Lyons v. Pirello

• Decision Date: 28 December 1966
• Docket Number: No. 6837,6837
• Citation: 194 So.2d 147
• Parties: Joseph C. LYONS v. Jasper PIRELLO.
• Court: Court of Appeal of Louisiana — District of US

Page 147

194 So.2d 147

Joseph C. LYONS v. Jasper PIRELLO.

No. 6837.

Court of Appeal of Louisiana, First Circuit.

Dec. 28, 1966.

Rehearing Denied Feb. 6, 1967.

Writ Refused March 27, 1967.

Lawrence A. Durant, of Cole & Mengis, Baton Rouge, for appellant.

W. P. Wray, Jr., of Wray & Simmons, Baton Rouge, for appellee.

Before LANDRY, ELLIS and BAILES, JJ.

LANDRY, Judge.

Plaintiff, Joseph C. Lyons (appellant), employed as a carpenter by defendant, Jasper Pirello (appellee), was awarded workmen's compensation benefits by the trial court at the maximum weekly rate of $35.00 for a period of 100 weeks, subject to credit for 12 weeks compensation paid by defendant, for the loss of an eye sustained while working on an apartment complex owned and being constructed by defendant. From said judgment plaintiff has appealed contending the trial court incorrectly awarded compensation for the loss of an eye whereas appellant should have been granted benefits for 400 weeks inasmuch as said injury produced total permanent disability. Appellant further complains that the trial court erroneously rejected his demand for penalties and attorney's fees due because of defendant's alleged arbitrary and capricious failure to pay incurred medical expense in its entirety and compensation benefits due beyond the twelfth week following plaintiff's injury.

Defendant, a self insurer, who maintains his sole businesses are that of Realtor and Lessor of improved realty, has answered plaintiff's appeal contending the judgment of the trial court should be reversed and set aside and plaintiff denied compensation on the ground that neither of appellant's said businesses are hazardous.

We think the judgment of the trial court is correct in every respect and affirm it.

Appellee, a resident of the City of Baton Rouge, readily concedes plaintiff's injury occurred while plaintiff was working as a carpenter in the course of plaintiff's employment by defendant as hereinabove noted. Nevertheless defendant maintains he is not liable to plaintiff for compensation benefits because defendant's sole businesses are those of realtor and lessor of improved real estate neither of which are hazardous within the contemplation of the term 'hazardous occupations' as used in our Workmen's Compensation Law. Stated otherwise, appellee argues that construction, repair and renovation of buildings by an owner whose sole businesses are those of realtor and lessor does not constitute such owner a contractor. Neither, according to appellee, does soch activities characterize an owner as being engaged in the business of constructing buildings, an occupation admittedly hazardous in nature . On this premise defendant, relying on the provisions of LSA-R.S. 23:1035 and certain jurisprudence hereinafter discussed, argues plaintiff's injury did not occur within the scope of defendant's regular business, trade or occupation consequently defendant is not liable to plaintiff for workmen's compensation benefits in any amount whatsoever. Finally, defendant contends the nature, amount, number and extent of the construction, repair or renovation engaged in by an owner with respect to his own rental properties has no bearing on the issue of whether such a proprietor is engaged in the construction or contracting industry as a business.

In substance this appeal presents for decision the following issues: (1) Was defendant engaged in the business of either contractor or building constructor, both admittedly hazardous? (2) Did the loss of his eye entitle plaintiff to 400 weeks compensation for total permanent disability instead of 100 weeks for the loss of said bodily organ as allowed by the trial court pursuant to LSA-R.S. 23:1221(4)?, and (3) Should the trial court have awarded appellant penalties and attorney's fees because of defendant's alleged arbitrary and capricious refusal to pay medical expenses in their entirety and compensation benefits due beyond the twelfth week following plaintiff's injury?

It is now well settled that the Workmen's Compensation Law of this state does not purport to render all employers liable for the benefits therein provided. The statute in question embraces only such occupations as are therein expressly declared hazardous or are found by the courts to be hazardous. Eligibility for benefits does not exist unless the employee is injured in the performance of work of a hazardous nature and which forms a part of the employer's regular trade, occupation or business. LSA-R.S. 23:1035; Shipp v. Bordelon, 152 La. 795, 94 So. 399.

In Edwards v. Stafford, La.App., 153 So.2d 106, we reviewed in detail the then existing jurisprudence on the subject matter presently under discussion including, inter alia, Shipp v. Bordelon, supra; McAllister v. Peoples Homestead & Savings Ass'n, La.App., 171 So. 130; Brooks v. Smith, La.App., 41 So.2d 800; Weaver v. Mutual Building & Homestead Ass'n, La.App., 195 So. 384, and Brown v. Hartford Accident & Indemnity Co., 240 La. 1051, 126 So.2d 768. We find it unnecessary to repeat all of our observations in Edwards v. Stafford, supra, with respect to the issue presently before us. It suffices, we think, to state the criterion which has evolved for determining whether liability for compensation benefits exists in a case wherein an employer undertakes to construct, repair or renovate buildings belonging to himself or others is simply whether or not the given employer is engaged in such undertaking as a business, trade or occupation. Stated otherwise, the issue is, does such activity constitute part of the employer's regular business, trade or occupation?

It is likewise well settled that the business in which the employer is engaged need not be exclusive inasmuch as an employer may, and many employers do, have multiple businesses, trades or occupations. McMorris v. Home Indemnity Insurance Company, 236 La. 292, 107 So.2d 645. We agree with counsel for defendant that the number, amount, nature and extent of repair or renovation engaged in by an owner of rental property with respect to his individual holdings is not decisive of the issue of whether such a proprietor is engaged in the work of repairing or renovating buildings as a business. McAllister v. Peoples Homestead & Savings Ass'n, supra; Brooks v. Smith, supra.

In the present case, therefore, the crucial question is whether defendant while engaged as realtor and lessor of improved realty was also engaged in the business, trade or occupation of constructing, repairing and renovating buildings or other structures. The answer to such question in any case depends upon the facts involved.

The record discloses plaintiff's injury occurred during the course of construction of a 20-apartment complex known as Drusilla Lane Apartments which edifice defendant undertook to build for himself. It is undisputed that defendant purchased a number of old buildings, transported them to the project site and thereby proceeded to combine and unite these components into a single structure. It also appears defendant constructed for his own account a commercial building situated on Airline Highway in the City of Baton Rouge and rented the structure to a firm known as Flame, Inc. Prior to constructing Drusilla Lane Apartments, appellee built on adjacent or nearby lands, an 18-unit apartment building which he subsequently sold to his mother-in-law, Josephine Lombardo, for an undisclosed sum. On another occasion, defendant constructed a restaurant for his mother-in-law, the establishment being erected on property fronting on Perkins Road in the City of Baton Rouge. Defendant also supervised construction of a commercial building in Denham Springs at the request of one of his realty clients and for said services received a commission of 10%. In addition, the record contains admissions by defendant of other instances wherein he performed repair and renovation work for third persons either for a fee or on a commission or on a cost-plus basis.

From the foregoing, we deem it clear beyond all doubt that defendant was in fact engaged in the construction, repair, restoration and renovation of buildings as a business, trade or occupation. Said business being hazardous and plaintiff having been injured in the course thereof while performing services for defendant incident thereto, defendant is patently liable to plaintiff for workmen's compensation benefits.

The injury in question occurred as plaintiff was in the act of using a power saw. In some manner a sliver of metal became lodged in and lacerated the cornea of appellant's left eye.

Dr. A. B. Cross, ophthalmologist, testified in effect that upon examination of plaintiff he found the cornea lacerated and the iris prolapsed. He removed the foreign body from plaintiff's eye, excised the iris prolapse and sutured the corneal wound. As a result of the accident and subsequent treatment, Dr. Cross explained there is some scarring of the cornea, the iris is missing and there is considerable opacity in the vitreous. Plaintiff possesses light perception in all peripheral fields but his visual acuity in the affected eye is less than 20/200. This condition, according to Dr. Cross, means that plaintiff is ...