
    NO. 8478
    COURT OF APPEAL PARISH OF ORLEANS.
    MARY BENJAMIN, widow of LEVI BROWDER versus STANDARD ACCIDENT INSURANCE COMPANY OF DETROIT.
   ON REHEARING.

Concurring opinion of

Charles F. Claiborne, Judge.

Under the Employerc Liability Act, there are two cla'-isee of cccuptione that are protected. They are those th.-1 arc Isncminatsd ss "k..z-.rdi.-u3" in Section 1, p. 2 (a) of the Act; and those th-- c ¿-re ¡p-cle 30 by agreement of the p-'-rtiee or J»y judgment of Court, in both cases. prior to the accident. Court of Appeal, 230, Dejan vs. Ujffy and

•ploy/e in :-.n oooup tion not haz-r-.rdous, because, in the ab.senos of danger, they needed no protection.

It is admitted that the plaintiff who worked in a handur.de oigor faotcry, was not employed in any of the hazardous occny-. fcions denominated in Seotion '1, p. 3 (a) of the Em llovsre' Liability Act of 1314.

.. Nor is it contended that her ocon-.y-tion was a-haze-r-ious/Jf6ne'*r" Other then those .'.-íentioned in said section .aa, provided in 3 of said Seotion 1, for there was np judg-v ment of Court rendered -,ri-:-r to the Bccident nor any agree- //' ment between her and her employer as -provided by p. 4, ape i;/Ti>';-.rgu?d that the plaintiff^by "express or implied*! agraement between herself and her employer^has placed herself under.' the provisions of said Aot according to Section 3 p. l9l namely: the "express or implied" agreement resulting from the fact that, the employer had posted in his premises the notices required b^ Section 13 of said Act.

notioe an agreement between the parties. The notioe -has another object in view. It takes the oonsent of both parties- to make a oontrs-ot. It is not in the power of the employer to abridge his own liability nor the rights of hie employee by posting suoh a notioe. It hsakss has been held that a lessor cannot reoover an lnoreaeed rent, whioh he notifies his lessee he-will demand if he holds over, unless- the lessee oonsehts'.-tc suoh inorea.se. There ie nothing in the law that constitutes this

6 Martin 275; 2 La. 157; 6 Ann. 450; 11 Ann. 253+477, 51 Ann. 77.

plied" agreement resulte from the provisions of Section.3 p. 1 of said Aot which reads as follows: It' is contended,' however, that suoh "express or lm-

•this Aot, except Seotlons 4 and 5, relating to defenses, shall not apply to any employer or employee engaged in .the trades, businesses, and ooovg>r.tions speoifled in paragraph 3’ Section 1, nor to those that may be determined to be hazardous under the operation of paragraph 3 of Section 1, unless, prior to the-, injury, they shall .have so elsoted by agreement, either express or implied, as. hereinafter .provided. " "Seotion 3 P, 1. "Be it xurther -enacted, etc. That

It is evident, as provided hy the very words ,of this law, that 'this seotion relatee to the relations of' employer ■and employee.in "hezardous""occupations^hereinafter provided" in ps. 3 anti to 6, and not to the' non-hazardous .occupations mentioned in-the "prior pa 3.

of hiring, verbal, written or implied, b.etween i^yvoiqjlcyex..-■ or employee engaged in the trades, busi; ’ ’ specified in p^-rs graph 3 of Section 1, or engaged in the trades, oueineesea or ocoupiticns that may be determined to be hazardous under-thi op-.ration of paragraph 3 of Section 1, made subsequent to the time provided for this aot to take effeot, shall be presumed to heve been made subject to ths provisions of this Aot, unless there be as a part of ss-id oontraot an express statement in writing not lesa thr-n thirty ie.ys prior to the aooident, either in the ooncraot isself cr by written notioe by either porty to the other, tlvvt the provisions of this Aot other than Sections 4 and 5 are not intended to apply, and it shall be presumed th^t the parties have eleotsd to be subjeot to the provisions of this Aot -'nd to be bound thereby..#

The "express" agreement mentioned in Seotlon 3 p. 1, is the repudiation "in writing" of the Aot; and the "implied" greement i3 the silence of employer or employee, by which it is "presumed that the parties have eleoted to be subjeot to be bound thereby."

But it is ¿impossible to esoape from th8 olear and unambiguuous l.nruage of p. 4 of Section 1, page 46 that the only way in -which an employer or an employee enegsged in an occupation not specified as "hazardous" by the Aot itself, nor adjudged to be so by a judgment -of the Court prior to the accident, can ocme under the operation of this Aot is, in the language prior of the law, for them "pxJcxizx to the accident to voluntarily contract, in writing, to come, under the benefit and protection of the provisions of this Aot with the same force and effect as tóame though they hid been speoifioally included instead of omitted. "

It is conceded in this case that plaintiff’s employment was not hazardous; it is not contended that a judgment of Court declared it to be hazardous, nor that the plaintiff and defendant "voluntarily' contracted in writing to oome under the .- til". benefit and proteotion'of said aot; therefore she oanhot-'re-. cover, ‘-and there mustVbe judgment foa? -defendants-. - -A- " "  