Thomas v. Shippers' Compress & Warehouse Co., Inc.

• Decision Date: 04 February 1935
• Docket Number: 14954
• Citation: 158 So. 859
• Parties: THOMAS v. SHIPPERS' COMPRESS & WAREHOUSE CO., Inc
• Court: Court of Appeal of Louisiana — District of US

158 So. 859

THOMAS v. SHIPPERS' COMPRESS & WAREHOUSE CO., Inc

No. 14954

Court of Appeal of Louisiana, Orleans.

February 4, 1935

John E. Fleury, of Gretna, for appellant.

Leo W McCune, of Gretna, and J. G. Dempsey, Jr., of New Orleans for appellee.

LECHE Judge. JANVIER, Judge (concurs).

OPINION

LECHE Judge.

Plaintiff filed this suit for damages for personal injuries resulting from a blow administered by a trailer attached to defendant's truck, while crossing the bridge spanning the Seventeenth Street Canal at the head of South Claiborne avenue. Defendant's answer amounted to a general denial. On the day of the trial, approximately one year after the date the petition was filed, defendant filed a plea of estoppel, alleging that since the time of the injury defendant's insurer had paid, and plaintiff had accepted, workmen's compensation in the sum of $ 20.86; that plaintiff was estopped from claiming damages and praying that his suit be dismissed. The case was tried and judgment rendered in favor of plaintiff in the sum of $ 1,500, subject to a credit of the $ 20.86 paid as compensation. A motion for a new trial was denied, and defendant has appealed.

We first direct our attention to the question of estoppel. If this case falls under the Employers' Liability Act (Act No. 20 of 1914, as amended), there is no question but that plaintiff is estopped from bringing this action under article 2315 of the Civil Code, as the terms of the Employers' Liability Law make the remedies therein provided exclusive in cases where the law applies. On the other hand, if this case does not come under the terms of the Employers' Liability Act, the mere fact that the defendant or his insurer has paid, and plaintiff accepted, weekly compensation, does not preclude him from his rights under the general law of torts under our ruling in the case of Gerstmayr v. Kolb, 158 So. 647, opinion rendered Monday, January 21, 1935.

The Seventeenth Street Canal divides the parishes of Orleans and Jefferson. The bridge is a prolongation of South Claiborne avenue, and connects it with the highway in Jefferson parish above the canal. Defendant's plant is located in Jefferson parish not far above the bridge, and plaintiff, in order to reach his home in Orleans parish, used this bridge as the most convenient one. Plaintiff was in the employ of defendant, and on the day of the injury had finished his work, left his employer's premises, and was returning home via the bridge. One of defendant's trucks, operated by another of its employees, was returning to the plant from New Orleans via the bridge, and it was while this truck was passing plaintiff on the Jefferson parish side of the bridge that the injury occurred. The following jurisprudence is pertinent to the question here involved: In the case of Ward v. Standard Lumber Company, 4 La.App. 89, the court said: "As to the liability of the defendant, it is contended that the accident did not arise in the course and out of the employment for the reason that it occurred on the public highway and from a hazard or risk to which the plaintiff, as well as all other persons who used the highway, were subjected. "There is no exact rule by which it may be determined whether or not any given accident in which an employee is injured arose in the course and out of the employment, but the relationship of the accident to the employment must be determined with reference to the facts in each case. "The evidence in this case shows the plant or premises of defendant where plaintiff was employed was located adjacent and contiguous to the highway over which the employees had access to the premises, and that plaintiff, who was on his way to lunch at the noon hour, while crossing the highway at a point contiguous to the premises, was struck by an automobile being driven by its owner, who was an employee of defendant and fellow employee of plaintiff, and who was at the time leaving the premises on his way to lunch. "We are of the opinion that the place of the accident, being in close proximity to the place of employment and being the way over which plaintiff had access to the premises, and the time to have been when he was leaving the premises for lunch, the accident arose in the course of the employment. (Jones v. Louisiana Central Lumber Company, 2 La.App. 260; Cudahy Packing Co. v. Parramore, 263 U.S. 418 44 S.Ct. 153, 68 L.Ed. 366 30 A.L.R. 532). And that the risk of crossing the highway, being increased by reason of its use at the time of the accident by the fellow employee of plaintiff, the plaintiff was subjected to a greater hazard by reason of the employment than would have been the case for one not thus engaged, and that the accident arose out of the employment. ( Myers v. La. Ry. & N. Co., 140 La. 937, 74 So. 256; Dyer v. Rapides Lumber Co., 154 La. 1091, 98 So. 677; Ferguson v. Cady McFarland Gravel Co., 156 La. 871, 101 So. 248.) In Bass v. Shreveport-Eldorado Pipe Line Company, 4 La.App. 107, Judge Odom treated the question as follows: "Under such circumstances we do not think the accident which caused the loss of the plaintiff's eye arose in the course of his employment. His day's work was done and he had ceased to labor. He had been paid off and was on his way home. He was not at or anywhere near the place where he worked and was not on or near defendant's premises. The accident did not occur during the period of his employment.

"In a Corpus Juris treatise on workmen's compensation acts, Mr. Donald J. Kiser says, at page 80:

" "It has been said that in general terms an injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto.'

"And further, on page 81:

" "The period of employment is not confined to the period for which wages are paid, and may extend beyond the hour of the employee's actual labor, the relation of master and servant existing wherever the servant is under the master's control and subject to his directions.'

"In the case at bar the plaintiff was not reasonably fulfilling any of the duties of his employment, nor was he engaged in doing something incidental thereto. He was not at the time under defendant's control nor subject to its directions. Plaintiff was not at the time working at all. He had quit work, had been paid off, and was going home. The only theory under which it could be urged that plaintiff was entitled to recover is that injuries received by laborers while on their way to or from their work may be said to arise out of and in the course of their employment.

"As a general rule, the relation of master and servant ceases when the servant leaves the place of his employment at the close of a day's work to go to his home.

"A reading of the cases cited, where the courts have held that an accident to an employee, while riding to or from his work arises out of and during the course of his employment, will disclose that in such cases the transportation was furnished by the employer as an incident of the contract of employment or was part of the consideration therefor. But, so far as we have been able to find, no court has held that an employee was entitled to compensation when injured on his way to or from his work unless he was being transported by the employer under circumstances as above outlined. "In the case at bar, the plaintiff's work was finished for the week and he had been paid off; he was on his way home when the accident happened, and was more than a mile from defendant's premises. He was entirely out of his employer's control and was not where he was performing or where he could perform any service for his employer; he was riding on a conveyance not used to carry him as an incident of his employment or as part of his compensation, but he was permitted to ride on it as a matter of accommodation; he was not on his way to living or boarding quarters furnished or controlled by the employer as an incident of his employment or part of his compensation; he was on his way to his own home. Under such circumstances, the accident did not arise out of or in the course of plaintiff's employment nor was it an incident thereto, and therefore he is not entitled to recover." In the case of Nugent v. Lee Lumber Company, 4 La.App. 371, Judge Webb said: "That on the date of the accident the decedent, after completing the day's task, requested a driver of a truck belonging to Hamilton to carry him from the corral to decedent's home, on the truck, which request was acceded to by the driver, and while decedent was being thus transported he in some manner lost his balance and fell from the truck (which was at that time on the public road and about one-half mile from the corral), receiving injuries which caused his death. "If the employer is liable under the facts presented, it is for the reason that the accident occurred while he was returning home from his work, but we have not been cited to any decision in which such a broad construction has been placed on the statute. "It cannot be said from the situation of the place of the accident that there was any causal connection between it and the risks or hazards incident to the place of employment as was the case in Gasca v. Texas Pipe Line Co., 2 La.App. 483, or Jones v. La. Cent. Lumber Co., 2 La.App. 260, or Prevost v. Gheens Realty Co., 151 La. 508, 92 So. 38; and we are of the opinion that when the decedent took his seat upon the truck for the purpose of being transported and had left the premises the relations between him and Hamilton had ceased and the accident cannot be said to have arisen in the course of the employment." In the case of ...