Chauvin v. American Mutual Liability Ins. Co.

• Decision Date: 11 May 1931
• Docket Number: 13,792
• Court: Court of Appeal of Louisiana — District of US
• Parties: CHAUVIN v. AMERICAN MUTUAL LIABILITY INS. CO

134 So. 450

17 La.App. 187

CHAUVIN v. AMERICAN MUTUAL LIABILITY INS. CO

No. 13,792

Court of Appeals of Louisiana, Orleans

May 11, 1931

Rehearing Refused July 1, 1931.

Appeal from Civil District Court, Parish of Orleans, Division "A." Hon. Hugh C. Cage, Judge.

Action by Mrs. Marie Chauvin against American Mutual Liability Insurance Company.

There was judgment for defendant and plaintiff appealed.

Judgment amended and affirmed.

Dart &amp Dart and Leo L. Dubourg, of New Orleans, attorneys for plaintiff, appellant.

Henry &amp Cooper and John A. Smith, Jr., of New Orleans, attorneys for defendant, appellee.

WESTERFIELD J. JANVIER, J., concurring.

OPINION

WESTERFIELD, J.

This suit was originally brought in the name of Mrs. Marie Dubourg Chauvin, Miss Louise Chauvin and Miss Laura Chauvin for compensation for the death of Louis Chauvin, the son of Mrs. Chauvin and the brother of the Misses Chauvin. The petition alleged that on October 8, 1930, Louis Chauvin was electrocuted under circumstances entitling his dependents to compensation from his employer, the E-Z Opener Bag Company of Braithwaite, Plaquemines parish, Louisiana; that he earned $ 200 a month and contributed $ 120 per month to the support of petitioners, who were partially dependent upon him; that the defendant, American Mutual Liability Insurance Company, was the insurer of Louis Chauvin's employer; that in accordance with the terms of Act No. 20 of 1914, petitioners are entitled to recover in a direct action against the insurance company. They pray for compensation in the sum of $ 18 a week for a period of 300 weeks, commencing October 8, 1930, for $ 100 funeral expenses and for $ 50 additional as incidental expenses.

Defendant filed an exception of no cause of action as to the right of the Misses Chauvin to claim compensation upon the ground that brothers and sisters have no cause of action when the mother, or father, either or both, are living. The record does not disclose whether this exception was ever disposed of by the court, but, upon the trial of the case, the claim of the two sisters was abandoned and the case proceeded with the mother alone as plaintiff. After a trial on the merits, judgment was rendered in favor of Mrs. Chauvin in the sum of $ 3 per week for 300 weeks, the first payment to be made as of October 15, 1930. Plaintiff has appealed.

The position taken by plaintiff in argument and in brief in this court is that there should be a recovery in favor of plaintiff of $ 9 per week for 300 weeks. Defendant denies liability upon the ground that the injury from which Louis Chauvin died was not received in the course of his employer's "trade, business or occupation," as required by paragraph 2 of section 1 of the Workmen's Compensation Act, and, in the alternative, avers that, if there be liability, the actual amount due would not exceed $ 1.94 per week for 300 weeks, but for the minimum of $ 3 per week established by the law. (Fuhrmann v. Keenan, 168 La. 642, 122 So. 892.)

The following facts gleaned from the record are pertinent to the question of liability. The E-Z Opener Bag Company built two ornamental brick pillars at the entrance to its plant. The pillars were surmounted by an electric light. A verbal agreement had been entered into between the bag company and the Louisiana Light & Power Company under the terms of which the bag company undertook to run the wire connections from the lights to a pole nearby, and, while engaged in running the wires, Louis Chauvin, who was the electrician of the E-Z Opener Bag Company, was shocked and killed. Defendant argues that Chauvin's employer was engaged in the business of manufacturing paper bags at its plant in the parish of Plaquemines and that, in connecting the wires of the Louisiana Light & Power Company with the ornamental pillars, which were located outside of the plant of the bag company, Chauvin, at the time of his death, was not engaged in the business of his employer. However, the record shows that Chauvin acted upon orders of his superiors and pursuant to an agreement between his employer and the Louisiana Light & Power Company. It will be presumed that he acted within the scope of his employment. He certainly was not engaged in any private enterprise and there is nothing in the record which would justify us in holding that the installation of the wires was not undertaken in the interest of his employer's business. Labostrie v. Weber, 15 La.App. 241, 130 So. 885.

Section 8, paragraph 2, of Act No. 85 of 1926, p. 116, reads as follows:

"For injury causing death within one year after the accident there shall be paid to the legal dependents of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided. If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid as aforesaid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident."

Without quoting further provisions of the act, suffice it to say that it is conceded that a widowed mother in Mrs. Chauvin's position is a partial dependent and, as such, is entitled to compensation for 300 weeks in a sum equal to such proportion of 32 1/2 per cent of her son's weekly wage as his weekly contribution bore to his total weekly earnings. Chauvin earned $ 200 a month and he gave his mother $ 120 a month. His mother was the head of a household which comprised the following individuals besides the deceased: Two sisters, Misses Louise and Laura Chauvin, three brothers, Vincent, Ernest and Eugene Chauvin. All of the children are majors, with the exception of Eugene, who was 19 years of age. Vincent, who earned $ 30 a week, gave his mother $ 15 and Ernest, who earned $ 25 a week, contributed $ 10. Eugene, who earned $ 65 a month, contributed little or nothing. Mrs. Chauvin, whose husband had been dead about 15 years when the suit was tried, maintained the household with the funds contributed by the three boys. One of the sisters, Louise, was an invalid; Laura, the other sister, helped with the housework. The family lived in a home which had been purchased through a homestead and out of the funds contributed to Mrs. Chauvin she paid $ 30 a month, or $ 360 a year to the homestead. In addition to this, she paid the Aetna Life Insurance Company an annual premium of $ 143.76 and to a community burial service company 50 cents a week or $ 26 a year. Defendant multiplies $ 120 by 12 to ascertain the yearly contribution to Mrs. Chauvin. From the sum arrived at, $ 1,440, it is claimed that there should be deducted $ 529.76, this amount representing the annual homestead and insurance payments of Mrs. Chauvin, thus leaving a balance of $ 910.24, from which counsel deducts the further sum of $ 547.50, an arbitrary amount estimated for the room and board of Louise, Laura and Eugene Chauvin at the rate of 50 cents each per day for one year. From the remainder, $ 362.74, he subtracts a further sum of $ 1 per week for 52 weeks for the room and board of Louis Chauvin, deceased, thus leaving a balance of $ 310.74, which he claims to be the sum actually contributed annually to Mrs. Chauvin's support. Counsel then continues his calculations as follows: Dividing $ 2,400, the annual income of the deceased, by 52, the number of weeks in the year, he gets the figure $ 46.16. 32 1/2 per cent of this sum amounts to $ 15. He divides $ 310.74, the amount he claims to have been contributed annually by deceased, by 52, the number of weeks in the year, and arrives at the figure $ 5.98. He then multiplies 15 by $ 5.98 and divides by $ 46.16, and reaches the figure $ 1.94, the actual amount which it is claimed Mrs. Chauvin is entitled to recover.

We have followed counsel's mathematics with difficulty and not without some misgiving concerning our complete comprehension. If the compensation law contained a stipulation to the effect that the basis of compensation to be paid dependents of deceased workmen should be the actual amount of profit which such dependents derived from the contribution of the workmen the argument of counsel and his mathematical deductions would have much force. But we find no such provision in the law, which, as it is written, is based upon the amount contributed to the dependents. Mrs. Chauvin received from her son, Louis, $ 120 per month. If she had applied that sum for her own maintenance exclusively, there could have been no doubt that it should be the basis for the calculation of the fractional proportion of his earnings which she should receive. The difficulty arises from the fact that Mrs. Chauvin was the head of a household in which there were some eight persons supported by the contributions of her three sons. In other words, all of her children who were earning any money gave what they could toward the maintenance of the family home. Taking the first item, which it is claimed should be deducted--$ 360 a year paid to the homestead by Mrs. Chauvin--we believe this sum should be ignored, whether the principle of defendant's position be admitted or not, because the home, for the payment of which these monthly sums were given the homestead,...