Bordelon v. N. O. Terminal Co.

WESTERFIELD, J. The widow and min- or children, dependents of William J. Young, deceased, bring this suit for compensation under Act 20 of 1914, as amended. The defendant answered denying liability on the ground that Young, at the time of his death, was employed by it in interstate commerce, and consequently plaintiffs’ claim, if any they have, is controlled by the Federal Employers’ Liability Act (45 USCA secs. 51-59). This defense prevailed below and plaintiffs have appealed. The defendant corporation owns and operates a terminal station in the city of New Orleans, and, in conjunction therewith, maintains various tracks, yards, and other terminal facilities, which are used by several railroads engaged in both interstate and intrastate commerce. For the most part, defendant’s tracks are used by trains carrying passengers and freight in interstate traffic. Young was employed as a night watchman to guard the property of defendant. His duties were not unlike those , of any other watchman, to police defendant’s premises, guard the box cars and tracks and other property of defendant. On the night of January 16, 1927, at about 6 o’clock p. m., Young was discovered by the crew of a train entering the city over defendant’s tracks, in a dying condition. When found he was lying a few feet from the track, suffering from the effects of a gunshot wound, from which he died shortly after having been discovered. The character of Young’s employment at the moment of his injury, how he was shot, by whom, and when, is unknown. It must be conceded that the defendant corporation was engaged in interstate commerce. Hamilton vs. L. R. & N. Co., 162 La. 841, 111 So. 184; Southern Pac. Terminal Co. vs. Interstate Commerce Commission, 219 U. S. 498, 31 S. Ct. 279, 55 L. Ed. 310; U. S. vs. Union Stock Yard & Transit Co. of Chicago, 226 U. S. 286, 33 S. Ct. 83, 57 L. Ed. 226. The tracks which the deceased, Young, was required to guard as a part of his duties, were instrumentalities of interstate commerce, though partly used in intrastate commerce. Pedersen vs. D. L. & W. Ry. Co., 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. If Young, at the time of his death, was engaged in guarding or policing the tracks of the defendant railroad, he was, when fatally wounded, engaged in the discharge of a duty so inseparably connected with interstate commerce as to form part of it. Shanks vs. D. L. & W. R. Co., 239 U. S. 556, 36 S. Ct. 188, 69 L. Ed. 436, L. R. A. 1916C, 797. The foregoing proposition of law cannot under the jurisprudence be the subject of reasonable controversy, as counsel for — 62 — plaintiffs freely and frankly concede. It is contended, however, that since there is no proof in the record to indicate how Young met his death or what he was doing at the time, and since the character of his occupation was such as to partake of the nature of interstate and intrastate commerce and at times involving neither the one nor the other, and since the Federal Employers’ Liability Act applies only to “an employee suffering injury while he is employed by such carrier in such commerce,” there is nothing to show that Young was, at the time of his death, so employed. The burden of proving such employment, it is claimed, rests upon defendant. It is to be noted that a large percentage of the activities of the defendant railroad (95 per cent according to the evidence) were devoted to interstate commerce. It is fair to assume that the duties of the plaintiff Young were principally confined to guarding the tracks and other instrumentalities of the defendant company employed by it in such commerce. Erie R. Co. vs. Winfield, 244 U. S. 170, 37 S. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662; Phila. & Reading Ry. Co. vs. Polk, 256 U. S. 332, 41 S. Ct. 518, 519, 65 L. Ed. 958. In the last-cited case we find the following: “It would seem indisputable, therefore, if there be an assertion of the claim or remedy growing out of an occurrence in which there are constituents of interstate commerce the burden of explanation and avoidance is on him who asserts the claim or remedy, not on the railway company to which it is directed, and there is nothing in Osborne v. Gray, 241 U. S. 16, 36 S. Ct. 486, 60 L. Ed. 865, in opposition.’’ The Louisiana Compensation Act, sec. 30, as amended by Act No. 244 of 1920, under which plaintiffs bring this suit, provides that the act shall not apply to an employer acting as a common carrier, while engaged in interstate and foreign commerce by railroad, but “if the injury or killing of an employee of a railroad occurs while the employer and employee are both engaged and employed at the time in an intrastate operation or movement and said movement or operation is not controlled or governed by the laws, rule of liability, or method of compensation which has been or may be, established by the Congress of the United States, then this Act shall govern.” Under the circumstances it seems to us that the burden of proving plaintiffs’ case to be without the rule and within the exception mentioned in the state act rested upon the plaintiffs, and that, since there is neither allegation in the petition nor proof in the record to show that, at the time of Young’s injury, he was not engaged in a duty inseparably connected with the prosecution of defendant’s interstate business with which it was mainly engaged, then plaintiffs’ suit must fail. The view we have taken of the case renders it unnecessary for us to consider the many appropriate decisions of the federal courts pressed upon our attention, which exhibit such refined distinctions as, upon occasion, to perplex the understanding when an effort is made to extract therefrom a rule, formula, or principle for our guidance in solving the intricate question of when the state and when the national authority begins and ends, as affecting the right of an injured employee to recover under circumstances similar to those presented in this case. For the reasons assigned, the judgment appealed from is affirmed.