Keyhea v. Woodard-Walker Lumber Co. , 147 So. 830 ( 1933 )

There was bad blood between these two negroes over their women. It is proven that deceased on the day of the shooting told Williams, his assailant, to get his gun, that he was going to kill him when he came back. The difficulty was provoked and invited by deceased. It arose in no way, and was entirely disconnected from, their common employment. It did not occur on the job or during working hours. Williams, the assailant, was not on the train with deceased.

It was not caused by the fact that deceased happened to be returning from work on the company engine. It would have happened had deceased been walking and wherever Williams had found him. This is shown by the fact that he was shot twice on the engine and twice in an adjoining pasture as he was fleeing. As he was able to run after the first two shots, it would appear that he was killed by those fired while he was in the pasture. I do not think an accident arises out of or is incidental to the employment merely because the workman happened to be returning from work, at the time of the injury, on a conveyance furnished by his employer. It must be shown that it was due to some danger arising out of that fact; one that would not otherwise have happened. Crysel v. Briggs et al. (La.App.) 146 So. 489.

In the leading case of Cudahy Packing Co. v. Parramore, 263 U. S. 418, 44 S. Ct. 153, 68 L. Ed. 366, 30 A. L. R. 532, it is held that the danger must be one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or in an abnormal degree; that it must be a risk incident to the employment.

Where, by his own willful act, deceased invited this assault and made the difficulty reasonably inevitable, it would have occurred wherever he was found, we cannot agree with the majority opinion that it arose out of or was incidental to the employment. We think the case is clearly distinguishable from those cited in the majority opinion.

Indeed, we think the case can well be held to come under the provisions of paragraph 1, § 28, of the act, which reads: "That no compensation shall be allowed for an injury caused (1) by the injured employee's wilful intention to injure himself or to injure another."

In Fisher v. Sherrill Hardwood Lbr. Co., Inc., 3 La. App. 595, the dependents of an employee killed by his foreman while attacking him were denied compensation.

For the reasons given above, I respectfully dissent.