Opinion
No. 32495.
March 22, 1937. Suggestion of Error Overruled May 5, 1937.
1. APPEAL AND ERROR.
Determination of Mississippi Supreme Court on former appeal that plaintiff had no cause of action under the United States Seamen's Act held not law of case, since Mississippi Supreme Court is an intermediate and not a final court of appeal as to federal questions (Seamen's Act of 1915, section 20, as amended, and section 10, 46 U.S.C.A. sections 688 and 713).
2. SEAMEN.
Second mate on dredge boat engaged in cutting a new channel for the Mississippi river, who was injured while at work thereon, held not entitled to recover from his employer under the United States Seamen's Act (Seamen's Act of 1915, section 20, as amended, and section 10, 46 U.S.C.A. sections 688 and 713).
3. WORKMEN'S COMPENSATION.
Cause of action in favor of employee of Louisiana corporation employed in Louisiana as second mate of dredge boat owned and operated by corporation, for injuries sustained while at work on barge on Mississippi river in Mississippi, held controlled by Louisiana Workmen's Compansation Law, and hence no cause of action existed under the common law (Act La. No. 20 of 1914, as amended).
4. WORKMEN'S COMPENSATION.
Employee's action against employer, based on Louisiana Workmen's Compensation Law which was set up by way of amendment in employee's suit against employer based on cause of action under the United States Seamen's Act more than one year after cessation of payments by employer to employee, held barred by Louisiana one-year period of limitations, since amendment brought in an entirely different cause of action from that of the original declaration (Act La. No. 20 of 1914, section 31, as amended by Act No. 29 of 1934; Seamen's Act of 1915, section 20, as amended, and section 10, 46 U.S.C.A. sections 688 and 713).
APPEAL from chancery court of Adams county. HON. R.W. CUTRER, Chancellor.
Brandon Brandon, of Natchez, for appellant.
Is not the complainant appellee now precluded from further asserting in the trial court or this court the cause of action by him averred and asserted upon in the first paragraph or count of his bill of complaint, and can further consideration be now given to that asserted cause of action in view of the former adjudication herein rendered by the Supreme Court of Mississippi in this cause wherein it was held that the Seamen's Act relied upon is not the applicable law of this case; and is not, therefore, the complainant appellee precluded from asserting any cause under said Seamen's Act as set forth in said first paragraph or count to the bill of complaint by the law of this case? Therefore, should not the appellant's first special plea to said first count have been by the chancery court of Adams county, Mississippi, sustained and did not that court err in overruling the same?
The question here presented is, shall this defendant be required to litigate once more and all over again the same question which has already been by this court on the former appeal fully decided, adjudicated, and determined?
Orleans Dredging Co. v. Frazie, 173 Miss. 882, 161 So. 699.
In determining this question the court will, of course, consider the record which was before this court on the former appeal, and, so accordingly, by stipulation that record has by agreement of the parties been made a part of the record on this appeal, and that record is binding upon the appellee.
In the case of Hart v. Chemical National Bank, decided by the Supreme Court of Mississippi, and reported in 27 So. 926, this court held that in determining whether or not an issue has been previously adjudicated, the Supreme Court will be governed by the record in such previous trial.
We respectfully submit to the court that the former decision of the Supreme Court in this case that the appellee is not entitled to any relief under and by virtue of the provisions of the Seamen's Act of Congress, Sec. 688, Title 46, United States Code Annotated, is binding and controlling upon the appellee, upon the appellant, upon the court below, and upon this court. This rule is well settled in this jurisdiction and generally throughout the country.
New York Life Ins. Co. v. McIntosh, 46 So. 401; Kellogg v. King, 114 Miss. 375, 75 So. 134; Johnson v. Success Brick Mfg. Co., 104 Miss. 217, 62 So. 4; Reed v. Norman Breaux Lbr. Co., 149 Miss. 395, 115 So. 724; McDonald v. Green, 17 Miss. (9 S. M.), 138; Pennington v. Purcell, 155 Miss. 554, 125 So. 79; Commercial Bank Trust Co. v. Dendy, 149 Miss. 512, 115 So. 591.
Not only is the appellate court bound by its former decision in a case, but even more so is the lower court to which the cause has been remanded.
Smith v. Elder, 22 Miss. (14 S. M.) 100; Abbey v. Commercial Bank, 34 Miss. 571, 69 Am. Dec. 401; Wilkes v. Coopwood, 39 Miss. 348; Martin v. Lofland, 18 Miss. (10 S. M.) 317; I.C.R. Co. v. Jordan, 108 Miss. 140, 66 So. 406; Cochran v. Latimer, 111 Miss. 192, 71 So. 316; Dickerson v. Western Union Tel., 114 Miss. 115, 74 So. 779; Commercial Union Fire Ins. Co. v. Kelly, 115 So. 400; Board of Suprs. of Grenada v. State, 144 Miss. 704, 111 So. 143; Fair v. Federal Land Bank, 165 Miss. 513, 146 So. 303.
Under our statutes and the entire jurisprudence in this state with reference to appeal and error, it is mandatory that the court below comply with the mandate of the Supreme Court when causes are remanded, and that the trial below be conducted in accordance with the holdings of the Supreme Court.
Unless it appear of record, tested by the law of the State of Louisiana under the Workmen's Compensation Act of that State "that appellant employer has not complied with the requirements of the Louisiana Compensation Law," and unless it appear of record, so tested by the Louisiana Law "that the appellant has not qualified under the Louisiana Compensation Law in such manner as to be entitled to avail of it as the law applicable to this case" (see Orleans Dredging Co. v. Frazie, 161 So. 699, at page 701, paragraphs 3 and 4) then it is the law of this case under the prior decision herein rendered by the Supreme Court of Mississippi that the appellee's rights are admeasured by the law of Louisiana and he has and can maintain no cause of action, ex delicto, under the law of Mississippi applicable in cases of tort.
The whole test as to whether any contract of employment entered into in the State of Louisiana be governed by the provisions of the Workmen's Compensation Act is that the occupation, trade, and business of the employer be directly or incidentally one of those defined as hazardous in the act.
Hall v. City of Shreveport, 157 La. 589, 102 So. 680; Hargis v. McWilliams Co., 9 La. App. 108, 119 So. 88.
On the first appeal of this cause this court very correctly held in discussing this very proposition that any doubt as to whether the remedy of the employee injured within Mississippi is under the foreign compensation law or state law should be resolved in favor of the Compensation Law, and, further, that the presumption, in the absence of a positive showing to the contrary, is that the employer had in everywise complied with the provisions of the Louisiana Law so as to make its contracts of employment be governed by the provisions of the compensation law.
Orleans Dredging Co. v. Frazie, 173 Miss. 882, 161 So. 699.
Given a contract of employment entered into in the State of Louisiana for work to be performed by the employee in the business, trade, and occupation of the employer, and that business, trade, or occupation by one of those defined as hazardous under the Workmen's Compensation Law, then the contract is governed by the Louisiana Law and the parties impliedly contract with reference thereto. The only manner or means of taking the contract of employment out of the provisions of the act is by a stipulation in writing by either of the parties to the other to be given not less than thirty days before the occurrence of any given injury. In the absence of such stipulation the compensation law does apply.
That it is the occupation of the employer (being one of those defined as hazardous) that determines the applicability of the Louisiana statute to the contract of employment, and any injury which may be sustained by the employee in the course of his employer's occupation, trade, or business, has many times been determined by adjudications of the courts of Louisiana.
Kern v. Southport Mill, 174 La. 432, 141 So. 9; Tregre v. Kratzer, 148 So. 271.
We submit that it being constantly shown by the complainant's own pleading aside from other portions of the record herein that the defendant appellant had qualified with the provisions of the act of Louisiana so as to be entitled to avoid of it as the law applicable in this case, the appellant's Twelfth Special Plea to the second count of complainant's bill should have been sustained.
In the case of Moss v. Levin, 10 La. App. 149, it was held that under sections 17 and 18 of Act 85 of 1926, a suit is prematurely brought which does not allege that the employer has refused to pay the "maximum percentum of wages to which petitioner is entitled under the provisions of the act."
In the case of Chafin v. Meridian Lbr. Co., 12 La. App. 73, it was held that where the plaintiff alleges an amicable demand for payment without avail, but on the trial of the case admitted that he had made no demand for compensation, the suit is brought prematurely under Act 85 of 1926, Sec. 18 B, and must be dismissed.
Herein this complainant would certainly not be entitled to demand lump sum settlement under the averments of his bill by reason of the provisions of section 33 of the Act, for in Jackson v. Young, et al., 6 La. App. 854, it was held that section 33 of Act 20 of 1914, requiring a lump sum settlement by reason of defendant's failure to pay six installments as they became due, applies only when such failure occurs after judgment is rendered.
We therefore submit that from the facts and pleadings of record here, complainant's demand as set forth in the third paragraph or count of the bill is premature and, therefore, that this appellant's first special plea to the third count should have been sustained.
By section 31 of the Workmen's Compensation Law of Louisiana as amended by Act 85 of the Session Acts of 1926, and as in force at the time the contract of employment was entered into, and at the time complainant sustained his alleged injury, it is provided: "Section 31. Be it further enacted, etc., That in case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death of (sic) the parties shall have agreed upon the payments to be made under this act or unless within one year after the accident, proceedings have been begun as provided in sections 17 and 18 of this Act. Where, however, such payments have been made in any case, said limitations shall not take effect until the expiration of one year from the time of making the last payment."
The record herein discloses that the complainant sustained his alleged injury on the date of August 2, 1934.
When this suit was originally instituted the appellee alleged only upon the statutory right ex delicto based upon the Seamen's Act of Congress, Sec. 688, Title 46, United States Code Annotated. Nowhere in the original declaration was there any claim or demand asserted under the provisions of the Workmen's Compensation Law of Louisiana.
It was not until the 21st day of February, 1936, that the appellee made any judicial claim or demand for compensation for his alleged injury under the Workmen's Compensation Law of Louisiana, and that was by motion for leave to file additional counts to the original declaration. It was not until the 6th day of April, 1936, that an additional count was filed to the original declaration whereby the appellee sought to recover compensation under the provisions of the Workmen's Compensation Law of Louisiana, such being filed in the circuit court of Adams county, Mississippi, and it was not until the 21st day of May, 1936, that the appellee filed his bill of complaint herein in the chancery court of Adams county, Mississippi.
We, therefore, submit that because of complainant's delay in commencing his proceedings under the act as provided in sections 17 and 18 thereof, the complainant is now barred from asserting any right to compensation under the Louisiana Law by virtue of the provisions of section 31 of the act.
Louisville N.R. Co. v. Dixon, 168 Miss. 14, 150 So. 811; Travelers Ins. Co. v. Inman, 138 So. 339; Ford, Bacon Davis v. Volentine, 64 F.2d 801.
Engle Laub and Whittington Brown, all of Natchez, and Watkins Eager, of Jackson, for appellee.
The law of the case is not applicable to an action brought on the Seamen's Act of Congress.
In re Cole's Estate v. Receiver, 119 Miss. 789; Bates v. Strickland, 139 Miss. 636; Newman v. Delta Grocery Co., 144 Miss. 877; Haynes v. Haynes, 98 Miss. 830; Lumber Co. v. Thorn, 171 Miss. 783; United Dredging Co. v. Lindberg, 18 F.2d 453; Carlin Const. Co. v. Heaney, 81 L.Ed. 16; Arizona v. Anelich, 80 L.Ed. 715.
The appellee's right of action under the Louisiana Compensation Law is not barred by the one-year statute of limitation.
Broom v. So. Ry. Co., 115 Miss. 493; Clark v. Railroad Co., 132 Miss. 627; Floyd v. Vicksburg Cooperage Co., 156 Miss. 567; Easter v. Riley, 79 Miss. 625; National Park Bank v. Land Co., 105 La. 234; Henderson v. Mayer, 126 So. 531; Philps v. Guy Drilling Co., 79 So. 549; Keith v. Railroad Co., 129 So. 191; Keith v. Railroad Co., 132 So. 223; Travelers Ins. Co. v. Inman, 167 Miss. 288; Railroad Co. v. Dickson, 168 Miss. 14; Railroad Co. v. Wulf, 57 L.Ed. 355; Railroad Co. v. Kinney, 260 U.S. 340.
The court below did not commit error in overruling appellant's first special plea to count three.
Appellants, in their first special plea to count 3 of appellee's declaration, took the position that although, if there was any liability, the Workmen's Compensation Act applied, that still plaintiff could not recover since plaintiff did not allege in said Count 3, based upon the Louisiana Workmen's Compensation Act, that appellant had refused to pay the maximum amount due under said act. That this position cannot be sustained is clear from a reading of the pleadings in the case. The pleadings show that prior to the amendment of the original declaration so as to seek recovery directly under the Workmen's Compensation Act, a suit under the Seaman's Act had been filed for damages. That the defendant plead thereto that the remedy was under the Louisiana Workmen's Compansation Act. That, however, no payments thereunder were tendered with this plea or later. This was an allegation of fact showing that the employer knew of the injury, knew that the employee was claiming compensation therefor, knew that the Louisiana Compensation Act was applicable and still failed to tender or make payment thereunder, even after the judgment of the lower court conclusively proved that there was liability.
Furthermore, the pleadings show that even prior to the filing of the first suit, defendant paid plaintiff the maximum percent of wages to which he was entitled for sixteen weeks and then stopped such payment. Such payment was a recognition of liability. The cessation of such payment amounted to a refusal to continue to pay the maximum percent of wages to which petitioner was entitled.
Ackerson v. National Zinc Co., 153 P. 530; Conway v. Indus. Board, 118 N.E. 705; Clark v. Forest Lbr. Co., 120 So. 88; Gailey v. Peet Bros., 157 P. 431; Rawls v. Brown Paper Mill Co., 164 So. 639; Clark v. Alexandria Cooperage Co., 102 So. 96; Smith v. Butler, 7 La. App. 339; Pierre v. Barringer, 88 So. 691; Floyd v. Vicksburg Cooperage Co., 156 Miss. 567; Moss v. Levine, 119 So. 558; Chapin v. Meridian Lbr. Co., 125 So. 483; Griffith's Chancery Practice, sec. 332; Floyd v. Vicksburg Cooperage Co., 156 Miss. 567.
Argued orally by Gerard Brandon, for appellant, and by W.H. Watkins and S.B. Laub, for appellee.
This is an appeal from the chancery court of Adams county to settle the principles of the case.
The appellee is a citizen of the State of Louisiana, and the appellant is a corporation chartered by that state. The appellee was employed in Louisiana by the appellant as a second mate on a dredge boat owned and operated by the appellant, and while at work thereon, engaged in cutting a new channel for the Mississippi river in Adams county, Miss., he was injured. He sued the appellant for this injury in the circuit court of Adams county, alleging a cause of action under the United States Seamen's Act, sections 688, 713, title 46 U.S.C.A., and procured a judgment therefor. On appeal to this court this judgment was reversed, the court holding that the appellee had no cause of action under that statute, but intimating that the appellee might have a cause of action under the Louisiana Workmen's Compensation Law (Act No. 20 of 1914, as amended). Orleans Dredging Co. v. Frazie, 173 Miss. 882, 161 So. 699. On the return of the case to the circuit court, the appellee amended his declaration by adding two counts thereto, one based on liability at common law, and the other on the Louisiana Workmen's Compensation Law. On motion of the appellant the case was then transferred by the circuit court to the chancery court of Adams county, wherein the appellee reformed his pleading so as to conform to the chancery court rules therefor by filing a bill of complaint setting forth his claimed causes of action under the United States Seamen's Act, the common law, and the Louisiana Workmen's Compensation Law; each cause of action being set forth in the bill of complaint by separate paragraphs.
The appellant answered this bill of complaint, including therein general and special demurrers, exceptions, and special pleas, which were set down for hearing before the consideration of the merits of the case, and the appeal is from a decree overruling them.
The questions thus presented are: (1) The right of the appellee to join his three alleged, and said by the appellant to be conflicting, causes of action in one bill of complaint; and (2) whether the appellee can recover on any of his asserted causes of action. It will not be necessary for us to decide the first of these questions, for we have arrived at the conclusion that the appellee cannot recover on any of the alleged causes of action.
On the former appeal, as hereinbefore stated, this court held that the appellee has no cause of action under the United States Seamen's Act. While it is true that that decision is not within the law of the case rule, for the reason that as to federal questions this court is an intermediate and not a final court of appeal, nevertheless we are not prepared to say that the former decision is not correct, and therefore we will abide thereby.
It is clear from the bill of complaint that the appellee's cause of action, if not controlled by the United States Seamen's Act, arose under and is controlled by the Louisiana Workmen's Compensation Law, and therefore he has no cause of action under the common law.
Section 31 of the Louisiana Workmen's Compensation Law (Act No. 20 of 1914, as amended by Act No. 29 of 1934) provides: "That in case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties shall have agreed upon the payments to be made under this act or unless within one year after the accident proceedings have been begun as provided in sections 17 and 18 of this Act. Where, however, such payments have been made in any case, said limitations shall not take effect until the expiration of one year from the time of making the last payment."
After the appellee was injured the appellant made him payments therefor, which we will assume were made under the provisions of the Louisiana statute, but more than a year had elapsed after the cessation of these payments, and therefore, of course, after the appellee sustained his injury, before the appellee's declaration in the circuit court was amended so as to bring his complaint within the Louisiana Workmen's Compensation Law. This amendment did not merely extend the allegations of the declaration by setting forth new incidental facts pertinent thereto but "changed the original picture" portrayed therein, and for the first time brought into the case an entirely new and different cause of action, the ground of, and the recovery on, which are entirely different from those of the original declaration. The one-year limitation in the Louisiana Workmen's Compensation Law therefore controls, and the appellee's cause of action thereunder is barred. This is in accord with our past decisions, particularly with Illinois Cent. R.R. Co. v. Wales, 171 So. 536.
Reversed and remanded.