Nugent v. Lee Lumber Company

• Decision Date: 02 June 1926
• Docket Number: 2636
• Citation: 4 La.App. 371
• Court: Court of Appeal of Louisiana — District of US
• Parties: NUGENT v. LEE LUMBER COMPANY

4 La.App. 371

NUGENT v. LEE LUMBER COMPANY

No. 2636

Court of Appeals of Louisiana, Second Circuit

June 2, 1926

Rehearing Refused June 30, 1926.

Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.

Action by Pinkie Nugent, et al., against Lee Lumber Company, Ltd.

There was judgment for defendant and plaintiffs appealed.

Judgment affirmed.

A. D Flowers, of Jena, attorney for plaintiffs, appellants.

Overton & Hunter, of Alexandria, attorneys for defendant, appellee.

OPINION

WEBB J.

In this action plaintiff, Mrs. Pinkie Nugent, individually and as tutrix of her minor children, seeks to recover judgment against the Lee Lumber Co., Ltd., and Frank Hamilton for compensation under Act No. 20 of 1914, or, in the alternative, for damages under Article 2315 of the Civil Code, resulting from the death of Ed Nugent, husband of plaintiff and father of the minors.

The defendants excepted tat the alternative demand failed to state a cause of action, and this exception being sustained the cause was tried on the original demand, and judgment rendered rejecting plaintiff's demands, from which she appeals.

OPINION

The plaintiff urges that the court erred in sustaining the exception as to the alternative demand, and also in rejecting her demands under the statute.

NO CAUSE OF ACTION

It has been held that an alternative demand for compensation under Act No. 20 of 1914 may be cumulated with an action in tort under Article 2315 of the Civil Code (Hale vs. Gilliland Oil Co., 151 La. 500, 91 So. 853), and conceding that the converse of this is true or that the facts showing the relationship of master and servant or employer and employee alleged in the original demand may be denied or contradicted in the alternative demand, yet we are of the opinion that the allegations of fact under the alternative demand, if admitted to be true, should not show a right of action under Act No. 20 of 1914, as would be the case in the present instance.

There are, no doubt, instances where a person who is an employer would be liable to another who is his employee for damages sustained by the latter through the negligence of the former, his agents or servants, which liability could have no connection with the liability of the employer, as such, under Act No. 20 of 1914; but the negligence charged in the present alternative demand is clearly based upon an alleged breach of an obligation or duty which could have been due or owing to decedent only as an employee, otherwise the alternative demand discloses no cause of action, and we are therefore of the opinion the exception was properly sustained.

MERITS

The evidence establishes that decedent was employed to drive an ox-team belonging to Frank Hamilton, who had a contract with the Lee Lumber Co., Ltd., to haul logs from lands belonging to or under the control of the latter; that the ox-team was kept at a corral located upon the lands of the Lee Lumber Co., Ltd., which was about one-half mile from the residence of decedent; that decedent's employment required that he hitch up the team at the corral and from thence drive the team and haul logs from such places as designated by Hamilton; and at the close of the day to return the team to the corral.

That on the date of the accident the decedent, after completing the day's...