McAllister v. Peoples Homestead & Saving Association

• Decision Date: 13 December 1935
• Docket Number: 5207,5084
• Citation: 164 So. 444
• Parties: McALLISTER v. PEOPLES HOMESTEAD & SAVING ASSOCIATION et al. MASLING v. SAME
• Court: Court of Appeal of Louisiana — District of US

164 So. 444

McALLISTER v. PEOPLES HOMESTEAD & SAVING ASSOCIATION et al.

MASLING v. SAME

Nos. 5207, 5084

Court of Appeal of Louisiana, Second Circuit.

December 13, 1935

Julius T. Long, of Shreveport, and M. C. Redmond, of Monroe, for appellants.

Theus Grisham, Davis & Leigh, of Monroe, for appellee.

OPINION

MILLS Judge.

These suits are by workmen for compensation under the provisions of the Workmen's Compensation Act (No. 20 of 1914, as amended).

The petition in the Masling case alleges: "That beginning about September 1, 1933, he worked for the said Peoples' Homestead & Savings Association at a wage and daily rate of pay of $ 1.50 per day, both in Monroe and West Monroe Louisiana, continuously to October 14, 1933, at what was known as and called a plumber's and pipe fitter's helper, aiding in and repairing sewerage and water lines in and connected with business houses and dwelling houses belonging to and being rented and leased out by the said Association to others for a monthly rental and valuable consideration."

After describing the accident and resulting injury, the petition goes on to state: "That he sustained his said injuries and disabilities performing services arising out of and incidental to his said employment in the course of the business, trade and occupation of the said defendant association, and in owning and repairing houses, repairing and installing water fixtures and sewerage lines into and in connection with its said houses; that during the whole time petitioner worked for the said defendant as aforesaid, an experienced and licensed plumber and man was present in the employ of defendant superintending the repairs made in the said sewerage, and all other work done in the plumbing or sewerage line; that for several years the said association has owned and rented out hundreds of houses as residences in Monroe and West Monroe, Louisiana, during which time it has engaged in the building and metal trades in that it engaged in that line of work in building and repairing its houses, repairing and installing water lines and water fixtures and sewerage lines on its lots, and into its said dwelling houses; that petitioner was working for the said defendant at the time he was thus injured, in work the said defendant was having done as part of its trade and business."

To the petition, defendant interposes an exception of no cause or right of action.

From a judgment in the Masling case sustaining the exception of no cause of action and dismissing the suit, plaintiff has appealed.

In the McAllister case, the exception of no cause and right of action was sustained, and plaintiff's demands rejected. It also is appealed. The cases, involving the same question, are consolidated.

The basis of the exceptions is that the facts alleged show that the business and occupation of defendant is not hazardous, and therefore not included in the provisions of the Workmen's Compensation Act.

McAllister was also a plumber, alleged to be regularly employed at a...