79 So. 549 | La. | 1918
Lead Opinion
This is an action for damages under article 2315 of the Civil Code, and, in the alternative, a demand for compensation, under the Employers’ Liability Act, for the death of the plaintiff’s son.
The suit for damages is based upon alie
The defendant filed a plea or exception of no cause or right of action; the argument being that the only right of action at law was for compensation under the Act No. 20 of 1914, and that the petition did not disclose a cause of action under the statute because the plaintiff did not allege that a dispute had arisen between her and the defendant as to the compensation claimed. The court overruled the exception of no cause of action, maintaining that only a plea of prematurity would have been appropriate to the demand for compensation. Thereafter, and more than a year after the fatal accident, the plaintiff filed a supplemental petition, alleging that the dispute had arisen between her and the defendant before she filed her suit. The defendant again filed an exception of no cause or right of action, and, in the alternative, pleaded that a demand for compensation under the Employers’ Liability Act should not be joined with a suit for damages under the Civil Code, even in the alternative, because the defendant desired and was entitled to a trial by jury of the suit for damages; whereas, the proceeding under the Employers’ Liability Act had to be tried by the judge alone. The latter exceptions were overruled, and the defendant then answered both the original and supplemental petition.
The main defense to the action for damages under article 2315 of the Civil Code is the contention that the provisions of the Employers’ Liability Act, limiting the plaintiff’s right or remedy to the demand for compensation according to the amount that her son had contributed to her support, is valid legislation and deprives her of a right of action for damages. To the demand for compensation, the defendant pleaded the prescription of one year, and pleaded also that the demand for damages was a renunciation of the claim for compensation.
On the question of constitutionality of the Employers’ Liability Act, the district judge held that it was valid legislation, and he therefore rejected the demand for damages. A judgment of nonsuit was rendered on the alternative demand for compensation, because the plaintiff failed to prove, to the satisfaction of the judge, the amount that her son had contributed to her support.
The plaintiff prosecutes this appeal; and the defendant, answering the appeal, prays that the judgment of nonsuit on the demand for compensation be amended so as to reject the demand finally.
After the appeal was taken, the plaintiff, appellant, filed a motion to have the case remanded to the district court to allow her to prove that the fatal accident occurred within 30 days after the date of the contract of employment. She avers, in her motion, that, although there is evidence in the record that the accident occurred within the 30 days, she did not urge the point that the Employers’ Liability Act did not, for that reason, apply to her case, because she was not aware of the importance of the proposition until the decision was rendered by this court in the case of Woodruff v. Producers’ Oil Co., 142 La. 368, 76 South. 803, on rehearing, after her appeal was taken.
Opinion.
After careful reconsideration of the matter, we have concluded that the ruling in the Woodruff Case is founded upon an erroneous premise. The error was made in assuming that there was a conflict of terms, that had to be reconciled by judicial construction, between the subsections 1 and 3 of section 3 of the act, and that the two subsections could not be reconciled otherwise than by construing subsection 3 so as to exclude from the provisions of the statute an action for damages for an injury that happened within 30 days after the date of the contract of employment.
We find now, by comparison of the two paragraphs or subsections, giving every word its plain and only meaning, that there is no inconsistency between them.
Subsection 1 is not a complete provision of the law, but refers to and depends upon what follows for its effect. That subsection declares that the act shall not apply to any employer or employé unless, prior to the injury, they shall have so elected by agreement, either express o;- implied, as thereafter provided; that is, as provided in the subsequent provisions of section 3. And the first subsection further declares that such an agreement — whether express or implied, as we take it — shall be a surrender by the parties thereto of their rights to any other method, form, or amount of compensation, or determination thereof, than is provided in the act, and shall bind the employe himself, his widow and relations and dependents, as thereafter defined in the act, as well as the employer, etc.
It must be observed therefore that an agreement or election that the statute shall' apply to a contract of employment need not
Subsection 2 of section 3 refers only to contracts of employment that were in operation “or made or implied” before the statute went into effect; and it declares that such contracts shall be presumed to have continued subject to the provisions of the act, unless either party shall have notified the other in writing, not less than 30 days before the accident, of his intention that the provisions of the act should not apply.
As the contract of hiring, in the case before us, was made after the Act No. 20 of 1914 went into effect, we need not consider subsection 2, but must look to subsection 3, of section 3, to determine how and under what circumstances it shall be presumed or implied that the parties to the contract agreed or elected to be governed by tne statute. That subsection declares that every contract of hiring, verbal, written, or implied, made subsequent to the time provided for the act to take effect, between an employer and employ® engaged in the trades, businesses, or occupations that are specified or may be determined to be hazardous, shall be presumed to have been made subject to the provisions of the act, unless there be, as a part of said contract, an express statement in writing, not less than 30 days prior to the accident, either in the contract itself or.by written notice by either party to the other, that the provisions of the act (other than sections 4 and 5) are not intended to apply; and the subsection concludes with a repetition that, unless there be such written agreement or notice, not less than 30 days old, "it shall be presumed that the parties have elected to be subject to the provisions of this act and to be bound thereby.”
We find, therefore, not only that subsection 1 of section 3 harmonizes with, but that it is not complete without, the provisions of subsection 3 of the same section.
The decision in Woodruff v. Producers’ Oil Co., being founded upon a wrong premise, must be overruled. Our failure to discover the error sooner is largely attributable to the fact that the question was not considered in the case until it came up on rehearing, and, as a second rehearing was not allowed, the question was not reconsidered. The decision is in conflict with the ruling on the same question in the case of Effie Boyer v. Crescent Paper Box Factory, Inc. (No. 22434) 78 South. 596, ante, p. 368. In the latter case, a rehearing was granted, and, on rehearing, the judgment allowing the plaintiff damages under article 2315 of the Civil Code was affirmed because it was held that the Act No. 20 of 1914 (before it was amended by the Act No. 243 of 1916) made no provision, for such an injury as the plaintiff had suffered, and therefore did not deprive her of her right or remedy under the Civil Code. The ruling made in the original opinion that Effie Boyer’s Case was not excluded from the provisions of the Employers’ Liability Act, merely because the accident happened within the 30 days following the date of her employment, was not reversed on rehearing. On the contrary, it was in effect affirmed, and the decision in the case of Woodruff v. Producers’ Oil Co. was in effect overruled; because, if the decision in Woodruff’s Case had remained undisturbed, the Employers’ Liability Act would have had no application whatever to Effie Boyer’s Case, and there would have been no occasion then for deciding that the act made no provision for the injury she suffered.
It is argued that, in so far as subsection 3 of section 3 of the statute purports to suspend, for a period of 30 days, the force and effect of an agreement between an employer and employé not to be governed by the Act No. 20 of] 1914, the law is unconstitutional
Our conclusion is that the plaintiff’s case comes within the provisions of the Employers’ Liability Act, section 34 of which declares:
“That the rights and remedies herein granted to an employé on account of a personal injury for which he is entitled to compensation under this act shall be exclusive of all other rights and remedies of such employé, his personal representatives, dependents, relations, or otherwise, on account of such injury.”
The judgment rejecting the demand for damages under article 2315 of the Civil Code is therefore correct.
As to the alternative demand for compensation under the Employers’ Liability Act, we find no merit in the exception of no cause of action. It could be sustained only upon the assumption that the defendant was, or might have been, willing to pay the amount sued for, for all that was said in the original petition. Our opinion is that the petition did state the nature of the dispute and the contention of the petitioner with reference thereto, as required by the first paragraph of section 18 of the Act No. 20 of 1914.
The judgment rejecting the demand for damages is affirmed, the judgment of nonsuit of the demand for compensation is annulled, and the ease is ordered remanded to the district court to admit more evidence as to the amount of the average weekly wages the plaintiff’s son earned and the amount he contributed to her support. The appellee is to pay the costs of appeal; the costs of the district court to depend upon the final judgment.
Dissenting Opinion
dissents, being of opinion that plaintiff is entitled to recover under Civ. Code, art. 2315.