Rayburn v. De Moss
| Decision Date | 09 January 1940 |
| Docket Number | 35500. |
| Citation | 193 So. 579,194 La. 175 |
| Court | Louisiana Supreme Court |
| Parties | RAYBURN v. DE MOSS. |
Certiorari to Court of Appeal, Parish of Rapides.
Suit by Andrew J. Rayburn against Jared R. De Moss to recover compensation for total permanent disability because of injuries sustained by plaintiff while in defendant's employ. A judgment for defendant was affirmed by the Court of Appeal, 192 So. 738, and plaintiff applies for certiorari or writ of review.
Relief prayed for by relator denied.
J. V. Thompson and K. Hundley, both of Alexandria for applicant.
Polk & Robinson and W. C. Roberts, all of Alexandria, for respondent.
The plaintiff claimed compensation for 400 weeks at the rate of $4.78 per week, alleging that, while he was employed by the defendant as a carpenter in rebuilding a dairy barn on defendant's farm, his foot and leg were injured resulting in total and permanent disability.
The defendant admitted that he operated a small dairy and that he employed the plaintiff as a carpenter to assist in rebuilding his dairy barn, which had been destroyed by fire, and that the plaintiff was injured while so employed. He also admitted ownership of a motor truck, which he used in delivering milk and averred that he alone drove the truck. He denied that his dairy, which he operates in connection with his small farm is mechanized and that his business is hazardous, in fact or in law.
The defense was sustained by the district judge and affirmed by the Court of Appeal of the Second Circuit. 192 So. 738.
The plaintiff applied to this Court for a writ of certiorari, which was granted.
The defendant owned a small tract of land, upon which he conducted dairy and farming operations. He had 35 head of cattle and milked about 25 cows each day. The monthly gross receipts from the dairy business averaged between $600 and $700. During the year preceding the plaintiff's injury, the defendant, through his farming efforts, produced 7 bales of cotton and 50 tons of hay, which were valued at approximately $650. The dairy barn contained a milking machine and a cream separator, which were operated by an electric motor. The building was destroyed by fire and the defendant employed the plaintiff solely and only as a carpenter at $1.25 per day to assist in the reconstruction of the barn. The plaintiff was injured while performing that type of service and is now claiming compensation, alleging total and permanent disability. The defendant was not engaged in repair or construction business.
While the barn was being rebuilt, the defendant milked his cows by hand and the milk was likewise strained and bottled. It was not pasteurized. During that period of time the motor truck was kept on the premises, the defendant alone driving and attending to it, and the plaintiff at no time rendered any services in connection therewith. The barn was erected for the purpose of sheltering the cows and furnishing a place where the milk could be bottled and the accessories kept. The motor truck was not housed there. The plaintiff was injured on March 11, 1938, and thereafter the barn was completed and a cream separator driven by an electric motor was installed. The defendant and the members of his family operated the farm and the dairy with the assistance of one or two laborers.
The sole question before us is whether or not the defendant was engaged in a hazardous business within the meaning of sub-section (a), paragraph 2 of Section 1 of Act 20 of 1914. No where in this sub-section is the operation of a farm or a dairy per se classified as a hazardous business.
The plaintiff contends that, because the dairy barn, prior to the date of the fire, housed the electrically driven milking machine and the cream separator, and after its reconstruction, a small electric motor and cream separator, and further, because the defendant used a motor truck to deliver milk, the defendant's dairy is thereby brought within the classification of a hazardous business, as there was the operation of machinery in connection therewith.
The defendant pointed out that the electric milking machine and cream separator were not in use...
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Edwards v. Stafford
... ... The Supreme Court, in Rayburn v. DeMoss, 194 La. 175, 193 So. 579, held that notwithstanding a dairy business has hazardous features, no compensation was due a carpenter injured ... ...
- Gailey v. McFarlain
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Collins v. Spielman
... ... 70, 196 So. 23, and Robinson ... v. Atkinson, 198 La. 238, 3 So.2d 604. Nor is the operation ... of a dairy so classified. Rayburn v. De Moss, 194 La. 175, ... 193 So. 579. But this court, as well as the courts of appeal ... of this state, have held that while the main business ... ...
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Ponthieux v. Lindsay, 49549
...business, or occupation of the employer which is within itself hazardous under the statute. * * *' (Italics ours) In Rayburn v. De Moss, 194 La. 175, 193 So. 579, citing Shipp v. Bordelon, supra, we denied compensation to an employee who was injured while engaged as a carpenter to help defe......