Hatten v. Haynes

• Decision Date: 31 October 1932
• Docket Number: 31975
• Citation: 175 La. 743,144 So. 483
• Court: Louisiana Supreme Court
• Parties: HATTEN v. HAYNES et al. In re HATTEN

144 So. 483

175 La. 743

HATTEN v. HAYNES et al.

In re HATTEN

No. 31975

Supreme Court of Louisiana

October 31, 1932

Redmond & Thompson, of Monroe, for applicant.

Theus Grisham, Davis & Leigh, of Monroe, for respondents.

OPINION

ROGERS, J.

This is a compensation suit. Defendants are the Lerner Stores Corporation and W. Green Haynes. Plaintiff claimed $ 20 a week for 300 weeks and $ 250 for medical and hospital services. The district court gave judgment in solido against the defendants, awarding plaintiff $ 18 a week for 150 weeks together with the $ 250 claimed for medical and hospital expenses. Defendants appealed, and the Court of Appeal reversed the judgment, 142 So. 286. The case is now before us on a writ of review issued at plaintiff's instance.

Defendants have moved for a recall of the writ of review on the grounds (1) That copies of certain exceptions filed in the district court by defendants are not annexed to plaintiff's application; and (2) that the application, in the absence of an affirmative showing that they were not given, is unaccompanied by a copy of the reasons assigned by the Court of Appeal for refusing a rehearing.

Defendants, in support of their motion, invoke section 5 of rule XIII of this court, providing that, among other things, an application for a writ of review must be accompanied by a copy of the petition and answer and other pleadings filed in the court of original jurisdiction and by a copy of the reasons given by the Court of Appeal for refusing a rehearing, if any such reasons were given.

Plaintiff, answering the motion to recall, avers that defendants are not prejudiced by his failure to annex copies of defendants' exceptions to his application for a writ of review, because, as is shown by its opinion, the exceptions were not considered by the Court of Appeal, having been abandoned by defendants' counsel in argument before that court, and that no copy of the reasons of the Court of Appeal for refusing a rehearing is attached to his application, because no written reasons for such refusal were assigned by the court.

In Pipes v. Gallman, 174 La. 265, 140 So. 43, where the contention was made that the writ of certiorari and review should be dismissed because the relator had failed to attach to his application copies of the briefs filed in the Court of Appeal, as required by section 5 of rule XIII of this court, we declared that the rule is intended for the convenience and information of the court, to enable the court to determine readily whether the case should be brought up for its decision; and we held that a failure to obey the rule might justify our refusing to issue the writ, but it could not justify our dismissing the proceeding after issuing the writ and having before us the briefs filed in the Court of Appeal (the briefs having been attached to an application for a writ of certiorari and review in another case).

We think the rule announced in Pipes v. Gallman is applicable here. The requirement that copies of the pleadings in the court of original jurisdiction and of the reasons of the Court of Appeal for refusing a rehearing shall accompany an application for a writ of review is intended for our convenience and information, so that we might readily determine whether the case should be ordered up for decision by this court. The failure to fulfill the requirement might have justified the refusal of the writ, but it does not justify the dismissal of the proceeding after the writ has been issued, where no issue based on the omitted exceptions can be raised before this court, and where no written reasons for refusing a rehearing were furnished by the Court of Appeal.

The motion to recall the writ of review herein is therefore denied.

The Lerner Stores Corporation leased for mercantile purposes the building No. 228 De Siard street in the city of Monroe, and proceeded to make certain alterations and repairs therein. The work was performed partly under the direction of the lessee's own construction organization and partly by W. Green Haynes, who agreed for the contract price of $ 1,715 to furnish the labor and material for all the lathing, plastering, and concrete work called for by the plans and specifications prepared by the lessee's architect.

Haynes in turn, contracted with Hatten, the plaintiff, for plaintiff to affix the channel irons and lathing in the vestibule of the building, so that the plaster could be attached thereto as provided by the specifications. Plaintiff agreed to do the work, furnishing the necessary labor and material, for the stipulated price of $ 58. Plaintiff, after examining the plans and specifications, had previously submitted to Hayes two propositions, one to work by the hour at $ 1 an hour, and the other for a completed job for an agreed price of $ 58. The latter proposition, as hereinabove stated, was accepted. Plaintiff was not on any pay roll, nor was any supervision exercised over his work by anybody, except by Haynes as to results. Although plaintiff chose to do the work himself, he had the right to hire others to do it for him. He worked or ceased to work as he saw fit. Without consulting defendants, he purchased and paid for the necessary materials. ...