*1 59-I- accosted, day April 15th reputable after child two April; brought good 22nd of that the car witnesses testified to the character shop position support to his in front of the of his motion suspended sentence, house; car four defendant’s had and there was out; no denial connecting a new good rods burnt set the defendant’s char- needed; acter. piston rings and that the condition of the that it could car such Considering all of the evidence our con- day operated not have been on the before clusion is that prove the State did not shop. it was to his This witness charge against beyond requested testified also that he been reasonable doubt. shop a week before to take the car to his The verdict and sentence are annulled- repairs, make was too prosecution and the is ordered dismissed. busy. The wife of the defendant testified Sunday, 8th, April awas week date before the the offense case,
charged driving in this she was
car Rouge to Baton her attend sister’s
wedding, and that the car broke down and
telephone
she
to her brother in
leans because it was drive Rehearing Denied June car back. She testified also that car Or- left in front of her in New house leans, commission, during out of the whole April 15th,
week preceding the date
alleged offense. The defendant cor- wife, given
roborated the emphatically denied that he was the
man who accosted the child on the occasion question, riding that he was in his automobile on that occasion.
Aside from -the evidence the de- driving
fendant could not have been his car *2 appealed The Appeal
the decision to Court of dis- as it insofar Parish Orleans The defend- missed Loeb. his suit The sole appeal. ant did question appeal was presented on the independent con- whether anwas The Loeb. tractor or Roccaforte, Blasi, Jr., S. F. Joseph arrived at conclusion Orleans, for Blasi, of New all J. John Loeb anwas applicant. court. affirmed judgment of the lower plaintiff applied The for and obtained Orleans, for Boswell, New
Gordon review. matter is now submitted respondent. our determination.
PONDER, engaged Justice. defendant Loeb is in the business roofing buildings siding Allgood, Herman plaintiff, operates trade name of “National Loeb, doing business suit J. *3 Julian Roofing Company.” Compa- Siding He Siding and enters Roofing and as National into apply siding to employee roofing contracts and Livingston, A. ny, and James $36,- buildings prices. on various at Loeb, recover fixed seeking to He of Julian J. him agreements occasioned also damages injuries' for with various enters Liv- carpenters, negligent fabricating skilled in in- acts and James in their answer stalling siding‘on buildings, The defendants to ingston. part price of Liv- any negligence per on the buildings square.. to at a fixed
denied Loeb further appears the defendant that he furnishes ingston, .and all the materials plaintiff was his necessary and buildings. averred that side roof the to for in- his that, to recover if entitled and acquires siding his He fabricated direct remedy plaintiff’s exclusive juries, manufacturer. The defendant compensation under Em- for employed by would be him in the ca- 20 of Act. ployers’ superintendent. of foreman Liv- pacity transports the ingston materials to the va- trial, gave plain- lower Upon generally jobs and attends rious to Loeb’s Liv- against the defendant tiff siding roofing and interest in the $7,500 rejected and the sum ingston buildings. the defendant demand carpen- plaintiff his brother aré plaintiff ground The and Loeb fabricating installing ters, and skilled not and Loeb’s thereafter, any brother to and his correct defects their siding. In the year expense Industries work at their own Higgins at the they employed were at with plain- Loeb. The days a week defendant carpenters for five They right tiff his had a. m. brother 1:25 from 4:25 hours to work basis, agreement hourly employ helpers to to assist them paid by week on were latter in their work. The contract between about a week. averaging $75 plaintiff 1943, Livingston, the could be ter- year of part of the Loeb, party. en- at the will of either for minated After superintendent foreman injured plaintiff brother with his agreement contin- into an tered siding for siding apply on ba- Loeb and work ued brother and his to do per siding ap- helper hour. square of at $1 each sis $4.50 plaintiff and The any building. plied on The above ar- statement of facts are seven siding had brother his rived all at after a careful consideration accident and buildings prior Loeb was no testimony There case. (cid:127) completed siding of a practically written between the contract at time Hawthorne Place at Consequently, it was defendant. neces- injured. sary to elicit facts from the any required were brother type surrounding and circumstances particular time was hours and particular engaged. work in which the complete siding of a them fixed brother, plaintiff, three Plowever, perform they were building. persons performed similar work expeditiously and in a manner their they 'for defendant testified that regular their conflict that would performed the work as sub-contractors. Higgins Industries. days with working They they materials, stated that were their own equipment furnished Loeb super work, bosses and not under control or siding in the used 'instruments defendants, except vision of either to time delivered time They the result the work. Livingston. further that, tools, agreement, own under their such testified furnished their brother hammer, saws, etc. The in their work to be corrected and his defects *4 they paid bosses and their own not un- at their that Were brother completion job or. of of supervision control the de- for the work at the the der the appreciation responsible to From only on a unit basis. our de- of the fendants testimony, Livingston’s of their the work. results Loeb’s and su fendants actually paid they when pervision was exercised over the They were they the of per plaintiff basis his brother. While siding a on con $4.50 plaintiff right supervise had the duty they was of the the that square. tend work, they right admit that never ex- the to supervise the they the work. The testi- ' right. They they mony such testified that ercised of the defendant’s employee is of supervise actually the of did the little value for the reason that the charac- the plaintiff brother, and his reason that employment ter entirely differ- plaintiff and his brother were reliable the ent from plaintiff’s. that the Conse- competent Only workmen. one quently, inescapable conclusion is plaintiff. witness testified on of the behalf supervision was not under testimony witness, According to the or control of the only defendants and was he was an responsible defendant and to the defendants as to the re- jobs price at various at a unit worked sult his work. wage. fact, at an In hourly at others Some stress laid the facts thát place testimony in one in his stated at covered as an paid by week. time he was His tes- one under compensation Loeb’s insurance timony he was effect that under policy; was injury by treated for his supervision Livingston. and control of physician of compensation insurance accompanied that he While he testified Liv- carrier; roll; pay was carried on the supervised Livingston when vari- ingston security social and withholding taxes were yet he jobs, admits did ous checks; pay deducted from his and thát present know at plaintiff voluntarily submitted with supervised any when time exemption holding certificate forms performed by plaintiff. purposes income tax so that Loeb could analysis testimony of this witness’ shows make the correct income tax deductions same, working was not that he plaintiff. amounts due These similar, agreement that of facts could not be construed as an admis up summing brother. In and his the testi- part sion that he
mony, we find have witnesses we five testi- employee. anwas fying to show facts provisions Under engaged as an Section contractor paragraph performing p. and was duties as süch at of medical services or the injury. he received time We find that compensation payment employer of the two defendants show supervision actual his insurance that no carrier does not exercised consti- liability compensa- for. admission tute Over the work. We cannot disregard Doby testimony of five the case of witnesses tion. Canulette Co., Inc., La.App., supervision fact no actual Shipbuilding was ex- So. accept unsupported ercised and stated testi- that com- mony payments that they the two defendants cannot be taken pensation *5 604
603 liability of The fact con the contract passing on the in consideration litigant templates had to de- performance labor, a employer and an manual actually and the fact to that the en was able proof that he pend on the gaged in carrying claim. manual labor in support in out submit otherwise contract, not would transform provision of the expressed If, under the an if his medical, status all other re services law, furnishing of spects compensation oper- independent of an contrac was that cannot payment of performed tor. work free necessar- employer, would it ate an any direction or control of the defendant. bene- receiving of these ily follow that paid The services rendered after a were operate against fits could not ‘ basis and unit facts independent contractor. or an defects in the work operate should urge the defendant certainly plaintiff’s expense. less corrected at Under plaintiff are appellate considered not be such circumstances courts of magnitude and should plaintiff’s em- determining consistently have status of the State held that un- person performing ployment. such work an inde plaintiff could impression pendent personal though der the contractor even con- independent ly performed not be considered manual labor out carrying - contemplated the contract Long tractor because v. contract. Cobb Bell Lumber by the labor 297, 310; performance Co., La.App. manual Myers 134 So. 16 theory definition Newport Company, La.App. 17 227, 135 So. m contained independent contractor 767; Rodgers City Hammond, v. the excludes specifically compensation law 732; 178 La.App., Murphy So. v. Tremont labor- employed manual as who are those 22 Company, La.App., Lumber 79. So.2d this view. We do not subscribe ers. Haynes, In the case of La. Hatten v. 743, contractor, as de So. independent this Court stated: Liability Act, Employer’s fact personally is “The under- fined service, took to do the manual labor is suffi- “any person who renders statutory cient him to exclude labor, specified recom manual than definition pense specified result either a unit whole, prin nothing Thtere was re- contract that of his control or a only, do, prohibited quired -of work cipal results doing, which such laboring means result him from work himself. Paragraph accomplished.” Section Plaintiff do Employers’ Liability as amended manual whether should solely 1926, p. left not do such by Act No. should consideration,- per- lower his own work which he be given decision. The should benefit, adding Unless personal manifestly formed erroneous. was for his profit by saving to his him the the testimony From of the doctor for him.” employing others to do the plain examined *6 considering In now the case we are testimony, appears plain tiff’s it that requiring nothing there was in the contract tiff received a broken wrist and several perform- prohibiting lacerations, particularly the head. about proof of ing laboring work himself. The forehead, There are two scars his plaintiff was this is the fact that after one some three a four inches and half or helper injured and employed a his brother length. in spinal He a severe received con- continued injury, which, evidence, appears case, Haynes being tract. Such engage render him unfit in the oc holding authority case would for our be cupation he following. After the in Nesmith v. Reich herein. The case of jury, placed he was a some eight in cast for Brothers, 767, 14 So.2d is La. weeks and spinal wore a neck bracfe and entirely point in different state- because period a approximately of three of involved. defend- ment facts were months. spine of' vertebrae his Two of made ants some isolated stress statements are badly damaged. A reading- mere of upon However, opinion in case. that convinces doctor’s that us decree, opinion it is reading the entire to'perform will never be able holding no therein apparent that there is lab.or, except .manual an extremely expressed. contrary herein the views light thirty- character. .The years age one at the time ac against both This suit was cident, was married had two children judgment asking for defendants of the earning approximately per $93 defendants in solido. of the against both circumstances, $7,500 Under such week. complained of was occasioned injury say would not be excessive. We cannot Livingston, by inadequate. fact, would be it it The lower Loeb. $7,500 appears just would be damages against Liv amount fixed the injuries reasonable amount re recognize $7,500. While we ingston at ceived. damages fixed amount assigned, judgment Livingston against is not control For the reasons (cid:127)judgment against demands rejecting Loeb is con as the defendant insofar ling Loeb, defendant, is annulled and damages were oc cerned, yet, since Julian J. ordered there is now by negligent act the defend set aside. casioned of Herman in the favor judgment by Livingston, the amount awarded the be ant whole, defendant, either or a under the con- as unit Allgood Julian legal trol his principal as to results of $7,500, Loeb, in the sum J. only, until means and not from May interest thereon which such judgment accomplished.” is This result cost. paid, at defendant’s with the in solido be treated In the Bros. case Nesmith Reich cause rendered this James al., 767, 769, et La. So.2d given not to and it court, in “in discussing definition of award. separate additional of a effect dependent meaning contractor” within the Employers’ said : O’NIELL, dissents. J.,C. “The in this ser- case rendered vice other than manual furnish- dissents, opin- being ROGERS, J., ing operating truck and the cost of the Court of judgment of ion he If it. rendered other service be affirmed. should Appeals correct than the truck the ex- La.App., 22 So.2d Loeb, Allgood v. pense it, of operating would have been independent contractor, anas classed assigns HAWTHORNE, J., dissents addition to that service fur- *7 reasons. labor, nished manual ex- and to that employee,
tent an independ- and not an HAWTHORNE, (dissenting). ent contractor. definition in the stat- Justice a formula for ute does not determin- give majority respectfully dissent I ing person whether a who renders a service reason case opinion in this consisting partly of manual labor and plaintiff consisted by rendered services partly implements being a car- labor, entirely manual equipment rendering for the only penter and is service an or an buildings. Since various roofing to Perhaps the distinction should by plaintiff con- rendered the services be made according extent labor, certainly entirely of manual sisted furnished, comparison labor “independ- manual within the definition rendered, such as any other service as laid down Subsec- contractor” ent necessary implements or 1926, furnishing 3 of No. 85 of Act tion of Section of the service. Employers’ equipment rendering original Liability amending the not lose his employee does 20 of which reads as classifica- “ ** follows; such, inde- person *. classed rend- tion as . contractor, merely because he service, manual pendent other than for a fur- ers implements tools or his own ar recompense specified for a result nishes specified renders ser- éqiúpment with which he recompense is
vice, thotigh the even result, paid, daily
specified and is computed upon zmges, is
weekly result ac- measure
specified unit * * * complished. plaintiff in conclusion
“Our independent con-
this case defendant,
tractor but * * *” Employers’ Act.
(All ours.) italics opinion
For these reasons am the I the district
as affirmed cor- Court
rect.
27 So.2d FI PETTI ELD.
STATE
No. 38147.
Supreme of Louisiana. Court 14, 1946.
June July
Rehearing Denied