Keyhea v. Woodard-Walker Lumber Co., Inc

• Decision Date: 28 April 1933
• Docket Number: 4467
• Court: Court of Appeal of Louisiana — District of US
• Parties: KEYHEA v. WOODARD-WALKER LUMBER CO., INC

147 So. 830

KEYHEA v. WOODARD-WALKER LUMBER CO., INC

No. 4467

Court of Appeal of Louisiana, Second Circuit.

April 28, 1933

Percy E. Brown, of Arcadia, for plaintiff.

J. Rush Wimberly, of Arcadia, for defendant.

TALIAFERRO Judge., MILLS, Judge (dissenting.)

There was bad blood between these two negroes over their women. It is proven that deceased on the day of the shooting told Williams, his assailant, to get his gun, that he was going to kill him when he came back. The difficulty was provoked and invited by deceased. It arose in no way, and was entirely disconnected from, their common employment. It did not occur on the job or during working hours. Williams, the assailant was not on the train with deceased.It was not caused by the fact that deceased happened to be returning from work on the company engine. It would have happened had deceased been walking and wherever Williams had found him. This is shown by the fact that he was shot twice on the engine and twice in an adjoining pasture as he was fleeing. As he was able to run after the first two shots, it would appear that he was killed by those fired while he was in the pasture. I do not think an accident arises out of or is incidental to the employment merely because the workman happened to be returning from work, at the time of the injury, on a conveyance furnished by his employer. It must be shown that it was due to some danger arising out of that fact; one that would not otherwise have happened. Crysel v. Briggs et al. (La.App.) 146 So 489.In the leading case of Cudahy Packing Co. v Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A. L. R. 532, it is held that the danger must be one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or in an abnormal degree that it must be a risk incident to the employment.Where, by his own willful act, deceased invited this assault and made the difficulty reasonably inevitable, it would have occurred wherever he was found, we cannot agree with the majority opinion that it arose out of or was incidental to the employment. We think the case is clearly distinguishable from those cited in the majority opinion.Indeed, we think the case can well be held to come under the provisions of paragraph 1, §28, of the act, which reads: "That no compensation shall be allowed for an injury caused (1) by the injured employee's willful intention to injure himself or to injure another."In Fisher v. Sherrill Hardwood Lbr. Co., Inc., 3 La.App. 595, the dependents of an employee killed by his foreman while attacking him were denied compensation.For the reasons given above, I respectfully dissent.

OPINION

Shelby Keyhea, an employee of defendant, was shot and killed on May 5, 1930, by one Lee Williams, section foreman on defendant's log railroad. His duties required him to hook large metal tongs to logs to be lifted onto cars on the railway track. The morning of the day on which he was killed, deceased and other laborers, were conveyed to the place where the logs were to be loaded on the cars by defendant's train, consisting of locomotive, tender, and empty cars, and, when the loading had been completed, deceased, in keeping with the rule and custom, accompanied the train on its return trip towards defendant's mill. He was riding in front of the locomotive on the cowcatcher with a co-laborer. When some four miles from the mill, he was shot by Williams, who stood on the ground beside the track.

The evidence is to one accord as to the facts of the killing. Deceased was unarmed, had made no hostile demonstration towards Williams, in fact, so far as the evidence discloses, he was unaware of Williams' presence until the first shot was fired. Two shots were fired at deceased while on the train, and two were fired at him after he had jumped from the train endeavoring to escape his assailant.

Deceased was legally married to Lizzie Keyhea on May 31, 1926. One child, Onita, 4 years old, is the only issue of the union. The widow, in her own behalf, and as natural tutrix of the minor, instituted this suit to recover compensation at the rate of $ 8.32 per week for 300 weeks, or 461/4 per cent. of the weekly wages of deceased. Dependence on deceased for support is alleged. There is no allegation in the petition that Keyhea and plaintiff were living together when he was killed. It is a fact, admitted by both sides, that they were then estranged and had been living apart since January 23, 1930, excepting intermittent visits (mostly at night) by him to her living place, during the month before his death.

In its answer, defendant incorporated an exception to the right and capacity of plaintiff to institute the suit and stand in judgment for her minor child. The plea was tried and overruled. It is not urged in this court, and evidently has been abandoned.

Defendant resists this suit on the following grounds:

(1) That plaintiff, the widow, was living apart from deceased when he was killed, and not dependent upon him for support.

(2) That, when killed, deceased was not acting in the scope of his employment, and he was not then performing services arising out of and incidental to his employment in the course of his employer's business.

(3) That deceased met death because of his own wanton and unlawful act, telling Williams as he (Keyhea) left for work in the morning that he would kill him when he returned and to be ready.

The lower court gave judgment in favor of the minor child, but rejected the demand of the widow. She and defendant appealed.

In this court defendant filed an exception of no cause and no right of action on the ground that plaintiff's petition does not allege that she was living with deceased at time of his death.

A wife living with her husband at time of his death is conclusively presumed to be wholly and actually dependent upon him. Section 8, subsec. 2 (A and B), Act No. 20 of 1914, as amended by Act No. 242 of 1928. If they are in fact separated, living apart, the presumption of dependence is not applicable, and that question becomes one of fact. Subsection 2 (D) of the above-cited act, after declaring who are conclusively presumed to be dependents of the deceased employee, says: "In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death."

It would hardly be contended that a wife, wholly dependent upon her husband for support, who had been, without cause, put aside by him and forced to leave the matrimonial domicile, could not recover compensation for his death. She would be required to prove her dependence on him for support, whereas, if living with him when killed, no such proof is necessary, as the legal presumption operates as conclusive proof in her favor. Gregory v. Standard Oil Co., 151 La. 228, 91 So. 717. The exception is not well founded, and is overruled.

When plaintiff and deceased separated, he took their child with him. Plaintiff lived with her mother and stepfather after the separation. She testified, and it is not contradicted, that he lived in open adultery in the mill quarters with another woman from the time of the separation until he left the community the latter part of February, and that she was "put out" by deceased because of this woman.

One witness testified that he saw plaintiff in the act of adultery with Lee Williams in December, before the separation occurred. He denied that he informed the deceased, or any other person, of this transaction.

It is well established that in the morning before the homicide occurred deceased told Lee Williams to be ready when he returned that afternoon as he was going to kill him. None of the witnesses who heard this threat knew what the trouble was between the parties; at least they denied any knowledge on the subject. Deceased, after a few weeks' absence in Arkansas, returned to defendant's mill quarters in April and began the work he was doing when killed. He appears to have become penitent, and gave money to plaintiff on two occasions and provided her with some groceries. She says he visited her several times, and that they cohabited for nightly periods. However, an officer of defendant company undertook to effect a reconciliation between them, without success. When this occurred is not shown. If plaintiff's testimony is to be believed, she was probably putting deceased's sincerity to the test before again resuming full conjugal relations with him. Her evidence to the effect that she was dependent on deceased for support is not contradicted by any of the testimony. It is certain she had no income and owned no property. She lived with her mother while she and deceased were...