trial judge in sustaining the exception will appear from the following extract taken from his reasons:

" In the case under consideration the petition alleges that the deceased was employed on a farm; that he was in the employ of defendant working in his capacity as a farm laborer on the Yantis farm, and at the time he was injured he was following the duties devolving on him as a farm laborer. The only allegation in the petition which suggests that such occupation would be hazardous is where the petition alleges that at the time he was injured he was helping to load a gasoline motor truck with rough rice which was stored on the lower floor of the barn on the Yantis farm and the said barn collapsed on him and he was crushed to such an extent as to cause his death a few days later. There is no allegation in the petition that the defendant was engaged in operating motor trucks or in operating any threshing machines, nor is there any allegation indicating that the deceased was employed in the operation or even in connection with any such engine or machine. Even conceding that there were certain features of the defendant's trade, business or occupation that were hazardous and thus within the scope of the Compensation Act, there is no allegation in the petition that the deceased was even the driver of this motor truck or that he ever came in actual contact with any machinery; but the petition would indicate that the motor truck was stationary, waiting to be loaded, and that the deceased was even some distance from the truck, in the barn, at the time of the injury.

" This Court is frank to say that in this modern age of agriculture, as well as in any other business, trade or occupation, it is well nigh impossible to operate any business without the use of some motor vehicle, but this Court under the allegations in this petition concludes that this defendant was engaged in farming, and that the deceased at the time of the accident was in the employ of the defendant in his capacity as a farm laborer, and that such employment is not covered by the Workmen's Compensation Act. To hold that this employment as alleged in the petition comes within the provision of the Compensation Act would be extending the provisions of that Act entirely too far, and would be tantamount to requiring every farmer in the country to carry compensation insurance."

It is true that in a compensation suit where the petition shows that the business of the employer is nonhazardous and further sets out a state of facts which shows that the regular duties of the employee pertained to nonhazardous work and that he was engaged in such nonhazardous work when injured, the petition fails to state a right on the part of the injured employee or his dependents to recover compensation. And in such a situation, where the petition sets out such facts showing the nature of the employer's business, the duties of the employee under his employment and the manner in which he was injured, and all these facts in the petition show that, if they are proven, there could be no recovery of compensation, it would be proper for the court to sustain an exception to the petition and avoid a useless trial that could lead to no other result other than a dismissal of the suit. Rester v. Community Stores, Inc., __ La.App. __, 169 So. 183; De Lony v. Lane et al., __ La.App. __, 155 So. 476.

However, if it cannot be definitely determined from the petition whether or not plaintiff is entitled to compensation because the petition is carelessly drawn and does not set forth clearly the nature of the employer's business and the duties of the employee, but does allege a relationship of employer and employee and an injury sustained in the course of the employment, the petition should not be dismissed on an exception of no cause or right of action. In such a case, the plaintiff should be permitted to show by the evidence the nature and character of his employer's business and the kind of work performed by the employee, as well as the manner of sustaining the injury, leaving it for the court to determine from the facts in the case whether or not the work was of such a hazardous nature as to come within the compensation law. Pierre v. Barringer, 149 La. 71, 88 So. 691; Stockstill v. Sears-Roebuck & Co., __ La.App. __, 151 So. 822.

This liberality of pleading in cases of this kind is in line with the spirit as well as the letter of the compensation law which provides that the judge shall not be bound by the ordinary rules of evidence and the usual technical and formal procedure followed in ordinary cases. Of course, the defendant has the right by proper and timely action to require the plaintiff to amend his pleadings so as to set up such reasonable facts as may be necessary to a proper defense of the suit.

In the light of these rules, we are to determine whether or not the learned trial judge was justified in dismissing the suit in this case on an exception of no cause or right of action. Obviously, if the petition had alleged nothing more than that the deceased was a farm laborer employed by the defendant to do ordinary farm work, such as storing rice in a barn, or loading the rice on a wagon, and that he was injured while performing...