Thaxton v. Louisiana Ry. & Nav. Co.

• Decision Date: 26 February 1923
• Docket Number: 24078
• Citation: 153 La. 292,95 So. 773
• Parties: THAXTON v. LOUISIANA RY. & NAV. CO
• Court: Louisiana Supreme Court

95 So. 773

153 La. 292

THAXTON v. LOUISIANA RY. & NAV. CO

No. 24078

Supreme Court of Louisiana

February 26, 1923

Appeal from Thirteenth Judicial District Court, Parish of Rapides Jas. Andrew, Judge.

Action by Mrs. Laura Thaxton against the Louisiana Railway &amp Navigation Company. From a judgment for plaintiff, defendant appeals.

Judgment amended.

Wise Randolph, Rendall & Freyer, of Shreveport, and Peterman, Dear & Peterman, of Alexandria, for appellant.

Blackman & Overton, of Alexandria, for appellee.

O'NIELL, C. J. OVERTON, J., recused.

OPINION

O'NIELL, C. J.

Defendant has appealed from a judgment allowing plaintiff $ 15,000 damages for the death of her husband. He fell from a railroad train and was killed, on the 11th of November, 1918, while employed as train conductor.

The suit was founded primarily upon the federal Employers' Liability Act (U.S. Comp. St. §§ 8657-8665). In the alternative, plaintiff asked for damages under article 2315 of the Civil Code. And, again in the alternative, that is, if the court should find that she was not entitled to either compensation under the federal statute or damages under article 2315 of the Civil Code, then she claimed compensation under the state Employers' Liability Act (Act 20 of 1914, as amended by Act 243 of 1916, and by Act 38 of 1918). The district judge held that the case was governed by the federal statute. Answering defendant's appeal, plaintiff renews her alternative demands, praying, first, that the judgment should be affirmed, under authority of either the federal statute or the article of the Code; and, second, that, if the judgment be not affirmed, then that she be allowed compensation under the state Employers' Liability Act.

Our opinion is that the case is not governed by the federal Employers' Liability Act, because plaintiff's husband was not engaged in an interstate transaction -- in fact the train which he was in charge of was not carrying interstate passengers, baggage, mail, express or freight -- at the time of the accident. It was a shuttle train, that did nothing but carry workmen from Alexandria to Camp Beauregard every morning and bring them back every night. Alexandria and Camp Beauregard are both in Louisiana, only six miles apart. The train oscillated daily, without ever going beyond either the city or the camp.

The railroad itself extends only from New Orleans to Shreveport, and is therefore entirely within the state. It was alleged in the petition in this suit, and admitted in the answer, that the company was engaged in interstate as well as intrastate commerce, meaning, of course, that the company generally handled passengers and freight that had come from or were going into another state.

It is argued on behalf of appellant that the admission that the railroad company was engaged in interstate as well as intrastate commerce deprived the plaintiff of a right of action for compensation under the state Employers' Liability Act, as it stood when this accident occurred, before the statute was amended by the Act 244 of 1920.

During the argument of the case, the writer of this opinion was under the impression that our ruling in the case of Bergeron v. Texas & Pacific Railway Co., 144 La. 225, 80 So. 262, repeated in Salvaggio v. Illinois Central Railroad Co., 151 La. 66, 91 So. 549, would control this case, and would deny plaintiff a right of action under the state Employers' Liability Act. The decisions, however, did not maintain that the fact that an intrastate railroad generally handled interstate as well as intrastate passengers or freight should, of itself, relieve the railroad company from the effect of the state Employers' Liability Act, before it was amended by the Act 244 of 1920. The language of section 30 of the statute, before it was amended, did not declare, or necessarily mean, that the statute did not apply at all to a railroad company whose lines were entirely within the state, if the railroad company generally handled interstate as well as intrastate passengers or freight. Before it was amended, the section read:

"Section 30. 1. Be it further enacted, etc., that this act shall not be construed to apply to any employer acting as a common carrier while engaged in interstate or foreign commerce by railroad, which employer, by reason of being engaged in interstate or foreign commerce by railroad, is not subject exclusively to the legislative power of the state of Louisiana, or for which employer and the employee thereof a rule of liability or method of compensation has been, or may be, established by the Congress of the United States; nor shall it apply to any employee of such common carrier injured or killed while so employed; and nothing in this act shall be construed to apply to any work done by, nor shall any compensation be payable under this act to, the master, officers, or any member of the crew of any vessel used in interstate or foreign commerce which said vessel is not registered or enrolled in the state of Louisiana.

"2. Whenever an employee of a common carrier engaged in interstate or foreign commerce by railroad shall sustain a personal injury by accident, arising out of and in the course of his employment, resulting in his disability or death, it shall be presumed prima facie that such employer was, at the time of the accident, engaged in such commerce."

What we held in the Bergeron Case, and again in the Salvaggio Case was that the state Employers' Liability Act did not apply to an injury to a railroad employee, happening while the railroad company itself was engaged in interstate commerce, even though the injured employee was not engaged in an interstate transaction at the time of the accident. In each of those cases, the railroad extended beyond the state line, and was therefore continuously engaged in interstate commerce. Section 30 of the statute declared, before it was amended, that it was not applicable "to any employer acting as a common carrier while engaged in interstate or foreign commerce by railroad." The expression "while engaged" in interstate or foreign commerce" meant, quite plainly, that there might be times when an "employer acting as a common carrier" would be, and times when such employer would not be, engaged in interstate or foreign commerce. The second paragraph of section 30 of the statute, before it was amended, left very little doubt about...