Lay v. Pugh

• Decision Date: 12 June 1928
• Docket Number: 328
• Citation: 9 La. App. 183,119 So. 456
• Court: Court of Appeal of Louisiana — District of US
• Parties: LAY v. PUGH ET AL

119 So. 456

9 La. App. 183

LAY v. PUGH ET AL

No. 328

Court of Appeals of Louisiana, First Circuit

June 12, 1928

Writs of Certiorari and Review denied by Supreme Court November 26 1928.

Rehearing Refused October 3, 1928.

Appeal from the Civil District Court, Parish of St. Tammany. Hon Prentiss B. Carter, Judge.

Action by Top Lay against Joseph Pugh et al.

There was judgment for plaintiff and defendant Pugh appealed.

Judgment reversed as affecting Joseph Pugh.

Judgment affirmed in part and reversed in part.

H. E Ellis, of Covington, and R. D. Jones, of Covington, and Miss Anna C. McCay and Paul A. Sompayrac, of New Orleans, attorneys for plaintiff, appellee.

Miller and Heintz, of Covington, and Morgan and Simmons, of Covington, attorneys for defendants, appellants.

OPINION

MOUTON, J.

Plaintiff brings this suit for compensation under the Employers' Liability Act, Act No. 20 of 1914 as amended.

He alleges that he was injured in his right eye, the injury causing a total loss of that eye, while he was performing his duties as a carpenter in the repairing and changing the style of a building owned by Joseph Pugh, and situated in the town of Mandeville; that Augustus Smith, acting as agent, employed him to do the work for Pugh; that although Pugh has not actually denied liability he has not been able to collect the compensation he claims, and therefore asks the intervention of the Court to enforce payment from Pugh.

Plaintiff then alleges in the alternative, that if the Court finds that Augustus Smith was not the agent of Pugh, but was an independent contractor, that Smith be held liable for the compensation claimed. Finally, plaintiff alleges that he believes that though the persons engaged in the work exceeded seven in number, neither Pugh nor Smith carried any insurance for the protection of their workmen; that the work was hazardous and dangerous and comes within the laws of Louisiana making employers liable under the Workmen's Compensation laws of Louisiana.

Augustus Smith filed an exception of no cause or right of action; thereafter answering, making due reservation of the benefits of the exception. Joseph Pugh filed a similar exception; subsequently answered, and likewise reserved the benefit of his exception. The District Judge maintained the exception urged by Smith but over-ruled Pugh's exception and rendered judgment on the merits for the compensation demanded. Pugh appeals from the judgment rendered against him, and Top Lay, plaintiff, appeals from the judgment maintaining the exception in favor of Smith.

Augustus Smith files a motion in this Court to dismiss the appeal taken by plaintiff from the judgment maintaining the exception of no cause of action filed by Smith.

The dismissal of the appeal is asked on the complaint that the lower Court did not render a written separate judgment maintaining the Smith exception. In the same written judgment which was signed by the District Judge, two separate judgments and decrees were rendered; one in favor of plaintiff on the merits against Pugh, and the other for Smith on his exception of no cause of action. Although the two judgments were written on the same sheet of paper, they were in reality two separate judgments and decrees and both bore the signature of the Judge.

In the case of Monroe Hardware Co. vs. Thompson et als., 162 La. 335, 110 So. 495, the Court held that two separate decrees were not objectionable on the ground that a single judgment had been rendered. We find no merit in the motion to dismiss, and it is therefore denied.

We will first pass on the exception urged by Smith, and next in order on the defense relied on by Pugh, the other defendant.

In his petition plaintiff alleges in the first article, that Pugh is indebted to him for one hundred weeks' compensation at the rate, etc., until paid. In the second, he describes the injury he received while at work on a building belonging to Pugh. It is certain that in these two articles there is no cause of action alleged against Smith. In the third article, he avers that he was employed by Pugh, through Smith as agent for Pugh, as he was by Smith informed, and that he therefore makes the allegation of his employment by Smith as agent for Pugh. Obviously no relief could be demanded against Smith under that article in which it is distinctly averred by plaintiff that Smith had acted as Pugh's agent. In the fourth article, after alleging that he could not collect against Pugh, plaintiff asks for the intervention of the Court to enforce payment against Pugh. Here, Smith is completely eliminated from the demand, and the contest is strictly restricted to a claim against Pugh. There is unquestionably no cause of action or demand set out against Smith in the foregoing four articles of the petition. In the following article, number five, and pleading in the alternative, plaintiff alleges that if the Court should find that Smith was not the agent of Pugh, and decides that he was an independent contractor, in that event, he is entitled to recover the compensation claimed from Smith. Such an allegation as that has less value than the averring by the pleader of a mere conclusion of law, as it depends for its effect on the possible finding by the Court of a conclusion which could only be reached on facts properly set out in the petition.

Finally in article six, the last, plaintiff...