McKane v. New Amsterdam Cas. Co.

• Decision Date: 16 December 1940
• Docket Number: 17449.
• Citation: 199 So. 175
• Court: Court of Appeal of Louisiana — District of US
• Parties: MCKANE v. NEW AMSTERDAM CASUALTY CO. ET AL.

199 So. 175

MCKANE v. NEW AMSTERDAM CASUALTY CO. ET AL.

No. 17449.

Court of Appeal of Louisiana, Orleans.

December 16, 1940

Rehearing Denied Jan. 13, 1941.

Writ of Certiorari Denied March 3, 1941.

Appeal from Civil District Court, Parish of Orleans; Walter L Gleason, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. Hugh J McKane, claimant, opposed by the Stein-Hall Manufacturing Company, employer, and the New Amsterdam Casualty Company insurance carrier, to recover compensation for death of claimant's husband. From a judgment for claimant, the employer and insurance carrier appeal.

Affirmed.

Henriques & Mayo, of New Orleans, for appellants.

St. Clair Adams & Son, of New Orleans, for appellee.

McCALEB, Judge.

The plaintiff, Mrs. Hugh J. McKane, brought this suit against Stein-Hall Manufacturing Company, employer of her late husband, Hugh J. McKane, and New Amsterdam Casualty Company, the compensation insurance carrier of Stein-Hall Manufacturing Company, to recover compensation under the provisions of the Louisiana Employers' Liability Act, Act No. 20 of 1914, as amended, for the death of her husband, who was killed in an automobile accident near Ruston, Louisiana, while engaged in the performance of his duties as an employee for the Stein-Hall Manufacturing Company.

The defendants, conceding that McKane was employed by Stein-Hall Manufacturing Company, that his employment was hazardous within the contemplation of the Workmen's Compensation Law (in that his duties required him to drive a motor vehicle), and that he met his death while engaged in the performance of work for his employer, resisted liability to the plaintiff under the Louisiana Employers' Liability Act on the following grounds: (1) that, since McKane entered into the contract of employment with Stein-Hall Manufacturing Company in the State of Illinois, its liability to plaintiff is governed solely by the laws of that State and that the Louisiana courts have no jurisdiction in the premises; and (2) that, alternatively, plaintiff is without a right of action under the Workmen's Compensation Law of this State.

The case was tried below on an agreed stipulation of facts and resulted in a judgment in plaintiff's favor for the compensation prescribed by the Louisiana Employers' Liability Act. Wherefore this appeal.

The undisputed facts of the case, which are fully set forth in the pleadings and in the stipulation of fact entered into by the parties litigant, exhibit the following: Stein-Hall Manufacturing Company, Inc., is an Illinois corporation domiciled in the City of Chicago and is engaged in the business of manufacturing starch and food sundries. Hugh McKane was first employed as a salesman for this corporation, under a verbal contract entered into in the City of Chicago in August, 1913, to sell the products of the company anywhere in the United States. In 1925, McKane was sent to Detroit to manage the branch office of the corporation in that city. He made Detroit his home and remained there in the capacity as manager of the branch office until April 3, 1926, at which time he resigned his position and went into business for himself. On August 2, 1930, he again became an employee of the Stein-Hall Manufacturing Company, being employed by verbal contract as a salesman to travel any place in the United States. From that time until January 1, 1935, he worked out of Chicago as salesman of the company. On January 1, 1935, the corporation opened a branch office in New Orleans and McKane was called in off the road and instructed to go to New Orleans as manager of the branch office. At that time, he was informed by a Mr. Leverone, General Manager of the corporation, that he was to stay a year in New Orleans and, at the end of the year, if he, McKane, liked it, he could remain there permanently. After a year's time McKane reported that he liked New Orleans and the company confirmed him as manager of its New Orleans branch and paid the expenses attendant to moving his household effects from Illinois to New Orleans. McKane thereupon established a domicile in New Orleans and purchased a home in that city where he lived until the date of his death.

The territory, over which he had jurisdiction as manager of the company's branch office in New Orleans, consisted principally of the States of Arkansas, Louisiana and Mississippi and as far north as Ohio. As manager of the branch office, he had the authority to hire and fire his office help, which consisted of one stenographer. He was required to travel in the territory over which he was given charge and, for this purpose, he used an automobile which was supplied by his employer. McKane was paid by check from the Chicago office of the corporation the sum of $125 per week until February, 1939, when his salary was raised to $140 per week. His employer directed him to keep in constant contact with the Chicago office by telephone and he was also required to report personally to the Chicago office four times yearly.

In pursuance of his duties, McKane, in January, 1940, drove the automobile assigned to him to Camden, Arkansas, for the purpose of contacting a customer of his employer. While returning to New Orleans from the trip, the automobile which he was driving collided with a freight train some five miles north of Ruston, Louisiana, and he died of the injuries he received in the accident.

At the time of McKane's death, the Stein-Hall Manufacturing Company had taken out a policy of compensation insurance with the defendant, New Amsterdam Casualty Company, providing coverage protecting the company for injuries sustained by its Illinois employees. This policy, which was issued in Illinois, contains an endorsement which covers employees of the company working in Louisiana, Michigan and Missiouri. And in the stipulation of fact it is shown " that the said Stein-Hall Manufacturing Company paid premiums insofar as Hugh McKane was concerned at Louisiana rates, * * *" .

Prior to his death, McKane was married to the plaintiff, who resided with him at his domicile in New Orleans. He left no other lawful dependents but he and his wife had the custody and were taking care of his illegitimate minor child, Gloria McKane (who is alleged to be the issue of Hugh McKane and one Margaret Colbert). On February 4, 1940, shortly after McKane's death, Margaret Colbert, appearing as mother and best friend of Gloria McKane, filed a petition with the Industrial Commission of the State of Illinois, making claim for compensation under the Workmen's Compensation Law of Illinois, Ill.Rev.Stat.1939, c. 48, § 138 et seq. Thereafter, on March 20, 1940, Stein-Hall Manufacturing Company appeared before the Industrial Commission of the State of Illinois and filed a petition against Mrs. Iris McKane, plaintiff in this suit, for adjustment of its liability as to her under the Illinois statute. In the meantime, on February 24, 1940, plaintiff had filed the present action against Stein-Hall Manufacturing Company and its compensation insurance carrier for the recovery of compensation under the Louisiana statute.

It will be observed from the foregoing that the main question, which we are called upon to determine, is whether the defendants are liable to the plaintiff under the Louisiana Employers' Liability Act or whether plaintiff's exclusive remedy is under the Illinois Compensation Law.

The defendants have filed a plea to the jurisdiction of the court. We find no merit in this plea since the defendants, although foreign corporations, are doing business within the State of Louisiana and have appointed agents in this State for the service of process. Obviously, the contention that, because McKane was employed in Illinois and that therefore plaintiff's rights are determinable solely under the Illinois Compensation Law can have no bearing on the jurisdiction of the courts of Louisiana to pass upon the question as to whether the plaintiff is entitled to receive the compensation prescribed by the Employers' Liability Act of this State. As we view it, the defense interposed to plaintiff's suit is properly addressed for consideration on the exception of no right of action or upon the merits of the case.

The contentions of the defendants present for our consideration and judgment many questions concerning the rules governing the conflict of laws and the interpretation and effect to be given to statutes providing for relief to injured employees--and, in approaching a discussion of these matters, it is pertinent to set forth certain fundamental propositions of law, which are not open to dispute.

The Illinois Workmen's Compensation Act, Ill.Rev.Stat.1939, c. 48, § 138, is an elective statute, providing: " That an employer in this State, who does not come within the classes enumerated by section three (3) of this Act, may elect to provide and pay compensation for accidental injuries sustained by any employee * * *"

The statute, in addition, has extra-territorial effect for, in Section 5, Subsection 2 thereof (section 142), it is made to apply to " every person in the service of another under any contract of hire, express or implied, oral or written, including persons whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois, * * *" . (Italics ours.)

The Louisiana Employers' Liability Act is likewise an elective statute insofar as private industries are concerned. See Philps v. Guy Drilling Co., 143 La. 951, 79 So 549; Cuna v. Elton Lumber Co., 148 La. 1097, 1098, 88 So. 493; Haven v. Munson, __ La.App. __, 169 So. 819, 820, and Mayer on Workmen's Compensation Law in Louisiana, pages 8 and 10. Although there is no express stipulation contained in the statute to the effect...