279 F. 945 | 5th Cir. | 1922
This was an action by the defendant in error (herein referred to as the plaintiff), ■ a minor 17 years of age, suing by his father as next friend, against the plaintiff in error (herein referred to as the defendant), to recover damages for personal in-j .tries caused by the explosion of a boiler, while the plaintiff .was acting as a fireman employed by the defendant and engaged with other employees of the defendant in drilling a well in the Homer oil field in tie state of Louisiana.
The right of the plaintiff to maintain the action was controverted unsuccessfully on the ground that his exclusive remedy is under the Workmen’s Compensation Law of Louisiana, being Act No. 20 of the Laws of Louisiana of 1914, and amendments thereto (Act No. 38 of 1918). Paragraph 1 of section 3 of that act contains a provision to
“Section 3. * * *
“3. Every contract of hiring, verbal, written or implied between an employer or any employee engaged in any trade, business or occupation specified in paragraph 2 of section 1, or engaged in any trade, business or occupation that may be determined to be hazardous under the operation'oí paragraph 3 oi section 1, made subsequent to the time provided for this act to take effect, shall he presumed to have been made subject to the provisions of this act, unless there be as a part of said contract an express statement in writing either in the contract itself or by written notice by either party to the other, that the provisions of tills act other than sections 4 and 5 are not intended to apply, and it shall be presumed that the parties have elected to be subject to the provisions oí this act and to be bound thereby, unless such election ho terminated as hereinafter provided.
“4. Any agreement or election, either express or implied, or presumed under the provisions of paragraph 2 or paragraph 3 of this section, between an employer and any employee engaged in any trade, business or occupation specified in paragraph 2 of sec I ion 1, or engaged in any trade, business or occupation that may be determined to be hazardous under the operation of paragraph 3 of section i, for the operation of the provisions oi’ this act may be terminated by either party to the contract of hiring giving written notice not less than thirty days prior to the accident to the other party of such contract that the provisions of this act other than sections 4 and 5 shall no longer apply. * “ *
“6. Any employee of the age of eighteen and upwards engaged in any trade, business or occupation specified in paragraph 2 of section 1, or engaged in any trade, business or occupation that may he determined to be hazardous under the operation of paragraph 3 of section I, shall himself exercise the right oi election or termination or waiver authorized by this section. Such right of election or termination or waiver shall be exercised on behalf of any employee under iho age of eighteen by either his father, mother or tutor, or if neither of these can readily be gotten to act, then by the court,” etc.
“7. Where notice is to bo served upon one who is under the age of eighteen ‘years, said notice must be served upon either tne father, mother, or tutor of the said individual under the age of eighteen years.
* * * * * * * *****
“Section 18. Be it further enacted, etc., that in case an injured employee is mentally incompetent or a minor or where death results from the injury, in case any dependent as herein defined is mentally incompetent or a minor, at the time when any right, privilege or election accrues to him under this act, his duly qualified curator or tutor, as the case may be, may, in his behalf, claim and exercise such right, privilege or election, and no limitation of time, in this act provided for. shall run, so long as such incompetent or minor has no curator or tutor as the case may be.”
The occupation in which the plaintiff as an employee was performing fervices at the time he was injured is within the description of the hazardous occupations to which the act by its terms is made applicable. The defendant employed the plaintiff without the consent of any one other than the plaintiff himself acting in his behalf, and the plaintiff suffered the injuries complained of during the first night he acted as fireman, and before either of his parents, who live in Mississippi, was informed that he was so employed. An intention that the provisions of the Louisiana Compensation Act were not to apply was
Standing by itself paragraph 3 of section 3 of the act does not disclose a purpose to make the provisions of the act apply as a result of Ihe action or nonaction of an employee not possessing legal capacity io bind himself by an agreement or election to be governed by the act. When that paragraph is considered in connection with the above’ set out paragraph 6 of the' same section, we think it is quite apparent ihat the plaintiff, being under 18 years of age, was without power, by his action or inaction, to make the hiring of himself subject to the provisions of the act. The purpose of the provision withholding from an employee under 18 the right of election or waiver, and making that right exercisable by such employee’s father, mother or tutor, or by she court, would be defeated by giving to a hiring of such minor by himself alone the effect of raising a presumption that such hiring was made subject to the provisions of the act.
The record does not show any reversible error. The judgment is affirmed.