Jackson v. Clifford
| Citation | 159 So.2d 723 |
| Decision Date | 06 January 1964 |
| Docket Number | No. 1214,1214 |
| Parties | Thelma MOLIERE, wife of and Dan JACKSON v. Mrs. Thomas CLIFFORD. |
| Court | Court of Appeal of Louisiana (US) |
Lemle & Kelleher, Paul B. Deal, New Orleans, for plaintiffs-appellants.
Montgomery, Barnett, Brown & Read, Walter M. Barnett, New Orleans, for defendants-appellees.
Before YARRUT, SAMUEL and TURNER, JJ.
Plaintiffs sue to recover $6,240.00 damages for personal injuries and loss of wages allegedly suffered by the wife while employed in the home of Defendant as a general household domestic, for about a year, due to Defendant's negligence in failing to repair a defective basement floor, where the injury occurred.
In the alternative, Plaintiffs claim the wife is entitled to recover under La. Workment's Compensation Law, due to her strenuous and heavy work, consisting of handling heavy furniture; contact with medical supplies, equipment and chemicals; the cleaning of machinery and appliances; the use of an automobile; and the operation and cleaning of various electrical appliances, which was part of the regular trade, business or occupation of Defendant, as midwife.
By amended petition, Plaintiff joined Employers' Liability Insurance Corporation, Ltd. as a Defendant, since it was the comprehensive liability insurer of Defendant and her premises.
Defendants denied liability, though admitted the wife's employment solely in the capacity of a housemaid, scrubwoman, cook and laundress.
In the alternative, Defendants charge that any injury that was sustained was due to her own negligence and want of ordinary care while engaged in her duties, and her assumption of risk in the performance thereof.
From a judgment in favor of Defendants and against Plaintiffs the latter have taken this appeal. Reference herein to 'Defendant' will be to Mrs. Clifford only; and reference to 'Plaintiff' singularly will be to Mrs. Jackson.
At the outset, we must hold that Plaintiffs' alternative plea of coverage under the Workmen's Compensation Law is not well-founded. Plaintiff was employed as a domestic in the house of Defendant. Plaintiffs sought to prove Defendant was a midwife and Plaintiff assisted her as such, during which Plaintiff came in contact with various chemicals; and the necessity of using an automobile to shop for Defendant.
Defendant admitted she had been a practicing midwife and was listed in the telephone directory as such, but because of her advanced age (75), crippled by arthritis, which paralyzed her hands and fingers and made it difficult for her to get around, she had long since discontinued her practice before she employed Plaintiff as a domestic.
The chemicals the wife mentioned were such as are found in any family residence. Even if Plaintiff were classified as a nurse's aide, she could not recover under the Compensation Law. LSA-R.S. 23:1035; Guidry v. New Amsterdam Casualty Company, D.C., 148 F.Supp. 248, Id., 5 cir., 252 F.2d 233; Hymel v. Employers Liability Assurance Corporation, Ltd., of Great Britian, La.App., 113 So.2d 481.
Plaintiffs further seek recovery under the Compensation Law because the wife was requested to, and, on occasions, was driven by her husband in their family automobile to purchase supplies for Defendant. Defendant did not own an automobile. When Plaintiffs made the purchases they did so in their own automobile during the weekend while marketing for themselves.
The...
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