
    Sam RICHARD, Plaintiff and Appellee, v. LANDRENEAU ENTERPRISES et al., Defendant and Appellant.
    No. 1216.
    Court of Appeal of Louisiana. Third Circuit.
    Sept. 15, 1964.
    Rehearing Denied Oct. 14, 1964.
    
      Gist, Gist, Methvin & Trimble, by De-Witt T. Methvin, Jr., Alexandria, Donald Soileau, Mamou, for defendant-appellant.
    Preston N. Aucoin, Ville Platte, Daniel J. McGee, Mamou, for plaintiff-appellee.
    Before TATE, HOOD and CULPEP-PER, JJ.
   CULPEPPER, Judge.

This is a workmen’s compensation suit. Plaintiff contends he is permanently and totally disabled as a result of a heart attack causally related to his employment. Named as defendants are: Landreneau Enterprises, a partnership composed of the widow and heirs of Adraste Landreneau; Adraste Landreneau Gins, Inc., a Louisiana corporation wholly owned by said heirs; the succession of the said Adraste Landreneau, deceased. For purposes of trial and appeal this case was consolidated with Sam Richard v. United States Fidelity & Guaranty Company, La.App., 167 So.2d 840, in which a separate opinion is being rendered by us this date. In that case defendant is the alleged workmen’s compensation insurer of Landreneau Enterprises, Adraste Landren-eau Gins, Inc. and/or the estate of Adraste Landreneau. The district judge held all of the named defendants in both suits liable for permanent and total disability benefits, but denied penalties and attorneys fees. Defendants appealed. Plaintiff answered the appeal seeking penalties and attorneys fees. ! .

The substantial issues are: (1) Was there any causal relationship between the heart attack and the employment? (2) Was the construction of the house, on which plaintiff was working at the time of his heart attack, a part of the regular trade, business, or occupation of his employer, such that the injury sustained was covered by the workmen’s compensation act? (3) Should the-policy of insurance, issued by United States'Fidelity & Guaranty Company to Adraste Landreneau Gins, Inc. as the named insured,, be reformed so as to afford coverage to> Landreneau Enterprises and/or the estate-of Adraste Landreneau? (4) Did the policy-cover maintenance or construction of this-rent house? (5) Even if the insured defendants are not liable, is the insurer estop-ped to deny its liability?

An understanding of the facts requires: that we start with the business activities of Mr. Adraste Landreneau before his death; in 1960. He was engaged in several businesses in and around the town of Mamour Louisiana. He owned two cotton gins, as an incident to which he sold cottonseed, fertilizer and insecticides and also financed farmers; he owned a farm with about fifteen tenant houses for individuals who> farmed the land on a sharecrop basis; he raised cattle; he operated a rice irrigation well; he owned an insurance agency; he also owned four or five rent houses in the town of Mamou,

Mr. Adraste Landreneau died on July 13, 1960 leaving a widow and four children. His succession was opened on July 18, 1960 and his two sons, Mr. Louis Calvin Land-reneau and Mr. Joseph Gibbons Landreneau, were appointed co-administrators. These administrators managed the various interests of the estate until the heirs were-placed in possession by judgment dated March 24, 1961. Then the heirs decided they would separate the cotton gin from the remaining business interests. Accordingly, as of January 1, 1962, a corporation was formed under the name “Adraste Land-reneau Gins, Inc.” The two gins, as well as the cottonseed, fertilizer, insecticide and farm financing businesses, were transferred to this corporation which was wholly owned by the heirs. On or about the same date the widow and heirs also formed a partnership known as “Landreneau Enterprises” for the operation of the remaining interests of the estate, including the farm properties and the rental properties in town. Separate sets of books and separate bank accounts were created for the corporation and the partnership.

Shortly after Mr. Adraste Landreneau’s death, the co-administrators had employed the plaintiff, Mr. Sam Richard. He was hired primarily to operate one of the gins during the ginning season. When his services were not needed for this purpose he worked for the estate (later the partnership) or for one of the heirs individually. Usually plaintiff worked full time at the gin from August through October and then, during November and December when the season was “winding up”, he worked only one or two days a week at the gin. When plaintiff worked at the gin he was paid by the gin corporation. When not working at the gin, he was paid respectively by the individual heir or the partnership for whom the work was done. Most of plaintiff’s off-season work was at a feed and seed store owned and operated by Mr. Calvin Landreneau individually. He also occasionally did work as a general handyman for the partnership. He maintained the irrigation well and had done repair and maintenance work on the rent houses in town and on the farm.

During 1962 Landreneau Enterprises owned two rent houses in Mamou which were in very poor condition. The partners decided to tear down the two old houses and use the materials to build one new rent house on their own land. Mr. Richard assisted in tearing down one of these old houses and was working as a carpenter’s helper in the construction of the new house at the time of his heart attack, about 11:00 a. m. on November 19, 1962.

The first issue is whether there was any causal relationship between plaintiff’s heart attack and the work he was doing at the time. The facts show that plaintiff went to work at about 7:30 a. m. feeling fine. He first worked on the subfloor, which involved handling lumber and nailing in a squatting position. At about 9:00 a. m. a truckload of 2x4’s arrived and plaintiff assisted in the unloading of this lumber. Then they started using these 2x4’s to erect studs for a partition. Plaintiff had climbed on top of the partition and, while straddling a single 2x4, was moving himself along and nailing boards, when he experienced the first symptoms of his heart attack. He testified he felt dizzy and nauseous, his throat got dry and he experienced shortness of breath. He decided to go home, but by the time he got there he felt very ill and went on to the hospital where Dr. Roderick Perron, a general practitioner in Mamou, diagnosed from plaintiff’s symptoms and an elector-cardiogram that he had suffered a coronary occlusion with myocardial infarction. It was Dr. Perron’s opinion that plaintiff had developed progressive arterial sclerosis over the years (Plaintiff was 49 years old) ; that the strenuous physical work, being done by him at the time of the attack, caused the heart to work harder, which in turn required a greater blood supply for the heart muscle the extra strain on the diseased vessel probably caused a small hemorrhage under a plaque which occluded the vessel and cut off the blood supply to that part of the heart muscle which died. It is clear that plaintiff is permanently and totally disabled as a result of this heart attack.

In support of their contention that causal relationship is shown, defendants rely principally on certain testimony of Dr. John Seabury, a heart specialist. Under direct examination Dr. Seabury testified, in response to a long hypothetical question giving the details of plaintiff’s activities immediately preceding the attack, that “ * * it is reasonably possible that his so-called heart attack was precipitated by this activity.” However, under cross-examination Dr. Seabury testified that if the work which Mr. Richard was doing was in all respects the same that he did day in and day out he would be unable to relate the myo-cardial infarction to his employment.

We will not attempt to say whether these statements by Dr. Seabury are contradictory because, in any event, the facts here show that plaintiff was not doing work " * * * in all respects the same as he was doing day in and day out * * Just before his heart attack plaintiff was straddling a single 2x4, at a height of 8 or 10 feet above the floor, while handling and nailing another 2x4. He unquestionably was under a great physical strain and was performing strenuous physical labor. The evidence does not show that plaintiff did work as strenuous as this all day long “day in and day out.” From all of the evidence we think the only reasonable and fair conclusion is that the strenuous physical work being done by plaintiff was the immediate precipitating cause of this heart attack.

The law is clear that where the physical exertion being done at the time is a •contributing cause of the heart attack, a •causal relation is shown even though such physical effort was nothing more than that usually performed by the employee. In the recent case of Danziger v. Employers Mutual Liability Ins. Co. of Wis., 245 La. 33, 156 So.2d 468 (La.Sup.Ct.1963) the court restated the well established jurisprudence that:

“ * * * where the work requires physical effort and exertion and the employee’s heart or other organ fails or suffers functional impairment causing disability while the employee is engaged in the performance of his usual and customary duties, it is an ‘accident’ within the meaning of the compensation law and it is not necessary in such instances for the employee to show that the disabling ‘injury’ was the result of unusual physical effort. See Nickelberry v. Ritchie Grocer Co., 196 La. 1011, 200 So. 330; Hemphill v. Tremont Lumber Co., 209 La. 885, 25 So.2d 625; Fontenot v. Camden Fire Insurance Association, La.App., 124 So.2d 640 and other cases.”

Thus, in the present case, it is immaterial as a matter of law, whether plaintiff was doing unusually strenuous work. The only issue is whether the physical exertion was a contributing cause of the heart attack. We think the evidence clearly shows that it was.

The next issue is whether the construction of this rent house was a part of the regular trade, business or occupation of the employer within the meaning of LSA-R.S. 23:1035. The facts show that the Landreneaus owned four or five rent houses in the town of Mamou. Two of these houses were in bad condition so the heirs decided to tear them down and use the materials to construct one new house. Plaintiff had assisted in the demolition of one of the old houses and was working as a carpenter’s helper in the construction of the new house when he suffered his heart attack. The evidence also shows that the Landreneaus were not in tire construction business; that this was the first time they had ever built a rent house and that they did not have a regular construction or maintenance crew for any purpose.

Our jurisprudence is well established that the workmen’s compensation act does not extend to injured employees unless the work they were doing at the time was a regular part of the business, trade or occupation of the employer. This requirement is separate from and in addition to the requirement concerning the hazardous nature of the business or the particular work which the employee was doing at the time. Caldwell v. George Sproull Co., Inc., 184 La. 951, 168 So. 112; McMorris v. Home Indemnity Ins. Co., 236 La. 292, 107 So.2d 645.

It is likewise well established in our jurisprudence that the construction or repair of capital improvements for a nonhazardous business is not a regular part of such business. In the landmark case of Shipp v. Bordelon, 152 La. 795, 94 So. 399, the defendant, a physician, employed the plaintiff to make repairs on a rent house. The court held such repair work was not incidental to or in the course of the employer’s trade, business or occupation and denied workmen’s compensation. In the recent case of Edwards v. Stafford, 153 So.2d 106 (1st Cir.App.1963) Mrs. Stafford and her daughter owned a building which they rented to a lawyer as an office. They had employed plaintiff to do certain renovation and repair work to the property, during the course of which he was injured. The court thoroughly reviewed the jurisprudence following Shipp v. Bordelon, supra, and concluded that the rental of buildings was a non-hazardous business and the maintenance or repair of such buildings was not a regular part of such rental business. The plaintiff, a casual employee, was denied workmen’s compensation even though he was doing hazardous work at the time of his injury.

Exceptions to this general rule are found in cases where the repair work was so recurrent as to require a regular maintenance crew. Troquille v. Lacazes’ Estate, 59 So.2d 505 (2nd Cir.App.1952); Wood v. Peoples Homestead & Savings Ass’n., 177 So. 466 (2nd Cir.App.1937). But here, the repair of these few rent houses was not so recurrent as to require a regular maintenance crew. The Landreneaus did not have a regular maintenance or construction crew. For this particular job the partnership had hired two or three carpenters, and plaintiff as a carpenter’s helper, on a purely casual basis.- See the general discussion in “Workmen’s Compensation: The Coverage Of Incidental Repairs”, 11 Loyola Law Review 278.

Under this jurisprudence it is apparent that the Landreneaus’ business of renting these four or five houses in the town of Mamou was non-hazardous and the demolition or construction of such houses was not a regular part of the Landreneaus’ rental business.

Plaintiff first seeks to avoid the effect of the above cited jurisprudence by arguing that the recent case of Speed v. Page, 222 La. 529, 62 So.2d 824 has changed the law, or at least has indicated a trend in our jurisprudence, so that the construction, maintenance or repair of any business building is covered by the workmen’s compensation act

As we pointed out in the recent case of Segura v. LeLeux, 158 So.2d 393 (3rd Cir.App.1963, writ of certiorari denied), the Speed case, as well as the later case of Landry v. Fuselier, 230 La. 271, 88 So.2d 218, hold that where work is being done on a building which is to be used for a hazardous business, then such work is considered a regular part of the hazardous business. In the Speed case the building being repaired was to be used as a theater, an admittedly hazardous business. In the Landry case the work being done was in connection with capital improvements to a gasoline service station, also an admittedly hazardous business. These cases do not hold that construction or maintenance of capital improvements for a non-hazardous business (such as the rental of dwellings) is a regular part of such business. Thus, in the Segura case we held that the construction of an addition to a grocery store, was not a regular part of the non-hazardous business of operating such a grocery store. Hence, such work was not covered by the workmen’s compensation act.

Plaintiff next argues that the cases of Kern v. Southport Mill, 174 La. 432, 141 So. 19 and Dobson v. Standard Accident Ins. Co., 228 La. 837, 84 So.2d 210 are applicable here-. In the Kern case, plaintiff was employed by the mill as a pipefitter. One day he was directed by his superior, during his usual working hours, to go to the residence of one of the mill’s officers to do some work. Plaintiff was injured by an automobile while returning to the mill. The court held thát the’services rendered at the officer's residence arose out of ,and were incidental to plaintiff’s employment at the mill, an admittedly hazardous business. 'The court stated the general rule as follows :

“Services ‘arise out of’ and are ‘incidental to’ an employment, whenever the employment calls for just such services. And whenever the employer ■calls upon the employee to render any •particular service, he, at least (that is to say, the employer himself), is in no position any longer to deny that the services thus requested arise out of and are incidental to the employment. Otherwise, by what right has the employee been called upon to perform them? ”

In the Dobson case the claimant was a 'truck driver and general handyman for a wholesale oil and gas distributor. One day, ■during his usual hours of work, plaintiff was sent to tear down a fence around his .employer’s private residence, during the •course of which work plaintiff was injured. The court held that the services being rendered at the employer’s private residence arose out of and were incidental to his •employment by the oil and gas distribution ■business, an admittedly hazardous business, .and quoted with approval the above stated .•general rule from Kern v. Southport Mill.

We think the Kern and Dobson cases are readily distinguishable from the present •matter. The facts here show that plaintiff worked about four months of each year as .an employee of Adraste Landreneau Gins, Inc. But, when not so employed, he worked most of the time for the feed and seed store owned individually by Calvin Landreneau. It was only on casual occasions that he worked for Landreneau Enterprises, and/or the estate, helping to repair or maintain the tenant houses on the farm, or the rental houses in town, or to maintain'the irrigation well or whatever other odd jobs were available.

During the month of November, 1962, when this particular accident occurred, the ginning season was “winding up”. The gin was operated only on Saturdays to process whatever cotton had accumulated during the week. Accordingly, at this particular period of time, plaintiff was working at the gin only on Saturdays. The rest of the time he, and several other casual employees, were working for Landreneau Enterprises in the construction of this rent house. This is certainly not the same as the situation which existed in the Kern and Dobson cases where, during his usual working hours, the claimant was sent out to perform services of a different nature. The accident did not occur during plaintiff’s regular working hours at the gin and he had not been ordered by the gin corporation to perform the services in question. Therefore, the services being performed by the plaintiff at the time of his heart attack did not arise out of, nor were they incidental to, his work for the gin corporation.

As to Landreneau Enterprises, and/or the Landreneau Estate, plaintiff was clearly not a regular employee of any hazardous business which they operated.

In essence, this case presents a situation where an employee divides his time between several different employers, i. e., the gin corporation, the partnership and Calvin Landreneau individually. The applicable rule of law is set forth in Malone’s, Louisiana Workmen’s Compensation Law and Practice, 1951 Edition, Sec. 58, page 66 as follows:

“One employee may divide his time between two or more employers. If each of these has separate work to be done and each exercises exclusive control oVer the employee during the time the latter is working for him, the employments should be designated as separate and successive. Under such circumstances the injured employee is concerned only with the employer for whom he was working at the time of the accident The fact that the claimant did not devote all his time to the work of this employer may he important in determining the wage upon which compensation is to be based, but it does not create a joint employment so as to subject the other employers to liability.”

In Larson’s Workmen’s Compensation Law, 1952 Edition, Sec. 48.50, Vol. 1, page 721, it is stated:

“When there is a true dual employment, and the particular industry in which the injury occurs can be clearly identified, it is only logical, under compensation theory, that that industry should bear the compensation cost. So, when a watchman was hired by two companies (although in form the contract was made only by one), the company in whose service he was acting at the time of injury was held liable exclusively for the cost of that injury.”

It is our conclusion that neither Land-reneau Enterprises, nor Adraste Landren-eau Gins, Inc., nor the estate of Adraste Landreneau are liable to plaintiff for workmen’s compensation benefits.

As to the remaining defendant, United States Fidelity & Guaranty Company, the first issue raised by counsel is whether the policy of insurance which had been issued to Adraste Landreneau Gins, Inc., as the named insured, should be reformed so as to afford coverage to Landren-eau Enterprises and/or the estate of Adraste Landreneau, by whom this rent house was actually being constructed. We find it unnecessary to decide this very serious coverage question. Even if we were to find that the gin corporation, the partnership and the estate were all covered by the policy, there would still be no liability by the insurer, because we do not find, as plaintiff argues, that the insurer is estopped to deny liability under LSA-R.S. 23:1166, which reads as follows:

“When an insurance company issues a policy of insurance to an employer covering claims for injuries to employees that may arise within the scope of the employer’s business, the insurance company shall be estopped to deny liability on the grounds that the employment was not hazardous and during the period such insurance is in effect, claims for injuries occurring during such period by such employees against the employer or the insurance company shall be exclusively under the workmen’s compensation act. Added Acts 1958, No. 495, § 1.”

Plaintiff argues under the above quoted statute that the insurer is estopped to deny that either the business of the employer, or the work being done by the claimant, were hazardous. In other words, plaintiff argues that the defendant-insurer is estopped to deny that the business of renting houses is hazardous, and the work which plaintiff was doing, i. e., carpentry, was admittedly hazardous, therefore the insurer is liable.

We think the answer to this estoppel argument is that the defense herein urged by the insurer is not that the business of renting houses is not hazardous, but that the construction, demolition or repair of a house which is to be used for rental purposes is not “within the scope of the employer’s business” of renting dwellings. The issues of whether the business and the employment are hazardous are separate and distinct from the issue of whether the employment is a regular part of the business. See Malone’s Louisiana Workmen’s Compensation Law and Practice, 1951 Ed., pages 131-132, Section 102. The defense which the insurer has raised here is not that the business of renting houses is not hazardous, or that carpentry work is not hazardous, but instead that the construction or repair of a rent house is not a regular part of the business of renting such houses. The insurer is not estopped to make this defense. LSA-R.S. 23:1166 states that when a policy is issued to cover claims “ * * * that may arise within the scope of the employer’s business * * * ” the insurer is estopped to deny that the employment was hazardous. For instance, in Bergeron v. New Amsterdam Casualty Co., 243 La. 108, 141 So.2d 832, a policy was issued to cover a cafe. A waitress, whose employment was non-hazardous, was injured. The court held LSA-R.S. 23:1166 applied (so as to restrict her recovery to workmen’s compensation and not tort). But if, for instance, a carpenter had been injured while constructing or repairing the cafe (a nonhazardous business) then clearly the insurer could have urged the defense that the construction or repair work was not “within the scope” of the business of operating a cafe. This same reasoning is applicable to the present case.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of all of the named defendants and against the plaintiff, rejecting his demands at his costs. All costs of this appeal are assessed against the plaintiff.

Reversed and rendered.

TATE, Judge

(dissenting).

The writer respectfully dissents. The majority has reversed a trial court judgment awarding workmen’s compensation to a plaintiff who is admittedly totally and permanently disabled as the result of an accident in the course of his employment for the defendants. I think the majority erred as a matter of law.

I do not disagree with the majority’s statement of the facts. However, in my opinion, the majority has overlooked that, in any realistic sense, the plaintiff’s employment with the defendants was not a series of separate part-time jobs working for different non-related employers. The plaintiff’s work, rather, was in a single employment, including both hazardous and non-hazardous duties, where he was shifted about at will by his employers as they needed him in the various entities of what was operated as a single economic enterprise.

Under the well-settled jurisprudence, the disabled plaintiff is entitled to workmen’s compensation benefits when injured in any of the activities of this single employment, a substantial portion of the duties of which involved the performance of hazardous work within the coverage of the Louisiana workmen’s compensation act. See Byas v. Hotel Bentley, 17 La. 1030, 103 So. 303, and the subsequent jurisprudence. The disability arose out of his compensable employment, as, at the time of the accident, he was performing services at the request of his compensation-act covered employers, even though the services themselves at the time of the accident might temporarily have been in non-business activities or otherwise not covered by the compensation act. Dobson v. Standard Accident Ins. Co., 228 La. 837, 84 So.2d 210.

To recapitulate the facts:

The heirs of the late Adraste Landreneau continued the operation of his cotton gins, his farming activites, and the maintenance of the rental properties in the same manner as they were conducted by him prior to his death. Although for tax and other reasons the cotton gins were incorporated, whereas the other activities were to be continued as a partnership, nevertheless, as the uncontradicted testimony reveals, the economic operations were continued by the heirs as a single economic operation of the Adraste Landreneau estate, with the same heirs managing all of the activities, with the employees interchangeably used to perform services for one aspect or another of the enterprises, and in the same manner as the estate enterprises had been conducted by Mr. Adraste Landreneau as a single entity before his death.

The plaintiff, who had worked for Mr. Landreneau a few years before, was hired shortly after the latter’s death primarily in order to obtain his services to operate one of the estate gins. However, in order to obtain his full-time services in that capacity during the ginning season of August-November (and during the gin-repair time commencing each June 1st prior to the ginning season), the heirs also agreed to hire the plaintiff full-time throughout the year, so as to use his services in various other aspects of their various economic operations at times when the gin did not require his presence there. Nevertheless, the plaintiff’s work was in a single employment by the Adraste Landreneau estate and related enterprises, with the plaintiff being paid the same wages at whatever duties he worked, subject to control and direction by the same heir-managers, and subject to assignment interchangeably between the heir-operations as designated by the heir-managers. This is, for example, illustrated by the payroll treatment: At the time of the present accident, the plaintiff was operating the gin one day a week (since it was at the end of the season), but working for other estate activities for another five days of the week; but he was paid by only one single check for all his wages earned both while working at the cotton gin and also at his other estate duties, including the reconstruction work in which engaged at the time of the accident. (Likewise, for instance, although he worked full-time on repair activities at the gin during most of June and July of the year, he received his check during those months from the partnership rather than from gin corporation funds.)

The situation should thus be regarded as one in which a substantial portion of the duties of the plaintiff’s total occupation involved hazardous work at the gin, as well as in recurrent repair activities also classified as hazardous by the compensation act (to which I shall advert shortly). The plaintiff therefore should not be denied compensation simply because his injury was sustained while working for another (possibly non-covered) feature of the economic enterprise, for which the plaintiff performed substantial work in economic activities covered by the Louisiana compensation act as a result of the plaintiff’s single employment contract with the estate heirs.

The majority, however, apparently felt that the plaintiff’s occupation was not covered simply because he was performing repair or construction work for the defendants’ rental enterprises. In so holding, the majority relies upon jurisprudence which holds isolated and non-recurrent repair work not to be a part of an otherwise non-hazardous rental business. See Comment, Workmen’s Compensation: The Coverage of Incidental Repairs, 11 Loyola Law Review 278 (1963). To me, this holding of the majority overlooks that the repair work for the defendants’ rental houses and other buildings in the present case, was a substantial and regularly recurrent feature of their business enterprises. Such repair and reconstruction work is itself classified as hazardous by the compensation act. The substantial and recurring nature of the repair activities is made manifest by the circumstance, among others, that, because of the regular recurrence of such maintenance of the Landreneau non-gin properties, involving over one thousand dollars of wages annually, the defendants’ compensation liability insurance policy and premiums were specifically endorsed so as to cover such recurrent repair employees, with premiums being assessed and paid upon the basis of such wages, including upon those paid to the plaintiff for his maintenance and other non-gin activities during his two and a half years of employment with the heirs preceding the accident.

Under these circumstances, the recurrent and substantial repair and construction maintenance activities of the defendants’ enterprises themselves constituted a hazardous feature of their rental business, so that employees engaged therein, or at least those regularly exposed to such hazardous construction feature of the business, were covered by the workmen’s compensation act and were entitled to compensation, particularly when injured as a direct result of their being engaged in repair work at the time of the accident. Landry v. Fuselier, 230 La. 271, 80 So.2d 218, 221; Troquille v. Lacaze’s Estate, La.App. 2 Cir., 59 So.2d 505 (compensation rate increased, 222 La. 611, 63 So.2d 139).

Since I believe the plaintiff was engaged in a single employment although for different entities thereof, it is unnecessary for me to discuss the possible application of the borrowed employee cases, which hold that an employee interchangeably used by two different employers may nevertheless be entitled to recover workmen’s compensation from both in solido (even though as between one another the employers might be able to shift the ultimate liability onto one or the other). See Humphreys v. Marquette Casualty Co., 235 La. 335, 103 So.2d 895.

Before concluding, I should also note that the insurance policy issued by the defendant insurer clearly was intended to cover all of the employees of the former Adraste Landreneau enterprises, whether engaged in the ginning or in carpentry or repair maintenance operations. The policy itself makes it clear that it is intended to cover any of the liability in compensation of the insureds (which included in intent, not only the gin company, but also the repair maintenance and residence carpentry operations of the estate and its heirs), unless such were specifically excluded by the insurance contract. Not only were no exclusions listed, but premiums were assessed and paid on the basis of the entire payroll of all the enterprises, including the recurrent residence carpentry activities. A similar policy coverage was construed by our Supreme Court in Dobson v. Standard Accident Ins. Co., 228 La. 837, 84 So.2d 210, and the Supreme Court held that such a policy did cover all compensation liabilities. (Further, the fact that Item 4, classifications, listed only gin and farm operations is immaterial: (a) since the only purpose of such listing was to fix the compensation rates; (b) since therein it is specifically stated that entries in such column did not modify any other provisions of the policy; and (c) since the correspondence explaining the classifications in Item 4 specifically indicates that such was intended to include repair maintenance and residence carpentry.)

For the foregoing reasons, I respectfully dissent from the opinion of my esteemed brethren of the majority.

On Application for Rehearing.

En Banc. Rehearing Denied.

TATE, Judge

(dissenting).

The writer feels compelled to make some additional observations concerning the majority’s reversal of the award of compensation to the admittedly disabled workman, because of his concern that the majority opinion marks an erosion of the previously established principles of Louisiana jurisprudence that a workman engaged to perform hazardous duties within the meaning of the compensation act, is entitled to the protection of this humanitarian legislation without hair-splitting inquiry into the workman’s particular duties at the particular moment of an industrial accident which disables him.

The majority’s error, it seems to me, stems from its legal characterization of the undisputed facts as presenting a situation where an employee is separately employed on various days by entirely different and non-related employers (such as, herein, the gin corporation, the estate partnership, and one of the heirs individually). The majority then relies upon certain principles providing that only the employer in whose work the employee is engaged is responsible in compensation liability in the event of disabling injury sustained in one of these “true" dual employments.

To me, however, the present facts do not lend themselves to this characterization. The employee was primarily engaged to work for the gin corporation, which took his full time during at least four months of the year, and which took one or more days a week during various other months of the year. According to the contract of employment, the plaintiff, after performing work as needed by the gin, was to work for the remainder of each six-day work-week either for the estate partnership (owned and managed by the same heirs who owned and managed the gin corporation), or as otherwise directed by these heirs. The plaintiff-employee, primarily engaged to perform the hazardous work of the gin Corporation, was thus to be transferred at the will of the heir-managers between their gin work and their partnership repair and maintenance work, or any other work, either hazardous or non-hazardous, all as determined by the estate heirs, not by the plaintiff himself.

These facts cannot be characterized as demonstrating a true case of an employee making separate employment contracts respectively with the different employers. The present workman was primarily employed by the estate heirs to perform work both for the partnership and for the gin corporation, as determined from day to day and from hour to hour by the estate heirs. These different duties of the plaintiff were rather in different aspects of the same employment than in separate and distinct employments; if the latter, at most the employee’s duties can be characterized as work performed for joint and interrelated enterprises whose control and management was jointly shared by the only theoretically different entities of corporation and partnership. The plaintiff’s wages from time to time might have been paid from either the corporation pocket or the farming partnership pocket; but they came out of the same basic economic enterprise — the estate of Adraste Landreneau, part of which, for bookkeeping purposes, was organized as the gin corporation and the other part of which as the estate farming partnership.

The real principle at issue here is that stated in Professor Malone’s treatise immediately following the quotation from it in the majority opinion, to the effect, Section 58, pp. 66-67:

“If, however, the employee is subject to the joint control of several employers [e. g., in the present instance, the gin corporation and also the estate partnership] at the same time and for the same work, he is entitled, if injured, to subject them all to his compensation claim. * * * ”

I should at this time point out that the jurisprudence from other states relied .upon, to the supposed effect that only the employment in which the workman is injured should bear the compensation costs, must be evaluated in the context of the jurisprudence of those other states. Louisiana alone of the American jurisdictions does not require that an employer secure his employees against compensation liability to them by insurance or otherwise. See Malone, Louisiana Workmen’s Compensation (1951) 43-45 (Section 35(2)); 2 Larson, Workmen’s Compensation Law (1961), 443 (Section 92.10, especially footnote 1). Thus, in these jurisdictions outside of Louisiana, the problem really involved is only which of two or more employers involved shall be ultimately responsible for the injury concerned. In Louisiana, however, a ruling such as the majority has indulged in herein, ultimately determines whether an employee is entitled to any compensation at all, not which employer shall pay.

It is for reasons such as this that in Louisiana, unlike in most other jurisdictions, the general and the special employers of a borrowed employee are both liable in solido to him for workmen’s compensation benefits. Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895. See also lower court dissent in companion case pointing out this factor in Holland v. Marquette Casualty Co., La.App. 1 Cir., 95 So.2d 878 at 886; a dissent with which' the Supreme Court agreed in its reversal of the lower court’s denial of compensation benefits.

Again, the majority’s present ruling flies, in the face of the rationale of the Louisiana jurisprudence instanced by the Kern v. Southport Mill and Dobson v. Standard Accident Ins. Co. cases cited by the majority opinion. This rationale is to the effect that a workman, employed to perform hazardous duties covered by the compensation act, cannot be deprived of the protection of this benign legislation because his employers choose to send him to perform non-hazardous or non-business or non-covered activities. The employee is not in a position to refuse to perform such latter duties arising out of his hazardous employment, and he is regarded as performing them as an incident of and in the course of his hazardous employment if he is injured while engaged in them, so as to be entitled to the protection of our compensation laws in the same manner as if injured while performing hazardous duties.

Let us look again to the particular facts of the present case.

At the time of the injury, the present plaintiff-employee was performing work for the Landreneau Enterprises, the estate partnership. A regular and recurrent feature of the business of this partnership was the repair and maintenance of some fifteen or sixteen country tenant houses and of some four or five town rental houses owned and maintained by this partnership. After the present insurance policy had been taken out by Mr. Adraste Landreneau before his death, an endorsement of the policy had specifically been requested and afforded to cover this regular and recurrent residence carpentry involved in his economic activities. Annual premiums were charged and collected on the basis of such1 regular and recurrent maintenance work, including on the basis of wages paid to the present plaintiff in his past years’ performance of such duties.

This repair and maintenance work is itself classified by the workmen’s compensation act as hazardous; the injured employee was directly injured and permanently disabled as a result of an accident while engaged in such work, statutorily-defined as hazardous and as therefore covered by our state compensation act. It is difficult for me, as a matter of practical fact, to see why this economic activity of regular and recurrent repair and maintenance of the residence properties of the business partnership, was not a hazardous feature of its economic operations; it is equally difficult to understand why, as a matter of practical fact, these recurrent residence carpentry activities are not a part of the trade or business of the partnership. This is no isolated and non-recurrent transaction of a non-hazardous business; this is a regular feature, a substantial attribute, a genuine part of the economic business of the partnership in maintaining and renting and using these residence properties. The majority’s holding in this respect is in conflict with the Supreme Court’s ruling in Landry v. Fuselier, 230 La. 271, 88 So.2d 218.

Leaving this aspect of the majority ruling to one side, the facts further show that the plaintiff-employee was employed primarily to perform hazardous duties for the gin corporation, with the specific understanding by the heir-managers that they were securing the employee’s services full-time throughout the year, not just during the four months of the ginning season, nor the one-day-a-week or so of gin-maintenance involved in the remainder of the year. The heir-managers shifted the employee at their will from his gin duties to partnership duties, although he drew each week only a single check from either the gin corporation or the partnership, no matter for which theoretically separate entity he had performed part or all of his duties that week. I simply cannot believe that the protection of the Louisiana compensation act evaporated when the employee was temporarily transferred by the gin’s heir-managers to other economic operations likewise managed and owned by them. Basically, from the employee’s point of view, his duties were all part of the same employment, directed by the same heir-managers, and paid interchangeably by one entity or another of their total economic enterprise. The duties of his employment involving his substantial and regular exposure to hazardous work, his disabling injuries are compensable, no matter in which branch of the enterprise they were sustained.

One last aspect of the case deserves further comment.

The majority brushes aside somewhat lightly the possible application of LSA-R.S. 23:1166, which provides in full:

“When an insurance company issues a policy of insurance to an employer covering claims for injuries to employees that may arise within the scope of the employer’s business, the insurance company shall he estopped to deny liability on the grounds that the employment was not hazardous and during the period such insurance is in effect, claims for inju/ries occurring during such period by such employees against the employer or the insurance company shall be exclusively under the workmen’s compensation act.” (Italics mine.)

Because of this recent (1958) statutory provision, an employee of a business which has secured compensation insurance has been held to be deprived of any remedy whatsoever in tort against his employer, and he has been held to be relegated instead to a claim for workmen’s compensation as his sole remedy for injuries sustained in his employment Bergeron v. New Amsterdam Casualty Co., 243 La. 108, 141 So.2d 832; McCain v. Travelers Insurance Co., La.App. 3 Cir., 153 So.2d 124. If, for instance, the present employee had sued his employer in tort instead of in compensation, under authority of the cited cases, the present insured employer probably had a defense against the claim in tort, even though it were contended that the business of renting houses is not hazardous and was therefore not subj ect to coverage under the workmen’s compensation act. Since the business had secured compensation insurance to cover its liability for workmen’s compensation, the injured workman’s exclusive remedy was in compensation, by reason of the above quoted statute.

Reverting to the present facts, even under the majority opinion, at the time of the accident the injured workman was a regular employee of at least the Landreneau Enterprises, which enterprise had secured compensation insurance to protect it against liability for workmen’s compensation. The majority unintentionally avoids the necessary implication of this fact, insofar as LSA-R.S. 23:1166 is concerned, by a rather curious process of reasoning.

The majority flatly states that the business of renting houses is non-hazardous, so that therefore residence carpentry in repairing same is not part of the trade or business of this non-hazardous enterprise. (From a practical standpoint, this conclusion seems to be a non sequitur; but let this pass.) Therefore, the majority held, the injured employee’s accident at work is not within the coverage of the workmen’s compensation act. Since the defense sustained was that the employee’s work was not part of the employer’s non-hazardous business, the majority reasons that LSA-R.S. 23 :- 1166 is not applicable, which estops the insurer only from denying coverage upon a defense based upon the non-hazardous nature of the employer’s business.

What this overlooks, in my opinion, is that LSA-R.S. 23:1166 was specifically designed to estop an insured employer or its insurer from asserting that the business in which the injury was sustained was rum-hazardous! The business of renting houses may or may not have been considered non-hazardous, if the suit for compensation had been against an uninsured employer. But since this employer had compensation insurance, the defense cannot be raised that such business was non-hazardous and thus not within the coverage of the compensation act.

Further, as indicated in my dissents, I think there is a substantial doubt as to the conclusion that the regular and recurrent residence carpentry (involved in maintaining and repairing some fifteen or sixteen farm tenant houses and some four or five town rental houses) is not a hazardous feature of the economic enterprise involved in owning and maintaining these residences for business purposes. The defense that this regular and recurrent residence carpentry was not substantial enough to constitute a hazardous feature of the business, entitling employees injured therein to the protection of the workmen’s compensation act, is the very sort of defense prohibited by LSA-R.S. 23:1166 to an employer who has secured compensation insurance.

Nevertheless, the majority has unintentionally assumed as a fact adverse to the injured workmen, the very defense which as a matter of law is not available to his insured employer and its insurer — that the employment in which the workman was injured was non-hazardous, and therefore not covered by the workmen’s compensation act. Since the insurer is estopped from contending that the employer’s business is non-hazardous, the employees of the business injured in the course of their employment are entitled to recover workmen’s compensation benefits as in the case of any employment specifically classified as hazardous by the workmen’s compensation act.

For these reasons, as well as for those assigned in the original dissent, I respectfully disagree with my brethren’s denial of rehearing in the instant case.  