
    NO. 8494
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. LELLEAN HART, widow of JOSEPH HARRIS and Natural Tutrix of the minor Harris versus L. FEIBLEMAN & COMPANY INC.
   Dinkelspiel; J

This litigation was brought under the Employers Liability Act, being Act No. 30 of 1914, for injuries received. while in the.employ of defendant oompany, as a truck drive*, and the alleg-ilons of the petition ohtrges that' the deoe-sed was in the employ of the defendant for the past several years and was so employed on the 37th day of July, 1921, when without fault upon his part and without warning he Vías suddenly shot to death by a party of Italians, near the corner of South Rampart and Calliope Streets, within the City of Hew Orleans, end that deceased was thus foully murdered 'while discharging his duty to his said employers, the defendant oompany, by driving a motor truck which he was hired to drive and was holding the wheel of ssid truck at the time he was shot.

The further allegations axe that plaintiff and •her child were dependent on th? deceased for their support and that deceased was employed ax at the rate of $31.00 per week and judgment is prayed for s period of three hundred weeks at $9.45 per week or a total of $2835.00.

To this petition there wa.s filed exception to the following effect:

"That the petition does not recite, set out or disclose a right or cause of action;
And only in -the event that the foregoing exception is not maintained, th£>t the petition is too vague and insufficient to admit of exceptor safely answering.*

tie are thus presented with whether under the Employers Liability Aot, as quoted, there has been stated in .the pvtision, sufficient matter compelling a trial of this cin the usual manner or whether the exceptions prevail.

In the case of Myers vs. La. Ry. & Navigation Co., 140 La. p. 939, the Court goes on to say:

"The injuries for whioh recovery may be had under the said Employers' Liability Act must have arisen "out of and in the course of" the employment; and the first contention of defendant is that; while the injury in this case euro se "in the course of" the employment, it did not arise "out of" it.

This phrase, "out of end in the course of the employment", whioh in itself appears to be olear enough has given occasion in its interpretation to & great many decisions, both in this country and in'England; for it ooours in ■che workmen's compensation statute of England, whioh is the prototype of our American statutes upon the same subjeot, inoluding our said Aot No. 30 of 1914. The Courts have had no difficulty in agreeing that "out of" does not mean the same thing as"in the course of", but means something more; that an injury may have been received "in the course of" the employment, and yet not "out of" it. Nor has any difficulty been experienced in ascertaining when an injury is to be considered as having arisen "in the course of" the employment; the difficulty has come in applying to concrete cases the phrase "out of".thsxamsluynBKii The Court goes on quoting from L. R. A. 1916A, p. 41, the following:

"It may be stated generally ths-t the phrase "out of and in the oourse of the employment" embraces only those áooidente whioh happen to a servant while he is- engaged in the discharge of some function or duty whioh he is authorized to-undertake, and whioh is o&loula.ted to further, direotly or indireotly, the'master's business.

The risk must be one peculiarly inbident to the employment, and not one incurred by every one, whether in the employment or not. Where an injury ooours upon a street from causes to whioh all persons upon the street are exposed. , it cannot be said to arise out of the employment of the injured -workman. But it has been said that the oriterion is not th^t other persons ere exposed to the 3i-me danger; but, rather, that the employment renders the workman peculiarly eubjeot to the conger.

In order that the injury ma.y be one arising out of the employment, the -workman must be acting within the scope of tís his employment at the time of'his injury."

Citing from Labatt on Master and Servant, the Court quotes the case of Briant vs. Fissell, 84 N. J. Law, 73, 86, and citing the Supreme Court of Massachusetts in the case of McNicol et al. vs. Employers' Liability Ass'n. Corp. 315 Mass. 497, the Court there held:

"It is sufficient to pay tVt an injury is received "in the course of" the employment when it comes while the workman is doing the duty -which he is employed to perform. It. arises "out of" the employment, when there is apparent to the r-tional mind upon consideration of :.,11 the circumstances, o causal connection between the conditions under whioh the work is required to be performed end the resulting injury. Ondsr this test, if the injury can be seen to have followed e-s a n-tural incident of the work and to heve been contemplated by & re>-sonable person fa'mlli-r with the whole situation s.s *i result of the exposure occasioned hy the nature of the employment. i'"'*** But it exoludes an injury whioh cannot fairly be trs.oed to the employment as a contributing proximate cause end which comes .from a hazard to which the workman would .have been equally exposed *.p“rt from the employment. The oauss-tive danger must oe peaulior to the work end not common to the neighborhood. 'It must be incidental to ths phs-rso-ter of the business and not independent of the relation of master and serve,nt. It need not have been foreseen or expeoted,- but after the event it must appear to have had -its origin in e risk oonneoted with the employment, and to have flowed from that source as a rational consequenoe.1'

And in Fitzgerald vs. Clarke, 99 L. T. N. S. 101, 1 B. W. C. C. 197, the Court said:

"The words "out of" point to the origin or cause of the .aooident; the v/ords "in the course of" to the time, plaoe and oiroumstanoes under whioh the aooident takes plaoe. The former words are descriptive of the character or quality of the aooident. The latter words relate to the circumstances under whioh an aooident of that character or quality takes plaoe. The character or quality of the aooident as oonveyed by the words "out of" involves the idea that the aooident is in some sense due to the employment. It must be an aooident resulting from a risk reasonably inoident to the employment,"

And the Court in the same'case quotes numbers of authorities to maintain and illustrate its position.

In the case of Piske vs. Brooklyn Cooperage Co. 143 La. p. 455, virtually the same doctrine was employed.

In Cyc. Corpus Juris, page 1384, under the head of Master and Servant:

"(a) Declaration, Petition, or Complaint, The declaration, petition, or complaint in an aotion by a servant against his master to recover' for personal injuries is governed by the general rules of law respecting pleading. While no express form of words is necessary the deolara/tica or oomplaint must set out with certainty and definiteness all faots neoessary to constitute a cause of aotion, and, • in’ particular, it must show the existence of the relation of master and servant at the time of the injury, the nature and oiroumstanoes of the injury oomplained of,- the right of the servant to be where he was when injured, and-that-he was,-; in’ the performance of the duties of his service, .-and-.the performance of any condition pfeoedeM: ’to' thb- right of;action»!!

Th; ,y ;.lv'intif f ~ counsel dc not in Mi1' i.. j.' o/a1' y th - 3 herein eot out; th-.y -.-rs b :'i\ ■ uii l - nt theories; ■ -nd. tu-ve no ..--_.plic ;is..'„ ... -\e : .ísti:r. .* in involved.

Ibx ;V. rs . . igned, it it ordered., '¡.¿judged .1 or . the j.i ...e.nt of the Ccu"t ».tjua be end. the irii . ■ .'flrr.cdi

-Judgment affirmed-  