
    Rosia Murray, Widow of John Joseph. -vs- U. S. Industrial Alcohol Company.
    No. 8096.
    Court of Appeal. Parish of Orleans.
    3IMKELSPIEL. J.
   Dinkelspiel, J.

This litigation present* mitt one single and solitary question) whothar or not, dofsndant* wara or wars not tha smployoas of dtosased, husband of plaintiff.

Plaintiff, Roola Hurray, widow of John Jooaph, ha dying In this City, on tha Slat, of Harsh, 1918. That at tha tins of hie daath and prior thereto, has husband, was in the employ of defendant oompany, the U. S; Industrial Aleohol Company, That ha was a ¡aployad aa a porter at defendant*a offloa, at Fardinand and Pina Streets, In the City of Haw Orleans, at tha time of hie death, and wae earnins the sum of #18.36. per week.

Plaintiff la informed, believes, and avert that in addition to hie duties ae portar, it had been tha ouetoa of her husband, getting the' orders and directions of officials and persona in authority and oon-trol of defendant oompany to return after hours for the purpose of going out with other workman in tha river to assist in tying up ships,- carrying oargos of molassea consigned to defendant oompany. That for euoh services, her huaband, working overtime resolved 60 per hour, averaging the sum of #3.30. per week. That her husband, ac porter both for work done in that capacity and for overtime work earned in assisting to tie up molasses Ships consigned to defendant oompany, an average of $31.70. psr weak. That on ths evening of Haroh, 31*t, ISIS, at about 8 o'clock,. her huaband together with two fallow workmen, noting under the orders and directions of ths supsrintendant. of defsndant oompany returned to said oompany for work,) that tha Steamship Cubad1st, loadsd with molassee, consigned to defendant company, had bean Informad and aba 30 avara, that har huaband and hie fallow workmen ware ordered to report book In order that when the whip arrived to go out in a oklff In the rivar, tla the ahip to the piling at the head of Ferdinand street, there being no wharf or pier at aald point.

That her hueband and hie fellow vorKmen following the ordara of the Superintendent of oaid company, a? had been the oustosi for eevsral yearn In the past, and receiving for aald extra work bOf par houT from until/ the time of reporting hie return to work-, the in-oomlmg ship had been moored to the piling at the head of Ferdinand Street and deoeaaed, her huaband, and his fellow workmen returned to the ehore.

Further alleging, that about 10.30. at night, on the aforesaid date, the steamship Cubadist arrived, and that plaintiff a husband and hla two follow workmen In the skiff had tied the headline to piling in front of doiendant oompany, and the deoe' ied and his fellow workmen had returned to the ship, in the skiff,to seoura the forward breastllns, with a heavy ooil of rope or haweer eo tnrown from the ship to the ekiff, landing on the skiff, causing same to bs capsized and her hueband and his companions to be thrown Into the river; that notwithstanding her husbands struggles In the water for sometime he finally s> sunk and was drowned. That all thie was dons under the orders and instructions of his superior officers and deceased In nowise contributed to hie own injuries and death.

That under the compensation law, plaintiff as a dependant upon her hueband, is entitled to recover from defendant company, compensation for the death of her husband, at the rate of §3.<12. per weak for 300 waste, and there is now post due her, plaintiff, ifca aa oomwen«ation from Viaroh, 313». 1919 to February, 30th. 1930, 43 Seeks, 8360.16.

She also allaged that aha le in neoeaoitoua oixoum-ataneao, unable to pay ooats of this suit in advance or an they aooi-ug or give bond, that she be permitted to file thia ault under the terms of Act No. 15Q of .against 1913, and finally prayed for Judgment/ag defendant company in the 3urn of 3260.16 past due aa compensation from 31at. March 1919 to 30th. February, 1939, with legal interest from date of Judioial demand, and the further sum of fl.365,84. in weekly installments of Í5.43, par week from February, 20th. 1920, from weak to week for 332 weeks, for general and equitable relief.

The answer of defendant virtually denies all the allegation of plaintiff a petition, except ae hereinafter admitted, aa follows,¿ Admite that deceased, John Joeaph, wae employed by defendant ooapany by the day, and wae paid at the end of the weak for the number of day's labor which he performed during the week at 3Q(í per hour.; that at the time of his death having oheoked out from his day's at 4.30. p. m. on Mnroh, Slat., and there after being employed and engaged with other laborers by the Master or Captain of the steamship Cubndiat, to moore and make fast said steamer to the pier, during which time and in oonneot-wii -ion with which employment said Joseph oaae to his death.

Admits, that deceased, Joseph, waa employed by defendant company by the day, but danise that he averaged ',18.20., but aver3 that us av ora gad usually El hcuro pur weak, Tor which he '.-.aft paid 30? por hour or £lb.30., the cmployi.'tnl being by tee day, and deceased being paid for the number of hours of work aotuaily performed par day.

Denies, fixits; further, that fleoaueed returned to work to receive overtime,,out avara the faot to ha that after he cheeked out after hie' days work, aas no longer in the employ of defendant, but accepted separate and distinct employment from the Captain of the steamer Cubadlst, for work wuicn the Captain desired him and others to perform, and that be •?as not paid for auoh work b-f defendant at the end of the week as overtime.

Further, denies, that deceased received directlcne ar.d crdsra from defendant's superintending denies he did not return to defendant for work in connection with his employment, ae said employment had ceased; that deceased had f requehtly earned money by tyin-; or mooring steamships which ware delivering merchandise to defendant company, but that employment was in nowise oonnectsd with tns employment of deceased with defendant.

Defendant admits tnat too deceased while working; for the Captain of the Steamer Cubadist, oame to uis death by drowning, in attempting to moora or tie up said steamship to the piling.

Defendant denies tnat at the tims of the aooldent that deceased was in the employ of defendant, or that his injurien or death occurred while deceased was per -forciimg gorvi398 si chav arising out oí inoiden--tal to ills omployuiont ‘by defendant company, hanc® prays for judgment and dismissal of plaintiffp suit.

On the trial of the case besides the testimony of plaintiff, who absolutely knew nothing safe and except that her husband was dead, ha worked as porter for defendant company, there was introduced several colored witnesses, Parkins, Lockaurn A Orozlar, and after these witnesses had tee tifiad, and after ths trial of the cane,-by oonoenb, two other oyiorad who vritnsasea, Brówn and David Joseph,/testified, and the substanoa of their testimony as we read it substantially confirms what defendant’s plea really la, to the effect that all theee men more or iesa, from tima to tiij.e, had'f/orked for the defendant company on various and different engagemante; that the deceased was a poner in the employ of the oompany,xafl and that on the night in question he was ordered by the Engineer of the Oubadlet* to go out in a skiff- in the river in order to tie up to the landing the Steamship Cubadiat, 90 that her cargo, which was entirely molasses, oould be pumped into defendant's warehouse, and that was the entire employment made by the steamship company and not by defendant company, and this was the universal custom , not only In this particular oase and for this particular steamship, but in all similar oases of a like character.

Wilfred Gasser, was the Engineer of defendant company; had been in their employ for twenty years; knew deoeaaed, John Joseph, who was the porter in the employ of defen'iant company, and in speaking of how defendant got it's molasses for the manufacture of Alcohol from the tank steamers he goes on to say; the steamer comes up under her own 3team, and three man In a skiff tie h»r \ip, they get ten dollars for that work and thay were paid by the Captain of the Steamship; never were employed for that purpose by defendant company; that defendant company never kno* when a Steamship cosie.s in for the purpose of tying to the wharf and unloading it’s product, but when they hear of it they employ men to'do simply the tying and nothing moro in order that the product can be pumped into the ship, but they have no connection whatever with the employment of getting these men and these men are paid by the Steamship making an independant fee and are ever seeking this employment for an extra compensation that they receive. That deceased, Joseph, received 30Í per hour for the work that ha did for defendant oomoany, and at the time when he mot his death the company paid him a full days 'extra wages in order to make the molasses connection, and in addition to that hs got ten doliere from the Captain of the Ship for tying and untying'the vessel, and deceased and all other workmen fully knew and understood the arrangement.

Q- If they are not there do you put a stranger in itT
A- T would have to have men to dp the work,
Q- There do the lines come from that ties the boat?
A- This boat?
Q- Yqb,
A- Trow the Cubad1st.
Q- Tho throws the lines?
A- The Mate attends to the handling of the lines and glues the orders.
Q- The lines are thrown from the vessel or chip, under orders of the Mate?
A- Yes.
Q~ And the Hats instructs these man where and hoar to tie? -A- Yes, Sir.
Q- Have Jou anything to do with it at all?
A- Ho, Sir; I oan't gibe them any order a.
Q- You have to wait until the Slip la tied up before you can make connection? -A- Yes, Sir.
0.- Could you jet the molasses without making connection with the tan inch hose? -A- Ho, Sir.
Q- You connect with t±m , what?
A- Hith the ships pipe, 1 have to pump it in the hose.

He goes on further to say that the Steamship Cuba-dist was lost and never heard from and this was admitted by Counsel for plaintiff.

Q- How, Mr, Gasser, the only extra time you .pay these men is the extra day? -A- Yee; for each connection.
Q- Is the payment by the Captain of tan dollars for tying up oharged to the defendant company?
A- Ho, Sir.
Q- In any way? -A- Ho, Sir.
Q- They have nothing to do with it?
A- No, Sir; they have nothing to do with it after i bring them baok, if the ship loft at 3 o'clock, for instance, and the men have to ooms baok, tiiay Just coma baok, tnoy don' t punch the card, they come baok for the purpose of getting ti.eir tan dollars-.
Q- How long is ú snip detained at the wharf to to unload the molasses?
A- It is between 36 and 38 hours.
¡i- So, the arrangement of deceased, Joseph, with the Captain of the Cubadle 6 the night h lost his life, and with the Captains of v prior to his death, so that ho would got ten dollars from the Oaptain for tying and untying ths vaaselt - A — Tea, Sir,

An oxaula&tlon of this rooord fully find "he!3y satisfies ua that this witness, Oauter, told the .m-rorniahad and atoolut-i truths thr.t Jnooc3al nor x.-.y of h) a oo-3.'’■borní-a «i-re at the time of th-> niV.ri'tin; of till* vessel lo fh-i .ai'.ioy cf 3. fend list oca,; <0;/, net or!7 in tbl.: orvoa, but in o.3 3 :ilmil -r c-i-:-s ard It lo i. grnyient osourroaoe, hone, the coro-rn ,-i.tlon «.ot hoa no affect lo thin oi.rUculor ce at:, because the dícersi-d ncr 3:i ■ fallo.. ”:orV".cn '.Tore ¡-cl er.ii>3 oyod by def endr.ns ooKoany v.t the timo síhen thl a unf or tunóte -,u~ cidor.t happened.

Ihn autSiorltlea oitad b7 plaintiff 4U, A. 4 Ü. An, Odiaos. 1294 - 131,073. ha-'o no applioption. It In the irr.'Hrl and net the oonir-ot'.wl 3.1..bill, ty o’ tusar ¡1 33 we31 an t.rpif in!.•?.! por ion i .i.hloh la troctal of In Che oiuptjr of the Ocla entitled, *0:'fc(is.o.¡ v.ni /I olf-m.’--t(S*, end it 13 founded on fv.ilt, ri<)"lic-r.o,.,1 i-'p-.u-lcnoc r.nd pent of ,s\t11, npl penstikutat, , r. act 1.1 >¿.'¿1, mi the ;h3lyst-ion cf the nnrilcir'snt ay 3.ltjry.

*A port:,' cllcfin:; .r.c! c? tr ::l¡,¿r;cc- i;a«.S prop9 the í-cne. fo t’ino’ sl’7 V "3:opal m the cl.'.pic '3i ip - cf a y'ii-S'.’CJc cv rt ?f -.'’.'.lit, jri~ o, ;y ■ :: ...c 1 . ,lu..i >*, ccflf’c

for the reasons heroin ar¡oU,T;cd, It It. mf" adjudged end decreed, th >t the judgment the lc;.or Ciurt ho and the 3-?r.-.c is harsby '> 1 rs.nJ .11tf -l.-; ■ ’Ir t . l-aa-tlfi In both Courts.

Jul;!i.c.c-it Affiriiad.  