Edwards v. Louisiana Forestry Com'n

• Decision Date: 14 January 1952
• Docket Number: No. 40174,40174
• Citation: Edwards v. Louisiana Forestry Com'n, 60 So.2d 449, 221 La. 818 (La. 1952)
• Parties: EDWARDS v. LOUISIANA FORESTRY COMMISSION.
• Court: Louisiana Supreme Court

Page 449

60 So.2d 449

221 La. 818

EDWARDS v.LOUISIANA FORESTRY COMMISSION.

No. 40174.

Supreme Court of Louisiana.

Jan. 14, 1952.

On Rehearing June 2, 1952.

Godfrey & Edwards, Many, for plaintiff-appellant.

Wilkinson, Lewis & Wilkinson, Shreveport, for defendant-appellee.

FOURNET, Chief Justice.

We granted a writ of certiorari in this case to review the decision of the Court of Appeal for the Second Circuit affirming the district court's judgment maintaining the defendant's exceptions of no cause and no right of action and dismissing the plaintiff's suit to recover compensation for an injury sustained in rescuing an imperiled child on the employer's premises.See, Edwards v. Louisiana Forestry Commission, La.App., 49 So.2d 53.

The facts disclosed by the record are that the plaintiff, Charles Louis Edwards, was employed by the defendant, the Louisiana Forestry Commission, as a fire towerman in Sabine Parish.The tower in which he was stationed is located on a 9.69 acre tract of land under lease to the employer and on which the employer constructed a house that was furnished the plaintiff for his occupancy.According to Robert L. McKillup, district forester, Edwards was required to maintain this site.

Shortly after noon on December 31, 1947, while on duty in the tower, Edwards noticed that a child was being attacked by a large dog on the ground approximately twenty feet from the tower base, and within the acreage under lease to the employer.In rushing precipitously down the tower stairway to rescue the child from the dog, which was subsequently found to be rabid, the plaintiff suffered a severe strain that resulted in a left inguinal hernia and a potential hernia on the right.

The defense is predicated on the theory that injuries sustained in this manner are not compensable under the Workmen's Compensation Law of Louisiana, Act 20 of 1914, as amended, LSA-R.S. 23:1021 et seq., because they do not 'arise out of and in the course of employment.'

The Court of Appeal, relying on the cases of Kern v. Southport Mill, Ltd., 174 La. 432, 141 So. 19, and Brown-Pacific- Maxon, Inc., v. O'Leary, 182 F.2d 772, decided by the United States Court of Appeal for the Ninth Circuit, held that regardless how commendable or human the impulse giving rise to the rescue, recovery may not be had in this case because the act in which the claimant was engaged at the time of the injury (going down the stairway) did not redound 'to the benefit or interest of' the employer.The court acknowledges that the phrase "in the course and scope of employment" is synonymous in our jurisprudence with "in contemplation of' the employment', and that injuries resulting from 'natural' acts of an employee are properly considered compensable because they can be 'reconciled with his employment,' but it reasoned the rescue in this case does not come within even the most liberal purview of the judicial 'amplification, extension and liberalization' of the act.In other words, the court does not regard the plaintiff's impulsive rush to the rescue of this child as either a 'natural' act, or one that is within the 'contemplation' of the employment.

The Kern case is clearly not analogous from a factual standpoint, for the employee was not there confronted with a sudden emergency imperiling the life of a stranger on the employer's premises.Instead, he was injured in a traffic accident while returning to the employer's mill after having completed outside work he was specifically instructed to do.This court, in reversing the Court of Appeal and awarding compensation, relied on a long line of cases(among which are Cudahy Packing Co. of Nebraska v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532;Myers v. Louisiana Ry. & Nav. Co., 140 La. 937, 938, 74 So. 256;andDyer v. Rapides Lumber Co., 154 La. 1901, 98 So. 677, stated in the opinion to be practically conclusive) holding, in effect, that injuries do arise 'out of' the employment even though they are sustained while the employee is traveling to and from work or engaged in 'horse play,' and also where they are inflicted by a foreign agency or a third person, whether a stranger or a fellow employee.

It necessarily follows that however persuasive or consoling the defendant and the Court of Appeal may find certain language in the Kern opinion, including the so-called test for determining when an injury arises 'out of' the employment, it is not controlling, since it was not necessary for a decision.In fact, it is in direct contravention of the very authorities said to be conclusive, for they recognize the inability of the courts to draft any determinative test.As Justice Sutherland says in the Cudahy case[263 U.S. 418, 44 S.Ct. 154]: 'Whether a given accident is so related or incident to the business must depend upon its own particular circumstances.No exact formula can be laid down which will automatically solve every case.'And as Justice Provosty expresses it in the Myers case[140 La. 937, 74 So. 258]: '* * * after vain attempts at formulating some verbal test for determining when the injury has or not arisen out of the employment, the courts have come to the conclusion that each case must be determined from its own facts; that the question cannot be solved by phrases.'(Italics ours.)

In the O'Leary case, the other authority relied on, the United States Court of Appeals for the Ninth Circuit, concluded that the claim arising from the accidental death of an employee drowned in an attempt to rescue strangers stranded on a reef separated from the employer's recreational facilities by a channel in which the employees were specifically forbidden to swim could not be allowed, because an attempt to rescue persons not known to be in the employer's service, undertaken in forbidden waters outside the employer's premises, resulted from an act entirely disconnected from any use for which the recreation was provided and so did not arise out of or in the course of employment.

However, since the decision of the Court of Appealwe are here reviewing, the Supreme Court of the United States, reversing the circuit court's judgment on a writ of certiorari, states: 'We think this is too restricted an interpretation of the Act.Workmen's compensation is not confined by common-law conceptions of scope of employment.'Commenting further, the court observes: 'The test of recovery is not a causal relation between the nature of the employment of the injured person and the accident * * *.Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer.All that is required is that the 'obligations or conditions' of employment create the 'zone of special danger' out of which the injury arose.* * * A reasonable rescue attempt * * * may be 'one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute.'' 340 U.S. 504, 71 S.Ct. 470, 471, 95 L.Ed. 483.(Italics ours.)

This is not only the rule with respect to rescue attempts under conditions of emergency, but also those acts that are universally termed 'horse play.'In the landmark case of Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 112 F.2d 11, 15, certiorari denied by the United States Supreme Court, 309 U.S. 689, 60 S.Ct. 891, 84 L.Ed. 1032, the court very graphically demonstrates why emphasis is no longer placed on a particular act and its tendency to forward the employer's work in determining whether an injury is compensable.It very aptly points out that 'Men do not discard their personal qualities when they go to work.Into the job they carry their intelligence, skill, habits of care and rectitude.Just as inevitably they take along also their tendencies to carelessness and camaraderie, as well as emotional makeup.* * * Work could not go on if men became automatons repressed in every natural expression.* * * These expressions of human nature are incidents inseparable from working together.They involve risks of injury and these risks are inherent in the working environment.'After a very exhaustive review of the subject, the court concludes that under the broad view now taken of these statutes, '* * * no more is necessary than that the work subject the employee to a peril which comes from the fact that he is required to be in the place where it strikes when it does so.It is immaterial whether the place is the employer's premises or a street; whether the risk arises from physical features or human agencies connected with the place; whether it is a common occurrence or an extraordinary happening; one which threatens only employees at work or others also.'See, in addition, the opinion of Cardozo in the case of Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522.

These pronouncements reflect the modern judicial concept of compensation legislation, which is based on the premise that the phrase 'arising out of the employment' does not have the same connotation as the common law 'scope of employment,' the interpretation earlier attributed to it, but means, instead, the employment viewed from any aspect-its nature, conditions, obligations, and incidents.They lend emphasis to the growing recognition of the fact that judicial interpretation of these acts creating liability irrespective of fault in the light of common law liability predicated on fault hedges this humanitarian legislation about with the very restrictions it sought to circumvent and abolish, and nullifies the underlying insurance principle inherent in this industrial compensation.See, in addition, to the above mentioned authorities, 3 NACCA 15, 52, 53;4 NACCA 19;7 NACCA 42; 36 Cornell Law Quarterly 229, 230, 234, 257, 258; 20 Fordham Law Review 220;37 Va.L.R. 766;1949 Insurance Law Journal 196; Horovitz on Injury and Death Under Workmen's Compensation Laws 5, 7, 8;Cudahy Packing Co. of Nebraska v. Parramore, 263...