Floyd v. Vicksburg Cooperage Co.

• Decision Date: 17 February 1930
• Docket Number: 27995
• Citation: 156 Miss. 567,126 So. 395
• Court: Mississippi Supreme Court
• Parties: FLOYD et al. v. VICKSBURG COOPERAGE CO

126 So. 395

156 Miss. 567

FLOYD et al. v. VICKSBURG COOPERAGE CO

No. 27995

Supreme Court of Mississippi

February 17, 1930

Division B

Suggestion of Error Overruled, March 17, 1930.

APPEAL from circuit court of Warren county HON. E. L. BRIEN, Judge.

Action by Mary T. Floyd and others against the Vicksburg Cooperage Company. From a judgment dismissing the case, plaintiffs appeal. Reversed and remanded.

Reversed and remanded.

Vollor & Kelly and Chaney & Culkin, all of Vicksburg, for appellants.

Liability under Workmen's Compensation Acts is contractual, and in determining the rights of an employee to compensation, the lex loci contractus applies regardless of where the injury may have occurred.

Crane v. Leonard, Crossette & Riley et al., 183 N.W. 204, 18 A.L.R 285; Machin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N.W. 49; 18 A.L.R., page 292; Chambers et al. v. District Court, 139 Minn. 205, 3 A.L.R. 1347; Grinnell v. Wilkinson, 39 R. I. 447; Ann. Cas. 1918B, 618; Smith v. Van Noy Interstate Co., 262 S.W. 1048, 35 A.L.R. 1409; 35 A.L.R., page 1414; Post v. Burger, et al., 216 N.Y. 544; Kennerson v. Thames Towboat Co., 94 A. 372; Gooding v. Ott, 87 S.E. 862; Pettiti v. T. J. Pardy Constr. Co., 103 Conn. 101, 130 A. 70; Krekelberg v. M. A. Floyd Co. (Minn.), 207 N.W. 193; Hall v. Industrial Commission, 77 Colo. 338, 235 P. 1073; Industrial Commission v. Aetna Life Ins. Co., 64 Colo. 480, 3 A.L.R. 1336, 174 P. 589.

The relationship between employer and employee, in the state of Louisiana, as in other optional compensation states, is purely contractual, and the election by employer and employee to come under and be governed by the act is presumed, unless the contrary appears in writing.

Jordan v. Fredrick Leyland & Co., Limited, 7 F. (2), page 386; Ross v. Cochran (La.), 122 So. 141; Woodruff v. Producers' Oil Co., 142 La. 368, 76 So. 803.

As to whether or not Compensation Act of Louisiana became a part of the Mississippi contract of employment where the employee, in the absence of the employer, crossed the line into the state of Louisiana, to perform work assigned to him by the employer in Mississippi. We refer the court to the following authorities:

Western Union Tel. Co. v. Hickman, 248 F. (C. C. A.) 899; pages 900 and 901; Parham v. Standard Oil Company of La., 275 F. 1007.

The Workmen's Compensation Acts are constitutional on account of the elective or optional provisions thereof.

Deibeikis v. The Link-Belt Company, 261 Ill. 454; Pacaud v. Waite, 218 Ill. 138; L.R.A. 1916A, 409; Cudahy Packing Co. of Neb. v. Mary Ann Parramore et al., 263 U.S. 418, 30 A.L.R. 532.

Brunini & Hirsch, of Vicksburg, for appellee.

It is a cardinal principle of pleading that whenever a suit is based on a foreign statute, that the complaint must so show.

36 Cyc. 1240, et seq.

It is the contention of the appellee that the Louisiana Workmen's Compensation Act applies to the case at bar, but that it is not enforceable in Mississippi.

Ohio v. Gardinio, 119 St. 539, 164 N.E. 758; Alabama R. R. Co. v. Carroll, 11 So. 803; Hargis v. McWilliams Co., 119 So. 88; Texas Pipe Line Co. v. Ware, 15 F.2d 171; United Dredging Co. v. Lindberg, 18 F.2d 453; Keane v. Cunningham, 222 F. 821; Dennick case, 103 U.S. 11, 26 L.Ed. 439; Jordan v. Fredrick Leyland & Co., 7 F.2d 386; Phillips v. Guy Drilling Co., 79 So. 549; Whittington v. Louisiana Sawmill Co., 76 So. 754; Ross v. Cochran, 122 So. 141.

The general rule as to the pursuit, in the courts of the other states or of the nation, of rights created by a state is subject to the limitation that the right sought to be enforced is not inconsistent with any local or public policy of the state where suit is brought in its courts to enforce the right, or with the public policy of the United States if suit is brought in the Federal courts.

Texas & P. Ry. Co. v. Cox, 145 U.S. 593, 12 S.Ct. 905, 36 L.Ed. 829; Chicago & E. I. R. Co. v. Rouse, 178 Ill. 132, 52 N.E. 951, 44 L.R.A. 410; Nashua River Paper Co. v. Hammermill Paper Co., 223 Mass. 8, 111 N.E. 678, L.R.A. 1916D, 691; Reynolds v. Day et al., 79 Wash. 499, 140 P. 681; Houston & T. C. R. Co., et al. v. Fife (Tex. Civ. App.), 147 S.W. 1181; Gaston v. W. U. Tel. Co., 266 F. 595; Lauria v. Du Pont, 241 F. 687, 692; St. Bernard v. Shane, 220 F. 852.

The whole theory of the Compensation Law is opposed to the policy of the state of Mississippi. The theory or principle of the Compensation Law is that the burden of injuries to the servant is passed from the servant to the master, and the master to the consumer.

When an action is brought in one state to recover for personal injury sustained in another state, the law of the latter ordinarily governs as to the rights of the litigant, and the former as to the remedy.

Ledford v. Tel. Co., 179 N.C. 63, 101 S.E. 533; Farr v. Babcocke Lumber Co. , 182 N.C. 725, 109 S.E. 833; 18 A.L.R. 294.

For contrariety of decisions on Workmen's Compensation Acts, see Annotations, State ex rel, Chambers v. District Court, 3 A.L.R. 1351; see Annotations, Kennerson v. Thames Towboat Co., L.R.A. 1916A, 443.

The Louisiana Act has been declared not to be unconstitutional by the supreme court of that state, and not to be opened to objection of a discrimination between those employees coming under the act and those not coming under the same.

Whittington v. Louisiana Sawmill Co., 76 So. 754; Boyer v. Cresent Paper Box Factory, 78 So. 596; Day v. Louisiana Central Lumber Co., 81 So. 328; Colorado v. Johnson Iron Works, 83 So. 381; Graft v. Gulf Lbr. Co., 83 So. 736; Veasey v. Peters, 77 So. 948; Dupre v. Colman, 78 So. 241; Gray v. N. O. Dry Dock & Shipbuilding Co., 84 So. 109; Williams v. Boldgett Const. Co. 84 So. 115; Hogan v. Buja, 262 F. 224; Nash v. Longville Lumber Co., 88. So. 226; Thaxton v. La. Ry. & Nav. Co., 95 So. 773; Hale v. Gilliland Oil Co., 91 So. 853; Labourdette v. Doulett & Williams Shipbuilding Co., 100 So. 547; American Radiator Co. v. Rogge, 86 N.J.L. 436, 98 A. 85; Affirmed in 87 N.J.L. 314, 93 A. 1083; Davidheiser v. Hay, 87 N.J.L. 668, 94 A. 304; West Jersey Trust Co. v. Philadelphia Ry. Co., 88 N.J.L. 102, 95 A. 753; Rounsaville v. Central Ry. Co., 87 N.J.L. 371, 94 A. 392.

Argued orally by John Brunini, for appellee.

OPINION

Griffith, J.

The second amended declaration is as follows:

"Comes Mary T. Floyd, in her own right, and Johnny Floyd, eighteen years of age, Edward Floyd, fifteen years of age, McLain Floyd, thirteen years of age, Dora Floyd, ten years of age Mary Lee Floyd, eight years of age, Nora Bell Floyd, five years of age, Billie Floyd, two years of age, and Margie Floyd, one year of age, minors, by their mother and next friend, Mary T. Floyd, in this their amended declaration, filed by consent of the parties hereto, and by leave of court, and complains of the Vicksburg Cooperage Company, a corporation, and as a cause of action, makes the following statement of facts, to-wit:

"That the defendant, The Vicksburg Cooperage Company at the time of the injuries complained of herein, was, and now is, engaged in the manufacture of hoops, lumber and similar material, and being located in Vicksburg, Warren County, Mississippi, said injuries occurring on or about the 25th day of July, 1925. That at said time, and for some time prior thereto, B. P. Floyd, husband of the plaintiff, Mary T. Floyd, and father of the minors aforesaid, was employed by the defendant Company, and that his duties required him to do and perform such work as from time to time might be assigned to him by the defendant.

"That on or about said date, that is the 25th day of July, 1925, the said B. P. Floyd, being then employed by the defendant Company, was sent from Vicksburg, Mississippi, by the defendant, to Ober Spur, in the state of Louisiana, to load some logs on cars of the defendant Company. That the defendant had theretofore provided and was, on said date, using a derrick for the purpose of loading and moving logs and timber, at said place, in the state of Louisiana, and that said derrick was equipped with various appliances and appurtenances, including log tongs, cables and similar appurtenances and appliances.

"That after the said B. P. Floyd arrived at the place aforesaid, in the state of Louisiana, where he had been directed to go by the defendant, he undertook, as he had been directed to do, by the use of said derrick, to load said logs, and that after one of said logs had been elevated, by the use of said derrick, from the ground some distance, and while it was suspended in the air, the machinery aforesaid by reason of its old, defective, dangerous and unsafe condition, gave way and came loose from its fastenings to said log, causing the log to fall and causing the tongs, and appurtenance, to said derrick, to swing and strike him, the said B. R. Floyd, knocking him to the ground, wounding, bruising, mutilating and crushing him, and causing him to suffer, among other injuries, a fractured skull, from which injuries so suffered, on the following day, and after having been moved to his home in Vicksburg, Mississippi, he died, and that, during the time from the infliction of the injuries complained of to the time of his death, he suffered great mental and physical pain and anguish.

"Plaintiffs state that the defendant Company grossly and willfully neglected, failed and refused to perform its duties in the premises in that due to its gross negligence and carelessness, said machinery and all of its parts, appliances and appurtenances became old, worn, broken, defective and out of repair, and in a dangerous and unsafe condition, and that as a direct and proximate result of its said condition, the said B. P. Floyd was killed, and suffered as aforesaid, and that by reason of his death, pla...