Atchison v. May

• Decision Date: 04 November 1942
• Docket Number: 36611.
• Court: Louisiana Supreme Court
• Parties: ATCHISON, et al. v. MAY. In re ATCHISON et al.

10 So.2d 785

201 La. 1003

ATCHISON, et al. v. MAY.

In re ATCHISON et al.

No. 36611.

Supreme Court of Louisiana

November 4, 1942

Charles E. Fernandez, of Franklin, for relators.

Brumby & Bauer, of Franklin, for respondent.

McCALEB Justice.

The plaintiffs, Mrs. Ethel Knight Atchison and J. Edman Knight the surviving brother and sister of Henry Knight, brought this action against the defendant, Thayer T. May, to recover $20,000 damages ex delicto for the death of their brother who was killed on May 15, 1940, as the result of accidental injuries received by him while in the performance of his duties as an employee of the defendant at the latter's sawmill located at Garden City in the Parish of St. Mary.

In the District Court, plaintiffs' suit was dismissed on an exception of no right of action. Plaintiffs appealed to the Court of Appeal, First Circuit, where the judgment of the District Court was affirmed. Thereafter, on the application of the plaintiffs, this court granted writs of certiorari and review and the matter is now before us for decision.

Plaintiffs allege that their brother, Henry Knight, was employed in a planing mill owned and operated by defendant at Garden City Louisiana; that he died on May 15, 1940, as a direct result of being burned and scalded by hot water and steam which escaped from a defective piston of a stationary steam engine located on defendant's premises where the deceased was working and that the accident was caused by the defendant's negligence. Plaintiffs affirmatively set forth that their deceased brother had never been married; that he left neither ascendants nor descendants nor any dependants; that they, as his surviving sister and brother, are the sole and only persons entitled to recover under Article 2315 of the Civil Code for his death and that they were not in anywise dependent upon the deceased for support.

The contention of the defendant, which was maintained by the District Court and affirmed by the Court of Appeal, is that the plaintiffs are without a right of action under Article 2315 of the Civil Code because any rights or remedies, which may have been afforded to the deceased employee, his relatives or his dependents, were confined to such rights and causes of action which are accorded by the Employers' Liability Act of this State (Act No. 20 of 1914, as amended), which said rights and remedies are exclusive. Hence, the main question to be determined in the case is,--whether a right of action is vested in the plaintiffs under Article 2315 of the Code, as amended, to recover against the employer of the deceased for the alleged negligent death of the latter, which resulted from an accident occurring in an admittedly hazardous occupation while the deceased was acting in the course and scope of his duties.

The Employers' Liability Act (Act No. 20 of 1914, as amended, Act No. 85 of 1926, Dart's Statutes, Section 4393) provides in paragraph 1 of section 3 that: 'This act, except Sections 4 and 5, relating to defenses, shall not apply to any employer or employee engaged in any trade, business or occupation specified in paragraph 2 of Section 1, or in any that may be determined to be hazardous under the operation of paragraph 3 of Section 1, unless prior to the injury they shall have so elected by agreement, either express or implied, as hereinafter provided. Such an agreement shall be a surrender by the parties thereto of their rights as against each other to any method, form, or amount of compensation, or damages, or determination thereof other than as provided in this act, and shall bind the employee himself, his widow, and relatives, personal representatives, heirs, and dependents as hereinafter defined, as well as the employer and those conducting his business during bankruptcy and insolvency.' (Italics ours.)

And paragraph 3 of the same section declares: 'Every contract of hiring, verbal, written or implied between an employer and an employee engaged in any trade, business or occupation specified in paragraph 2 of Section 1, or engaged in any trade, business or occupation that may be determined to be hazardous under the operation of paragraph 3 of Section 1, made subsequent to the time provided for this act to take effect, shall be presumed to have been made subject to the provisions of this act, unless there be as a part of said contract an express statement in writing either in the contract itself or by written notice by either party to the other, that the provisions of this act other than Sections 4 and 5 are not intended to apply, and it shall be presumed that the parties have elected to be subject to the provisions of this act and to be bound thereby, unless such election to be terminated as hereinafter provided.' (Italics ours.)

Section 34 of the statute, as amended by Act No. 38 of 1918 (Dart's statutes, section 4423), provides: 'The rights and remedies herein granted to an employee or his dependent on account of a personal injury for which he is entitled to compensation under this act shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, relations, or

otherwise, on account of such injury.' (Italics ours.)

The foregoing mandate of the Legislature islature is explicit and affords a full answer to the proposition advanced by the plaintiffs in this case. It is conceded by the plaintiffs that their deceased brother was employed by the defendant in a hazardous occupation and that he met his death as a direct result of an accident which occurred while he was engaged in the course and scope of his employment. Therefore, it follows that, as to the employee, the provisions of the compensation law were applicable since, in the absence of a special agreement of employment to the contrary, it was presumed under the law that the parties to the contract of employment were to be governed by the provisions of the act. This contract of employment became binding not only upon the employer and employee but equally so upon 'his widow, and relatives, personal representatives, heirs, and dependents * * *' as stated in paragraph 1 of section 3 of the above-quoted statute and operated as a complete surrender by those persons of all their rights against the employer for compensation or damages other than that provided by the act. The restriction of the rights and remedies to those granted under the compensation law is made absolute by the provisions of section 34 of the act with respect to the employee, his personal representatives, dependents, 'relations, or otherwise.'

The intention of the Legislature is demonstrated by the clear language employed by it in the above-quoted sections of the act and this court has experienced but little difficulty in resolving that a contract of employment to do hazardous work is governed exclusively by the provisions of the compensation law, not only with respect to the right and remedy of the employee himself, but as to all persons designated as beneficiaries by Article 2315 of the Civil Code, as amended, having a right or cause of action to recover for death by wrongful act. See Philps v. Guy Drilling Co., 143 La. 951, 79 So. 549; Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381; Williams v. Blodgett Const. Co., 146 La. 841, 84 So. 115, and Labourdette v. Doullut & Williams Shipbuilding Co., 156 La. 412, 100 So. 547.

In Philps v. Guy Drilling Co. an action was brought by the mother of a deceased employee of the defendant for damages sustained by her for the alleged negligent killing of her son and, in the alternative, for compensation under the Employers' Liability Act. On exceptions filed by the defendants, plaintiff's demand in tort was rejected, the court holding that whatever right or remedy she had was governed exclusively by the provisions of the Employers' Liability Act.

In Colorado v. Johnson Iron Works, the widow of an employee of the defendant, who was killed by an explosion while at work, claimed damages for his death resulting from the wrongful act of the defendant under Article 2315 of the Civil Code. An exception was sustained by the trial court, which was later upheld by this court, on the ground that plaintiff's sole remedy was for compensation under the Employers' Liability Act. In that case the plaintiff contended that, although the provisions of section 34 of the act declared that her right and remedy to sue for compensation was exclusive, that section did not have the effect of rescinding or repealing the right granted her by Article 2315 of the Civil Code because there was no contractual relation between her and the employer of her husband. And, in the alternative, the plaintiff maintained that, if the act was construed to have superseded the provisions of Article 2315, then the act was unconstitutional since it deprived her of her right to sue under the Article of the Code without due process of law. The court rejected both of these arguments, stating, as to the first, that: 'Said act, by its plain and express terms, does make the remedy which it provides exclusive in a case like the present; it therefore does apply to this case, and does supersede article 2315 of the Code.' [146 La. 68, 83 So. 382.]

On the second contention, respecting the deprivation of plaintiff's property without due process of law, the court held that the act could not be so regarded,--'First, because formerly the right to sue for the death of a human being, which is the right plaintiff is seeking to exercise, did not exist in this state, but was given by statute, and, of course, the Legislature may repeal a statute enacted by itself, or supersede it by another statute; second, because the regulation of what recourse one person may have against another for personal injury in a...