McLaughlin v. Western Union Telegraph Co.

• Decision Date: 11 February 1927
• Docket Number: No. 4851.,4851.
• Citation: 17 F.2d 574
• Parties: McLAUGHLIN v. WESTERN UNION TELEGRAPH CO.
• Court: U.S. Court of Appeals — Fifth Circuit

17 F.2d 574 (1927)

McLAUGHLIN v. WESTERN UNION TELEGRAPH CO.

No. 4851.

Circuit Court of Appeals, Fifth Circuit.

February 11, 1927.

C. F. Borah, of Franklin, La., and Prentice Wilson, of Dallas, Tex. (E. A. Coker, of Dallas, Tex., on the brief), for appellant.

Esmond Phelps, of New Orleans, La. (Francis R. Stark, of New York City, and Spencer, Gidiere, Phelps & Dunbar, of New Orleans, La., on the brief), for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

In this case the parties occupied the same relative positions in the District Court as they do here and will be so referred to. On March 2, 1925, plaintiff brought suit in a state court to recover damages for personal injuries resulting from an accident occurring near Patterson, La., on June 1, 1922, while he was employed by defendant, alleged to have been caused by the negligence of defendant, and in the alternative for compensation under the Workmen's Compensation Laws of Louisiana. The suit was removed to the District Court, and a motion to remand was denied by the late Judge Beattie, for reasons stated in an elaborate opinion. 7 F.(2d) 177. No question is raised as to the correctness of Judge Beattie's decision.

Defendant interposed an exception to the petition on the ground that it disclosed no right or cause of action, except in the alternative claim, and pleaded the prescription of one year under Civ. Code La. art. 3536, and section 31 of the Burke-Roberts Employers' Liability Act of Louisiana (Act 20 of 1914 as amended). Plaintiff then filed an amended petition, reiterating most of the allegations of the original petition, and praying for the same amount of damages, but seeking to show that the statute of limitation was tolled, because he did not know the extent of his injuries until less than one year before bringing suit. Paragraph 3 of the amended petition, containing the material averments to that effect, was stricken out on motion of defendant, the exception of no cause of action to the primary claim and the plea ofprescription were sustained, and the suit was dismissed. Error is assigned to the action of the court as above indicated.

That plaintiff's right of recovery is only by virtue of the Workmen's Compensation Law is hardly debatable, but we refrain from deciding that question, as in the view we take of the case it is necessary to consider only the plea of prescription. Undoubtedly, under the law of Louisiana (Civil Code, art. 3536; section 31, Act 20 of 1914), plaintiff's cause of action is barred by the limitation of one year on either aspect of the case, unless his contention that the statute did not begin to run from the date of the accident prevails.

It may be conceded that the Supreme Court of Louisiana recognizes the doctrine contended for by plaintiff. The rule was aptly stated by the late Judge Newman, speaking for this court in American Tobacco Co. v. People's Tobacco Co., 204 F. 58, as follows: "It is the lack of knowledge of the facts which would give it referring to plaintiff a cause of action, and its inability for that reason to bring suit, that tolls the statute."

As a decision in any case depends upon the facts peculiar to it, the problem confronting us is to determine whether the facts shown by the sworn pleadings, which must be taken as true, bring the case presented within the rule just stated. The cause of the accident and the resulting injuries to plaintiff are set out in paragraphs 3 and 4 of his original petition, which we here reproduce:

"That after plaintiff had reported to defendant's foreman for work, as aforesaid, to wit, on June 1, 1922, and while plaintiff was engaged in the course of his employment he was directed by said defendant and its said foreman to assist some six other employees, in the hoisting and lifting of a telegraph pole into position; that said pole was approximately 30 feet long and weighed between 2,000 and 4,000 pounds; that the place and point where the plaintiff was working was near a railroad track; that the hole into which the butt or large end of said pole was to be placed had been dug, and the said defendant and its said foreman had directed the placing, and had placed said pole across the railroad track, lying at right angles on an embankment, so as to be elevated somewhat above the hole in which it was to be placed; that plaintiff and said other men then and there took their position by said pole, four on one side of the same and three on the other, and proceeded to lift the same by the use of sharp pointed poles or spikes so as to hoist the smaller end of said pole into the air and insert the larger end into the hole theretofore prepared for same; that while so lifting and hoisting said pole the same, through the negligence of defendant and its said foreman, was allowed to turn, slip, and fall, striking plaintiff first on top of the head, tearing away a part of the scalp, rendering him semiconscious, and staggering him to his knees and against the ground, from which position said pole, after hitting the ground and rebounding again, struck plaintiff on his side and back, and with such force and violence that such contact threw him about 20 feet where he lay in a bundled position, helpless and in great pain and anguish, and injuring him, as hereafter more particularly alleged; that said injuries so received by plaintiff were proximately caused by the negligence of the defendant and its said foreman, agents and servants in this: * * *

"Plaintiff further avers that, as a result of the foregoing accident and the negligence on the part of the defendant, he not only received a severe scalp wound, but, in addition, internal injury to his head, permanently affecting his eyesight and hearing, and which eyesight and hearing began to fail and become first noticeable in the summer of 1924; that said injuries have also affected plaintiff's mind and reasoning powers, and to such an extent that he was not accountable for his acts and conduct for nearly two years after the accident; that said injuries have caused a posterior condition of the spine between the sixth...