Staples v. Henderson Jersey Farms, Inc

• Decision Date: 08 March 1938
• Docket Number: 5651
• Citation: 181 So. 48
• Court: Court of Appeal of Louisiana — District of US
• Parties: STAPLES v. HENDERSON JERSEY FARMS, Inc

181 So. 48

STAPLES v. HENDERSON JERSEY FARMS, Inc

No. 5651

Court of Appeal of Louisiana, Second Circuit.

March 8, 1938

McBride & Goff and Barksdale, Warren & Barksdale, all of Ruston, for appellant.

Fred G Benton, of Baton Rouge, for appellee.

OPINION

TALIAFERRO Judge.

Plaintiff, Mrs. Grace W. Staples, the surviving widow of Wm. Shelton Staples, deceased, in her own behalf, and as the mother of Donald Womack and Charley Sitman Staples, minors under the age of eighteen years, brings this suit to recover workmen's compensation of defendant for 300 weeks at the rate of $ 14.25 per week, plus the maximum allowance for physician's, hospital, and medical bills incurred in connection with the injury and death of her said husband. She alleges that the deceased was the manager and an employee of the defendant company, and that he was accidentally injured while operating one of its trucks in the performance of his duties early the morning of April 5, 1936, and died some three hours thereafter. She further alleges:

"4. That the said Henderson Jersey Farms, Inc., was at that time and is now engaged in a general dairying business, and in that purpose in part produced its own milk, and in other instances purchased milk and sold and distributed varying quantities of milk by retail and wholesale, and owned and operated one truck that was used regularly in its business to make milk deliveries and for other purposes, and that it was a regular part of the duties of petitioner's husband to drive the truck every other day on a run to C. C. Camp, and that his duties otherwise often required him to drive said truck for the purpose of making milk deliveries, and generally in performing his duties as the manager of and as an employee of said company.

"5. That the maintenance and operation of this truck was essential to the business of said company, and that petitioner's husband's duties, as shown, required that he not only assist in maintaining said truck but that he regularly operate the same, and that thus his duties were hazardous in the sense of the Employer's Liability laws of the State of Louisiana."

Defendant excepted to the petition on the grounds that it did not disclose a right or cause of action. The exception was overruled. It is reurged here.

In its answer, defendant admits that Staples was its manager when killed, and that it owns a herd of Jersey cattle, several hundred acres of land, and operates a dairy thereon. All other allegations of fact and conclusions of law embodied in the petition are denied. Defendant avers that deceased was its vice president and general manager, and, as such, declined the suggestion of the corporation's other members that compensation insurance be carried by it, for the assigned reason that he did not consider the business hazardous or the expense to do so justified; that for this reason, plaintiff is estopped from claiming compensation for his death. It is further alleged as a defense that deceased was not in the course of his employment when injured, in that he was driving defendant's truck in violation of instructions of its president, the owner of 98 per cent. of the company's stock; that said president learned that deceased was subject to spells of dizziness and would grow faint while driving said truck, and thereupon expressly directed deceased not to operate said truck at all, but to have other drivers do so.

There was judgment for plaintiff for weekly payments of $ 13.85 from April 5, 1936, to August 21, 1937, and for $ 9.85 thereafter until the expiration of 300 weeks from April 5, 1936. The lack of uniformity in the weekly payments is due to the fact that one of the minors attained eighteen years of age on August 21, 1937. Defendant appealed.

Exception of No Cause or Right of Action

Defendant's position on the exception is that the business or occupation of operating a general dairy is not denominated hazardous by the statute and has not that character per se; that its nonhazardous character is not metamorphosed simply by the daily use of a motortruck in the conduct of its business.

The Workmen's Compensation Law, Act No. 20 of 1914, as amended, provides that compensation shall be due,

"Every person performing services arising out of and incidental to his employment in the course of his employer's trade, business or occupation in the following hazardous trades, businesses, and occupations: (3)5C

"The installation, repair, erection, removal or operation of boilers, furnaces, engines and other forms of machinery." Section 1.

In construing these provisions in Haddad v. Commercial Motor Truck Co., 146 La. 897, 84 So. 197, 9 A. L.R. 1380, the Supreme Court held that a motortruck, propelled by a gasoline engine or motor, was an "engine or other forms of machinery" within the intendment of the statute, and overruled the exception of no cause of action which had been sustained by the lower court on the ground that the use of the truck did not stamp defendant's business as being a hazardous one. This decision has, so far as we are apprised, been uniformly followed by all courts of the state. The allegations of the petition in that case, analyzed to some extent in the opinion, are somewhat similar to those of the case at bar. The rule is also well established that in suits to recover workmen's compensation, unless the petition clearly discloses no right of action in plaintiff, that exceptions of no right and no cause of action should be overruled. All doubts are resolved in favor of the sufficiency of the petition. Stockstill v. Sears-Roebuck & Co., La.App., 151 So. 822; Kinnard v. Rice Drilling Co. et al., La.App., 172 So. 592. It is not necessary to the efficacy of the petition that it be specifically alleged that the employer's business is hazardous per se or made so by law. Hinton v. La. Central Lbr. Co., La.App., 139 So. 554. An early expression of the Supreme Court on these questions may be found in Pierre v. Barringer, 149 La. 71, 88 So. 691, wherein it is said: "A critical examination of the petition, which is carelessly drawn, would show that it does not technically embrace a cause of action. But its general purport shows it to be a suit by an employe against his employer for compensation for an accident while the plaintiff was in the employ of the defendant and while he was supposed to be acting in the performance of his duties."

These pronouncements of the courts have as their fundamental basis the following liberalizing section of the Workmen's Compensation Law: "The Judge shall not be bound by technical rules of evidence or by technical rules of procedure other than as herein provided, but all findings of the fact must be based upon competent evidence." Act No. 20 of 1914, §18, as amended by Act No. 85 of 1926, p. 122.

The ruling of the judge a quo on the exception has our approval. If we felt otherwise about the exception's merits at time filed below, we would now, in view of the record as finally confected, be constrained to adjudge it impotent for the reason that the allegations of the petition, by the admission of considerable testimony without objection, have been materially enlarged. This testimony discloses that defendant's plant consists of a boiler, pasteurizing equipment, and refrigerating system, etc. Two or three electric motors supply the energy needful to the plant's operations. The motors have wheels, belts, and pulleys. A tractor, propelled by internal combustion engine, is also owned by defendant and is used in tilling its lands. Surely the operation of this equipment in the promotion of defendant's business brings it clearly within the provisions of the act as regards hazardousness. The act specifically declares that the operation of "boilers furnaces, engines and other forms of machinery" is a hazardous trade, business, or occupation. The fact that this machinery, etc., is a component part of the general dairy business should not and does not alter the legal situation. For the purpose of the statute, defendant is engaged in the business of operating a boiler, engines, etc., to accomplish a definite result, viz., successful conduct of its dairying business. Without the hazardous phase of the general business, there would be no general business. This is as important to its existence as is milk itself. If this same machinery were employed to filter water for sale or launder clothes or convert grain into meal or flour, would not the result be the same, so far as the Compensation Law is concerned? We can perceive no good reason to think otherwise. It is employed to prepare raw milk for market. It is the means to the accomplishment of an end as is true in the hypothetical cases mentioned. Defendant's...