Ivory v. Philpot Const. Co.

• Citation: 145 So. 784
• Decision Date: 06 February 1933
• Docket Number: 4362
• Court: Court of Appeal of Louisiana (US)
• Parties: IVORY v. PHILPOT CONST. CO. ET AL

145 So. 784

IVORY v. PHILPOT CONST. CO. ET AL

No. 4362

Court of Appeal of Louisiana, Second Circuit.

February 6, 1933

Hakenyos, Provosty & Staples, of Alexandria, for appellant.

R. W Oglesby, of Winnfield, for appellees.

OPINION

DREW J.

This suit was instituted under the Workmen's Compensation Act of Louisiana (Act No. 20 of 1914, So as amended), and plaintiff prays that he be awarded compensation in the sum of 65 per cent. of his weekly wage for a period of two hundred weeks, for the loss of an arm.

The defense is that the accident in which plaintiff was injured did not arise in the course of plaintiff's employment or out of his employment, but that it occurred about 10 o'clock at night, after plaintiff had ceased work for the day and had retired for the night in a tent owned by plaintiff, and that he was not at the time engaged in any service connected with his employment.

Defendants also filed an exception of no cause of action, but the record does not disclose that it was passed upon below.

The judgment of the lower court was in favor of defendants, and there has been no answer to the appeal. Therefore the exception is not before us.

The Philpot Construction Company was under contract to build a hard-surface road in Grant parish, La. In the section of the parish where the road was to be built negroes were not allowed. When Philpot Construction Company, hereafter spoken of as defendant, moved on to the job, it brought a great many negro laborers it had worked at other places. Soon thereafter, and possibly several months prior to August 16, 1931, some one dynamited the machinery of defendant, after which the state highway commission furnished to defendant a number of guards to watch the machinery and the negro laborers at night.

Defendant set up its camp at Bentley, Grant parish, La., a community where negroes were not allowed, and there was no place nearer than Alexandria where a negro could stay. This was a distance of nearly twenty miles. In order to provide a place for the negro laborers, the defendant secured a plot of ground from the L. & A. Railway Company and erected tents for the negro laborers. The tents were charged to them and a certain amount deducted each week for them from their pay until the tents were paid for. Guards were placed around the camp at night to watch for any prowlers and to protect the negro laborers from harm. The guards were furnished by the Louisiana highway department-twelve in number-but acted under instructions of Mr. Philpot, of the defendant company.

The record shows that, after the machinery was dynamited, the negro laborers would not stay on the job until they were promised by Mr. Philpot that guards would be kept there to protect them. The negroes were under strict orders not to leave camp after 10 o'clock at night.

Work on this project began in the morning often as early as 4:30 and often lasted until 6:30 and 7 o'clock in the afternoon, and for the laborers such as plaintiff to be on the job to go to work on time it was necessary that they occupy a tent located on the ground secured by defendant from the L. & A. Railway Company.

The machinery was blown up in March, and in May following an employee by the name of Crandell was injured while going to Alexandria. He sued for compensation, and in that case, under evidence very similar to the evidence in this case, this court found the following:

"In that part of Grant Parish at the time, there was considerable feeling among the white citizens against the use of negro labor, and, in fact, negroes were not allowed to live in Pollack or near Bentley. The closest place to the work of the Philpot Construction Company that the negro labor could live was the city of Alexandria. The distance from Alexandria was so great as to make it very inconvenient, if not impracticable, for the employees to live in Alexandria and work on this job, for the reason that the work began between 5:30 and 6 o'clock...