Messer v. Bagwell Coatings, Inc.

• Decision Date: 29 June 1973
• Docket Number: No. 9448,9448
• Citation: 283 So.2d 279
• Parties: W. C. MESSER, as Curator of the Interdict, Kenneth John Messer v. BAGWELL COATINGS, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 279

283 So.2d 279

W. C. MESSER, as Curator of the Interdict, Kenneth John Messer v. BAGWELL COATINGS, INC., et al.

No. 9448.

Court of Appeal of Louisiana, First Circuit.

June 29, 1973.

Rehearing Denied Sept. 25, 1973.

George R. Covert, Baton Rouge, for appellant.

Anthony J. Clesi, Jr., Baton Rouge, for La. Electric Coop.

Carey J. Guglielmo, Baton Rouge, for Bovay Engineers.

Robert J. Vandaworker, Baton Rouge, for Riley Stoker Corp.

Neil Mixon, Jr., Baton Rouge, for Bagwell Coating, Inc.

John S. White, Jr., Baton Rouge, for Burns & McDonnell & Maryland Cas. Co.

Before LOTTINGER, ELLIS and CRAIN, JJ.

ELLIS, Judge:

This is a suit in tort by W. C. Messer, as curator of the interdict, Kenneth John Messer, his son, and alternatively as natural tutor, seeking damages for personal injuries suffered by Kenneth on May 9, 1972, at which time he was 17 years of age. Defendants are Bagwell Coatings, Inc., Riley Stoker Corporation, Bovay Engineers, Inc., Burns & McDonnell Engineering Company, Maryland Casualty Company, Burns' insurer, and Louisiana Electric Co-Operative, Inc. Exceptions of no cause and right of action were filed by all defendants. After argument, the exceptions filed by Bagwell, Riley and LECO were sustained, and judgments were signed dismissing the suit as to them. From the judgments dismissing the suit as to Bagwell and LECO, plaintiff has appealed.

The petition alleges that young Messer, then aged 17 years, was employed by Bagwell performing painting work on a building being constructed by LECO. He was injured when a scaffold on which he was working collapsed, causing him to fall some 80 feet to the ground.

The exceptions filed by Bagwell and LECO are to the effect that plaintiff's sole remedy against them is in Workmen's Compensation, and that he therefore has no cause of action in tort.

With respect to Bagwell, plaintiff points out that Kenneth was employed in an occupation prohibited to persons under the age of 18 by the Child Labor Law, R.S. 23:151 et seq., particularly R.S. 23:161. It is claimed that any employment contract made in violation of the provisions of the Child Labor Law is void, and that, in the absence of a valid contract of employment, there can be no coverage under the Workmen's Compensation Act.

The question presented has already been decided by this court in Matthews v. Buff Hottle Shows, 109 So.2d 261 (La.App. 1 Cir. 1959), in which we held that, since 1948, the Workmen's Compensation Act has been the exclusive remedy, against the employer, of a minor injured in the course and scope of his employment, even though illegally employed in a hazardous business in contravention of a prohibitory law. To the same effect are Estaves v. Faucheux, 111 So .2d 802 (La.App.Orl. 1959), and McLaughlin v. Boykin, 127 So.2d 86 (La.App. 4 Cir. 1961). The exception was properly maintained.

Louisiana Electric Co-Operative bases its exception on its alleged status as a statutory employer, under the provisions of R.S. 23:1061, the pertinent part of which provides:

'Where any person ...