Plaintiff filed this action in tort for damages which he sustained resulting from an accident which occurred on a drilling rig owned and operated by J & B Drilling Co., Inc. Made defendants were J & B Drilling Co., Inc. (hereinafter referred to as J & B), and its insurer, Travelers Insurance Company.
After a lengthy trial, the trial court held that plaintiff's sole remedy was under the Workmen's Compensation Act of this State, and accordingly dismissed his suit. This appeal followed.
In his petition, plaintiff alleged that on December 2, 1960, he was working for Helen Brown as a machinist; that several days prior to December 2, 1960, J & B had plaintiff's employer repair an air compressor used on a drilling rig owned by it; that on the above date plaintiff was sent by his employer, together with another employee, to an oil rig owned by J & B for the purpose of checking said air compressor; that the compressor was delivered to the well site and was installed by employees of J & B. After said installation, plaintiff climbed upon said air compressor to check the unload valve; that while plaintiff was checking the compressor, it exploded, causing him severe injuries. Plaintiff invoked the doctrine of res ipsa loquitur, and pleaded, alternatively, that if the doctrine was not applicable, the employees of J & B were negligent, which negligence consisted of:
Defendants filed an answer alleging that any rights which plaintiff may have are exclusively under the provisions of the Workmen's Compensation Act for the reason that the work done at the time of the accident was part of the trade, business and occupation of J & B. Defendants alleged alternatively that if the court should find that the proximate cause of the accident was the negligence of the employees of J & B, then plaintiff was contributorily negligent in the following respects:
1. He failed to keep a proper lookout;
Defendants also urged that plaintiff assumed the risk of his employment. Defendants
Defendants filed a third-party petition against Brown. No trial was had on the third-party petition. The court tried only the principal demand.
The compensation carrier of Brown intervened, praying that it be allowed to recover for any compensation and medical paid or which might be paid in the future on behalf of plaintiff.
The air compressor which exploded in the instant case was manufactured by Westinghouse Electric Company. It had been sent by J & B to Brown on two (2) previous occasions for repairs. On the third occasion the compressor was sent to Brown, no repairs were made but the compressor was allowed to run for several hours. The shop foreman at Brown's, being satisfied that the compressor was functioning properly, sent the compressor to the well site. The compressor was delivered to the employees of J & B. Plaintiff also accompanied the truck driver who delivered the compressor. He was instructed by the shop foreman for Brown to check said compressor at the well site, particularly the lines and other attachments to the rig. After the compressor was installed on the rig by employees of J & B, plaintiff climbed on the compressor and instructed an employee of J & B to commence running the compressor at a slow speed. Shortly thereafter plaintiff signaled the driller to increase the speed to the normal rpm (revolutions per minute). The driller complied with plaintiff's request, and an explosion occurred. The head of the high pressure cylinder of the compressor was blow off, causing plaintiff the injuries for which he is suing.
The question for decision is whether, under the facts of this case, the action is one arising in tort or whether it comes under the workmen's compensation statute of this State.
LSA-R.S. 23:1061 reads as follows:
Plaintiff's first specification of error is that the district court considered what other drilling contractors in the area did in the business with respect to repairing their equipment. In the case of Stansbury v. Magnolia Petroleum Company, (La.App., 1 Cir., 1957), 91 So.2d 917, the court said:
The finding by the trial court that J & B and others in the same trade or business in the area repaired their own equipment and maintain such tools as are necessary to repair compressors and other machinery and equipment employed by them on their drilling rigs, is substantiated by the testimony of Harold Dunham, an employee of J & B.
Plaintiff contends that the work done by Brown on the J & B compressor was a major overhaul, particularly since it involved machine work on a lathe. The district judge has answered this contention in his written reasons for judgment by saying:
In Thibodaux v. Sun Oil Company, 218 La. 453, 49 So.2d 852, the Supreme Court had under consideration an interpretation of LSA-R.S. 23:1061. The Court held that where a company was engaged in drilling oil wells and employed an independent contractor to work over an oil well, and later engaged another independent contractor to fish out lodged tools, the independent contractors were employed to do work which was a part of the "business, trade or occupation" of the company, and the remedy provided by the workmen's compensation act for injuries sustained by the employees of such independent contractors was exclusive.
This Court is of the opinion that the judgment of the district court holding that the only remedy afforded plaintiff under the facts of this case is to recover workmen's compensation payments under the provisions of LSA-R.S. 23:1061 is correct.
Having reached the above conclusions, there is no need to discuss the doctrine of res ipsa loquitur invoked by plaintiff, or the other defenses advanced by defendants.
Plaintiff next complains that the order of the judge, revoking a previous
For the reasons assigned, the judgment of the district court is affirmed. Plaintiff to pay the costs of this appeal.
On Application for Rehearing.
En Banc. Rehearing denied.