Harvey v. Caddo De Soto Cotton Oil Co.

• Decision Date: 02 February 1942
• Docket Number: 36306.
• Citation: 6 So.2d 747,199 La. 720
• Court: Louisiana Supreme Court
• Parties: HARVEY v. CADDO DE SOTO COTTON OIL CO., Inc.

6 So.2d 747

199 La. 720

HARVEY v. CADDO DE SOTO COTTON OIL CO., Inc.

No. 36306.

Supreme Court of Louisiana

February 2, 1942

Rehearing Denied March 2, 1942.

James T. Jeter, of Shreveport, for applicant.

Cook Cook & Egan, of Shreceport, for respondents.

McCALEB Justice.

On March 12 1940, a severe tornado or cyclone passed through a part of the City of Shreveport. Entering the City from its west side the cyclone traveled easterly on a path approximately one half mile wide through a thickly settled section and caused considerable damage to property, killing ten persons and injuring fifty others.

The defendant, Caddo De Soto Cotton Oil Company, Inc., owned and operated a plant in the City of Shreveport which was directly in the path of the cyclone. William Crawford, an employee of the defendant, was working in defendant's hull house at the time the cyclone struck. The force of the wind demolished this building and Crawford met his death as a result of its collapse. The hull house was a twostory building constructed in 1924, or sixteen years previous to its demolition. It was forty-eight feet wide, two hundred and sixteen feet long and was used for storage purposes. It was without partitions, being of the warehouse type, but various joists, columns, girders and outside walls supported the second story and roof. At the time of the accident, sixteen hundred tons of cottonseed hulls were stored in the second story of the building and, when it collapsed, Crawford, who had been working on the ground floor, was buried under the debris.

After Crawford's death, the plaintiff, a sister of the deceased who was dependent upon him for support, brought this suit in Caddo Parish under the provisions of the Employers' Liability Act, Act No. 20 of 1914, to recover compensation from the defendant. Liability was resisted by the defendant upon two grounds: (1) That since Crawford left a widow and minor child, plaintiff, as the deceased's sister, was not entitled to compensation under the statute, and (2) that, at all events, no compensation was legally due because Crawford did not meet his death as a result of an accident arising out of his employment but as a consequence of an act of God.

The widow and child of Crawford intervened in the proceedings in the District Court claiming that they were entitled to the compensation. After the pleadings were filed, the widow, admitting that she was not a legal dependent, abandoned her personal claim to compensation but asserted that her minor child was entitled to it.

On the issues above set forth, the case was thereafter submitted to the District Judge for his decision on a stipulation of facts supplemented by oral testimony and he found that the plaintiff was the sole legal dependent of the deceased entitled as such to the compensation provided by law. Accordingly, judgment was rendered in plaintiff's favor and the intervention of the widow and child of the deceased was dismissed. From this judgment, the defendant alone prosecuted an appeal to the Court of Appeal for the Second Circuit.

Thereafter, the Court of Appeal, by a two to one decision, reversed the finding of the District Court and held that there could be no recovery because the accident causing the decedent's death did not arise out of or as an incident to his employment with the defendant, but solely as a consequence of an act of God having no connection whatever with the employment.

After the judgment of the Court of Appeal became final, the plaintiff applied to this Court for a writ of review. The writ was granted and the matter is now before us for decision.

There is no dispute between the parties with respect to the hazardous character of the defendant's business, the employment and weekly wage of the deceased, and it is also admitted that the latter was killed while performing duties in the course of his employment. The defendant, however, claims that the plaintiff is not entitled to compensation for two reasons: (1) Because the death of Crawford resulted from an act of God and did not arise out of his employment, and (2) if it be held that the decedent's death is compensable, the demands of plaintiff must be rejected because of the existence of Crawford's minor child, even though the latter is not entitled to compensation.

We shall discuss these contentions in their respective order.

The opinion of the Court of Appeal sustained the defendant's first contention. The majority of the Court held that Crawford's death was solely attributable to the cyclone which caused the defendant's building to fall and that the fact that the employee was working in the building at the time it was demolished had no causal connection with his death, since the cyclone was severe in its force and destroyed or damaged most of the property which happened to be in its path. In other words, it found, as a fact, that Crawford was subjected to no greater hazard from the cyclone by reason of his employment than that to which the general public was exposed. On the other hand, the dissenting Judge, while coinciding with his colleagues with respect to the law applicable to the case, disagreed with them as to their conclusion in applying the law to the undisputed facts. He pointed out in his dissenting opinion that, since it was shown that the hull house in which Crawford was required to work was a large building unprotected by partitions and heavily loaded with 1600 tons of cottonseed hulls in the second story, the hazard to the deceased in case of a cyclone was vastly greater than that encountered by the general public.

It is stated by the majority opinion of the Court of Appeal that this case is one of first impression in the courts of this State. While it is true that this is the first time that a compensation case has arisen involving a tornado or windstorm, there have been cases presented to our Courts of Appeal respecting liability for accidents arising as a result of the natural elements. In Gasca v. Texas Pipe Line Co., 2 La.App. 483, the question involved was whether the death of an employee killed by lightning was compensable. The court there held in the affirmative because it was found that the conditions to which the decedent's employment subjected him increased the risk from lightning and that there was, therefore, a sufficient causal connection between the employment and the accident. And in Lebourgeois v. Lyon Lumber Co., 6 La.App. 216, and Fontenot v. Lyon Lumber Co., 6 La.App. 162, the Court of Appeal for the First Circuit, following the decision in the Gasca case, held to the same effect.

A review of the general jurisprudence on the subject reveals the curts of this country have experienced some difficulty in determining what is or what is not 'an accident arising out of' the employment in various compensation cases. The first case in Louisiana on the question is that of Myers v. Louisiana Railway & Navigation Co., 140 La. 937, 74 So. 256, 258, where, in speaking of a compensable accident, it is said:

'It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.'

With respect to accidents which result from the elements or acts of God, 71 Corpus Juris 757 informs:

'In order that harm which results to an employee by reason of his exposure to the weather or natural elements may be compensable as an injury arising out of and in the course of his employment, the exposure of the employee by reason of his employment must be greater than that of other persons in that locality.'

This doctrine has been generally applied by the courts of this country. The cases are legion on the subject and it would serve no useful purpose to cite them here. As a matter of fact, the test applied in most cases, where the accident originates from a force disconnected with the employment, is whether the employee is exposed to greater danger because of his employment than that to which the public is subjected. And this is true whether the force which caused the accident is an act of God or the act of a third person.

However, the test above stated has not been uniformly followed by this Court. On the contrary, in Kern v. Southport Mill, 174 La. 432, 141 So. 19 (the latest authority of this Court on the subject), we adopted a broader view with respect to the test to be applied in determining whether an accident 'arises out of' the employment. In that matter, the employee had been sent by his superiors to perform work outside of the will where he was employed and, on returning to the mill, he stepped out of a street car into the path of an automobile, which struck and injured him. The question presented was whether the accident was one arising out of the employment.

The defendant maintained that the accident was occasioned by a risk, common to all, disconnected with its business and that the hazard to which the employee was exposed was no greater than that to which the general public was subjected. When the case reached the Court of Appeal for the Parish of Orleans, that Court (see Kern v. Southport Mill, 19 La.App. 338, 136 So. 225), applying the test adopted by most of the courts, held that, since the accident was one which arose from a traffic hazard to which the public generally was subjected, the peril to Kern was not increased by reason of his employment and that, therefore, there could be no recovery. However, this Court, on writ of review, reversed the judgment of the Court of Appeal and announced the following liberal rule of interpretation of the meaning to be given to the applicable language of our compensation statute:

'* * * the statute further requires that the accident must also 'arise...