Higginbotham v. Public Belt Railroad Commission ( 1938 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Relatrix is the surviving widow of George Ernest Higginbotham, who departed this life on the 2nd day of September 1937, in the parish of Jefferson, while in the employ of respondents, and is the duly qualified Natural Tutrix of their minor child, George Ernest Higginbotham, Jr.

Relatrix was married to George Ernest Higginbotham in the Parish of St. Bernard, November 2, 1934, and she and her husband, subsequent to their marriage, established the matrimonial domicile in the City of New Orleans, Parish of Orleans.

The suit of relatrix against respondents was filed in the Civil District for the Parish of Orleans, and is founded upon the following allegations of the petition:

"IV. That the said George Ernest Higginbotham at the time of his death was engaged by said defendants as maintenance man, on the Huey P. Long Bridge, in the Parish of Jefferson. That in line with and pursuant to his duties he was standing on the bridge on the West bank of the river taking soundings of the various piers and construction work to better ascertain that all was in good order.

"V. That soundings are taken by what might be termed a Plumb-bar with a weight attached to metal wires. That while so engaged his line came in contact with uninsulated wires of the Louisiana Power and Light Co. That said George Ernest Higginbotham received a severe electrical shock and was catapulted from the bridge to the pavement below, a distance of some 125 feet, and died instantly. That the said George Ernest Higginbotham was covered by the Workmen's Compensation Law, that is Act No. 20 of the General Assembly for the year 1914, as amended.

"VI. That under the terms of said Workmen's Compensation Law petitioner herein is entitled to compensation for the use and benefit of herself and minor child, forty six and one quarter per cent (46 1/4%) of his weekly wage for a period of 300 (three hundred) weeks together with an additional $150.00 to cover funeral charges, incidentals, etc.,

"VII. And petitioner now says that George Ernest Higginbotham averaged a weekly wage of $43.70; 46 1/4% of said weekly wage amounts to $20.21, which over a period of 300 weeks amounts to $6,063.00 which together with the said $150.00 herein referred to makes a total of $6,213.00 as first set forth and demanded in this petition."

The prayer of relatrix is for judgment in her favor, individually, and as Natural Tutrix of her minor child, against defendants, jointly, severally and in solido, for $20.21 per week over a period of 300 weeks, or $6,063, together with the sum of $150, and for all costs of suit.

After hearing had, judgment was rendered by the Civil District Court for the Parish of Orleans in favor of relatrix, individually, and as natural tutrix, as prayed for.

On appeal by respondents to the Court of Appeal for the Parish of Orleans, the exception of no right of action tendered by respondents was maintained, the judgment appealed from was reversed, and the suit of relatrix, individually, and as natural tutrix, was dismissed at her cost.

The judgment of the Court of Appeal for the Parish of Orleans is now before this court for review under the writ of certiorari herein granted.

(1) There is only one issue presented in this case. Respondents contend that the Huey P. Long Bridge is an instrumentality used in interstate commerce, and that this case falls under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59. On the other hand, relator asserts that the right of action arises under the State Workmen's Compensation Law, Act No. 20 of 1914, § 1, the deceased being an employee of the Public Belt Railroad Commission.

The pertinent part of Section 1 of the Federal Employers' Liability Act reads as follows:

"Every common carrier by railroad while engaging in commerce between any of the several States or Territories * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." U.S. Code, title 45, chapter 2, § 51, 45 U.S.C.A. § 51, Act of April 22, 1908, c. 149, § 1, 35 Stat. 65.

In Fluitt v. New Orleans, T. M.R. Co., 187 La. 87, 94,174 So. 163, 165, this Court said: "In order to hold that plaintiff's cause of action is governed by the federal statute, it must be found that plaintiff was engaged either in interstate transportation, or in work so closely related to such transportation as to be practically a part of it. Chicago North Western Railway Co. v. Bolle, 284 U.S. 74, 52 S.Ct. 59, 76 L.Ed. 173; Shanks v. Delaware, Lackawanna Western R.R. Co.,239 U.S. 556, 36 S.Ct. 188, 189, 60 L.Ed. 436, L.R.A. 1916C, 797."

In the petition in this case there is no allegation that the Public Belt Railroad of the City of New Orleans is an interstate railroad, or that the Huey P. Long Bridge is used as a transportation facility by common carriers engaged in interstate commerce.

The mere allegation in the petition "That the said George Ernest Higginbotham at the time of his death was engaged by said defendants as maintenance man on the Huey P. Long Bridge, in the Parish of Jefferson," does not, by any means, show that deceased was engaged, either "in interstate transportation, or in work so closely related to such transportation as to be practically a part of it."

In order to bring the cause of action within the plain terms of the Federal Employers' Liability Act, it is necessary to allege also that, while the employee is engaged in interstate transportation, he was also injured, or that his death resulted, from the negligence of some officer, agent, or employee of such interstate common carrier. However, in the petition in this case there is no allegation that the death of the husband of relatrix was caused by the negligence of any officer, agent, or other employee of any interstate common carrier using the Huey P. Long Bridge as a transportation facility, nor is there any allegation that his death resulted by any defect or insufficiency, due to its negligence, in its cars, engines, machinery, track, roadbed, works, or by any defect in the Huey P. Long Bridge, or in any of its appliances. It is not alleged that the deceased was run over and killed by any engine or train of any interstate common carrier, through fault or negligence, while crossing this Bridge. On the contrary, the allegation is that, in line with his duties of plumbing the piers of the Bridge, the deceased was working below the superstructure of the Bridge, when the metal wire attached to his belt, and which he was using as a plumb-bar, came in contact with anuninsulated wire of the Louisiana Power and Light Co., engaged in lighting the Bridge, and the deceased was electrocuted and fell from the Bridge to the pavement.

This allegation of the petition shows clearly that the injury received by the husband of relatrix and resulting in his death,was an accidental injury, arising out of and in the course of his employment, without fault or negligence upon the part of respondents, or of any common carrier using the Bridge, thereby bringing the cause of action clearly within Section 1 of the State Workmen's Compensation Law, Act No. 20 of 1914.

The defect in the appliance that caused the death of the husband of relatrix was not an appliance owned and operated by respondents, or by any common carrier using the Bridge, but an appliance owned and operated negligently by the Louisiana Power and Light Co., taking the allegations of the petition as true, in passing upon the exception of no right of action.

(2) It is true that the exception of no right of action was overruled by the trial Judge, and the case was tried on its merits.

But the testimony in the case fails to show that the death of the husband of relatrix was due to any fault or negligence whatever upon the part of respondents, or any common carrier using this Bridge.

Nor is there any proof that his death was due to negligence by reason of any defect or insufficiency in the cars, engines, appliances, machinery, bridge or other equipment of any common carrier, or in the plumb-bar used by deceased in determining the horizontal movement of the piers of the Bridge.

The operation, construction, repair, removal, maintenance, and demolition of railways, railroads and bridges are declared to be hazards, under Section 1, subd. 2 (a), of the State Workmen's Compensation Law, Act No. 20 of 1914.

Section 1 of this Act declares that the Act shall apply only to the following: "1. Every person in the service of the State, or of any parish, township, incorporated village or city, or other political subdivision, or incorporated public board or commissionin this State authorized by law to hold property and to sue and be sued, * * * and for such employee and employer the payment of compensation, according to and under the terms, conditions and provisions hereinafter set out in this act, shall be exclusive,compulsory and obligatory", etc. (Italics by Court.)

The law amply provides for the building of the Huey P. Long Bridge by the City of New Orleans, to be operated by the City, by and through its Public Belt Railroad Commission. The deceased was employed by this Commission as "maintenance man" on the Huey P. Long Bridge, and relatrix's right of action is under the State law.

The record is barren of any evidence to show that The Interstate Commerce Commission has ever claimed any power or exercised any control over the Public Belt Railroad of the City of New Orleans.

Act No. 154 of the Legislature for the year 1928, amending Section 28 of article 14 of the Constitution, authorizes the City of New Orleans to build a bridge and issue up to twenty million dollars in bonds, gives the exclusive right to the City, through the Public Belt Railroad Commission, to transport or convey any railroad train over the bridge, prohibits the granting of any switching or other privileges to any railroad over the system, and makes it mandatory in order for a railroad to make use of the Bridge to enter into a contract with the City of New Orleans, on such terms as may be agreed upon, approved by three-fourths of the members of the Commission. The evidence shows that the T. N.O.R.R., a trunk line, operates over the Huey P. Long Bridge, under contract with the City of New Orleans, and its trains are handled by the Public Belt Railroad. Ev. p. 4.

Besides, Section 7 of Act No. 179 of the Legislature for the year 1908, page 261, as ratified by the Constitution, art. 14, § 26, page 161, aside from providing and reiterating that the Public Belt Railroad shall always be separate and distinct from any other railroad entering the City, provides that no one engaged in interstate commerce can be identified as an officer or employee of the Public Belt Railroad.

The Public Belt Railroad was first created by municipal ordinance by the City of New Orleans in 1900, this ordinance having been amended and reenacted in 1904. At that time the operations of the Public Belt Railroad were solely within the City of New Orleans, but, by virtue of Section 26 of Article 14 of the Constitution for the year 1921, the right to operate extended to other parishes outside of the Parish of Orleans; and it is distinctly set forth in the Constitution that "said Public Belt Railroad system shall be and remain the sole property of the people of the City of New Orleans at all times, and shall in no way or manner ever be hypothecated or alienated." The Public Belt Railroad is purely a local road, or terminal facility, originally confined to the city limits of the City of New Orleans, and has not been extended, even at this late date, any farther than into the adjoining parish of Jefferson.

The Public Belt operates, transfers, and switches cars over the Huey P. Long Bridge in that parish, in connection with the interchange of the S.P.R.R. on the west side of the river. It takes traffic both ways on the Bridge, to the T. N.O.R.R. and from same. It is evident that we are not dealing here with an intrastate railroad, with system extending to the State line, and connecting there with interstate lines.

Our conclusion is that the judgment of the Court of Appeal for the Parish of Orleans, maintaining the exception of no right of action and dismissing relatrix's suit, individually, and as natural tutrix, is erroneous, and that the judgment of the Civil Court for the Parish of Orleans in favor of relator for compensation for the death of her husband is correct.

As shown by the record, testimony was taken on the trial of the exception of no right or cause of action, and also on the merits of the case. The testimony taken on the trial of the exception was objected to by relatrix. Exceptions of no right or cause of action must be decided upon the face of the petition, the allegations of well pleaded facts being taken as true, for the purpose of passing upon such exception. This is the uniform jurisprudence of this State. Tr. pages 1-8, 8a-13.

When the Court of Appeal for the Parish of Orleans maintained the exception of no right of action, that Court had before it all of this testimony.

It is provided in Article 7, Section 11 of the Constitution of 1921 that: "It shall be competent for the Supreme Court to require by writ of certiorari, or otherwise, any case to be certified from the Courts of Appeal to it for review, with thesame power and authority in the case as if it had been carrieddirectly by appeal to the said court."

There can be no doubt, if this case was before us on appeal, that this Court would have the power and authority to reverse the decision maintaining the exception of no right of action, and then to decide the case on the merits.

It is therefore ordered that the judgment of the Court of Appeal for the Parish of Orleans be annulled and reversed, and that the judgment of the Civil District Court for the Parish of Orleans be affirmed,

It is further ordered that respondents pay the costs of this application.

On Rehearing.