Caldwell v. George Sproull Co., Inc

• Decision Date: 13 December 1935
• Docket Number: 5139
• Citation: 164 So. 651
• Court: Court of Appeal of Louisiana — District of US
• Parties: CALDWELL v. GEORGE SPROULL CO., Inc

164 So. 651

CALDWELL v. GEORGE SPROULL CO., Inc

No. 5139

Court of Appeal of Louisiana, Second Circuit.

December 13, 1935

Rehearing denied Dec. 31, 1935.

Mabry &amp Carstarphen, Cook & Cook, and Blanchard, Goldstein, Walker &amp O'Quin, all of Shreveport, for appellant.

Julius T. Long, of Shreveport, for appellee.

OPINION

TALIAFERRO Judge.

Defendant is engaged in the manufacture and sale by wholesale and retail of paints, oils, varnishes, etc., and has been so engaged for some ten years. Its charter authorizes it so to do. The wholesale and retail store is located in the city of Shreveport, and eleven persons are required to conduct that line of its business. The manufacturing plant, or factory, is some three miles distant and only three persons are necessary to operate it. The personnel of the two businesses is entirely different. As the Shreveport store needs manufactured products to maintain its stock and supply its trade, requisition is made on the plant therefor and delivery thereof is made by truck operated from, and by an employee at, the store. The entire output of the factory is sold by and through the city store; but merchandise is sold from the store not manufactured by defendant.

In the month of January, 1934, defendant was having its large sales room renovated and employed plaintiff to hang paper therein, and while performing this work, a ladder, forming the base of a platform on which he was standing, broke. He fell about nine feet, landing on his right foot. Serious injury to the ankle directly resulted from the fall. He instituted this suit to recover compensation at the rate of $ 20 per week for a term of 400 weeks, and, in the alternative, sued for damages as in case of tort under article 2315 of the Civil Code. The alternative demand was abandoned during trial. We are therefore only concerned with the demand for compensation.

Defendant denies liability of any kind to plaintiff. Its position being that since plaintiff, when injured, was not performing work at its manufacturing plant, a hazardous business, but in its mercantile store, a nonhazardous business, his case is not compensation under the statute (Act 20 of 1914, as amended); and, further, that it is not engaged in the business of hanging paper as a vocation, nor as an incident to any line of its several businesses. Defendant is not now, nor has it ever, engaged in the business of painting and papering as a trade or vocation.

There was judgment for plaintiff for 125 weeks at $ 20 per week, and defendant appealed.

This case squarely presents the primary question: Where an employer is engaged in two distinct lines of business, neither incidental to the other, one hazardous under the statute, the other nonhazardous, and an employee is injured while performing services rendered and to be rendered exclusively to and in the nonhazardous business, is he entitled to compensation?

Plaintiff's position may be best understood from the following excerpts taken from his counsel's brief:

"Plaintiff contends that in the building in which he was at work when injured, the defendant carried on much of its business connected with its paint factory; that since the offices were there, that building was used by it as a warehouse, as its only office and place to sell and buy; that it was part of the factory. Plaintiff further contends that since defendant was in the business of leasing, buying, selling and mortgaging real estate, and doing "all acts of a general nature incidental to or connected with said named businesses,' that plaintiff can recover under the following business as defined by the Employers' Liability Act: "work in any of the building or metal trades in the erection, construction, extension, decoration, alteration, repair or demolition of any building or structural appurtenances.' To say the least, repairing this leased building and decorating it so it could be used in this real estate business, was "incidental to or connected with said businesses', as expressed in the charter of defendant."

The statute declares to be hazardous the occupation of operating warehouses. Such a business is a distinct and well-defined one. A "warehouseman" is one "lawfully engaged in the business of storing goods for profit." Act No. 53 of 1920. The goods referred to, of course, being goods of third persons for which negotiable receipts are issued. Act No. 221 of 1908. A permit for the operation of such a business has to be obtained from the clerk of the civil district court wherein the business is carried on. Section 1 of Act No. 82 of 1926. Other requirements are prescribed by the statute before a person may legally become a warehouseman. Surely, because a wholesale dealer stores surplus stock bought or manufactured by him, in the basement of his building, as is done by defendant, he does not thereby engage in the occupation of operating a warehouse. Such a room is no more than a storage room. It is in no sense a warehouse. The position of plaintiff here discussed is not tenable. Equally so is that advanced that because defendant chose to embellish the interior of its leased building by having it repainted and repapered, it thereby engaged in the business of decorating buildings. The more serious contention of plaintiff is that the relation of the plant operations and those of the wholesale and retail store are so closely interwoven that the two, in legal contemplation, amount to but one business or vocation; and that even though a workman is injured while performing services exclusively in the building where the retail and wholesale business is conducted, he is none the less entitled to compensation. The facts of the case impossible us to an opposite conclusion. While it is true that when goods are brought from the factory to the store, there is a charge made therefor by the store's bookkeeper, and that all clerical work needful to the conduct of both ends of the defendant's business is attended to by the employees in the store, we do not think this alters the situation. It does not efface the fact that defendant is engaged in at least three distinct occupations viz., (1) manufactur...