Rogers v. Mengel Co.
| Decision Date | 05 October 1937 |
| Docket Number | 1744 |
| Citation | 176 So. 322 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | ROGERS v. MENGEL CO. et al |
Granzin & Harper, of New Orleans, for appellant.
Breazeale & Sachse, of Baton Rouge, for appellees.
This is an appeal from a judgment in the lower court which sustained an exception of no right or cause of action and dismissed the plaintiff's suit at his costs. Inasmuch as the plaintiff had been granted an order permitting him to prosecute his suit in forma pauperis under Act No. 156 of 1912 and its amendments (Act No. 260 of 1918, §1, Act No. 165 of 1934, §1), we take it that that part of the decree in the judgment which casts him with costs was rendered inadvertently.
The suit is predicated on a claim for compensation against the defendants Mengel Company and one Willie A. Stafford.
Plaintiff alleges that he was employed to fell and haul timber by Stafford, who was operating under a subcontract with the Mengel Company. From the written reasons handed down for judgment by the district judge, we learn that one of the issues raised under the exception was that the Mengel Company could not be held liable for compensation to the plaintiff as the petition itself disclosed that he was employed by and working for Stafford, who was an independent contractor. The opinion correctly dismissed that contention by simply referring to a further allegation of the petition to the effect that the contract between Stafford and Mengel Company was one, the nature and type of which, plaintiff did not know. Certainly, there was not a sufficient allegation of fact from which could be drawn the legal conclusion that the relation between the two defendants was one of independent contractor, as appears to have been contended on behalf of the Mengel Company. That issue seems now to have passed out of consideration and we need say nothing further concerning it.
The petition sets forth the following state of facts, which, for the purpose of considering the exception of no right or cause of action, must be taken as true.
About November 15, 1935, plaintiff and others were working for Willie A. Stafford, who had a contract with the defendant Mengel Company to cut and haul certain timber in the Bogue Chitto swamp in the parish of St. Tammany. Due to inclement weather, there was a layoff of several days, following which on December 30, 1935, they were called back to work by Stafford. Plaintiff and the other loggers, as they are called, reported early on the morning of that day on the tract of land where the cutting was going on, that being at a point said to be two miles west of Sun, in St. Tammany parish, approximately three miles from plaintiff's home. For the time that he had worked, plaintiff avers that his average earnings had been $ 2.50 per day, working six days per week.
On the morning when they reported for work, they were advised by Stafford "that conditions were not favorable for cutting and hauling timber," whereupon plaintiff and his fellow workers removed to a point about one hundred yards from the place where they had assembled for work, still in St. Tammany parish, and, because of the extremely cold and freezing weather, "they built a fire to warm themselves before beginning their homeward journey." (Quotations are from the allegations contained in plaintiff's petition.)
While standing near the fire, not long after it had been built, plaintiff discovered that the left leg of his pants and his left leg were afire, and further, that a bottle of coal oil which he carried in his left pocket, and which oil he used to lubricate his saw and other equipment used on the job, was uncorked and, as the oil spilled down his leg, it took fire and caused severe burns, as a result of which he had to be given extensive hospital and medical treatment, in spite of which he remains totally disabled from doing work of any reasonable character.
The only other allegation which we deem of importance in considering the issue raised under the exception is one to the effect that the fire referred to was made "on the premises and/or tract of land on which the logging was being done" and that was also the place where plaintiff sustained the injury which gave rise to his claim for compensation.
From the foregoing statement of facts, it is apparent that actual working relations between employer and employees had ceased at the time plaintiff was injured, since the employees had been advised that weather conditions were too unfavorable for work and they had in fact departed from the scene of work for their homes. The only basis therefore on which plaintiff can hope to bring his case within the contemplation of the compensation statute (Act No. 20 of 1914, as amended) is if he can persuade the court that it comes under the rule established by certain cases that the injured employee can recover if he can show that the accident occurred on his way home from work while he was still on the premises of the employer.
The general rule, and one which seems to be well recognized by all courts, is that the employer is not liable for compensation to the employee who is injured while on his way to, or from, work, because such injuries are not considered as having arisen out of or in the course of the employment. In Voehl v. Indemnity Insurance Co. of North America, 288 U.S. 162, 53 S.Ct. 380, 382, 77 L.Ed. 676 87 A. L.R. 245, the United States Supreme Court stated: ...
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