Thompson v. Bradford Motor Freight Line , 1933 La. App. LEXIS 1795 ( 1933 )

^* Writ of certiorari denied July 7, 1933. This is a suit under the Compensation Law (Act No. 20 of 1914, as amended). Estelle Thompson and Joseph Dugas, divorced parents of Vernal Dugas, who died on January 2, 1932, bring this suit against the Bradford Motor Freight Line, an ordinary partnership composed of Oliver F., William M., and Ione H. Bradford, and the individual members thereof, claiming compensation at the rate of $3.90 per week each for 300 weeks for the death of their son, which, it is alleged, occurred in the course of and arose out of his employment.

The defense is, as stated in counsel's brief:

"a. That at the time of the accident Vernal Dugas was not an employee.

"b. That if he was an employee, then the accident did not arise out of, nor in the course of his employment.

"c. That if he was an employee and if the accident did arise out of and in the course of his employment, your respondents are still not liable because said employee's death was due to his wilful intention to injure himself.

"d. That if he was an employee and if the accident did arise out of and in the course of his employment and if his death was not due to his wilful intention to injure himself, then your respondents are still not liable because employee's death was due to his deliberate failure to use an adequate guard or protection against accident provided for him."

There was judgment below in defendants' favor dismissing plaintiffs' suit, and plaintiffs have appealed.

The defendant conducts a motor freight line between New Orleans and Plaquemine, La. Vernal Dugas, who lived on the route of the freight line in Donaldsonville, La., was employed as a driver's helper, his business being to assist the chauffeur in loading and unloading freight on the truck. On the morning of January 2, 1932, Albert Martinez, the chauffeur, and Vernal Dugas, his helper, arrived in New Orleans about 11 o'clock a. m. from Plaquemine, returning from one of their trips to that section. They received their weekly wages as about 4:30 p. m., and, as there was no freight for the return trip, their truck was laid up in New Orleans, but another truck of the same line was going back to Plaquemine and through Donaldsonville, and Dugas and Martinez, who also lived in Donaldsonville, boarded this truck, which was in charge of Huit Gomez and Isiah Pinkins, as chauffeur and helper respectively, with the intention of riding to their homes. Gomez, Pinkins, and Martinez occupied the driver's seat and Dugas was seated on the gas tank, a position, according to the testimony, involving some peril, but which he refused to give up and get in the trailer, which was attached to the truck, notwithstanding repeated advice to do so on the part of the other occupants of the truck. After the truck had reached a point about twenty miles out of New Orleans and near the town of Norco, it struck a rut, with the result that Dugas was dislodged from his position on the gas tank, thrown to the road, and rolled over and killed, or, more accurately speaking, died a few hours later.

The first defense, to the effect that Dugas was not an employee at the time of his injury and death, is based upon the statement of his employers to the effect that he was employed only from day to day, the argument being that each day's employment amounted to a separate contract of hiring, and, consequently, the accident having happened at the close of his day's work, he was not an employee.

This contention is without force. Whether he was paid by the day or by the week or by the month, he was in their employ and had been for several months prior to the accident.

The second defense, to the effect that the accident did not arise out of or in the course of the employment, is not so easily disposed of. As will be recalled, the accident happened at the end of the day's work and while the employee was on his way to his home. As a rule the relation of master and servant terminates when the servant leaves the place of employment at the close of the day's work to go to his home, and an injury suffered in going to and returning from work is generally regarded as one not arising out of the employment. Bass v. Shreveport-El-dorado Pipe Line Co., 4 La. App. 107, and authorities there cited. But, where an employee is furnished transportation by the employer as an incident to his employment and is injured either while coming to or returning from work, the injury is said to have arisen out of his employment. Nesbitt v. Twin City Forge Foundry Co.,145 Minn. 286, 177 N.W. 131, 10 A. L. R. 169; 21 A. L. R. 1223, note. Was the transportation furnished Dugas by his employer an incident to his employment?

It is admitted that on the fatal trip Dugas had boarded defendants' truck with their permission and, the record shows, in defendant William Bradford's presence. The record also shows that it was the custom to permit Dugas and other employees to ride home on trucks of the defendant company under similar circumstances. In other words, when there was no freight for the truck which they had driven into New Orleans to take back, employees were permitted to ride home on any other truck of defendants which happened to be going in the direction of their homes. There is no dispute as to this custom, but the legal effect of it is in controversy; plaintiffs contending that it amounted to an implied agreement as an incident to employment, and defendants contending that it was simply a convenience or gratuity offered by the defendants to their employees.

In the case of May v. Louisiana Central Lumber Co.,6 La. App. 748, an employee of a lumber company was injured in attempting to alight from a moving train which was operated by his employer as a convenience for its workmen in going to and from their work. There was no agreement to supply transportation and it was doubtful whether it was more convenient for the particular employee who was injured to use the train or to walk home, for, whether he used the train or not, the distance he would have had to walk would have been approximately the same. The defendant in that case insisted that the accident did not arise out of the employment and that the plaintiff was a mere licensee on its train and that his injury was due to his deliberate act in attempting to leave it while in motion. The court, however, held that plaintiff could recover because, whether there had been any express agreement or not, the transportation which had been furnished by the employer was incidental to the employment, citing In re Donovan, 217 Mass. 76, 104 N.E. 431, Ann. Cas. 1915C, 778, Bass v. Shreveport-Eldorado Pipe Line Co.,4 La. App. 109. The facts in the May Case are strikingly similar to those which obtain here, with the distinction that, in the instant case, the convenience of the transportation supplied by the master is more obvious because the saving here in the cost of transportation is complete, whereas, in the May Case, the difference between using the transportation and not using it resulted in no saving in the amount of distance to be walked. Besides, the defendant in this case has convinced us that the deceased was paid $6 a week for his labor and not $12, as contended for by plaintiffs. It seems, therefore, that with this small pay there must have been some other inducement to the employee, a resident of Donaldsonville, to accept employment on a truck line which carried him so far from home and often left him stranded without means of return transportation. He could hardly have maintained himself and paid for transportation on so small a salary.

We are aware that there is much respectable authority to the contrary. Erickson v. St. Paul City Ry. Co., 141 Minn. 166,169 N.W. 532; Kowalek v. N. Y. Consol. Ry. Co., 229 N.Y. 489,128 N.E. 888; Kirby Lumber Co. v. Scurlock (Tex.Civ.App.) 229 S.W. 975. We are convinced that the present case, however, cannot be distinguished in principle from May v. Louisiana Central Lumber Co., decided by our brothers of the Second Circuit, and we have concluded to follow them. But, were we in doubt, the fact that our Supreme Court has several times admonished us concerning a tendency to place too narrow a construction upon the compensation statute would be sufficient to overcome any indecision on our part. In Dyer v. Rapides Lumber Co.,154 La. 1091, 98 So. 677, 678, a case arising in the Second Circuit, the Supreme Court remarked:

"We think the Court of Appeal has placed too narrow a construction on the terms of the statute requiring that the accident should arise out of the employment."

But Plick v. Toye Bros. Auto Taxicab Co., 169 La. 44,124 So. 140, and Kern v. South-port Mill, Ltd., 174 La. 432, 141 So. 19,21, are cases in which this court was reversed because of its narrow views of this clause. In the last-cited case, that of Kern v. South-port, Mill, Ltd., we held that an injury to an employee, while on his way to work, due to his being knocked down by an automobile on a public street, did not arise out of his employment notwithstanding the fact that the scene of the accident was in front of the employer's place of business, on the ground that he was no more subjected to such injury by reason of his employment than he would otherwise be, the propinquity of the scene of the accident not being regarded by us as of importance (19 La. App. 338, 136 So. 225). The Supreme Court, however, held that the question of whether an employee "might have been injured in the same way, and even at the same place and time had he not been called there by the necessities of his employer's business, but had gone there only for his own pleasure or in pursuit of his own business, has nothing whatever to do with the case. It was his employer's business which called him to the place and time of the accident and not his own pleasure or business; and hence his injuries arose out of his pursuit of his employer's business and not out of his pursuit of his own business or pleasure."

A proper respect for the opinion of our brethren of the Supreme Court requires the subordination of our former views on the subject of injuries arising out of an employer's business and results in the conclusion that the plaintiff in this case must recover.

With reference to the remaining defenses, to the effect that Dugas' death was due to his intentional injury of himself and his failure to use an adequate guard against accident, we find no merit in them whatever. If Dugas was disobedient in riding on the gas tank instead of on the trailer attached to the truck, as he was advised to do, his disobedience would not bar his recovery (Plick v. Toye Bros. Auto Taxicab Co., 13 La. App. 525,127 So. 59), and we know of no guard supplied by his employer which would have protected him against accident.

The amount of compensation to be allowed must be computed upon a basis of $6 a week and not $12, as plaintiffs have claimed. Plaintiffs are entitled to the sum of $1.95 per week, or one-half of 65 per cent. of $6 each, for 300 weeks.

For the reasons assigned it is ordered, adjudged, and decreed that the judgment appealed from be reversed, and it is now ordered that there be judgment in favor of the plaintiffs, Estelle Thompson (divorced wife of Joseph Dugas) and Joseph Dugas, and against the ordinary partnership, the Bradford Motor Freight Line, and each of the individual members thereof, Oliver F. Bradford, William M. Bradford, and Ione H. Bradford, jointly and severally, as compensation for the death of plaintiffs' son, Vernal Dugas, in the sum of $1.95 per week each for a period of 300 weeks, commencing January 2, 1932, with legal interest on each installment from its due date until paid, and with costs of both courts.

Reversed.