Youngblood v. Colfax Motor Co.

DREW, J. Plaintiff, Mrs. Pearl Young-blood, 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. [417] 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 o.f “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 nonhazardous, 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.