Dewey v. Lutcher-Moore Lumber Co

• Decision Date: 15 May 1922
• Docket Number: 24689
• Citation: 92 So. 273,151 La. 672
• Court: Louisiana Supreme Court
• Parties: DEWEY v. LUTCHER-MOORE LUMBER CO

92 So. 273

151 La. 672

DEWEY v. LUTCHER-MOORE LUMBER CO

No. 24689

Supreme Court of Louisiana

May 15, 1922

Appeal from Twelfth Judicial District Court, Parish of Vernon; John H. Boone, Judge.

Suit under the Employers' Liability Act by Henry B. Dewey against the Lutcher-Moore Lumber Company for compensation for injuries. From a judgment awarding compensation, defendant appeals.

Judgment annulled and set aside, exception sustained, and suit dismissed.

E. J McGivney, of New Orleans, and Pujo & Liskow, of Lake Charles for appellant.

Fern M Wood, of Leesville, for appellee.

OPINION

OVERTON, J.

Defendant conducted a logging camp at Fal, La. It employed plaintiff as its scavenger. His duties consisted, according to the allegations of his petition, in removing refuse, and in keeping the camp clean and sanitary. He further alleges that, while so employed, he accidentally fell into a hole in the ground, and sustained a sprain of his right hip, which has left it in a sore, stiff, and paralyzed condition. After alleging that defendant was notified of the accident and that he has been partially, though permanently, incapacitated to work by the injury received, he prays for judgment for 55 per cent. of his weekly wage of $ 20.75 for a period of 300 weeks.

Defendant excepted to this petition on the ground that it discloses no cause of action, and also filed an answer. The lower court overruled that exception. The case was then tried immediately on the merits; the result being a judgment for plaintiff. Defendant has appealed.

Defendant, in its brief, strongly urges its exception of no cause of action. The chief ground of the exception is that the petition does not show that plaintiff was engaged in a hazardous occupation at the time of the accident.

Act No 20 of 1914, in section 1 thereof, provides that it, the Employers' Liability Act, shall apply only, after mentioning the state and its political subdivisions, to "every person performing services arising out of and incidental to his employment in the course of his employer's trade, business or occupation in the following hazardous trades, businesses and occupations." Then follows an enumeration of the occupations deemed hazardous, among which are enumerated "logging and lumbering." The same section further provides that, "if there be or arise any hazardous trade, business or occupation or work other than those hereinabove enumerated, it shall...