
    Charles J. SCHEXNAYDRE, Sr. v. M. W. KELLOGG COMPANY et al.
    No. 8172.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    
      Charbonnet & Charbonnet, New Orleans, Kenny M. Charbonnet, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, New Orleans, for defendants-appellees.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiff, Charles J. Schexnaydre, Sr., has appealed a judgment dismissing his tort claim on “exceptions of no right of and/or no cause of action.”

The petition alleges this basis for his tort claim: Plaintiff was employed as a welder by M. W. Kellogg Company and/or Pullman, Incorporated. Upon reporting for work his foreman informed him that he had been fired on the orders of James Redell. Plaintiff then proceeded to Redell’s office to learn the reasons for his dismissal. Plaintiff felt the reasons were so unfair he cursed Redell. As he was walking out, Redell called him back, threw a cup of hot coffee in his eyes and then began beating him with his fists. While plaintiff ambiguously refers to himself as an employee in his tort action, the pleading when read as a whole clearly seeks damages in tort under the respondeat superior theory that Redell, Kellogg’s employee, inflicted a battery on plaintiff after he had been fired and was no longer in the employ of the defendants.

Plaintiff’s petition, in the alternative, demanded workmen’s compensation benefits, should it be determined factually that his employment had not legally terminated when the incident occurred.

Named as defendants in this suit were plaintiff’s employer or former employer and their liability and workmen’s compensation insurer, The Travelers Insurance Company. In addition Redell was cited individually.

Clearly the petition states a cause of action in tort against Redell individually. Under C.C.P. art. 892, plaintiff is entitled to bring his action in damages against his employers and their insurer in the same suit in which he alternatively seeks workmen’s compensation benefits. That article provides:

“Except as otherwise provided in Article 3657, a petition may set forth two or more causes of action in the alternative, even though the legal or factual bases thereof may be inconsistent or mutually exclusive. In such cases all allegations shall be made subject to the obligations set forth in Article 863.”

Whether petitioner was within the course and scope of his employment at the time of the alleged battery is a question that must be determined by the individual circumstances of this case. In Danielsen v. Security Van Lines, Inc., 245 La. 450, 158 So.2d 609, 611 (1963), the Court observed:

“When the employment begins or ends cannot be determined by reference to an exact formula. Each case must be resolved by a consideration of the particular facts and circumstances. It is, of course, well settled that the statute must be given a liberal interpretation to effectuate its beneficent purpose of relieving the workmen of the crushing economic burden of work-connected injuries by diffusing the cost in the channels of commerce.”

Of necessity, plaintiff can only maintain his remedy in tort or compensation if he asserts a claim within one year of the incident. Without trial on the merits to develop facts determinative of his status as employee or ex-employee, it is inappropriate to dismiss his suit on the hypothesis that because he was still on the premises at the time of the battery he was still in fact an employee.

For the reasons assigned, the judgment maintaining the exceptions of no right or cause of action is reversed and this matter is remanded for further proceedings consistent with the views herein expressed. Defendants are to pay the cost of this appeal.

REVERSED AND REMANDED.

LEMMON, Judge,

concurs and assigns reasons.

Plaintiff has alleged a single set of facts in his petition, but has set forth alternative theories of recovery under those facts. For the purposes of the exception of no cause of action, we must accept the pleaded facts as true.

Under the pleaded facts plaintiff was an employee as a matter of law and is entitled to recover compensation benefits if he can prove these facts at trial (and can prevail against defendants’ affirmative defense, which apparently is the reason benefits are not being paid). Therefore, the petition states a cause of action.

If plaintiff were being paid workmen's compensation and had filed this suit only to recover tort damages, I would be inclined to hold that the facts alleged in the petition do not state a cause of action for which relief can be granted (because under those facts plaintiff was an employee as a matter of law). However, when a petition states a cause of action as to any ground or portion of the demand, or in any respect, the exception of no cause of action should be overruled and the entire case tried on the merits. Louisiana & Ark. Ry. v. Goslin, 258 La. 530, 246 So.2d 852 (1971). Employment of the exception of no cause of action to decide a dispute as to relief under one theory of recovery does not serve a useful purpose when a complete trial on the merits will still be required to determine whether plaintiff is entitled to the relief under another theory of recovery for which the petition does state a cause of action.

Accordingly, while I tend to agree with the basis of defendant’s argument and the trial judge’s conclusion, I concur in overruling the exception. 
      
      . See Articles II and ) II of plaintiff’s petition.
     