Woodham v. Travelers Ins. Co.

• Decision Date: 04 March 1964
• Docket Number: No. 1058,1058
• Citation: 161 So.2d 368
• Parties: Donald WOODHAM, Plaintiff and Appellant, v. TRAVELERS INSURANCE COMPANY et al., Defendants and Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 368

161 So.2d 368

Donald WOODHAM, Plaintiff and Appellant, v. TRAVELERS INSURANCE COMPANY et al., Defendants and Appellees.

No. 1058.

Court of Appeal of Louisiana, Third Circuit.

March 4, 1964.

Rehearing Denied March 17, 1964.

Writ Refused May 4, 1964.

Tate & Tate, Donald J. Tate, Mamou, for plaintiff-appellant.

Dubuisson & Dubuisson, William A. Brinkhaus, Opelousas, for defendants-appellees.

Before SAVOY, TATE and HOOD, JJ.

HOOD, Judge.

Plaintiff in this suit, Donald Woodham, seeks a judgment for workmen's compensation benefits under both the Louisiana and the Mississippi workmen's compensation laws, because of a disabling injury which he allegedly sustained while working for Associated Pipeline Contractors, Inc., in Grenada, Mississippi. The suit was instituted against the employer, Associated Pipeline, and the latter's compensation insurers, Travelers Insurance Company and Travelers Indemnity Company. Defendants filed an 'exception to the jurisdiction of the court,' alleging that the trial court lacks jurisdiction because 'the contract of employment in question was entered into in Grenada, Mississippi, where the accident happened.' After a hearing, judgment was rendered by the trial court maintaining that exception and dismissing the suit. Plaintiff has appealed.

Plaintiff is a resident of Ville Platte, in Evangeline Parish, Louisiana. The defendant employer, Associated Pipeline, is a foreign corporation authorized to do business in Louisiana, with agents appointed here for the service of process. In this suit service was made on that defendant in Louisiana, through its duly appointed agent for that purpose. Both of the defendant insurers are foreign insurance companies, and both are authorized to do business in Louisiana, with the Secretary of State appointed as agent of each for the service of process. Service was duly made on each of said insurers through the Secretary of State.

The evidence shows that during the year 1962, and for a number of years prior thereto, Associated Pipeline was engaged in the business of laying pipelines in a number of states and in some foreign countries. On a few occasions during the five-year period which immediately preceded the year 1962 plaintiff was employed by that company to work as a 'swamper' on different pipeline projects in Louisiana, Mississippi and Alabama. He worked for that employer only a few days on each of those occasions, however, and while not working for that company, he frequently obtained work from other employers.

After leaving Associated Pipeline's employment during the latter part of the year 1961, plaintiff had no further contact with that company until August of 1962, when he wrote to Associated Pipeline at its main office in Houston, Texas, indicating that he would like to return to work for it, and inquiring as to the location of the project or 'spread' on which a Mr. Singleton, one of the company's foremen, was then working. Defendant returned the letter to plaintiff with a notation on the bottom that at that time Mr. Singleton was working on a pipeline project in Grenada, Mississippi.

Upon receipt of this information plaintiff went to Grenada, Mississippi, in the hope of obtaining employment there. Upon his arrival he was informed that the project there had not been started, but that Associated Pipeline at that time was working on another project in Kentwood, Louisiana. Plaintiff then went to Kentwood, Louisiana, and upon applying to the foreman there he was hired by that foreman to work on the Kentwood project as a swamper.

After working for Associated Pipeline in Kentwood for six or seven days, he heard that the project or spread in Grenada, Mississippi, was ready to 'kick off.' He thereupon voluntarily quit his job in Louisiana and went back to Grenada, Mississippi, in the hope of obtaining employment on the project which was being started there. Upon his arrival in Grenada, he applied to defendant's foreman on that project, who thereupon employed plaintiff to begin work as a swamper on the Grenada project the following day. While working for Associated Pipeline in Grenada, Mississippi, on August 22, 1962, plaintiff fell into a trench and injured his back. As a result of the injuries which he sustained at that time, he has been paid workmen's compensation benefits under the Mississippi law continuously since the date of the accident, and he was receiving these payments at the time of the trial of this case. He now seeks compensation primarily under the Louisiana compensation law, and alternatively under the Mississippi compensation law, for the disability he sustained as a result of that accident and injury.

Plaintiff alleges and contends that his original contract of employment was entered into in the State of Louisiana, and that thereafter he was 'transferred by defendant employer from the State of Louisiana to the State of Mississippi.' Defendants, on the other hand, contend that plaintiff's contract of employment was entered into in Grenada, Mississippi. All parties concede that the accident occurred in Mississippi.

The uncontradicted evidence establishes that the employer, Associated Pipeline, does not employ a regular crew of swampers on their pipeline projects, that each project is a separate operation and that the foreman of a project hires swampers and common laborers locally for each job as such workers appear at the job site for work and as they are needed. Many workers, like the plaintiff in this case, drift from project to project with the hope of obtaining employment as each new project is begun. Swampers are never transferred from one project to another and they are never assured by Associated Pipeline that they will be rehired at any other project. They merely appear at the project site at the time work is to begin and if their services are desired, the foreman on that project then hires them. No hiring is done through defendant's main office at Houston, Texas.

The trial judge concluded that the contract of employment between plaintiff and defendant was entered into in Grenada, Mississippi, and we think the evidence clearly supports that conclusion. Plaintiff, in fact, concedes in his testimony that he voluntarily quit his job in Kentwood, Louisiana, and that no one sent or transferred him from that job to the one in Mississippi.

The law is settled that no recovery can be had under the Louisiana Workmen's Compensation Act in cases where the contract of employment was not entered into in this State and where the accident did not occur in this State. Cobb v. International Paper Company, La.App. 2 Cir., 76 So.2d 460; and Reed v. Zurich General Accident & Liability Insurance Co., La.App. 1 Cir., 83 So.2d 660.

In the Cobb case, supra, the plaintiff was a Louisiana resident and the defendant employer was a foreign corporation authorized to do business in the State of Louisiana, where it had an agent for the service of process. Plaintiff had previously been employed by defendant at its Natchez, Mississippi, plant but he voluntarily quit that employment. Later he returned to the Natchez plant seeking employment, but was informed that none was available and that he would be contacted when and if he was needed. Sometime thereafter a representative of the defendant company telephoned plaintiff at his home in Louisiana and informed him by telephone that work was available at the Natchez plant. Plaintiff thereupon went to Natchez, was hired by defendant and was injured while working for it in Mississippi. Plaintiff sued in a Louisiana court claiming compensation benefits under the Louisiana Workmen's Compensation Act. The trial court sustained an 'exception or plea to the jurisdiction of the court,' filed by the defendant employer, based upon allegations that plaintiff was employed in Mississippi and that the accident occurred in that State. In affirming the judgment of the trial court, our brothers of the Second Circuit said:

'It is conceded, and correctly so, that where a contract of employment is entered into in this State, our Compensation Statute will be given extra territorial effect. Selser v. Bragmans Bluff Lumber Co., Inc., La.App., 146 So. 690; McKane v. New Amsterdam Casualty Co., La.App., 199 So. 175; Ohlhausen v. Sternberg Dredging Co., 218 La. 677, 50 So.2d 803. Where neither the harm occurred nor the contract of employment was made in this State, no recovery can be had under the Louisiana Workmen's Compensation Act. Restatement of the Law on Conflict of Laws, Chapter 9, § 400, page 488.'

In Reed v. Zurich General Accident & Liability Insurance Co., supra, where the facts and the issues are almost identical to those presented here, the First Circuit Court of Appeal, in maintaining defendant's 'exception to the jurisdiction of the court,' said:

'As we have found that the contract of employment was not a Louisiana contract, and it is admitted that the accident occurred outside of the State of Louisiana, the Courts of this state are without jurisdiction. The exceptions below were correctly maintained.'

Other cases which we have considered in determining the issues presented here are: Hargis v. McWilliams Co., La.App.Orl., 9 La.App. 108, 119 So. 88 (Cert. denied); Festervand v. Laster, La.App. 2 Cir., 15 La.App. 159, 130 So. 634; Durrett v. Eicher-Woodland Lumber Co., La.App. 2 Cir., 19 La.App. 494, 140 So. 867; Selser v. Bragmans Bluff Lumber Co., La.App.Orl., 146 So. 690; Abood v. Louisiana Oil Refining Corporation, La.App. 2 Cir., 155 So. 484; McKane v. New Amsterdam Casualty Co., La.App.Orl., 199 So. 175 (Cert. denied); Hunt v. Magnolia Petroleum Co., La.App. 1 Cir., 10 So.2d 109 (Cert. denied); Williams v. Travelers Insurance Company of Hartford, Conn., La.App. 1 Cir., 19 So.2d 586 (Cert. denied); Ohlhausen v. Sternberg Dredging Co., 218 La. 677, 50 So.2d 803; and Rushing v. Travelers Insurance Company, La.App. 2 Cir., 85 So.2d 298.

In the instant suit, since we have found that plaintiff's...