#### DE LONY v. LANE et al.

No. 4881.

Court of Appeal of Louisiana. Second Circuit.

June 29, 1934.

Phanor Breazeale and Blount B. Breazeale, Jr., both of Natchitoches, for appellánt

Richard B. Williams, of Natchitoches, for appellee.

TALIAFERRO, Judge.

Plaintiff seeks to hold defendants, O. W. Lane and D. H. Waller, the owner and overseer, respectively, of Halifax plantation in Natchitoches parish, La., responsible to him for workmen’s compensation alleged to be due him for injuries received while performing the duties of bricklayer on the plantation. He alleges that he was engaged in a hazardous occupation, but he does not allege that defendant’s occupation or business was hazardous. It is also alleged that while performing the duties he was engaged by said overseer to perform, a splinter was driven into the flesh between the thumb and forefinger of his right hand from which pain and inflammation resulted, finally causing temporary total disability on his part to perform work of any reasonable character. He sues for 65 per cent, of his weekly wages for 20 weeks and for an amount expended for medical attention.

Defendants deny responsibility for compensation sued for. Waller avers that he merely acted as Lane’s representative by employing plaintiff to repair brick chimneys of buildings on the plantation, and was not his master in any respect.

The case was tried on the merits, resulting in a judgment for plaintiff and against Lane, from which Lane appealed.

In this court appellant filed an exception of no cause of action and no right of action, directed against plaintiff’s petition, the proceedings, and the entire record in the cáse. This exception is obviously well founded, and will be sustained. We find it unnecessary .to consider the merits of the case.

Only those workmen who are injured while performing services arising out of and incidental to their employment in the course of the master’s hazardous trade, business, or occupation, are entitled to recover the compensation vouchsafed to them by the law. There are many trades, businesses, and occupations that are not hazardous per se or declared so by law. Paragraph (a), subsection 2 of section 1 of the Workmen’s Compensation Law (Act No. 20 of 1914). Nowhere do we find that the operation of a plantation or conducting a farm is declared hazardous. In Thompson v. J. B. Levert Land Co., 2 La. App. 159, it was specifically held that such businesses were not hazardous. We adopt that ruling on the question. It is the nature of the trade, business, and occupation of the employer or master, and not the particular duty or service of the employee or servant, that determines the right, or lack of right, to compensation when injury befalls the employee. Subsection 2 of section 1, Workmen’s Compensation Law. Williams v. O. K. Construction Co. (La. App.) 151 So. 784.

This question was recently considered by us in Bradley v. Blakely, reported in 154 So. 415, wherein it was held that where pulpwood was incidentally sold from the farm by *477the owner, that as the farming activities themselves could not be classed as hazardous, under the statute, the incidental line of business could not be so classed.

For the reasons assigned, the exception of no cause and no right of action filed by appellant is sustained, and plaintiff’s suit is dismissed, and his demands rejected at his cost.