Lewis v. Bellow

• Decision Date: 02 July 1968
• Docket Number: No. 2385,2385
• Citation: Lewis v. Bellow, 212 So.2d 540 (La. App. 1968)
• Parties: Willie LEWIS, Plaintiff-Appellant, v. Fred BELLOW et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana

Page 540

212 So.2d 540

Willie LEWIS, Plaintiff-Appellant, v. Fred BELLOW et al., Defendants-Appellees.

No. 2385.

Court of Appeal of Louisiana, Third Circuit.

July 2, 1968.

Tate & Tate, by Donald Tate, Mamou, for plaintiff-appellant.

Donald Soileau, Mamou, for defendant-appellee, Fred Bellow.

Lewis & Lewis, by Seth Lewis, Jr., Opelousas, for defendant-appellee, Louisiana Pulpwood.

Clarence LeDay, in pro. per.

Davidson, Meaux, Onebane & Donohoe, by J. J. Davidson, III, Lafayette, for defendant-appellee, Lubert Andrepont & Alpine Mud Service, Inc.

Voorhies, Labbe, Fontenot, Leonard & McGlasson, by J. Winston Fontenot, Lafayette, for defendant-appellee, Aetna Casualty & Surety Co. and Kingsville Timber Co., Inc.

Guillory, Guillory & Guillory, by Robert K. Guillory, Eunice, for Lubert Andrepont, defendant appellee.

Before TATE, HOOD and CULPEPPER, Judges.

TATE, Judge.

The plaintiff Lewis was injured when he fell from a ladder while cutting a limb off a tree. He sues numerous parties for workmen's compensation benefits or, alternatively, for tort damages. He now concedes that the evidence at the trial excludes liability of all defendants except (a) Fred Bellow, (b) Clarence Ledet (LeDay), and (c) G. L. Malone (the latter chiefly only because of an alleged failure to comply with a discovery motion). The plaintiff appeals from the dismissal of his suit against these three defendants.

Lewis was employed as a woodcutter by the defendant Ledet, a pulpwood producer. Ledet had agreed to buy and cut pulpwood from property owned by Albert Dupre (who is not a party). Dupre 's land was next to an amusement park owned by Bellow, another defendant. The Dupre pulpwood stand was most accessible to the highway through Bellow's tract, and Bellow had agreed to permit Ledet's crew to go through his land in connection with the latter's pulpwood cutting operations. The accident occurred when the plaintiff was cutting a limb on the Bellow tract at Bellow's request.

The principal issues of the appeal are: (1) Was the injured Lewis employed by Bellow at the time of his injury? (2) Did Lewis's injury arise of and in the course of his employment with Ledet--that is, had Lewis deviated from his employment with Ledet at the time of his injury?

1. Was Lewis employed by Bellow at the time he was injured?

When Lewis's employer (Ledet) was given permission to traverse Bellow's land for the pulpwood operations, Bellow had also given him permission to cut any minor branches that impeded his access. Bellow contends that Lewis was injured while so doing for his employer, Ledet.

However, (as did the trial court) we accept the plaintiff's version as supported by the preponderant evidence: As Lewis was leaving one afternoon through the Bellow premises, Bellow asked him to use his power-saw to cut some tree limbs which were too close to the roof of a building-addition Bellow was constructing. While Lewis was in the process of so doing, his saw caught, and he fell from the ladder. Lewis admitted that no discussion whatsoever took place as to any pay for the performance of this chore.

The existence of an employer-employee relationship is generally an essential requisite to any action arising under the Louisiana workmen's compensation act. ¹ LSA-R.S. 23:1034, 23:1035; Jones v. Houston Fire and Cas. Ins. Co., 134 So.2d 377 (La.App.3d Cir. 1961); Malone, Louisiana Workmen's Compensation, Section 51 (1951). See also Tew v. Aetna Cas. & Surety Co., 174 So.2d 838 (La.App.4th Cir. 1965). In attempting to meet this requirement, the plaintiff Lewis essentially relies upon the principle summarized by Professor Malone in his authoritative treatise, cited above at Section 52, p. 53, as follows:

'A person may become an employee within the meaning of the Workmen's Compensation Act if he is performing a service for another with the latter's consent and subject to his control or direction. No formal contract between the two is necessary, and there need be no specific agreement as to how much is to be done or how long the arrangement shall continue. Nor is it required that the amount or terms of payment be settled, So long as the circumstances fairly indicate that the services were not intended as a gratuity and both parties understood that payment was to be made therefor.' (Italics supplied by the court.)

The plaintiff further relies upon the statutory presumption of employee status when one is injured while rendering service for another in an employment covered by our compensation act. LSA-R.S. 23:1044. However, this presumption may be rebutted by proof that there was no contract or ratification of employment. Ratliff v. Jackson, 77 So.2d 753 (La.App.1st Cir. 1955).

The plaintiff Lewis's testimony itself negates any contract of employment. He admitted frankly that he had never asked either before or after the accident to be paid for the minor chore he performed with his employer's power-saw (Tr. 325, 362--63), although he also stated he 'was looking for him to pay me after I finished'. Tr. 325.

Perhaps Lewis's attitude is indicatively summarized by his reply when questioned, Tr. 325: 'What you figured he'd (Bellow) pay you? A. Well, I Wouldn't know, but I was looking for him to pay me Something.' In the context of the surrounding circumstances, this suggests that Lewis hoped for a possible tip or gratuity from Bellow in return for the favor he was performing--a favor he could not very easily refuse, since Bellow had earlier granted him and his employer the favor of regular traverse across his land during the pulpwood cutting operations.

We therefore affirm the trial court's holding that Bellow is not liable to the plaintiff for any disability resulting from the accident sued upon. A person performing work gratuitously for another cannot recover workmen's compensation for injury sustained while doing so, because there is no contract of employment and thus no employee-employer relationship, a prerequisite to recovery of compensation benefits. Howard v. Early Chevrolet-Pontiac-Cadillac, Inc., 150 So.2d 309 (La.App.2nd Cir. 1963); Mire v. Adams, 55 So.2d 787 (La.App.1st Cir. 1951); Alexander v. J. E. Hixson & Sons Funeral Home, 44 So.2d 487 (La.App.1st Cir. 1950).

2. Did Lewis's disability arise out of and in the course of

his employment by Ledet?

The plaintiff Lewis was employed by Ledet as a woodcutter. His primary duties were to cut and transport wood from the Dupre tract. His duties also required him to traverse the Bellow land, and they did not exclude incidental cutting of tree limbs on said land. The plaintiff was crossing Bellow's land in the performance of his employment with Ledet when Bellow requested him to cut the limb.

The District Court held that, by cutting the limb for Bellow at the latter's request, the employee Lewis had deviated from his employment with Ledet and thus was no longer covered by the Louisiana workmen's compensation act. Accordingly, Lewis's suit against Ledet was dismissed.

In so holding, we believe that our learned trial brother fell into error. The momentary deviation involved no exposure to any substantially greater hazard than that occasioned by the regular duties of the employment. Under the jurisprudence to be cited, this deviation was therefore insubstantial and does not constitute cause to deny workmen's compensation to an employee so injured.

An employee protected by the Louisiana statute is entitled to receive workmen's compensation if disabled 'by accident arising out of and in the course of his employment.' LSA-R.S. 23:1031. In Kern v. Southport Mill, 174 La. 432, 141 So. 19, 21 (1932), a lead case, our Supreme Court stated that, for purposes of the workmen's compensation act, (a) 'an accident occurs In the course of an employment when it takes place during the time of such employment', and (b) it Arises out of the employment when it is 'the result of some risk to which the employee is subjected in the course of his employment to which he would not have been subjected had he not been so employed.' (Italics ours.)

In noting that deviations from normal duties to aid third persons do not necessarily deprive an employee of the coverage of the compensation act, the Supreme Court subsequently held that an employee's efforts to rescue a bystander from a dog were 'reasonably within the scope of those things contemplated' by the employment, allowing compensation for disability incurred in a rescue attempt. Edwards v. Louisiana Forestry Commission, 221 La. 818, 60 So.2d 449 (1952). Protection of the compensation act extends not only to disabilities incurred in the performance of employment duties, but also to activities reasonably connected with or incidental to them. Bates v. Gulf States Utilities Co., 249 La. 1087, 193 So.2d 255 (1966).

Further, acts of voluntary deviation from regular duties to accommodate third persons or for other purposes have been held to be within the course and scope of the employment, if at least partially performed in the employer's interest. Green v. Heard Motor Co., 224 La. 1078, 71 So.2d 849 (1954); Harkness v. Olcott-Stone Motors, 203 La. 947, 14 So.2d 773 (1943) (salesman going on overnight trip with purchaser after sale had been agreed upon, in order to be company for purchaser while he borrowed money to pay purchase price); Malone v. Plaisance Wholesale Grocery, 146 So.2d 853 (La.App.3d Cir. 1962) (construction worker helping supplier's employee perform the latter's duty of unloading a delivery). See Malone, Sections 167, 168, 175.

See also: Gray v. Broadway, 146 So.2d 282 (La.App.3d Cir. 1962); Castille v. Traders and Gen. Ins. Co., 137 So.2d 396 (La.App.3d Cir. 1962); Jagneaux v. Marquette Cas. Co., 135 So.2d 794 (La.App.3d Cir. 1961); Alexander v. Insurance Company of State of Pa., 131 So.2d 558 (La.App.3d Cir. 1961).

We conclude that Lewis's injury was sustained in an activity incidental to and arising out of his employment with Ledet. While traversing Bellow's land...