Conaway v. Marine Oil Co., Limited

• Decision Date: 05 October 1926
• Docket Number: 27901
• Citation: 110 So. 181,162 La. 147
• Court: Louisiana Supreme Court
• Parties: CONAWAY v. MARINE OIL CO., Limited. In re CONAWAY

110 So. 181

162 La. 147

CONAWAY v. MARINE OIL CO., Limited.

In re CONAWAY

No. 27901

Supreme Court of Louisiana

October 5, 1926

Rehearing Denied November 2, 1926

Affirmed.

Harold A. Moise, of New Orleans, for applicants.

Spearing Miller & Mabry, of New Orleans, for respondent.

OVERTON J. LAND and ST. PAUL, JJ., dissent.

OPINION

OVERTON, J.

Defendant operates a gasoline station in the city of New Orleans, and it greases and oils automobiles, and trucks. For the latter purpose, it has erected racks to better enable those of its employees, whose duty it is, to grease and oil motor vehicles for its patrons. August Conaway, the son of the plaintiffs herein, was foreman of the racks. It was his duty to attend to the greasing and oiling of automobiles and trucks, to restore their minor parts which had become defective, to fill their tanks with gasoline, and to supply their tires with air. On August 24, 1924, while Conaway was engaged in supplying the tires of an automobile with air, a pistol in the hands of one of defendant's employees was accidentally discharged, the bullet therefrom striking and killing Conaway.

This suit is one instituted by Conaway's parents to recover compensation from defendant for the death of their son, under the Employers' Liability Act, Act No. 20 of 1914, as amended. The petition sets forth substantially the foregoing facts, among others, not necessary to mention here.

In the trial court, defendant filed an exception of no cause of action, which,after hearing had, was sustained. On appeal the Court of Appeal affirmed the decree sustaining the exception. A writ of review was applied for and granted, and it is upon this writ that the case comes before us.

One of the grounds of the exception is that, under the facts alleged, the accident was one not growing out of the employment, and it was upon this ground that the Court of Appeal affirmed the decree of the trial court.

Section 1, paragraph 2, of the Employers' Liability Act, provides that the act shall apply to "every person performing services arising out of and incidental to his employment in the course of his employer's trade, business or occupation in the following hazardous trades, businesses and occupations," which the act designates or describes. The act contemplates that the injuries for which recovery may be had are those arising "out of and in the course of" the employment. Section 2 of Act 20 of 1914, as re-enacted by Act 38 of 1918; Myers v. Louisiana Ry. & Nav. Co., 140 La. 937, 74 So. 256; Dyer v. Rapides Lumber Co., 154 La. 1091, 98 So. 677.

In Re McNicol, 215 Mass. 497, 102 N.E. 697, L. R. A. 1916A, 306, in determining when an injury is received "in the course of" and when it "arises out of" the employment, it was said, as observed by the Court of Appeal, in deciding this case, that:

"It is sufficient to say that an injury is received 'in the course of' the employment when it comes while the workman is doing the duty which he is employed to perform. It 'arises out of' the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural...