Porter v. Lancaster

2 La. App. 47, 1925 La. App. LEXIS 346

• Court: Louisiana Court of Appeal
• Decided: March 30, 1925
• Docket: No. 2182
• Status: Published

Opinions

STATEMENT OF THE CASE.

REYNOLDS, J.

In this case Rober Porter sues the defendant for damages done to his minor, son, • Joseph Porter who. fell from a handcar and- was seriously injured while" returning from his work as a section ,'hand working on the Texas Pacific..: Railway track exclusively in the Parish of Natchitoches,"■ Louisiana.

The evidence shows that the handcar from which Joseph Port'er feli was used exclusively in transporting section hands working entirely inside of the Parish of Natchitoches, Louisiana, to’ and from their work in the Parish of Natchitoches.

The handcar was in charge of and was being operated by section hands who worked exclusively in the Parish of Natchitoches, Louisiana.

It is shown that the Texas & Pacific Railway was operated by a railway company which runs trains from New Orleans, Louisiana, to El Paso, Texas.

OPINION.

Defendants excepted to plaintiff’s suit":

I.

That he was estopped because of the fact that he had sued defendants and the Western Union Telegraph Company both for the same cause of action and later had dismissed his suit as against the Western Union Telegraph Company and had then filed a second suit against said Telegraph Company and that the same had been transferred, on the application of the Telegraph' Company, to the United States Court.

This exception, we think, is not good, for the reason that defendants have not by plaintiff’s acts been deprived of any of its legal defences or in any way changed their position to their detriment.

II.

On the ground that plaintiff has no right to sue for his own benefit for damages done to his minor son.

This is an action under the Workmen’s Compensation Law of Louisiana and under this law a liberal interpretation of all pleadings and technical requirements is provided for, and we think with the District Court that a fair interpretation of plaintiff’s petition is that he is suing for the use and benefit of his minor son; and accordingly the judge of the District tiff for the use and. benefit of his minor Court rendered judgment in favor of plain-son.

The important question presented for decision is : Can Joseph Porter recover from the defendants under the State Workmen’s. Compensation Law, or must he look to the Federal Workmen’s Compensation Law?

This question depends upon whether at the time of the accident

“the employer and employee were both engaged and employed at the time in an interstate movement or operation”.

In Thaxton vs. La. Ry. & Nav. Co., 153 La. 292, 95 South. 773, the Supreme Court stated the law to be:

“The showing that the train itself, on which the employee was working at the time of the accident, was not engaged in interstate or foreign commerce was a sufficient showing that the employer, as far as that employment was concerned, was not engaged in interstate or foreign commerce.”

At the time of the accident Joseph Porter was being transported on a handcar used exclusively in the Parish of Natchitoches, Louisiana, operated by section hands whose work is exclusively in the Parish of Natchitoches, Louisiana.

Under the above latest interpretation by the Supreme Court of Louisiana of the Workmen’s Compensation Law of Louisiana, We are of the opinion that the plaintiff is entitled to recover in this case under the State Workmen’s Compensation Law.

The employment was admitted at a daily wage of $2.00 ■ per day, which gives $12.00 per week. The evidence we think establishes that. Joseph Porter permanently lost the use of his leg. The District Judge who saw him in court at the trial and heard the evidence, so held, and plaintiff is accordingly entitled to judgment for $7.20 per week for 175 weeks.

It is' therefore ordered, adjudged and decreed that the plaintiff, Robert Porter, have and recover judgment, for the use and benefit of his minor son Joseph Porter, against J. L. Lancaster and Charles L. Wallace as Receivers of the Texas & Pacific Railway Company for the sum of $7.20 per week from October 30, 1922, until paid, with 5% per annum interest on ■ each weekly payment from the date it became due until paid, for a period of not exceeding 175 weeks. As thus amended the judgment of the lower court is affirmed at defendant’s cost in both courts.

Carver, Judge, being recused, took no part in the decision.