Joseph C. Shields, Appellant, v. American Motorists Insurance Company, Appellee, 267 F.2d 49 (5th Cir. 1959)

This is an appeal from a summary judgment¹  for defendant rejecting the plaintiff's demand and dismissing his action.

This is the record. After plaintiff had sued under the Louisiana Workmen's Compensation Act and had obtained a judgment²  against his employer Avondale Marine Ways, Inc., he brought this action under the Louisiana direct action statute against defendant-appellee, as liability insurer of his employer, Avondale Marine Ways, Inc., owner and operator of a shipyard, to recover, for the claimed negligence of his employer, damages for personal injuries suffered by him on his employer's premises.

In its answer, in addition to denying that Avondale was negligent and, in the alternative, alleging that if it was, plaintiff was contributorily negligent, defendant pleaded as its primary defenses: (1) that the injury occurred while plaintiff was in the course and scope of his employment and the Louisiana Workmen's Compensation Act and the rights and remedies it afforded plaintiff, are exclusive; and (2) that the policy of defendants especially excluded from coverage injuries compensated for under the Workmen's Compensation Act.

Thereafter defendant, on the ground that the Workmen's Compensation suit brought by plaintiff and the judgment entered in it entitled defendant to a judgment as matter of law, made, and the district judge, for the reasons stated in his opinion,³  denied a motion for summary judgment. At a later date the depositions of the plaintiff and of Moore, personnel director of defendant, establishing the following undisputed facts,⁴  having been taken and filed, defendant renewed his motion for summary judgment on the ground this time that the depositions disclosed that no genuine issue as to any material fact existed, and the defendant was entitled to judgment as a matter of law, and judgment was entered accordingly.

Plaintiff-appellant is here vigorously insisting that the case was not one for summary judgment for defendant because, as matter of law, on the undisputed evidence the injury was not received in the scope and course of the employment and was therefore not compensable and, in the alternative, if this is not so, a question of fact, whether the injury was or was not compensable, was presented.

We find ourselves in disagreement with these views and in full agreement with the view of the district judge set out in note 1:

"Unquestionably, if this were a suit for workmen's compensation, plaintiff would be successful. That fact, about which no reasonable men would disagree, negatives plaintiff's right to recover here. La. [LSA-] R.S. 23:1035; Lavender v. Kurn, 327 U.S. 645, 653 [66 S. Ct. 740, 90 L. Ed. 916]."

Appellant, pointing to no fact which is in dispute but arguing that from the undisputed facts different inferences may be drawn, cites no case from Louisiana which supports or tends to support his contention that on facts such as these, plaintiff's injuries would not have been compensable. In default of such cases and notwithstanding the fact that compensation statutes and the decisions under them very widely in the different states, he contents himself with citing cases from other states and quoting briefly from them.

On the other hand, appellee, stressing the fact that the Workmen's Compensation laws of the several states are interpreted with varying degrees of liberality and insisting that none of the cases appellant cites from other states would bar coverage under the facts of this case, insists, quite correctly we think, that under the facts of this case and the controlling Louisiana decisions, the claim asserted here, that the employer can be made to stand in judgment both under the compensation statutes and in tort for damages, is little short of fantastic. The accident in this case did not happen while appellant was off the premises of the employer or while he was eating his lunch or while he was pursuing his own recreation or pleasure. It did not happen after he had reached the lunchroom or some other place provided for such purposes. The cause of the accident was not one unconnected with the employment. To the contrary, the accident happened on the employer's premises while he was on his regular and usual way from his particular place of work to the lunchroom. It was due specifically to his tripping over the employer's pipes on the walkway provided by the employer. The fact that there were other ways to reach the lunchroom is immaterial since the path selected was one of such ways and the one apparently chosen by a large number of employees, since appellant states there were twenty-five or thirty men ahead of him. The reason why appellant did not see the pipes, he says, was because of the "grand rush" which involved him in the closely packed group making its way to the cafeteria and prevented him from seeing the obstacle.

Under facts such as are shown without dispute in this case, we think, in the light of the decisions cited in the margin,⁵  any other judgment than the one that was entered below is inconceivable.

It is true in Louisiana as elsewhere that whether an injury occurred in the scope and course of the employment so as to make it compensable must be determined case by case. It is also true in Louisiana, though not always elsewhere that workmen's compensation statutes are liberally construed in favor of coverage and that a basic inquiry in determining coverage in Louisiana, that is whether injury to a workman arises out of and in the course of his employment, is whether the nature of the employment was such that the risk from which the injury resulted was greater for the workman than a person not engaged in the employment. This was reflected in the earlier holding of Ward v. Standard Lumber Co., 4 La.App. 89, where an employee was injured by being struck by an automobile while crossing the road adjacent to the premises where he was working while on his way to lunch. The court found that the risk of crossing was produced by the employment and the case was compensable. This holding has been followed in similar cases down to the present day. Louisiana Workmen's Compensation Law and Practice, Malone, par. 172, page 201. Cf. O'Connor v. American Mutual Liability Ins. Co., La.App., 87 So. 2d 16. Perhaps the best discussion in the Louisiana cases of the question of coverage is to be found in Edwards v. Louisiana Forestry Commission, 221 La. 818, 60 So. 2d 449, 450. There, quoting from the Myers case, 74 So. 258:

"After vain attempts at formulating some verbal test for determining when the injury has or has not arisen out of the employment, the courts have come to the conclusion that each case must be determined from its own facts; that the question cannot be solved by phrases."

the court goes on to say:

"These pronouncements reflect the modern judicial concept of compensation legislation, which is based on the premise that the phrase `arising out of the employment' does not have the same connotation as the common law `scope of employment,' the interpretation earlier attributed to it, but means, instead, the employment viewed from any aspect — its nature, conditions, obligations, and incidents. They lend emphasis to the growing recognition of the fact that judicial interpretation of these acts creating liability irrespective of fault in the light of common law liability predicated on fault hedges this humanitarian legislation about with the very restrictions it sought to circumvent and abolish, and nullifies the underlying insurance principle inherent in this industrial compensation. * * *"

Other cases illustrating the same liberal viewpoint in the construction and application of the Louisiana Workmen's Compensation Act are Meyers v. Southwest Region Conference Ass'n of Seventh Day Adventists, 230 La. 310, 88 So. 2d 381; Humphrey v. Marquette Cas. Co., 235 La. 355, 103 So. 2d 895; Dobson v. Standard Acc. Ins. Co., 228 La. 837, 84 So. 2d 210; and Stepan v. Louisiana, La.App., 73 So. 2d 18.

The judgment is affirmed.