Guillory v. Nicklos Oil & Gas Co.

• Decision Date: 03 July 1975
• Docket Number: No. 5067,5067
• Citation: 315 So.2d 878
• Court: Court of Appeal of Louisiana — District of US
• Parties: Roy Donald GUILLORY, Plaintiff-Appellant, v. NICKLOS OIL & GAS COMPANY et al., Defendants-Appellees.

Page 878

315 So.2d 878

Roy Donald GUILLORY, Plaintiff-Appellant, v. NICKLOS OIL & GAS COMPANY et al., Defendants-Appellees.

No. 5067.

Court of Appeal of Louisiana, Third Circuit.

July 3, 1975.

Pucheu & Pucheu, by Jacque B. Pucheu, Eunice, for plaintiff-appellant.

Davidson, Meaux, Onebane & Donohoe by Lawrence L. Lewis, III, Lafayette, for intervenor-appellee.

Allen, Gooch & Bourgeois, by Joel E. Gooch, Lafayette, for defendants-appellees.

Before FRUGE , MILLER and DOMENGEAUX, JJ.

FRUGE , Judge.

This is an appeal by plaintiff and intervenor from a judgment sustaining a peremptory exception of no right or cause of action filed by Nicklos Oil & Gas Company.

The plaintiff, Roy D. Guillory, an employee of Slick Construction Co., Inc., alleges that on October 10, 1972, while operating a bulldozer with a back hoe in Acadia Parish he was injured when a tooth of the back hoe caught a collar of a gas pipeline, causing the pipeline to rupture. Fearing an explosion, plaintiff jumped from the dozer and in so doing sustained an injury to his left knee and leg.

At time of the injury Slick Construction Company was employed by Nicklos Oil & Gas Company to dig a ditch into which Nicklos' pipeline was to be laid. Plaintiff sued Nicklos and several other defendants alleging liability through negligence or through strict liability.

An intervention was filed by Liberty Mutual Insurance Company who is the workmen's compensation insurer for Slick Construction Company. Liberty Mutual contends that it has paid $8,215.11 in workmen's compensation benefits to plaintiff and is entitled to that amount (and any other amount to be paid) in preference to plaintiff.

In response to plaintiff's petition Nicklos Gas & Oil Company filed an exception of no right and/or cause of action, a motion for summary judgment, and an answer.

In support of its exception and motion Nicklos urged that under R.S. 23:1061 of the workmen's compensation statute it is the statutory employer of the plaintiff, and that under R.S. 23:1032 plaintiff has no remedy in tort against Nicklos. The trial court sustained the exception of no right and/or cause of action but denied the motion for summary judgment. Plaintiff and intervenor have appealed from the judgment sustained the exception. ¹ We reverse.

THE PEREMPTORY EXCEPTION OF NO CAUSE OF ACTION

The peremptory exception of no cause of action C.C.P. art. 927(4) questions whether the law affords any remedy to the plaintiff under the allegations of his petition. No evidence may be introduced to support or controvert an objection that the petition fails to state a cause of action. C.C.P. art. 931. American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970). The exception is triable solely on the face of the petition. All well pleaded facts in the petition and attached documents must be accepted as true and any doubts must be resolved in favor of the sufficiency of the pleading to state a cause of action. The exception must be overruled unless the allegations affirmatively establish that under no facts admissible under the allegations of the petition does plaintiff have a cause of action. See Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Watkins v. Louisiana High School Athletic Ass'n., 301 So.2d 695 (La.App.3rd Cir. 1974).

Plaintiff's petition alleges that he was employed by Slick Construction to operate the dozer and that at the time of the accident 'he was working on or near the property of the Raymond McManus Estate in the Richie Area of Acadia Parish, Louisiana, petitioner's employer having been employed by Nicklos Oil & Gas Company to dig the ditch and place said defendant's pipeline therein.'

The petition alleges that certain employees of Nicklos were directing the operation of laying the pipe and that their negligence caused the accident. It is also alleged that 'at the time of the accident 'Nicklos' was the mineral lessee of the land on which petitioner was employed to work, was the producer of the oil or mineral wells thereon and was the owner and operator of the pipeline.'

The petition alleges that Nicklos and the other defendants were negligent for 'failing to cut off or discontinue the gas flow into the pipeline prior to allowing work in the area'; 'in failing to warn petitioner that there was gas pressure in said line'; for 'failing to adequately inspect or maintain the pipeline . . .', and several other alleged acts of negligence not pertinent to the outcome of this appeal. The petition specifically alleges Nicklos to be negligent for failure to provide a safe place to work.

Plaintiff also filed an amended petition naming Nicklos' insurer as an additional defendant. A second amended petition was filed subsequent to the judgment sustaining the exception; we will not consider this second amending petition as it was not before the trial judge at the time the judgment was rendered.

La.R.S. 23:1061 provides as follows:

'Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.

Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.'

Plaintiff has pleaded that at the time of...