Isthmian SS Co. of Delaware v. Olivieri

• Decision Date: 11 March 1953
• Docket Number: No. 14111.,14111.
• Citation: 202 F.2d 492
• Parties: ISTHMIAN S. S. CO. OF DELAWARE v. OLIVIERI et al.
• Court: U.S. Court of Appeals — Fifth Circuit

202 F.2d 492 (1953)

ISTHMIAN S. S. CO. OF DELAWARE v. OLIVIERI et al.

No. 14111.

United States Court of Appeals Fifth Circuit.

March 11, 1953.

S. Paul Weiss, Jr., Weiss & Weiss, New Orleans, La., for appellant.

Bentley G. Byrnes, Edward A. Wallace, Robert G. Hughes and Frank T. Doyle, New Orleans, La., for appellee.

Before HUTCHESON, Chief Judge, and STRUM and RIVES, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a judgment in favor of the appellee, Patrick Olivieri, against the appellant, on account of personal injuries suffered by Olivieri. The question is whether workmen's compensation was Olivieri's exclusive remedy under pertinent Louisiana statutes set out in the margin.¹

Appellant contracted with Lehon's Protection Police Service, Inc. to furnish watchmen or guards as requested by appellant for the protection of outgoing and incoming cargo at its wharves. The guards were paid by and under the supervision and orders of Lehon's, and that company was responsible to appellant for any pilfering that took place. While Olivieri was on duty as such a guard at appellant's Galvez Street Wharf, one of appellant's employees permitted some cartons or crates to fall on his leg causing the injuries for which the judgment was rendered. Appellant contends that the work of watching and guarding the cargo was a part of appellant's trade, business or occupation and hence that Olivieri should be restricted to the recovery of compensation.

The jury answered a specific interrogatory as follows: "2. Were the duties performed by the plaintiff normally part of the trade, business or occupation of the Isthmian Steamship Company? no"

The district judge was of the opinion: "There is substantial evidence in the record to support the jury's finding. Certainly it is a question on which reasonable men might differ."

After a careful review of the record, we are constrained to disagree. The court, in submitting the question to the jury, failed to give any instructions as to the tests to be applied in determining what duties would be "normally part of the trade, business or occupation" of the appellant. Without knowing the standards by which the jury considered and decided that question, its verdict carries little weight. The question involves a decision upon issues of both law and fact or, as often said, upon a mixed question of law and fact.

On the law, the Louisiana cases are of course controlling. Those cases have settled that the compensation statute is to be liberally construed so as to include all services that can reasonably be said to be within the statute not only when the injured person seeks its protection, but when he attempts to have himself excluded from the coverage of the act. The decisive factors are the nature of the employee's work and of the principal's trade, business, or occupation. Unless the work is of such a special or separate character as would not ordinarily or appropriately be performed by the principal employer's own employees in the prosecution of its business or as an essential part thereof, it is a part of the principal's trade, business or occupation. Dandridge v. Fidelity & Casualty Co., La. App., 192 So. 887, 891; Thibodaux v. Sun Oil Company, La.App., 40 So.2d 761, 764, 765, affirmed 218 La. 453, 49 So.2d 852; Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137, 144.

While there was evidence that some steamship lines guarded their own cargo while others contracted for...