Boutte v. R.L. Roland & Son

• Decision Date: 27 January 1931
• Docket Number: 3895
• Parties: BOUTTE v. R.L. ROLAND & SON ET AL
• Court: Court of Appeal of Louisiana — District of US

132 So. 398

15 La.App. 530

BOUTTE v. R.L. ROLAND & SON ET AL

No. 3895

Court of Appeals of Louisiana, Second Circuit

January 27, 1931

Appeal from Ninth Judicial District Court, Parish of Rapides. Hon R. C. Culpepper, Judge.

Action by Edgar L. Boutte against R. L. Roland & Son et al.

There was judgment for defendants, and plaintiff appealed.

Judgment affirmed.

Hakenyos Provosty & Staples, of Alexandria, attorneys for plaintiff appellant.

White Holloman & White, of Alexandria, attorneys for defendants, appellees.

OPINION

DREW, J.

Plaintiff, a journeyman bricklayer, sued for compensation under the Workmen's Compensation Law of Louisiana (Act No. 20 of 1914, as amended), alleging total disability, and asks for judgment for the maximum amount allowed under the said law for a period not to exceed four hundred weeks. He makes defendants in the case R. L. Roland & Son, a co-partnership composed of Robert L. Roland and Robert L. Roland, Jr., and the Georgia Casualty Company, the insurer of Roland & Son. He alleges that on the 22d day of January, 1930, defendants Roland & Son, through their duly authorized foreman and agent, Jerry Taylor, employed your petitioner to work as a brick mason on the Lawtell school building at the rate of $ 12 per day for five and one-half days per week, and agreed to furnish transportation to and from the job; that on the morning of the 23d of January, 1930, the said Jerry Taylor called for petitioner in his automobile at petitioner's home in New Iberia, La., to transport petitioner, according to his contract and agreement, to the Lawtell schoolhouse in St. Landry parish; that petitioner entered said automobile with his tools under the direction and care of the said Taylor; that the said foreman then proceeded in his automobile to-wards Lawtell at the rate of forty-five miles an hour, and that, upon reaching Broussard, La.--it being the shortest route--the right front tire of said automobile blew out, causing the automobile to wreck and violently throw petitioner to the ground. He alleges that at the time of said accident he was performing services arising out of his employment with the contractor and while in the course of his employer's trade and business; that he suffered a fracture of his right arm above the wrist and a fracture of one rib. He alleges that he is entitled to the sum of 65 per cent of his wages during the period of his disability, not to exceed four hundred weeks.

He further alleges his indebtedness to physicians and for hospital expenses and medicines in the sum of $ 67.40, and prays for judgment accordingly.

After the filing of the suit, the testimony of the foreman, Jerry Taylor, was taken out of court, and, after taking the said testimony, petitioner amended his original petition alleging that Jerry Taylor, the foreman, was also interested in the business of building the schoolhouse at Law-tell and therefore a partner in the enterprise, and made Jerry Taylor a party defendant in the suit.

Defendants answered denying the allegations of plaintiff's petition and specially denying that Jerry Taylor, the foreman, had agreed to furnish transportation to and from the place of work or that he had any authority to so agree. On these issues the case was tried in the lower court, resulting in judgment rejecting the demands of plaintiff, and from this judgment plaintiff has appealed.

The plaintiff lived at New Iberia, La., and the defendants Roland & Son had a school building contract at Lawtell, La., some fifty miles from New Iberia. Jerry Taylor was a bricklayer foreman for Roland & Son on the Lawtell job, and Taylor also lived at New Iberia and was a friend of plaintiff. Taylor was also foreman on another job at Reserve, La., with which Roland & Son had no connection, and plaintiff worked under Taylor on the Reserve job. They completed the job at Reserve and Taylor drove plaintiff to New Iberia, where they both lived. Upon reaching New Iberia, Taylor told plaintiff that he wanted to put him to work the next day on the Lawtell school job. Plaintiff relates the conversation which took place between him and Taylor in regard to the Lawtell job in his testimony as follows:

"Q. How was this agreement entered into?

"A. I had been working for him over at Reserve and I was to take my tools out and he says, 'Leave them in here.'

"Q. In what?

"A. In his car, and he says, 'I want to take you to Lawtell and put you to work there', and I says, 'All right.' I thought he was going to send me to Mississippi with his daddy."

Taylor relates the same conversation in the following manner:

"Q. Please describe the agreement, if any, that took place between you and Boutte prior to January 23, that is, the night before the day of the accident.

"A. I told him he could come to Lawtell, and he could go to work.

"Q. Did you tell him you would come to get him in the morning?

"A. He asked me in what car we would go in, mine or his. I said we would go in mine as his tools were already in my car. So we used my car the next day, and I passed by to get him."

On cross-examination, plaintiff was asked if Taylor was not taking him to Lawtell as a matter of accommodation, to which he replied: "I don't know anything about that."

Plaintiff testified that, on some of the jobs on which he had worked for Taylor, away from New Iberia, he sometimes rode to work with Taylor and sometimes went in his own car or rode with other workmen, and nowhere in his testimony does he say that his contract with Taylor to work on the Lawtell job included as part of his compensation the duty of Taylor or of defendants, Roland & Son, to transport him to or from his work.

Taylor was bricklayer foreman for Roland & Son, with full authority to hire and fire the brick masons. When Roland & Son bid on a job, they estimated separately the cost of labor in laying the brick, and the compensation paid Taylor as foreman was $ 1.50 an hour, plus $ 1 a day extra as foreman, and, provided the cost of laying the brick was less than the estimate made by Roland & Son, they gave Taylor as a bonus one-half the amount saved by him less than their estimate. There is no dispute as to the compensation to be received by Taylor as foreman for Roland & Son, and plaintiff alleges and contends that such an arrangement constituted Taylor a co-partner...