Beard v. Wilson Wholesale Distributors, Inc.
| Decision Date | 12 November 1968 |
| Docket Number | No. 7442,7442 |
| Parties | Mrs. Louise BEARD, Individually and as Administratrix of the Estate of her minor son, Darrell Brent Beard v. WILSON WHOLESALE DISTRIBUTORS, INC., et al. |
| Court | Court of Appeal of Louisiana — District of US |
Neil H. Mixon, Jr., of McCollister, Belcher, McCleary & Fazio, Baton Rouge, for appellant.
David W. Robinson, of Watson, Blanche, Wilson, Posner & Thibaut, Baton Rouge, for appellee.
Before LOTTINGER, ELLIS and BAILES, JJ.
This is a suit in tort filed by petitioner, Mrs. Louise Beard, individually and as administratrix of the estate of her minor son, Darrell Brent Beard. The defendants are Wilson Wholesale Distributors, Inc., and its liability insurance carrier, Fidelity Casualty Company of New York. The Lower Court awarded judgment in favor of defendants and against petitioner, dismissing petitioner's demand. The petitioner has taken this appeal.
The accident upon which this suit is based occurred on or about November 27, 1964. This suit was originally filed on November 24, 1965, in tort, with an alternative demand under the Workmen's Compensation laws of this state. On January 26, 1966, however, the original petition was amended, omitting therefrom the alternative demand in Workmen's Compensation. Subsequently, on June 23, 1967, the petition was again amended so as to reinstate the alternative demand in Workmen's Compensation.
The second amendment of the petition which reinstated the compensation demand, was met by an exception of prescription on the part of defendant. After trial of the exception, the Court ruled that prescription had accrued, and accordingly maintained the exception. This ruling by the Lower Court was correct as a suit which has been voluntarily discontinued by the petitioner does not serve to interrupt prescription. Harrison v. Meyer, 22 La.Ann. 580; Harrison v. Myer, 92 U.S. 111, 23 L.Ed. 606; Cassou v. Robbert, 166 La. 101, 116 So. 714. Furthermore, as no appeal was taken to the decision of the Lower Court in maintaining the exception of prescription, the suit has now been relegated to one solely in tort.
The undisputed facts show that on the morning of November 27, 1964, Darrell Brent Beard, the minor son of petitioner, went to the premises of the Wilson Wholesale Distributors, Inc., in Baton Rouge, Louisiana, seeking temporary employment during the Christmas holidays with his uncle, Mr. Wilson. Previous to this time, Mr. Wilson had given young Darrell part time employment doing odd jobs whenever his services were beneficial to the company. On the morning in question, he went to the said business establishment and spoke with Mr. Wallis Burns, the assistant manager, relative to his securing employment. Mr. Burns was authorized to employ Darrell whenever his services were necessary. Mr. Burns testified that he felt that he did not need him on that day and so told him. Notwithstanding, Young Beard remained about the premises.
At the time, Wilson Wholesale Distributors had been in the process of enlarging its warehouse. The new addition had not yet been completed and there were holes in the metal roof where it had been welded to the steel framework.
On the day of the alleged accident a sudden thundershower occurred during which water commenced leaking through the holes in the roof of the new addition. Christmas merchandise had been ordered by the business concern which, because of the inadequacy of storage space in the old portion of the warehouse, had been stored in the new warehouse. Foreseeing extensive water damage to this merchandise because of the leaks in the roof, Mr. Burns, who admitted that he was a very excitable man, ran into the sales room to seek help in covering the roof to prevent leakage. He sent a couple of the regular employees out to do this work, and noticing young Darrell sitting around the sales room, sent him to the warehouse with the other employees. Mr. Burns instructed them to get on the roof and to cover the holes with visqueen.
While so covering the roof, Mr. Burns was attempting to rush the employees so as to prevent damage to the merchandise by telling them to go faster.
Young Darrell first started unrolling the visqueen by walking in a forward direction. However, in order to proceed faster, he turned around and commenced to walk backward. He backed off the roof, falling to the ground resulting in physical injuries.
The Lower Court held that Mr. Burns was negligent in sending this Fifteen year old boy on the roof 'under the existing circumstances and creating the confused, excited atmosphere, while at the same time not warning him or supervising him in such a way as to minimize the danger which was there'. On the other hand, the Lower Court felt that a child fifteen years of age would and should be at all times cognizant of the danger of falling, and therefore, held young Darrell guilty of contributory negligence.
The above holdings by the Lower Court were based on the premise that the boy was not an employee of Wilson Wholesale Distributors, with which conclusion we do not agree.
There is no question in our minds but that the defendant was engaged in a hazardous occupation under the act, as this occupation included, among many other things, the lifting and moving of heavy crates of merchandise. Although counsel has not raised the question as to whether or not the duties performed at the time of the accident were in the 'course of his employer's trade, business, or occupation' as is required by the provisions of R.S. 23: 1035, we feel that the business of covering this roof in order to protect the defendant's merchandise from water damage was certainly in furtherance of the occupation or trade of the employer. It is noted that at the time of the accident the employees who were on the roof unrolling the visqueen were not engaged in the repairing of the roof, but were merely placing this material over the roof so as to avoid water leakage through the roof causing damage to the merchandise which was stored on the warehouse floor below.
We therefore feel...
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