Edwards v. Stafford

• Decision Date: 03 May 1963
• Docket Number: No. 5854,5854
• Citation: 153 So.2d 106
• Court: Court of Appeal of Louisiana — District of US
• Parties: Landry EDWARDS v. Emily F. STAFFORD.

Page 106

153 So.2d 106

Landry EDWARDS v. Emily F. STAFFORD.

No. 5854.

Court of Appeal of Louisiana, First Circuit.

May 3, 1963.

Cobb & Brewer, by Arthur Cobb, Baton Rouge, for appellant.

Breazeale, Sachse & Wilson, by H. Payne Breazeale, Baton Rouge, for appellee.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

LANDRY, Judge.

Plaintiff herein, Landry Edwards, has taken this appeal from a summary judgment of the trial court dismissing and rejecting his demand against defendant, Emily F. Stafford, for maximum workmen's compensation benefits allegedly due appellant because of total permanent disability resulting from an accident which occurred during the course of his employment by appellee.

The facts and circumstances giving rise to this litigation are not in serious dispute between the litigants. As shown by affidavits of plaintiff and defendant made part hereof, defendant, a widow, as surviving spouse in community of her deceased husband, owns an undivided one-half interest in and enjoys the usufruct of the other undivided one-half of a house bearing Municipal Number 236 St. Louis Street, Baton Rouge, Louisiana. In addition to the aforesaid St. Louis Street property, defendant is the owner of a separate residence in which she resides. Since defendant and her daughter were placed in possession of the St. Louis Street property in succession proceedings had subsequent to the death of defendant's husband, said premises have been rented by appellee to an attorney-at-law for use as an office. Defendant has no other occupation or business, the rental from the leased premises being utilized by her for her maintenance.

On February 28, 1962, plaintiff was engaged by defendant to remove the old wallpaper, paint the woodwork, hang new wallpaper and do other renovation and repair to the St. Louis Street property. During the course of performing the aforesaid work, on March 14, 1962, plaintiff fell from a step ladder while removing wallpaper from an upstaris bathroom.

The single issue presented by this appeal is whether plaintiff's employment by defendant falls within the scope and purview of the workmen's compensation law of this state. More precisely, as stated by astute counsel for plaintiff in his brief, the question before the court is whether an employee, hired by one engaged in a non-hazardous trade, business or occupation for the express purpose of making capital repairs, is within the coverage afforded by our workmen's compensation law.

Defendant maintains she was not engaged in any trade, business or occupation within the meaning and intendment of the term 'trade, business or occupation' as used in the workmen's compensation law of this state. In essence defendant argues the renting of one house or building does not constitute a 'business' and further contends she is not engaged in repairing or renovating houses or buildings as a business but merely undertook to repair her own premises.

Able counsel for appellant argues, however, the renting of a single house or other building for revenue, gain or profit constitutes a trade, business or occupation and the repair and construction of such a house or building (as distinguished from construction or repair of one's own private, personal residence) is hazardous employment within the scope and during the course of such business.

The law of this state is well settled to the efffect the applicable workmen's compensation statute does not purport to render all employers liable for compensation benefits but embraces only such occupations, trades and businesses as are therein expressly declared hazardous or are found to be hazardous by the courts. To be eligible for compensation benefits, not only must the employee be engaged in work of a character falling within the designated trade, occupation or business, but also the work must be of that character and the employer must be engaged in that line of work as a business, trade or occupation. LSA-R.S. 23:1035; Shipp v. Bordelon, 152 La. 795, 94 So. 399; McMorris v. Home Indemnity Insurance Company, 236 La. 292, 107 So.2d 465. In this regard, we note and cite with approval the following language appearing in the McMorris case, supra, to-wit:

'Decisive here, we think is our holding in the landmark case of Shipp v. Bordelon, 152 La. 795, 94 So. 399. Therein, the plaintiff was injured while employed by the defendant, a physician by profession, in making repairs on a house owned by the latter. Holding that the repair work being done was not incident to or in the course of the employer's trade, business or occupation, and denying workmen's compensation to the plaintiff, this court said:

"The Employers' Liability Law of this state does not purport to make all employers of labor liable for compensation, but plainly and distinctly limits its operations to certain specified trades, businesses, and occupations, while in their very nature are hazardous, as well as others not mentioned, which may, under certain conditions, be found to be hazardous, and to cases where the parties by mutual consent agree to come under its provisions. * * *

"Hence, we see that it is not enough that the employe shall be performing work of the character falling within the designated trades, businesses, or occupations, but it must be done 'in the course of the employer's trade,' etc., in certain trades, businesses, etc. In other words, the work must be of that character, and the employer must be engaged in that line of work as a trade, business, or occupation, in order that the act may apply. * * *

"We agree with counsel that it is not required, under our law, that the business of the employer must be exclusive, for one may have a dozen trades, businesses, or occupations. But, to become liable for compensation he must be actually so engaged, as a trade, etc., and it is not enough that the work done should be hazardous if it be not also incident to or in the course of the trade, business, or occupation of the employer which is within itself hazardous under the statute. * * *'

'The Shipp decision was cited with approval in Fields v. General Casualty Company of America, 216 La. 940, 45 So.2d 85. Also, it has been followed in numerous cases decided by the Courts of Appeal, including Gerstmayr v. Kolb, La.App., 158 So. 647; Wilkie v. Langlois, La.App., 164 So. 434; Weaver v. Mutual Building & Homestead Association, La.App., 195 So. 384 (writs refused); Franz v. Sun Indemnity Company of New York, La.App., 7 So.2d 636; and Prater v. Sun Indemnity Company of New York, La.App., 38 So.2d 663.'

Although the employment may be a hazardous one, the employment does not fall within the purview of our workmen's compensation statute unless it is a regular part of the employer's trade, business or occupation. LSA-R.S. 23:1035; Cannon v. Michigan Mutual Liability Co., La.App., 66 So.2d 534; Caldwell v. George Sproull Co., Inc., 184 La. 951, 168 So. 112.

It appears equally well settled that although the work of the employee is hazardous and the business of the employer is likewise hazardous no compensation is due the employee unless his employment is part of the business of the employer. Thus, a repairman injured in the repair of his employer's residence, where the employee is engaged solely for that purpose, is not entitled to compensation. Gerstmayr v. Kolb, La.App., 158 So. 647; Prater v. Sun Indemnity Co. of New York, La.App., 38 So.2d 663. This rule, however, appears to have been modified by the holding in Speed v. Page, 222 La. 529, 62 So.2d 824, discussed, infra.

Esteemed counsel for appellant astutely contends the jurisprudence established by the Gerstmary and Prater cases (and decisions therein cited and relied upon) is inapplicable to the case at bar inasmuch as those authorities involved situations wherein the employee was injured while performing work on the residence of the employer concerned whereas in the case at bar appellant received injuries while engaged in work (repair) on a building rented for gain or profit.

Established jurisprudence, however, does not support counsel's contention. In Brooks v. Smith, La.App., 41 So.2d 800, the employee was injured while employed by defendant to paper one room of a house subleased by defendant to sublessees, defendant himself having leased the house and another building in which he conducted his trade as a glazier from the owner of the premises. The question presented was stated as follows:

'Is a person who owns and leases buildings which he keeps in repair, decorates and rents to tenants, engaged in a business of such nature as makes him liable, under the workmen's compensation statute of our State, for an injury sustained by an employee in the performance of services arising out of and incidental to such a business?'

In the Brooks case, supra, the court declined to make a distinction predicated upon the degree or extent of ownership of rental or tenant property as the criteria of liability for workmen's compensation benefits. The court, however, therein denied compensation on the ground the injured employee was not employed by defendant to perform work or render services in the course of the employer's business. In concludings as indicated, the court relied upon the Supreme Court decision rendered in Caldwell v. George Sproull Co., Inc., 184 La. 951, 168 So. 112.

The Caldwell case, supra, involved a paperhanger employed to do a special job of papering at a wholesale and retail store operated by defendant whose business was exclusively the manufacture and sale (wholesale and retail) of paints, varnishes and wallpaper. In denying compensation the Supreme Court pointed out that the employer had never engaged in the business of contracting for papering or painting houses and concluded as follows:

'As plaintiff was never employed by defendant company to work or serve in any capacity in the course of his employer's business, but only as an outside workman to do a special job of paperhanging, it...