Stovall v. Thomas Lumber Co.
| Citation | 189 So. 379 |
| Decision Date | 08 March 1939 |
| Docket Number | 5765 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | STOVALL v. THOMAS LUMBER CO. et al. |
Rehearing Denied April 28, 1939
Appeal from Eighth Judicial District Court, Parish of Winn; F.E Jones, Judge.
Suit for compensation by Logan J. Stovall, alleged employee against the Thomas Lumber Company and others, alleged employers. From judgment for defendants, plaintiff appeals. Defendants move to dismiss the appeal.
Motion denied and judgment affirmed.
Julius T. Long, of Shreveport, for appellant.
Harry Fuller, of Winnfield, for appellees.
Plaintiff suffered an accident on February 25, 1937, wherein his right leg was broken. On the theory that he was at the time an employee of the Thomas Lumber Company, a copartnership, and was injured while performing the duties for which he was employed, he instituted this suit against said copartnership and its individual members, K.A. and L.R. Thomas, to recover compensation as in case of permanent total disability.
Defendants' answer is in effect a general denial with amplifying allegations that when injured, plaintiff was either working for himself or for someone having no connection with defendants or either of them.
Plaintiff's demands were rejected and his suit dismissed. This appeal is prosecuted by him.
Appellees move to dismiss the appeal on the alleged ground that it was not asked for by plaintiff in open court nor prayed for by petition. The record facts pertinent to the issue raised by the motion are these:
Judgment was rendered and signed on January 6, 1938. The minute entry of that date states that at the request of counsel for plaintiff, appeals devolutive and suspensive were granted to this court. Bond for the former was fixed at $300 and for the latter at $500. This order was not availed of. The minutes further show that on May 7th defendants' counsel appeared in open court at the request of the judge thereof, and that then and there " at the request of attorney for plaintiff, a devolutive appeal is ordered granted to the plaintiff" to this court, upon the giving of bond in the sum of $75. Under this order the present appeal was perfected. Defendants' counsel, the minutes show, " while taking cognizance of the order, *** objects thereto and reserves all rights defendants have or may have to move for the dismissal of the appeal" .
It is said in the motion that plaintiff's counsel was not in court when the last order of appeal was entered and therefore did not " request" that the court make the order. Evidently a request of some character from counsel to the court was made or else said second order of appeal would not have been entered. Regardless of whatever merit, if any, the motion to dismiss might have had if timely filed, clearly it comes too late. Its merits cannot be considered by us.
As a rule, motions to dismiss appeals must be filed in the appellate court within three days after the return day. Code of Practice, Article 886. There are, of course, exceptions to this general rule. The facts of the present motion do not make of it an exception to the rule. The return day under the last order of appeal was May 25th. The record was filed here on May 23rd. The motion to dismiss the appeal was not filed until the following December 1st. See Tyler v. Phillips et al., 18 La.App. 654, 139 So. 35; Id., La.App., 150 So. 681; Richard v. Horecky, 13 La.App. 507, 128 So. 177.
In Scheen v. Hain et al., 141 La. 606, 75 So. 427, it was held: " A motion to dismiss an appeal on the ground that there was no motion or petition is too late, when it is filed more than three days after the transcript was filed." See also D'Angelo v. Nicolosi et al., 188 La. 326, 177 So. 64; and authorities therein cited.
The motion is denied.
In the lower court, the case was almost entirely fought out on the issue of employment. That issue alone has been argued and submitted here.
The testimonial proof consists of over 400 pages. In addition to this, considerable documentary evidence was introduced by both sides. The record teems with hearsay testimony, some of which was introduced without objection, while other portions were admitted by the trial judge, subject to objection, out of an abundance of caution so that it would be before us on appeal. We are favored by the lower court with lengthy written reasons for judgment.
The defendant company is engaged in the manufacture of lumber. It owns and operates a small sawmill near the town of Winnfield, Louisiana, which it had been running for some two years when plaintiff was injured. In connection with the sawmill, it operates dry kilns and a planer mill. K.A. and L.R. Thomas are the sole members of the partnership. This company also owned two portable sawmills, one of which was located near Wyatt, in Jackson Parish, and the other near Atlanta, in Winn Parish. The mill at or near Wyatt was idle for the lack of logs. According to the record, it was leased to the Tucker-Walker Lumber Company, a co-partnership composed of M.A. Walker, of Pineville, Louisiana, and R.T. Tucker, of Winnfield, on February 1st for an annual rental of $250. The lease contract is in writing. Tucker was at the time the saw and planning mill superintendent of defendant, the Thomas Lumber Company, and had been so employed for over two years. Under said partnership name, he and Walker had previously operated a sawmill in another parish. They moved the leased mill from Wyatt at their expense and relocated it at Sikes, in Winn Parish, twenty miles north of Winnfield. Logs were needed. These began to come in and on March 5th it had its first pay day.
Plaintiff lives about fifteen miles north of Winnfield. He has had some experience in operating small sawmills and in buying timber and handling saw logs. In the latter part of January, 1937, he purchased the commercial timber on a 40-acre tract owned by a sister in Winn Parish, and began to cut the trees into saw logs and to haul them to a sawmill company, a few miles from his home. After delivering a small quantity to this mill, he was approached by defendant K.A. Thomas, with the view of acquiring his rights to this timber and they very soon reached an agreement. This was about February 1st. Thomas promised to pay him $2 per thousand feet more than he was due his sister. Thereafter, the Thomas Lumber Company cut and removed the remainder of the timber and paid to plaintiff the agreed stumpage price on regular pay days, the 5th and 20th of each month.
Plaintiff testified that a day or two after he and Thomas closed said trade, he contacted Thomas while he was doing some work on a road over which the logs were to be hauled; that Thomas was complaining about the weather and the road, and thereupon, he, plaintiff, asked him why he did not " get somebody to get out and get you some timber that you can get" ; that Thomas asked him if he could get any such timber, to which he replied " yes" ; that Thomas said nothing further on the subject at that time, but on the following day he came to where plaintiff was and brought Tucker with him. After being introduced, Tucker inquired if he could get a cruise of the timber mentioned to Thomas the previous day. Plaintiff declined to reveal the location or owner of the timber. He says that Tucker and Turner offered to pay him a commission if they could purchase the timber, but that he declined the proposition. They parted and he saw neither again until the next pay day, the 5th.
Plaintiff further testified that on February 5th, while waiting for a settlement for part of the timber sold defendant, L.R. Thomas asked him when he was going to " show them that timber", to which he replied " when you make a deal with me" . He says that Thomas asked him to return the next day to close the discussed deal, and that he did so, but Thomas referred him to Tucker with the advice that Tucker was their log man and that he would back up any agreement made with him; that he immediately contacted Tucker and he agreed to put " me on the regular monthly payroll" . He admits that there was then no definite understanding as to his salary. He was to begin work the following Monday. On the following Friday, he testified, Tucker fixed his salary at $150 per month, plus gasoline and motor oil for his car, and that he immediately went about locating and cruising timber in the northern part of Winn Parish.
After contacting several owners of small tracts of timber, plaintiff learned that a Mr. Guess, residing at Jonesboro, in Jackson Parish, was about to dispose of 80 acres of desirable timber and he phoned this information to Mr. Tucker. Tucker could not join him on a trip to see Guess that day, but said he would do so the following day (Tuesday). Tucker, accompanied by Mr. Walker, contacted plaintiff the next day and he got in their car and the party drove about the country looking at various small tracts of timber. That was the first time Walker entered the picture, so far as plaintiff is concerned. They drove to Jonesboro that afternoon to see Mr. Guess. After considerable negotiations with him, their efforts came to naught. The preponderance of the testimony sustains defendants' contention that if this timber had been purchased within a certain price that plaintiff would have to be paid, as was agreed, a commission of $100.
After a second trip to see Mr. Guess, plaintiff testified that Tucker drove him out to a little mill where 10-foot logs were being sawed. From that time until he was injured plaintiff alone or with Tucker or Walker, actively scouted the country for timber with the primary purpose of supplying the mill afterward located at Sikes. He says that Tucker told him that he wanted him to see to it that there were 200,000 feet of 10-foot logs at...
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