
    (82 South. 785)
    No. 22835.
    CITY OF SHREVEPORT v. SOUTHWESTERN GAS & ELECTRIC CO.
    (Jan. 6, 1919.
    On Rehearing, June 30, 1919.)
    
      (Syllabus by Editorial Staff.)
    
    1. Electricity <®=»16(2) — Action for Death —Defenses—Insulation of Wires.
    That insulation of wires soon deteriorates under action of sun and rain, making it impossible to keep them safe, and that it is not for protection but for preventing wasteful escape of the fluid, held not to be good defenses in action against an electric company for death of a fireman killed by contact with its wires.
    2. Electricity &wkey;>15(2) — Licensees — Fireman.
    A fireman who was killed by coming in contact with live wires of an electric company while climbing a ladder to aid in fighting a fire was not a mere licensee as to the electric company occupying with its wires the' public street.
    3. Electricity ®=»18(3) — Action for Death —Contributory Negligence.
    In action for death of a fireman killed by coming in contact with defendant’s live wire while in the ordinary discharge of his duties, held, there was no contributory negligence shown on the part of deceased, though two of his companions ahead of 'him saw and avoided the wire.
    4. Master and Servant <&wkey;>389 — 'Workmen’s Compensation Acts — Subrogation.
    In action against electric company by a city as subrogee of the widow of a fireman electrocuted while discharging his duties, defendant cannot set up as defenses contributory negligence on part of the city and estoppel because it had not condemned the wire’s location.
    On Rehearing.
    5. Master and Servant <&wkey;389 — Workmen’s Compensation Act — Subrogation.
    A conventional subrogation made by a widow of a city employé, by which the' city was authorized to sue the company through whose fault he was electrocuted for damages due her and her child, and to deduct, from the judgment recovered, the compensation paid her and her child by the city and to turn over the balance, held valid under Employers’ Liability Act, §§ 7, 34, and Civ. Code, art. 2162, though made without the judge’s authority provided for by article 353, not being a compromise defined by article 3071.
    Provosty, J., dissenting.
    Appeal from First Judicial District Court, Parish of Caddo; J. R. Land, Judge.
    Action by the City of Shreveport, subrogee, against the Southwestern Gas & Electric Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Alexander & Wilkinson and E. W. & P. N. Browne, all of Shreveport, for appellant.
    J. C. Henriques, of New Orleans, for appellee.
   PROVOSTY, J.

In the course of fighting a fire that was inside the second story of a furniture store, the firemen set up a ladder against the sheet iron awning which extended from the building over the sidewalk at the elevation of the second floor, and three of them went up this ladder with the nozzle end of a hose. There was an are light wire of the defendant company four feet five inches above this awning and six feet eight inches from the building; and below it were two other wires. The foremost firemen managed to pass between this top wire and those below it. The third fireman, just as he stepped from the ladder to the awning, was seen to fall down upon the awning, and to be holding the top wire with one hand, while electrical sparks were spitting out at the place where he had hold of the wire. Whether he had stumbled, or slipped, on the steep awning and caught the wire in his fall, or had fallen as the result of having put his hand on the wire, is not known. His companions instantly pulled him off; but he was already dead — electrocuted. The water had just begun to spout from the hose. It was after night, but light enough from the flames and from the street lamps for him to have seen the wires, as his companions had done. The city of Shreveport, as his employer, 'settled with his widow and children her liability to them under the Employers’ Liability Law (Act No. 20, p. 44, of 1914), and deeming that under section 7 of said law she was legally subrogated to whatever right they might have to claim damages from the defendant company, and having also obtained from them an express subrogation, brought the present suit.

An exception of no cause of action based upon the supposed ineffectiveness of the subrogation was sustained below. On appeal to this court, the judgment was reversed; this court holding that, while legal subrogation had not taken place, the contractual subrogation was good as to the widow. 140 La. 1078, 74 South. 559. The question as to the validity of the contractual subrogation of the rights of the children was expressly reserved.

The reason why the court held that the legal subrogation had not taken place was that the said section 7 of the Employers’ Liability Act in making provision for such legal subrogation mentions only the injured employé himself, saying nothing of “dependents.” The decision became final in March, 1917. The Legislature of 1918 (Act No. 38) amended the said section 7, doubtless in view of that decision, by adding after the word “employé” the words “or his dependent”; so that, as the law now stands, the employer who has made a settlement of his liability under said law is subrogated by operation of law not only when the settlement has been with the employé himself but also when it has been with his dependents.

The learned counsel for plaintiff contends that the said amendment controls this case. We think not. The rights of the children 'could not be taken away from them and transferred to the plaintiff by any act of the Legislature. It • would be the divesting of vested rights.

And so far as concerns the contractual subrogation which the mother and tutrix undertook to make for these children, it was nothing more than an alienation of minors’ property without observance of the forms prescribed by law for the alienation of minors’ property; and therefore null. Were the city to fail in the present suit, the judgment would be in no way binding on the minors, who could obtain the annulment of the said attempted transfer, or subrogation, of their rights, and then renew against the defendant company the present suit.

The exception of no cause of action must therefore be sustained in so far as plaintiff’s suit is founded upon the rights of the minors.

On the merits, the case is closely analogous to that of Clements v. Electric Light Co., 44 La. Ann. 692, 11 South. 51, 16 L. R. A. 43, 32 Am. St. Rep. 348, where a workman going on a roof to repair it was killed by contact with an insufficiently insulated wire, and the company was held responsible.

Evidence was offered to show that the insulation of wires soon deteriorates under the action of sun and rain, and that therefore it is not commercially possible to keep the wires safely insulated. This was held in the case of Moren v. N. O. R. & L. Co., 125 La. 944, 52 South. 106, 136 Am. St. Rep. 344, not to be a good defense.

There was also some evidence to the effect that the insulation of wires is not for protection, but only for preventing a wasteful escape of the fluid. That view of the matter does not recommend itself to the humanity, not to say the common' sense, of the court.

Another defense is that the fireman was a mere licensee, and therefore had to take the premises as he found them, and abide by the consequences. He may have been a mere licensee in so far as the owner of the furniture store was concerned, and might not have had any right of action against this owner for any injury received as the result of peculiar conditions In or about this building, though even then circumstances might perhaps alter eases; but he certainly was not a licensee with regard to the defendant company who was occupying with its wires the public street. The cases cited by defendant are New Omaha Thompson, etc., v. Anderson, 73 Neb. 84, 102 N. W. 89; Hamilton v. Minneapolis Desk Co., 78 Minn. 3, 80 N. W. 693, 79 Am. St. Rep. 350; Beehler v. Daniels, 18 R. I. 563, 29 Atl. 6, 27 L. R. A. 512, 49 Am. St. Rep. 790; Rennebaker v. San Joaquin L. & P. Co., 158 Cal. 579, 112 Pac. 459, 31 L. R. A. (N. S.) 1099, 139 Am. St. Rep. 202; Griffin v. U. S. Electric L. Co., 164 Mass. 492, 41 N. E. 675, 32 L. R. A. 400, 49 Am. St. Rep. 477; Minneapolis Gen. Elec. Co. v. Cronon, 166 Fed. 651, 92 C. C. A. 345, 20 L. R. A. (N. S.) 816; Memphis Consol. Gas & Electric Co. v. Speers, 113 Tenn. 83, 81 S. W. 595; National Fire Ins. Co. v. Denver Consol. Electric Co., 16 Colo. App. 86, 63 Pac. 949; Cleveland, C., C., etc., Co. v. Baílenteme, 84 Fed. 935, 28 C. C. A. 572; Woodruff v. Bowen, 136 Ind. 431, 34 N. E. 1113, 22 L. R. A. 198; Hector v. Boston Elec. Co., 161 Mass. 558, 37 N. E. 773, 25 L. R. A. 554; Sullivan v. Boston & A. R. Co., 156 Mass. 378, 31 N. E. 128; Keefe v. Narragansett Elec. L. Co., 21 R. I. 575, 43 Atl. 542; Hargreaves v. Deacon, 25 Mich. 1; Newark Elec. Co. v. Garden, 78 Fed. 74, 23 C. C. A. 649, 37 L. R. A. 725; Denison Light Co. v. Patton, 105 Tex. 621, 154 S. W. 540, 45 L. R. A. (N. S.) 303; Cumberland Telephone v. Martin’s Adm’r, 116 Ky. 554, 76 S. W. 394, 77 S. W. 718, 63 L. R. A. 469, 105 Am. St. Rep. 229.

This fireman was in the ordinary discharge of his duties, and was guilty of no negligence. The fact that his two companions ahead of idm saw and avoided this wire does not argue against him. His opportunity for seeing it, or for appreciating at the moment its dangerous character, may not have been as good as theirs. And if even they had failed to observe it, there would have been nothing to wonder at under the circumstances: The imperfect light; the necessary precipitancy of their movements ; the flames inside; the excitement; the insecure footing on the steep awning. The man, for all that is known, may have stumbled and fallen against the wire. And we suspect that as he was stepping from the ladder to the awning the stream of water from the hose had already begun to splash about him.

Other defenses are contributory negligence on the part of the plaintiff city, and estoppel because of the city’s electrician not having condemned the location of this wire, but having, on the contrary, impliedly approved it by not objecting to it. Suffice it to say of these defenses that the city is not suing in her own right, but is simply enforcing the rights of the widow and children of the decedent.

He was 28 years old, in good health, earning $70 a month, and his wife and children were entirely dependent upon him.

Following the Moren Case, supra, the learned trial judge, by whom the case was tried without a jury, allowed for the rights of the widow $5,000. :

Judgment affirmed; defendant to pay the costs of the appeal.

DAWKINS, J., takes no part.

On Rehearing.

SOMMERVILLE, J.

The city of Shreveport, as subrogee of the widow and minor child of Crayton Hilburn, sued the defendant company in damages, and the suit was dismissed on an exception of no cause of action.

On appeal, this judgment was set aside, and the case was remanded for trial on the merits. 140 La. 1078, 74 South. 559.

This suit was based on an alleged subrogation by the widow and minor child of the deceased employé of the city of Shreveport in favor of the said city under and by virtue of the terms of the Workmen’s Compensation Act (No. 20 of 1914, p. 44). The court held that subrogation did not take place in favor of the city under the act referred to, but that it took place under a conventional agreement entered into between the city of Shreveport and Mrs. Hilburn. The court expressed no opinion as to the validity of the act of subrogation made by Mrs. Hilburn for her minor child.

On the last trial of the case, judgment in favor of Mrs. Hilburn individually was affirmed against the defendant company; but it was held that the conventional subrogation made by her for her minor child was null and void, and that plaintiff, the city of Shreveport, subrogee, could not recover thereon. A rehearing was granted, and we shall now consider the right of plaintiff to recover for the minor 'Hilburn,

Mrs. Hilburn for herself and her minor child, had two causes of action and two debtors because of the death of Mr. Hilburn. One of the debtors was the city of Shreveport and the other was the Southwestern Gas & Electric Company. The claim against the city for a small, liquidated amount, as compensation, which has been paid in part to her for herself and child by the city, and arrangements have been made to pay the balance' in monthly installments. The claim against the Southwestern Gas & Electric Company was for damages in a larger and for an unliquidated amount.

Mrs. Hilburn, in accepting payment from the city of Shreveport, the smaller debtor, entered into an agreement with it and subrogated-it to all her rights and her child’s rights in damages against the Southwestern •Gas &• Electric Company; agreeing that if the city • prosecuted the claim successfully against'the-electric company, at its own expense, she would allow it (the city) to deduct from the amount of the judgment secured against the electric company the small sum paid by the city to her for herself and minor child.

The law authorizes conventional subrogations, and there is no-reason why Mrs. Hil■burn, as tutrix of her child, should not enter into such an agreement on behalf of that child. The Code says, in article 2162, that the legal or conventional subrogation “cannot injure the creditor, since, if he has been paid but in part, he may exercise his right for what remains due, in preference to him from whom he has received only a partial payment.” And in this conventional subrogation entered into between Mrs. Hilburn and the city of Shreveport it was expressly stipulated that the city of Shreveport should pay over to Mrs. Hilburn the full amount of the judgment recovered, less that part which it (the city of Shreveport) had already paid to her for herself and minor child.

The so-called act of subrogation really was a mandate authorizing the city of . Shreveport to institute the suit for damages which were due Mrs. Hilburn and her child, with the stipulation that the city was to retain a certain portion of the amount of the judgment which might be recovered against the electric company.

Under such an agreement, there was no parting with any property belonging to the minor, nor was there any compromise of his rights. The tutrix had the undoubted right to enter into the contract without reference ,to a family meeting, and without authority from the judge.

Article 353 of the Civil Code says that—

“The tutor cannot borrow for the minor, purchase for him immovables or compromise respecting his rights, without an authority from the judge, granted on the advice of a family meeting.”

Article 3071, C. C., defines a “compromise” to be:

“A transaction or compromise is an agreement between two or more persons, who, for preventing-or putting an end to a law suit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
“This contract must be reduced to writing.”

The' lawsuit between Mrs. Hilburn and the city of Shreveport had been put an end to before the act of subrogation was made, and the judgment in that suit had been settled by the city.

In authorizing the city to sue the electric company for the amount due her and her child as damages, Mrs. Hilburn was beginning a lawsuit; she was not putting an end to one by taking something, which she preferred to the hope of gaining, balanced by the danger of losing. She had all to gain, and nothing to lose by the agreement.

The city was a debtor of Mrs. Hilburn and her child, made such by the fault of the electric company, which was also a debtor. It was to the interest of the city, under the act of subrogation, to sue the electric com•pany -for damages, and thus acquit itself of satisfying the judgment rendered against it in favor of Mrs. Hilburn and child.

The city was bound with the electric company, in a certain sense, to compensate Mrs. Hilburn and her child for the death of Mr. Hilburn. It might be said to have been bound for the fault of the electric company and for a part of the debt due. The city therefore had an interest in discharging in part the debt due by the electric company to Mrs. Hilburn and her child; and, in ácting, it became legally subrogated to their rights. |

As was before said, the city clearly became j subrogated to the rights of Mrs. Hilburn ¡ and child against the electric company un- ] der the conventional subrogation. ¡

In our former opinion, we found that the ] electric company was at fault, and was lia- ] ble in damages for the death of Mr. Hilburn.! We adhere to that finding.

Defendant, in a supplemental brief, argues an exception of no cause of action which is said to have been overruled by the trial judge, and which was not urged or argued in this court on the original hearing or orally on the rehearing. One exception of no cause of action was disposed of in 140 La. 1078, 74 South. 559.

The exception is stated to have been based on section 34 of the Employers’ Liability Act, which declares:

“That the rights and remedies herein granted to an employé on account of a personal injury for which he is entitled to compensation under this act shall be exclusive of all other rights and remedies of such employé, his personal representatives, dependents, relations, or otherwise, on account of such injury.”

This limitation of the right of action by an employé and his dependents is against his employer, or the insurer of the employer, or the employer of an employer. It is a part of the “Employers’ Liability Act,” which prescribes for “the liability of an employer to make compensation for injuries received by an employé in performing services arising out of and incidental to his employment.” The act does not embrace or refer to the liability of others than employers for damages suffered by or through the fault of third persons. The act is restricted to contracts between employers and employés and to compensation by employers to employés for injuries suffered in performing services arising out of or incidental to their employment.

Section 7 of the act recognizes the right of the person injured to obtain compensation from his employer and to proceed at law for damages from third persons for his injuries; and, in the event that the injured person has recovered compensation from his employer and damages from a third person, the employer becomes subrogated to the rights of the injured party against said third person to the extent of the compensation made by the employer.

The right of the employé to compensation from his employer for perscyial injuries does not exclude the right of an injured person, to. recover damages from third persons through whose fault the damage happened.

The cases of Veasy v. Peters, 142 La. 1012, 77 South. 948, Dupre v. Coleman, 143 La. 69, 78 South. 241, Boyer v. Crescent Factory, 143 La. 368, 78 South. 596, and Philps v. Guy Drilling Co., 143 La. 951, 79 South. 549, were all eases between employés and their employers; and what may have been said therein had reference to rights of action by employés against their employers, and not against third persons for damages. The exception was properly overruled.

The judgment appealed from is affirmed, with costs.

PROVOSTY, J., dissents, adhering to original opinion.

O’NIELL, J., concurs in the decree.  