Lognion v. Lake Charles Stevedores , 172 So. 439 ( 1937 )

In my opinion, the plaintiff is entitled to compensation on account of the injury which he received. The Workmen's Compensation Law should be liberally construed in order to effectuate its purpose.

The testimony of C.H. Austin, Jr., the bookkeeper for defendant corporation. shows that plaintiff had worked in loading vessels on the docks November 8th, 9th. and 10th. On the 10th he had worked directly for the defendant and on the 8th and 9th he had worked for Lykes Brothers and was paid off in the office of the defendant, and this witness says that plaintiff's work on these three days was exactly the same as though he had been working for defendant. As plaintiff was in the employ of the defendant on November 10th had the relationship of employer and employee been disconnected on the 12th when plaintiff was injured in a room under the control of the defendant and adjoining its offices on the docks? I think not.

The record shows that the International Longshoremen's Association (hereafter referred to as the I. L. A.) had called a strike at the Port of Lake Charles. One withess, Abe Knight, testified that the Austins. who were the controlling officers of the defendant corporation, had encouraged and helped finance the organization or reorganization of the rival union called the Louisiana Longshoremen's Association (hereafter referred to as the L. L. A.). The Austins deny that they or the corporation which they control had anything to do with the organization of this rival union. Even though it be conceded that they did not furnish any financial assistance as claimed by Knight, the record fully justifies the conclusion that the L. L. A. received the favor and approval of these officers of defendant corporation. Indeed, the defendant had contracted with the L. L. A. to furnish all labor required by defendant in loading and unloading vessels for it during the strike of the I. L. A. So the L. L. A. was in this respect a strike-breaking organization, with a contract to furnish defendant the labor which it could not otherwise procure on account of the strike of the I. L. A.

The evidence further shows beyond question that Harry Harrison at the time of plaintiff's injury was the president and business agent of the L. L. A. and that Harrison had almost complete control over calling out the men for work, in determining who would work, in making up the angs, and, in fact, in practically directing all the work for the defendant. While Horace Austin, the general manager of defendant corporation, was supposed to issue calls for men to load the vessels which calls were to be given to Harrison, the business agent of the L. L. A., who in turn would call out the men, it appears from the record that Harrison was given almost complete charge of the work. The Austins worked hand in hand with Harrison and relied on him to see that the work was done under the contract with the L. L. A.

The men whom Harrison selected and put on the job were accepted and paid by the Austins without question. Under the arrangement by which defendant was securing men to do its work, Harrison was invested with implied authority to select the men who were to become the employees of the defendant, and when the men had been so selected and put on the job, by Harrison, they were as much the employees of defendant as though Harrison had been given express authority to go out and employ men for the defendant.

It follows from this conclusion that if plaintiff was on the premises of defendant when injured at the call of Harrison, and if plaintiff was there in the interest of defendant and in furtherance of its business, he was as much in the employ of the defendant on the 12th as he was on the 10th, having been called there on both occasions by Harrison.

The decided preponderance of the evidence is to the effect that plaintiff, as well as several other members of the L. L. A., were at the docks on the morning of the 12th at the call of Harrison. It is true that the evidence does not show that any one of the Austins issued a call to Harrison to have the men out on the 12th. But the circumstances, if not the direct evidence, show that the men were out on that day with the knowledge and approval of Horace and C.A. Austin, Jr.

Plaintiff testifies that when he reached the docks on the morning of the 12th Horace Austin told Harrison to send some of the men after some guns for protection; that Harrison then told plaintiff to look up Eddie Daigle and get some guns; that he, Daigle and another man went out in town and got three rifles which were brought in at the back of defendant's office where Horace Austin unlocked the door and later procured some cartridges for the rifles; that a few minutes later he, plaintiff, was injured in this office when attempting to load one of these rifles. Austin denies, in toto, this statement of plaintiff, but it is significant that plaintiff put these rifles in a room adjoining Austin's office, while Austin was present, the keys to this room being under the control of the defendant. Whether or not Austin sent for the rifles, as plaintiff claims, there can be no serious question but that Harrison told plaintiff to get these rifles and put them in this office. Nor can there be any serious question but that Austin knew and acquiesced in placing the guns in the office, and he doubtless knew at whose orders and for what purpose these firearms were being placed in an office under his control.

The record shows that a restraining order had been issued by the federal court against the I. L. A. at the instance of the defendant on November 7th, and the rule was to be heard on the 12th. There was considerable tension on that day for the reason that further trouble was feared should the restraining order be dissolved, thereby leaving the pickets of the I. L. A. free to invade the docks. There existed an emergency under which it became necessary for the defendant to protect its property and its position on the docks. It is reasonable to assume that the defendant would take precautionary measures to protect its property and its workmen in case the restraining order was dissolved.

All of these circumstances tend to support the contention of the plaintiff, that he was on the premises of the defendant with the approval of the defendant and in continuation of his employment of two days previous. He had procured the guns at the request of the one with whom defendant had intrusted practically all of the responsibility of securing men and of supervising the work. Plaintiff was doing something which he was led to believe was in furtherance of the interests of his employer, and in carrying out instructions which came, as he thought, directly from his employer. It cannot be said that plaintiff was acting in his own interests in bringing firearms on the premises of his employer, and with its approval, at a time when there was much greater need for protecting the interests of the defendant than that of the plaintiff.

It is stated in the majority opinion in support of the conclusion that no call had been issued by the defendant for the men to assemble on the 12th, that there was no ship due to arrive in port until the night of the 13th or the morning of the 14th, and, accordingly, there was no occasion for the men to come out for work. But under the situation as it then existed, it was very important that the defendant be in position to hold its advantage and protect its property should the injunction be dissolved and defendant's employees, as well as its property, be subjected to an attack by the I. L. A. The situation was an unusual one, and defendant's safety was not so sure as its officers would now have it appear.

Harrison's testimony is so thoroughly contradicted that I cannot give it much weight. He denies that he called out plaintiff and the other men for the 12th, yet several men testified that such a call was given by him; he denies that he told plaintiff to get the guns, yet he is contradicted on this point, not only by plaintiff, but also by two other men who gave their testimony against defendant with great reluctance. But the most unreasonable part of his testimony is that wherein he states that he was not present on the docks on the 12th until just after plaintiff was injured. The testimony is overwhelmingly to the effect that Harrison was out on the docks before plaintiff was injured, and, as already stated, gave orders to plaintiff to get the guns and put them in the back office; and that it was one of these very guns with which plaintiff was injured. The majority opinion must assume that Harrison was present before plaintiff was injured, as Harrison's testimony is cited in corroboration of Austin's denial that he told Harrison to have the men get some guns for protection.

The statement of plaintiff to the effect that Horace Austin told Harrison in the office that morning just after a telephone conversation to have the men get some guns for protection is contradicted by Horace Austin. If Harrison was not there at the time, certainly he could not know whether plaintiff heard Austin make the statement attributed to him by plaintiff; but, I believe Harrison was in the office, even though Austin did not tell Harrison to send the men after the guns, on which question there may be room for doubt. The fact that Austin permitted, if he did not request, plaintiff to put the guns in an office under defendant's control, tends to support plaintiff's statement.

The defendant had contracted with the L. L. A. to furnish the labor for loading and unloading the vessels for which it had secured contracts as a stevedore. In a way, the defendant may be said to have subcontracted the labor to the L. L. A. Under this arrangement, the men selected by the business agent of the L. L. A. were as much the employees of the defendant as they would have been had they been in the immediate employ of the defendant. See section 6 of Act No. 20 of 1914, as amended by Act No. 85 of 1926. If plaintiff was doing something in furtherance of defendant's business when he was injured, it is immaterial whether he was employed directly by or acting under instructions from the officers of the defendant, or under instructions from the officers of the L. L. A.

In order for an employee to recover compensation, it is not necessary that the injury be received during the work period, nor is it necessary that the employee actually be receiving wages. The circumstances may be such as to require the presence of the employee on the premises while not actually engaged in his regular work. He may be required to do some act outside of his usual employment to protect his employer's property, or to make it safe and convenient for him to do the work for which he is employed. In my opinion, this is such a case arising, as it does, from an emergency. The presence of plaintiff on defendant's premises was in pursuance of his employment because of the situation as it existed, and in order for plaintiff to be able to make his employment effective. Ivory v. Philpot Const. Company (La.App.) 145 So. 784; Malky v. Kiskiminetas Valley Coal Co., 278 Pa. 552, 123 A. 505, 31 A.L.R. 1082; Holland v. Continental Casualty Company (La.App.) 155 So. 63.

I therefore respectfully dissent.