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

Dinkelspiel; J.

In the original opinion filed in thia case, we decided that under the Workmen's Compensation Aot, that no suit could be brought against the Insuranos Company under Section 35 of the Aot without literally complying thereto and we have oome to the oonolusion that in that opinion we were in error; but in the petition of plaintiff, after stating the injuries received by her, she claims compensation on the further ground that defendants were liable to her for iksmakásat the accident in question; thst notwithstanding the admission made in the brief end the argument of her oounsel, that the trade, business or occupation carried on by defendants, Grommes & El son, who were her employers, was thet of manufacturing cigars by hand; that in said trade, business or oooupatlon no mechanical power ’was ;ueed and that said trade, business or oooupatlon was not hazardous and was not subjsot to the compensation laws of Louisians,, claiming that under Section 1, paragraph three of the Workmen's Compensation Law, the question of whether or not the trade, business or occupation, not named therein, is hazardous, may be determined by an agreement between the employer and the employee and that defendants have admitted through signs placed on different parts in their building .that they were acting under the Workmentfe Compensation Aote and further s.dmitted through the testimony of their Agent, this fact, hence liable for the injuries inflicted.

ThiP question has been presented to this Court in the matter of Eddie Dejen vs. Deo Ujffy, whioh case is to be found ■ in the 14th Court o'f Appeal Reports, at page 330 'and there it was held amongst other things:

— "Every person performing services arising out of or incidental to his employment in-the course of his employer's trade, business or oocupaiion in-the following'hazardous trades, business and occupation."

And the Court goes on in its decision to deny this statement-and assert to the contrary end finally says:

"We do hot overlook the fact that this clause added to '-Seotion 5, gives that section the same meaning as that oonveyed by Seotion 4, -and without that last clause it might be that the seotion would have to be interpreted as contended .for by plaintiff; but the olauhe has been inserted, and we have nothing ■to do but to give it effeot."

And in a recent,case decided by this Court, Ella Anderson vs. Tharp, Sontheimer Co. Mo. 7373 of the Docket of this Court, the Court holds in the syllabus:

"Carriage-driving is not a "hazardous occupation" enumerated'by Aot 30 of- 1914, the Workmen's Compensation Aot, and- therefore, a oárriage-driver who is injured while driving for hie employer has no recourse for compensation against him under the--act. * .

And in the body of the opinion the Court goes on to State:

"Where the'statute is confined to hazardous employments, tto^employment' oan be-trested as suoh,„. unless it is, by a fai* ^Sap^t^'Pf the'aqtia:dseS*'red-so to be.» .

Citing numerous .authorities.

And the Court goes on further:

"The express mention of a number o? occupations as "Jia.zar&ous" necessarily excludes those not mentioned."

Quoting num-.reus authorities.

And further quoting fiom th--t opinion:

"Keither oen the plaintiff find relief in 3 or 4 of Section 1 of the Act which rst.de as follows:
"3 If there he or arise any h.-zr-rdcus trade, business or occupation or work other then these herein?hove emmer'-'tsd, it shall oome und“r the pj-'ovieions of this. Act. The question of whether or not e. trade, business, or' occupation not named is hazardous may be determined by agreement between the emnlover and employee, or by submission at the Ínstenos of either employer or employee to the Judge of ths Court which shall have jurisdiction over the employer in a. civil oe.se. The decision of the Court shall not be retroactive in its effect."
"4. An employer and any employee in a trade, business or oooupation not specified in paragraph of this Section, and .any one engaged in a trade, business or occupation .that may not be determined to be hazardous under the operation of paragraph 3 of this Section, may, prior to the accident, voluntarily contract in writing to oome under the benefit s.nd protection of the provisions of this sot with the same force and sffeot.as though 'they had been specifioally included instead of omitted."

The plaintiff did not allege that', under 3; he had agreed with the defendants, or that either he or hie employer had submitted, at any time, to any-competent judge, the question of whether or nc+- his occupation '.vas hazardous.. The learned judge of the Distriof Court was of opinion that thi's agreement s.nd this submission must take place prior to the accident. He 3S.id:

"That-the agreement must "be effected prior to the accident 'or-injury for which compensation is sought is plainly required by Section 3. And' that the' submission to the Cc-urt must also-proceed the accident results ols-rly from the provision that .the'.deoisioh'of. .the Court shall not be retroactive. This ms-°ns vtli'a-t. the'.Court .'a -judgment .3.3 to whether or not the contract comes ^'ith.iq -the-provisione of the act affeota the relations of the . parales' in ,the future, and doje-.nct determine what their relation were, in the-'past."

This point was also decided in the same sense by us in the case, already quoted of Dejan vs. Ujffy, and a writ of review-denied.

Hor doés the plaintiff allege th-;-t v.t any tivtó he lua contreoted with his employer "to come under the benefit end protection" of the-Act of 1914".

Cinder the authorities above quoted we construe that s. blge-r manufacturing company worked entirely by hand is not a hazardous occupation under the terms of the Workmen's Compensation Act, therefore plaintiff cannot recover under this act.

For the reasons assigned, it is ordered, .--.djudged and decreed that plaintiff's suit be dismissed and the judgment of the lower Court reversed.

-Judgment reversed and plaintiff's action dismissed-  