Belaire v. Elder

• Decision Date: 22 December 1950
• Docket Number: No. 3314,3314
• Parties: BELAIRE v. ELDER et al.
• Court: Court of Appeal of Louisiana — District of US

Page 508

49 So.2d 508

BELAIRE v. ELDER et al.

No. 3314.

Court of Appeal of Louisiana, First Circuit.

Dec. 22, 1950.

Thompson, Lawes, Cavanaugh & Hickman, Lake Charles, for appellant.

Edward F. LeBlanc, Walter B. Gordy, Jr., Abbeville, for appellee.

LOTTINGER, Judge.

Clifford J. Belaire, plaintiff, brings this suit under the Workmen's Compensation Act against Joe Elder, Port Barre Lumber Industries, Inc., A. M. Escuriex, and Consolidated Underwriters, for total permanent disability payments of $20 per week for 400 weeks, together with interest, medical expenses in the sum of $500, and all costs. Answers were filed by Joe Elder, Port Barre Lumber Industries and Consolidated Underwriters, wherein they denied that plaintiff was ever in the employ of Joe Elder or Port Barre Lumber Industries, Inc. Joe Elder is the president, and apparently the largest stockholder, of Port Barre Lumber Industries, Inc. Consolidated Underwriters is made a party defendant by virtue of the fact that it is the compensation insurer of Port Barre Lumber Industries, Inc. On motion of plaintiff, the suit against Joe Elder was dismissed before trial. A.M Escuriex is insolvent and the suit against him is not seriously pressed.

There is no dispute as to the injury, or the amount recoverable, the only dispute being as to the relationship between A. M. Escuriex, and Port Barre Lumber Industries, Inc. At the time of the accident, plaintiff was working at a lumber mill under A. M. Escuriex. Plaintiff contends that Escuriex was the agent, or contractor, of Port Barre Lumber Industries, Inc., which, under the compensation laws, would render the lumber company liable. Defendant contends that Escuriex was an independent lumber mill operator, that he operated his own mill, that he sold lumber to the lumber company, and that the only relationship between Escuriex and the lumber company was that of vendor and vendee.

The lower court found that Escuriex was the agent for Port Barre Lumber Industries, Inc., and rendered judgment as prayed for by plaintiff against Port Barre Lumber Industries, Inc., condemning the said defendant to pay to the said plaintiff the sum of $20 per week for 400 weeks, commencing as of April 6, 1948, with interest at 5% per annum on each and every weekly installment from its respective due date from judicial demand until paid, together with the sum of $500 for medical expenses and for all costs of court. From this judgment the defendant, Port Barre Lumber Industries, Inc., has appealed to this court.

The record shows that plaintiff, while working in a sawmill, near Forked Island, Vermilion Parish, on April 6, 1948, caught his arm in a pully, thus causing serious and permanent injuries to his left arm. Plaintiff contends that, at the time of the accident, Escuriex was operating the said sawmill as agent, or contractor, of Port Barre Lumber Industries, Inc. Either of said relationships, if proven, would render the lumber company liable for the injuries sustained by plaintiff. The lumber company, on the other hand, contends that Escuriex was an independent lumber operator who sold unfinished lumber to the lumber company, and that the only relationship between them was that of vendor and vendee.

Defendant introduced into evidence a 'supplemental timber agreement' passed before Donald W. Abshire, a Notary Public of Vermilion Parish, wherein an agreement, apparently oral, by and between Escuriex and Lovelace Langlinais, on February 19, 1948, was enlarged. In said agreement, the right was given Escuriex to operate a sawmill and cut timber on certain property owner by Langlinais and located in Vermilion Parish. In addition thereto, the following agreement, between Escuriex and Mr. Elder of Port Barre Lumber Industries, Inc., was introduced by defendant:

'February 19, 1948

'I hereby acknowledge that Joe Elder has delivered to me one (1) Corinth Sawmill, one (1) new inserted point F-9 saw, one lot of Belts, one (1) Corinth two saw edger, parts for one cut-off saw, one (1) Alice-Chalmers L-90 motor, one (1) sawdust conveyor chain, all being in good used condition.

'It is understood and agreed that this equipment will be moved Lovelace Langlinais property, Vermilion Parish and erected. I further agree to purchase this mill from Joe Elder at a price approximating $3,725.00 F.O.B. Port Barre and Marksville. Mortgage notes to be executed in favor of Joe Elder and some additional securities put up on this sale.

'It is further understood that any lumber delivered before these mortgage notes are executed that you may at your option deduct $2.00 per M' to apply on the first note.

'Port Barre Lumber Industries, Inc.

'(Sgd.) A. M. Escuriex

(Sgd.) Joe Elder

'Sworn to and subscribed before me this 24 day of April, 1948.

'(LS) Rodney A. Carriere

'Notary Public'

It is noted that the above quoted agreement and the alleged oral agreement between Escuriex and Langlinais were both of the same date, i. e. February 19, 1948. It is further noted that the above quoted agreement, although dated February 19 1948, was not subscribed by the Notary Public until April 24, 1948, some eighteen days after the accident to plaintiff. On commenting on these agreements, the lower court said:

'On February 19, 1948, the defendant, Escuriex, purchased a tract of timber from one Lovelace Langlinais. The agreement was supplemented by Notarial Act on February 20, 1948. (D-5.) On the 19th of February, 1948, Escuriex entered into a purported 'agreement' or 'sale' of certain sawmill machinery with Joe Elder representing Port Barre Lumber Industries. The 'agreement' is dated February 19, 1948, and was acknowledged before a Notary Public on April 24, 1948. (The accident involved occurred on April 6, 1948.) The 'agreement', necessarily plays an important part in the case. (See D-1).

'The 'agreement' acknowledges receipt of the machinery and contains an agreement to purchase the machinery at sometime which is not indicated. The 'agreement' is indefinite as to time and date the sale will be executed, however, if and when it is consummated mortgage notes are to be executed and some additional securities are to be given. The consideration mentioned in the agreement is 'approximately $3,725 F.O.B. Port Barre and Marksville'. We must bear in mind that no sale was ever executed, no mortgage notes or other security given. Mr. Escuriex testified that the consideration was 'around $6000.00. I believe around that.'

'The 'agreement' provided that the mill was to be moved to the Lovelace Langlinais property in Vermilion Parish, and 'It is further understood that any lumber delivered before these mortgage notes are executed that you may at your option deduct $2.00 per M to apply on first note.' Mr. Escuriex testified, 'I do not remember exactly, 2 1/2 or three dollars on a thousand feet of lumber. It do not recall exactly.'

'In attempting to reconcile the purported 'agreement' to sell and the testimony, we must bear in mind that the 'agreement' is dated February 19, 1948, and the 'timber purchase' was made on the same date. Which came first we do not know, however, there is considerable distance between Port Barre and near Kaplan in Vermilion, so we cannot say whether all the parties were together or not at the time. The evidence leads us to assume that the timber agreement was made first, yet for some unknown reason the 'sale agreement' was acknowledged before a Notary Public on April 24, 1948, eighteen days after the accident, and 11 days before Escuriex ceased operations May 7, 1948. Mr. Escuriex could not state what the consideration was to be, nor could he give the amount of deduction exactly. The 'agreement' provided $3,725--he says around $6000.00. The 'agreement' provided $2.00 per thousand feet--he said $2.50 or $3.00.

'While the 'agreement' provided for the receipt of lumber by the Company, and deduction at its option--Mr. Escuriex, uncontradicted, stated that all the lumber was to go to the company, and if any lumber was delivered to anyone else a strict accounting was to be made to the Company. One sale was made to Krause & Managan, and accounted for after the accident, and a little bit, mostly scrap, sold to some farmers.

'Mr. Escuriex had no copies of any of the documents in question. They were all in the possession of the defendant. While he impressed the Court as being a man of intelligence and considerable experience in the lumber and logging business, yet he knew nothing of this business, the amount he owed the Company, the amount of deductions to be made, how much was actually paid on the machinery, had no payrolls or other evidence of the operations and no knowledge whatsoever of the business except that which was kept by the Company at is office in Port Barre. The checkers and haulers were vague and indefinite as to the loads and output, slips for hauling were given very seldom, wages were not paid regularly and only when and 'accounting' was given by the Company; considerable portion of the lumber was hauled by the company trucks, for which it kept the only records. It is inconceivable that a man of Escuriex's apparent intelligence and ability would have handled an operation involving the amount of labor and money as this, with so little regard for the conduct of the business and its outcome. He lost money it is true, yet he turned the property with additions and lumber back without any accounting.'

Several days after the injuries were sustained by plaintiff, Mr. Escuriex forwarded the following letter to Mr. Elder:

'Abbeville, La.

'May 7, 1948.

'Mr. Joe Elder,

'Port Barre, La.

'Gentlemen:----

'In view of the fact that I intend to close down the sawmill that I have been operating in Vermilion Parish, near Kaplan that your firm sold to me which I agreed to make notes for I either agree to bring the mill back to Prot Barre and allow you to charge me $2.00 per M' for what lumber I sawed on the mill which part you have already held off in your...