Youngblood v. Colfax Motor Co., Inc.

• Decision Date: 31 January 1930
• Docket Number: 3682
• Court: Court of Appeal of Louisiana — District of US
• Parties: YOUNGBLOOD v. COLFAX MOTOR CO., INC

125 So. 883

12 La. App. 415

YOUNGBLOOD v. COLFAX MOTOR CO., INC

No. 3682

Court of Appeals of Louisiana, Second Circuit

January 31, 1930

Appeal from Eighth Judicial District Court, Parish of Grant. Hon. F E. Jones, Judge.

Action by Mrs. Pearl Youngblood against Colfax Motor Company, Inc.

There was judgment for defendant, and plaintiff appealed.

Judgment affirmed.

Ped C Kay, of DeRidder, and Cline, Plauche & Girod, of Lake Charles, attorneys for plaintiff, appellant.

John A & R. B. Williams, of Colfax, attorneys for defendant appellee.

OPINION

DREW, J.

Plaintiff, Mrs. Pearl Youngblood, individually and on behalf of her minor children, Charles H., Winston S., Harold C., and Clyde L. Youngblood, instituted this suit against the Colfax Motor Company, Inc., for compensation for the death of their husband and father, Herbert S. Youngblood, alleging that the deceased, on or about the 2nd day of January, 1929, while engaged in taking an inventory for defendant, and while in the act of handling automobile parts, a piece of steel, glass, or other object stuck into one of his fingers, as a result of which the said finger became infected, causing nephritis, from which disease he died on February 8, 1929. They allege the business and occupation of the defendant on the dates above mentioned was "hazardous" under the express provisions of the Employers' Liability Act of Louisiana; that prior to and on or about January 2, 1929, the deceased was in the employ of said defendant in connection with its said business and occupation as hereinabove set out, his duties consisting of the general management and supervision of said business, and in connection with which duties he was required to, and did in fact, drive, operate, and sell automobiles and other vehicles, sell automobile parts, gasoline, motor oil, and other automobile accessories and assist in the taking of inventories. They allege his weekly earning to have been $ 34.56 per week, and pray for judgment in the sum of $ 6,000, payable at the rate of $ 20 per week from January 5, 1929, until paid, and for $ 250 burial expenses and doctor's bills.

The defendant filed an exception of no cause of action, which was overruled, and it then answered, setting up a general denial to all essential allegations of plaintiff's petition.

Defendant urges the exception of no cause of action, for the reason that it is not set out that defendant was, at the time of the accident, engaged in a "hazardous" occupation within the terms of the Employers' Liability Act of Louisiana. For the purpose of said exception, the allegations of plaintiff's petition must be taken as true, and in paragraph 7 of the petition it is alleged:

"That prior to and on or about January 2nd, 1929, the said Herbert S. Youngblood, husband of your petitioner, was in the employ of said Colfax Motor Company, Inc., in connection with its said business and occupation, as hereinabove set out, his duties consisting of the general management and supervision of said business, and in connection with which duties he was required to and did, in fact, drive, operate and sell automobiles and other motor vehicles; sell automobile parts, gasoline, motor oil, and other automobile accessories, and assist in the taking of inventories."

A service station handling gasoline is "hazardous," within the terms of the Employers' Liability Act of Louisiana. Smith vs. Marine Oil Co., 10 La. App. 674, 121 So. 782.

One driving, selling, and delivering motor vehicles is engaged in the operation of "engines" and "other forms of machinery," within the terms of the Employers' Liability Act. Haddad vs. Commercial Motor Truck Co., 146 La. 897, 84 So. 197, 9 A. L. R. 1380.

One whose duties are partly hazardous and partly nonhazardous, even though injured while performing duties that are non-hazardous, is entitled to compensation under the Employers' Liability Act. Byas vs. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303.

There is no merit in the exception of no cause of action, and the lower court properly overruled the same.

MERITS

There are two questions presented for determination in this case:

1. Did the deceased receive an injury to his finger in the manner alleged?

2. If he did receive the injury as alleged, did that injury actually cause or contribute to his death?

For proof that the injury happened as alleged, plaintiff relies entirely upon the testimony of witnesses who relate what deceased told them. She offered the testimony of Dr. S. T Roberts, who says that the deceased told him how the injury was received, and says that this conversation took place on the 12th of January, 1929. Dr. Earl Jones testified that the deceased told him on January 2, 1929, how the injury was received. Both doctors testify that he was relating the history of the case to them at the time he was calling on them for treatment.

Plaintiff also offered the testimony of J. E. Frusha, a brother-in-law of the deceased, O. B. Youngblood and C. L. Youngblood, brothers of the deceased, Hiram Lyles, a brother-in-law, and Mrs. Pearl Youngblood, widow of the deceased, and M. H. Rogers, a traveling companion of the deceased, all of whom testify that the deceased told them how the injury was received, but not until several days, and in some instances a week, after the injury had been received. Plaintiff offered no evidence of any person who witnessed the accident, and is relying solely on the testimony of the above-named witnesses.

Defendant objected to this testimony for the reason that it was hearsay, and the judge of the lower court allowed the evidence, reserving the right to pass upon its admissibility in the final determination of the case. Just what his ruling was, as to the admissibility of this evidence, is not in the record, and whether he considered it or not, in arriving at his decision, we are unable to say.

Plaintiff urges the admissibility of this evidence, citing paragraph 4, section 18, of Act No. 20 of 1914:

"The judge shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure other than as herein provided."

in support of her contention; but we are sure this paragraph is not authority for the admission of rank hearsay testimony that is not part of the res gastae in so far as it applies to witnesses other than the attending physicians.

In the case of Hicks vs. Meridian Lumber Co., 152 La. 975 94 So. 903, the court held that statements made by a deceased to a person who was not a physician was inadmissible...