Shipp v. Bordelon
| Decision Date | 30 October 1922 |
| Docket Number | 24458 |
| Citation | 94 So. 399,152 La. 795 |
| Court | Louisiana Supreme Court |
| Parties | SHIPP v. BORDELON |
On Application for Rehearing, November 27, 1922
Appeal from Thirteenth Judicial District Court, Parish of Rapides Jas. Andrews, Judge.
Action by Walter Shipp against A. L. Bordelon for compensation for injuries under the Employers' Liability Act. From a judgment for defendant, plaintiff appeals.
Affirmed.
Gus A Voltz and J. B. Nachman, both of Alexandria (John H. Mathews of Alexandria, of counsel), for appellant.
Peterman, Dear & Peterman, of Alexandria, for appellee.
Plaintiff sued for compensation under the Employers' Liability Act (Act No. 20 of 1914) for injuries received while working as a carpenter upon a building belonging to defendant.
Defendant filed an exception of no cause of action and answer at the same time. An amended petition was also filed, in which plaintiff supplemented the original by alleging that the injuries "arose in the course of his employer's trade, business, or occupation." The exception was then overruled, an amended answer and motion to strike out the amended petition were filed, the motion to strike out was denied, and the amended answer otherwise allowed. The defenses were a general denial, including the averment that the plaintiff was employed by an independent contractor, and that the services performed were not in the course of defendant's trade, business, or occupation.
The case was tried on its merits, and there was judgment for defendant, from which plaintiff appealed.
Opinion.Since the amended petition was filed and allowed before the exception of no cause of action was passed upon, and admittedly it cured the defect in the petition, there was no error in overruling the exception.
On the Merits.
The record discloses that the defendant, who is a physician by profession, employed one M. E. Caricut to do some repair work upon a house on the former's plantation at a weekly or daily wage; and, in order to expedite the work, Caricut was allowed to employ the plaintiff to assist, also on a daily or weekly basis, and the latter's wages were likewise to be paid by defendant, and in these circumstances we think there was no independent contractor, but that plaintiff was in the employ of defendant.
The Employers' Liability Law of this state does not purport to make all employers of labor liable for compensation, but plainly and distinctly limits its operation to certain specified trades, businesses, and occupations, which in their very nature are hazardous, as well as others not mentioned, which may, under certain conditions, be found to be hazardous, and to cases where the parties by mutual consent agree to come under its provisions. The title of the law reads:
Then follow certain provisions making the law applicable to the state and its subdivisions, [94 So. 400] and paragraph 2 of the section is as follows:
Hence we see that it is not enough that the employe shall be performing work of the character falling within the designated trades, businesses, or occupations, but it must be done "in the course of the employer's trade," etc., in certain trades, businesses, etc. In other words, the work must be of that character, and the employer must be engaged in that line of work as a trade, business, or occupation, in order that the act may apply. It is not pretended that the defendant was engaged, as a trade, business, or occupation, in the building, repairing, etc., of houses or other structures, but merely found it necessary to repair a certain building on his farm. If it be said that he was engaged in farming as an occupation, and the work was being performed in connection therewith, or was an incident thereto, then reference to the statute discloses that agriculture or farming is not one of the occupations specifically named as hazardous or that is in its nature hazardous.
Counsel for plaintiff relies upon certain decisions by the Industrial Accident Board of California, to wit: Cowles v. Alexander & Kellog, 2 Cal. I.A.C. 615; Petersen v. Pellasco Id. 199; Crosby v. Strong, Id. 408; and Jenkins v. Pieratt, 1 I. A. C. 114. However, an examination of the California law (St. 1911, p. 796), which is modeled after the Wisconsin statute (Laws 1911, c. 50), discloses a wide difference from that of...
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