Higginbotham v. Public Belt Railroad Commission

• Decision Date: 02 May 1938
• Docket Number: 16933
• Citation: 181 So. 65
• Court: Court of Appeal of Louisiana — District of US
• Parties: HIGGINBOTHAM v. PUBLIC BELT RAILROAD COMMISSION et al

181 So. 65

HIGGINBOTHAM v. PUBLIC BELT RAILROAD COMMISSION et al

No. 16933

Court of Appeal of Louisiana, Orleans.

May 2, 1938

Rosen Kammer, Wolf & Farrar, of New Orleans, for appellant Public Belt Railroad Commission.

Wm Boizelle, Asst. City Atty., of New Orleans, for appellant City of New Orleans.

John D Nix, Jr., and Walter B. Hamlin, both of New Orleans, for appellee.

OPINION

JANVIER Judge.

By authority of the Constitution and statutes of Louisiana, the Public Belt Railroad Commission of New Orleans (hereinafter, for convenience, called the "Public Belt") operates a system of railroad at the Port of New Orleans and over it transports merchandise. By the same authority, it operates the large recently constructed bridge spanning the Mississippi river just above the City of New Orleans. This structure, known as the "Huey P. Long Bridge," is also a part of the highway system of the State of Louisiana, and over it, on "wings" constructed for that purpose, passes vehicular and other traffic moving over that highway system.

George Ernest Higginbotham, on September 2, 1937, the day on which he was killed, was employed by the said Public Belt as a "maintenance man" on the said bridge. His duties required him to inspect the piers which supported the bridge to ascertain whether there had been any horizontal movement in any of them. In doing so, he moved from pier to pier along the "cat-walk" under the upper surface of the bridge and lowered, alongside each pier, an instrument or testing device known as a "plumb-bob," composed of an 8-pound weight at the end of a very long wire. In doing so, or in moving the instrument from one pier to another, he permitted it to come into contact with a high-tension electric wire which passed under the bridge. This contact permitted the electric current to be transmitted to his body through the wire, causing him to fall to the ground some 80 or 100 feet below. He died as a result of the injuries sustained.

The piers on which he was then working supported only the railroad portion of the structure, which, extending to the ground on a much more gradual decline than did the "wings" which carried highway traffic, continued a mile or so beyond the point at which the "wings" connected with the ground.

There survived him his widow, Mrs. Hazel Young Higginbotham, and a minor son, George Ernest Higginbotham, Jr. His widow, having qualified as natural tutrix of the minor son, individually as widow and as tutrix brought this suit seeking compensation under the laws of the state. Act No. 20 of 1914, as amended.

The Public Belt and the City of New Orleans, made defendants, filed exceptions of no right of action, no capacity to stand in judgment, and no cause of action. Evidence was taken on the exception of no right of action and on the exception of no capacity to stand in judgment. All the exceptions were overruled and the matter was tried below on the issue presented by the answer of defendants in which they, in effect, admitted the facts of the occurrence and of the employment, but asserted that any recovery to which any one might be entitled should be governed and controlled by the Federal Employers' Liability Act, 45 U.S.C. A. §§51-59, and not by the state statute.

Judgment was rendered in favor of plaintiff individually and as tutrix of her minor son. The amount thereof was fixed at $ 20 per week for 300 weeks and it also included $ 150 as expenses of burial. From this judgment defendants have appealed.

Section 1 of the Federal statute, 45 U.S.C. A. §51, reads as follows: "Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, 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 the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, 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."

We consider, first, the issue raised by the exception of no cause of action. Defendants rely upon the allegations of the petition as showing, in effect, that the Public Belt is a common carrier engaged in interstate commerce and they direct attention to section 30 of the State Workmen's Compensation Law, Act No. 20 of 1914, as amended by Act No. 244 of 1920, §1, which section provides: "That this Act shall not be construed to apply to any employer acting as a common carrier while engaged in interstate or foreign commerce by railroad, provided that the employee of such common carrier was injured or killed while so employed; but if the injury or killing of an employee of a railroad occurs while the employer and employee are both engaged and employed at the time in an intrastate operation or movement and said movement or operation is not controlled or governed by the laws, rule of liability or method of compensation which has been or may be, established by the Congress of the United States, then this Act shall govern and compensation which has been or may be, established by the Congress of the United States, then this Act shall govern and compensation shall be recovered hereunder."

They concede that the said section contains a proviso which permits the application of the act where "the injury or killing (3)5C occurs while the employer and employee are both engaged and employed at the time in an intrastate operation or movement," but they maintain that since, by this proviso, there is furnished an exception to the general rule first above referred to, any one who, under the state statute, seeks recovery from such common carrier, is under the necessity of alleging and showing facts which bring the matter within the exception, and they maintain that, since plaintiff has not alleged that at the time of his death Higginbotham was engaged exclusively in intrastate commerce, she has not brought herself within the coverage of the state statute.

Defendants also maintain that even without reference to the express provisions of the state statute, which excludes from its protection those who are engaged in interstate commerce by common carrier, and even if that statute did not exclude such employees, they maintain that still no cause of action under that statute would be shown because, since the federal act, where it is applicable, excludes the operation of any state statute touching upon the subject of recovery by or on behalf of employees engaged in interstate commerce wherever, in the employment, are shown the constituents of interstate commerce, the burden is on the plaintiff to allege and to show that the employment was actually intrastate, and they maintain, therefore, that plaintiff, having failed to allege exclusive intrastate employment, has not taken the matter out of the exclusive cognizance of the federal statute and, therefore, has not alleged a cause of action under the state statute under which recovery is sought.

In Bordelon v. New Orleans Terminal Co., 14 La.App. 60, 129 So. 452, 453, we considered the identical question which is presented by the above first stated ground on which the exception is based and there we said: "Under the circumstances it seems to us that the burden of proving plaintiffs' case to be without the rule and within the exception mentioned in the state act rested upon the plaintiffs, and that, since there is neither allegation in the petition nor proof in the record to show that, at the time of Young's injury, he was not engaged in a duty inseparably connected with the prosecution of defendant's interstate business with which it was mainly engaged, then plaintiffs' suit must fail."

In Philadelphia & Reading Ry. Co. v. Polk, 256 U.S. 332, 41 S.Ct. 518, 519, 65 L.Ed. 958, on the question of where lies the burden of proof and, consequently, where lies the burden of making the necessary allegation when there are shown the constituents of interstate commerce, the Supreme Court of the United States said: "It would seem indisputable, therefore, if there be an assertion of the claim or remedy growing out of an occurrence in which there are constituents of interstate commerce the burden of explanation and avoidance is on him who asserts the claim or remedy, not on the railway company to which it is directed, and there is nothing in Osborne v. Gray, 241 U.S. 16, 36 S.Ct. 486, 60 L.Ed. 865, in opposition."

But to sustain the exception based solely on the absence of an allegation, which allegation, so far as we can tell, possibly can be made, might merely result in delay, because it is now well settled that in such case the opportunity to amend should be afforded. Reeves v. Globe Indemnity Company, 185 La. 42, 168 So. 488; 9 Tulane Law Review 55. We, therefore, consider the issue presented by the exception of no right of action because, if that exception is well founded, there is no escape from a judgment of absolute dismissal. That exception that the widow, as such, and as tutrix of the minor, is without right to seek redress for the death of the employee of a common carrier occurring while the employee is engaged in the furtherance of interstate commerce is founded on the...