REGAN, Judge.
Plaintiff, William Olen Ball, an electrician, instituted this suit against the defendants, Kaiser Aluminum & Chemical Corporation and its liability insurer, The Firemen's Fund Indemnity Company, endeavoring to recover the sum of $370,775.20, representing injuries, loss of wages, medical expenses, and pain and suffering incurred as the result of an accident which occurred when plaintiff, an employee of Foothill Electric Corporation,
The defendants pleaded exceptions of no cause and no right of action, which were maintained for the reason that plaintiff's rights are covered exclusively by the Louisiana Workmen's Compensation Act.
From that judgment in favor of defendants, maintaining their exceptions of no right or cause of action and dismissing plaintiff's suit, he has prosecuted this appeal.
On the trial of the exceptions of no cause or right of action, defendants were permitted, over the objection of plaintiff, to introduce evidence into the record in the form of testimony by Claude Ford, Jr., a foreman in charge of rectifier operations for the defendant, tending to show that it employed electricians who on occasion performed the same kind of work that plaintiff was engaged in when the accident occurred. Plaintiff on appeal insists that the admission by the lower court of such evidence was erroneous.
We pretermit a determination of whether the trial court was in error in permitting the introduction of this evidence in connection with the exception of no cause or right of action pleaded by the defendant since no useful purpose would be served thereby in view of the result we have agreed should be reached herein.
The facts revealed by the petition and by the evidence adduced in connection with the exceptions of no cause or right of action disclose that the defendant's Kaiser Aluminum & Chemical Corporation's, principal business at its plant in Chalmette, Louisiana, is the production of aluminum; that in the course of producing aluminum, it manufactures and uses large amounts of electrical power but that it does not sell or furnish electricity to others; that the defendant has no subsidiary; and that Kaiser Engineers, the principal contractor employed to build the plant, is engaged in the construction of dams and plants and the performance of large construction contracts all over the world. The work in which the plaintiff was engaged at the time of the accident was
The electrical work in connection with the new construction of the plant had been subcontracted by Kaiser Engineers to plaintiff's employer, the Foothill Electrical Corporation. The particular work that plaintiff was engaged in when the accident occurred was changing the connections and lighting on certain transformers that Foothill Electrical Corporation was installing in the plant.
Defendant at the time that the accident occurred employed about 14 electricians, many, or all of whom, were capable of performing and sometimes did perform work of this type, that is, changing the connections and lighting installations on transformers that had already been installed and were in use in the plant. The defendant does not erect or construct aluminum plants itself.
The defendants contend that their exceptions of no cause or right of action were properly maintained by the lower court since the electrical work which was being done by the plaintiff, an electrician, when injured was part of the business, trade, or occupation of the defendant, Kaiser Aluminum, which cannot operate without electricity and which manufactures it for its own use. Therefore the exclusive remedy of the plaintiff against the defendant is in conformity with the applicable spection of the Louisiana Workmen's Compensation Act.
Plaintiff, on the other hand, insists that if the work plaintiff was performing was for the defendant then compensation coverage could be urged, but the work plaintiff was performing was not maintenance work, but involved installing new electrical equipment for his employer, the Foothill Electrical Corporation, and therefore plaintiff is permitted by virtue of the statute and the jurisprudence interpretative thereof to maintain an action in tort against the defendant.
The only question posed for our consideration by this appeal from the judgment maintaining the exceptions of no cause or right of action is whether plaintiff, as an employee of the subcontractor, Foothill Electrical Corporation, has an action in tort against the defendant and its insurer.
In the case of Horrell v. Gulf & Valley Cotton Oil Co.,
Counsel for the defendant has insisted both in brief and in oral argument before this court that the jurisprudence since the Horrell case has modified, at least to some extent, the rationale thereof. We believe that a careful analysis of the jurisprudence hereinafter referred to will reveal that this has not occurred.
In several cases the nature or type of work in which the principal is engaged is such that it is difficult for any contractor to assist therein without being engaged in the same work of the principal. The classic example thereof is when an oil company is endeavoring to contract for the drilling of its wells. The drilling of the well is such an integral part of the principal's business that it would subvert the whole intent of the compensation act to say liability could be escaped by contracting the work to others.
The manufacture of aluminum is not Foothill Electric Corporation's business. Obviously, in the course of their respective businesses these companies certainly have many employees performing the same or similar functions. But the mere existence of this fact does not serve to make their work part of the other's trade, business, or occupation.
The jurisprudence as it has developed since the Horrell case reveals that there possibly exists what counsel has referred to as a "twilight zone" (which was also recognized by Judge Janvier, who authored the opinion in the Horrell case) where it is sometimes difficult to distinguish between an independent contractor and an employer on the basis of application of the trade, business, or occupation rule.
In these cases the court must decide whether the work performed is that which is customarily performed by the employer or whether it is specialized work usually given to independent contractors as a practice or custom in the trade or business.
We are of the opinion that the rationale of the jurisprudence is clear to the effect that unless the erection of buildings is the trade, business, or occupation of the principal or an integral part thereof, new construction such as occurred herein may be contracted to others without incurring liability for compensation.
We therefore conclude that plaintiff had the legal right to institute a suit against the defendant herein.
For the reasons assigned, the judgment appealed from is annulled, avoided and reversed, and the exceptions of no cause or right of action are overruled, and the cause is remanded to the Twenty-fifth Judicial District Court for the Parish of St. Bernard for further proceedings consistent with the views herein expressed and according to law.
Reversed and remanded.
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