McMorris v. Home Indem. Co.

• Decision Date: 25 March 1957
• Docket Number: No. 4364,4364
• Citation: 94 So.2d 471
• Parties: Alex Baxter McMORRIS v. HOME INDEMNITY COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 471

94 So.2d 471

Alex Baxter McMORRIS v. HOME INDEMNITY COMPANY.

No. 4364.

Court of Appeal of Louisiana, First Circuit.

March 25, 1957.

Rehearing Denied May 2, 1957.

Writ of Certiorari Granted June 10, 1957.

Ashton L. Stewart, Baton Rouge, for appellant.

Percy & Macmurdo, Baton Rouge, for appellee.

ELLIS, Judge.

Plaintiff has appealed from the judgment of the lower court denying him compensation as for total and permanent disability as the result of an accident and injury admittedly occurring to him on the 13th of November, 1954 while employed by his son as a carpenter in the construction of the former's home.

There is no dispute as to the facts in the case, which in the main show that Vernon D. McMorris, hereinafter referred to as the employer, was a longtime employee of the Farmers Home Administration, in the capacity of the director for St. Helena Parish. The duties of his employment required that he act in a supervisory capacity in the construction of dwellings and other farm buildings throughout St. Helena Parish. It is shown that during the previous four or five years he had supervised the construction of approximately thirty dwellings and fifteen to twenty dairy barns and the same number of large dry sheds for the farmers of St. Helena Parish. This work also included the knowledge of plans as they were subject to his approval before a loan could be made. Such plans included the working up of the entire cost estimate, in other words, he was thoroughly familiar with the construction of homes, barns, and large dry sheds. The employer in the case at bar had an accumulated leave over a period of about four years and decided to build a home for himself. He applied first to the Bank of Greensburg for a loan which later was financed through the Veterans' Administration, and taking advantage of the accumulated leave of absence from his regular duties with the F.H.A. he employed, during the construction of the house, some seven to nine workmen, among whom was the present plaintiff who was a carpenter by trade and was paid by the employer $2.50 per hour. It took some nine or ten weeks to construct the residence and it was during the building of the breezeway that the plaintiff fell and injured his left shoulder.

When the employer applied to the bank for the loan, he stated in the application that he was building it himself and he listed himself as a contractor and also took out workmen's compensation, public liability, fire, storm, theft 'and the ordinary insurances * * *. For my protection and the banks.' There is no dispute that the employer in this case did the work of an architect in planning his house, did his own work in connection with the securing of the loan, performed the same duties as a contractor, foreman and also did a large portion of the actual carpentry work.

It is further shown that the plaintiff was paid compensation from the date of the accident on Nov. 13, 1954, to August 13, 1955, at which time it was discontinued and hence the plaintiff is claiming penalties and attorney fees.

The question to be decided in this case arises under that portion of our compensation law embodied in LSA-R.S. 23:1035:

'The provisions of this Chapter shall apply to every person performing services arising out of and incidental to his employment in the course of his employer's trade, business, or occupation in the following hazardous trades, businesses and occupations: * * *.'

There is no dispute but that the plaintiff was injured while performing services incidental to his employment but defendant strenuously argues that they did not arise 'in the course of his employer's trade, business, or occupation * * *.'

The defendant argues that the regular business of the employer was with the Farmers Home Administration and that the plaintiff's work was not, therefore, part of the employer's regular business. Defendant also argues that the employer was not in the construction business or the business of building houses, and paraphrases language used in the case of Prater v. Sun Indemnity Company, La.App., 38 So.2d 663, by posing the question: 'Was the employer in this case engaged in the construction business 'as a trade, business or occupation so that the statute might apply.'?' In arguing the question posed, counsel for defendant correctly states that payment of compensation by the Home Indemnity Company in this case did not constitute a legal waiver or estoppel, citing LSA-R.S. 23:1204 and the following cases: Fields v. General Casualty Co., 216 La. 940, 45 So.2d 85; Cannon v. Michigan Mut. Liability Co., La.App., 66 So.2d 534; Smith v. Crossett Lumber Co., La.App., 72 So.2d 895; Franz v. Sun Indemnity Co. of N.Y., La.App., 7 So.2d 636; Benjamin v. Standard Accident Ins. Co., 152 La. 874, 94 So. 428; Rutland v. General Accident Fire & Life Assurance Corp., La.App., 200 So. 486; Prater v. Sun Indemnity Co., La.App., 38 So.2d 663; Landry v. Fuselier, La.App., 78 So.2d 442.

Defendant in his brief further argues:

'There can be no liability on the Employer's part in the present case because the Employer was not engaged in contracting or construction of houses as a trade, business or occupation. In Prater v. Sun Indemnity Co. of N.Y. (La.App.), 38 So.2d 663, 666, the Court again quoted with approval the language used in Shipp v. Bordelon (152 La. 795), 94 So. 399, 400, as follows:

"* * * it is not enough that the employee shall be performing work of the character falling within the designated trade, business 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.'

'The assured in the present case was constructing his first and only house at the time Plaintiff was injured. Also this house was to be and is now the assured's personal residence. The house was never built for sale on the market or to make a profit. The assured's sole intention and purpose was to provide himself and his family a better house in which to live. The insured had never made or lost a penny building or constructing houses. He was not in business of building or constructing houses. He was an employee of the Federal Government, had been for some time past and occupied the same status at the time of the trial. The mere fact that his work with the government made him familiar with the construction business does not change matters. A lawyer, a banker, an official in a building and loan association, a government official, a plant worker, a carpenter or many other persons, including a Judge might gain intimate knowledge of the construction business while following their own professions or occupations, yet it cannot be said that they thereby automatically become a contractor or have their own construction business when they undertake with help to repair, to make additions to, or to build their own personal residence.

'The Caldwell case (168 So. 112), held that an employer engaged in the manufacture and wholesale and retail sale of paint was not liable in compensation to an injured workman especially employed to do paper hanging in its retail store because the employer was not engaged in the paper hanging business.

'The Speed case, in an opinion written by Chief Justice Fournet, declared the holding in the Caldwell case was much To narrow and did not consider the fundamental principles and the historical basis of the Louisiana Workmen's Compensation Act. At page 827 of 62 So.2d of the Speed case, we find the following language which was also used in the landmark case of Puchner v. Employers Liability Assurance Corp., 198 La. 921, 5 So.2d 288:

"'By that system the loss incurred as a result of the employee's injury is recognized 'as an element of the cost of production to be charged to the industry rather than to the individual employer, and liquidated in the steps ending with consumption, so that the burden is finally borne by the community in general. * * *''

"Clearly the cost of the maintenance of the theater building and equipment, including its repairs, is an operating or production cost of Page's business or occupation. (Theater owner) * * * This forms an element of the cost of the operation of the theater that will be finally borne by the patrons.' (Emphasis supplied.)

Professor Malone in his Louisiana Workmen's Compensation Law and Practice sets forth the same sound reasoning as employed above. We quote from page 132:

"This special requirement expresses a part of the underlying philosophy of the compensation principle. The business of the employer is expected to bear the cost of the risk of injury to those who serve the business. Therefore, only so long as the work of the employee is a part of the business of the employer is the application of compensation justifiable. At times this is obvious. Although a factory operator may be required to satisfy the claims of those workers who are injured in his plant, it does not follow that he should be made liable without reference to fault for accidents that befall the yardman who uses a power mower at his home. Neither must he pay compensation to the handyman who repairs or remodels his house. In all such cases the work of the employee may be fairly characterized as hazardous, and the same is true of the business of the employer. The fact remains, however, that the employment is not a part of the business and for that reason alone compensation is not appropriate.'

'* * * Paraphrasing the above basic principles, how can the element of cost of building one's own home be passed on to the consuming public? How can this burden be finally borne by the community in general? How can this cost of production be liquidated in the steps ending with consumption?

'The employer in this case is not in business of building houses. His residence is not for sale. His...