Shird v. Maricle, 916
| Decision Date | 11 September 1963 |
| Docket Number | No. 916,916 |
| Citation | 156 So.2d 476 |
| Parties | Frank SHIRD, Plaintiff-Appellant, v. Earle MARICLE et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
John P. Navarre, Oakdale, for plaintiff-appellant.
Downs & Gremillion, by Field V. Gremillion, Alexandria, for defendant-appellee.
Before TATE, FRUGE , and HOOD, JJ.
The plaintiff Shird was employed by Maricle, a subcontractor of L. C. Franks. The plaintiff was injured while performing duties connected with the repair of Maricle's truck. Shird brought suit for workmen's compensation benefits against Maricle, his own immediate employer, and also against the insurer of Franks.
The trial court sustained a motion for summary judgment filed by Franks' insurer. The suit was dismissed as against this party on the ground, essentially, that the principal Franks was not liable in compensation for injuries received by the subcontractor Maricle's employees in connection with Maricle's truck-repair activities, because such truck-repair work was too remotely connected with Franks' business to be considered a part of it.
The plaintiff appeals, contending that the trial court erred in this holding and also in sustaining a motion for summary judgment on the basis of the present skimpy and incomplete record.
The present appeal concerns, then, the liability of Franks, the principal, to the plaintiff as an employee of this principal's subcontractor under LSA-R.S. 23:1061. This statutory section provides that when a principal contracts out to a contractor any of the work which is part of the principal's trade, business, or occupation, then such principal shall be liable in workmen's compensation to any of the contractor's employees injured in the execution of such work.
As shown by the record, the plaintiff's employer, Maricle, was a subcontractor for Franks in the business of cutting and hauling stumps. Maricle's work-crew removed the stumps from a work-site some 150 miles from Oakdale, Louisiana, and then hauled them by truck to a manufacturing plant in that city.
Shird was employed by Maricle to cut and haul stumps in the performance of this contract with Franks. Shird drove Maricle's truck during each workday and garaged it at his own home in Oakdale.
Each workday Shird drove from his home to pick up Maricle at the latter's premises some fifteen miles distant. He then proceeded to the work area, where the stumps were cut and loaded. Shird then drove the truck back to Oakdale to deliver the stumps to the manufacturing plant, finally returning the truck to his own home, where it was maintained when not in use.
Shird was injured while returning Maricle's truck to his own home after he had worked all day at Maricle's premises on the repair of the truck. On that day, no stumps were cut or hauled by Maricle or the plaintiff for Franks, the principal. Shird's regular duties, however, included the repair and maintenance of Maricle's truck used in the performance of Maricle's stump cutting and hauling contract with Franks.
In our opinion, so far as the abbreviated record indicates, the plaintiff Shird's injuries were received in the course and scope of his employment with Maricle, since Shird was returning home from doing repair work for his employer Maricle at the latter's request and since the duties of Shird's employment with Maricle included driving Maricle's truck to and from the work-site to the plaintiff's own home, where the truck was maintained. Injuries received in the course of so transporting the employer's truck are covered by the workmen's compensation act, since the work of driving the employer's truck back and forth from the employee's home in connection with work for the employer is considered to be an incident of the employment contract, and also because the obligations of the employment reach out beyond the work-premises and compel the employee to submit to the hazard of travel by this particular vehicle, which otherwise the employee has the option of avoiding. See Willis v. Cloud, La.App. 3 Cir., 151 So.2d 379, certiorari denied, 244 La. 623, 153 So.2d 415, for discussion and citation of appropriate authorities.
Relying upon McKay v. Crowell & Spencer Lumber Co., La.App. 1 Cir., 189 So. 508 (1939), the trial court intimated that the plaintiff Shird was on a personal mission (the repair of the truck) and not in the course and scope of his employment at the time of the accident. In the McKay case, an employee who customarily used His own truck in his employer's business, was injured when his unloaded truck...
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