Linemueller v. Arthur
| Decision Date | 12 December 1910 |
| Docket Number | 18,164 |
| Citation | 127 La. 500,53 So. 732 |
| Court | Louisiana Supreme Court |
| Parties | LINEMUELLER v. ARTHUR |
Appeal from First Judicial District Court, Parish of Caddo; A. J Murff, Judge.
Action by Mrs. Tessie Linemueller against John Arthur. Judgment for defendant, and plaintiff appeals. Affirmed.
Hall & Jack, for appellant.
Thatcher & Welsh, for appellee.
Plaintiff claims of the defendant the sum of $ 5,000 for the loss she has sustained in the death of her husband, Frank Linemueller, the loss of his love and support, and the mental anguish she has suffered.
There were no children of her marriage. She claims the amount she alleges her husband would have been entitled to, had he recovered from the effects of the accident, had he survived at the last moment, and after having suffered all that he suffered by the accident, in which he lost his life.
John Arthur, the defendant, is a building contractor, and the husband of plaintiff was employed by him as foreman of the bricklayers in the construction of a high school building.
On the morning of June 14, 1909, plaintiff's husband, the petition alleges, was called upon to assist defendant in cleaning out a tin gutter.
According to the petition, it appears that defendant, Arthur, and plaintiff's husband were on the ground trying to clear the trash out of the gutter. A hodcarrier in the employ of defendant just then was sent to the roof by the decedent to assist the tinner, who was at the time at work opening the gutter, and was using a sash weight fastened to a cord.
This order was given by the decedent in the presence of and with the knowledge and approval of said Arthur.
A material and important allegation is that the said Linemueller and Will Bryan (the hodcarrier), while doing the work on which they were engaged at the time of the accident, co-associated.
While going to the roof, or while on the roof engaged in the work before referred to, the hodcarrier, it is charged by plaintiff, negligently and carelessly displaced a brick from the top of the wall. It fell, struck plaintiff's husband on the head, and injured him fatally.
The defendant excepted, on the ground that the petition did not disclose a cause of action.
The exception was maintained, and the case dismissed.
Plaintiff appealed.
The following is the first question presented by defendant for decision:
Is the hodcarrier the fellow servant of the foreman?
In this connection, it will be borne in mind that the foreman, who lost his life in the accident, and the hodcarrier, were employed in the same work, and were performing a common duty.
The foreman had ordered the hodcarrier to do the work which he was doing at the time that the brick fell from the roof, as before mentioned (owing to the negligence of the hodcarrier).
The second question is: Was the foreman a vice principal?
Taking up the first question, we are of opinion that the foreman and the hodcarrier were fellow servants.
It is very evident that this court has not gone to extremes as relates to the fellow servant doctrine. It has gone as far as possible of late years, in keeping that doctrine within due bounds. To limit it still further would be equivalent to abolishing it altogether. In a number of decisions of recent years, although conservative upon the subject, still that rule has to some extent been maintained.
There are three comparatively recent decisions of this court upon the subject. They are cited by learned counsel for plaintiff.
If the case of plaintiff falls within the scope of these decisions, her action will have to be maintained. Otherwise, as we have gone as far as deemed proper in limiting the fellow servant doctrine, we will not extend the limit any further than heretofore.
In the first case cited -- that is, the Merritt Case, 111 La. 163, second column, 35 So. 497 -- the court held that persons engaged in different duties in the same establishment are not considered as fellow servants. This view was reiterated on rehearing.
The following is this court's appreciation of the case cited above, expressed in the second decision, several years after the decision above had been rendered.
"The case is directly in point, as Merritt was a general laborer and off-bearer about the mill, and was not a co-associate with the man working the ripsaw."
In the case at bar, "there was no co-association between the plaintiff and the watchman, their duties being entirely different." Payne v. Georgetown Lumber Co., 117 La. 990, 42 So. 475.
In the next case, cited by learned counsel here for plaintiff, in the syllabus, it is expressly stated that the fellow servant's doctrine is not in the case. The fellow employe was working in a different department.
In this case the fellow servant doctrine was not pleaded.
In the case under...
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