Harper v. Ragus

• Decision Date: 10 December 1952
• Docket Number: No. 7878,7878
• Citation: 62 So.2d 167
• Parties: HARPER v. RAGUS.
• Court: Court of Appeal of Louisiana — District of US

Page 167

62 So.2d 167

HARPER v. RAGUS.

No. 7878.

Court of Appeal of Louisiana, Second Circuit.

Dec. 10, 1952.

Rehearing Denied Jan. 7, 1953.

W. Sartis Bassett, Oak Grove, Albin P. Lassiter, Monroe, of counsel, for appellant.

Voelker & Ragland, Lake Providence, for appellee.

GLADNEY, Judge.

Plaintiff, Arnold Joe Harper, instituted this suit against the defendant, Edwin H. Ragus, to recover the maximum award of workmen's compensation for the loss of all the fingers on his left hand as the result of an accident while he was engaged in operating defendant's mechanical corn picker on the farm of Harry Shields in East Carroll Parish, Louisiana.

Following the trial of the case, judgment was rendered rejecting the demands of plaintiff as the court a quo determined that plaintiff was not at the time of his injury an employee within the provisions of the Workmen's Compensation Act, LSA-R.S. 23:1021 et seq., since he was then involved in a joint venture or partnership with the plaintiff.

Most of the facts are easily resolved. The defendant operated a farm of approximately four hundred acres south of Lake Providence and in the cultivation thereof he employed various power driven farm machinery, such as tractors, combines, and a hay baler and corn picker. In April, 1948, plaintiff was employed by defendant as a general handy man around the farm and particularly to operate the farm machinery. Harper was compensated for his labors at a salary of $100 per month and certain contributions from his employer which raised his wages to an amount equivalent to $43 per week, which sum is not in dispute.

On or about October 2nd or 3rd, 1950, plaintiff was directed by Ragus to take the corn picker to the nearby farm of Harry Shields and harvest Mr. Shields' corn. On October 9th plaintiff suffered the injury which necessitated the amputation of all five fingers on his left hand. This accident occurred when, during the operation of the corn picker, plaintiff descended from the driver's pedestal and with his gloved hand attempted to remove an ear of corn from an exposed snapping roller. Plaintiff's hand was pulled into the roller and mangled. Harper was hospitalized for a little more than a week and then returned to the Ragus farm where he gradually resumed light work. After the accident Ragus paid plaintiff the sum of $200 and his medical and hospital bill amounting to $193.

About December 1, 1950, plaintiff moved from the Ragus place, but around this date he executed a release for a reported consideration of $600, the purpose of said document being to release Ragus from all claims, damages, etc., resulting from an accident which occurred at Wilton Plantation. The record indicated the $600 was never paid to Harper. No court appearance was involved.

Counsel for appellee have correctly stated in brief the issues which require our consideration: (1) Was the necessary employer-employee relationship in existence so far as the subject accident and resulting injury are concerned to qualify the plaintiff-appellant for benefits under the Louisiana Workmen's Compensation Act?

(2) Did the release taken by defendant from plaintiff constitute an attempted lumpsum settlement of a claim without court approval such as is contemplated by the fraud penalty provisions of the Workmen's Compensation Law?

(3) Was the plaintiff guilty of such failure to use adequate safety guards as would preclude him from recovering under the Workmen's Compensation Law?

(4) If it should be found that compensation is due, is the Harper injury covered by the specific loss schedule or the disability provisions of the Workmen's Compensation Law and what should the compensation be, if any at all?

The first contention made by the defense is that plaintiff occupied the status of a working partner and that as such the claimant cannot be both employer and employee within the intent of the Workmen's Compensation Act. This doctrine has been consistently followed in Louisiana. Louisiana Workmen's Compensation Law & Practice (Malone), page 76. Vascocue v. Collins, La.App., 1933, 150 So. 414; Dezendorf v. National Casualty Company, La.App., 1936, 171 So. 160; Savant v. Goetz & Lawrence, 1926, 160 La. 916, 107 So. 621.

The difficulty in resolving the question lies in determining whether the contractual arrangement is such that the complainant is removed from the status of being an employee within the Workmen's Compensation Act. The Workmen's Compensation Act applies 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 certain named hazardous trades, businesses and occupations and a person rendering service for another in any of the trades, businesses or occupations covered is presumed to be an employee. LSA-R.S. 23:1033 and LSA-R.S. 23:1044. In addition to the relationship of employer and employee there may be other relationships which remove the injured worker from the protection of the act. These include the relations of partners inter sese, seller and buyer, principal and contractor and lessor and lessee. In the instant case the defense is advanced that Harper and Ragus were partners in gathering Shields' corn

LSA-Civil Code Article 2801 defines partnership as 'a synallagmatic and commutative contract made between two or more persons for the mutual participation in the profits which may accrue from property, credit, skill or industry, furnished in determined proportions by the parties.' Partnerships must be created by the consent of the parties. Article 2805 of the LSA-Civil Code.

Interpreting these articles the Supreme Court said in Chaffraix & Agar v. Lafitte & Company, 1878, 30 La.Ann. 631 'The true, final, satisfactory, conclusive test is in the answer to the question: what was the real meaning and intention of the parties, as expressed in their contract, whether verbal or written? If they intended to create a partnership, they will be treated as partners inter sese and with respect to third persons; if they did not intend to create that relation, but merely to divide the profits, or to share profits and losses, in a speculation or adventure, they will not be partners inter sese, nor will they be liable as such. Those who hold themselves out to the public as partners, or knowingly permit themselves to be so held out, may not, indeed, be actually partners, if they have not so intended and agreed; but they will be subject to the same liabilities as partners to those who have dealt and given credit on the faith and in consequence of such acts.' Likewise in Collom v. Bruning, 1897, 49 La.Ann. 1257, 22 So. 744, 747, it was held:

'Partnership is a special contract, dependent for its creation upon the consent of the parties (Rev.Civ.Code, art. 2805) that that particular relation should be established between them. The mere fact that two persons may both be interested pecuniarily in the same business venture, and that each gave to it equally his time and attention, by no manner of means carries with it, as a matter of law, the conclusion that they stand towards each other as partners.'

The same rule was followed in Shushan Bros. & Co. v. Drennan & Hillcoat, 1925, 158 La. 480, 104 So. 214, 216:

'To hold, under this state of facts, that the presumption of partnership, arising from a mere agreement to participate in the profits, is sufficient to establish a partnership, in the absence of intention between the parties to form a partnership, and in the absence of proof between the parties of a community of goods and proprietary interest therein, is clearly erroneous.'

We observe the foregoing authorities determine there must exist an intention to establish a partnership and that such intention must be clearly indicated by the parties to the particular arrangement. The decisions above cited have been approved recently in: Reel v. Brewer, La.App.1942, 6 So.2d 99; Glover v. Mayer, 1946, 209 La. 599, 25 So.2d 242; Whitmeyer v. Poche, La.App.1950, 49 So.2d 69; Carlson v. Ewing, 1951, 219 La. 961, 54 So.2d 414.

The evidence concerning the particular arrangement between Ragus and Harper is somewhat vague. It is strictly a verbal arrangement. Ragus testified that while Harper was employed by him about October 2, 1950, he advised him that he could take the corn picker and harvest the corn on Mr. Shields' nearby plantation, and plaintiff would give him one-half the remuneration received, less expenses. His explanation for making this special agreement was that there was little to do on the farm at that season of the year and he wished to assist plaintiff in securing additional compensation. Plaintiff denies most positively there was ever any agreement of partnership, expressed or implied, and no mention made of a division of profits on a fifty-fifty basis, less operating expenses. In corroboration of defendant's testimony that of Sam Denton and Harry Shields was offered. Denton stated that he heard Mr. Ragus tell Harper that he would give him fifty per cent of the amount earned from the corn picking after deduction for oil and gas. Shields testified that Ragus told him he was giving Joe one-half of whatever was made, and added, 'Well, you see I was not interested in what he had did with the money. All I was interested in was getting the corn in. But I understood Ed to say by taking Joe in...