Fluitt v. New Orleans, T. & M. Ry. Co.

• Decision Date: 29 March 1937
• Docket Number: 34176
• Citation: 174 So. 163,187 La. 87
• Parties: FLUITT v. NEW ORLEANS, T. & M. RY. CO. et al
• Court: Louisiana Supreme Court

174 So. 163

187 La. 87

FLUITT v. NEW ORLEANS, T. & M. RY. CO. et al

No. 34176

Supreme Court of Louisiana

March 29, 1937

Judgments annulled and set aside, and judgment rendered.

S. W Plauche and C. V. Pattison, both of Lake Charles, for relator.

Milling Godchaux, Saal & Milling, of New Orleans, and Frank E Powell, of De Ridder, for respondents.

HIGGINS, Justice. FOURNET, J., recused.

OPINION

HIGGINS, Justice.

Plaintiff sued the New Orleans, Texas & Mexico Railway Company for compensation of $ 20 per week for 400 weeks for permanent disabilities said to have resulted from injuries received by him in an accident on May 22, 1933, while employed in the company's shops at De Quincy, La. Before answer was filed, plaintiff filed a supplemental and amended petition, alleging that at the time of the accident L. W. Baldwin and Guy A. Thompson, by virtue of appointment by the federal court of the Eastern District of Missouri, in bankruptcy proceedings, were operating the railway company in their capacity as trustees, and made them parties defendant.

The trustees answered, admitting that at the time of the accident the plaintiff was their employee, but denied that he was an employee of the railway company. They also denied liability, and denied that the plaintiff was permanently injured as a result of the accident, and further pleaded that at the time he was injured he was employed by an interstate carrier in interstate commerce and was injured while performing services in interstate commerce and his claim for damages arose exclusively under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. and not the Workmen's Compensation Law of Louisiana (Act No. 20 of 1914, as amended). The defendants also pleaded a compromise settlement by them with the plaintiff in the sum of $ 414.12, and a release given by him to them, relieving them of all further liability.

The New Orleans, Texas & Mexico Railway Company filed an exception of no cause of action on the ground that at the time of the accident the plaintiff was not in its employ, but was in the employ of thetrustees. In the alternative, the railway company filed an answer, which was similar to the one filed by the trustees.

As a result of the defendants' averment of compromise and release, the plaintiff filed a second supplemental petition, praying for additional compensation for a lump-sum settlement of compensation made without the approval of the court and with a discount of more than eight per cent. in contravention of the provisions of subsection 9 of section 8 of Act No. 242 of 1928 (page 362), amending paragraph 9 of section 8 of Act No. 85 of the Regular Session of the Legislature of 1926, and Act No. 20 of the Regular Session of the General Assembly for the year 1914. The defendants answered this supplemental petition, denying that the compromise was a lump-sum settlement of compensation, and averring that it was a valid compromise of plaintiff's claims for damages under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

When the case was called for trial, the exception of no cause of action was sustained and the suit dismissed as to the railway company. Plaintiff did not appeal from that judgment.

Thereafter, the case was litigated on the merits between the plaintiff and the trustees, and the suit was dismissed by the trial judge, who ruled:

"Considering all the circumstances in this case, it must be held that the engine which plaintiff was assisting in repairing at the time he was injured was at that time an instrumentality of interstate commerce, and therefore the plaintiff was engaged at the time of his injury, in interstate commerce."

The Court of Appeal affirmed the judgment on the same ground. 169 So. 803. A rehearing was refused, and plaintiff applied to this court for a writ of certiorari, which was granted, and the case is now before us for review.

The undisputed facts pertaining to whether or not plaintiff was engaged in interstate commerce within the purview of the Employers' Liability Act so as to preclude him from bringing this action under the Workmen's Compensation Law of Louisiana, as admitted in the pleadings and proved on the trial, are as follows:

The plaintiff was employed by the defendant trustees as the operator of a portable electric crane, resembling a large motortruck, in the roundhouse and repair shop of the railway company at De Quincy; that his duties consisted of operating the crane in moving heavy objects in and around the roundhouse and sometimes in the shop yards; that on May 22, 1932, the plaintiff was instructed to pick up with the crane an engine tire weighing about 400 pounds, which was in the shop yard, and place it alongside a locomotive, which was in the roundhouse for monthly inspection and repairs, as required by the rules of the Interstate Commerce Commission, this passenger engine having been placed in the roundhouse at the end of the regular interstate run at noon on May 21, 1933, and, after repairs, went out on an interstate run at 4:30 p. m. on May 23, 1933; that this locomotive at one time had been used in interstate freight service; that, after backing the electric crane out of the shop to pick up the engine tire, the crane collided with a coal car, which was not in motion, and the plaintiff was crushed between the car and the crane; that the locomotive was out of service at the time and was in the roundhouse for repairs, after having completed its interstate run; and that the plaintiff's sole duty with reference to it consisted of the assignment to lay the tire alongside the engine, he having nothing to do with any repairwork to be done on it.

The pertinent part of section 1 of the Federal Employers' Liability Act reads as follows:

"Every common carrier by railroad while engaging in commerce between any of the several States or Territories * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." U.S. Code, title 45, chapter 2, § 1, 45 U.S.C.A. § 51, Act of April 22, 1908, c. 149, § 1, 35 Stat. 65.

This statute is clearly recognized by the Louisiana Workmen's Compensation Law, section 30 of Act No. 20 of 1914 (as amended by Act No. 244 of 1920), which expressly provides that it does not cover employees engaged in interstate or foreign commerce.

In order to hold that plaintiff's cause of action is governed by the federal statute, it must be found that plaintiff was engaged either in interstate transportation, or in work so closely related to such transportation as to be practically a part of it. Chicago & North Western Railway Co. v. Bolle, 284 U.S. 74, 52 S.Ct. 59, 76 L.Ed. 173; Shanks v. Delaware, Lackawanna & Western R. R. Co., 239 U.S. 556, 36 S.Ct. 188, 189, 60 L.Ed. 436, L.R.A.1916C, 797.

In the case of Chicago & North Western Railway Co. v. Bolle, supra, the United States Supreme Court clearly distinguishes between "interstate commerce" and "interstate transportation" as used in the federal statute, as follows:

"It will be observed that the word used in defining the test is 'transportation,' not the word 'commerce.' The two words were not regarded as interchangeable, but as conveying different meanings. Commerce covers the whole field of which transportation is only a part; and the word of narrower signification was chosen understandingly and deliberately as the appropriate term. The business of a railroad is not to carry on commerce generally. It is engaged in the transportation of persons and things in commerce; and hence the test of whether an employee at the time of his injury is engaged in interstate commerce, within the meaning of the act, naturally must be whether he was engaged in interstate transportation, or in work so closely related to such transportation as to be practically a part of it."

It is clear that at the time the plaintiff was accidentally injured he was not actually engaged in interstate transportation. In order to hold that his cause of action comes under the federal statute, it is necessary to find that he was engaged in work so closely related to interstate transportation as to be practically a part of it.

One of the earliest cases bearing on this question is that of Delaware, Lackawanna & Western R. R. Co. v. Yurkonis, 238 U.S. 439, 35 S.Ct. 902, 903, 59 L.Ed. 1397, 1399. In that case, the facts and findings of the United States Supreme Court appear from the following excerpts taken therefrom:

"The complaint charged that the injuries were received while the plaintiff was employed in the defendant's colliery in Luzerne county, Pennsylvania. As to the manner of injury, the complaint averred that while the plaintiff was in the employ of the defendant in its colliery, and was engaged in and about the performance of his duties, preparing and setting off a charge of dynamite for the purpose of blasting coal, the explosive gases which accumulated at the place where plaintiff was working suddenly ignited and exploded causing a squib attached to the charge of dynamite to catch fire and to be immediately consumed, so that the charge of dynamite was exploded and discharged, and as a result thereof the plaintiff received great, severe, and permanent injuries. * * *

"The amended complaint added certain allegations wherein it was alleged that the defendant, for the purpose of its railroad,...