Speed v. Page

• Decision Date: 30 April 1952
• Docket Number: No. 7791,7791
• Citation: 59 So.2d 138
• Parties: SPEED v. PAGE et al.
• Court: Court of Appeal of Louisiana — District of US

Page 138

59 So.2d 138

SPEED v. PAGE et al.

No. 7791.

Court of Appeal of Louisiana, Second Circuit.

April 30, 1952.

Rehearing Denied June 2, 1952.

Warren Hunt, John C. Morris, Jr., Rayville, for plaintiff-appellant.

Dale, Richardson & Dale, Vidalia, for defendant-appellee Page.

Gist, Thornton & Murchison, Alexandria, for defendant-appellant American Surety Co.

HARDY, Judge.

This is a suit in which plaintiff claims compensation for total and permanent disability. Named as defendants were William W. Page, owner and operator of a number of motion picture theaters, his insurer, the Preferred Accident Insurance Company of New York, Mike S. Ohlsen, a building contractor, and his insurer, The American Surety Company. During the pendency of this suit receivership proceedings against the Preferred Accident Insurance Company were instituted in New York. Ancillary proceedings were filed in Louisiana by Honorable Wade O. Martin, Secretary of State, as the result of which there issued a temporary restraining order prohibiting the said company from further engaging in business within the State of Louisiana. The receiver has not been made a party to this suit, and, as a consequence, the named insurance company is no longer considered a party defendant. An exception of no right or cause of action was filed on behalf of the defendant, Page, which exception was overruled. After trial on the merits there was judgment in favor of plaintiff and against the defendant, Page, fixing plaintiff's compensation at $30 per week during the period of disability, not exceeding 400 weeks. There was further judgment in favor of the defendants, Ohlsen and his insurer, rejecting plaintiff's demands. From the judgment the plaintiff, Speed, and defendant, Page, have appealed.

There is not the slightest ground for any question, and, indeed, none has been raised in this Court, with respect to plaintiff's wages and the permanent and total nature of his disability.

One of the two principal issues which are here presented for our determination deals with the question of the identity of plaintiff's employer. Plaintiff's petition alleged that he was employed by both Page and Ohlsen. The Judge of the District Court found as a fact that plaintiff was employed solely by defendant, Page, and, as a consequence, plaintiff's demands against Ohlsen were necessarily rejected.

We proceed to outline briefly the material facts which, in our opinion, bear upon this issue. Defendant, Page, was the owner and operator, among other similar ventures, of the Arcade Theater located in the town of Ferriday, Louisiana, and his general manager of this enterprise, who appears to have transacted most of its business, was one A. E. Stewart, who died sometime prior to the trial of this suit. In the month of July, 1950, the Arcade Theater was seriously damaged by fire, and, although the exact extent of the damage is not reflected by the record, it is obvious that for practical purposes the theater building was destroyed. Shortly after this event the plaintiff, a laborer with some experience and skill as a carpenter, together with other individuals, was employed by Stewart. This small crew of men was charged with demolishing operations, the salvage of material and the general cleaning up of the premises, all in preparation for the beginning of rebuilding operations. A short while thereafter the defendant, Page, entered into a verbal agreement with the defendant, Ohlsen, for the reconstruction of the theater building. The evidence as to the terms and conditions of this agreement is somewhat conflicting and thoroughly unsatisfactory. It appears that most of the negotiations with respect to the admittedly loosely understood contract were conducted between Ohlsen and Stewart. In any event, we can only conclude that Ohlsen was employed primarily for the purpose of general supervision of the job. Page testified it was his understanding under the agreement with Ohlsen, which was on a cost plus basis, that the latter was to receive 10% of all materials and labor up to the total cost thereof of $25,000. Ohlsen testified that he was to receive only 8% on all materials and on all labor which he employed on the job. All materials were charged to Page's account and with respect to payrolls it was customary for Stewart to procure the necessary funds on weekly paydays from the bank under a loan agreement which had been cunsummated between Page and the financial institution. Stewart paid the workers on his own crew and transmitted to Ivy Graves, the construction foreman who was supervising the job for Ohlsen, the funds with which to pay his crew of laborers. Unquestionably there were two separate work crews engaged in two separate undertakings, the only relationship being that both were working toward the accomplishment of a common purpose, that is, the rebuilding of the theater. The demolition, salvage and clean-up work was initiated sometime prior to the time that Ohlsen entered upon the scene, in his capacity as construction contractor, and continued after that time entirely independently from the Ohlsen job. Speed, the plaintiff, appears to have served as a sort of straw boss. He kept time for himself and his fellow-workers, and submitted his time reports to Stewart, who computed and paid the wages. Unfortunately, neither Page nor Ohlsen appears to have had more than a superficial connection with the work in progress, and their respective subordinates, Stewart and Graves, in effect, were charged with the necessary operations. However, it is definitely established that plaintiff, Speed, had no real relationship with Ohlsen or Graves or the actual work of construction except in rare instances, as hereinafter particularly related. Indeed, Ohlsen testified that he had specifically instructed his foreman, Graves, not to use the services of members of the Stewart crew of workmen. Despite this instruction Graves occasionally did call upon the Stewart workers for assistance in connection with heavy operations, and it was one such instance which led to the accident out of which this litigation arose. On September 7, 1950 the Graves crew was preparing to raise a truss and Graves called upon the other workmen on the job, members of Stewart's crew, to assist in this operation. In answer to the call the plaintiff, Speed, left the work in which he was engaged at another part of the premises, started toward the scene of the truss raising operation, and while so proceeding fell from a scaffold to the ground, a distance slightly more than 23 feet, sustaining very serious injuries, which, as we have above noted, caused permanent and total disability.

Our appreciation of the above facts leads us quite certainly to the conclusion that the plaintiff, Speed, was engaged in the sole employ of defendant, Page. There was no employer-employee relationship as between Ohlsen and Speed. Plaintiff was employed, paid, supervised and directed by Page's manager. Any connection with the Ohlsen job was purely casual and voluntary.

Under the facts we do not think the borrowed employee doctrine, which is asserted as against defendant, Ohlsen, is sufficiently serious to necessitate comment. And, certainly, the facts do not warrant the application of the 'employee pro hac vice' principle considered in the case of Spanja v. Thibodeaux Boiler Works, La.App., 2 So.2d 668, which is heavily relied upon by counsel for defendant, Page.

As a result of these conclusions we find ourselves completely in accord with that part of the judgment which released the defendant, Ohlsen, his insurer from liability.

We next proceed to a consideration of what we regard as a more difficult and more serious proposition. The exception of no cause and no right of action on behalf of the defendant, Page, is predicated upon the contention that plaintiff's petition did not disclose that he was injured in the performance of work which constituted a regular part of the business, trade or occupation of the named defendant and that, on the contrary, the petition itself established the fact that plaintiff was injured in the performance of duties which were not a part of such regular trade, business or occupation. This same contention is, of course, urged in the argument on the merits.

The factors which are to be considered as the basis for the proposition advanced are that defendant, Page, is engaged in the regular business of operating motion picture theaters; that he owned and operated the theater undergoing major repairs and reconstruction at the time of plaintiff's injury; that defendant, Page, was not engaged in the contracting business or in the repair and reconstruction of buildings. Under these facts and circumstances, conceding that the operation of motion picture theaters has been held to be a hazardous occupation, it is urged that the immediate enterprise of reconstruction of the theater building itself was not a part of such occupation or business and therefore the conclusion should necessarily follow that plaintiff was not injured while engaged in the course of his employer's trade, business or occupation.

Able counsel for defendant maintains that this conclusion is supported by the pronouncements in the following cases: Wilkie v. Langlois, La.App., 164 So. 434; Caldwell v. George Sproull Co., 184 La. 951, 168 So. 112; Brooks v. Smith, La.App., 41 So.2d 800. Counsel, for obvious reasons, does not attempt to reconcile the findings in the case of Gonsoulin v. Southern Amusement Co., La.App., 32 So.2d 34, being content with the respectful observation that the court erred in this case insofar as the legal aspects of the application of the Workmen's Compensation Act were concerned.

The resolution of this issue must depend upon an interpretation of the provision of the Workmen's Compensation Statute, Section 1, Subdivision 2, Louisiana Revised Statutes of 1950, LSA-R.S. 23:1035, with respect to the application of the Act, which reads,...