Plick v. Toye Bros. Auto & Taxicab Co., Inc.

• Decision Date: 10 March 1930
• Docket Number: 11,327
• Citation: 13 La. App. 525,127 So. 59
• Parties: PLICK v. TOYE BROS. AUTO & TAXICAB CO., INC
• Court: Court of Appeal of Louisiana — District of US

127 So. 59

13 La. App. 525

PLICK v. TOYE BROS. AUTO & TAXICAB CO., INC

No. 11,327

Court of Appeals of Louisiana, Orleans

March 10, 1930

Rehearing Refused May 5, 1930.

Writ of Certiorari and Review Refused by Supreme Court July 2, 1930.

Appeal from Civil District Court, Parish of Orleans, Division "A." Hon. Hugh C. Cage, Judge.

Action by Mrs. Cecelia Plick, wife of Frank A. Adams, and Frank A Adams. against Toye Bros. Auto & Taxicab Co., Inc.

There was judgment for defendant and plaintiffs appealed.

Judgment reversed.

Normann Breckwoldt & Schwartz, of New Orleans, attorneys for plaintiffs, appellants.

John P. Sullivan and David Sessler, of New Orleans, attorneys for defendant, appellee.

HIGGINS J. JANVIER, J., dissenting.

OPINION

HIGGINS, J.

This is a suit for compensation by the parents of Frank Alexander Adams, alleged to be due as a result of the death of their son in the course and scope of his employment with the defendant corporation, under the provisions of Act 20 of 1914, as partially amended by Act 85 of 1926, and known as the Employers' Liability Act of this state. The defendant denied liability on the several grounds hereinafter set forth. There was judgment in favor of defendant dismissing plaintiffs' suit, and plaintiffs have appealed.

The petition alleges that plaintiffs are the mother and father of the deceased, who was killed on December 23, 1926, while acting in the course and scope of his employment as a taxicab driver for the defendant corporation, which is engaged in the taxicab business in the city of New Orleans, a hazardous occupation; that his death resulted from an intersectional collision at the corner of Peniston and Carondelet streets, this city, between the taxicab which the deceased was driving and a truck owned by Tusa Bros.; that they were dependent upon their son for support, who had never married and left no children, and received support regularly from him; that they are entitled to compensation for three hundred weeks on a basis of 65 per cent. of an average of $ 25 per week, or $ 16.25 per week, making a total of $ 4,875, and also funeral expenses incurred in the sum of $ 150.

Defendant filed an exception of no cause or right of action, which was overruled. Defendant then answered, denying liability, and setting up the following defenses:

(1) That the Employers' Liability Act, Act No. 20 of 1914, as amended in part by Act 85 of 1926, was not applicable to the present case, as paragraph 6 of section 3 of the amending act provides "that this act shall not apply to employees of less than the minimum age prescribed by law for the employment of minors in the trades, businesses or occupations specified in paragraph 2 of Section 1, or that may be determined to be hazardous under the operation of paragraph 3 of Section 1"; that Ordinance No. 7475, Commission Council Series of the City of New Orleans, provides "that no person shall be entitled to such certificate to act as chauffeur or driver of a motor vehicle of any kind operated for a fee, charge, profit, or reward, unless he be at least twenty-one years of age"; that therefore, as the law prohibited the decedent from acting as a chauffeur because he was not twenty-one years of age, the case is expressly excluded from the provisions of the Compensation Law.

(2) That the alleged accident did not occur in the course and scope of the employment of the deceased, because at the time of his death he was on a journey of his own and business for himself, and collected fares with the intention of converting them to his own use, and therefore was not acting in the course and scope of his employment.

(3) That the deceased at the time of his death was deliberately violating two provisions of the traffic ordinance of the city of New Orleans regulating safety of life and limb, first, in driving at a rate of speed in excess of 35 miles an hour, and, second, in ignoring the traffic sign "Stop" which was painted on the pavement in the center of Peniston street about twenty feet from the intersection of Carondelet where the accident occurred.

(4) That the deceased deliberately failed to use an adequate guard and protection against accident provided by the defendant, as he failed to use either the foot or emergency brakes of the taxicab, which were in good order.

(5) That the deceased's deliberate act in driving the automobile at an excessive rate of speed of thirty-five miles an hour, in violation of the city traffic ordinance, and his deliberate failure to stop in obedience to the traffic signal in Peniston street, amounted to wilfully injuring himself, and therefore the petitioners were not entitled to recover under the express provisions of the Employers' Liability Act.

(6) That the Compensation Act is not applicable, as the deceased violated Act 138 of 1926, in failing to pull the flag on the meter of the taxicab.

(7) That the deceased did not come under the provisions of the Compensation Act, as he was not receiving a salary, but was working on a commission basis, and therefore it was a contract of bailment and not employment.

(8) That deceased was employed by defendant on December 17, 1926, on his false representations that he was a white man, age twenty-one years, and held a chauffeur's badge issued by the city of New Orleans for the year 1926; that it was only after his death that defendant learned the deceased was a negro, age twenty years, and was using a chauffeur's badge for the year 1926, which belonged to a third party; that deceased represented himself as "Frank Alexander," whereas his correct name was "Frank Alexander Adams"; that defendant is engaged in operating a general automobile and taxicab business in New Orleans, and at no time ever employed colored men for the purpose of driving its taxicabs, which rule of the company was generally and publicly known; that the company also had a rule never to employ any chauffeur under the age of twenty-one years; that defendant's rule not to employ chauffeurs under this age without a chauffeur's badge of the city of New Orleans and colored men was well known to the deceased and that his false representations were made for the purpose of securing employment; that defendant, relying upon the false representations of the deceased, employed him, but would not have done so had the true facts been known; that the contract of employment was therefore null and void because of the fraudulent misrepresentations, and hence plaintiffs are not entitled to the benefits of the Employers' Liability Act.

(9) Defendant further urged as a defense that the parents were not dependent upon the deceased for support, and, in the alternative, that they were only partially dependent, and further, in the alternative, that the evidence is not sufficient to permit the court to fix the amount of compensation for such partial dependence.

The exception of no cause or right of action is based upon the ground that the decedent's employment as a chauffeur of a taxicab is not a hazardous occupation. The Supreme Court of this state, in the case of Haddad vs. Commercial Motor Truck Co., 146 La. 897, 84 So. 197, 9 A.L.R. 1380; Haddad v. Commercial Motor Truck Co., 150 La. 327, 90 So. 666, said:

"We think we may take cognizance of the fact that motortrucks are operated or propelled by gasoline engines or motors, which by the use of gasoline produce their own energy or motive power. The driving of such motortrucks necessarily involves the operation of such engines. * * * Would the driver of a motorbus for the transportation of freight and passengers be engaged in the operation of an engine or machinery? We think so. Not only does the operation of a motortruck involve the operation of an engine (gasoline), but also the operation of machinery, in its broader sense, as defined by the authority above cited. It involves the operation of the gasoline engine, as a part of the machinery of the truck, which in the ordinary, common, and everyday use of the word is a 'machine.'

"We therefore think that the exception of no cause of action should be overruled."

See, also, Powell vs. Spencer Bros., 5 La. App. 218, and Hicks vs. Parish of Union, 6 La. App. 543.

In view of the fact that the deceased was driving a public taxicab in a large city, where traffic is congested and danger imminent, the nature of the employment might be considered hazardous. However, we believe the above case to be controlling on the issue raised by the exception of no cause of action, which was therefore properly overruled.

We shall now discuss the defenses in the order in which they have been hereinbefore outlined:

(1) When this case was originally heard in this court, the judgment of the district court was sustained on the ground that the Compensation Act did not apply, as the evidence showed that deceased was less than the minimum age prescribed by the ordinance of the city of New Orleans for the employment of chauffeurs. See Plick, wife of Adams, and Adams, vs. Toye Bros. Auto & Taxi Cab Co., 11 La. App. 106, 120 So. 721, decided February 25, 1929. However, the Supreme Court granted a writ of certiorari and reversed the judgment of this court on the ground that the language "minimum age prescribed by law" referred to an act of the Legislature, or state law, and not a municipal ordinance, and, as there was not any state law forbidding a minor to act as a chauffeur in this state, the Compensation Law was applicable. See In re Plick, 169 La. 44, 124 So. 140. The case was then remanded to this court in order that the other issues presented might be determined.

(2) Under the defense that the deceased was not acting within the scope of his employment, the defendant undertook to show that, on the day of the accident, the inspector...