Dezendorf v. National Casualty Co.
Decision Date | 11 December 1936 |
Docket Number | 5373 |
Citation | 171 So. 160 |
Court | Court of Appeal of Louisiana — District of US |
Parties | DEZENDORF v. NATIONAL CASUALTY CO. et al |
B. B Breazeale, Jr., of Natchitoches, for appellant.
E. W. & P. N. Browne, of Shreveport, for appellees.
Plaintiff filed this suit under the Workmen's Compensation Act of this state (No. 20 of 1914, as amended) claiming the maximum amount of compensation for a period of not more than 400 weeks. He made defendants the National Casualty Company and the partnership of Prudhomme & Dezendorf, an ordinary partnership, composed of Prudhomme and the plaintiff. His claim is based upon the allegation that he was an employee of the partnership at the time of the accident and injury.
Among the defenses set up by defendants is that plaintiff cannot claim and collect compensation from the partnership of which he is a member; that he was not an employee thereof. Since we think this defense is sound and a bar to plaintiff's right to recover, we will omit the remainder of the pleadings.
Prudhomme and plaintiff are both carpenters. They formed a partnership wherein it was agreed that each of said partners was to receive $ 35 per week, when working, and the profits, after deducting these amounts, were to be divided equally. Unless the job was a rush one, they did all of the carpenter work; but if the job were a rush one, they would employ additional help. The brick work, papering, and plastering were done by those they employed.
When at work on a house in Natchitoches, La., plaintiff fell from a ladder and was injured. The defendant insurance company, upon receiving the report of the accident, immediately began making payments at the rate of $ 20 per week, and continued to pay for 28 weeks before it discovered plaintiff was a member of the partnership which it had insured as against its employees. It immediately ceased making the payments and refused to make other payments. This suit followed.
The lower court rejected plaintiff's demands, and he has prosecuted this appeal.
The question appears to be res nova in this state. We have been unable to find a case on the subject, and none has been cited to us by counsel in the case. However, our investigation reveals that the same question has been passed on many times in the other states of the Union, and, with the exception of two cases from Oklahoma, the jurisprudence of the nation is uniform in holding that a partner cannot recover compensation as an employee from the partnership of which he is a member. Plaintiff urges that a partnership is a distinct entity from its members, and we find that to be true, but, as was said in the case of Le Clear v. Smith et al., 207 A.D. 71, 202 N.Y.S. 514, 515:
And in Munter v. Ideal Peerless Laundry, 229 A.D. 56, 241 N.Y.S. 411, 414, the Supreme Court of New York said:
In the case of Lyle v. H. R. Lyle Cider & Vinegar Company, 243 N.Y. 257, 153 N.E. 67, 47 A. L.R. 840, the Court of Appeals of New York said:
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