Lewis v. Police Jury

In this case the defenant’s son was killed by the explosion of dynamite while deceased was performing services arising out of and incidental to his employment; and under the plain terms of the Workmen’s Compensation law, plaintiff is entitled to recover damages for his death unless the defendant can establish the defense set up by it; that deceased willfully wanted to injure himself, etc. Under the evidence showing the conditions that existed at the time the dynamite exploded, it was impossible to show just what caused the explosion. There was no one looking at the deceased at the exact time of the explosion. The witness Webster Anderson was one of the last persons who saw him alive and says in answer to the question: “Q. How long before the explosion was it that you saw him? A. About two or three minutes before the explosion. I just had turned around to leave him. Mr. W. E. White, the only other witness who testifies on this point, said: (Trans. P. 18 & 17). Q. How long, before the explosion that killed him was it that you had been with him? A. About two or three seconds I guess and I had turned around. Q. What was he doing when you looked at him? A. Standing stooping over his box of dynamite on a stump twenty-four inches high. None of the evidence introduced shows the exact cause of the explosion, but there was an explosion of dynamite, and it killed plaintiff’s son while he was at work in the course of his employment. There is no evidence to show that at the time of the explosion deceased was . wilfully trying to injure himself or to commit suicide, or that he failed to use a device or guard against accident provided by the employer. Plaintiff is entitled to judgment. Counsel for defendant, in his briefs insists that his exception of no cause of action should be passed on. That the judgment should be set aside for the reason it was signed on Saturday a half holiday. Counsel insists that his exception of no cause of action should have been sustained for the reasons plaintiff closed her case without introducing any evidence to show that the deceased at the time of the accident was working within the scope of his employment, etc. Be that as it may the exception of no cause of action must be determined by the averments of the plaintiff’s petition. In re. Scarborough, 43 La. Ann. 315, 8 South. 940. [443] It is inconsistent pleading to set np defenses to an action, and afterwards plead no cause of action. Yarborough vs. Blanks, Mannings Unreported cases 144. Counsel insists that this court should hold the judgment absolutely null and void and to no effect, that the judgment is an absolute nullity. If this contention is correct, then this appeal was unnecessary. This question was not raised in the lower court, and cannot be passed on here. Act No. 6 of 1921, cited by counsel for defendant does not appear to carry out counsel’s contentions for in its last paragraph it is provided that it should be lawful' to take and execute all other legal proceedings on Saturday half holidays. The Saturday half holiday in the City of Alexandria is a local half .holiday and as such does not apply to the District Court tor the Parish of Rapides. State vs. Westmoreland, 117 La. page 958, 42 South. 440. For the reasons assigned the judgment appealed from is affirmed at defendant’s cost.