Brown v. Vacuum Oil Co

• Decision Date: 01 December 1930
• Docket Number: 30845
• Citation: 171 La. 707,132 So. 117
• Court: Louisiana Supreme Court
• Parties: BROWN v. VACUUM OIL CO

132 So. 117

171 La. 707

BROWN v. VACUUM OIL CO

No. 30845

Supreme Court of Louisiana

December 1, 1930

Judgment for defendant set aside, and judgment rendered for plaintiff.

E. F Gayle and C. V. Pattison, both of Lake Charles, for applicant.

Pujo Bell & Hardin, of Lake Charles, for respondent.

OPINION

THOMPSON, J.

This is a suit by an employee of the defendant for compensation for an accidental injury alleged to have been received in the course of plaintiff's employment and arising out of such employment.

The defense is that plaintiff at the time of the accident was not performing any services arising out of and incidental to his employment, but was doing an act entirely foreign to his employment though during the period of his employment.

It is alleged that plaintiff was a member of a crew drilling a well for defendant. That in connection with the work a water hose was used to wash the mud from the derrick floor, and that the plaintiff at the time of the accident, instead of using the hose for the purpose intended, was making use of it to throw water on Hasha, a coworker.

That Hasha resented the action of plaintiff, a scuffle ensued over the possession of the hose, and in this scuffle the plaintiff was injured.

This defense was sustained by the district judge, and plaintiff's suit was dismissed. That judgment was affirmed by the Court of Appeal (15 La.App. 283, 128 So. 691).

The case is before us on an order of review.

There is some conflict in the evidence, but no serious variance as to the cause of the accident and as to the manner in which it happened.

The plaintiff was employed by the defendant, and among the duties under his employment was that of using a water hose to wash off the mud that accumulated from time to time on the floor of the derrick. The trial judge correctly found that on the night of the accident the plaintiff had washed off the floor of the drilling rig and was washing the mud off his trousers and shoes when he was tackled from behind by a fellow employee, in a friendly scuffle, and was thrown to the floor and injured.

It appears that the plaintiff was inexperienced and was very awkward in the use of the water hose and at different times had caused water from the hose to be thrown on a number of his coworkers.

Whether this was done on purpose and intentionally does not affirmatively appear from the evidence.

None of the witnesses saw the plaintiff turn the hose on Hasha, the man who engaged the plaintiff in the scuffle for the hose. Hasha says himself that he did not see plaintiff throw the water on him, as he was some distance away and had his back towards the plaintiff.

Burleson, the driller who was in charge of the operations and under whom the plaintiff was working, testified that Brown had wet him several times. That he wet Carl Lee and Hasha and himself at the same time.

That Brown threw the hose that way when he was washing the floor and he could not say whether it was accidental or on purpose. That he told Brown to be careful with the hose and "warned him not to wet us any more."

Burleson treated the matter so far as he was concerned as a mere trifle and said that as to a little thing like a water hose he might wet Brown himself.

In the light of the testimony of Burleson, it is not reasonable to assume that Brown purposely turned the hose on his superior. As we have said, Brown was the helper of Burleson and was under his direction.

None of the parties resented the act of Brown, except Hasha.

Conceding however that Brown did purposely turn the hose on Hasha and wet him on the occasion of the accident, and conceding that this act of Brown could be construed as a sufficient provocation for Hasha going to Brown and engaging him in a friendly scuffle for the possession of the hose in order that he might retaliate by wetting Brown, does such fault on the part of Brown bar him from recovery of compensation for the injury resulting directly from the scuffle for the possession of the hose?

It must be remembered that Brown was at his post of duty and in the performance of his duty. He had just finished washing off the floor and was using the hose in cleaning the mud off of his trousers and shoes when Hasha came up behind him and grappled with him in an attempt to get possession of the implement of Brown's employment.

Brown did not leave his place of work, he did not surrender the hose voluntarily, and the scuffle in which he slipped was of momentary duration. It can hardly be said therefore that he voluntarily abandoned his work and engaged in an act foreign to his duties.

The district judge and the Court of Appeal, 15 La.App. 283, 128 So. 691, seem to have attached great importance to the act of throwing water on Hasha which they construed as a fault and an invitation to Hasha to abandon his work and go to Brown and engage in the scuffle. And having brought about the scuffle, Brown ceased momentarily though it was, his employer's business and shut himself off from recovery for the accidental injury.

Section 38 of Act No. 38 of 1918, p. 60, declares that 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.

And this court has held that whether employer, employee, or fellow employee is guilty of negligence resulting in injury to employee is immaterial, as affects employer's liability under Employer's Liability Act (Act No. 20 of 1914, as amended). Garcia v. Salmen Brick & Lumber Co., 151 La. 784, 92 So. 335; Ferguson v. Cady-McFarland Gravel Co., 156 La. 871, 101 So. 248, 249.

It is therefore immaterial in this case whether Brown was guilty of a fault in throwing water on a fellow employee, for, as we have seen, fault and negligence cannot be pleaded against him.

It is true the cause of Hasha's going to Brown was his belief that the hose had been turned on him purposely, but the immediate and proximate cause of the injury to Brown was his slipping on the wet floor as a result of the scuffle brought about and forced upon Brown by his coworker. Brown would not have been engaged in the scuffle had not Hasha gone to him and started it. It can hardly be said therefore that Brown had voluntarily turned aside from his work, and that therefore the accident was not in the course of his employment and did not arise out of his employment.

Had Brown left his work and gone down to where Hasha was and engaged him in a scuffle, then a different situation might have been presented.

It might then have been well said that the employee had ceased his master's work and then gone off to engage in a frolic or "horseplay," whatever that may mean.

But Brown remained at his work and was actually working when Hasha rushed upon him for the purpose of taking the hose away from him.

The defense here made and the ruling of the court in sustaining it is without precedent in the jurisprudence of this court.

The ruling introduces a new as well as a novel defense on the part of employers to avoid payment of compensation fixed by the statute, a defense not within the contemplation of the statute.

In the Ferguson Case, supra, 156 La. 871, 101 So. 248, in considering the question as to whether the accident was one arising out of the employment, we said:

"The moment we begin to indulge in hairsplitting distinctions in cases of this kind that moment we approach the danger line of reading into the statute the defense that the employee assumes the risks of his employment."

In the case of Guderian v. Sterling Sugar & Ry. Co., 151 La. 59, 60, 91 So. 546, we held that, where a foreman reprimanded and discharged an employee and was assaulted and injured by the employee as a result of the discharge, and while he, pursuant to his...