No. 13,682 | La. | Nov 15, 1901
Lead Opinion
The opinion of the court, on motion to dismiss, was delivered by
The opinion of the court, on the merits, was delivered by
On the application for a rehearing by
On Motion to Dismiss Appeal.
The opinion of the court was delivered by
Watkins, J. Plaintiff and appellee bring to the attention of the court the fact, that he filed in the District Court a motion to dismiss the defendant’s appeal, on the ground that the surety on the appeal bond “was not a legal surety, because it did not possess property situated within the State,” and that said motion was, on trial, dismissed;
The argument, on the part of the defendant’s counsel, presents the question at issue very succinctly; and we have made the following extract therefrom, viz:
“This rule was tried on admissions, the plaintiff in rule admitting that the surety company which signed the bond had fully complied with Act No. 41 of 1894, and the defendant in rule admitting that the surety company had no property within the jurisdiction of the court.”
The act of 1894 does not require surety companies to have property within the jurisdiction of the court in which the bond is furnished, nor, for that matter, within the State. The first section of the act defines the kind of corporations which may become surety; states the capital and assets which it must have; and provides that “such execution, by such company of such bond, undertaking or obligation, shall in all respects be a full and complete compliance with all the requirements of such laws, ordinances, or regulations that such bond, undertaking or obligation, shall be exercised by one or more sureties, or that such sureties shall be residents, or freeholders, or either or both, or possess any other qualification,” contains other language showing that the act does no_t require that the corporation shall have property within the jurisdiction of the court, or within the State, and provides that' certain duties shall be performed by the Secretary of State, in order to insure the solvency of the companies acting as sureties.
The act of 1894 has been in force for six years, and appears to have been accepted and approved of by the profession, since it has been attacked in but two cases, both of which have been decided in our favor, namely the Standard Cotton Seed Oil Company vs. Matheson, 48th Ann. 1321, and Holmes vs. Railroad Company, 49 Ann. 1466.
In the Matheson ease, the court used the language quoted in the appellee’s brief, but nevertheless maintained the validity of the surety, notwithstanding the fact that the objection that surety companies were not required to have property within the State, was pressed home; for on page 1324 it appears that counsel in that case argued “nor can private citizens be admitted to suretyship on legal bonds, unless they have property within the State.”
The motion to dismiss in Holmes vs. Railroad Company, 49 Ann., seems to have been suggested by the language quoted from the Matheson ease, for the point was made in this ease “that the surety is not
It seems to us that, boiled down, the point made by the appellee is that the act of 1894 is in conflict with an article of the Code of Practice, which requires that the surety shall reside within the jurisdiction of the court, and an article of the Civil Code, which provides that the surety shall have property liable to. seizure within the State. If there be a conflict, the act of 1894 governs, being the later act, and repealing pro tanto the articles of the Code and the Code of Practice, as decided in the Matheson case, 48 Ann. p. 1323.
We know of no provision in the Constitution which prevents the Legislature from making any regulations it sees fit with reference to sureties, or which requires the Legislature to exact any surety at all in the ease of an appeal, and, as a matter of fact, Article 3042 of the Civil Code, until amended by Act No. 76 of 1876, did not require that the surety should have property within the State.
The Statute of 1894 was enacted for the special purpose of authorizing certain corporations to become sureties on bonds, and it prescribes the conditions under which they may do so. One of its requirements is that such corporation shall have a cash capital of not less than $250,000, and has qualified under the provisions of this act “and which has assets allowable as such under the laws of this State, or under the laws of the State in which it is incorporated in excess of its capital stock, outstanding debts and a premium reserve on all outstanding risks,” etc. Sec. 1, Act 41 of 1894.
The company having complied with these conditions “it shall become subject to all the liabilities, and have all the rights of sureties under the provisions of the law relating thereto; it being the true intent and meaning of this act to enable corporations created for the above purposes to become and be accepted as sole surety on all bonds,” etc.Ibid. (Italics ours.)
The motion does not disavow the fact that the guaranty company had in this case qualified itself according.to.that statute, and hence that' fact may be assumed.
That statute must be accepted and considered as an amendment to that provision of the Code of Practice relied upon by the appellee.
We are of opinion that the district judge disposed of the motion correctly.
Motion to dismiss denied.
Opinion on the Merits
Tliis is a suit for the recovery of damages sustained by the plaintiff, whilst engaged in assisting in the erection of a brewery, for the building of which the defendant was -the contractor. The plaintiff alleges that he is a carpenter; that he was employed in that capacity by John Weiss, the agent and representative of the defendant; and that, whilst engaged in the work for which he , was employed, under the direction of both of said parties, he received the injury of which he complains by reason of their negligence and of the fact that they subjected him to danger of which he was ignorant and of which they failed to warn him. ■
The defendant denies that Weiss was his agent, and avers that he was an independent contractor; and he further denies the negligence imputed to him, and alleges that the plaintiff, when injured, was engaged in the work for which he was employed, and the risks of which he had assumed. There was a mistrial, originally, by reason of the sudden illness of a juror. Upon the second tral there was a verdict for the plaintiff, which was set aside by the judge a quo. Upon the third trial there was another verdict for the plaintiff, and the defendant has appealed.
The evidence shows that the defendant had contracted to erect the brewery, and that he let out to John Weiss the contract for general work, including the hoisting into position of the iron required in the building; that Weiss employed and discharged his own mechanics and laborers; and that the defendant communicated with him, and not with the men employed by him. Nevertheless, there is, upon the one hand, an uncertainty as to the precise limitations of this contract, and, upon the other, a certainty that the defendant was continually on hand, and in control, even though his directions as to how the work should be done were given to Weiss, that leads us to conclude that the latter was not an independent contractor to the extent of relieving the defendant of liability for his conduct in the prosecution of that work.
“The simple test is,” says Mr. Wood, “who has the general control over the work? Who has the right to direct what should be done and how to do it ? And if the person employed reserves this power to himself, his relation to his employer is independent, and he is a contractor, but if it is reserved to the employer, or his agents, the relation is that of master and servant. Wood on Master and Servant, 614 (cited in Tutrix vs. Sellers & Co., 32 Ann. 1017.)
“Q. Who was next in authority under you? A. William Moffett. Q. Did you have any conversation with Moffett with reference 'o these trusses and the work to be done on them? A. Early in the morning, I did. Q. What was the nature of this conversation early in the morning? A. I told him to divide some of his men off of the boiler-room roof and to continue with the engine-room. Q. And after you had that conversation with him, did you remain there or go away? A. I left the works. Q. When did you come back to the works? A. About 2 o’clock. Q. When you got back to the works, what directions, if any, did you give to Moffett? A. None. Q. Where did you go when you came back? A. I walked up on the roof, through the trusses, and crossed the one and got over on the fire-wall. Q. Where was Moffett when you climbed up? A. On the boiler-room roof. Q. What did he do after he saw you? A. He started for the engine-room roof. Q. Do you know if anything was said to him ? A. Yes, sir; only a remark by Mr. Schroeder. Q. Do you remember what that remark was ? A. Yes; he said these trusses were dangerous. Q. Was anything said by Mr. Moffett? A. He said, “Yes,” but I had my back turned from him. I turned away and I said: “Billy if that is the ease, you will get a line on it.” He said: “Look out, there they come.” Q. Whose duty was it to put the purlins into position ? A. Mr. Moffett’s. Q. Who placed the purlins in position on the roof of the boiler-room? A. Mr. Moffett.”
Schroeder was a workman whom Moffett had ordered to assist him in spreading, i. e., placing in their proper positions the purlins, which were then lying in disorder across the trusses. He testifies that he saw that the trusses, which had either not been set perpendicular when hoisted up, or else had been disturbed by the placing on them of the purlins, were in a dangerous condition and that he called the attention of Moffett to it. Poree, the contractor for the brick work, testifies that he saw the danger and called to Denny, the foreman of the laborers, who told him to speak to Moffett, and that he then called to Moffett that the whole thing would come down. And Denny testifies that Poree spoke to him on the subject, and that he told him to go to Moffett. Whatever, therefore, may be the value of the plaintiff’s denial, that he was warned of the dangerous condition of the trusses, the
“The deceased entered the employment of the defendant company as a flagman and switchman with a full knowledge of the character of the service required of him, and the dangers incident to the employment. He assumed all those risks when he entered into the service of the defendant company. The defendant company did not increase the risk assumed hy the deceased and to which he subjected himself. Then? was no defect in any of the appliances provided by the defendant company for the performance of the duties required of him, and there was, therefore, no negligence.” (Citing authorities.)
Dandie vs. Railroad Co., 42 Ann. 689.
And, upon the same subject, the Supreme Court of the United States has said:
“Where an employee is not placed by an employer in a position of undisclosed danger, but is a mature man, doing the ordinary work which he was engaged to do, and whose risks are obvious to anyone, he assumes the risks of the employment, and no negligence can be imputed to an employer for an accident to him therefrom.” Kohn vs. McNulta, 147 U.S. 238" court="SCOTUS" date_filed="1893-01-16" href="https://app.midpage.ai/document/kohn-v-mcnulta-93486?utm_source=webapp" opinion_id="93486">147 U. S. 238.
The rule, as thus stated, is applicable to the ease at bar, and precludes recovery by the plaintiff.
It is therefore ordered, adjudged and decreed, that the verdict and judgment appealed from be annulled, avoided and reversed, and that the plaintiff’s demand be rejected, at his cost in both courts.
Rehearing
On Application for Rehearing.
Counsel for plaintiff calls attention to the fact that the opinion handed down fails to notice the ruling of the trial judge dismissing a supplemental petition, whereby, after issue had been joined, and after there had been a mistrial, the plaintiff sought to bring into the case an additional defendant. It appears that the supplemental petition in question was dismissed, in January, 1900, upon an exception filed on behalf of the original defendant; that the case was thereafter tried, with the result that, in June, 1900, there was a verdict and judgment for plaintiff, from which said original defendant appealed; that, in November, following, after a complete transcript of all the proceedings in the case, up to, and inclusive of, the appeal thus taken, had been lodged in this court, the plaintiff obtained an order of appeal
It seems clear that the appeal thus taken by the plaintiff, whatever may have been its merits, did not have the effect of injecting into the case as brought up by the defendant’s appeal any other questions than those presented in the transcript which the defendant had filed. And, as that transcript discloses no complaint concerning, or appeal from, the interlocutory ruling dismissing the plaintiff’s supplemental petition, and as there is no answer to the appeal taken by the defendant, it follows that the question of the correctness of that ruling was not presented for review in the case which has been decided. If the appeal as taken on behalf of the plaintiff is entitled to any consideration, it must be as a separate matter, and it should have been so docketed.
We find no reason, upon this, or other ground, for granting a rehearing, and the same is accordingly refused.