117 So. 558 | La. | 1928
This case is before us on certiorari to the Court of Appeal, parish of Orleans. The case has already once been before that court, and the nature of the case is stated in detail in the opinion handed down by that court on that occasion. Guillot v. La. Ry. Nav. Co., 5 La.App. 269.
For our present purpose it suffices to say that plaintiff's husband was employed by defendant as a car inspector, and, whilst engaged in his duties, was injured and died; that defendant is a common carrier railroad operating a line between New Orleans and Shreveport, *469 both of which are railroad centers reached by railroads extending into other states; that plaintiff filed suit against defendant, claiming compensation for herself and her minor child under the state workmen's compensation statute; that the defendant answered, denying liability under the statute, on the ground that the deceased was engaged in interstate commerce; that plaintiff, without attempting to meet that issue, at once brought suit against the defendant under the Federal Employers' Liability Act (45 USCA §§ 51-59; U.S. Comp. St. §§ 8657-8665); that, after the latter case had been on trial for two days, defendant in propria persona compromised it for $1,000, and then discontinued both her suits.
The defendant set up several exceptions, only two of which have any semblance of merit, to wit: (1) The prescription of one *470 year, which however is not well founded, for the reason that (as above said) the penalty herein claimed may be sued for at any time within five years from the lump sum settlement; and (2) an exception of no cause of action, which we think well founded.
But, where the party injured is in the employ of a common carrier railroad engaged in both interstate and intrastate commerce, there is always doubt and uncertainty as to whether, at the time of the accident, he was or was not engaged in interstate commerce; for each case stands on its own particular facts and circumstances, and cannot be resolved otherwise than by judgment of a court of last resort on that particular case. See the examples given in Hamilton v. La. Ry. Nav. Co.,
Hence, whenever a common carrier railroad engaged in interstate and intrastate commerce sets up as a defense to an action for compensation under a state workmen's compensation statute that the accident occurred whilst the employee was performing service appertaining to interstate commerce, there is always a serious and fundamental ground for doubting whether said employer be liable under the state statute or only under the Federal Employers' Liability Act, and therefore whether said employer be liable at all under the state law. *471
We would therefore have no difficulty whatever in reaching the conclusion that the compromise herein entered into was binding, had said compromise been entered into with the approval of a competent court.
But the question whether or not the deceased was engaged in interstate commerce at the time of the accident was set at rest by plaintiff herself when, instead of proceeding with her suit under the state statute, she assumed the same position the defendant had taken, and brought her suit under the federal act.
Having taken that position, and having in effect recovered under the federal act, she cannot now shift her position and recover again under the state law.
"It is ordered, adjudged, and decreed that the exceptions herein filed be, and the same are hereby, maintained, and plaintiff's suit dismissed, with costs." Tr. 24, 41.
The Court of Appeal thought the plea of prescription (one year) was good, and affirmed the judgment on that ground. *472
To us that exception appears not well founded; but, as above said, we think the exception of no cause of action sound.
The result, however, is the same in either case, to wit, the dismissal of the suit.