Sears v. Peytral

• Decision Date: 22 June 1922
• Docket Number: 24373
• Citation: Sears v. Peytral, 151 La. 971, 92 So. 561 (La. 1922)
• Court: Louisiana Supreme Court
• Parties: SEARS v. PEYTRAL

92 So. 561

151 La. 971

SEARS v. PEYTRAL

No. 24373

Supreme Court of Louisiana

June 22, 1922

Appeal from Civil District Court, Parish of Orleans; E. K. Skinner Judge.

Action by Edward Sears against Jules F. Peytral for compensation for injuries under the Employers' Liability Act. From a judgment for defendant, plaintiff appeals. Judgment annulled and set aside, and judgment rendered for plaintiff.

Paul W Maloney, of New Orleans, for appellant.

Legier & Gleason and D. V. Doussan, all of New Orleans, for appellee.

OVERTON J. ST. PAUL, J., dissents.

OPINION

OVERTON, J.

Plaintiff was employed by defendant to work for him in connection with a marble yard he was operating in this city. In February, 1920, he was ordered to go with several others in a truck to get a piece of granite. In going on this mission for his master, he sat on the floor of the truck, and permitted his legs to hang over the side. While sitting in that position, the truck reached a hole in the street, and the driver, in seeking to avoid it, passed near a water plug, which struck one of plaintiff's legs and broke it.

During the course of plaintiff's treatment, defendant sent him from time to time sums of money aggregating $ 112.50. Thereafter he sent him nothing more. Plaintiff then instituted this suit under the Employers' Liability Act, praying for judgment against defendant for $ 16 a week for 300 weeks, subject to credit of the $ 112.50 above mentioned.

The record leaves no doubt that plaintiff was injured in the manner stated. The weight of the evidence shows that the smaller bone in the right leg, about midway between the knee and the ankle, was broken. Defendant, however, urges that the accident did not arise out of the employment, because it resulted from a disobedience of orders, but, if it should be held otherwise, then that he still is not liable, because plaintiff deliberately failed to use an adequate protection or guard against accident provided for that purpose.

It seems that there was a small sign on the truck cautioning employees to keep their hands and feet inside of it while riding. There is evidence in the record to the effect that plaintiff on several occasions had violated these instructions, and had been warned against doing so. Defendant and his son testify that, when they started on the trip, plaintiff sat on the side of the truck with his feet hanging from the side, and was told by plaintiff not to ride in that manner. They testify that he obeyed for the time being the order not to ride in such a way, but later that he resumed his former position, and as a result was injured. They testify that there were one or two boxes on the truck, which could be used as seats.

Granting that this evidence is correct in every respect, still, upon a further consideration of this case, we have reached the conclusion that plaintiff is entitled to relief. The Employers' Liability Act grants compensation to those employed in hazardous occupations for personal injury caused by accident arising out of and in the course of the employment, except when the accident is brought about by one of the causes mentioned in section 28 of the act. Section 1 of Act 20 of 1914; section 2 of Act 38 of 1918. Those exceptions are:

When the injury is caused: "(1) By the injured employee's wilful intention to injure himself or to injure another, or (2) by the injured employee's intoxication at the time of the injury, or (3) by the injured employee's deliberate failure to use an adequate guard or protection against accident provided for him or (4) by the employee's deliberate breach of statutory regulations affecting safety of life or limb."

Section 28 of Act 20 of 1914.

That the accident arose out of and in the course of the employment appears from the fact that at the very moment it occurred plaintiff was proceeding on a mission for his master under his employment. The mere fact that he was proceeding negligently in the vehicle provided for that purpose, or in a manner therein that was contrary to instructions, did not place him outside of the scope of his employment. He was still on the mission of his master. In the annotation on workman's compensation laws to be found in L. R. A. 1916A, on page 52 et seq., it is said, in treating this subject, that:

"The essential point to be determined is whether the servant was actually doing the work he was employed to do, or whether he was doing something substantially different. In the former case numerous decisions support the view that mere disobedience to orders does not take him outside the statute. * * *

"Where, however, the prohibited act is one lying wholly outside of the sphere of his employment, no recovery is allowable. * * *"

Defendant also contends that he was under no obligations to transport plaintiff, and therefore takes the position that plaintiff was riding in the truck only for his own convenience, and hence argues that the...