Osborne v. McWilliams Dredging Co., Inc.

• Decision Date: 18 October 1937
• Docket Number: 16719
• Citation: Osborne v. McWilliams Dredging Co., Inc., 176 So. 410 (La. App. 1937)
• Court: Court of Appeal of Louisiana
• Parties: OSBORNE v. McWILLIAMS DREDGING CO., Inc., et al

176 So. 410

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

No. 16719

Court of Appeal of Louisiana, Orleans.

October 18, 1937

Rehearing denied Nov. 2, 1937.

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

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

OPINION

JANVIER Judge.

This matter comes before us on appeal by Mrs. Earlene Osborne from a judgment dismissing, on exception of no cause of action her suit brought under Act No. 20 of 1914, as amended, for compensation for the death of her husband, Leslie Osborne, who was drowned while on his way home by motorboat from the floating dredge on which he performed his duties when at work.

The employer, McWilliams Dredging Company, and American Mutual Liability Insurance Company, the workmen's compensation insurance carrier, are made defendants.

It is alleged that the work in which the employee and the employer were engaged was of a nonmaritime nature.

The original petition has been several times amended, or supplemented, and from the various petitions certain allegations are pointed to by exceptors as showing that the accident in which Osborne met his death did not arise out of nor in the course of his employment. It is alleged that the employees who worked on the floating dredge were "expected to stay on the said dredge, when not actively at work (3)5C" and that the employer "furnished them with quarters and board thereon"; that the employer furnished regular transportation by boat from the dredge to the shore and back once each week, or in case of emergency. It is also alleged that the employer permitted the employees to go ashore during nonworking periods within their respective weekly terms or "shifts of employment," and that, since the employer did not furnish transportation for such voluntary and nonweekly trips, the employees who desired to make such trips found it necessary to secure independent transportation from the dredge to the shore, and that the employer did not prohibit this. It is also stated that it was during such a trip and while Osborne was in a boat not furnished by the employer that there occurred the collision which resulted in his being thrown into the water and drowned. It is not alleged that there was any emergency which required him to go ashore at that time, it being merely stated that he "decided to go ashore by means of a boat, so that he might then arrange to go to his home."

Exceptors rely upon the fact that Osborne was not on the premises of the employer and was not being transported in a boat furnished by them and was not making a trip which might have been considered as within the contemplation of the contract of employment, and they point to the well-recognized general rule which, in Walker v. Lykes Bros.-Ripley S. S. Co., Inc., 166 So. 624, 625, we stated as follows: (3)5C "It is a general rule, in workmen's compensation cases, that the injury suffered by an employee in going to and returning from his employer's premises, where the work of his employment is carried on, does not arise out of his employment so as to entitle him to compensation. See Ruling Case Law, Permanent Supplement, vol. 8; Thibodeaux v. Yount Lee Oil Co., 13 La.App. 591, 128 So. 709; Voehl v. Indemnity Ins. Co. of N. A., 288 U.S. 162, 53 S.Ct. 380-382, 77 L.Ed. 676, 87 A. L.R. 245."

Petitioner, however, believes that the alleged facts are such as to make applicable an exception to the general rule, which exception is also well recognized where the accident in which the employee is injured or killed while going to or from work results from a hazard peculiar to the neighborhood adjacent to the premises on which the work is performed, and the premises are so situated as to make the customary means of ingress and egress hazardous. In Cudahy Packing Company of Nebraska v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 155, 68 L.Ed. 366, 30 A. L.R. 532, the Supreme Court of the United States considered such a situation and held that compensation was due because "the location of the plant was at a place so situated as to make the customary and only practicable way of immediate ingress and egress one of hazard." Where the employer's premises are so situated, the application of the Compensation Law does not cease as soon as the employee leaves the premises, but he remains under its protection while he is in that neighborhood in which persons are subjected to those local hazards which are not common elsewhere, and with which the employee must come into contact while on his way to and from the plant or premises at which he works. This exception and the sound logic on which it is based have been so completely discussed and explained in the Parramore Case, supra, the Walker Case, supra and in Thomas v. Shippers' Compress & Warehouse Co.,...