Dyer v. Rapides Lumber Co.

• Decision Date: 05 November 1923
• Docket Number: 26024
• Citation: Dyer v. Rapides Lumber Co., 154 La. 1091, 98 So. 677 (La. 1923)
• Court: Louisiana Supreme Court
• Parties: DYER et al. v. RAPIDES LUMBER CO. In re DYER

98 So. 677

154 La. 1091

DYER et al. v. RAPIDES LUMBER CO.

In re DYER

No. 26024

Supreme Court of Louisiana

November 5, 1923

Rehearing Denied by Whole Court January 7, 1924

Reversed and rendered.

Hakenyos Hunter & Scott and T. F. Hunter, all of Alexandria, for applicants.

Thornton Gist & Richey, of Alexandria, for respondent.

OPINION

ST. PAUL, J.

This is an action for compensation under the workmen's compensation statute (Act 20 of 1914, and amendments). Plaintiffs' demand was rejected by the district court, and that judgment was affirmed by the Court of Appeal.

The case was tried upon the following agreed statement of facts:

"(1) That the petitioner herein is the wife of John J. Dyer, and that to the union there were born two children, Hazel and Leon, both minors, age four and two respectively, and both now living and parties to the above suit with their mother.

"(2) That John J. Dyer, the husband and father of petitioners, was killed on August 13, 1921, while in the employment of the defendant between 4 and 5 o'clock a. m. while making up the fire in the engine of the defendant company.

"(3) That on August 13, 1921, that the engines of the Rapides Lumber Company, which are used in hauling logs, were kept at night in a siding in the woods near its pumps; that the nearest habitation to the engine on which John J. Dyer was killed was about 400 feet away; that the duties of the said Dyer were performed at night, said duties being to attend to the engines, clean them up, build fires therein, and get them ready for the day's run, and that while engaged in making the fire up in the engine of defendant on the morning of the 13th day of August, 1921, that he was shot and killed by an unknown party or parties and found dead on the engine by the engine crew when they came to go out on their run.

"(4) That the said Dyer was being paid $ 2 per day by the defendant company, and that the occupation at which he was engaged is an hazardous occupation within the meaning of the Workmen's Compensation Act."

I.

The Court of Appeal, in its opinion, says:

"It is well established by the text of the Workmen's Compensation Act, and by numerous decisions, that, for the injured employe to recover, the accident must arise both out of and in the course of his employment.

"The statement of facts in the case conclusively shows that the accident arose in the course of Dyer's employment. But there is nothing in the statement of facts to show that Dyer's death arose out of his employment."

But again:

"It is true that the conditions under which decedent worked exposed him to easy attack. It was in the woods. He worked at night. The assassination occurred while the decedent was shut up in the locomotive, stooping over, in a position where he could himself be seen, but could not see the approach of an enemy.

"The plaintiffs contend that under the test laid down in the case of Myers v. La. Ry. & Nav. Co., 140 La. 937, ^[1], 74 So. 256, that plaintiffs are entitled to a judgment. That test is: Whether the nature of the employment was such that the risk from which the injury resulted was greater than for a person not engaged in the employment.

"We have no way of knowing that the assassin would not have shot Dyer wherever and whenever he happened to see him. We have no proof that the assassin would not have opened fire on the decedent on the street, at decedent's home, or elsewhere. Had the decedent been at home, the assassin could have crept up to his home and shot him through the window, while making a fire in the fireplace, or when he struck a match to light a lamp. The most that can be said is that the exposed and isolated condition of decedent's employment probably had some causal connection with his death; but that is not enough."

II.

We think the Court of Appeal has placed too narrow a construction on the terms of the statute requiring that the accident should arise out of the employment. In the leading case on that subject in this jurisdiction, Myers v. La. Ry. & Nav. Co., 140 La. 937, 74 So. 256, Mr. Justice Provosty made a careful review of many cases dealing with the question what accidents might be said to arise out of the employment, most of which are collected in the exhaustive note in L.R.A. 1916A, p. 41 et seq., from which he deduced the rule mentioned by the Court of Appeal, to wit:

"The test to determine whether injuries to a workman arise out of his employment is not whether the cause of the injury, that is, the agency producing it, was something peculiar to the line of employment, but whether the nature of the employment was such that the risk from which the injury resulted was greater for the workman than for a person not engaged in the employment."

And the learned justice added:

"This is certainly the view that has been taken in street accidents, where relief has been allowed in certain cases and not in others."

Now in the case before us the Court of Appeal has well reasoned that the conditions under which defendant worked (at night and in an isolated spot) exposed him to easy attack. This was the direct and necessary result of his employment and the indisputable fact that he was thus exposed by the nature of his...