Prevost v. Gheens Realty Co

• Decision Date: 17 April 1922
• Docket Number: 24215
• Citation: Prevost v. Gheens Realty Co, 92 So. 38, 151 La. 508 (La. 1922)
• Court: Louisiana Supreme Court
• Parties: PREVOST v. GHEENS REALTY CO

92 So. 38

151 La. 508

PREVOST v. GHEENS REALTY CO

No. 24215

Supreme Court of Louisiana

April 17, 1922

Rehearing Denied by Division A, May 15, 1922

Appeal from Twentieth Judicial District Court, Parish of Lafourche H. M. Wallis, Judge.

Action under the Employers' Liability Act by Rachel Verret Prevost against the Gheens Realty Company for compensation for the death of her husband, Peter Prevost. Compensation was denied, and plaintiff appeals.

Judgment annulled and compensation awarded.

Foster & Boatner, of Franklin, and Howell, Wortham & Howell, of Thibodaux, for appellant.

P. M Milner, of New Orleans, for appellee.

O'NIELL, J. PROVOSTY, Chief Justice, OVERTON and LECHE, Justices.

OPINION

O'NIELL, J.

Plaintiff has appealed from a judgment rejecting her demand for compensation under the Employers' Liability Act. The claim is for the death of her husband. It is admitted that, if she is entitled to compensation, the amount is $ 6.92 a week, for 300 weeks, and $ 100 for funeral expenses.

There are only two questions in the case. One is a question of fact -- whether the death resulted from an accident. The other is a question of law -- whether the man was, according to the fact which are admitted, in the employ of the defendant company at the time of the alleged accident, within the meaning of the statute, Act 20 of 1914, p. 44, as amended by Act 243 of 1916, p. 512, and by Act 38 of 1918, p. 49.

Our opinion is that defendant's answer to this suit contains an acknowledgment that plaintiff's husband did suffer an accident. The only issue tendered by the pleadings, in that respect, is whether the man's death was caused by the accident.

Having alleged that her deceased husband, Peter Prevost, was employed in defendant's sugar factory on the occasion of the alleged accident, plaintiff averred, in the fifth paragraph of her petition:

"After he left the sugar house, between the hours of 11 and 12 o'clock at night, and while walking from the said sugar house to his lodging house, as aforesaid, and while traversing the usual and customary route to the said lodging house, the night being very dark, and there being no lights along the passage, the said Peter Prevost accidentally ran into, stumbled over or across a wooden and iron trestle, or runway, constructed to connect the cooper shop of the said Gheens Realty Company with its sugar house."

Answering that paragraph of the petition, defendant made the following admissions and averments:

"Respondent is informed and believes and admits that, on the night of January 31st, between the hours of 11:30 and 12 o'clock, said Peter Prevost left the sugar house of plaintiff, where he was employed as a sugar drier, and passed into the yard and was on his way to his lodging house; respondent denies that there was any wooden or iron trestle, but avers that said Peter Prevost was walking on the narrow-gauge railroad track, leading from the sugar house, when he stumbled and fell."

In the sixth paragraph of her petition, plaintiff averred:

"That the said Peter Prevost, in thus running into and stumbling over or across the said trestle or runway, sustained fatal internal injuries, from which he died on the night of the next day, to wit, February 1, 1919."

Answering the averments of that paragraph, defendant made the following denials and admission:

"Respondent denies that the said Peter Prevost received any fatal internal injuries from said fall, for lack of sufficient information to justify a belief thereof, and denies that plaintiff has any information or facts to justify such a belief, but admits that the said Peter Prevost died on February 1st."

Defendant's admission "that said Peter Prevost was walking on the narrow-gauge railroad track * * * when he stumbled and fell," and the denial "that said Peter Prevost received any fatal internal injuries from said fall," are very important because the only man who was with Prevost "when he stumbled and fell" died, about six months after the accident, without having testified in the case. His statement, made soon after the accident, and the statements of others to whom Prevost spoke on the morning after the accident, were the only means of proving what caused Prevost to stumble and fall. The statements made by Prevost and his companion were not admitted in evidence, under the rule excluding hearsay or self-serving declarations. But we do not see any importance in the question whether it was a wooden or an iron trestle or runway, or some other obstacle, that caused the man to stumble and fall. Plaintiff's allegation that her husband stumbled and fell over the so-called trestle or runway was, very likely, founded upon the statements made by him and his companion soon after the accident, and upon the fact that the so-called trestle or runway, which was used for sending empty barrels from the cooper...