Clark v. Southern Kraft Corp.

• Decision Date: 29 November 1940
• Docket Number: 6281.
• Citation: Clark v. Southern Kraft Corp., 200 So. 489 (La. App. 1940)
• Court: Court of Appeal of Louisiana
• Parties: CLARK v. SOUTHERN KRAFT CORPORATION.

200 So. 489

CLARK v. SOUTHERN KRAFT CORPORATION.

No. 6281.

Court of Appeal of Louisiana, Second Circuit.

November 29, 1940

Rehearing Denied Jan. 13, 1941.

Writ of Certiorari Denied March 3, 1941.

Appeal from Fourth Judicial District Court, Parish of Morehouse; D I. Garrett, Judge.

Ex delicto action by Bob Clark against the Southern Kraft Corporation, for injuries and attending disability allegedly resulting while plaintiff was engaged in his employment with defendant. From a judgment dismissing the action, the plaintiff appeals.

Reversed and remanded.

James T. Shell, Jr., of Bastrop, for appellant.

Madison, Madison & Files, of Bastrop, for appellee.

HAMITER, Judge.

This action is ex delicto in nature and is brought by plaintiff against his former employer, Southern Kraft Corporation. He claims damages under Article 2315 of the Revised Civil Code of Louisiana for injuries and attending disability which, as he alleges, had their incipiency as a result of and while he was engaged in his employment with said defendant. No demand for compensation under the Louisiana Employers' Liability Act is included in the suit.

For a cause of action, the following averments are made in the petition:

" That your petitioner has, for more than the past six (6) years, been employed by said company at one of its plants in Bastrop, Louisiana, known as the ‘ Bastrop’ of ‘ Old’ mill, said particular mill having been constructed in about the year 1923, and having been operated since that date.

" That your petitioner was employed to work and actually worked, for the past six years, in which is known as the beater room of said mill, that being the room or place where the elements which finally produce pulp are treated with acids, liquor and other chemicals as part of the production process; and, that in the performance of his duties it was necessary for petitioner to stand near and come in close contact with the beaters which contained said acids, liquor and other chemicals.

" Petitioner now shows that for the past several years the said beaters with which he was forced to come into close contact have been broken and in a bad state of repair; that same constantly leaked because of their damaged and broken condition, thereby causing the acid, liquor and other chemicals contained in said beaters to run out and stand on the floor of the room where petitioner, in the proper performance of his duties, was required to remain and perform his work; and, that in the course of his employment, it was necessary for petitioner to walk and stand on the floor where these acids and other chemicals had accumulated and handle objects in the beater room that had become saturated with the chemicals and acids that had leaked from the broken and damaged beaters; and, that as a result thereof, petitioner sustained certain injuries as hereinafter set forth.

" Petitioner further shows that the substance, as above described, that leaked from the broken and damaged beaters and in which petitioner was forced to walk and stand contained chemicals that were dangerous and harmful to the human body, and were chemicals which, when constantly applied to the human body, would cause injuries of the nature petitioner sustained, all as hereinafter set forth; and, that such fact was well known or should have been well known to said Southern Kraft Corporation, its agents and employees in charge.

" Petitioner now shows that as a result of constantly walking and standing in said acids and chemicals that had leaked onto the floor from the broken beaters and constantly handling objects that had become saturated with said chemicals that had run out of the broken places in said beaters he devoloped the following condition and sustained the following injuries:

" A callous condition of both hands and both feet, which condition caused both hands and both feet to crack open and become extremely sore and tender. That said callous condition is such that both hands and both feet are extremely sore at all times, and, as a result, he cannot close his hands or walk on his feet without suffering severe pain and discomfort. That petitioner has received medical treatment for said condition but has not been able to obtain any relief whatever, and both hands and both feet continue to crack open and remain extremely sore and tender.

" Petitioner further shows that the aforesaid injuries together with the resultant condition, are permanent conditions and conditions from which he will never recover or be able to obtain any relief whatever; that he can perform no kind or type of work on account of same; and, being an uneducated colored laborer only, he has thus been rendered totally and permanently disabled to engage in any occupation or perform any work for compensation or profit.

" Petitioner further shows that said Southern Kraft Corporation and its agents and employees in charge, well knew or should have known that the said beaters were leaking by reason of their broken condition and bad state of repair, but that regardless of this fact it failed, refused or neglected to repair same or place said beaters in a proper and safe condition; that said company well knew or should have known that your petitioner was required to work in the substance that had leaked from the faulty and broken beaters and that same would result in the harmful effects of a permanent nature hereinabove described, but that regardless of this fact, said company failed, refused or neglected to inform petitioner of the certain consequences, advise him to take proper precautions under the existing circumstances, provide him with a safe place within which to perform his duties or supply him with proper safe-guards to protect himself from injury, but, on the contrary, allowed said unsafe condition to exist in violation of its duty to petitioner; all of which was a violation by said company of the duty imposed upon it by law and constituted gross negligence on the part of said Southern Kraft Corporation and was the proximate cause of the injury.

" Petitioner further shows that said company allowed said condition to exist when the existence of such a condition was neither customary in such a business or necessary; that said company could have kept the said beaters in proper repair and it would not then have been necessary for petitioner to have come into contact with the acids and chemicals that leaked from them, and, thereby, petitioner would have been provided with a safe place within which to work and no injury would have been caused.

" Petitioner now shows that he is an uneducated and ignorant colored laborer and that he did not know that working under the aforesaid conditions would cause injury; that had he known of same, he would not have worked in the beater room; but, not having been advised of the consequent ill effects, he did not know what precautions to take or that any were necessary for his protection. " That petitioner last worked for said Southern Kraft Corporation in October of 1938, at which time he left said employment due to the fact that the mill closed operations for a few months, but that the injuries and conditions he now complains about did not exist or develop and he did not know of same until March 15, 1939, at which time he submitted himself to treatment by physicians in the City of Bastrop, Louisiana, who were employed by said Southern Kraft Corporation and explained his condition to them and received treatment therefor; and, that said Southern Kraft Corporation at that time was fully advised of his condition."

The prayer of plaintiff is for judgment against defendant in the full sum of $10,000, together with legal interest thereon, and for all costs of suit.

The action was dismissed and plaintiff's demands rejected under a judgment of the district court sustaining exceptions of no cause and no right of action tendered and filed by defendant; and plaintiff prosecutes this appeal.

The exceptions, as pointed out by defense counsel in their brief are predicated upon the contention " that plaintiff having alleged an injury arising out of an act within the course of his employment, in a hazardous occupation, his cause of action comes under the compensation act, and the remedies prescribed thereunder are exclusive" ; and this contention calls in question the provisions of Section 34 of the mentioned workmen's compensation statute, being Act 20 of 1914 as amended by Act 38 of 1918, which reads: " The rights and remedies herein granted to an employee or his dependent on account of a personal injury for which he is...