Paige v. Tregre

283 So. 2d 777
CourtLouisiana Court of Appeal
DecidedAugust 23, 1973
Docket8852
StatusPublished
Cited by8 cases

This text of 283 So. 2d 777 (Paige v. Tregre) 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
Paige v. Tregre, 283 So. 2d 777 (La. Ct. App. 1973).

Opinion

283 So.2d 777 (1973)

Angeline PAIGE, Plaintiff-Appellant,
v.
Dennis TREGRE, Defendant-Appellee.

No. 8852.

Court of Appeal of Louisiana, First Circuit.

February 1, 1973.
On Rehearing May 18, 1973.
Supplemental Opinion On Rehearing August 23, 1973.

*778 Foye L. Lowe, Jr., Baton Rouge, for plaintiff-appellant.

Robert Scott McIntosh, II, New Orleans, for defendant-appellee.

Before LOTTINGER, SARTAIN and ELLIS, JJ.

SARTAIN, Judge.

This is a suit for death benefits allegedly due under the Workmen's Compensation Law brought by Angeline Paige, widow of Philip Paige, individually and on behalf of the minor children born of the marriage, Donald, Lois and Juanita Paige. The defendant is Dennis Tregre. After trial on the merits, judgment was rendered in favor of the defendant and plaintiff has appealed. We reverse.

This suit was originally filed in forma pauperis in the eighteenth Judicial District Court, which employs no official court reporter. For this reason, there is no transcript of testimony taken at the time of the trial. See Paige v. Tregre, 262 La. 641, 264 So.2d 591 (1972). There is no written narrative of facts agreed to by the parties, nor is there a written narrative of facts made by the trial judge, as required by Articles 2130 and 2131 of the Code of Civil Procedure.

As a general rule, when the record on appeal does not contain the testimony of the witnesses, and the correctness of the judgment appealed from depends thereon, there is nothing for the appellate court to review, and the appeal is subject to dismissal. See Clark v. Richardson, 157 So.2d 325 (3rd La.App.1963). However, when such a record does contain written reasons for judgment by the trial judge which "reveals substantially all of the material testimony, and the record is sufficiently complete to permit full consideration of the issues presented on appeal", the said reasons will be considered in lieu of the narrative of facts required by Article 2131, supra. *779 Succession of Seals, 243 La. 1056, 150 So. 2d 13 (1963); and Clark v. Richardson, supra.

In the instant case the trial judge rendered written reasons for judgment which read as follows:

"Angeline Paige, widow of Philip Paige, filed suit for workmen's compensation against Dennis Tregre, individually and on behalf of her minor children, Donald Ray Paige, Lois Marie Paige and Juanita Paige, for the death of her husband, Philip Paige, who was also the father of her minor children, Donald Ray Paige, Lois Marie Paige and Juanita Paige.
"The plaintiff alleges in her petition that her husband's death arose out of and in the course of his employment as a manual laborer with Dennis Tregre who was regularly engaged in a hazardous trade, business or ranching operation, which included the operation of machinery, in connection with which he was required to perform all or a substantial part of his duties.
"The suit was filed in forma pauperis and while the testimony was taken down, same was not transcribed and the Court has only its notes and memory from which to decide this case.
"From the evidence adduced at the trial, it appears that Dennis Tregre, at the time of the accident, was a merchant who ran a store which was his principal occupation and raised a few head of cattle as a sideline. The deceased, Philip Paige, traded with Tregre at his store and owed him an account in addition to giving Tregre a bad check, which Tregre was holding. Paige was attempting to work out the debt. At the time of the alleged accident Paige had been using a power saw and had been cleaning hurricane debris on land leased by Tregre to pasture his cattle. A tree limb fell on Paige and according to the testimony of Dr. Harry Kellerman, who was called to the scene, Paige appeared to be killed from being struck by the falling tree limb.
"It further appeared from the evidence that Paige was not a regular employee of Tregre, but worked to pay a debt.
"The power saw did not touch Paige, as according to testimony it had stopped running and lay on the ground some few feet from the body. (Testimony varied as to the distance of the saw from six feet to twenty feet from the body.) The power saw was not out of gas, according to the testimony. The saw positively did not cause any injuries to Paige.
"Furthermore, Paige would request work from Tregre so that Paige could pay out his account. Tregre let him work on his own, unsupervised.
"Tregre had no regular employees. Work was done on the cattle farm by him and his sons, except during the hay season when he would employ laborers to make hay. He owned a tractor which he operated himself. However, the power saw was owned by Tregre, but Tregre stated that he did not know Paige was operating his power saw as he, Tregre, was not there when the accident occurred. Tregre found out later that his power saw was out at the scene of the accident.
"Under the Workmen's Compensation Law of the State of Louisiana cattle raising is, in the opinion of the Court, considered an agricultural occupation and is not a hazardous occupation per se.
"In view of the above reasons the Court is of the opinion that Philip Paige was not an employee of Dennis Tregre within the scope of said Workmen's Compensation law of Louisiana and, further, that he was not injured by any machinery as defined by the Workmen's Compensation law.
*780 "Therefore, it is the opinion of this Court that the plaintiff's suit on her behalf and on the behalf of her minor children against Dennis Tregre should be dismissed at her cost.
"THUS DONE AND SIGNED at New Roads, Pointe Coupee Parish, Louisiana, on this 22nd day of April, 1971."

It is apparent that the trial judge concluded that under the facts found by him, the decedent was not afforded benefits under the Workmen's Compensation Act. Taking his findings of fact as correct, we hold that the trial judge erred as a matter of law in concluding that the decedent was not entitled to such benefits.

First, an employer-employee relationship is shown. Other evidence in the record shows that the decedent was credited with $1.25 for every hour he worked. Although he worked sporadically and received no cash wages, there was an understanding that services were to be furnished and payment, in the form of credits, was to be made. Such a showing is sufficient. St. Paul Fire and Marine Insurance Company v. Richard, 208 So.2d 35 (3rd La. App.1967).

Further, from the reasons assigned, we learn that the defendant "raised a few head of cattle as a sideline". Cattle raising is, of course, a business. The law recognizes that a man can have more than one trade, business or occupation, so long as he is actively engaged in such business and it is otherwise subject to the provisions of the Workmen's Compensation Law, and injury to or death of an employee is covered thereby. Shipp v. Bordelon, 152 La. 795, 94 So. 399 (1922); Ponthieux v. Lindsay, 254 La. 647, 226 So.2d 482 (1969).

Farming, cattle raising and other agricultural pursuits are not per se hazardous. However, if the employment therein involves the use of mechanized equipment it is subject to the provisions of the act. Washington v. Harvey, 164 So.2d 379 (2nd La.App.1964); Norris v. Hargis, 77 So.2d 60 (2nd La.App., 1955); Costanzo v.

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Bluebook (online)
283 So. 2d 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paige-v-tregre-lactapp-1973.