203 F.2d 918 (5th Cir. 1953), 14230, Tucker v. Texas Co.

Docket Nº:14230.
Citation:203 F.2d 918
Party Name:TUCKER v. TEXAS CO.
Case Date:April 27, 1953
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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203 F.2d 918 (5th Cir. 1953)




No. 14230.

United States Court of Appeals, Fifth Circuit.

April 27, 1953

Rehearing Denied June 8, 1953.

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Warner F. Brock, Houston, Tex., Combs, Brown & Brock, Horace F. Brown, Houston, Tex., for appellant.

Thos. M. Phillips, Houston, Tex., Frank G. Harmon, Ralph Carrigan and Baker, Botts, Andrews & Parish, Houston, Tex., of counsel, for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a summary judgment entered upon motion of the defendant, appellee. For convenience appellant will be referred to as plaintiff and appellee as defendant.

Plaintiff, a resident of Texas, was a regular employee of the Aber Company, Inc. which had its principal place of business in Houston, Texas. He was sent to Louisiana to work for his employer in carrying out its contract for the insulation of certain equipment owned and operated by the defendant. Under that contract, the defendant was to furnish, erect and dismantle scaffolding required for the insulation work. On May 13, 1949, while engaged in insulating the legs of a spherical tank located at the defendant's cycling plant in Erath, Louisiana, the scaffolding board on which the plaintiff was standing broke, causing him to fall about 9 feet to the cement base below and to suffer serious injuries. The grounds upon which the district court granted the defendant's motion for summary judgment were that: (a) the rights and liabilities of the parties were governed by the law of Louisiana where the accident occurred; (b) under section 34 of the Louisiana Workmen's Compensation Act, LSA-Revised Statutes 23:1032, 1 the rights and remedies granted under that Act are exclusive; (c) under Section 6 of the Louisiana Workmen's Compensation Act, LSA-Revised Statutes 23:1061, 2 the

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plaintiff as an employee of an independent contractor may recover compensation against the defendant where the work undertaken by the independent contractor is a part of the defendant's trade, business, or occupation; and (d) the work undertaken by the Aber Company, Inc. at the Erath Cycling Plant was in fact a part of the trade, business, or occupation of the defendant.

In review of these grounds for entering the summary judgment, this appeal presents two principal questions: (1) are the rights of the plaintiff and the liability of the defendant governed by the law of Louisiana; and (2) if so, does the record present a fact issue for a jury to decide as to whether the business of insulating carried on by the plaintiff's employer, Aber Company, Inc., is a part of the defendant's trade, business, or occupation.

The federal district court sitting in Texas must conform to the conflict of laws rule prevailing in Texas state courts, Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477; Palmer v. Chamberlin, 5 Cir., 191 F.2d 532, 536, 27 A.L.R.2d 416. Texas, of course, recognizes the general principle that the law of the place of wrong determines whether a person has sustained a legal injury, A.L.I., Restatement, Conflict of Laws, Sec. 378; 11 Am.Jur., Conflict of Laws, Sec. 182; 2 Beale, Conflict of Laws, Sec. 378.1, p. 1288; Mexican National Railroad Co. v. Jackson, 89 Tex. 107, 33 S.W. 857, 31 L.R.A. 276; Chicago, R.I. & P. Ry. Co. v. Thompson, 100 Tex. 185, 97 S.W. 459, 7 L.R.A., N.S., 191. The Texas Workmen's Compensation Act, however, provides that, if an employee hired in Texas sustain injury in the course of his employment outside of the State, he shall be entitled to compensation according to the law of the State of Texas. 3 The Texas Act also preserves the rights of injured employees as against third persons. 4

A series of decisions by the Supreme Court over the course of years has established that an employee may constitutionally seek compensation under the workmen's compensation laws of either the state of his contract or the state of his injury, and may even seek recovery under the acts of both states, if the act under which he secures his first recovery does not in terms make its award final and exclusive. Bradford Electric Light Company, Inc., v. Clapper, Administratrix, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 1026;

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State of Ohio v. Chattanooga Boiler & Tank Co., 289 U.S. 439, 53 S.Ct. 663, 77 L.Ed. 1307; Alaska Packers Association v. Industrial Accident Commission of California, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044; Pacific Employers Insurance Company v. Industrial Accident Commission, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940; Magnolia Petroleum Company v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149; Industrial Commission of Wisconsin v. McCartin, 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140. The reasoning which permits a state to project its workmen's compensation laws across state lines is clearly stated in Alaska Packers Association v. Industrial Accident Commission of California, 294 U.S. 532, 540, 541, 55 S.Ct. 518, 521:

'But where the contract is entered into within the state, even though it is to be performed elsewhere, its terms, its obligation, and its sanctions are subject, in some measure, to the legislative control of the state. The fact that the contract is to be performed elsewhere does not of itself put these incidents beyond reach of the power which a state may constitutionally exercise. Selover, Bates & Co. v. Walsh, 226 U.S. 112, 123, 33 S.Ct. 69, 57 L.Ed. 146; Mutual Life Ins. Co. v. Liebing, 259 U.S. 209, 214, 42 S.Ct. 467, 66 L.Ed. 900; Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123, 136, 34 S.Ct. 874, 58 L.Ed. 1245; Compare Aetna Life Ins. Co. v. Dunken, 266 U.S. 389, 397-400, 45 S.Ct. 129, 69 L.Ed. 342.

'While similar power to control the legal consequences of a tortious act committed elsewhere has been denied, Western Union Telegraph Co. v. Brown, 234 U.S. 542 547, 34 S.Ct. 955, 58 L.Ed. 1457; Western Union Telegraph Co. v. Chiles, 214 U.S. 274, 278, 29 S.Ct. 613, 53 L.Ed. 994; compare Western Union Telegraph Co. v. Commercial Milling Co., 218 U.S. 406, 31 S.Ct. 59, 54 L.Ed. 1088, the liability under Workmen's Compensation Acts is not for a tort. It is imposed as an incident of the employment relationship, as a cost to be borne by the business enterprise, rather than as an attempt to extent redress for the wrongful act of the employer. See Bradford Electric Light Co. v. Clapper, supra, 286 U.S. (145) 157, 158, 52 S.Ct. 571 (76 L.Ed. 1026). The California court has declared: 'The contract creates a relationship under the sanction of the law and the same law attaches as an incident thereto an obligation to compensate for injuries sustained abroad amounting to a sort of compulsory insurance.' Quong Ham Wah Co. v. Industrial Accident Comm., supra, 184 Cal. (26) 36, 192 P. 1021, 1025 (12 A.L.R. 1190). Obviously, the power of a state to effect legal consequences is not limited to occurrences within the state if it has control over the status which gives rise to those consequences. That it has power, through its own tribunals, to grant compensation to local employees, locally employed, for injuries received outside its borders, and likewise has power to forbid its own courts to give any other form of relief for such injury, was fully recognized by this Court in Bradford Electric Light Co. v. Clapper, supra, 286 U.S. 156, 52 S.Ct. 571.'

It will be noted that the court expressly recognizes that there is no 'similar power to control the legal consequences of a tortious act committed elsewhere'. When the laws of Texas cannot be extended into Louisiana by reason of a contract, relationship, or status existing in Texas, it is clear that the cause of action for tort can be given only by the law of the place where the tort was committed; in this case by the law of Louisiana. Indeed, the Texas Act in preserving the rights of employees to proceed against third persons does not attempt to create causes of action against third persons for wrongs occurring in other states, Texas Rev. Stat. 8307, Sec. 6a, Vernon's Ann. Civ. St. art. 8307, Sec. 6a, footnote 4, supra.

The American Law Institute, Restatement of the Law, 1948 Supplement, pages 151 and 152, modifies and rewrites Sec. 401 of the Restatement, Conflict of

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Laws, to cover the situation presented in this case:

'Sec. 401. Abolition of Right of Action for Common Law Tort or Wrongful Death.

'i. Section: Substitute for original Section the following Section:

'If a cause of action in tort or an action for wrongful death either against the employer or against a third person has been abolished by a Workmen's Compensation Act of the place of wrong, no action can be maintained for such tort or wrongful death in any state.' 5

In support of that position, we would cite further the full discussion by Judge Magruder for the First Circuit in ...

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