Osborne v. McWilliams Dredging Co., Inc.

• Decision Date: 07 March 1938
• Docket Number: 34668
• Citation: Osborne v. McWilliams Dredging Co., Inc., 180 So. 481, 189 La. 670 (La. 1938)
• Court: Louisiana Supreme Court
• Parties: OSBORNE v. McWILLIAMS DREDGING CO., Inc., et al

180 So. 481

189 La. 670

OSBORNE v. McWILLIAMS DREDGING CO., Inc., et al

No. 34668

Supreme Court of Louisiana

March 7, 1938

Rehearing Denied April 4, 1938

Reversed.

Lewis R. Graham and Harry R. Cabral, both of New Orleans, for relator.

Rosen Kammer, Wolff & Farrar, of New Orleans, for respondents.

LAND Justice.ROGERS and ODOM, JJ., dissent.

OPINION

LAND, Justice.

This is a suit by Mrs. Earlene Osborne, widow of Leslie Osborne, for compensation for his death, alleged to have been caused by accidental drowning, while in the employment of the McWilliams Dredging Company, Inc.

The suit was brought in the civil district court for the parish of Orleans against defendant company and its insurance carrier, the American Mutual Liability Insurance Company, and judgment was prayed for against defendants in the sum of $ 5,950, in solido, together with interest on that amount from February 2, 1936, until paid, and forall costs of suit.

Plaintiff's suit was dismissed in the civil district court for the parish of Orleans on an exception of no right or cause of action, and, on appeal by plaintiff, the judgment of the lower court was affirmed by the Court of Appeal for the parish of Orleans.176 So. 410, 412.

The case is now before us under a writ of certiorari herein granted.

An original petition and three supplemental petitions were filed in this case by plaintiff.Exceptions of no cause or right of action were pleaded against the original petition, and against the original petition, as amended.

In the original petition it is alleged:

"2.That prior to and on February 2nd, 1936, petitioner's husband, Leslie Osborne, was employed by the McWilliams Company, as assistant engineer on its Dredge 'Gulfport' at a salary of forty-two dollars ($ 42.00) per week;

"3.That at said time, the said Dredge and the employees thereon were engaged in a non-maritime operation, viz: construction of a levee on Dauterive-Fish Island in Lake Dauterive in Iberia Parish, Louisiana, under contract with the United States Government.

"4.That the employees of said Dredge were expected to stay on the said dredge, when not actively at work; the McWilliams Company furnished them with quarters and board thereon, but allowed them to go to shore on some occasions when their necessities might dictate.

"5.That the McWilliams Company furnished transportation for its employees on the said Dredge from the dredge to the shore at certain hours, and that boats were the only means of transportation from said dredge to the shore.

"6.That on the morning of February 2, 1936, shortly after his shift was over, plaintiff's husband who had been continuously quartered on said boat in connection with his employment since January 30th, 1936, decided to go ashore by means of a boat, so that he might then arrange to go to his home.

"That thereupon, he embarked in a motorboat owned and driven by one Clyde Barrow, a fellow employee on said dredge, the boat furnished by McWilliams Company not then being available; that shortly after the said boat had started from the said dredge, there was a collision between said boat and another boat driven by one Eugene Smith, and as a result of said collision, petitioner's husband was thrown into the water and was killed by drowning."

An exception of no right or cause of action was pleaded by defendants against the original petition, which was permitted by the trial judge to be amended as to paragraph 6, as follows:

"That on the morning of February 2, 1936, shortly after his shift of employment on defendant's dredge was completed, her said husband embarked on a boat owned and operated by Clyde Barrow, for the purpose of going to his home, which was on the other side of Lake Dauterive, and at the time of the collision, described in the original petition herein, the said boat had just left the dredge and was only a few hundred feet from the shore of Lake Dauterive where the defendant's dredge was located."

Plaintiff also filed the following supplemental petition:

"IX.That on Feb. 2, 1936, petitioner's husband and one Clyde Barrow left the Dredge Gulfport in a small boat owned by Clyde Barrow, for the purpose of going to Dauterive Landing so that he could disembark and then go to his home from Dauterive Landing.

"X.That said Barrow's boat was proceeding on the direct and regular course from the said Dredge to Dauterive Landing and while so proceeding it was run into by a boat operated by one Eugene Smith and as a result of said collision, petitioner's husband and said Barrow fell out of said boat and both of them were drowned.

"XI.That the boat operated by Eugene Smith was proceeding on the regular course and usual course from Dauterive Landing to the Dredge Gulfport when it collided with the boat of said Barrow.

"XII.Petitioner alleges that the said collision occurred within a few minutes after Barrow's boat left the Dredge at a point not more than 500 feet from said Dredge.

"XIII.That the said Dredge was moored a short distance out from shore sucking up and pumping earth in to shore for a levee."

(1)The Court of Appeal has maintained the exception of no right or cause of action in this case mainly upon the allegation, as stated in its opinion:

"'(1) That the employees * * * were expected to stay on the said dredge, when not actively at work.'"

The full allegation made by plaintiff in paragraph 4 of the original petition is:

"That the employees of said Dredge were expected to stay on the said dredge, when not actively at work; the McWilliams Company furnished them with quarters and board thereon but allowed them...