Smith v. Marine Oil Co., Ltd

• Decision Date: 15 April 1929
• Docket Number: 10,880
• Citation: 10 La.App. 674,121 So. 782
• Court: Court of Appeal of Louisiana — District of US
• Parties: SMITH v. MARINE OIL CO., LTD

121 So. 782

10 La.App. 674

SMITH v. MARINE OIL CO., LTD

No. 10,880

Court of Appeals of Louisiana, Orleans

April 15, 1929

Rehearing Refused April 29, 1929.

Appeal from the Civil District Court, Parish of Orleans. Hon. Hugh C. Cage, Judge.

Action by Murphy Smith against Marine Oil Company, Ltd.

There was judgment for defendant and plaintiff appealed.

Judgment reversed and case remanded.

Weiss Yarrut and Stitch and W. M. Barnett, of New Orleans attorneys for plaintiff, appellant.

Spearing and Mabry, of New Orleans, attorneys for defendant, appellee.

OPINION

JANVIER J.

This is a suit in compensation.

Plaintiff alleges that he received injuries arising out of, and incidental to, his employment "as a laborer in defendant's service station."

He also alleges that "the work for which he was employed, and in which he was engaged at the time of such injuries was dangerous and hazardous."

Defendant excepted to the petition, contending that it shows no cause of action, because it contains no allegation of fact showing the nature of the work, and that the allegation that the work was dangerous and hazardous is merely a conclusion of the pleader.

The trial court maintained the exception and dismissed the suit and from this judgment plaintiff prosecutes this appeal.

The sole question for determination is whether or not the allegation that petitioner was employed as a laborer in a service station sets forth facts sufficient to warrant our holding that he was engaged in a hazardous occupation, such as is under the protection of the Compensation Laws of this State.

There can be no doubt that the only occupations protected by the Compensation Laws of this State are those which are specifically designated in the Act, or which, by agreement made in advance, or by judgment of court obtained in advance, are determined to be hazardous.

See Dejan vs. Ujffy, 14 Orleans App. 230 and Anderson vs. Tharp, C. of App. Par. of Orleans.

Therefore, since the occupation in which plaintiff was engaged was not the subject of special agreement, or judgment, prior to the accident, he can recover only if the occupation is one of those denominated as hazardous under the Statute.

On this point we find that this Court in Conaway & Clark vs. Marine Oil Co., Ltd., 5 La.App. 134, a case involving the same defendant and the same kind of employment, held that because of the fact that the employees of service stations are required to work in the proximity of gasoline, and because gasoline is a dangerous explosive, such employment is within the terms of Sec. 1, paragraph 2(a) of the Statute, Act 20 of 1914, the pertinent part of which reads as follows:

"Any occupation entailing the manufacture, transportation, care of, use of, or regular proximity to dangerous quantities of gunpowder, dynamite, nitro-glycerine and other like dangerous...