McMorris v. Home Indem. Ins. Co.
| Decision Date | 15 December 1958 |
| Docket Number | No. 43547,43547 |
| Parties | Alex Baxter McMORRIS v. HOME INDEMNITY INSURANCE COMPANY. |
| Court | Louisiana Supreme Court |
Percy & Macmurdo, Baton Rouge, for defendant-appellant-applicant.
Laycock & Stewart, Baton Rouge, for plaintiff-respondent.
Plaintiff, Alex Baxter McMorris, instituted this suit to recover workmen's compensation for an injury received in an accident while working as a carpenter in the construction of a house for his son, Vernon D. McMorris (hereinafter referred to as the employer). Cited as defendant was the Home Indemnity Insurance Company which issued a policy in favor of the employer for workmen's compensation and general liability insurance. Neither the insurer nor the employer had agreed with plaintiff that the workmen's compensation statute would govern the employment.
The district court dismissed the suit. However, the Court of Appeal of the First Circuit, with one member dissenting, reversed the judgment and awarded compensation as for total and permanent disability. See La.App., 94 So.2d 471. We granted a writ of certiorari or review on the defendant's application.
The material facts of the cause are largely undisputed. At the time of the accident, and for several years prior thereto, the employer held a full time position with the Farmers Home Administration which required (in connection with the granting of loans by that agency) his approval of plans and cost estimates for the construction of farmers' dwellings, dairy barns and sheds and also his making periodic inspections of such structures. Using the construction knowledge that he had thus acquired, and taking advantage of some nine weeks of accumulated annual leave from his regular position to which he was entitled, the employer undertook to and did build a house--a home for himself and his family in which they were living at the time of the trial of this cause. During this undertaking plaintiff, who had been employed (along with others) to assist the employer, received the injury for which compensation is here sought. The building of the house by the employer was entirely a personal venture; it was in no way connected with his regular work for and with the above mentioned governmental agency. Moreover, he had never undertaken any other house building project.
It is the contention of plaintiff that when the employer was acting as carpenter, architect and contractor in the construction of his home, employing seven to nine other carpenters to assist him and devoting his entire time to the construction during a period of nine to ten weeks, he was engaged in a trade, business or occupation within the meaning of the compensation statute, even though he was then regularly employed by the Farmers Home Administration. We do not agree.
Decisive here, we think, is our holding in the landmark case of Shipp v. Bordelon, 152 La. 795, 94 So. 399. Therein, the plaintiff was injured while employed by the defendant, a physician by profession, in making repairs on a house owned by the latter. Holding that the repair work being done was not incident to or in the course of the employer's trade, business or occupation, and denying workmen's compensation to the plaintiff, this court said:
'The Employers' Liability Law of this state does not purport to make all employers of labor liable for compensation, but plainly and distinctly limits its operation to certain specified trades, businesses, and occupations, which in their very nature are hazardous, as well as others not mentioned, which may, under certain conditions, be found to be hazardous, and to cases where the parties by mutual consent agree to come under its provisions. * * *
'Hence, we see that it is not enough that the employe shall be performing work of the character falling within the designated trades, businesses, or occupations, but it must be done 'in the course of the employer's trade,' etc., in certain trades, businesses, etc. In other words, the work must be of that character, and the employer must be engaged in that line of work as a trade, business, or occupation, in order that the act may apply. * * *
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