Fowler v. Louisiana Highway Commission

• Decision Date: 02 May 1935
• Docket Number: 4945
• Citation: 160 So. 813
• Court: Court of Appeal of Louisiana — District of US
• Parties: FOWLER et al. v. LOUISIANA HIGHWAY COMMISSION

160 So. 813

FOWLER et al. v. LOUISIANA HIGHWAY COMMISSION

No. 4945

Court of Appeal of Louisiana, Second Circuit.

May 2, 1935

Rehearing denied June 4, 1935.

E. R Stoker and L. L. Morgan, both of Baton Rouge, for appellant.

Geo Wesley Smith, of Rayville, and K. Ann Dodge, of Monroe, for appellees.

OPINION

TALIAFERRO Judge.

Plaintiffs, the parents of Norman Fowler, deceased, alleging dependence upon him for support and subsistence, bring this suit against the Louisiana Highway Commission, employer, to recover compensation. The facts in the case are nearly all undisputed. The main issue involved, one of law, is whether deceased, when injured, was "performing services arising out of and incidental to his employment in the course of his employer's trade, business or occupation," within the meaning of the Workmen's Compensation Law (Act No. 20 of 1914, as amended), as interpreted, construed, and applied by the courts of the state.

Deceased, a minor, was employed by defendant in September, 1931, as a day laborer to work on the highways in Tensas parish, then being resurfaced with gravel, under the direction of the maintenance unit whose headquarters were at Winnsboro in Franklin parish. He lived with his parents in the Liddieville community some eight or ten miles west of Winnsboro, and about thirty-five miles from where he intended to work the day he was injured.

It appears that some time prior to 1931, defendant decided to employ white men in lieu of colored labor to do the heavy work incident to road construction in Tensas parish, but was unable to secure the services of an adequate number in that parish. The superintendent, Mr. Ed Randall, then turned to Franklin parish for the needed help. A large number in that parish, from time to time, were employed to go into Tensas parish and work on the roads. Some of these employees used their own cars in going to and from this work. Others moved with their families to near the scene of the work and established temporary living quarters there. Some would return to their homes in Franklin parish at week-ends in cars of colaborers, and would return to their work on Monday morning in same manner. All who did not establish living quarters secured board and lodging at or near where the roadwork was being done. It is not contended by plaintiffs, nor could it well be done, that defendant or its agents expressly agreed to gratuitously transport any of these workmen to or from their work, but it is earnestly urged and contended that there was an implied understanding that such would be done, or that furnishing of such transportation was an incident to the contract of hiring. A week or more after workmen from Franklin parish began work on the roads over in Tensas parish, some of them requested of their foreman the use of a truck to return to their homes at the weekend. This request was communicated to the superintendent, Mr. Randall, and he acceded thereto, although at the time, to his knowledge, there was a strict rule of defendant against the use of the trucks at any time for purposes of pleasure. Mr. Randall did not construe his action in this respect as a breach of the rule, as he thought it would be beneficial to the commission as well as an accommodation to the workmen. His position in this respect, and the facts of the contract of hiring of these workmen, is clearly disclosed from the following excerpt from evidence given by him in the case, viz.:

"Q. Now what was the custom of the Commission in transporting the labor from Franklin Parish to the job in Tensas Parish? A. Well, there wasn't any agreement, but we did give them permission to go and come on week-ends in the highway truck, used one truck to turn it over to one certain man to drive, to bring the men back and forth on week-ends.

"Q. Now was it necessary in order to get the labor, to do that; to bring them back on the week-end and take them back on Monday morning? A. Well, it worked out good help; it was a help to the man and a help to the Commission, I figured. I was the sole cause of that all right, they needed the labor, we needed the labor and the labor needed the work, that was the method we used in being able to get the labor that we wanted.

"Q. Now when a man accepted employment from Franklin Parish, with the Commission, he knew that the Commission was transporting them backwards and forth, didn't he? A. Well, it wasn't agreed, No.

"Q. You may not have agreed to do that, still he knew it was being done? A. Yes.

"Q. That was the common knowledge? A. Chances is he did, yes.

"Q. It was the common knowledge that is what you were doing, wasn't it? A. Yes."

The modus operandi here discussed grew into a week-end practice. A truck would be turned over to a trusted employee to drive, and he would carry several of the laborers to their homes in Franklin parish after work was over on Saturday evenings, and bring them back to the place of their work early Monday morning. This practice was known to young Fowler when he first began to work for defendant. It seems to have been generally known in and about the community wherein his parents lived. Having no motor vehicle of his own, he was necessarily dependent upon others, or defendant, to visit his parents at intervals. However, it was a personal matter to the workmen whether and when they returned to Franklin parish. Defendant made no rule in that regard.

On Saturday evening, December 12, 1931, Norman Fowler rode from his work in Tensas parish to his home in a truck of defendant, driven by a colaborer. Other workmen accompanied them. In keeping with the custom, it was understood that this truck driver, early the following Monday morning, would pick up these same men at certain places along the highway and return them to Tensas parish for the week's work. This trip was begun before daylight Monday morning. The driver and another workman were in the truck as it approached and passed the spot where young Fowler was to be at the time. They did not see him, but the truck's rate of speed was there reduced. They went on down the road a short distance and called for him at his parent's home, and being by them advised he had left there some thirty minutes previous, they turned around and proceeded back down the road over which they had just passed, and found deceased on the roadside badly injured. His groans and cries for help had awakened some farmers who lived nearby, and these reached him before the truck did. The testimony and pertinent circumstances convince us that deceased, when he became convinced the truck was not going to stop where he was standing, undertook to board it while in motion, failed in the attempt, fell to the ground, and its right rear wheel passed over his body. This is the version of the facts of the accident as related by deceased as soon as he was reached by others. Circumstantial evidence bearing upon this question is sufficient in probative weight to satisfy us that the accident occurred in this manner. Defendant, however, does not concede this to be correct.

Deceased was not able to walk thereafter. He lingered several months in a sanitarium in Winnsboro, and was taken to the Charity Hospital in Shreveport three different times, and died therein on December 6, 1932, nearly one year after being injured. The Union Indemnity Company, defendant's insurer, paid him compensation to the date of his death, and $ 250 on hospital expenses. The commission paid physicians', hospital and nurses' bills incurred while deceased was at the Winnsboro sanitarium, amounting to more than $ 1,800. The surety company becoming insolvent, its corporate capacity was terminated and receivers appointed January 6, 1933, to wind up its affairs. Hence, cessation of...