78 So. 734 | La. | 1918
Mrs. Annie Piske, widow of August W. Piske, seeks compensation under the Employers’ Liability Act for herself and three minor children, issue of her marriage with her said deceased husband. August W. Piske had been in the employ of the Brooklyn Cooperage Company for several years, and on May 23, 1916, at about 2:30 o’clock in the afternoon, he temporarily left his work, went out of the building in which his occupation required him to be, and was found, by his cries for help, with his right leg pinned under the wheel of a box car, some 40 feet from the building. He was extricated from his position and rushed to a hospital, but his injury proved fatal and he died within a short time thereafter. The accident happened on a switch track used by defendant to ship the output of its factory. There were five empty box cars on the track, and some of the employés of defendant were spotting a loaded car, and as the loaded car came in contact with the standing empties the latter were moved 3 or 4 feet by the jar. Piske was found with his body lying outside the
The questions to be passed upon here are whether Piske at the time he was injured was “performing services arising out of and incidental to his employment in the course of his employer’s trade, business, or occupation,” and, if he was not, whether such a defense is tenable under the Employers’ Liability Act.
Several decisions from other jurisdictions have been cited by counsel for defendant, and we find many others, from this country and from England, collated in the footnotes to Ann. Cas. 19180, p. 4, 1914B, p. 498, 1914D, p. 1284, and 1916B, p. 1293.
“It is impossible to formulate an absolute test for determining whether an accident occurred while the workman was acting within the scope of the employment. Yarious tests have been stated in the cases on the subject, but no particular test can govern the infinite combination of facts which new cases constantly bring to light. A test laid down in one case is useful, but not conclusive, and, as a general rule, each case must be governed by its particular facts.”
Section 28 withholds the benefit of compensation for injury caused (1) by the employes willful intention to injure himself or to injure another, or (2) by the injured employe’s intoxication at the time of the injury, or (3) by the injured employe’s deliberate failure to use an adequate guard or protection against accident provided for him, or (4) by the employe’s deliberate breach of statutory regulations affecting safety of life or' limb. By the terms of section 2, the workman who, under section 28, forfeits the benefit of compensation, is one who receives personal injury by accident arising out of and in the course of such employment. The proof in this case fails to show that the injury suffered by Piske arose out of and in the course of his employment, and consequently fails to show that Piske ever came within the class of claimants entitled to compensation. Piske could not therefore have forfeited that to which he was not originally entitled. In other words, plaintiff argues that the only workmen who are excluded from the benefits of the act are those who, in the language of the act itself, “shall be eliminated * * * for the causes and reasons set forth in section 28.” That argument is sound, provided that by the word “workmen” are only meant workmen who were injured by accident arising out of and in the course of their employment, for the act is not intended for the benefit of any other class of workmen; but as Piske was not injured by an accident arising out of and in the course of his employment, the limitation of the defenses provided in section 28 cannot be invoked by his surviving dependents, whose right to claim compensation is derived through him and is no greater than that he could have exercised had he survived his injury.
Believing, then, that the injury which caused the death of Piske did not arise out of and in the course of his employment, we are compelled to deny the relief prayed for by his dependents.
For these reasons, the judgment appealed from is set aside and reversed, and plaintiff’s demand refused, at her costs.