Haven v. Munson

• Decision Date: 07 October 1936
• Docket Number: 1621
• Citation: 169 So. 819
• Court: Court of Appeal of Louisiana — District of US
• Parties: HAVEN v. MUNSON

169 So. 819

HAVEN v. MUNSON

No. 1621

Court of Appeal of Louisiana, First Circuit.

October 7, 1936

C. G Spaht and Fred G. Benton, both of Baton Rouge, for appellant.

Laycock & Moyse, of Baton Rouge, for appellee.

OPINION

DORE Judge.

This suit is to recover compensation at the rate of $ 3.90 per week for 200 weeks, and for medical and drug bills not exceeding $ 250, on account of an injury received by plaintiff on September 14, 1933, while working for defendant in a cotton gin owned by him.

Plaintiff's right arm was caught in the gin and mangled to such an extent as to necessitate its amputation near the shoulder. Defendant admits that plaintiff received the injury which necessitated the amputation of his arm, and admits that plaintiff was employed by him, but defendant denies that he is due plaintiff any compensation for the reasons: (1) That, on September 1, 1933, on entering his employ, plaintiff elected in writing not to come under the Workmen's Compensation Law, Act No. 20 of 1914, as amended; (2) that defendant furnished plaintiff with a modern gin, equipped with all necessary guards and safety devices, and the injury to plaintiff was caused by his deliberate failure to use the safety guards and devices furnished by defendant for the protection of plaintiff, that plaintiff failed and refused to obey instructions, and the accident occurred while he was disobeying instructions and acting without his line of duty.

Judgment was rendered for defendant, rejecting plaintiff's claim hence this appeal.

In support of his defense, the defendant introduced in evidence a contract dated September 1, 1933, signed by himself and the plaintiff, wherein plaintiff agreed to exclude the provisions of the Workmen's Compensation Law in so far as it affected his employment by the defendant as ginner, and also agreed to exclude from said employment the provisions of book 3, title 5, chapter 2 (article 2315 et seq.), relative to offenses and quasi offenses, particularly article 2315 of the Civil Code of Louisiana. The plaintiff in said contract further undertook to assume all risks of his employment and injury through the negligence of a fellow servant or through his own contributory negligence. As a substitute for the liability of the defendant as an employer under the Workmen's Compensation Law, Act No. 20 of 1914, as amended, and his liability under the general tort law of the state, plaintiff agreed to accept the benefits under a certain policy in the Mutual Benefit, Health & Accident Association of Omaha, which policy was referred to in the agreement and made part thereof. The plaintiff denied signing this contract in his testimony; however, we believe that the record shows that he did sign the contract, although it is probable that he did not understand its full import.

Section 3 of Act No. 20 of 1914, as amended by Act No. 85 of 1926, provides that every contract of hiring, verbal, written, or implied, between any employer and employee in the hazardous trades and occupations named in the act, shall be presumed to have been made subject to the act, unless there be as a part of said contract an express statement in writing either in the contract itself or by written notice by either party to the other, that the provisions of the act, other than sections 4 and 5 (as amended by Act No. 38 of 1918), are not intended to apply. Did the contract which plaintiff signed have the effect of taking his employment out of the provisions of the act? We think not.

Under the act the employer and the employee have the right to waive the provisions of the act by an agreement to that effect; but, in case such a waiver is made, the liability of the employer then comes under the general tort law of the state. Section 36 of the Compensation Act provides that no contract, rule, or regulation or device whatever shall operate to relieve the employer, in whole or in part, from any liability created by the act, except as therein provided. The latter clause evidently refers to the manner and effect of election on the part of employer and employee as provided in section 3.

There could be no question of the right of plaintiff to elect not to come under the provisions of the act if he had so desired when he signed the contract. But this document is more than an election on the part of plaintiff, as an employee, not to come under the law.

He also agrees in the same document and at the same time to relieve his employer of all liability from any cause whatever for any injury which plaintiff might sustain in the course of that employment.

The evidence shows that the employer deducted 10 cents per day from the wages of plaintiff, which amount, plaintiff claims, was to pay the premiums on the policy which was to serve as a substitute for both the compensation liability of the employer and his general tort liability as well. Defendant admits that the deduction was made, but claims that he paid the premiums; however, he does not show how or when the amount so deducted was ever paid to plaintiff. Plaintiff testifies that the deductions were made and never paid to him. If the defendant paid the premiums on this policy out of his own funds, we can see no reasons for making this deduction of 10 cents per day from the wages of the employees. The evidence leads to the conclusion that plaintiff was paying out of his own meager wages for this accident policy which was to act as a substitute for the liability imposed on the employer by the Compensation Law as well as his liability under the general tort law of the state.

In our opinion, this attempted contract is not only in direct contravention of section 36 of the Compensation Law, but is contrary to public policy. If contracts of this kind are given judicial sanction, it would open the door for an easy method of circumventing the wholesome provisions of the Compensation Law, and relegate the employee to an accident policy as his only means of compensation in case of an injury; and, more reprehensible still, require the employee to pay for his own insurance out of his wages. Therefore, whatever rights plaintiff has as an employee of defendant must be governed by the provisions of the Compensation Law, Act No. 20 of 1914, as amended.

Another defense is that the plaintiff deliberately failed to use an adequate guard or protection for his safety furnished by the employer. The plaintiff was injured when he raised the front or breast of the gin, removed...