Opinion
No. 3601.
January 26, 1953. Rehearing Denied March 19, 1953. Writ of Certiorari Denied April 27, 1953.
APPEAL FROM DISTRICT COURT, PARISH OF EVANGELINE, J. CLEVELAND FRUGE, J.
Davidson Meaux, Lafayette, for appellant.
Anderson Collings, Lake Charles, J. Nilas Young, Eunice, for appellee.
During the night of March 11, 1950, at some time apparently between 2 and 4 a.m., Alexson Courville was attacked and shot by some party or parties unknown; he died within a few hours without regaining consciousness. For about a year prior to this shooting he had been night watchman for the Town of Basile, and during the night of his death had been performing his duties as watchman. The attack and shooting occurred on one of the streets of Basile, not far from the railroad track and depot. No witnesses were ever found, and the crime was never solved. His widow sought compensation for herself and a minor son from Globe Indemnity Company, which company had in force a Standard Workmen's Compensation policy issued to the Town of Basile which was designed to cover all the employees of the town. The insurer denied liability on the ground primarily that the deceased was not an employee but was an official of the town and thus not covered by the provisions of the compensation law, LSA-R.S. 23:1021 et seq. After defendant's exceptions were overruled and the case heard on the merits the trial court rendered judgment for plaintiff, awarding her, for her own use and the benefit of her minor son, $14.35 per week (the amount prayed for) for 300 weeks, plus $300 for burial expenses.
At the time of decedent's death the compensation act contained the following provision relative to coverage of employees or officers of the state and political subdivisions:
"The provisions of this Chapter shall apply to every person in the service of the state or political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or other political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; * * *." (Italics supplied.) LSA-R.S. 23:1034.
This case would probably pose no problem for the layman, for very few would ever think of a night watchman as a public official. However, in legal fields the term "official" or "officer" has been given a very broad meaning; and this has prevailed both outside and in Louisiana. In 1925 our Supreme Court had presented to it the question of whether a policeman in the City of Shreveport was in the service of the city as an employee or as an official. If he was an employee, the compensation act covered him; if he was an official, he was expressly excluded from coverage by the terms of the act quoted above. The court held, Hall v. City of Shreveport, 157 La. 589, 102 So. 680, that the policeman was an officer, and so his widow was not entitled to compensation for his death. One of the deciding factors there was the large volume of authorities from other jurisdictions holding that a policeman holds his position not under a contract between himself and the municipality, but as a trust from the state. Another factor strongly influencing the court was the distinction generally made between functions of a private nature carried on by political entities and functions of a public nature, the former including such activities as operating water works or electric power plants, where the municipality is engaged in business for profit, and the latter including those functions where the municipality acts as agent of the state and becomes representative of sovereignty.
Following the decision in the Hall case, this court in 1937 held that a night watchman or deputy for the town of DeQuincy was an officer rather than an employee, and so not covered by the compensation act. Coleman v. Maryland Casualty Co., La. App., 176 So. 143. There it was found that although the party was called a night watchman, based on the petition his duties were the same as those of a policeman. We said there that the determination of his status was to be based more on the nature of his duties than on the manner of his selection.
We have no quarrel with either of those decisions, based on the particular facts involved in them. The nature of a man's duties is still, we feel, one of the major factors to be considered in determining whether he is an officer or employee. However, there are still other factors to be considered in the decision, as for example, whether the person is by law designated as officer, see Massenburg v. Commissioners of Bibb County, 96 Ga. 614, 23 S.E. 998; Guthrie Daily Leader v. Cameron, 3 Okla. 677, 41 P. 635; whether he took an oath of office, Harrington v. State, 200 Ala. 480, 76 So. 422; Coulter v. Pool, 187 Cal. 181, 201 P. 120; and whether he was required to give bond, McClendon v. Hot Springs Bd. of Health, 141 Ark. 114, 216 S.W. 289. Neither single factor is determinative in itself, not even the question of whether the work done is of a public or private nature. For example, one might be inclined to say that a policeman is an officer for the reason that his function deals directly with protecting life and property and keeping the peace; that might seem to be a sufficient reason for classing him as an official. But in metropolitan centers the police departments are so large that in some instances the departments maintain personnel just to keep the cars and mechanical equipment in good order. The mechanic or "grease monkey", to use a common term, is not a public "officer" just because his work is necessary in enabling the municipality to perform its public function of keeping the peace and protecting life and property.
In West Virginia it was said that one who merely performs duties required of him by a public officer under contract, although his employment be in doing public work, is not himself a public officer, but a mere employee or in some instances a public contractor. State ex rel. Key v. Bond, 94 W. Va. 255, 118 S.E. 276. The supreme court of Mississippi, in McClure v. Whitney, 120 Miss. 350, 82 So. 259, decided that the secretary-treasurer of a small agricultural college who is chosen by the Board of Trustees was an employee as distinguished from an officer because his duties and term of office were not fixed by statute but by the Board of Trustees. In Arkansas it was held that the position of road overseer, created by contract, was an employment and not a public office although provision for the employment was made by statute; see Rhoden v. Johnston, 121 Ark. 317, 181 S.W. 128. The supreme court of Alabama found in Compton v. Marengo County Bank, 203 Ala. 129, 82 So. 159, that a depository which received and paid out public funds and paid the county interest on its obligations, but for which no term of office was provided and no qualifications were prescribed, was not a public officer but a contractee. In Florida the supreme court, State ex rel. Holloway v. Sheats, 78 Fla. 583, 83 So. 508, 509, decided that a rural school inspector was an employee and not an officer, saying that "The term 'office' embraces the idea of tenure, duration, and duties in exercising some portion of the sovereign power, conferred or defined by law and not by contract" and that "All the duties of a rural school inspector are performed 'under the direction and advice of the state superintendent of public instruction to whom reports shall be made as required.' These duties do not constitute the rural school inspectors officers, and the statute does not designate them as officers."
So we feel that neither the Hall case nor the Coleman case, nor any other one particular case, can furnish an absolute or safe guide by which to determine whether or not a given position is an office or an employment. Every case must necessarily be determined by consideration of the particular facts and circumstances involved. And in some instances a correct decision can be reached perhaps only by looking further than was done in either the Hall or the Coleman cases.
In the Coleman case we found that the duties of plaintiff were the same as those of a policeman. But here that is not the case. Dewey Bellon, who was a member of the Town Council before the town ever took out compensation insurance and before Courville was employed, said that Courville was employed as night watchman, that he was hired mostly to watch out for fires, and that if he observed any law violation at night "I expected him to call the Chief of Police" or town marshal. While Courville had authority to make arrests it was only the same authority that every private citizen has and was not conferred on him by virtue of his position. The witnesses who testified on the point had never seen him make an arrest. He did not have a uniform, did not take an oath of office, was not under bond, no commission was issued to him, his duties were not prescribed by statute, and his employment was not for any fixed term. The only factor that tends to class him as an officer was that in his job he had some of the appearances of a night policeman; but that is not enough to distinguish him as an officer rather than as an employee.
Courville had another small job, under separate arrangements, which was to meet two night trains, receive the mail, and deliver it to the nearby post office. Defendant made some effort to show that at the time he met his death Courville was acting within the scope of that job rather than as night watchman, since a mail sack was found near his body. However, he was doing that job before Basile hired him as night watchman; the council knew of that job and did not object to his continuing to handle it, as it was not considered as causing any interference with his duties as night watchman. We entertain no doubt that at the time he was shot Courville was acting within the course and scope of his employment as night watchman and his accident arose out of that employment. If any other rights existed in favor of his widow by virtue of his mail-carrying job that would not enter into the picture here.
For these reasons the judgment of the lower court is affirmed.
This case and the case of Aguillard v. Globe Indemnity Company, La. App., 63 So.2d 452, presents two important questions to me, and counsel for defendant has ably summed up the two questions in his supplemental brief in the Aguillard case. They are as follows:
1. Whether the deceased in the performance of services for the Town of Basile, was excluded from coverage under the Workmen's Compensation Law of Louisiana?
2. Whether a workmen's compensation insurance policy can be extended to include persons not within the coverage of the workmen's compensation law by estoppel or under the theory of "stipulation pour autri"?
I answer the first question in the affirmative, that the deceased was excluded from coverage under the workmen's compensation law of Louisiana, in the performance of services for the Town of Basile as a night watchman or policeman. My basis for that conclusion is first predicated on the fact of paragraph one of Section 1 of act 20 of 1914, which states that it is only applicable to the following:
"Every person in the service of the State, or of any parish, township, incorporated village or city, or other political subdivision, or incorporated public board or commission in this State authorized by law to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the State, or of any parish, township, incorporated village or city, or other political subdivision * * *."
Secondly, that the great weight of authority in the United States as stated by American Jurisprudence, Volume 58, Section 154, under Workmen's Compensation, is quoted as follows:
"Policemen and firemen have generally been held not to be employees, workmen, or laborers, within the meaning and operation of those terms as used in compensation acts, and, therefore not within the coverage of such an act in the absence of any provision requiring their inclusion, although a contrary conclusion has been reached in some cases."
Thirdly, in view of the jurisprudence of the Supreme Court of this state and of this Circuit in the cases of Hall v. City of Shreveport, 157 La. 589, 102 So. 680, and Coleman v. Maryland Casualty Company, La. App., 176 So. 143, wherein it was held that a policeman and/or night watchman was an official and thereby expressly excluded from the operations of the act. It appears that, without a quote, nevertheless, in these two cases, the Supreme Court, as well as this court followed the greater weight of authority in the United States in declaring that a policeman was an official and therefore not within the coverage of the Workmen's Compensation Act.
It is to be remembered that the Supreme Court in the Hall case, which was handed down in 1925, specifically called to the attention of the Legislature that this was a question for the Legislature and not for the judicial department of the government and that if the Legislature intended policemen to be covered in the Workmen's Compensation Law of Louisiana, that it was the duty of the Legislature to so bring them within and under the act. It was not until 1950, after the death of these officials, that the Legislature saw fit to so revise or amend the Workmen's Compensation Law of this state, so as to provide that the members of the police department, who were not elected officials shall be covered by the law and shall be eligible for compensation. Therefore, during this 25 year interval or period of time, the law of this state, by Legislative enactment, as well as, by jurisprudence, pronounced and interpreted by the Supreme Court of this state, as well as our court, provided that policemen and/or night watchmen were not covered under the Workmen's Compensation Act of Louisiana. This is borne out by the very revision, which took place in 1950, because it was then for the first time that the Legislature acted upon the subject matter after the Hall case and it is for these reasons that I contend that the deceased in these cases were excluded from coverage under the act.
With reference to the second question, I next quote Paragraph 4 of Section 1, of Act 20 of 1914, which is as follows:
"An employer and any employee in a trade, business or occupation not specified in paragraph 2 of this Section and anyone engaged in a trade, business, or occupation that may not be determined to be hazardous under the operation of paragraph 3 of this Section, may, prior to the accident, voluntarily contract in writing to come under the benefit and protection of the provisions of this act with the same force and effect as though they had been specifically included instead of omitted."
According to this paragraph, any employer and employee who did not come under the provisions of paragraph 2 or 3 of section 1, could contract in writing to come under the benefit and protection of the act. You will note, however, in this particular paragraph that it made no mention or reference whatsoever to paragraph 1 as hereinabove quoted, dealing with persons employed by the state and political subdivisions. There might be some question as to whether or not they would have a right to enter into such a written contract and agreement to come under the provisions of the act, but assuming for the sake of argument, that they did have a right to so contract, that would have to be a contract in writing between the employer and employee to come under the act. I fail to find any such contract between the Town of Basile and the deceased in this record.
The big factor to be remembered in this case is the fact that officials are specifically excluded from the operation of the act and their employment is not considered to be hazardous and the only way under which that relationship can be considered hazardous is if it is provided in the act specifically or it is made so by other provisions of the act or it is made such by written agreement.
It is to be remembered that the Workmen's Compensation Act is an act of the Legislature, dealing with hazardous employment and that if the employee is injured while working for an employer whose trade, business or occupation is hazardous and during the scope of his employment, he then has a right and cause of action against his employer for compensation. The act further provides that in Section 23, if the employer provides workmen's compensation insurance, that the policy shall be construed to be a direct obligation by the insurer to the person entitled to compensation and enforceable in his name. Therefore, as was stated by the Supreme Court in the case of Benjamin v. Standard Accident Ins. Co. of Detroit, 152 La. 874, 94 So. 428, that if the injured employee had no right of action under the compensation act, against the employer, he had none against the surety of the employer. I don't believe it can be contended that the deceased or his dependents have a right of action against the Town of Basile.
I do not believe that the mere collection of premiums as was done in this case by the insurance company, and the specifically naming of the class of policemen in the schedule attached to the insurance policy or the employee believing he to be covered by such a policy creates a written contract, between the employer and employee as to come under the provisions of the act. Nor do I believe such facts to be an estoppel against the insurer and thereby bar them from pleading that the employment was not hazardous and did not come under the act and thereby extend coverage to include persons specifically excepted and excluded from the Workmen's Compensation Law of Louisiana.
This is very forcibly brought out in the case of Franz v. Sun Indemnity Co. of New York, La. App., 7 So.2d 636; Prater v. Sun Indemnity Co. of New York, La. App., 38 So.2d 663; Fields v. General Casualty Co. of America, La. App., 36 So.2d 843; Rutland v. General Accident, Fire and Life Assurance Corporation, La. App., 200 So. 486. From the reading of these cases, I am therefore of the opinion that a Workmen's Compensation policy can not be extended to include persons not within the coverage of the Workmen's Compensation Law by estoppel.
Plaintiff advances the theory that there is a stipulation "pour autri" involved here, based on the following clause of the insurance policy, to wit:
"This contract is made for the benefit of such employees or such dependents and is enforceable against the company, by any such employee or such dependent in his name or on his behalf at any time and in any manner permitted by law."
It is to be remembered that the insurance company in a workmen's compensation policy, merely stands as the surety for the employer and is only required to pay if the employer is required to pay. I note in provision 1(a) of the policy, the following:
"To pay promptly to any person entitled thereto under the Workmen's Compensation Law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as may become due,
(1) To such person because of the obligation for compensation for any such injury imposed upon or accepted by this employer under such of certain statutes, as may be applicable thereto, cited and described in an endorsement attached to this policy, each of which statutes is herein referred to as the Workmen's Compensation Law; * *"
You can therefore see that a workmen's compensation insurance policy merely protects the employer for whatever claims and demands made upon him by virtue of the act. The clause hereinabove first quoted from the policy, which gives plaintiff some comfort in his contention of "stipulation pour autri" is nothing more than a restatement of Section 23 of Act 20 of 1914, which provides that if the employer obtains a workmen's compensation insurance policy, that such policy must be construed to be a direct obligation by the insurer to the person entitled to compensation and enforceable in his name. That is a provision which the Legislature has placed in the act and all workmen's compensation policies, written in the State of Louisiana, are then burdened with this provision which gives the injured employee or his dependents a direct action against the insurance company. The provision in the policy as hereinabove first quoted, which gives counsel for plaintiff some comfort is not a provision which the employer and insurance company placed in the policy for the benefit of third parties or for the benefit of any employee, but is a provision made mandatory by the Legislature. This provision of the Workmen's Compensation Law is part and parcel of the policy, regardless as to whether or not the employees of the employer assented to, accepted it or what not.
Therefore for the above and foregoing reasons, under the facts as found in this case, I do not believe that a workmen's compensation policy can be extended to include persons not within coverage of the Workmen's Compensation Law by the proposed "stipulation pour autri" as herein asserted by counsel for plaintiff.
For the above and foregoing reasons, I hereby respectfully dissent from the majority.