Morvant v. Aetna Casualty & Surety Co
| Decision Date | 30 May 1938 |
| Docket Number | 16978 |
| Citation | 181 So. 595 |
| Parties | MORVANT v. AETNA CASUALTY & SURETY CO |
| Court | Court of Appeal of Louisiana — District of US |
R. E Baird, of New Orleans, for appellant.
St Clair Adams & Son, of New Orleans, for appellee.
On January 22, 1937, Antoine Morvant, an employee of the Celotex Corporation, was stabbed in the left leg near the thigh by a knife belonging to and held by a fellow-employee, Howard A. Perez. He was disabled by the wound for a period of about six weeks and later an infection developed which disabled him for several additional weeks. Unable to adjust his claim for compensation under the Workmen's Compensation Act No. 20 of 1914 as amended he filed this suit against AEtna Casualty & Surety Company, the insurance carrier of the said Celotex Corporation.
The defendant, admitting the employment and the nature of the work, denied that the injury was sustained in an accident arising out of and in the course of the employment, averring, in the answer, that the accident had occurred "while plaintiff and Howard A. Perez were playing; that plaintiff was not acting in the course of or incidental to his employment at the time of aforesaid accident, but on the contrary had turned away from his duties and was engaged in his own personal affairs".
There was judgment dismissing plaintiff's suit and he has appealed.
Morvant and Perez were fellow-employees, engaged in a gang or group or laborers who loaded celotex boards upon dollies so that they might be moved from one location to another. During the course of the work Morvant, either seriously or in play, advanced towards Perez as if to injure him. At the time he held in his hand his pocket knife. Perez either had his knife in his hand or he at once took it out of his pocket, and, with a blade exposed, he moved towards Morvant, who made a step backwards and attempted to catch Perez' hand to prevent his being struck with the knife. In the scuffle the blade pierced Morvant's left leg near the thigh and inflicted the injury on which this suit is based.
Although defendant, in its answer, averred that the employee had been engaged in playing, the evidence as to the encounter indicated the possibility that the employees were engaged in a fight or affray, as a result of which the injury was sustained, and it is contended by defendant that, since the evidence admitted without objection shows that there was such an affray or fight and that the plaintiff was the instigator, there can be no recovery by him because, under Section 28, par. 1, of the statute, it is provided that "no compensation shall be allowed for an injury caused (1) by the injured employee's wilful intention to injure himself or to injure another". It thus appears that, when the case was submitted below, there were two alternative defenses one present by the answer that the employees were engaged in playing and had turned aside from their work and the other, which was tendered by the evidence which was admitted without objection, which showed the possibility that the injury had resulted from the deliberate attempt of Morvant to injure a fellow-employee.
Counsel for plaintiff contends that the two employees were engaged in a playful struggle and that neither intended to injure the other and that, therefore, neither can be said to have been the aggressor, and he maintains that it is now well established that, where employees, while at their work, momentarily turn aside to engage in horseplay, they do not step out of character as employees to such an extent as to place them without the protection of the compensation statute.
If the encounter was engendered in "bad blood" and evidenced a serious attempt on the part of the employees to injure each other, then, if Morvant was the aggressor, of course he could not be permitted to recover.
Each of those persons who was present states that Morvant and Perez were playing at the time and that neither had any intention of injuring the other and yet the judge a quo found as a fact that, as a result of words which had "passed" between the two, "plaintiff drew and opened his knife and advanced upon the said Perez", and the record contains evidence which justifies the conclusion that, in spite of the testimony, there was animosity between the two and that the affair evidenced a more serious encounter than a mere playful...
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