Savant v. Goetz & Lawrence

• Decision Date: 01 March 1926
• Docket Number: 27620
• Citation: 160 La. 916,107 So. 621
• Parties: SAVANT v. GOETZ & LAWRENCE. In re SAVANT
• Court: Louisiana Supreme Court

107 So. 621

160 La. 916

SAVANT v. GOETZ & LAWRENCE.

In re SAVANT

No. 27620

Supreme Court of Louisiana

March 1, 1926

Judgment affirmed.

R. Lee Garland, of Opelousas (John W. Lewis, of Opelousas, of counsel), for applicant.

Spearing Miller & Mabry, of New Orleans, and Dubuisson, Perrault &amp Burleigh, of Opelousas, for respondent.

LAND J. ST. PAUL, J., concurs.

OPINION

LAND, J.

On September 27, 1922, plaintiff was severely injured in St. Landry parish by the breaking of a cable in use on the dredge boat then and there in operation by the firm of Goetz & Lawrence, a copartnership domiciled at Shreveport, La.

Originally, plaintiff instituted suit against defendants for damages under article 2315 of the Civil Code, but, after answer filed, presented an amended petition in the lower court praying for compensation, in the alternative, under the Employers' Liability Act, Act No. 20 of 1914, and amendments thereto, should the court find that the provisions of said act were applicable to the case.

The district court disallowed all of the claims and demands set up in plaintiff's original and amended petitions. This judgment was affirmed on appeal by the Court of Appeal for St. Landry Parish, and is now before us for review.

1. It is stated in plaintiff's brief that "the sole issue before this court now is, whether the plaintiff and appellant, John P. Savant, is entitled to compensation under the Workmen's Compensation Act No. 20 of 1914 and subsequent amendments"; the claim for damages having been abandoned.

Plaintiff claims $ 18 per week for a period of 300 weeks from the 27th day of September, 1922, and for medical and hospital charges, and the additional sum of $ 250 incurred in the prosecution of this suit.

The answer to the supplemental and amended petition, in effect, denies that the plaintiff came within the purview of Act 20 of 1914 and the acts amendatory thereto.

The Court of Appeal denied plaintiff's claim for compensation for the following reasons:

"As for plaintiff's alternative demand, the contract entered into between plaintiff and defendants does not contemplate nor provide for the payment of wages. The compensation agreed on was contingent and dependent on the fulfillment of the conditions mentioned.

"The evidence shows that during the time that plaintiff was manager, and up until the time of his injuries, there was no net profit that he could have claimed.

"We cannot fix wages under the law on the subject of compensation (Act 20 of 1914), when there is no way under the evidence whereby we can compute same by analogy or otherwise. For these reasons we are compelled to refuse his demand on that account."

The contract of employment between Savant, plaintiff, and defendants reads as follows:

"State of Louisiana, Parish of St. Landry.

"Agreement entered into this 12th day of June, 1922, by and between the firm of Goetz & Lawrence, a partnership domiciled in the city of Shreveport, Louisiana, composed of E. W. Goetz and J. H. Lawrence, both residents of Caddo parish, Louisiana, parties of the first part, and Savant & Perkins, a partnership domiciled at the town of Opelousas, Louisiana, composed of J. P. Savant and J. A. Perkins, both residents of St. Landry parish, Louisiana, parties of the second part, have entered into an agreement as follows:

"That, whereas the said parties of the first part do hereby appoint the said parties of the second part as their managers for the purpose of operating their two and one-half (21/2) cubic yard Busyrus steel dipper dredge boat for a period of ninety days from date hereof, now doing work for the Bayou Boeuf & Maxia drainage district near the town of Whiteville in St. Landry parish, Louisiana, under the following conditions:

"That they are to pay all of the expenses and cost of operations to said job, incurred from month to month, under their management, also to pay the past due bills and accounts to the amount of $ , as per list attached hereto and made part hereof, with the exception of the two last accounts marked (small accounts in Shreveport and Alexandria $ 180.00 and extra wood cut $ 50.00) out of the earnings of said job before they receive any compensation for their services as managers, and it is further agreed and understood that, after the accounts and bill as listed in said list hereto attached have been paid, they are authorized to pay out of the earnings of said...