text:
    No. 2363
    Second Circuit Appeal
    ISABEL TRAVINO GASCA v. TEXAS PIPE LINE COMPANY
    (June 30, 1925, Opinion and Decree)
    (July 23, 1925, Rehearing Opinion and Decree.)
    (October 6, 1925, Writ of Certiorari to Supreme Court Refused.)

      (Syllabus by the Editor.)

    I. Louisiana Digest — Master and Servant— Par. 158.
    Where an employee who, at noon time, was served a meal at his work, and a few minutes before resuming actual labor on the pipe line was' killed by lightning while taking shelter under a tree; held, the accident arose out of and in the course of his employment as contemplated by Section 2 of Employers’ Liability Act No. 20 of 1914, as amended by Act No. 38 of 1918.
    ON APPLICATION FOR A REHEARING.
    2. Louisiana Digest — Master and Servant —Par. 1.58.
    Where a workman is struck by lightning while taking shelter under a tree during the lunch hour; there is a sufficient causal connection between the employment and the accident to allow compensation under the Workman’s Compensation Act No. 20 of 1914. The suspension of work in order to eat lunch did not constitute a break in the employment.
    (Section 1, subsection 2 of Act 20 of 1914. Editor’s note.)
    Appeal from the Second Judicial District Court of Louisiana, Parish of Claiborne, Hon. John S. Richardson, Judge.
    This is a suit brought by the wife of an employee killed by being struck by lightning. There was judgment for plaintiff. and defendant appealed.
    Judgment affirmed. Rehearing refused.
    E. E. Clack, Smitherman Tucker & Mason, of Shreveport, attorneys for plaintiff, appellee.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendant, appellant. '
   REYNOLDS, J.

This is a suit by Mrs. Isabel Travino Gasea as the widow and .for Andrique Gasea as the minor.child of Gil Gasea, deceased, for compensation under the Workmen’s Compensation Act for ’the death by lightning of Gil Gasea while ,in the employment of defendant in Clai- . borne parish, Louisiana.

Defendant denied liability.

The case was tried on an agreed statement of facts as follows:

“In this case it is agreed between counsel for plaintiff and counsel for defendant that the case be submitted on the petition of the plaintiff and the answer of the defendant and the exception of no cause of action pleaded on the following statements of facts, to-wit:
“That the Texas Pipe Line Company on the 31st day of July 1923, and before and after, engaged in laying a pipe line in Claiborne parish, Louisiana, and that the deceased, Gil Gasea, at said date and at the time of his death was employed by the said company as a laborer in laying said pipe 'line, his wages being $3.00 per day and his total weekly compensation being $18.00.
That the said Gil Gasea with his coworkers lived in a camp furnished them by the Texas Pipe Line Company approximately two miles from the place where the deceased was struck by lightning; that said Gil Gasea and his said co-workers were conveyed to and from the said camp to the place of employment where the accident in question happened by the said Texas Pipe Line Company; that meals were furnished by the said Texas Pipe Line Company to the said Gil Gasea and his said co-workers, said meals being brought from the camp to the place of employment and accident by the .said Texas Pipe Line Company in a wagon which was stopped some seventy-five yards from the spot where they were working and the employees were given the usual noon hour off for lunch.
“That on July 31, 1923, during the noon or rest hour between twelve and one o’clock after the said Gil Gasea and his co-workers had stepped, off a short distance from their work and had eaten their lunch and a short time before time for them to return to their work, a thunder storm and rain came up, and that the said Gil Gasea and two of his companions sought to take shelter from the rain under a tree near the spot where they were working; that there was no other shelter and that said free was the most convenient shelter from the rain available for them, and that while under said tree the said Gil Gasea and his two fellow-workmen were struck by lightning and were in stantly killed.
“That the defendant company did what it could to communicate with the rela tives of the deceased workmen and to comply with their requests as to dispo sition of the bodies, and that defendant had the body of the said Gil Gasea embalmed and shipped with an attendant to Dallas, Texas, at its own expense.
“It is agreed and admitted that plaintiff, Isabel Travino Gasea, is the surviving widow of the said Gil Gasea, deceased, and that she was living with him at the time of his' death; that Andrique Gasea, aged two years and two months, is the sole and only living child of the marriage of plaintiff with Gil Gasea, deceased; that at the time of his death the plaintiff was wholly dependent upon the said Gil Gasea, deceased, for support.”

On final trial there was judgment in favor of the plaintiff and defendant appeals.

OPINION

Judge John S. Richardson, who tried the case, gave the following well-considered reasons for the judgment rendered herein:

“This is a suit for compensation under the Workmen’s Compensation Act of this state, brought by the surviving widow and child of one Gil Gasea, killed by lightning while working for defendant in Claiborne parish, Louisiana.
“The facts are not disputed and the case is submitted to this court upon an agreed statement of facts.
“The circumstances under which Gasea was killed were about as follows:
“In the month of July, 1923, Gil Gasea, a Mexican, was employed by defendant to work on its pipe line being built through Claiborne parish, Louisiana. The company maintained a camp about five miles from the place of the accident for the benefit of Gil Gasea and his fellow-employees and meals were sent from the camp to the place of work.
“On.the particular day in question, lunch had been brought to Gil Gasea and his fellow employees by the company and distributed to them near his place of work. A few minutes prior -to resumption of actual labor on the pipe line a thunder storm and rain came up and Gasea and his fellow-workmen sought shelter under a tree in the vicinity. Lightning struck the'tree and killed Gasea and two others with him.
“Upon the refusal of the defendant to pay the widow and surviving child compensation for the death of their husband and father, as set forth in said act, this suit was brought.
“The defense to this action is that death by lightning, under the circumstances set forth above, is not such an injury arising out of and in the course of his employment as is contemplated by Section 2 of the Workmen’s Compensation Act of this state.
“Therefore, the matter to be determined by the court is whether the injury complained of was such an injury arising out of and in the course of his employment, as contemplated by Section 2 of the Workmen’s Compensation Act of the State of Louisiana, or whether the injury complained of was the act qf God.
“The phrase, ‘out of and in the course of his employment,’ which in itself appears to be clear enough, has given occasion in its interpretation to a great many decisions, both in this country and in England, for it occurs in the Workmen’s Compensation Act or statute of England, which is the prototype of our American statutes on the same subject, including Act 20 of 1914. The courts have had no trouble from the various decisions in agreeing that ‘out of’ does not mean the same thing as ‘in the course of,’ but means something more; that an injury may have been received ‘in the course of the employment’ and yet not ‘out of it.’ The words, ‘out of,’ point to the origin or cause of the accident; the words, ‘in the course of,’ to the time, place and circumstances under which the accident occurs. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as conveyed by the words, ‘out of,’ involves the idea that the accident is in some sense due to the employment. The courts have finally determined that each case must be determined from its own facts, that the question cannot be solved by phrases; illustrative cases, therefore, will best serve as a guide to what has been consid ered to be the intention of the statute
“In Lawyers’ Reports Annotated, 1916A, page 40, there are various English cases covering this principle of law, covering all points arising from ' the point being presented to the court in this matter. The report goes at length in giving various decisions. I will call attention to only a few, but refer to the entire citations as therein contained.
“In the case of Rowland vs. Wright, an English case, it was held that where a workman employed in a stable was bitten by the stable cat while eating his dinner, the court held that the injury was incidental to the employment.
“In the case of Morgan vs. Zenaida, 25 Times L. R. 446, the court held that an ordinary seaman who, while engaged in painting the sides of a vessel lying in a port of the Mexican, coast, was seized with sunstroke, is injured by accident arising out of his employment.
“In the case of Andrew vs. Failsworth Industrial Society, 2 K. B. 32, the court held that an injury to a bricklayer on a scaffolding twenty-five feet high by lightning may be said to be caused by an accident arising out of the employment.
“Taking these decisions together with many decisions referred to in the said Lawyers’ Reports Annotated, the court is of the opinion that from the English court the claims of the plaintiff in this case should be sustained.
“Now as to the jurisprudence of states other than Louisiana on questions of this nature:
“In the case of Nicholls vs. Indianapolis Abattoir Co., 92 Conn. 274, 102 Atl. 604, and other cases cited in 10 A. L. R. 1489, we find: ‘That an injury to an employee may be said to arise in the course of his employment when it occurs within the period of his employment at the place where he reasonably may be and while he is reasonably fulfilling the duties of his employment or is engaged in something incidental to it.’
“In * * * American Lawyer’s Reports the court says, in quoting from decisions therein stated, that ‘even though a workman was paid by the hour the intermission for 'dinner could be regarded. as part of the time allowed for some purpose ancillary to the work to be done; as an example, eating the necessary food; it would be taking a strained view to say that the pause in the middle of the work for dinner was a break in the employment.”
“The Workmen’s Compensation Statutes being intended to take the burden of the waste of life and limb off the shoulders of workingmen and to place it upon those of their employers, to give such effect to the statutes they should be liberally interpreted.
“It has been held by practically every state which has adopted a Workmen’s Compensation Act that injury from heatstroke or sunstroke is an accident arising out of and in the course of the employment within the contemplation ,of the' Workmen’s Compensation statutes.
“13 A. L. R., p. 979:
“Injury from heatstroke or sunstroke is generally considered to be an injury by accident.
“State ex rel. Rau vs. District Court (1917), 138 Minn. 250; L. R. A. 1918F 918.
“Young vs. Western Furn. & Mfg. Co., 101 Neb. 696; L. R. A. 1918, B, 1001.
“Hernon vs. Holshan, 182 App. Div. 126; 169 N. Y. Supp. 705.
"Ismay I. & C. vs. Williamson, 1 B. W C. C. 232; 77 J. P. C. N. S. 107.
“99 L T. N. S. 595; 24 Times L. R. 881; 42 Ir. L. T. 213; 52 Sol. Jr. 713.
“Davis vs. Gillespie, 105 L. T. N. S. 494; 28 Times L. R. 6; 56 Sol. Jr. 11.
“Maskery vs. Lancashire Shipping Co., 7 B. W. C. C. 428; W. C. & Ins. Rep. 290.
13 A. L. R. 974.
“The rule is generally recognized that if an employee by reason of his duties is exposed to a special or peculiar danger from the elements — that is, one greater than other persons in the community — and an unexpected injury is sustained by reason of the elements, the injury constitutes an accident arising out of and in the course of the employment within the meaning of the Workmen’s Compensation Acts.
“Connecticut. — Larks vs. John Hancock Mut. L. Ins. Co. (1916), 90 Conn. 303; L. R. A. 1916E, 584; 97 Atl. 320. DeLuca vs. Parks Commissioners (1919), 94 Conn. 7; 107 At. 611.
“Illinois. — Central Ill. Pub. Serv. Co. vs. Industrial Comm., 291 Ill. 256; 126 N. E. 144 (1920).
“Indiana. — Re: Harraden (1917), 118 N. E. 142. Thier vs. Middlefield (1920), 178 N. W. 16.
“Massachusetts. — McMannaman’s casa (1916), 113 N. E. 287.
' “Minnesota. — State ex rel. People’s Coal and Ice Co. vs. Dist. Co. (1915), 153 N. W. 119.
' “New York. — Days vs. S. Trimmer & Sons (1916), 162 N. Y. Supp: 603. Clausen-Flannagan Brewery (1918, 171 N. Y. 522.
“Wisconsin. — Ellingson Lumber Co. vs. Industrial Comm. (1918), 169 N. W. 568.
“Pennsylvania. — Lane vs. Horn, etc. Baking Co., 104 Atl. 615.
“England. — Andrew vs. Failsworth Industrial Soc. (1904), 20 Times L. R. 429; Morgan vs. The Zenaida (1919), 25 Time D. R. 446.
“Canada. — Wiwwiczuk vs. McArthur (1916), 280 L. R. 279; 16 A. L. R. 1039.
“Matis vs. Schaeffer (1921), 270 Pa. 141; Miguez vs. Delcambre, 113 La. 64, 36 South. 888: Where an employee received an injury caused by a sunstroke that the Workmen’s Compensation -Act applied to the injuries.
“Murray vs. Greenings Cons. Co. (1921) 1917 App. Div. 903, 188 N. Y. Supp. 193 held that injuries caused by a sunstroke was an accident ‘arising out of’, and ‘in the course of’ his employment.
“Volume 15, Negligence and Compensation Cases Annotated, page 674: Heat stroke, sunstroke, lightning, frostbite or injury or death resulting from exposure is accident under Compensation Acts.
“State ex rel. Va. & Rainey Lake Co. vs. Dist. Ct. St. Louis Co., 164 N. W. 585.
“Day vs. Trimmer & Sons, 162 N. Y. Supp. 603.
“Griffith vs. Cole Bros, et al., Iowa, 165 N. W. 577.
Vol. 17, Neg. and Compensation Cases Annotated, 998: Heat, sunstroke or injury or death resulting from exposure is accident under Compensation Acts.
“Walsh vs. River Spinning Co., Rhode Island, 103 Atl. 1025.
"Lane vs. Horn Baking Co., Pa., 104 Atl. 615.
Pack vs. Prudential Casualty Co., 170 Ky. 47; L. R. A. 1916 E. 592.
“R. C. L., Vol. 28, page 795.
“ ‘According to the weight of authority compensation should be allowed where it is shown that incapacity or death has resulted from sunstroke or heatstroke.’
“State vs. Ramsey, County, (Minn.), 164 N. W. 916; L. R. A. 1918F 118.
“Notes: L. R. A. 1916A 291; L. R. A. 1918F 937; L. R. A. 1918F 872; 15 Ann. Cases 886.”

In this case the employee was a bricklayer paid by the hour who was at liberty to remain upon the premises to eat dinner or not as he' saw fit. He sat down during the noon hour in- the shade of the wall which he was building and while there was seriously injured by a wall falling on him.

The case at bar is specially applicable to the one just quoted. The party killed by lightning was employed by defendant on its pipe line, at noon time was served at his work, and a few minutes before resuming actual labor on the pipe line a thunder storm and rain came up and Gasea and his fellow-employees with him sought shelter under a tree in the vicinity; lightning struck the tree and killed Gasea and' two of his fellow-workmen with him. At the time of the accident the said’ Gasea was in the course of his employment at the place where he reasonably would be, and where he was reasonably fulfilling the duties of his employment and was engaged in something incidental to it.

In the case of Thomas vs. Proctor & which lunch she ate in the factory, was Gamble Company, 104 Kansas * * *, a girl was injured during the lunch hour injured while playing on a truck. This was held to be in the course of employment. The following cases are in a direct line with the above:

Racine Rubber Co. vs. Industrial Comm., 165 Wis. 600; 6 Am. Law Rep. 1151;

Donlen vs. Kippa Bay Brewing Co., 179 N. Y. Supp. 95; 285 Ill. 372;

Haller vs. Lansing, 195 Mich. 753.

The Louisiana decisions and jurisprudence is quite in line with the - jurisprudence of other states and England. However, on the identical question at. issue, that, is, injury resulting in death by lightning, same has not been definitely determined.

In the case of Meyers vs. L. R. & N. R. R. Co., 140 La. 938, 74 South. 256, it held: “Where an employee in going from his work to his lodging-house on the premises where he works, he is within the meaning of Paragraph 2 of Section 1 of the Employers’ Liability Act performing services arising out of and incidental to his employment in the course of his employer’s business, trade or occupation.”

I think the reference above made, together with discussions of the principles of law, fully explain the meaning of the section as to accidents arising out of and in the course of employment as contemplated by Section 2 of the Workmen’s Compensation Act of this state.

The next question is whether the injury by lightning arises out of or in the course of or incidental to employment, and whether damages can be assessed for injuries resulting from lightning when an employee is working in the course of employment.

Section 38 of the Act defines the word, “accident.” It says “the word, ‘accident, as used in this act shall, unless a different meaning is clearly indicated by the context, ■ be construed to mean an unexpected or unforeseen event, happening suddenly or violently, with or without human fault, and producing at the time objective symptoms of an injury.”

From this definition it is clear that the lawmakers intended to include with the term, “accident,” personal injuries produced by outside forces of nature) such as wind and lightning, for it says, “with or without human fault.”

The Supreme Court of this state, so far as the court can ascertain, has not- passed-directly upon a compensation case involving the question of whether or not an injury received hy an employee in the course of his employment from a bolt of lightning is an injury arising out of his employment. ' The only case found by the court covering injury by lightning is in the case of Arthur vs. Alexandria Lumber Co., 143 La. 207, 78 South. 469. In this case the court says that the employee who was injured had taken refuge in a frame building on defendant’s premises during a rain. While the employee was in the building some wires ' strung near to or in the building attracted a flash of lightning and killed him.

The court is impressed that, under our statute, the law as applied to accidental injuries caused by lightning is in no wise different from the law as applied to accidental 'injuries caused by other forces of nature. Lightning is a mysterious force and no one can fortell where, when or what it will strike. The same is true of wind and other forces.

Prom the various decisions of England, of the different states of the Union, and the Meyér case in the state of Louisiana, the court is driven to the conclusion based entirely upon the jurisprudence as above indicated and not in any way coming to a conclusion based upon equity, but solely upon questions of law and fhe jurisprudence as outlined, that the basis upon which compensation is claimed where the injury was caused by lightning where the employee was seeking shelter from the elements while in the course of employment is that it is not only the privilege but the duty of an employee to seek shelter, from the elements in that he might be able to continue his work and not endanger his health and disrupt his employment due to exposure.

I think that the Workmen’s Compensation Act .should be .liberally construed so as to effectuate its purpose; that it should have a liberal construction in favor of the employee. The court cannot see how from the jurisprudence as discussed it can be said that Gasea suffered an injury that did not arise out of his employment.

He was paid by the day, furnished board and lodging, and that furnished to him only by defendant; his condition was 'that he was under the supervision of the defendant during the whole day, set apart for work; he was either in the actual performance of his work or was on the premises furnished by the employer for his rest. His meals were brought to him from the camp and furnished by the employer. He was just as much in the course of his employment when eating lunch as he was when actually engaged working on the pipe line. It was his duty to seek shelter under the tree, - and while so doing was struck with lightning, and is therefore under the jurisprudence established entitled tq damages.

The defendant cites to the court the general rules governing liability of the employer under the Workmen’s Compensation Acts stated in 28 Ruling Case Law 306, together with other citations on the subject. These decisions and the argument of counsel is good, based on his contention and which may be the equitable view of the case; but from the weight of the jurisprudence heretofore quoted, the weight of the law seems to be .to the contrary.

Viewing the matter from another point, that is, that the act of lightning is not controlled by man but by the' act of. God, this is correct; but where the employment is such as would subject the employee to greater risk of being struck by lightning than if he was in other employment, then the accident would result in the course of employment.

The court has tried to review this matter as closely as possible with the light before it, and not having a decision of the court of the State of Louisiana directly in point has resorted to the jurisprudence of other states and. of Ehgland, and after considering the matter fully, it has come to the conclusion that the law is in favor of- the plaintiffs in this case. The wording of the statute as interpreted in the various decisions and the facts admitted in this case entitled the plaintiff to judgment. No one could have foreseen, and doubtless no one expected, that a bolt of lightning would strike the tree where they were working or dear where they were working, in the course of employment, and destroy his life; but since the event has happened it ap-. pears to me that the accident had its origin in the risk connected with the employment of Gil Gasea and flowed from that source as a rational consequence. There will, therefore, be judgment in favor of the plaintiff, Isabel Travina Gasea and against the defendant, Texas Pipe Line Company, for the full sum of two thousand four hundred and thirty and no-hundredths dollars, payable at the rate of eight and ten-hundredths dollars per week for three hundred weeks beginning August 8, 1923, with legal interest on the past due installments from maturity until paid for the common . benefit of herself and her minor child, and that the defendant pay all costs of this suit.

Thus done, read and signed in open court on this, the 9th day of March, 1925.

(Signed) JOHN S. RICHARDSON, Judge.

In addition to the very able reasons assigned by our learned brother of the lower court for his' decision herein, we cite the case of Kate Box vs. Big Pine Lumber Company, Inc., No. 1674 on the docket of this court, the decision in which was rendered by Judge Robert Roberts, Jr.

Under the statement of facts there was no other shelter and the tree was the most convenient shelter from the rain available to the deceased and his .meals were sent to him by the defendant during the meal hour on or along or adjacent to the pipe line that he was helping to lay.

This condition caused the lightning, we think,.to be a fact incident to the employment of the deceased.

For the reasons assigned, it is ordered, adjudged and decreed 'that th.e judgment of the lower court be affirmed.

ODOM, J., dissents.

ON APPLICATION FOR REHEARING.

CARVER, J.

In an able brief for rehearing, defendant’s counsel urge that this court as well as the District Court

“ignored the fundamental principle of workmen’s compensation that as a basis of liability there must be some causal relation between the employment and the accident, and that, adopting a loose dictum construing the statute as a kind of insurance, the court had gone beyond the limit of reason and construed the statute in this case not only as a species of particular insurance within the limitations of the statute but as a general accident and life insurance ;• the only relation between the death and the employment being that the deceased was on the payroll.”

I.

We do not mean to hold that the statute is a general accident and life insurance provision requiring no relation between the accident and the employment beyond the fact that the deceased was on the payroll. We think the death in this case compensable, though, because, as we appreciate the law and the facts, the conditions to which Gasca’s employment subjected him, increased the risk from lightning and, under the authorities, we think this a sufficient causal connection between the employment and the accident.

In counsel’s brief they say very little about lightning cases, but annexed to their brief is a carbon copy of the decision of the Court of Appeals of the state of New York in the case of McCarter vs. LaRock, 212 N. Y. App. Div. 843, 207 N. Y. S. 872.

This decision holds that an employee at work on a building being erected by his employer and injured by flying fragments of an exploding shell which had been preserved on the adjoining premises as a souvenior of the war was not entitled to compensation.

The court holds that there was nothing more in the case than the mere location of' the employee in the pathway of the accident which was entirely disconnected from his employment, and holds, further, that, in order to be compensable, there must be in addition to this some causal relation.

The decision was rendered by Chief Justice Hiscock and concurred in by three other justices; two others dissented and one was absent. Justice Hiscock is the same judge who rendered the decision in the Madura case, hereinafter mentioned, wherein all the justices concurred.

A careful examination of the decisions in the twelve ' lightning cases examined by us makes it apparent that notwithstanding the diversity of conclusions arrived at there is substantial agreement in nearly all the cases as to the proper governing principle.

Those cases are as follows:

Box vs. Pig Pine Lumber Co., Ltd., No. 1674 on the docket of this court.

Andrew vs. Fallsworth Indust. Soc., 2 K. B. 32, 6 W. C. C. 11;

Kelly vs. Kerry County Council, 1 B. W. C. C. 194, 42 Ir. L. T. 23;

State vs. Ramsey Co. Dist. Ct., 129 Minn. 502, 153 N. W. 119; L. R. A. 1916A 344;

Klawinski vs. L. S., etc., R. Co., 185 Mich. 643; 152 N. W. 213; L. R. A. 1916A 342;

Koenig vs. Indust. Comm., 159 Wisc. 646; 150 N. W. 996; L. R. A. 1916A 339;

DeLuca vs. Park Commrs., 94 Conn. 7, 107 Atl. 611;

State Road Commn. vs. Indust. Commn. (Utah), 190 Pac. 544;

Wiggins vs. Indust. Acci. Bd., 54 Mont. 935; 170 Pac. 9; L. R. A. 1918F 932;

Thier vs. Widdifield (M-ich.), 178 N. W. 16;

Griffith vs. Cole, 183 Iowa 415; 165 N. W. 577; L. R. A. 1918F 923;

Madura vs. City of New York, 238 N. Y. 214, 144 N. E. 505.

In the DeLuca, Madura and Box cases and in State vs. Ramsey County District Court, the persons killed were under trees; and in Andrew vs. Fallsworth, he was working on a scaffold twenty-three feet high.

In the Koenig case he was working on a dam.

In the Kelly case he was picking stones and clearing gutters.

In State Road Commn. vs. Indust. Commn. he had left the road where he had been working to go to a house for shelter and was killed before reaching there.

In the Wiggins case he was w’orking on a metal road grader.

In the Klawainski and Thier cases they were in. barns.

In the Griffith ease he was sitting in a tent.

In the three tree cases and the scaffold case it was held that the accidents arose put of the employment and compensation Was allowed, except in State Road Comm., vs. Industrial Comm., where the accident Was held not to arise out of the employment. but compensation allowed because the statute did not require that it should so arise.

In the Griffith case the ground of the decision was, in part, the theory that lightning was the act of God.

In the other cases where compensation .was disallowed, the ground of the decision was, w'e think, that the situations of the workmen did not, as a matter of fact, expose them to any special risk from lightning.

In' other words, in most if not all ■ the .cases the crucial question was one of fact. If in a particular case it was found that the situation of the workman because of the employment increased the risk from lightning, there was liability; if it did not, there was none.

In 'thé Madura case the decedent was working on a parkway when a thunder storm arose. Being directed by his foreman to remain until after the storm in order to perform various duties, he sought shelter under a tree, there being no other provision for shelter made by the employer, and while standing there he was struck by lightning and killed. The Industrial Board ’found that his death was the result of injuries- arising out of his employment, which finding the appellant urged was erroneous because the danger of being struck by lightning was common to everybody in that vicinity and therefore not a risk specially attributable to the employment of the decedent for which an awiard could be made. The Court of Appeals sustained ■the finding of the Industrial Board. The court says:

“The only question then is whether, as the result of his employment, which continued while he sought shelter, he was exposed to any unusual risk. Matter of Katz vs. A. Kadans & Co., 232 N. Y. 420; 134 N. E. 330; 23 A. L. R. 401.
“We think that, as the result of judicial knowledge, which may be taken of scientific facts, the Industrial Board was permitted, without expert evidence, to find as it did by implication, and that we are permitted to say that he was. It is a matter of widespread scientific belief and declaration that a wet tree is a ready conductor of a current of electricity, and that a person standing under such a tree is exposed to a degree of danger which does not confront one in the open spaces of a highway or field. Chiulla De Luca vs. Bd. Park Comm’rs of City of Hartford, 94 Conn. 7, 107 Atl. 611. This scientific belief •is so widespread that we think the,»Industrial Board had the right to take notice of it, without testimony, in deciding that this accident was the result of a special risk incidental to the employment of the decedent. Jackson vs. Wisconsin Tel. Co., 88 Wisc. 243; 60 N. W. 430; 26 L. R. A. 101; Star vs. South Bell Tel. Co., 156 N. C. 435, 72 S. E. 434. If we are correct in this, then certainly there was evidence to sustain the finding of the Industrial Board, assuming that we are permitted to consider that question.
“Accidents resulting from lightning have been the subject of conflicting decisions. But in the cases which have held that an award should not be made for death resulting from such a cause, there has been quite uniformly a finding of fact that there was not any unusual risk of such an accident incidental to the employment, and that therefore the accident could not be charged to the latter, or said to spring out of it. Kelly vs. C. C., 1 B. W. C. C. 194; Wiggins vs. Industrial Accident Bd., 54 Mont. 335, 170 Pac. 9; L. R. A. 1918F 932; Ann. Cas. 1918E 1164; Koenig vs. Industrial Commn., 1159 Wis. 646; 150 N. W. 996; L. R. A. 1916A 339; Klawinski vs. Lake Shore & M. S. Ry. Co., 185 Mich, 643; 152 N. W. 213; L. R. A. 1916A 342.
“On the other hand, it has been held in several cases, as is being held here, that there sprang from the employment in which the workman was engaged a special risk of being struck by lightning, and that, therefore, compensation should be awarded. Andrew vs. Failsworth Ind. Soc., Ltd., 6 W. C. C. 11; State ex rel. People’s Coal and Iron Co., District Court of Ramsey County, 129 Minn. 502; 153 N. W. 119; L. R. A. 1916A 344; Chiulla DeLuca vs. Bd. Park Com’rs, supra.”

In the DeLuca case, supra, the court said:

“It is clear that the compensation commissioner had the power to take notice of scientific authority and dicta in reaching the conclusion complained of.
“We no not decide that there'is greater danger under a tall tree in a thunder shower than in other places, but we have no hesitation in holding that the commissioner did not find this decisive fact with-out substantial evidence.
“Thus in Appleton’s American Encyclopedia, Yol. X, .p. 463, it is stated that: ‘Dangerous is it therefore to take shelter under a tree during a thunder gust.’
“In the last edition of the Americana (Vol. XII), under the title ‘Lightning,’ the writer says that: ‘Fatalities are everywhere increased by the tendency to seek .shelter from the rain when caught in a storm; and these isolated shelters, as trees, barns, monument buildings in public parks, etc., are among the most liable to be struck.’
“In the Encyclopedia Britannica, Vol. II, (11th Ed.), p. 869, par. 35, under the title, ‘Atmospheric Electricity,’ the writer says: ‘The fact that a considerable number of people sheltering under trees are killed by lightning is generally accepted as convincing proof of the unwisdom of the proceeding. When there is an option between a tree and an adjacent house, the latter is doubtless the safer choice.’
“See, also, Paul Burt’s ‘First Steps in Scientific Knowledge,’ p. 52.
“In Harper’s Magazine, Vol. XLI, p. 33, a tall tree is portrayed with electricity flowing from the highest point of the tree to the ground. This illustration is designated, ‘The Natural Lightning Rod.’ This illustration appears in an article entitled, ‘The Mysteries of a Thunder Shower,’ which was written by Jacob Abbott, a famous juvenile writer and educator.
“To repeat: The compensation commissioner-has found that: ‘There is clear preponderance of scientific authority to the effect that there is greater danger under a tree or in the open than when protected in a house.’
“This finding should stand, as it is not contrary to reason and is consistent with the evidence.
“The remaining reasons of appeal present the claim that, as a matter of law, under no circumstances can death by lightning constitute a personal injury for which an allowance can be made under our Compensation Act.
“If the place under the tree were the more dangerous, the fact that the deceased chose it as a place of refuge from the storm' and that he was injured at this place does not prevent recovery. The act of seeking and obtaining shelter arose out of, that is, was within, the scope or sphere of his employment and was a necessary adjunct and an incident to his engaging in and continuing such employment. Obtaining shelter from a violent storm in order that he might be able to resume work when the storm was over was not only necessary to the preservation of the ■ deceased’s health, and perhaps his life, but was incident to the deceased’s work, and was an act promoting the business of the master. L. R. A. 1916A, 348.

“See, also, Richards vs. Indianapolis Abattoir Co., 92 Conn. 277, 102 Atl. 605, where it is said that:

“ ‘The plaintiff “was injured while on duty in his working hours, when waiting for an opportunity to continue his service of employment. The accident occurred when the plaintiff was at a place where he might reasonably be. There was no turning aside upon his part, no attempt to serve ends of his own”.’ ”

In the Wiggins case, supra, where the decedent was working on a metal road grader, compensation was claimed on the ground that the metal road grader attracted lightning, the court holding that it had a right to take judicial notice of the well-known laws of nature and a recognized scientific fact, quoted extensively from an article by one H. H. Cochrane, an electrical engineer, arriving at the conclusion that scientific authority did not support the theory that the presence of the metal road grader could have had any perceptible influence on the lightning and did not tend to increase the hazard of the decedent’s employment; and for this reason it held that the death did not result from an accident arising out of the employment. It states, though:

“Because projecting objects may occasion tbe atmospheric breakdown, trees, tall buildings and other projecting objects are more likely to be struck by lightning than other less prominent objects, and it is upon this theory, we think, that compensation for injury from lightning was allowed in State ex rel. People’s Coal and Ice Co. vs. District Ct., 129 Mich. 502, and in Andrew vs. Failsworth Industrial Soc. (1904), 2 K. B. 32, and denied in Klawinski vs. Lake Shore M. & S. R. Co., 185 Mich. 643, in Koenig vs. Industrial Commission, 159 Wisc. 646, and in Kelly vs. Kerry County Council, 42 Ir. L. T. 23.”

In the Box case, the ground of the decision was that the risk to a workman of injury from a bolt of lightning which struck a tree that he was engaged in sawing down was greater than to one not so engaged.

Inasmuch as this view has regard not to the increase of danger from lightning generally but only to its increase from the particular bolt dealt with, the ground is somewhat different from that made the basis of the decisions awarding compensation in the other cases.

We. prefer to place our decision on the ground that the presence of Gasea under the tree increased the danger of his being struck by lightning because the tree was more apt to be struck rather than that his presence increased the danger of his being injured by the 'particular bolt which did strike the tree.

II.

The considerations that differentiate the lightning cases where compensation was allowed from those where it was disallowed, also differentiate, we think, the McCarter case from the former. The fragments from an exploding shell are not more likely to go in one direction than another or to strike one object than another.

In that case, therefore, there was no connection whatever between the employment and the accident other than the bare fact that the party injured was located where he was.

Lightning, though, has more regular habits than have the. flying fragments of an exploding shell, and where the situation of a workman because of his employment is such as to increase the danger of being struck by lightning, this is sufficient causal connection between the employment and the accident to justify holding that the accident arose out of the employment.

III.

Defendant’s counsel seek to differentiate this case from the Box and Madura cases by the circumstance that in the Box case the decedent was actually at work and in the Madura case he had been directed by his foreman to stay in the park and get under a tree; wlrereas in the instant case the accident happened during the lunch hour when Gasea was free to go where he chose.

We do not think this consideration controls. It is admitted in the case that the accident occurred a short time before or júst as he was about to return to work, that the tree under which he sought shelter was near the spot where he was working, that this tree was the most convenient shelter available, and that there was no other shelter.

We think that Gasca’s peeking shelter was incidental to his employment: If his duty to his employer did not require him to do this it at least permitted him to do it, and his doing it did not -constitute a break in the employment; nor do we think that the suspension of work in order to' eat lunch constituted a break in the employment.

We find in “Workmen’s Compensation .Acts,” a Corpus Juris treatise by Donald J. Kiser, published by the American Law Book Company and intended to constitute a part of Corpus Juris, on page 83 the law .laid down as follows:

“Where the employee is injured while doing something not strictly within his obligatory duty, but which is incidental thereto, he may be entitled to compensation. Of this character are injuries sustained while the employee is preparing to begin work after arriving at the employer’s premises, or preparing to leave when the work is over, or is going to punch a time clock, or to get his pay, or is going to lunch, or during the lunch period, or while otherwise temporarily absent from his work by permission.”

Rehearing refused.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    No. 2388
    Second Circuit Appeal
    JESSE P. BRYAN v. LOUISIANA OIL REFINING CORPORATION
    (June 30, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— Par. 160 (i).
    Where, in an action under Employers’ Liability Act No. 20 of 1914, plaintiff executes judgment granting him compensation for fifty-two weeks, he does not thereby acquiesce in that portion of the judgment which was against him.
    2. Louisiana digest — Master and Servant— Par. 160 (j).
    In a suit for compensation under Employers’ Liability Act No. 20 of 1914 the evidence shows that the fall and injury caused soreness and pain but not a weak hip which plaintiff had for a long time previous to the accident, a judgment for temporary disability is correct.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    This is a suit for compensation under Employers’ Liability Act No. 20 of 1914.
    There was judgment for plaintiff and plaintiff appealed.
    Judgment affirmed.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellant.
    Barnette & Roberts, Of Shreveport, attorneys 'for defendant, appellee.
   ODOM, Judge.

Plaintiff was employed by defendant as a laborer on an oil well at a daily wage of $5.40 and worked seven days a week. On March 27, 1924, while at work, he fell and received an injury to his back and right hip which, he claims, has permanently partially disabled him to do work of any reasonable character, and he asks compensation for three hundred weeks.

Defendant answered denying, generally, the allegations of the petition and especially alleged that it had paid plaintiff all the compensation due him and that the injury plaintiff complained of was trivial and that he had fully recovered and is now able to work as before the injury.

There was judgment in the District Court awarding plaintiff compensation at $18.00 per week for fifty-two weeks, dating from the date of his injury. From this judgment plaintiff appealed.

ON MOTION TO DISMISS APPEAL

Plaintiff brought this case up on appeal and while tbe appeal ■ was pending in this court, he had execution issued on the judgment which he obtained in the District Court and collected the amount o£ the judgment.

In this court defendant filed a motion to dismiss the appeal on the ground of acquiescence.

The motion to dismiss must be overruled.

Plaintiff sued for compensation for 300 weeks and was awarded compensation for only 52 weeks.

Defendant did not appeal.

Plaintiff executed the judgment which granted him compensation for 52 weeks. That was an acquiescence in the judgment to that extent only, and in executing that part of the judgment which was in his favor he did not acquiesce in that portion .of it which was against him.

The judgment was in his favor for 52 weeks and against him for 248'weeks. He appealed only from that part of the judgment which was against him.

See: Kittridge vs. Grau, 158 La. 154, 103 South. 723.

The motion to dismiss the appeal is Overruled.

ON THE MERITS

Plaintiff was injured on March 27, 1924, and on trial of the case he was awarded compensation for 52 weeks, evidently because the court considered that he had practically or entirely recovered from his injury at the time of the trial, the judgment being signed February 25, 1925, almost a year from the date' of the injury.

It is not disputed that plaintiff received an injury to his hip and back by falling on a piece of iron piping; and, of course, if the testimony shows that this injury caused disability to labor, which disability still exists, he is entitled to compensation during his disability, not exceeding the term fixed in the statute.

But our conclusion is that the testimony shows that whatever disability may have been caused by,the injury, of which he: complains- has ceased and that he is entitled to no further compensation.

It seems that plaintiff was on top of an oil tank when he slipped an'd fell, striking his right hip on an iron pipe. He claims that his hip was fractured and that he has not been able to do any work since.

According to his testimony he got down off the tank after about thirty minutes, “cut the fire down” and then walked about two blocks. He went to a physician, who treated him, and he finally came to Shreveport to Doctor Slicer, a physician employed by the defendant company, who treated him for some time.

Plaintiff says that he does not rest at night, still has pains and that he cannot work; that his muscles are sore and hurt at times; and he says the pains are deep; “seems like it is right in the bone.”

Doctor Adair made an X-ray of the plaintiff’s injured hip on May 24, 1924, some two months after the accident, and he testified:

“They show the destruction of the shenton line indicating a probable fracture of the neck of the right femur with complete absorption ■ of the neck, shortening of the limb on that side.”

He says that this condition was caused by a severe injury to the hip, or that may be congenital; but he says the injury that caused that condition occurred years ago — at least a year ago — and he gave it as his opinion that the patient could hot 'have walked if he had received the injury when he fell.

He explained that there has been a complete absorption of the neck of the femur and gives it as his opinion that the patient’s present trouble was not brought about by the condition of his hip.

Doctor J. E. Slicer, the company’s physician., attended the plaintiff from April 19, 1924, to May 9, 1924, but, he says, that he did not treat him for any hip trouble -but for prostritis. He says that plaintiff complained of his back and said that his pains were caused by the fall, but gives it as his opinion that the present trouble comes from a diseased and enlarged prostate for which he treated him some time.. He says that he made a laboratory examination and found evidences of gonorrhea. Both other physicians say ' that from family history they discovered no disease.

Doctor Slicer gives it as his opinion that if pla-intiff had been injured from the fall, as he said he was, and if,he had a dislocated hip, as he said he had, he could not have walked.

Doctor G-. H. Cassity was called as a witness by plaintiff and testified that plaintiff’s right thigh is not normal; that the neck of the femur is gone; that the right thigh is a quarter of an inch smaller than the other; that there is a straining of the muscles and ligaments about the right thigh and lower spine.

He was asked by the court if the fall would account for his whole trouble, and he said:

“No, I do not think so.”

He agrees with Doctors Adair and Slicer that the absorption of the neck of the femur could not have taken place since the accident, and he was’asked:

“You think that this was perhaps an organic condition?”

And he said:

“I -think either congenita] condition or else a fractured or diseased condition from early childhood.”
“Q.- Some previous time?
“A. Yes, sir, might have been during birth, or a fracture early in life that would - account for that condition.”

He says the fall caused the muscles to be strained; that the plaintiff has a weak hip, and has had for a long time, and he thinks will always have it.

It is in evidence that plaintiff served as a soldier in the late war, and Doctor Cassity was asked if he could’ have served in that condition, and he says he could, but he thinks he must have limped a little always. •

There is no doubt but that 'the fall caused soreness and pain, but we are convinced that plaintiff’s main trouble was not caused by the fall. All the physicians are agreed on that point.

He probably has pains in his back. He says they are deep-seated and seem to be “right in the bone.”

According to the physicians, the fall of which the plaintiff complains could have caused soreness only to' the muscles; and according to plaintiff’s own testimony it seems that his pains are not purely muscular at this time. There is no doubt in our own mind but that plaintiff has long since recovered from the .injury which he received in March, 1924.

The lower court granted him compensation for 52 weeks, which he has collected, and there is nothing for this court to do but affirm the .judgment.

For the reasons assigned, it is ordered that the judgment of the lower court be affirmed, with costs.


author: ODOM, J. ODOM, J.

text:
    No. 2397
    Second Circuit Appeal
    W. REID WILLIAMS v. W. P. RAMSEY
    (June 6, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    I. Louisiana Digest — Master and Servant— Par. 160 (I).
    Under the Employers’ Liability Act No. 20 of 1914, where an injured employee failed to prove partial disability, although his leg was slightly injured, the judgment of the lower court granting small compensation and medical fees is affirmed.
    (See Section 8, Subsections 1 (c) and 5, of Act 20 of 1914. Editor’s note.)
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    This is a suit to recover compensation for an injured employee under the Employers’ Liability Act No. 20 of 1914.
    ’ There was judgment for plaintiff and plaintiff appealed.
    Judgment amended and affirmed.
    Long & Crow, attorneys for plaintiff, appellant;
    J. S. Atkinson, Alex F. Smith, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff was working for defendant as a millwright and was earn ing wages which averaged $35 per week

On the 7th day of October, 1924, he was walking a gang-plank which broke and caused him to fall.

In the fall he sustained an injury to his left leg between the ankle and knee which he described as follows: He says that the skin on the shin was split to the hone for a distance of about an inch and a half, and he says that it was so completely cut to the bone that he saw the bone in his leg. '

He complains that he has been perma nentiy partially disabled, and alleges -that he is now able to earn no more than $10 per week, and brings this suit to recover $18 per week for 300 weeks.

The defendant answered the suit. and admitted that on the occasion named the plaintiff did receive a slight injury to his leg which, defendant says, amounted to but little; and he denies that he owes plaintiff anything on account of said injury.

And he further sets up that plaintiff is not disabled on account of said injury.

The District Judge arwarded plaintiff compensation at $19.50 per week for 20 weeks, and an additional sum of $150 for medical fees.

From this judgment plaintiff appealed. The defendant did not appeal, nor has he answered the appeal or moved an amendment of the judgment.

OPINION

The defendant, in this court, suggested to the court that the plaintiff, since the appeal was perfected, has acquiesced in the judgment of the lower court by collecting the full amount of the judgment obtained, with costs, and that the case should be remanded to the lower court to take evidence on the question of acquiescence.

When this request was made in this court counsel for plaintiff admitted that he had collected the full amount of the judgment.

Whereupon counsel for defendant asked that the appeal be dismissed, because plaintiff had acquiesced in the judgment.

According to the view which we take of this case, it is not necessary for us to pass on the 'question whether the appeal should be dismissed.

We have carefully reviewed the testimony and have reached the conclusion that the judgment appealed from is correct and should therefore be affirmed.

Plaintiff alleged that he is partially disabled to do work of any reasonable char* acter and has asked the court to fix His compensation at $18 per week for 300 weeks, or not to exceed 300 weeks.

Under the .testimony in this c¿se the court could not fix compensation to be paid during disability as is provided under the Workmen’s Compensation Act, for the reason that the testimony fails to show that plaintiff was disabled by the accident which he sustained.

He was working as a millwright and had partially completed the work for which he was employed when he received the accident. He continued to work in the same capacity and at the same wage for a period of 60 days immediately following the date of the accident and did not cease to work until his work was cdmpléted. This is according to his own testimony. He further testified that when that particular work was completed the defendant had nothing further for him to do and. that he obtained work as a carpenter with the School Board of Caddo Parish and that he continued to work for the School Board and received as com pensation 66 2-3 cents an hour for some jobs and 75 cents an hour for other jobs He states, however, that he did not work continuously; that he had to lay off at times on account of the injured leg. How ever, he says that he was able to do work and did render satisfactory. services not only to the defendant for 60 days imme diately following the accident but also to the School Board practically up to the time of the trial of this case. While he states that he did not work continuously on account of the injury to Sis leg, which, he says, pains him considerably, yet the superintendent of construction for th Caddo Parish School Board says that so far as he knows the plaintiff worked as a carpenter all the time when they had ’ work for him to do. He states, however, that he did not have work to occupy his men during all of their time.

In order for the court to award compensation to plaintiff during his disability, the court would necessarily have to find that plaintiff was disabled to some extent. The testimony in this case does not show that plaintiff is disabled. The plaintiff himself testifies that his leg pains him considerably and especially at night and that he cannot stand on it for a great length of time. The testimony developed the fact that he had received another injury to the same leg only a short time prior to the trial of this case, and it is difficult ‘ to tell whether his present suffering resulted from the first or from the second injury.

At the time he received the second injury he was not employed by defendant but was working as a carpenter for the Caddo Parish School Board.

Two radiologists made pictures of plaintiff’s leg, both of which show that there is no injury to the bone of plaintiff’s leg Others doctors testify that there was no injury to the bone' but that there was injury to the periosteum and that plainiff’s trouble now is what is called periostitis and that there is a congestion at the place of injury.

Doctor A. P. Crain testified that he had very recently examined the plaintiff’s leg and stated that tliere was nothing serious the matter with it and that if the plaintiff would rest for two months the trouble would entirely disappear. He furthermore stated that with a slight operation and with one month’s rest he would entirely recover. He says that plaintiff’s trouble amounts to no more than a sore leg which is very common and very easily cured.

The District Judge awarded plaintiff $19.50 per week for 20 weeks and also $150 for medical fees. We understand’ that the District Judge considered that it would take probably 20 weeks for plaintiff to recover and that the fee for the operation would probably be $150. For these reasons he awarded compensation as stated. We think the District Judge has done all for the plaintiff that the testimony warrants He could not grant him compensation for partial disability for the reason that the testimony does not show that plaintiff is partially disabled.

We think the plaintiff has gained every; advantage from this law suit which the present situation, as shown by the testi mony, warrants. Inasmuch, though, as the wound has not yet healed and it is a matter of doubt what the ultimate result of it will be, we think it proper to reserve to plaintiff the right to claim further compensation should the wound hereafter produce disability.

For the reasons assigned, it is ordered adjudged and decreed that the judgment appealed from be affirmed, with reservation to plaintiff to claim further compen sation should disability result from the wound complained of.

(ON APPLICATION FOR A PER CURIAM)

ODOM, J.

Counsel for plaintiff has filed an application in this case asking that the court add a per curiam to its judgment.

We think our opinion in the case is clear and will not be misunderstood and that plaintiff’s rights are fully protected.

For these reasons the plaintiff’s application is denied.


author: REYNOLDS, J.

text:
    No. 2391
    Second Circuit Appeal.
    LOUIS W. WYATT v. ALABAMA PETROLEUM CORPORATION, INC.
    (June 30, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant-Par. 158.
    Where injured employee, suing under Employers’ Liability Act No. 20 of 1914, had left the place at which he was at work and was on his way home when the accident occured; held, that accident did not occur while injured employee was working for defendant in the scope of his employment.
    (See Section 1, Subsection 2, of Act 20 of 1914. Editor’s note.)
    2. Louisiana Digest — Appeal—Par. 625.
    The judgment of the trial court on questions of fact being clearly correct' is • affirmed.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    This is a suit to recover compensation under Employers’ Liability Act No. 20 of 1914.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellant.
    ' E. W. and P. N. Browne, of Shreveport, attorneys for defendant, ¡appellee.
   REYNOLDS, J.

In this case Louis W. Wyatt sues to recover compensation under the Workmen’s Compensation Act at $18.00 per week during disability, not exceeding 400 weeks, and for like amount for not exceeding 100 weeks additional, and for $250.00 doctor’s bill, for an injury, consisting of a burn on the head,- face and arms and eye and ears as a result of a gas explosion on the 18th day of November, 1924, while in the course of his employment by defendant.

By amended petition plaintiff asks that he. be allowed compensation at the rate of $20.00 per week instead of $18.00. per week.

Defendant denied liability.

On February 12, 1925, the case was tried, and on March 12, 1925, the District Judge, ex proprio motu, ordered the case reopened.

On the second trial judgment was rendered in favor of defendant and plaintiff has appealed.

OPINION.

In this case the question presented for our determination is whether or not the accident causing the injuries complained of occurred while plaintiff was working for defendant in the scope of his employment.

The evidence shows that after the plaintiff had completed his day’s work and had been relieved from all responsibilities of his employment he left the place at which he was at work and went on his way home a half mile to a place near the pump at which the accident occurred.

The place where the accident' occurred was near a crossing over Doreheat Bayou.

As to whether or not plaintiff was still engaged in the course of his employment at the time of the accident.

W. M. Lambert, the superintendent under whom plaintiff was at work, testified (page 7 of the last testimony taken).

"Q. Now, at the time that he was injured was he upon the property where he had been employed?
“A. No, sir.
“Q. I-Iow far away was he?
“A. Right at half a mile.
“Q. Half a mile?
(Page 8):
“A. Yes, sir, on a different lease.
“Q. Now, did Mr. Wyatt have any duties to perform in connection with the pump near where he was injured?
“A. ■ No, sir, none whatever. He had nothing whatever' to do with this pump. He was employed to pack and keep the pumps up in the treating plant and we had two special men that stayed there and watched those two pumps and kept them going. Mr. Wyatt was employed on the Pardue lease. He had nothing to do with those pumps whatsoever. We kept two men there that looked after those and we kept two men at the treating plant that looked after the pumps, and Mr. Wyatt’s duty was to look after those pumps. I took charge, you understand, on the 15th, and he was burned two days afterwards.
“Q. Now was Mr. Wyatt at the pump where he was injured at the time of his injury in pursuance of any duty to the company?
“A. He had been left off duty and came to this pump and crossed the log there and lost his way, then came back and lighted a torch and walked out when he was burned.

Cross-examination, page 10.

“Q. Now, don’t you know that the first piece of work he did was on this particular pump at which he was injured?
“A. He may have been at that time, but later on he was changed from that job to another job. His business was to look after the pumps and keep them repaired, that is the pumps in the treating plant. That was his job and the water pumps I had two men there employed to look after them and nothing else.
(Page 11):
“Q. Now, how far was this pump from their lease, would you say?
“A. Well, it is a good half mile I would think, probably not quite so far.
“Q. Now these pumps were kind of scattered along?
“Á. No, • sir, those were the only pumps that were off to themselves, and I had special men to look after them.

T. R. Birdsong testified as to the place of the accident, page 21.

“Q. Now state with reference to the premises on which he was actually .working, — regarding those premises as being the location of his actual work, — whether, or not, Mr. Wyatt was on the premises of his work at the time that he was hurt?
“A. No, sir, he was not.
“Q. He was not on the premises?
“A. No, sir, he was not on the premises.

Plaintiff testified as to the' place of the accident.

Page 22, of the first testimony taken.

“Q. You say you were actually injifred while you were going to your home after you quit work for the day?
“A. Yes, sir.
. “Q. And that you were injured on the public road? i
“A. Public passage way.”

This testimony, we think, sustains the finding of the lower court that the accident occurred after plaintiff had quit work and left the premises of the defendant.

Plaintiff insists in his testimony that his employment included keeping in repair the pump near which the accident occurred; but W. M. Lambert, superintendent for defendant, under whom plaintiff was at work, testified positively' that plaintiff’s work was at the treating plant about one half mile from the scene of the accident and that he was not employed to look after the pump near the scene of the accident.

Plaintiff insists that he visited the location of this pump near the scene of the accident on the morning of the accident, but he admits that at the, time of the accident an important change had been made in the exhaust of the pump and that a pipe 20 feet long had been provided through which the pump exhausted and that he knew nothing of this repair.

Hé says, on page 18.

“Well, in fact at the 'time I had none— I had none because the last time I knew of the exhaust it was exhausting out at the pump without any pipe, which was probably two and a half feet out of a two-inch pipe, and this pipe had been put on there so it was about twenty feet out to the end.”
(Page 3):
“Q. Now you stated before they had been allowing the gas to escape without any exhaust pipe?
“A. Yes, sir.
“Q. And just before this they had put on the exhaust pipe which extended out?
“A. Yes, sir.
“Q. And you did not know it was there and passed along?
“A. Yes, sir, I did not know that it was there.”

This testimony of the plaintiff we think clearly corroborates the testimony of W. M. Lambert that he had two other men in charge of the pump near the scene of the accident and that plaintiff’s work was not at or near the scene of the accident. The judge of the lower court, who saw and heard the witnesses testify, so held, and we think his holding was correct.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed.


text:
    No. 1939
    Second Circuit Appeal
    ANNA HARRIS ET AL. v. TEXAS & PACIFIC RAILWAY COMPANY
    (April 2, 1925, Opinion and Decree.)
    (June 6, 1925, Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Pleading—Par. 62.
    An exception of no cause of action filed against a petition which alleges that the railway company was negligent and prayed for damages against the railway company, although it was alleged that the railway company was in the hands of receivers at the time of the accident, will be sustained, because the railway company, being in the hands of the receivers, cannot be held liable for the negligent acts of the receivers or their agents.
    Appeal from Eleventh Judicial District Court of Louisiana, Parish of Natchitoches. Hon. J. W. Jones, Jr., Judge.
    This is a suit against the Texas and Pacific Railway Company for damages for the alleged fatal injury of a man.
    There was an exception of no cause of action filed which was sustained.

      Plaintiff appealed.
    Judgment affirmed.
    Rusea & Cunningham, of Natchitoches, attorneys for plaintiffs, appellants.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellee.
   REYNOLDS, J.

This is a suit against the Texas & Pacific Railway Company to recover $10,000.00, damages for the alleged fatal injuring of Alexander Lodge on December 21, 1921.

It is alleged in the petition that at the time of the accident and at the. time of this suit, the Texas & Pacific Railway Company was in the hands of J. L. Lancaster and C. L. Wallace as Receivers, duly appointed and qualified.

Under this state of facts we find the law applicable to this case stated in 34 Cyc. page 293 as follows:

“The receiver is not the agent of either party in the sense that he has authority to bind such parties by any act or mission on his part, and a corporation in the hands of a receiver has no control over the receiver or his servants, and therefore generally is not responsible for the negligence or torts of the employees of the receiver, and no suit for damages occasioned thereby can be maintained.”

Under the law, as above quoted, the exception of no cause of action was properly sustained by the District Court.

Finding the exception of no cause of action properly sustained, it is not necessary for us to pass upon the question as to whether or not the minor grandchildren can recover damages for personal injuries to their grandfather resulting in his death.

The decision of the District Court, insofar as it sustains the exception of no cause of action, is affirmed, and plaintiffs’ suit is dismissed at their costs in both courts.

ON APPLICATION FOR REHEARING.

On October 27, 19Í6, Receivers for the Texas & Pacific Railway Company were appointed by the United States District Court for the Western District of Louisiana on the application of the Union Trust Company of New York. The order appointing the Receivers directed them—

“To take possession of all and singular said railroads, rolling stock, franchises, rights, property and premises.”

of the said company; and they were authorized to—

“Employ, discharge, and fix the compensation of such officers, attorneys, managers, superintendents, agents and employees as they may deem it necessary.” and were authorized and empowered to—
‘.‘Defend, compromise or settle and pay any and all claims, suits, actions, and proceedings which may be made or instituted against them as Receivers on account of their liability as such Receivers.”

Under section 7 of the said order—

“Defendant Railway Company, its officers, directors, agents, attorneys and employees * * * are restrained and enjoined from interfering with * * * any portion of the property and premises of which the Receivers are hereby appointed.”

From the above it will be seen that the officers, directors, employees and managers of the Texas & Pacific Railway Company were completely ousted from their possession, control and management of the said company on the date on which the Receivers were appointed. The corporation, therefore, could neither appoint nor control those who operated the trains in its road.

That order was in effect and the Receivers were in possession of control of the property of defendant Railway Company and operating trains of its tracks by and through agents and employees appointed and controlled by them on December 21, 1921.

Plaintiffs’ petition sets up that on that day Alexander Lodge was run over and killed “by a passenger train of the defendant” and it is alleged that his death was caused solely and entirely by the gross negligence and want of skill on the part of the said defendant company.

The plaintiffs allege that they are the heirs of the deceased and they bring this suit against the Railway Company to recover for his death.

The suit is not against the Receivers of the Company but against the defendant Company.

The plaintiffs pray for service and citation of the defendant, the Texas & Pacific Railway Company, through the Receivers, and ask for judgment in their favor and against the defendant company in the sum of $10,000.

The defendant company filed an exception of no cause of action, grounded upon the proposition that its property was in the hands of Receivers and was being controlled and operated by them at the time of the accident and that no action would lie against it for the negligent operation of trains over its road by the Receivers; and, as a second ground for the exception of no cause' of action, the defendant sets up that the grandchildren of the deceased cannot recover damages for the death of their grandfather.

The lower court sustained the exeception on both grounds. Plaintiffs appealed and .we held that the exception was good on the first ground and affirmed the judgment.

An application for rehearing was applied for in which it is claimed that the court erred “in holding that a corporation in the hands of a Receiver was not liable in damages for negligence of employees of Said corporation that caused the death of petitioners’ father”.

We did not' hold what counsel seem to think we hold. We did not hold that plaintiffs were without remedy merely and solely because the defendant’s road was in the hands of Receivers at the time their ancestor was run over and killed by a train operated on its tracks.

What we held was, that the suit should have been against the Receivers and not against the defendant company; because the train which is alleged to have run over and killed the deceased was controlled and operated by the Receivers of the defendant company and not by the company itself.

Those in charge of and operating the train at the time of the accident were not employees of the defendant company. It did not select them nor could it control them, and therefore ■ the company was not responsible for their negligence.

Counsel cite the case of Godchaux vs. Texas & Pacific Railway Company, 151 La. 957, 92 South. 398, on the point that an action will lie against a corporation while in the hands of a Receiver.

In the Godchaux case the cause of action arose prior to the appointment of the Receivers, and the court said:

“It is not contended by defendant that the corporation was dissolved or rendered incapable of receiving service of judicial process by the appointment of the receivers. The weight of authority seems to sustain the view that it may be so proceeded against, provided the custody and control by the receivers of corporate property ■ is not interfered with.”

And the court cites Corpus Juris, Volume 14A, page 985, and the authorities there cited.

In the Godchaux case the court was dealing not with a case arising of a tort committed by the receivers’ agents or employees but with a cause of action that arose prior to the Receivership. As sustaming its views, the court in the Godchaux case cited Corpus Juris, volume 14A, page 985; but if the court had ' been dealing with a case like the one at bar it would no doubt have cited that same work and same volume, but page 984, where the following principle is stated, to wit:

“A corporation is not m general liable for the torts of its receiver or his servants or agents, committed in the management of the corportate affairs or property. Conversely, the negligent acts or wrongs committed by the corporation before the appointment of a receiver are independent transactions for which the corporation alone is liable.”

Counsel cite the case of Cox vs. Stone, 146 La. 81, 83 South. 385, where the court said, in substance, that there is no rule of law that a corporation in the hands of a receiver shall be exempt from liability for a wrongful act committed by an agent, servant or employee of the corporation. But in that case the action was against the Receiver for damages caused by his unlawful act in procuring the issuance of a writ of injunction. The receiver urged the point that he being an officer of the court should not be held liable in damages for having in good faith but erroneously invoked the writ. The court was dealing with that question,, which is not at all similar to the one relied on in the case at bar.

It will thus be seen that the authorities cited by counsel for plaintiff do not sustain their point.

In the case of Memphis & C. R. R. Co vs. Hoetner, 67 Fed. 456, Mr. Justice Lurton as the organ of the court said a receiver appointed by a court of equity to hold, manage and operate an insolvent railroad is not the agent of the insolvent railroad corporation and is not a substitute for the board of directors. He is but the hand of the court appointing him,' and holds, manages and operates the property under the orders and directions of the court as its custodian, and not for or under the control of the directors or shareholders of the corporation. His management is for the benefit of those ultimately entitled under the decree of court. His acts are not the acts of the corporation and his servants are not 'the agents or servants of the corporation. * * * The receivers as such are liable for their negligent acts. Both to the public and their employees they stand responsible to the full extent of the earnings resulting from their management and under some circumstances the property itself may constitute a fund which may be reached and subjected by those sustaining injuries. But we know of no legal principle which would justify the court in holding a corporation which is excluded from all control and management responsible for the torts of such receivers or for the negligent acts of their agents”.

In the case of Gabelman vs. Peoria B. & E. R. Co., 82 Fed. 790, the court said:

“The injury occurred while the Railway was on the exclusive control .and management of the receiver. The railway company is improperly joined as a party defendant. The complaint states no cause of action against it. It is not liable for the torts of the receiver or his employees.”

Citing High on Receivers, section 396, and 67 Fed. 456, above referred to.

See 34 Cyc. 293.

In the case at bar, the possession and management of the receivers was exclusive. The corporation could neither appoint or control those who operated the train alleged to have killed plaintiff’s ancestor.

The suit, therefore, should have been against the receivers and not against the corporation itself.

For the reasons assigned, the application for a rehearing is refused.