Blane v. Iglehart

• Citation: 5 La.App. 17
• Decision Date: 30 June 1926
• Docket Number: 2525
• Court: Court of Appeal of Louisiana (US)
• Parties: BLANE v. IGLEHART

5 La.App. 17

BLANE v. IGLEHART

No. 2525

Court of Appeals of Louisiana, Second Circuit

June 30, 1926

Rehearing Refused October 4, 1926.

Appeal from the Tenth Judicial District Court of Louisiana, Parish of Natchitoches. Hon. John F. Stephens, Judge.

Action by W. H. Blane against J. T. Iglehart, et al.

George R. Pilcher, Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellee.

Breazeale & Breazeale and Harry Sellers, of Natchitoches, attorneys for defendants, appellants.

OPINION

STATEMENT OF THE CASE

REYNOLDS J.

Plaintiff W. H. Blane, sued defendant, J. T. Iglehart, for compensation under the Workmen's Compensation Act (Act 20 of 1914 and amendments) for injuries sustained by him while working and superintending the work of others in the erection of a dwelling for defendant Iglehart.

Iglehart denied liability on the ground that plaintiff was not an employee of his but an independent contractor on the work. He also denied that plaintiff was injured to the extent he alleged.

The General Accident, Fire & Life Assurance Corporation, Limited, voluntarily made itself a party to the suit, and, alleging that it had insured Iglehart against loss under the Employers' Liability Act by reason of accidents growing out of the erection of the dwelling, set up the same defense to plaintiff's claim that Iglehart did.

On the trial of the case there was judgment in favor of plaintiff against both Iglehart and the Assurance Corporation and both of them have appealed.

OPINION

Plaintiff moved in this court to dismiss defendants' appeal. The motion was not allowed, and plaintiff in his brief makes no contention that the case is not now properly before the court.

The answers of the defendants do not squarely set forth the defense that they are not bound for the reason that defendant Iglehart was not engaged in any hazardous trade or business within the meaning of the Workmen's Compensation Act, but in their brief in this court they urge that the evidence shows that Iglehart was not engaged in any of the trades or businesses specified in the Act as hazardous, and that he was a merchant, engaged in the sale of dry goods and ready-to-wear articles in the town of Natchitoches, Louisiana; that being desirous of having a home built for himself he contracted with plaintiff to build it for him; that the building of the dwelling was no part of his, Iglehart's, trade, business or occupation nor incidental thereto; that he was not engaged in the business of erecting houses and that, therefore, the relations between him and plaintiff did not come under the operation of the Employers' Liability Act.

We are reluctant to decide a case on an issue not squarely raised by the pleadings, but in order for plaintiff to recover he must establish not only the fact of the accident and the extent of the disability resulting therefrom but also that he was an employee of Iglehart and that the latter was engaged in a hazardous business, trade or occupation within the meaning of the Employers' Liability Act, or that by special agreement before the accident he and Iglehart had elected in writing to come under the operation of the Act.

And while the fact that the relations between plaintiff and Iglehart did not come under the operation of the Workmen's Compensation Act was only brought to our attention in defendants' brief, we are constrained to give effect to the evidence in the record showing this fact.

There is no evidence even tending to show that Iglehart was engaged in a hazardous trade, business or occupation within the meaning of the statute or that...