Thompson v. Bradford Motor Freight Line

• Decision Date: 08 May 1933
• Docket Number: 14515
• Court: Court of Appeal of Louisiana — District of US
• Parties: THOMPSON ET AL. v. BRADFORD MOTOR FREIGHT LINE ET AL

148 So. 79

THOMPSON ET AL. v. BRADFORD MOTOR FREIGHT LINE ET AL

No. 14515

Court of Appeal of Louisiana, Orleans.

May 8, 1933

Writ of certiorari denied July 7, 1933.

Wm. A Green, of New Orleans, for appellants.

Clarence De Lucas, of New Orleans, for appellees.

WESTERFIELD Judge. JANVIER, Judge (dissenting).

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.The above paragraph is taken verbatim, without the change of a single word or a single punctuation mark, from the opinion written by Mr. Justice Odom, then judge of the Court of Appeal for the Second Circuit, in the matter of Bass v. Shreveport-Eldorado Pipe Line Co., 4 La.App 107. I have set it forth, not as a quotation from that opinion, but as a statement of fact in the case now before us, because the facts in this case are exactly as were those set forth in the above paragraph. If the decision in that case was correct, then the prevailing opinion in the case before us now is incorrect. The two cannot be reconciled. Under the prevailing opinion the death of young Dugas resulted from an accident which arose out of his employment.There is in the record no evidence whatever to the effect that the employers contracted to furnish transportation to their employees or that it was a necessary incident to the contract of employment. On the contrary, the testimony given by every witness who mentioned the subject of transportation was to the effect that no such transportation was contracted for, referred to, or necessarily implied from the terms of employment. They all stated that it was only where by good fortune a truck happened to be going in the direction in which an employee desired to go, that such employee, purely as a gratuity and not in any way as an obligation of the employer, was permitted to ride on that truck. This had no more to do with the employment than had the employee been fortunate enough to obtain a ride with some total stranger.My associates base their conclusion that the accident arose out of the employment largely on the views expressed by our brothers of the Second Circuit in May v. La. Central Lumber Company, 6 La.App. 748, in which, as I find it stated in the majority opinion, "an employee of a lumber company was injured in attempting to alight from a moving train which was operated by his employer as a convenience for its workmen in going to and from their work." (Italics mine.)I believe that the words which I have italicized show the distinction between that case and this. There, as my associates find, the train was operated by the employer as a convenience to the employees. In other words, it was intentionally furnished and regularly run each day in order that they might ride. Special coaches were hauled. In such case it was, of course, proper to say that these facts indicated clearly that transportation was intentionally and deliberately furnished as an incident to the contract of employment. No such conditions existed in this case, and it was only when, purely by chance, an employee was so fortunate as to find a truck going in his direction that he was afforded transportation. I do not see that the decision of the Supreme Court in Kern v. Southport Mill, Ltd., 174 La. 432, 141 So. 19, 20, is to any extent controlling here, for, according to the facts as the Supreme Court found them in that case, that matter may be easily distinguished from this. I quote from that opinion:"Plaintiff was employed by defendant. (3)5C He was directed to do some outside work and then return to the mill. On returning he stepped out of a street car into the path of an automobile; was struck down, and permanently and totally injured; and now claims compensation."If Kern's employers sent him out on a job and ordered him to return when the job was finished, certainly he was within the protection of the compensation statute while going from the regular place of employment to the outside job and while returning from that job to the regular place of employment. There is no similarity, in my opinion, between the facts of that case and the facts of this one.The facts in this case, in my judgment, bring it squarely within the doctrine announced in many cases, of which I cite, as typical examples, Bass v. Shreveport-Eldorado Pipe Line Company, supra; Erickson v. St. Paul City Railway Company, 141 Minn. 166, 169 N.W. 532, 533; Kowalek v. New York Consolidated Railway Company, 229 N.Y. 489, 128 N.E. 888, and Milner v. Louisiana Highway Commission, 17 La.App. 28, 134 So. 441.The facts in the Bass Case are set forth in the opening paragraph of this dissenting opinion and need not be repeated here.In the Erickson Case, "the accident happened after the employees had completed their day's work and had left their place of employment and while they were proceeding toward their respective homes. Although they were riding on the truck of their employer, it clearly appears that their contract of employment imposed no obligations upon the employer to transport them to or from the place of work, and that they were merely riding as licensees to serve their own convenience. Their service for the day had terminated; they had left the place where such service had been performed and were no longer engaged in performing any service for their employer. Under such circumstances they were not within the provisions of the Compensation Law and the trial court ruled correctly."In the Kowalek Case, "it was the practice of the company to permit employees to ride to and from their work upon the cars or trains of the company without charge." The accident occurred while the employee was being transported to his home under the above circumstances. The court said:"The statute is not applicable to an injury which arises through a danger or hazard dissociated from or not inherent in the nature of the employment as its source and to which the employee would have been equally exposed apart from the employment. This conclusion is not affected by the fact that the employee would not, except for the employment, have been where such danger or hazard existed. An injury does not arise out of the employment unless the hazard causing it is, within rational apprehension, an attribute of or peculiar to the specific duties of the employment. The fact that the contract of employment exists and necessitates the acts of performance may or will occasion for the employee risks not reasonably incidental to the character of the work or employment. For the injuries caused by or flowing from those risks the statute does not direct or permit compensation. Myers v. Louisiana Ry. & Nav. Co., 140 La. 937, 74 So. 256; Hewitt's Case, 225 Mass. 1, 113 N.E. 572, L. R. A. 1917B, 249; Donahue's Case, 226 Mass. 595, 116 N.E. 226, L. R. A. 1918A, 215; Fumiciello's Case, 219 Mass. 488, 107 N.E. 349; Ross v. John Hancock Mutual Life Ins. Co., 222 Mass. 560, 111 N.E. 390; McNicol's Case, 215 Mass. 497, 102 N.E. 697, L. R. A. 1916A, 306; Matter of Heitz v. Ruppert, 218 N.Y. 148, 152, 112 N.E. 750, L. R. A. 1917A, 344; Matter of DeVoe v. New York State Railways, 218 N.Y. 318, 113 N.E. 256, L. R. A. 1917A, 250; Dennis v. White & Co., 1917, A. C. 479; Williams v. Sir C. G. A. Smith, 6 Butterworth's W. C. C. 102; Thier v. Widdifield, 210 Mich. 355, 178 N.W. 16; Griffith v. Cole Bros., 183 Iowa 415, 165 N.W. 577, L. R. A. 1918F, 923. The death in the case at bar did not result from an injury arising either out of the employment or in the course of the employment."In the Milner Case, Milner was an employee of the Louisiana State Highway Commission. He was furnished an automobile for use in his work as an inspector. He obtained permission from his superior to drive to his home to spend the weekend, intending to return to work on the following Monday. While driving to his home an accident occurred and he died as a result. The Court of Appeal for the First Circuit said:"He was at the time driving the automobile furnished him by the Louisiana highway commission for the purpose of going from point to point in doing the inspection work which he was employed to do. But in using it to go home, his use was that of a licensee. He had no right to go home for the week-end, except by the leave of the Louisiana highway commission. In going home, he was traveling on the time of the commission, with the commission's consent previously obtained. In using the automobile for the purpose of going to Monroe, however, it was not being used for the purpose of making an inspection. In going home for the week-end, the trip was not for the performance of any service arising out of and incidental to his inspection work, but in order to visit his family-his private affair. The fact that he was being paid by the month, and that while making the trip and spending the week-end, his wage was going on, did not make the trip the performance of service arising out of and incidental to his employment."I am of the opinion that the accident in the case before us did not arise...