Roy v. Mutual Rice Co. of Louisiana, Inc

• Citation: 149 So. 508,177 La. 883
• Decision Date: 29 May 1933
• Docket Number: 32194
• Court: Louisiana Supreme Court
• Parties: ROY v. MUTUAL RICE CO. OF LOUISIANA, Inc

149 So. 508

177 La. 883

ROY v. MUTUAL RICE CO. OF LOUISIANA, Inc

No. 32194

Supreme Court of Louisiana

May 29, 1933

Rehearing Denied July 7, 1933

Judgment rendered.

St Clair Adams and St. Clair Adams, Jr., both of New Orleans for applicant.

Gremillion & Smith, of Marksville, for respondent.

LAND Justice. O'NIELL, C. J.

OPINION

LAND, Justice.

Plaintiff, a married man of the age of 16 years, 7 months, and 20 days, was employed by defendant company, and was injured while performing the duties for which he was employed.

He instituted suit under article 2315 of the Civil Code, the general tort law of the state, for the sum of $ 10,150, and, in the alternative, claimed compensation under the Employers' Liability Act, Act No. 20 of 1914, and amendments thereto, in the sum of 65 per cent. of his weekly wages of $ 12 per week, during one hundred weeks, or the sum of $ 780, for the reason that the permanent and impaired condition of the upper half of his leg was not included in the settlement made with him by defendant company for the loss of a foot.

Judgment was rendered in the lower court in favor of plaintiff for damages ex delicto in the sum of $ 7,500. From this judgment defendant company appealed to the Court of Appeal, First Circuit, and in that court filed an exception of no right or cause of action, either under article 2315 of the Civil Code, or under Act No. 20 of 1914, and amendments thereto.

This exception was sustained by the Court of Appeal, First Circuit, as to the cause of action alleged by plaintiff under the Employers' Liability Act, and the judgment of the lower court was affirmed. 143 So. 668. This judgment is now before us for review under the writ of certiorari granted in this case.

We wish, at the outset, to make it very plain that, in considering the exception of no right or cause of action in this case, the allegations of well-pleaded facts as set forth in plaintiff's petition must be taken as true, for the purpose of disposing of this exception, and not the facts found by the Court of Appeal, First Circuit, in passing upon the merits of the case.

The petition of plaintiff, in so far as it relates to a right or cause of action under the Employers' Liability Act is as follows:

"The petition of Demosthenes Roy (alias Dem. Roy) a minor over the age of 17 years, married on June 29, 1929, to Lucille Touchet, resident of Acadia, State of Louisiana, with respect represents:

"That the Mutual Rice Company of La., Inc., a corporation organized under the State of Louisiana, domiciled at Crowley, in the Parish of Acadia, La., engaged in the rice milling business, is justly and legally indebted unto your petitioner in the sum of $ 10,150.00, with legal interest from judicial demand, until paid, for the reasons hereinafter alleged.

"Petitioner alleges that on the 8th day of August, 1929, he then being a minor, 16 years, 7 months and 20 days of age, was employed by Mutual Rice Co. of La., Inc., to run and operate, see after and care for the Paddy Machine and the Glucose Machine, and other machinery, parts or attachments located on the first floor of said rice milling company, for the salary of $ 2.00 per day.

"Petitioner alleges that about 2 a.m. on the 4th day of October, 1929, while performing the duties for which he had been employed, he ascended a ladder leading to a narrow platform about 8 feet above the floor of said rice mill, in order to disentangle or straighten out the belt that operated said Glucose Machine; that when said Glucose Machine was not in operation, the belt was permitted to idle or hang on the revolving shaft that operated said Glucose Machine, and as said belt had begun to wrap and twist around said revolving shaft, petitioner while standing on said narrow, elevated platform, was endeavoring to unwrap and straighten out said belt, when the loop in the end of said belt caught his right foot and leg and wound said right foot and leg around said revolving shaft three times, and that petitioner only saved his life by grabbing a fire extinguisher pipe that was close at hand and thus prevented his body from being twisted around said shaft; that the right leg of petitioner was badly mangled and crushed on account of being wound around said shaft three times; that the bones in his leg from his knee to his ankle were broken in several places, and were badly mangled and crushed, and that the lower part of his leg was amputated about four hours after said injury happened; and that the large bone in his upper leg, from 4 inches above the knee to his hip-joint, was badly mangled and crushed. * * *

"Petitioner alleges that, being a minor under the age of 18 years, he being 16 years, 9 months and 16 days of age on October 4th, 1929, the date he was injured, and not having elected to come under the provisions of the Employer's Liability Act, No. 20 of 1914, and the amendments thereto, as provided by said act, the provisions of said Employer's Liability Act are not binding and of any force and effect against him for the above stated injuries, and that his cause of action herein falls under article 2315 of the Revised Civil Code of the State of Louisiana, and the general damage laws of this State; that on October 4th, 1929, the date of said injuries to petitioner, his father and mother were both dead and no tutor had been appointed unto him, and that the Court did not make said election for him. * * *

"Petitioner alleges, in the alternative, that in the event the Court should hold that petitioner's injuries are controlled and regulated by the provisions of the Employer's Liability Act, No. 20 of 1914, and the amendments thereto, that petitioner be awarded compensation for seriously, permanently impaired condition of the upper half of his said right leg, as alleged and set forth in Article 3 of this petition, in the sum of 65% of his weekly wages of $ 12.00 per week, during 100 weeks, or the sum of $ 780.00, for the reason that this seriously permanent and impaired condition of the upper half of petitioner's right leg was not included in the settlement made for the loss of the right foot of petitioner."

It appears therefore that, at the time of plaintiff's injury, he was engaged in running, operating, and looking after machinery on the first floor of the rice milling company, an employment which is, concededly, "a man's job."

Section 1 of Act No. 20 of 1914 provides. "That this act shall apply only to the following: * * * 2. 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: (a) * * * mills, including rice mills * * *."

Under subdivision 3 of section 3 of Act No. 20 of 1914, "Every contract of hiring * * * between any employer or employee engaged in the trades, businesses or occupations specified in paragraph 2 of Section 1, * * * shall be presumed to have been made subject to the provisions of this act, unless there be as a part of said contract an express statement in writing not less than thirty days prior to the accident, either in the contract itself or by written notice by either party to the other, that the provisions of this act other than Sections 4 and 5 are not intended to apply, and it shall be presumed that the parties have elected to be subject to the provisions of this act and to be bound thereby." (Italics ours.)

It is provided in subdivision 4 of section 3 of the act that: "Any workman of the age of eighteen and upwards engaged in the trades, businesses or occupations specified in paragraph 2 of Section 1, * * * shall himself exercise the election hereby authorized; the right of election hereby authorized shall be exercised on behalf of any workman under the age of eighteen by his parent or guardian." (Italics ours.)

The above provisions of subdivision 4 of section 3 of the act clearly apply to minors, not emancipated by marriage under the age of 18 years, and who are still under the control of a parent or a guardian, since a minor under the age of 18 years, emancipated by marriage, is considered as having arrived at the age of majority for all acts which have any relation to his trade.

Article 379 of the Civil Code provides that: "The minor, whether male or female, is emancipated of right by marriage."

Article 381 of the Civil Code declares that: "The minor, emancipated by marriage, may demand an account from his tutor and a settlement of the tutorship. The tutor is bound topay him the balance ascertained to be due, and to deliver the property in his hands belonging to such minor."

Article 382 also declares that: "The minor, emancipated by marriage, does not need the assistance of a curator in any act or proceeding."

Consequently, the plaintiff in this case, a minor emancipated by marriage, did not need the assistance of a tutor to elect to be subject to the provisions of the Employers' Liability Act; nor is it pretended in this case that the plaintiff, at any time, gave the notice required by subdivision 3 of section 3 that the provisions of the act should not apply to himself.

It is expressly provided in article 376 of the Civil Code that: "The emancipated minor who is engaged in trade, is considered as having arrived at the age of majority, for all the acts which have any relation to such trade."

The Civil Code itself has declared in article 14 that: "The words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words." Applying this familiar canon of construction to the word "trade" as used in article 376 of the Civil Code, we find that it is "generally...