Costanzo v. Southern Farm Bureau Casualty Ins. Co.

124 So. 2d 621, 1960 La. App. LEXIS 1203
CourtLouisiana Court of Appeal
DecidedNovember 17, 1960
Docket129
StatusPublished
Cited by14 cases

This text of 124 So. 2d 621 (Costanzo v. Southern Farm Bureau Casualty Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Costanzo v. Southern Farm Bureau Casualty Ins. Co., 124 So. 2d 621, 1960 La. App. LEXIS 1203 (La. Ct. App. 1960).

Opinion

124 So.2d 621 (1960)

Paul L. COSTANZO, Plaintiff and Appellant,
v.
SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al., Defendants and Appellees.

No. 129.

Court of Appeal of Louisiana, Third Circuit.

November 17, 1960.
Rehearing Denied December 14, 1960.
Certiorari Denied February 3, 1961.

Ben C. Bennett, Jr., Marksville, for plaintiff-appellant.

Dubuisson & Dubuisson, Opelousas, for defendants-appellees.

Before TATE, SAVOY and CULPEPPER, JJ.

CULPEPPER, Judge.

This is a suit for workmen's compensation benefits brought by Paul L. Costanzo against his alleged employer, Louis Fontenot, *622 and Southern Farm Bureau Casualty Insurance Company, as Fontenot's insurer. From an adverse judgment in the lower court, plaintiff has taken this appeal.

Plaintiff alleges that on May 5, 1956, he was employed by Louis Fontenot as a farm hand, and in the process of moving a small building used as a crib, he suffered a back injury while shoveling dirt. The evidence introduced during the trial of the case shows that Louis Fontenot is the owner of a large farm containing approximately 4,000 acres of land in Avoyelles Parish. During the year 1956 Fontenot leased approximately 500 acres of this land to the plaintiff and Reven L. Fontenot, who are the son-in-law and the son respectively of Louis Fontenot, for the purpose of raising rice and cotton at an agreed rental of one-third of the proceeds of the crop for that year. The plaintiff and his wife, a daughter of the defendant, lived on defendant's farm in a house furnished by defendant. When the plaintiff and his brother-in-law, Reven L. Fontenot, were not working their own crop, they worked for Mr. Louis Fontenot, who operated a cattle farm on the rest of his land, for a wage of 75 cents per hour. Mr. Louis Fontenot owned approximately 500 head of cattle and in connection with the operation of this business he used tractors, mowing machines, bulldozers and other types of farm machinery and equipment, which both the plaintiff and Reven L. Fontenot operated.

The first contention of the defendant is that plaintiff has failed to sustain his burden of proving that he was in the employment of Louis Fontenot when he was moving the barn in question. Both the plaintiff and Reven L. Fontenot testified that on May 5, 1956, they were working for Mr. Louis Fontenot moving a small crib, measuring 12 by 16 feet, from a pasture to a location near the house occupied by plaintiff. The plaintiff testified that after the crib was set up he was leveling off the ground at the new location and he grabbed a shovel load of dirt and "* * * then I slinged it over and I stayed there. I didn't straighten out." At the time of the accident no one was working with the plaintiff, but his wife testified that she was in the house nearby and saw plaintiff at the time he was hurt. Louis Fontenot did not appear as a witness in this case, but the plaintiff and his wife and brother-in-law, Reven L. Fontenot, testified that when they were moving this barn they were working for Mr. Louis Fontenot at the usual wage of 75 cents per hour, which they received when they worked on Mr. Fontenot's cattle farm. No written record of this payment was produced in evidence, it appearing from the testimony in the record that Louis Fontenot always paid the plaintiff and the other labor on his place in cash. The defendant argues that it is not sufficient for the plaintiff to prove this element of his case simply by the testimony of himself, his wife and his brother-in-law. It is our opinion that this uncontradicted testimony and the undisputed evidence that plaintiff and Reven L. Fontenot had frequently worked for Louis Fontenot on his cattle farm, that this particular crib belonged to the defendant, Louis Fontenot, and that it was moved from one location to another on defendant's land, establishes by a sufficient preponderance of the evidence that at the time of the alleged injury the plaintiff was in the employment of Louis Fontenot. Our appellate courts have held on several occasions that an accident can be proved by the claimant alone if there are other corroborating witnesses or circumstances. Johnson v. Andrus, 56 So.2d 257; Roy v. Guillot, 84 So.2d 469.

Next, the defendant contends that even if the plaintiff was working for Louis Fontenot he was not, at the time of the accident, engaged in the hazardous features of defendant's business of running this large cattle farm. The defendant argued strenuously that this case does not fall within the doctrine originally enunciated in Byas v. Hotel Bentley, 157 La. 1030, 103 So. 303, to the effect that where an employee is required to discharge both hazardous and nonhazardous duties it is immaterial that his *623 injury occurred while he was engaged in nonhazardous work. This doctrine was applied to a farm laborer in Collins v. Spielman, 1942, 200 La. 586, 8 So.2d 608. The defendant contends that plaintiff was not a regular employee such as the one involved in Byas v. Hotel Bentley, supra, and argues in effect that every time plaintiff left his own rice farming and went over to work for Louis Fontenot, a new, separate and distinct contract of employment was created. Defendant apparently admits that on those occasions when the plaintiff drove a tractor or operated other mechanical equipment on the Louis Fontenot cattle farm, he was involved in the hazardous features of the business, but argues that on this particular occasion when he was moving a crib he was not involved in any of the hazardous features of Mr. Fontenot's cattle raising business and consequently was not covered by the Workmen's Compensation Act, LSA-R.S. 23:1021 et seq. The defendant contends that the present case can be compared to a factual situation where an employer in the farming business might hire a man for one day to drive a tractor and then six months later hire the same man to repair the fences, in which latter employment he would not be covered by the Workmen's Compensation Act. The obvious answer to this argument is that under the facts of this case the plaintiff was a fairly regular employee of the defendant. The evidence is clear that when the plaintiff and his brother-in-law, Reven L. Fontenot, were not engaged in their own rice and cotton farming operations they worked for Mr. Louis Fontenot for 75 cents per hour under a continuing agreement to this effect. The type of work which they performed each time was determined by Louis Fontenot, who paid them. There is no evidence in the record to the contrary.

In the case of Norris v. Hargis, 77 So.2d 60, 61, our brothers of the Second Circuit Court of Appeal considered a very similar factual situation where a share cropper, when not otherwise engaged in making his crop, was employed as a day laborer performing various functions about the farm of the defendant, including driving a tractor and other motorized equipment, at a daily wage of $3. Norris was injured one day while cleaning out a barn for the defendant and the court, in finding the plaintiff covered by the Workmen's Compensation Act, enunciated the following principles of law which are applicable to the present case:

"The first contention of the defense can not be sustained. It is well settled in our jurisprudence that although a business is not specifically designated as hazardous in the Workmen's Compensation Act, it becomes hazardous if motor vehicles or other mechanical equipment are used in connection with its operations. Thus, in Speed v. Page, La.App.1952, 59 So.2d 138, affirmed 222 La.

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Cite This Page — Counsel Stack

Bluebook (online)
124 So. 2d 621, 1960 La. App. LEXIS 1203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/costanzo-v-southern-farm-bureau-casualty-ins-co-lactapp-1960.