Lanis v. Illinois Cent. R. Co.

• Decision Date: 30 June 1916
• Docket Number: 20753
• Citation: 72 So. 788,140 La. 1
• Court: Louisiana Supreme Court
• Parties: LANIS v. ILLINOIS CENT. R. CO

72 So. 788

140 La. 1

LANIS v. ILLINOIS CENT. R. CO

No. 20753

Supreme Court of Louisiana

June 30, 1916

Rehearing Denied October 16, 1916

SYLLABUS

(Syllabus by the Court.)

When the widow of a man who was killed by the fault of a railroad company while he was employed and the company was engaged in interstate commerce sues the railroad company in her individual capacity for damages under a state statute, and the defendant excepts to the proceeding on the ground that the right of action under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S Comp. St. 1913, §§ 8657-8665]) precludes a right of action under the state statute, it is proper to allow the plaintiff to amend her petition by appearing in the capacity of administratrix and personal representative of the deceased, for the benefit of herself and his only child. And, in such case, as to the demand for the benefit of the widow, the prescription of two years does not apply if her original petition was filed and served within two years from the fatal accident, notwithstanding her supplemental petition as personal representative of the deceased was filed after the two years had elapsed.

Where, in a suit for damages for the negligent killing of a man, the jury renders a verdict for $ 3,000 in favor of the administratrix as personal representative of the deceased, and, under authority of the federal Employer' Liability Act, apportions the amount by allowing $ 2,999 for the benefit of the widow and only $ 1 for the benefit of the only surviving child who is of full age of majority, and the defendant appeals from the judgment, the maxim de minimis non curat lex applies to the award of $ 1 for the benefit of the daughter of age, because that allowance does not even affect the costs.

The fellow-servant doctrine is not a defense to a suit that is governed by the federal Employers' Liability Act.

The jurisprudence of Louisiana recognizes the rule that an employe who is intrusted with authority and control over other employes working in a particular department is a vice principal, and not a fellow servant with the employes working under his direction.

A declaration by a person fatally injured in an explosion, uttered immediately after the explosion, under great excitement and under such circumstances as to preclude any design or falsification on his part, as to how the explosion occurred, is excepted from the general rule excluding hearsay or self-serving declarations, and is admissible in evidence as a part of the res gestae.

Where the foreman of men engaged in pumping fuel oil from a tank car to the tender of a locomotive, holds a flaming torch over the open manhole of the receiving tank, in the performance of his duty of measuring or gauging the quantity of oil, and, when admonished by a workman under him not to use the torch, replies that the man is a coward and again passes the torch over the open manhole, causing an explosion and killing the workman who complained, the employer is not exempt from liability for damages for the death, merely because the foreman indulged in greater recklessness than was necessary for the performance of his duty.

Hunter C. Leake and Gustave Lemle, both of New Orleans (Blewett Lee and R. V. Fletcher, both of Chicago, Ill., of counsel), for appellant.

George J. Untereiner, of New Orleans, for appellee.

OPINION

O'NIELL, J.

The plaintiff's husband was fatally burned in an explosion that occurred while he was employed pumping fuel oil from a tank car into the tender of a locomotive of the defendant company; and she, the widow, in her individual capacity, brought suit against the railroad company for $ 15,000 damages.

The defendant made application, furnished bond, and obtained an order of court to remove the case to the United States District Court for the Eastern District of Louisiana, because the domicile of the defendant is in another state. But the defendant's counsel saw fit not to avail themselves of the order of removal of the cause, and filed an answer in the state court.

In answer to the petition, the defendant denied that the injury to Marshall Lanis was the result of any fault or negligence on the part of the company, and averred that it was due to the acts of one Timothy Carroll, who, at the time, was not acting within the scope of his employment, and for whose acts, therefore, the defendant was not liable. In the alternative, the defendant alleged that, if it should be held that Carroll was acting within the scope of his employment at the time of the fatal accident, he was the fellow servant of Marshall Lanis, and the defendant was not liable for his acts.

Thereafter, alleging that, in the suit of the administratrix of the succession of Timothy Carroll against this defendant, for damages for his death in the same explosion which caused the death of Marshall Lanis, the United States District Court for the Eastern District of Louisiana had held that the defendant was engaged, and that Carroll was employed, in interstate commerce at the time of the accident, that the liability of the defendant was to be determined by the federal Employers' Liability Act of April 22, 1908, conferring the right of action upon the personal representative of the deceased, and that the judgment had been affirmed by the United States Circuit Court of Appeals for the Fifth Circuit, the defendant's counsel filed a so-called peremptory exception, contending that the widow of Marshall Lanis had no cause of action in her individual capacity, and that her suit should be dismissed. On trial of the exception it was maintained; and, on the authority of the decision of the United States Supreme Court in the case of Missouri, Kansas & Texas Railroad Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann. Cas. 1914B, 134, the court recognized the plaintiff's right to qualify as administratrix of the succession of her deceased husband and to amend her petition by appearing as the personal representative of the deceased, within the time specified in the judgment maintaining the defendant's exception.

The plaintiff then qualified as administratrix of the succession of her husband, and filed a supplemental and amended petition in her capacity of administratrix and personal representative of her deceased husband, for the benefit of herself and his only surviving child, a daughter of full age of majority. She repeated the allegations of her original petition, as to her cause of action, substantially as follows: That, while her husband was employed by the defendant company, discharging his duty of pumping fuel oil from a tank car to the tender of a locomotive, the receiving tank exploded and he was burned so severely that he died after a few hours of suffering; that the defendant company was at fault in failing to provide sufficient light with which to do the dangerous work of transferring oil from the tank cars to the locomotives, so that it was necessary for the employes to use torches; and that Timothy Carroll, the foreman in charge of and superintending the filling of the locomotive tender, on the night of the fatal explosion, recklessly, carelessly, and with gross negligence, held a blazing torch over the hole through which the oil was being pumped into the tender of the locomotive, ignited the gas in the tank and caused the fatal explosion.

The defendant's counsel filed an exception or demurrer to the supplemental petition, praying that it be rejected and stricken from the record, on the following grounds, viz.: (1) That it was filed too late; (2) that it set forth a new cause of action, different from that set forth in the original petition; (3) that the demand was res judicata; (4) that the action was prescribed by the lapse of two years; and (5) that the plaintiff, as personal representative of the deceased, was suing only for the use and benefit of herself as widow, whereas, under the federal Employers' Liability Act, the personal representative of the deceased should sue for the use and benefit of the widow and children of the deceased.

The foregoing pleas and exceptions were heard and overruled by the court; and we gather from the brief of counsel for defendant that they concede that the ruling was correct except in so far as it overruled the exception that the supplemental petition set forth a new and original cause of action, different from that set forth in the original petition, and except in so far as the plea of prescription of two years was overruled. At any rate, there was no merit in the other pleas or exceptions. The supplemental petition was filed within the delay allowed and extended by the court, hence there was no merit in the contention that it came too late. The plea of res judicata was founded upon the proposition that the demand of the widow in her individual capacity was disposed of by the ruling maintaining the exception to her original petition, notwithstanding the judge in his ruling expressly reserved her right to amend her petition by appearing as personal representative of the deceased. There was no merit in the plea of res judicata. On the trial of the exception to her supplemental petition, her counsel disclaimed and abandoned all allegations except in her capacity of personal representative of the deceased. The contention that the demand in the supplemental petition was made only for the use and benefit of the widow had no foundation in fact, because the demand was expressly for the use and benefit of the surviving widow and major daughter. In the case of Gulf Railway Co. v. McGinnis, 228 U.S. 173, 33 S.Ct. 426, 57 L.Ed. 785, it was held that, although the judgment, in a suit under the federal Employers' Liability Act, may be for a gross sum, the interest of each...