37 So. 2d 877 | La. Ct. App. | 1948
In this suit, plaintiff, Beulah Babineaux, widow of Treville Stelly, seeks to recover of the defendants, G. J. Giblin and his insurer, Continental Casualty Company, compensation in the sum of Nineteen 50/100 ($19.50) Dollars per week, beginning from January 4, 1947, for a period of not exceeding three hundred (300) weeks, and for an additional sum of Three Hundred ($300) Dollars for burial expenses arising out of the death of her husband on January 4, 1947, alleged to have occurred in the course and scope of his employment by the defendant, G. J. Giblin. The defendants filed an exception of no cause of action, contending that the death of her husband did not occur in the course and scope of the employment. The exception was sustained and plaintiff's suit was dismissed. The plaintiff has appealed.
The facts, as shown by the petition and which necessarily must be taken as proven, show that prior to and on Saturday, January 4, 1947, the date of the accident and death, plaintiff's husband, Treville Stelly, was in the employ, as a carpenter, of G. J. Giblin, a building contractor, in the construction of a building in the City of New Iberia, Iberia Parish. Decedent was residing in the Town of Abbeville, due to lack of available living quarters in the City of New Iberia; and as part of his employment, he was required to drive to and from his said work in the City of New Iberia, in an automobile owned by him. The shortest, safest and most available route between the place of his employment in New Iberia and his residence in Abbeville was a paved State Highway, which paved highway was traversed by a railroad track a distance of approximately one and 4/10 miles west of the City of New Iberia. In going to his work and returning home from the place of his employment, the decedent was required to traverse said railroad track along the aforesaid highway.
On the day of the accident and death, the decedent had been on duty. His employment *879 would ordinarily have terminated at 4:30 P.M., and he was paid wages until that time, but in order to enable him to arrive home early, he was permitted by his employer to leave the place of his employment at about the hour of 4:00 P.M. He proceeded to drive to his residence along the aforesaid paved highway. The weather was cold, the sky was overcast and a steady drizzle was falling; as the rain fell, it immediately froze upon the wind shield of his automobile, obstructing his view. Upon his reaching the point where said highway was traversed by the railroad track, and as he drove his automobile upon the railroad track, his automobile was struck by a train and he was killed; the accident occurred at approximately 4:20 P.M.
The plaintiff contends that her petition discloses a cause of action because: (a) That as a part of his employment the decedent was required to use his own automobile in transporting himself to and from the place of his work; (b) that due to lack of available living quarters in New Iberia, decedent was required to live in Abbeville, Louisiana, and in going to and from the place of his employment the decedent was required to traverse the railroad track along which he was killed; (c) that because of his employment on the date of the accident in question, the decedent was exposed to unusual weather conditions which directly caused his death.
In considering these contentions of plaintiff we shall consider them in the above stated order.
The general rule under the Workmen's Compensation Law of this State is that an injury suffered by an employee away from his employer's premises, while going to or returning from work, does not arise out of and in the course of his employment. However, this rule is subject to three exceptions: The first exception is where the employee's duties are such as to require him to furnish his own means of transportation in the actual performance of his work and uses his own means of transportation not only to go back and forth to his work, but also to perform his duties during the course of a day's business. In such instance, the means of transportation is a sort of instrument or tool of trade and the employee travels during the course of one day's work from place to place in the pursuit of his duties. The second exception is where the employer furnishes the means of transportation. The third exception is where the accident occurs near or immediately adjacent to the premises of the employer in the route of ingress or egress used by the employees.
Plaintiff bases her first contention on the fact that decedent, as a part of his employment, was required to furnish his own means of transportation both for himself and for his carpenter tools in going to and from his work in the fulfillment of his contract of employment and was so doing with the knowledge, approval and authorization of his employer and therefore contends that this case falls within the first exception stated and cites cases which she contends support her position.
The first case cited by plaintiff is a New Jersey case, namely: Clegg v. Motor Finance Corporation, 28 A.2d 533, 534, 20 N.J. Misc. 437. In that case the court found the facts to be:
"The petitioner on the day of the accident and for some time prior thereto, was in the employ of the respondents, Interstate Insurance Co., whose office was located in Newark, in the capacity of adjuster. Among other duties, it was necessary for him to effect the repossession of automobiles. He had no regular working hours, but was given assignments each day which he would carry over from day to day. It was not unusual for him to work varying hours of the day or night in the performance of these assignments in which he required the use of his automobile. Several days prior to the alleged accident, he was given an assignment to repossess the automobile of one Conklin who was the manager of a grocery store in Nanuet, N.Y., and who resided in New City, N.Y. On the day of the accident, a Saturday, the petitioner in furtherance of this assignment, attempted to contact Conklin at Nanuet by telephone. Failing in this, he left Newark with his car to go to Nanuet to *880 repossess the car of Conklin. Arriving in Nanuet in the afternoon, petitioner failed to find Conklin's car in the vicinity of the store and although he made no effort to contact Conklin personally at his store, he tried to reach Conklin by telephone at his home in New City but was unsuccessful. Thereupon, the petitioner left New City in his auto to go to Newburgh, N.Y., where his wife was visiting some friends. The petitioner spent the remainder of the afternoon and early evening visiting with his wife in Newburgh. Petitioner testified that about 11 o'clock that evening, he left Newburgh in his car to go to New City to see Conklin and, if possible, repossess his automobile. It was while on Route 9-W on the outskirts of New Windsor, N.Y. and between 11 P.M. and midnight, that he met with an automobile accident as a result of which he sustained a fractured leg and was hospitalized for several weeks. From the road map in evidence, it would appear that New City is about 5 miles north of Nanuet, that Newburgh is about 30 miles north of New City and that New Windsor is about 3 miles south of Newburgh."
In the opinion, it is stated: "An accident arises 'in the course of' his employment if it occurs while the employee isdoing what a man so employed may reasonably do within a timeduring which he is employed and at a place where he mayreasonably be during that time. For an accident to arise 'out of' the employment, it must be of such a nature the risk ofwhich might have been contemplated by a reasonable person whenentering the employment and as incidental to it. The risk isincidental to the employment when it belonged to or isconnected with what an employee is required to do in theperformance of his services." (Italics ours.) We find this to be the rule in this State. See Kern v. Southport Mill,
Applying the rule to the facts of the case, the court stated: "The field of his employment was not limited by time or material space, but by his ability to cope with and solve the problems incidental to the repossession of an automobile" and held that "the accident occurred in the course of hisemployment because it occurred while he was on the business ofhis employer and en route to the point where he expected andintended to discharge a given assignment. It arose out of theemployment because it was the result of a risk that wasdirectly connected with the special nature of his employment." (Italics ours.) Under our jurisprudence this case would fall under the first exception to the general rule supra.
The next case cited is the case of Davis v. Bjorenson,
The plaintiff also cites the case of Ohmen v. Adams Brothers et al.,
We are not favored with the statutory definition referred to in the opinion, however we note that in the case of Whitney v. Hazard Lead Works,
However, the Ohmen case was later distinguished by the same Connecticut Court in De Rosa et al. v. Levering and Gerrigues Co.,
The plaintiff cites the case of Neyland v. Maryland Casualty Co., La. App.,
Likewise, we find that the case of Osborne v. McWilliams Dredging Co.,
In the case at bar, plaintiff was in the employ of the defendant in the capacity of a carpenter, which involved work on and in connection with the construction of a definite building in the City of New Iberia. His employer was not concerned as to how he reached his place of employment. The means of transportation was at the employee's discretion. Decedent had a definite place of employment; it was up to him to be at that definite place and at the hour to begin his duties. Naturally, it was required of him to have his tools with him in order to perform his duties. The employer was not concerned as to where he kept these tools when not in use. The fact that the decedent lived in the City of Abbeville and not in proximity of his work did not and could not concern the employer. It is evident from the petition that it was of no concern to the employer as to how decedent traveled to and from work; in so far as the employer was concerned, the method of conveyance could be by the use of his own car, by the pooling of cars by fellow employees, by bus or other public conveyance. It was the fact that he lived in Abbeville whichrequired him to drive to and from Abbeville to New Iberia and not the nature of his duties. The cases relied upon by the plaintiff are clearly inapposite to plaintiff's case.
With reference to plaintiff's second contention, that is, that the decedent was required to cross the railroad intersection, where his death occurred, as an additional hazard of his employment, the plaintiff cites many cases. We see no useful benefit to discuss or analyze these many cases. They all fall within the classification of cases in which the accident happened in such close proximity to, or so connected with the premises, that, in principle it may be considered as having happened on the actual premises of the employer, and consequently to have arisen in the course of employment. See Cudahy Packing Co. of Nebraska v. Parramore,
As to plaintiff's contention that this railroad crossing was an additional hazard of his employment, the fact that decedent had to traverse the railroad track was not because his employment required it, but because he was living in Abbeville. For reasons personal to himself, he exposed himself to a hazard which was not inherent to his employment or common to the other employees of the defendant. There is not anything in defendant's business that especially exposed his employees to the risk of being hit by a railroad train.
As to plaintiff's third contention, that is, because of his employment on the date of the accident in question the decedent was exposed to unusual weather conditions which directly contributed to his death, she cites and relies upon the case of Rogers v. Mengel Co.,
Being of the opinion that the alleged accident did not occur during the course and scope of the decedent's employment, the judgment appealed from is affirmed.