Banks v. Kent Piling Co.

• Decision Date: 27 April 1956
• Docket Number: No. 4167,4167
• Citation: 87 So.2d 138
• Court: Court of Appeal of Louisiana — District of US
• Parties: Richard BANKS v. KENT PILING CO., Inc.

Page 138

87 So.2d 138

Richard BANKS v. KENT PILING CO., Inc.

No. 4167.

Court of Appeal of Louisiana, First Circuit.

April 27, 1956.

Wagner & Jarreau, New Orleans, Iddo Pittman, Jr., Hammond, for appellant.

Reid & Reid, Hammond, for appellee.

ELLIS, Judge.

The plaintiff has filed this suit against Kent Piling Co., Inc., alleging that on June 20, 1952, while employed by defendant to do strenuous, heavy work consisting of sawing and cutting logs, operating a 'logger's dream' and while removing stumps, he attempted to disengage a part of the 'logger's dream' referred to as the 'heel,' the catch of which had been broken, that his left forearm and hand were caught in the machine causing severe injuries and fractures. He prayed for compensation in the amount of $26.33 not to exceed 400 weeks for total and permanent disability with interest at the rate of 5% on each past due payment from its due date until paid, subject to a credit for any compensation that may have been previously paid.

The main defense offered by answer and in the District Court was a denial that the plaintiff was employed by the defendant company on the date of the accident but, in truth and in fact, was employed by the K & H Stock Farm, a partnership composed of Charles R. Kent and his brother-in-law, Thomas J. Hood.

The case was tried and the District Judge with written reasons dismissed plaintiff's suit on the ground that the latter had failed to prove that he was an employee of the defendant Kent Piling Company, Inc., and from this judgment plaintiff has appealed.

Plaintiff contends on appeal, first, that the judgment of the District Court was manifestly erroneous in that the record shows that plaintiff on the date of his injury was employed by Kent Piling Company, Inc., and, in the alternative, if, in truth and in fact, plaintiff was not performing service for the defendant at the time of the accident, then under the facts in this particular case he falls in the category of a borrowed employee, under the principle set forth in Malone's Louisiana Workmen's Compensation Law and Practice, under Section 57 dealing with borrowed employees wherein it is stated:

'A lending arrangement is in effect a three party agreement. This means that not only must there be an understanding between lender and borrower, but the employee, as well, must have consented to the change of masters. For example, a construction laborer was ordered by the company employing him to perform work on the private property of one of the company's officers under an arrangement whereby the company continued to be responsible for his wages, but was to be reimbursed by the officer. This was without the knowledge of the employee, who reasonably believed that he was doing company work subject to its orders. Under these circumstances the company was not allowed to deny that the claimant, who was injured during this assignment, was its employee.'

It is shown plaintiff was injured on June 20, 1952 as alleged in his petition; that at the time Charles R. Kent was operating the 'logger's dream' on the property belonging to himself and his brother-in-law, Tom Hood, and as the plaintiff attempted to disengage the 'heel' on the 'logger's dream' his arm and hand were caught and apparently crushed so as to fracture bones in both. On the date the accident happened Mr. Hood was also present. Plaintiff was taken to the Charity Hospital at Independence where he remained approximately three months and then to Charity Hospital in New Orleans for an additional three months. He was paid $39 every two weeks by Kent Piling Company, Inc., until July 14, 1953. This suit was filed on July 14, 1954. Answer was filed on September 4, 1954 and on September 14, 1954 on motion of plaintiff's counsel the payroll records of Kent Piling Company, Inc., for April, May and June, 1952, were secured as well as the social security and income tax withholding records of the plaintiff for March 15, 29, April 12, and 26. Counsel for plaintiff had asked for these records for April, May and June, however, the defendant produced the records as above described, denying any employment of the plaintiff during May and June. In fact, the defendants deny any employment of the plaintiff after April 19, 1952.

Counsel for plaintiff also on September 14, 1954 under LSA-R.S. 13:3781 propounded interrogatories in which he asked if the plaintiff was not employed by Kent Piling Company, Inc., during April, May and June of 1952, then who were his employers during those months and particularly June 20, 1952, the date of the accident. On September 21st the interrogatories were answered and therein it was stated that the plaintiff was employed by Chas. R. Kent and Thomas J. Hood on their cattle ranch in June 1952, and that he was paid by them out of funds owned by them on deposit with Kent Piling Company, Inc.

On the trial of the case it was shown that Charles R. Kent on the date of the accident was also the woods superintendent for the Kent Piling Company, Inc., as well as secretary of Kent Mercantile Company. The latter two companies, while composed of some members of the Kent family, were separate and distinct corporations.

Plaintiff stated that he had been working for Kent Piling Company, Inc., off and on for about six years; that Charles R. Kent was his boss and that he worked interchangeably for the defendant company and on the K & H Stock Farm according to instructions from Charles Kent, that on June 20, 1952, Charles Kent had sent him to the farm and he was engaged in moving some stumps, apparently with the 'logger's dream' when he was hurt as above described. He further stated that he had been working on this farm about three days and that prior to that time he had been working in the woods at his regular job of sawing logs for Kent Piling Company. It was his positive testimony that he was moved back and forth from sawing logs in the woods to the K & H Stock Farm, but that all this time he received the same rate of pay from the Kent Piling Company and that as far as he knew and believed he was always working for the defendant company. It is definitely proven that the Kent Piling Company, Inc., paid its employees every two weeks in cash which had been placed in an envelope, although the record shows the various witnesses, including the President of Kent Piling Company, Mr. Tom Kent, referred to the payment of wages by check.

Plaintiff testified that he was unable to do any other work than trying to help his mother with her pulp wood truck. He stated that he could only drive the truck, that he could not pick up any pulp wood nor saw any logs.

By consent a report of an examination by Dr. Irvin Cahen of New Orleans was placed in the record and it was his opinion that plaintiff's hand was useless for excessive physical activity, and that his condition was permanent in type.

Under cross-examination plaintiff admitted that he was 'tonging' the 'logger's dream' while Charles R. Kent operated it, and that they were clearing up the stumps on the K & H Stock Farm. According to plaintiff's testimony he continually worked for the Kent Piling Company up to the date of his injury. Plaintiff states, however, that at times during his employment with the defendant company Charles R. Kent would take him to work on the K & H Stock Farm but that he considered he was still working for the company, mainly because Charles Kent was the woods superintendent for the company and he testified that there was no difference in his pay for the days he worked at the farm in that he was paid by Kent Piling Company in cash every two weeks.

Plaintiff offered the testimony of Wash Chandler, Monroe Brumfield, Monroe Booty, all fellow employees, who testified that on June 20, 1952 they were employed by Kent Piling Company, Inc., that they had worked with Richard Banks in the woods and on the farm; and they all stated that on the day of Bank's accident he was working on the farm whereas they were in the woods; they further testified that they at times worked on the farm for two or three days and then back to the woods; they got such orders from Charles Kent, foreman of Kent Piling Company, Inc. These witnesses stated that they were paid every two weeks and there was no difference in the way they were paid whether they worked in the woods or on the farm; that it came through the Kent Piling Company office. Chandler testified that Banks had worked in the woods with the other employees within a week prior to the accident. Monroe Booty testified also that Banks had worked in the woods with him not more than four days prior to his injury. This witness testified that he had helped cut the timber for the Kent Piling Company off the land of the K & H Stock Farm, and that he had gone back once in a while to burn stumps and brush. This witness positively stated that Banks had worked in the woods for Kent Piling Company sawing logs for ten days before he was injured; that he knew it because he rode with him on the labor truck every morning. It was also stipulated that John Fultz, Charles Dillon, Ike Downing and Willie Taylor would testify substantially the same as Chandler, Booty and Brumfield.

The defendant company offered Mr. T. W. Kent, its President, as a witness. When he attempted to testify as to the pay roll sheets filed in response to plaintiff's request an objection was made on the ground that such testimony was inadmissible unless he could testify as to his own personal knowledge or unless he prepared the records. He stated that the office manager made the records but that he saw them every day and they were under his control, whereupon his testimony was admitted. Counsel made further objection to the introduction of these records when they were offered at the end of the trial, however, the witnesses were examined and cross-examined with regard to these records without any reservation and, in addition, there is testimony independent of these records to...