84 So. 197 | La. | 1920
Plaintiff appeals from g judgment sustaining an exception of no cause of action, after a trial on the merits in this
The action was brought under the Employers’ Liability Law, and the petition alleges that the husband of plaintiff was killed while in the discharge of his duties, “driving a motortruck, the property of said company, on the public road near Grand Cane, La. I-Ier husband was killed by falling from said motortruck, some of the wheels of which passed over his body.”
Defendant admits the employment of the deceased, but denies that it is engaged in any of the businesses mentioned or contemplated by the employers’ liability statute, or that the said Haddad was performing any service which fell within that category.
Opinion — Exception of No Cause of Action.
The question of whether or not the petition discloses a cause of action, depends upon the interpretation to be given to the following sentence of subdivision (a) of paragraph 2 of section 1 of Act No. 20 of 1914, to wit:
“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: * * *
“The installation, repair, erection, removal or operation of boilers, furnaces, engines and other forms of machinery.”
The petition alleges, in addition to the nature of the work which the deceased was performing at the time of his death:
“That her said husband was an employé of the Commercial Motor Truck Company prior to and at the time of his death; said company is a corporation organized under the laws of the state of Louisiana, domiciled at Shreveport, Louisiana, with W. H. Jordan as president; said M. G. Haddad having worked for said company or corporation for some time as a driver of motortrucks, selling and delivering same, and performing any other duties he was called on to do in connection with said company’s mo; tortruck business.”
The effect of this and the other allegations of the petition is to charge that the defendant was engaged in the handling, selling, operation, and delivery of motortrucks, and the issue therefore is as to whether or not it was operating “engines” or “other forms of machinery,” within the meaning and contemplation of the clause of the statute above quoted.
“The word ‘engine’ is defined as an ingenious or skillful contrivance used to effect a purpose, and is often synonymous with the word ‘machine.’ Within such definition, an electric passenger elevator is an engine. Lefier v. Forsberg, 1 App. D. C. 36, 41.” Words and Phrases, vol. 3, p. 2395.
An engine, according to the Century Dictionary, is:
“A skillfully contrived mechanism or machine, the parts of which concur in producing an intended effect; a machine for applying any of the mechanical or physical powers to effect a particular purpose; especially a self-contained, self-moving mechanism for the conversion of energy into useful work; as a hydraulic engine for utilizing the pressure of water; a steam, or gas, or air engine, in which the elastic force of steam, gas, or air is utilized.”
According to the same authority, machinery is defined as follows:
“The parts of a machine considered collectively; any combination of mechanical moans designed to work together so as to effect a given end, as the machinery of a watch, a canal lock; any complex system of means and appliances; any mechanical device to carry on any particular work, or keep anything in ac*901 tion, or to effect a specific purpose or end; as the machinery of government.”
We therefore think that the exception of no cause of action should be overruled.
For the reasons assigned, it is therefore ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby annulled and reversed; and it is now ordered and decreed that the exception of no cause of action filed by defendant be, and same is hereby, overruled. It is further ordered that this case be, and the same is hereby,- remanded to the lower court for a decision upon the merits; the costs of this appeal to be paid by the appellee, and all other costs to await final judgment.