Wyatt v. Finley , 9 La. App. 159 ( 1928 )

LECHE, J.

The Travelers Insurance Company appeals from a judgment condemning it to pay to plaintiffs compensation in a sum exceeding four thousand dollars. The plaintiffs are the surviving dependents of Jesse Wyatt, who is alleged to have been killed while in the employ of one Sam E. Finley, principal contractor, and Enoch Pittman, sub-contractor, during the performance of certain duties arising out of and in the course of his employment, and the Travelers Insurance Company is surety in a policy of insurance issued to Wyatt’s employer to indemnify said employer in case of liability under the compensation law of Louisiana.

There are two main defenses presented by the Travelers Insurance Company. (1) That Finley the principal contractor and indemnitee, who is an absentee from this State, was not cited or adjudged liable for the compensation; (2) that plaintiffs have faile.d to prove that Jesse Wyatt, the deceased emplpyee, was killed by an accident arising out of and during the course of his employment'. Our learned brother of the District Court over-ruled both of these defenses and rendered the judgment which is brought up on this appeal.

(1) The liability of the insurance company is regulated by special statute and ■not by the articles of our Code fixing the manner of establishing and enforcing the liability of sureties in general. Section 23 of Act 20, page 58, of 1914, known as the Employers’ Liability Act, regulating the issuance of insurance policies under the Act, provides that such agreement (indemnity insurance) shall be construed to be a direct obligation by the insurer to the person entitled to compensation, enforceable in his name. The language of the statute which should be read into the bond is so clear that it cannot be misconstrued, and therefore plaintiffs were entitled to bring the present action directly against the Travelers Insurance Company as surety, without suing or first obtaining a judgment against Finley, the employer. We are therefore of the opinion that the trial Judge properly over-ruled this defense.

(2) Whether Jesse Wyatt was killed while performing his duties and during the course of his employment is a question of fact, and proof thereof should affirmatively appear in order to entitle plaintiffs to recover. There are two witnesses who testified on that subject. E. J. Wyatt, brother of the deceased, says that he saw Jesse’s body after he was killed, and he says further that the truck which Jesse had been driving was all smashed, down on the railroad track. He did not see the killing. Enoch Pittman says that he knows Jesse was killed and that Jesse at that time was engaged in driving a truck, but like E. J. Wyatt, he did not see the accident. According to this testimony, it is probable, as claimed by plaintiff, that Jesse Wyatt was killed while .driving the truck, by a collision with a railroad train, but it is not shown whether Jesse was then actually engaged in the performance of his duty and whether the accident arose out of his employment. Again it is not shown whether he was actually killed by the train. There is nothing to show the condition of his body and the real cause of his death. These are only matters of probable inference under the record. They are easily susceptible of proof, if true, and should have been shown with certainty and not' left to probable inference.

Under this state of facts, there are two things which this Court may do, either dismiss plaintiff’s demand as in case of non-suit, or remand the case in order to give plaintiff the opportunity to supply the necessary proof showing the circumstances under which Jesse Wyatt was killed.

The Employers’ Liability Act, like all compensation statutes, is founded upon motives of public policy and not upon natural individual rights. The State has an interest in keeping its citizens who perform actual industrial service, from becoming paupers and objects of public charity and it is with this object in view that such statutes are enacted, construed and enforced. Technicalities in matters of proceedings are expressly discountenanced in their enforcement.

Believing then that the interests of public justice will be thereby better subserved, the case will he remanded for the purpose of enabling plaintiff to offer proof of the manner in which and the circumstances under which Jesse Wyatt was killed. Such a course lies within the equity powers of the Court, especially in a matter of this kind. Indeed precedents are not wanting to justify the Court in so doing. Succession of Finnegan, 135 La. 475, 65 So. 614; Crawford, Jenkins & Booth vs. Fisher, 135 La. 16, 64 So. 927; Bell vs. Germain & Boyd Lbr. Co., 131 La. 974, 60 So. 635; Police Jury vs. T. & P. Ry. Co., 122 La. 389, 47 So. 692.

For these reasons the judgment appealed from is set aside and avoided and it is ordered that this case be remanded for the purpose of giving the parties an opportunity to offer evidence as to the circumstances under which Jesse Wyatt was killed, and whether he was at that time engaged in performing duties arising out of and during the course of his employment, plaintiffs to pay the costs of appeal, and all other costs to be taxed when the case is finally terminated.