Collins v. Spielman

• Decision Date: 12 December 1941
• Docket Number: 6394.
• Citation: 8 So.2d 606
• Court: Court of Appeal of Louisiana — District of US
• Parties: COLLINS v. SPIELMAN.

8 So.2d 606

COLLINS v. SPIELMAN.

No. 6394.

Court of Appeals of Louisiana, Second Circuit

December 12, 1941

Rehearing Denied Dec. 31, 1941.

Writ of Certiorari and Review Granted Feb. 2, 1942.

On Certiorari May 25, 1942.

T A. Carter and J. M. Shevnin, both of Alexandria, for appellant.

Shapiro & Shapiro, of Alexandria, for appellee.

DREW, Judge.

Plaintiff instituted this suit for compensation under Act 20 of 1914 as amended. He alleged that defendant owns and operates a dairy which is a hazardous business and that while in the employ of said defendant in dairy work he lost an eye in an accident which occurred while he was performing the duties he was employed to perform.

Defendant denied owing plaintiff any compensation and alleged that he was engaged in farming as his principal occupation and that the small dairy he operated was only incidental to his main business and occupation and that the compensation act, No. 20 of 1914, as amended, is not applicable to plaintiff's case.

The lower court awarded plaintiff judgment for 100 weeks' compensation at the rate of 65% of his weekly wages and defendant is prosecuting this appeal.

Defendant was engaged in farming and raised corn, cotton, oats, hay, etc on his place. The cotton was sold and most of the oats were sold as seed oats. The greater part of the corn, hay and other feed stuffs was used to feed the stock used on the place and the dairy cows. Defendant also operated a dairy on his farm, the size of which is not shown. He owned some milch cows which were milked by hand twice a day and every other day the milk was delivered to a creamery by a pick-up truck, the kind in general use by all small farmers. On the way back from the creamery the operator of the truck would deliver two quarts of milk, one to each of two filling station operators where defendant secured his gasoline with which to operate the truck.

Plaintiff was a share-cropper on defendant's farm. He raised cotton and corn and did extra work in defendant's crop, for which he was paid extra. He was furnished a house in which to live and cut his own wood on defendant's place without charge for it. Plaintiff used free of charge all the cistern water from the roof of the house he occupied. Free water, wood, house rent are customary for share-croppers. Plaintiff finished his work as a share-cropper when the gathering of the crop was completed in the early part of October. Between the time the crop was gathered and the time to prepare the land again for planting next year, plaintiff was used as a "handy-man" around the farm. He performed the jobs he was told to by defendant and was paid for each job done. He was employed to milk or assist in milking the cows, morning and afternoon, and was paid 40 cents a milking, or 80 cents a day. Every other day plaintiff was required to drive the pick-up truck and transport the milk from the dairy to the creamery and on the way back to deliver the two quarts to the filling stations.

In the early morning of January 4, 1940, plaintiff was driving the cows into the barn to be fed and milked. He carried a stick in his hand and in waving it at the cows, which did not wish to go into the barn, the end of the stick broke off and struck plaintiff in the eye ultimately causing complete loss of use of the eye. Under the above related facts, plaintiff claims compensation under Act 20 of 1914, as amended, and the lower court awarded compensation relying on the cases of Staples v. Henderson Jersey Farms, La.App., 181 So. 48, and Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303.

The lower court found that plaintiff's weekly wages were $4.29 and 65% of that amount is $2.79, which was the weekly award made by the lower court. Clearly this award, under the lower court's finding, should have been $3 per week for under no circumstances where the plaintiff is receiving more than $3 per week can his compensation award be less than $3 per week. It is only when he is earning less than $3 per week that a lesser amount can be awarded. Under this last condition he will be awarded the amount of his weekly wages based upon his daily wage. However, we are of the opinion the judgment is erroneous in allowing any compensation and in holding that the compensation act is applicable to the case.

In the Staples case it was not our intention to say, if it can be so interpreted, that every farmer who owned and operated a pick-up truck was subject to the compensation law. In that case we found that the dairy was entirely mechanized with electric milkers,...