Ross v. Cochran & Franklin Co., Inc

• Decision Date: 08 May 1929
• Docket Number: 3541
• Parties: ROSS ET AL. v. COCHRAN & FRANKLIN CO., INC
• Court: Court of Appeal of Louisiana — District of US

122 So. 141

10 La.App. 719

ROSS ET AL. v. COCHRAN & FRANKLIN CO., INC

No. 3541

Court of Appeals of Louisiana, Second Circuit

May 8, 1929

Appeal from the Fifth Judicial District Court in and for the Parish of Richland. Hon. John R. McIntosh, Judge.

Action by Richard Ross et ux against Cochran and Franklin Company Inc.

There was judgment for plaintiffs and defendant appealed.

Judgment affirmed.

Judgment affirmed.

Munholland and Munholland, of Monroe, attorneys for plaintiffs appellees.

Smith and McGregor, of Rayville, attorneys, for defendant appellant.

OPINION

ODOM, J.

Alfred Ross, colored, a minor 16 years, 8 months and 19 days old, was employed by the defendant company to do work in and about a stave mill, the employment being admittedly hazardous. On the tenth day after he was employed and while engaged in work at the mill, he received an accidental injury resulting in the loss of three-fifths of his left foot. The father and mother of the minor brought this suit for damages, for the use and benefit of the son, under Article 2315 of the Civil Code, alleging that the injury was due wholly to the fault and negligence of defendant; but in the alternative asked that in case the Court should find and hold that the employment came under and was governed by the Workmen's Compensation Acts, then that the minor be awarded such compensation as those acts warrant.

Answering the suit for damages, the defendant company plead contributory negligence on the part of the employee in bar of recovery, setting up that the accident and resulting injury were due solely to the fault and negligence of the employee; and as to plaintiffs' alternative demand for compensation under the Workmen's Compensation Acts, defendant plead estoppel, setting up that inasmuch as plaintiffs had brought this suit for damages under Article 2315 of the Code, they have no other remedy.

The District Judge rejected plaintiffs' demand for damages, but awarded compensation at 65 per cent of the employee's wages for 100 weeks, giving credit for the amounts paid. Defendant appealed. Plaintiffs answered the appeal asking that the judgment be so amended as to allow damages, as prayed for, and, in the alternative, should the Court hold that plaintiffs are entitled to recover under the compensation acts, then that the judgment be affirmed.

OPINION

The District Judge gave consideration to plaintiffs' demand for damages and for reasons assigned in a written opinion, for which we are indebted to him, held that plaintiffs could not recover under Article 2315 of the Civil Code, and we fully concur in his views. Considering the action for damages on its merits, the testimony shows that the accident and resulting injury were due to no fault of the defendant company, but solely to the fault and negligence of plaintiffs' son, the employee.

There is another reason why plaintiffs can not recover damages and that is that the contract of employment falls under and is governed by the compensation acts. Such being the case, plaintiffs have no remedy except that which is prescribed by those acts. See Section 34, Act 20 of 1914, as amended by Act 38 of 1918.

Phillips vs. Guy Drilling Co., 143 La. 951, 79 So. 549.

Whittington vs. Louisiana Saw Mill Co., 142 La. 322, 76 So. 754.

Defendant's plea of estoppel cannot be sustained. Plaintiffs brought this suit for damages under Article 2315 of the Civil Code, and, in the alternative, asked that in case the Court should hold that the contract of employment was governed by the Workmen's Compensation Acts, that they should be awarded compensation as provided therein. The identical question here raised was considered and settled in the case of Phillips vs Guy Drilling Co., supra.

There is some suggestion that the contract of hiring in this case did not fall under the compensation acts, but we think it does.

While the boy stated to Jones, who employed him, and to a physician, who treated him after the injury, that he was 19 years old, the testimony of the father, mother and of others shows that he was only 16 years, 8 months and 19 days old when injured. But the compensation law applies to minor employees, unless they be under the minimum age provided by law for the employment of minors in hazardous occupations, which age is 14 years, as fixed in Section 1, Act 301 of 1908. See Paragraph 4, Section 3, Act 20 of 1914, as finally amended by Act 85 of 1926, Paragraph 6, Section 3.

The boy was employed without the knowledge or consent of his parents both of whom were living. He was injured on the tenth day after having been employed, but there was no election by agreement between him and his employer previous to the injury that the contract should be subject to the provisions of the Workmen's Compensation Acts, and it is now suggested that inasmuch as there was no such election by agreement between the parties...