154 So. 507 | La. Ct. App. | 1934
Plaintiff sued his employer, Milner-Fuller, Incorporated, and its insurer, Hartford Accident Indemnity Company, for compensation alleged to be due him for injuries received by him while performing the duties of his employment. He alleges that during the year 1932, and until January 6, 1933, he was employed by Milner-Fuller, Incorporated, in its garage in the city of Monroe, La., as a mechanic and painter, and that among the other duties of his employment he was required to make repairs on automobiles, and to apply lacquers and paints and other kindred solutions on them after being repaired. He also alleges that during the latter part of July, 1932, "his lungs became infected with the chemical emanations from the paints, lacquers and other thinners being used in painting cars, which necessitated his being treated by a physician, and also which work incapacitated him for several days during each week; which condition continued until he became so physically handicapped on or about the 6th day of January, 1933. that it was necessary for him to quit work entirely in order that he might receive the proper treatment.
"Now, petitioner shows that as his physical condition is due entirely to his breathing into his lungs of the chemical fumes above referred to, which caused a permanent impairment *508 that prevents him from the performance of any physical labor, which is the sole means by which he can earn a livelihood. was received (luring the course of his employment. * * *"
In the alternative, plaintiff sued his employer alone for a large amount, under article
Both defendants filed exceptions of no cause and no right of action. These were, in due time, argued and submitted. Before judgment was pronounced thereon, plaintiff filed a supplemental petition wherein he virtually reiterates the allegations of his petition as to his main demand, and adds that, while performing his said duties on or about August 28, 1932, at his employer's place of business, "he accidentally breathed into his lungs the chemical emanations, which seared and/or infected the lining of his lungs, throat and bronchial tubes to such an extent as to necessitate his being treated by a physician; that his injuries aforesaid were reported to his employer," and he was sent to a physician for treatment, under whose care he remained until the time the amended petition was filed.
To the averments of his original petition, respecting his alternative demand, the supplemental petition adds that it was customary and the duty of Milner-Fuller, Incorporated, when paints, lacquers, or thinners, above referred to, are used, to provide the employee therein engaged with a gas mask or other protection to prevent said injuries, but which was not furnished petitioner.
Defendants also filed exceptions of no cause and no right of action to this supplemental petition, and, under reservations, answered. All of these exceptions were sustained and plaintiff's suit dismissed at his cost. Plaintiff appealed.
Appellant has filed no brief in this court. We assume that his position and contentions are correctly reflected by the allegations of his petition and the amendment thereto.
Appellees contend that, since the original petition does not disclose a right or cause of action against defendants, and since their exception putting this question up to the court for decision had been filed, submitted, and was under the court's advisement when the amended petition was filed, when the court sustained the exceptions, the effect of its ruling related back to conditions as they existed when the exceptions were filed. They cite the case of Tuck v. Harmon, 151 So. 806, decided by this court on January 3, 1934, in support of their position. They are in error. The cited case, on the point under consideration, holds: (1) That, if an exception of no cause of action and/or no right of action is sustained, thereafter life cannot be injected into the petition by amendment; and (2) that, if erroneously overruled and the petitior is thereafter amended to show a cause or right of action, the situation on appeal will be considered as of the time the exceptions were erroneously overruled, and the amendment ignored. The syllabus in the case is to some extent misleading. The present case presents different facts to that of Tuck v. Harmon. Here, issue had not been joined when the supplemental petition was filed, and, until issue is joined, a plaintiff may file almost any sort of amendment without the court's leave. A fatally defective petition may be in this manner amended so as to become vital and effective. Code Prac. art. 419; Tarver v. Quinn et al.,
And it was held in Shipp v. Bordelon,
Therefore, whether plaintiff has alleged a cause or right of action must be determined from the contents of both the original and amended petitions filed by him.
Appellees' argument in support of their exceptions is predicated entirely upon the assumption that plaintiff's amended petition is not properly before the court. They therefore direct their discussion to the weakness of, and defects in, the original petition. They say that no allegation is made that plaintiff's *509
injury was reported to his employer, as required by section 11 of the Workmen's Compensation Law (Act No.
Only two cases involving facts similar to those disclosed in the present case have reached our courts, so far as a diligent search on our part discloses. These are Nowaski v. Continental Flat Glass Company,
The issue turns upon whether the injury of which plaintiff complains is a result of, or sequence to, an accident within the meaning and purview of the Workmen's Compensation Law (Act No.
Our courts have uniformly given a liberal interpretation to the provisions of the Workmen's Compensation Law, as concerns the rules of evidence and procedure applicable to cases arising thereunder. However, this does not relieve a plaintiff from establishing his case by the same weight and degree of proof as in other civil cases.
If there be doubt of the sufficiency of the allegations of a petition to disclose a cause or right of action, such doubt should be resolved in favor of sustaining the petition rather than the exception.
In Pierre v. Barringer,
The exception, sustained by the lower court, was held by the Supreme Court to be not well founded, in view of the liberal construction to be given the Workmen's Compensation Law, as it relates to pleading.
In Dewey v. Lutcher-Moore Lumber Co.,
We considered exceptions of no cause of action and no right of action in the recent cases of McQueen v. Tremont Lumber Company (La.App.)
We think the alternative demand of plaintiff, as amplified by the supplemental petition, does disclose a cause of action. It is alleged that defendant knew, or should have known, that the fumes given off from the paints, lacquers, etc., used in painting and embellishing repaired automobiles, were dangerous and would cause permanent injury or death to workmen inhaling same; that it was not only customary for employers to provide their employees engaged in applying said liquids with gas masks to protect them from the dangers of injuries resulting from inhaling said fumes, but that it was their duty to do so; that such gas mask or other protection from said injury was not furnished him by defendant; and that he was ignorant, until too late, of the fact that said fumes or chemical emanations when inhaled would work injury to a person, such as he has experienced. Summarizing, plaintiff charges defendant with a certain duty to him as its servant, that that duty was breached, and that, as a result of its breach, he has suffered injury for which he should be compensated in damages. Under the well-recognized doctrine that the master is bound to furnish his servant with a safe place in which to work and provide him with safe and adequate implements and appliances with which to do his work, the petitions disclose a cause of action.
For the reasons herein assigned, the judgment appealed from is annulled, reversed, and set aside, and this case is now remanded to the lower court for further proceedings according to law and the views herein expressed; cost of appeal to be paid by appellees.