Maryland Casualty Co. v. W. H. Stewart & Sons, Inc.

PONDER, Justice. The plaintiff brings this suit under subrogation as workmen’s compensation insurer of one Bennett Fontenot, employer of Ovey Smith, deceased, for the amount of compensation and funeral expenses paid by it to the widow and heirs of Ovey Smith, and against W. H. Stewart & Sons, Inc., a corporation operating a flying service conducting spraying operations, who had been engaged by Fontenot to spray his rice crop, and Charles Edward Stewart, the pilot operating the corporation’s plane that struck and killed Ovey Smith, who at the time was acting as flagman for Fontenot directing the path and direction of the operator of the plane in the spraying operation. Since the appeal was lodged in this Court, the parties to this litigation filed a joint motion to transfer this case to the Court of Appeal, First Circuit, based on the ground that this Court is without jurisdiction, to entertain the appeal relying on the recent holding in the case of Maryland Casualty Co. v. Gulf Refining Co., 231 La. 714, 92 So.2d 697. In the case of Maryland Casualty Co. v. Gulf Refining Co., supra, we held that the appellate jurisdiction in a suit brought by the subrogee of a compensation insurer lies in the court of appeal because the suit arises out of and by virtue of the compensation statute. [529] For the reasons assigned, the appeal is hereby transferred to the Court of Appeal, First Circuit, pursuant to the provisions of LSA-R.S. 13:4441 and 13:4442, the record to be filed in that court by appellants within thirty days from the date on which this decree shall become final, otherwise, the appeal shall stand dismissed. All costs to await the final disposition of the cause.