Rester v. Community Stores, Inc.

• Decision Date: 30 June 1936
• Docket Number: 1630
• Citation: 169 So. 183
• Court: Court of Appeal of Louisiana — District of US
• Parties: RESTER v. COMMUNITY STORES, Inc

169 So. 183

RESTER v. COMMUNITY STORES, Inc

No. 1630

Court of Appeal of Louisiana, First Circuit.

June 30, 1936

Shelby Taylor, of Baton Rouge, for appellant.

Taylor Porter & Brooks, of Baton Rouge, for appellee.

OPINION

OTT Judge.

The plaintiff alleges that he was employed as a clerk in the grocery store operated by the defendant in Baton Rouge; that while so employed, on September 23, 1935, he sustained an injury to his back, incapacitating him from work since said date, and he asks for compensation in the sum of $ 5.84 per week from the date of the injury until he recovers from the effects of the injury. He also seeks to recover for doctor and medical bills.

Plaintiff avers that pursuant to his employment he performed such work in said store as was assigned to him by the manager in handling the stock of groceries and placing them on the shelves for sale; that while in his line of duty performing work in said store as directed in removing some sacks of potatoes weighing about 100 pounds each and piled upon each other in piles about seven feet high, three of the sacks on top of the pile fell on him while he was attempting to remove the sacks, and threw him to the floor across some other boxes, causing the injury to his back for which he seeks compensation.

The case comes to us on an appeal from a judgment by the trial court dismissing plaintiff's suit on two exceptions, viz., an exception to the capacity of plaintiff to sue and stand in judgment because of his minority, and an exception of no cause or right of action. Both exceptions were filed at the same time, and both were maintained by the trial court.

Exception of Want of Capacity.

Both the plaintiff and his father testify that plaintiff was 21 years of age on December 24, 1935. The father testified that plaintiff was born on December 24, 1914. A family Bible was introduced in evidence showing what purports to be a record of the names and date of birth of all the children of plaintiff's father. In this list is the name of Juel J Rester, born December 24, 1914. These records appear to have been made in the same handwriting and with the same kind of ink. The plaintiff's father testified that these entries were made in the family Bible by him from time to time as the children were born. However, the minute clerk of the East Baton Rouge court who appears to have had considerable experience in handling documents written with pen and ink testified that these entries of "Births" in this Bible had the appearance of having been made at the same time and with the same ink. Our examination of the entries leads us to the same conclusion.

Plaintiff registered in 1935 and voted in the primary election in January, 1936. In his application for registration he states that he was born on December 24, 1913. He explains this discrepancy in the year 1913 as given in his application for registration and in the year 1914 which he now claims as the year of his birth by saying that he made a mistake in his registration application.

On May 24, 1933, plaintiff's father filed a petition verified by his affidavit for the purpose of effecting a compromise settlement on a compensation claim of plaintiff, in which petition plaintiff's father averred that his son, Juel Rester, was 17 years of age. If plaintiff was then 17 years of age, he could not have been 21 when the present suit was filed in January, 1936. The father of plaintiff explains this discrepancy by saying that, when he signed the affidavit to the petition in 1933 to the effect that his son was 17 years of age, he thought it had reference to his age at the time of the injury in October, 1932.

Counsel for defendant indicated in argument that he was not especially concerned with the maintenance of this exception by this court, as he is relying principally on the other exception. In view of the fact that the plaintiff's father has testified to the majority of his son, and has thereby estopped himself from questioning the capacity of the plaintiff to sue and stand in judgment herein, and in further view of the fact that we have reached the conclusion that the exception of no cause or right of action is well taken, we have decided to rest our decision on the latter exception, and we will therefore overrule the exception of want of capacity in plaintiff.

Exception of No Cause or Right of Action.

The Workmen's Compensation Law, Act No. 20 of 1914, §1, after providing that it shall apply to persons employed by the state and its subdivisions, also makes it applicable and available 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: Then follows a list of such trades, businesses and occupations." It is then provided that, if there be or arise any hazardous trade, business, or occupation or work not enumerated, it shall come under the provisions of the act. The question of whether or not a trade, business, or occupation not named is hazardous may be determined by agreement between the employer and employee or by submission to the judge having jurisdiction over the employer.

As plaintiff does not allege, nor the facts in his petition show, that his employment comes under any of the trades, businesses, and occupations covered by the act but not listed therein as hazardous, it follows that, if plaintiff is entitled to compensation, it must arise from his employment in one of the named hazardous trades, businesses, or occupations. The grocery business is not named in the act as one of the hazardous trades, businesses, or occupations covered by the act, nor is any form of mercantile business, wholesale or retail, so designated therein.

In order for the...