Gros v. LeBlanc

• Decision Date: 14 October 1974
• Docket Number: No. 9928,9928
• Citation: 304 So.2d 49
• Court: Court of Appeal of Louisiana — District of US
• Parties: 22 Wage & Hour Cas. (BNA) 124, 77 Lab.Cas. P 53,719 Norris GROS v. Medric LeBLANC and Alvin LeBlanc d/b/a LeBlanc Brothers.

Page 49

304 So.2d 49

22 Wage & Hour Cas. (BNA) 124, 77 Lab.Cas. P 53,719

Norris GROS v. Medric LeBLANC and Alvin LeBlanc d/b/a LeBlanc Brothers.

No. 9928.

Court of Appeal of Louisiana, First Circuit.

Oct. 14, 1974.

Rehearing Denied Dec. 16, 1974.

Risley C. Triche and Jerome J. Barbera, III, Napoleonville, for appellants.

Felix H. Savoie, Jr., Napoleonville, and Philip J. McMahon, Houma, for plaintiff-appellee.

Dermot S. McGlinchey, New Orleans, for Wanda Petroleum Co.

Before LANDRY, BLANCHE and NEHRBASS, JJ.

BLANCHE, Judge.

Plaintiff-appellee, Norris Gros, was injured in an explosion and fire which occurred on April 23, 1971, while he was welding a pipeline operated by Wanda Petroleum Company in Houma, Louisiana. He had commenced work on April 19, 1971, and had earned a week's wages at the time of his injury. On July 1, 1971, demand for those wages was made by his counsel to LeBlanc Brothers, a partnership composed of Medric LeBlanc and Alvin LeBlanc, defendant-appellant. Thereafter on July 27, 1971, Gros filed a workmen's compensation suit against LeBlanc Brothers and their insurer, American Mutual Liability Insurance Company, asserting that Wanda was the true employer of Gros. One of the principal issues in that suit involved a determination of the employer of Gros.

On October 8, 1971, the matter was resolved by judgment of the Twenty-third Judicial District Court for the Parish of Assumption, holding LeBlanc Brothers to be the general employer of Gros and Wanda Petroleum Company the special employer. After the judgment was rendered, no appeal was taken by either defendant and in due time the judgment became final.

Meanwhile on August 2, 1971, in the same court, after the institution of the workmen's compensation suit but before judgment thereon, the present suit was instituted by Gros against LeBlanc Brothers pursuant to the provisions of LSA-R.S. 23:631--23:632, ¹ seeking to recover past due wages, penalties and attorney's fees. On November 19, 1973, which date was after the rendition of the judgment in the workmen's compensation suit, judgment was rendered for Gros against defendant LeBlanc Brothers for past due wages in the sum of $531, as well as $1,000 for attorney's fees.

From this judgment a devolutive appeal was taken, and only the following issues are considered by us, i.e., whether LeBlanc Brothers was the employer of Gros under R.S. 23:631--23:632 and whether Gros was entitled to penalties and attorney's fees under the provisions of said statutes.

LeBlanc Brothers is estopped from arguing that Gros is not their employee. The employee-employer status of Gros has already been determined by the trial court in a judgment which became final. To permit argument of that identical issue between the same parties, even though in another suit for a different demand, would simply be giving plaintiff 'two bites at the apple.' Louisiana jurisprudence has long recognized the doctrine of judicial estoppel. Recently in Broussard v. Broussard, 275 So.2d 410 (La.App.3rd Cir. 1973), the Court could not find proper facts for a strict application of res judicata, but found that the question there presented had been determined in a prior suit even though the demands were not the same . After recognizing the requirement to apply LSA-C.C. Art. 2286 ² strictly as written, Judge Domengeaux, in writing for the Court observed:

'The same is not true, however, of judicial estoppel, as we believe it is applicable to the situation before us. In California Company v. Price, 234 La. 338, 99 So.2d 743, our Supreme Court held that the doctrine of judicial estoppel is recognized in Louisiana, and used the following language in explaining its force and scope:

'It is the settled jurisprudence of this court that matters once determined by a court of competent jurisdiction, if the judgment has become final, can never again be called into question by the parties or their privies, though the judgment may have been erroneous and liable to certain reversal on appeal.

'Moreover, even if res judicata cannot be strictly applied the parties to this litigation are bound by judicial estoppel which extends to every material allegation or statement made on one side in the prior Price case and denied on the other which was determined in the course of the proceedings. " (Broussard v. Broussard, 275 So.2d 410, 412)

Equally applicable to the case here is the language of Judge Sartain of this Court in Rayborn v. Rayborn, 246 So.2d 400, 407 (La.App.1st Cir. 1971), writ refused, 258 La. 775, 247 So.2d 868:

'* * * Our jurisprudence has recognized that judicial estoppel can be invoked where a material allegation or statement is made in a prior suit by one litigant, denied by the other litigant, and determined in the course of the prior proceeding.'

Penal statutes such as R.S. 23:631 and 23:632 ought to be strictly construed. Mitchell v. Fein, 281 So.2d 463 (La.App.4th Cir. 1973), and Geer v. Nelson Dodge, Inc., 282 So.2d 794 (La.App.3rd Cir. 1973) .

R.S 23:631 requires that employment be by the day, week or month before the employee is entitled to attorney's fees and penalties under R.S. 23:632. Reference to the wage sheet found in the record shows that Gros was paid by the hour. The testimony shows that he was employed to fill in for another employee, one St. Germaine, who was ill at the time. St. Germaine was employed on a job basis and paid by the hour until the job was completed at some uncertain time. LeBlanc Brothers was also earning a dollar per hour for every hour worked by St. Germaine. Accordingly, we find that Gros was not employed by the day, week or month but rather on a piece-work basis, to be paid by the hour to work only as the need of LeBlanc Brothers and Wanda Petroleum Company dictated.

In Gatti v. Southern Research Company, Inc., 271 So.2d 376 (La.App .2nd Cir. 1972), the Court found that an employee's claim did not come within the statute, as his rate of pay by the hour was indefinite and his employment was for the length of the case and not by the day, week or month.

Terms of employment other than by the day, week or month have not been considered as being within the scope of the statute. In Dunn v . Bessie F. Hiern School, Inc., 209 So.2d 538 (La.App.4th Cir. 1968), writ refused, 252 La. 469, 211 So.2d 331, the Court found that a school teacher with an employment contract for nine months, payment to be made over twelve months, was not employed by the day, week or month and, therefore, denied coverage under R.S. 23:631 and 23:632.

In Collins v. Joseph, 250 So.2d 796 (La.App.4th Cir. 1971), Mrs. Collins contracted to conduct a certain number of interviews of persons in a market survey within a specified period of time at the rate of $1.75 per hour. She was found to be an independent contractor and denied coverage under the statute.

Employment by the hour and for an indeterminate length of time is not considered by us to be employment by the day, week or month, and, therefore, not protected under the statute. Gros' employment, not coming within the scope of the statute, requires a finding that he is not entitled to penalties and attorney's fees.

For the above reasons, the judgment of the trial court is affirmed insofar as it awarded judgment in favor of the plaintiff, Norris Gros, and against the defendant, LeBlanc Brothers, in the sum of $531 for past due wages, together with interest thereon from date of judicial demand until paid. It is further ordered that said judgment insofar as it awarded plaintiff attorney's fees in them sum of $1,000 is reversed. All costs of these proceedings are to be paid by the defendant-appellant.

Affirmed in part, reversed in part and rendered.

NEHRBASS, Judge (dissenting).

I respectfully dissent. In my opinion my learned brothers of the majority have erred in refusing to grant continuing wages and attorney fees.

I am in complete agreement with the application of the doctrine of judicial estoppel and the finding that the plaintiff was an employee of the defendant.

The opinion of the majority holds that ...