The
petition of the plaintiff in the lower court, defendant in
error here, suing individually and as tutrix of her minor
children and as a citizen of Louisiana, averred that the
'American Sugar-Refining Company, a corporation domiciled
and doing business in this city [meaning the city of New
Orleans, La.], and a citizen of New Jersey, and found within
the eastern district of Louisiana, of which George S
Eastwick is general manager,' is indebted to petitioner
in the sum of $10,000 upon the following grounds: 'That
on and prior to the 20th day of June, 1892, your
petitioner's husband, Otto Johnson, was employed by the
said American Sugar-Refining Company as a laborer to work at
their refinery situated in this city. That under said
employment petitioner was employed to work in the fifth story
of said refinery, and under said employment was required to
watch and care for large tanks used for the purpose of
receiving sugar that is pumped up through a large 18-inch
pipe running from said fifth story to the first floor of the
said refinery. That, after said pumping of sugar ceases and
the tanks having sufficient, the said 18-inch pipe is cleaned
by the engineer on the first floor by turning on a strong
force of steam through said pipe, which forces the sugar out
and thoroughly cleans said pipe; and, should any one be in
close proximity to said pipe, he is liable to be scalded and
killed. That said steam is always turned on immediately after
the sugar pumping ceases. That on said date and at said
place, without any warning or notice by the said defendant
company or its agents or engineer in charge of the engine on
the first floor to petitioner's husband and to the
workmen on the top floor, where petitioner's husband was
working, and in close proximity to the said pipe, his
employment requiring him to be there, the steam was turned on
with great force, although the pumping of sugar had long
since ceased, and your petitioner's husband was badly
scalded and burned, which caused him great bodily injury and
pain, from the effects of which he died after great
suffering; thus depriving your petitioner from his support
and companionship and from earning a living for herself and
four small children. That petitioner's husband was using
due diligence and care on his part, and that the defendant
company could have prevented the said disaster by the
employment of a competent and trustworthy engineer, and by
the use of proper appliances for the giving notice by the
engineer to the occupants of the upper story, where your
petitioner's husband was engaged, either by
messenger, bell, or speaking tube, which they neglected and
failed to do. That it is the legal duty of the defendant
company to maintain and employ competent foremen, workmen
and engineers to superintend, manage, and care for and direct
their work, and thus prevent the disaster which occurred to
your petitioner's husband, and which they failed to do.
That petitioner's husband was lawfully compelled and
directed to be in the place where he was injured, and had no
notice or warning of the danger, and same was caused by gross
neglect of duty on their part by not having the proper
appliances, and competent, faithful, and trustworthy workmen
and employes.'
The
defendant below excepted to this petition on the grounds that
the alleged cause of action did not survive, and that the
injury complained of was the result of the negligence of a
fellow servant. The plaintiff below, under leave of the
court, then undertook to amend by filing the following:
'The supplemental and amended petition of Mrs. Otto
Johnson, widow of Otto Johnson, individually and as tutrix of
her minor children, Anthony, Celia, and Anna Johnson, with
respect shows: That in conformity with the order of the
honorable judge presiding in the above-mentioned court,
petitioners reiterate all the allegations of their original
petition filed herein, except in so far as the same is
altered by this amended petition, and allege further that the
said Otto Johnson, husband and father of plaintiffs, was
employed as a laborer by the said American Sugar-Refining
Company to work at their refinery, situated in this city, and
that under said employment he was caused to work in the fifth
story of said refinery, and was required to watch and care
for large tanks, used for the purpose of receiving sugar
which was to be pumped up from the first floor into said
tanks, which pumping was to be done by means of machinery
operated by steam power, and which machinery was run by an
engineer stationed on the ground floor of said refinery. That
it is the custom and usage of said refinery that, immediately
after the said tanks are sufficiently filled with sugar,
warning is given to the occupants and workmen on the said
fifth floor, where said tanks were situated, that the pipe
which conveys the sugar to said tanks is blown out by
injecting a strong force of steam, which warning prevents the
occupants of said floor from being within close proximity of
said pipe, their business requiring them otherwise to be
engaged within close proximity to the said pipe. That it is
necessary said pipe be cleaned by injecting a force of steam
immediately after said pumping ceases, otherwise same would
corrode and become clogged. That on the date mentioned, long
after said pumping had ceased, and contrary to the custom and
usage of said refinery, the said refinery, through the
incompetent, irresponsible, and untrustworthy person employed
by them as an engineer in charge of said machinery, and
without any warning or notice whatsoever to your
petitioner's said husband, Otto Johnson, who was engaged
in his usual employment of storing the contents of said
tanks, a strong force of steam was suddenly sent through said
pipe, terribly burning and scalding petitioner's husband,
said Otto Johnson; and from said burning and scalding the
said Johnson, after great pain and suffering for some days,
died. That your petitioner's said husband, at the time
that he received the injuries as aforesaid, was engaged in
his usual employment in said refinery, using due diligence
and care on his part; and that by his death your petitioner
and her said children were deprived of his support and
companionship, and from earning a living for herself and her
small children. Petitioner further avers that the said
killing of her said husband was caused solely by the neglect
and gross carelessness of the said American Sugar-Refining
Company, and that they could have prevented the said disaster
if they had used due diligence and care in the employment of
a competent and trustworthy engineer, and by the use of
proper appliances for the giving notice to the occupants of
the upper story, where your petitioner's husband was
engaged, either by messenger or bell or speaking tube, all of
which they neglected and failed to do. Your petitioner
alleges that by reason of the said carelessness and
neglectful acts of the said American Sugar-Refining Company
aforesaid, that she and her said children have been damaged,
by reason of the pain and suffering her said husband endured,
and by reason of the loss and deprivation to them of his care
and support, in the full sum of ten thousand dollars
($10,000.00).'
The
defendant below again excepted as follows: 'First. That
said so-
called amended and supplemental petition does not conform to,
but disregards, the order of the court directing an
amendment. Second. Said so-called supplemental and amended
petition is so vague, inconsistent, incoherent, and
contradictory in its allegations that defendant cannot justly
be called on to join issue thereon, nor can any issue be
intelligently framed thereon for submission to a jury. And,
if the foregoing exception be overruled, defendant further
says: Third. That, as appears on the face of the so-called
amended and supplemental petition, the said Otto Johnson died
from the effects of the alleged accident; and under the law
of Louisiana no right of action in the premises set forth in
said petitions survived to plaintiff, individually or as
tutrix of her minor children, nor to said children, nor by
said law is there in the same premises any right of action by
plaintiff, individually or as tutrix of her minor children,
or by said children, for damages alleged to have been
sustained by her or by them by the death of said Otto
Johnson. Fourth. And, if this exception be overruled,
defendant further says that, as appears on the face of said
so-called amended and supplemental petition, plaintiff
alleges that said Otto Johnson was injured and killed in the
course of an employment the risk of which he assumed, and by
his own carelessness, or by the act of a fellow servant, the
risks of whose carelessness he, said Johnson, also assumed,
or both, and that said petition states no cause of action
against this defendant.'
These
exceptions were overruled, and the defendant below, reserving
the benefit of the exceptions, answered in substance as
follows: 'Respondent admits that the deceased, Otto
Johnson, was employed in the refinery of defendant in this
city; but specially denies that said deceased was ever
injured through any fault, carelessness, negligence, or want
of care of respondent, its officers, agents, and employes, or
any party or parties for whom it was or is in any manner
responsible, as set forth in said petitions or otherwise.
Respondent specially denies that the injuries complained of
in said petitions were in any manner caused by, or the result
of, the want of proper machinery and appliances in said
refinery, or the employment of incompetent or untrustworthy
engineers, foremen, or workmen, but avers, on the contrary,...
