La Casse v. New Orleans, T. & M. R. Co

• Citation: 64 So. 1012,135 La. 129
• Decision Date: 30 March 1914
• Docket Number: 19,775
• Parties: LA CASSE v. NEW ORLEANS, T. & M. R. CO
• Court: Louisiana Supreme Court

64 So. 1012

135 La. 129

LA CASSE v. NEW ORLEANS, T. & M. R. CO

No. 19,775

Supreme Court of Louisiana

March 30, 1914

Rehearing Denied April 27, 1914

Dufour & Dufour, of New Orleans, Dudley L. Guilbeau, of Opelousas and Payne Breazeale, of Baton Rouge (Geo. Janvier, of New Orleans, of counsel), for appellant.

Shelby Taylor and James A. Gremillion, both of Crowley (Lewis &amp Lewis, of Opelousas, of counsel), for appellee.

OPINION

PROVOSTY, J.

Plaintiff sues in damages for the death of her husband, alleged to have resulted from the negligence of the defendant company. He was employed by the defendant company in its roundhouse at Eunice, La. His functions consisted in receiving the locomotives that came to the roundhouse, taking care of them and having them filled with water and steamed up, ready for use, when called for. While he was steaming up an oil-burning locomotive, the crown sheet which is the piece, or part, directly above the fire, separating it from the water in the boiler) gave way, by reason of the downward pressure of the steam, and a sort of explosion resulted, by which the fire doors were lifted from their hinges and blown out, and made to strike him and another man, and kill them.

A statute of this state gives a right of action to a widow for the death of her husband caused by the negligence of another person. This statute is superseded, however, by the federal Employers' Liability Act (35 Stat. 65, c. 149 [U. S. Comp. St. Supp. 1909, p. 1171]), in all cases coming under the latter statute; and, under the latter statute, the widow has no right of action, but the suit for her benefit must be bought by the personal representative of the decedent.

Nothing on the face of the petition in this case indicated under which one of these statutes the present case came; and the defendant joined issue on the merits, and went to trial, without any request for an amendment of the petition in that regard, and without any exception to the right of the plaintiff to stand in judgment in the suit, but in this court has filed an exception of no right of action in the plaintiff, and, in support of that exception, contends that the locomotive in question was engaged in interstate commerce, and that, as a consequence, the decedent, while attending upon it, was, in like manner, engaged in interstate commerce, and that therefore the case comes under the federal statute, and only the personal representative of the decedent could bring the suit.

Plaintiff objects that this exception comes too late; that it is one to the capacity of the plaintiff to stand in judgment; and that exceptions of that character are not permissible after issue joined.

We agree with defendant that a total absence of right on the part of the plaintiff may be urged at any stage of the cause. Brown v. Saul, 4 Mart. (N. S.) 434, 16 Am. Dec. 175; Montford v. Schmidt, 36 La.Ann. 750. And that, if the case does come under the federal statute, the plaintiff is totally without right of action in the premises. Pederson v. Delaware, L. & W. R. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125; St. L., S. F. & T. R. R. Co. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129.

But we do not agree with defendant that this case does come under the federal statute. For showing that it does, defendant relies exclusively upon the following testimony:

'Q. Where did this engine run? A. It worked all the way between Houston and New Orleans; it ran out of De Quincy both ways.'

De Quincy is a Louisiana town. We do not understand this evidence to mean any more than that this locomotive, like any other locomotive of the defendant company, or any of its cars, might be and was sometimes used in interstate commerce. Not that it was being so used at the time the decedent was attending to it. On the contrary, the evidence shows that its last run, which was on the preceding day, had been from another intrastate point to Eunice. If the fact that a locomotive or a car might be used the next day, or whenever next needed, in interstate commerce, were equivalent to being actually at the time in use in that commerce, the effect would be that whenever a railroad did not confine itself to intrastate commerce, but engaged also in interstate commerce, every one of its employes would at all times be engaged in interstate commerce when at their work. The two decisions of the Supreme Court of the United States, supra, are relied upon by defendant's learned counsel; but these decisions, as we understand them, are very far from having that broad scope. In one of them a clerk was injured while actually on his way to take the numbers of, and seal up and label, cars loaded with interstate freight. In the other an employe was killed while carrying a sack of bolts to be used in repairing a bridge which was regularly in use in interstate commerce. In those cases, although the connection was but slight, there was a direct engagement in interstate commerce, whereas a locomotive or an empty car, which has completed an intrastate run and may on its next run be used in like manner intrastate, cannot be said to be actually engaged in interstate commerce. The most that can be said is that it has been so used, if such be the fact, and that it may on its next run be so used.

On the merits, the sole question is whether there was or not water over the crown sheet at the...