Lemmler v. Fabacher

• Decision Date: 15 February 1932
• Docket Number: 13,962
• Citation: 139 So. 683,19 La.App. 144
• Court: Court of Appeal of Louisiana — District of US
• Parties: LEMMLER ET AL. v. FABACHER

139 So. 683

19 La.App. 144

LEMMLER ET AL. v. FABACHER

No. 13,962

Court of Appeals of Louisiana, Orleans

February 15, 1932

Rehearing Refused March 7, 1932.

Writs of Certiorari and Review Refused by Supreme Court March 30 1932.

Appeal from the Civil District Court, Parish of Orleans, Division "D." Hon. Walter L. Gleason, Judge.

Action by Mrs. Charlotte Lemmler and others against John Fabacher doing business as Dauphine Bakery.

There was judgment for plaintiffs and defendant appealed.

Judgment affirmed.

Raoul Sere, Jr., of New Orleans, attorney for plaintiff, appellee.

M. C Scharff, of New Orleans, attorney for defendant, appellant.

HIGGINS J. JANVIER, J., dissenting.

OPINION

HIGGINS, J.

Plaintiff, as surviving parent, individually and as natural tutrix of her two minor daughters, sued the defendant to recover compensation alleged to be due under the compensation statutes of this state for the death of her minor son, who was killed on December 18, 1929, while employed by defendant, who was engaged in the bakery business, in the capacity as driver or chauffeur of a Ford truck used in delivering bread.

The defendant filed an exception of no right or cause of action as to the claim in behalf of the sisters of the deceased on the ground that the compensation law vests any right there may be to recover solely and exclusively in the mother, as surviving parent, and denied liability, interposing the following defenses:

(1) That driving an automobile truck is not one of the enumerated hazardous trades, businesses, or occupations covered by the provisions of the compensation statute.

(2) That the deceased came to his death as a result of operating the truck at an excessive rate of speed, in violation of the traffic ordinance of the city of New Orleans, and, therefore, was guilty of a deliberate breach of a statutory regulation affecting safety of life or limb.

(3) That the deceased was injured and died as a result of his deliberate failure to use an adequate guard or protection against accident provided by his employer, the defendant, in not applying the pedal and emergency brakes on the truck in order to bring it to a stop.

(4) That the deceased willfully injured himself and caused his death, and

(5) That the mother was not wholly or partially dependent upon her son for support.

The exception of no right or cause of action was sustained and the suit dismissed as to the two sisters, and there was judgment in favor of the mother individually, as prayed for, and for $ 150 funeral and contingent expenses in connection therewith. Defendant alone has appealed.

In this court defendant, in the alternative, further complains:

(A) That in the event this court should hold the defendant liable, the trial court improperly calculated the compensation allowed because the boy boarded at home and his mother bought his clothes out of his earnings, for which proper allowances or deductions should be made, and,

(B) That the compensation statute limits the funeral expenses to $ 100, and, as the lower court allowed the sum of $ 150, it should be reduced to $ 100.

The record shows that the defendant is engaged in the bakery business and employed the plaintiff's minor son, age 17 years, to drive a Ford truck for the purpose of delivering bread to customers for a wage of $ 12 per week; that on December 12, 1929, at about 5:30 a. m., while the deceased was delivering bread in the truck, it ran into an iron post at the intersection of Washington avenue and Broad street, this city, that the boy was badly crushed and injured and died as a result thereof on December 18, 1929.

(1) Taking up the defenses urged below in their order, it is sufficient to say that both the Supreme Court and this court have held that the operation of a motor-truck by a driver or chauffeur is hazardous and comes within the provisions of the compensation statute because it involves the operation of machinery. Haddad v. Commercial Motor Truck Co., 146 La. 897, 84 So. 197, 9 A. L. R. 1380; Plick v. Toye Bros. Auto & Taxicab Co., Inc., 13 La.App. 525, 127 So. 59. Furthermore, "bakeries" are one of the hazardous trades, businesses, and occupations expressly named in paragraph "a" of subsection 2 of section 1 of Act No. 20 of 1914, as covered by the statute.

(2) The Supreme Court and this court have also held that failing to obey a municipal traffic ordinance regulating the safety of life or limb is not a breach of the statutory regulation provided for in section 28 of Act No. 20 of 1914 because that provision relates to a state law and not a municipal ordinance. Consequently the violation of a traffic ordinance by the deceased in operating the truck at an excessive speed is not a defense. Plick, Wife of Adams, v. Toye Bros. Auto & Taxicab Co., 169 La. 44, 124 So. 140; Plick v. Toye Bros. Auto & Taxicab Co., Inc., supra.

(3) There is nothing in the record to show that the deceased deliberately failed to apply the pedal or emergency brakes. The only evidence on this issue is the testimony of one of the defendant's witnesses that the boy was driving at about fifty miles an hour at the time he ran into the post and made no effort to put on the brakes in order to avoid the collision. The most that can be said for this evidence is that it shows that the boy negligently failed to apply the brakes, but certainly would not be sufficient to prove the special defense that he deliberately failed to apply the brakes within the meaning of the provisions of section 28 of Act 20 of 1914.

(4) The record is barren of any evidence tending to show that the boy willfully intended to injure himself by running into the post. This contention is without merit, because, conceding that the boy was guilty of gross negligence, it cannot be said that he willfully injured himself, or willfully took his life. Negligence on the part of an employee is expressly excluded as a defense by the compensation act.

(5) It is true that surviving parents are not persons presumed under the provisions of the compensation law to be wholly dependent upon a deceased son for support, and that such persons as plaintiff must prove dependency by a preponderance of evidence in compensation cases. Edwards et ux. v. Standard Gin & Mfg. Co., 12 La.App. 153, 125 So. 593; paragraphs (A), (B), (C) and (D) of subsection 2 of section 1 of Act No. 242 of 1928, amending section 8 of Act No. 20 of 1914. But the question of whether or not the plaintiff was wholly dependent upon her son for support presents an issue of fact, which was resolved by the trial court in favor of the mother, and, after reading the record, we are convinced of the correctness of this conclusion because the...