Walton v. Louisiana Power & Light Co.

• Decision Date: 12 February 1934
• Docket Number: 14787
• Parties: WALTON v. LOUISIANA POWER & LIGHT CO. et al
• Court: Court of Appeal of Louisiana — District of US

152 So. 760

WALTON v. LOUISIANA POWER & LIGHT CO. et al

No. 14787

Court of Appeal of Louisiana, Orleans.

February 12, 1934

Rehearing denied March 12, 1934.

Monroe & Lemann, John May, and Walter J. Suthon, Jr., all of New Orleans, for appellants.

James G. Schillin, of New Orleans, for plaintiff appellee.

Henry &amp Cooper and Jno. A. Smith, Jr., all of New Orleans, for intervener appellee.

OPINION

WESTERFIELD Judge.

This is a suit by a widow in her own behalf and as natural tutrix of her minor children, sounding in damages ex delicto, against the Louisiana Power & Light Company and George D. Boudreaux, its local manager. There was judgment below as prayed for, in the sum of $ 15,000, and defendants have appealed.

The accident which forms the basis of this suit occurred in the village of Braithwaite, Plaquemines parish, about 9:30 a. m., October 8, 1930. Braithwaite is a small rural community, the inhabitants of which are, or were, for the most part, employees of the E-Z Opener Bag Company, to which we shall hereafter refer to as the bag company. Some time previous to the accident, the local manager of the bag company, who was also a member of the police jury of Plaquemines parish, conferred with other parish officials and with the local manager of the Louisiana Power & Light Company, a public service corporation, to which we shall hereafter refer to as the power company, for the purpose of determining upon a system of lighting the entrance of Braithwaite at a point at which a new road, which had recently been constructed, joined the main highway. At that conference it was decided that the entrance would be decorated by two ornamental brick pillars surrounded by large lights, forming an illuminated gateway to the road. The agreement reached at that conference was to the effect that the bag company would erect the ornamental brick pillars, or posts, and connect them by an underground wire to a post of the power company nearby, whence the wire was to be carried through a conduit to a point near the top of the post which was about 35 feet high, where the service or feed wires of the company were located. The parish authorities agreed to pay for the current and the power company to make the connection.

The ornamental posts were erected and the underground connection made and the final execution of the project undertaken on the morning of October 8, 1930, when George Boudreaux, a local representative of the power company, and Louis Chauvin and George Walton, employees of the bag company, met in the vicinity. Boudreaux, equipped with climbing spurs attached to his feet, mounted the pole for the purpose of making the connection with the company's service wires, while Chauvin, on the ground, pushed a flat steel wire known as a "fish line" through the conduit, which had been attached to the post, with the intention of effecting a passage for a permanent wire which was to be tied to the "fish line" and "fished," or pulled, through the conduit. Walton, also on the ground, held the slack of the "fish line," feeding it gradually as Chauvin required it. The "fish line" protruded through the upper opening of the conduit about eight feet, bent backwards over the head of Boudreaux, who was seated on a cross-arm near the top of the pole, and made contact with a live wire near the fuse box, with the result that a current of electricity of high voltage was transmitted through the "fish line" and electrocuted Chauvin and Walton, who were standing on the ground with the "fish line" in their hands.

The dependents of Chauvin brought a suit under the Compensation Law against the American Mutual Liability Insurance Company, the insurance carrier of the bag company, and obtained judgment, which was affirmed by this court. 17 La.App. 187, 134 So. 450. Walton's dependents, plaintiffs herein, also brought suit under the Compensation Law against the same insurance carrier and obtained judgment in the civil district court for $ 20 a week for 300 weeks, the maximum allowed by the statute. Based upon the latter judgment and upon the authority of section 7 of Act No. 20 of 1914, as amended by Act No. 247 of 1920, the American Mutual Liability Insurance Company has intervened herein and asked for and obtained a judgment below ordering defendants to reimburse the insurance carrier for the amount of compensation paid the plaintiffs out of the judgment rendered in this case.

The charge of negligence against the defendant Boudreaux is that while he was at the top of the conduit and in a position to prevent the "fish line" from protruding therefrom, he failed to do so. The power company is sued as the employer of Boudreaux, who is said to have been acting within the scope of his employment at the time of the accident.

The defense is to the effect that Walton and Chauvin were guilty of negligence in pushing the "fish line" through the top of the conduit before Boudreaux had reached a position on the pole where he could receive it, and that this negligence was either the sole or contributing cause of the accident.

In the alternative it is contended that, if the accident be held to be due to the fault of Boudreaux, he was not an employee of the power company, but was acting as assistant, or volunteer for the bag company, and, "pro hac vice," its employee. Finally, a plea of prescription of one year is made against the claim of the insurance company, intervener.

Considering, first, the question of whether Boudreaux was out of character as an employee of the power company on the morning of the accident and a volunteer in the service of the bag company, the evidence is overwhelmingly to the effect that the power company had undertaken to make connection with the service lines of the power company and that no person other than an employee of the power company is ever permitted to make such connection.

On the second point of the defense there is some testimony in the record to the effect that Boudreaux, before ascending the pole, ordered Chauvin and Walton to refrain from pushing the "fish line" through the conduit until he had obtained a position on the pole where he might control the "fish line" after its emergence from the upper end of the conduit, and that, by failing to heed this admonition, the line was prematurely pushed through the conduit before Boudreaux had reached the cross-arm, which was admittedly the proper position to have been in for the control of the "fish line." This testimony however, is overborne by the weight of evidence to the contrary, which shows that Boudreaux was seated on the cross-arm for some little time before the wire emerged from the upper opening of the conduit, a fact found by the trial judge in his written reasons for judgment.

But it is said, conceding that Boudreaux was an employee of the power company, he had no business to do work which the bag company had agreed to do, i. e., bringing the wire up the conduit along the pole, and that to this extent he exceeded his authority and his employer cannot be held for negligence in the performance of acts beyond the scope of his employment. Referring to this contention, we first observe that the question of whose duty it was to bring the wire up the pole is at least doubtful. The officials of the bag company who testified denied that they had agreed to do anything more than make connections with the post. But suppose the bag company had agreed to install the wire in the conduit on the post and that Boudreaux did more than was necessary in the interest of his employer. Let us say that in doing so he acted in disobedience to his employer's instructions and there is no contention that he received any instructions on the subject would it make any difference in the responsibility of his employer under the doctrine of respondeat superior? Boudreaux was certainly on the mission of his employer, and if, in order to do the work with the execution of which he was intrusted, he undertook a little more than was necessary, he was, nevertheless, within the general scope of his employment. In Williams v. Pullman Palace Car Co., 40 La.Ann. 87, 91, 3 So. 631, 634, 8 Am. St. Rep. 512, our Supreme Court held that a master was liable for the negligence of his servants in the exercise of the functions in which they are employed, whether the negligent act be willful or "committed in disobedience of the express orders of the master." See, also, Bearman v....