Under a liberal construction of the Workmen's Compensation Law (Act No. 20 of 1914, as amended), I think the facts in this case justify an award to plaintiff of compensation. My reasons for reaching a different conclusion from that of my associates are as follows:
The defendant Fleming, a stevedore operating under the Shipside Warehouse Company, had a contract to load the ship Queen City, which arrived in the port at Lake Charles on Sunday June 30, 1935. The ship was to be loaded with scrap iron consigned to a Japanese firm. Fleming had contracted with the Louisiana Longshoremen's Association (hereafter referred to as the L. L. A.) to furnish the labor for loading the ship. At the time there was another organization of longshoremen operating at the Lake Charles port known as the International Longshoremen's Association (hereafter referred to as the I. L. A.).
It appears that there was some rivalry between these two organizations as the I. L. A. had called a strike or lockout effective July 1, and the L. L. A. was an independent organization, willing to continue work in the face of the strike order. The inference to be drawn from the record is that the L. L. A. was favored by the *Page 375 stevedores who were anxious to continue work at the port. In any event, Fleming had contracted with the L. L. A. to load the ship, and it is manifest that Fleming was familiar with the situation at the port on account of the strike order issued by the I. L. A.
It was understood that the stevedore desiring work done by the longshoremen would give notice at least two hours before the work was to begin to the business agent of the organization. Abe Knight was the business agent of the L. L. A., and on Saturday, June 29, Fleming advised Knight that this vessel would shortly arrive and to notify the men in order to have them ready. The ship did not arrive until Sunday noon the following day. In the meantime, however, Knight had called a general meeting of the L. L. A. for Sunday morning at 10 o'clock. At that time most of the members, including plaintiff, met in order to get their instructions. In view of the fact that the rival organization had called a strike or lockout for July 1, and in order for the members of the L. L. A. to be on the docks ready to begin loading the vessel before the I. L. A. began picketing, it was decided to have all members of the L. L. A. on the docks at 6 o'clock Sunday evening June 30th, and stand by for work orders. About 281 members, including plaintiff, reported at the docks Sunday evening as instructed. Most of the members understood that they would not be ordered to work until the following morning, July 1st, between 7 and 8 o'clock.
The men were to be worked in three-hour shifts and the practice was to divide them into gangs with a foreman for each gang. From 12 to 18 would have been used in each gang on this ship, with about two gangs, or a total of 25 or 30 men working during each of the three-hour shifts. This arrangement was familiar to Fleming and he consented to it, if he did not suggest it. The reason for this division of the men into three-hour shifts was in order to divide the work and to keep fresh men on the job at all times. Plaintiff was shot about: 5:45 o'clock Monday morning, about an hour and a quarter before work was to begin, if it was to begin at 7 o'clock, or about two and a quarter hours before work was to begin, if it was to begin at 8 o'clock. It is admitted that plaintiff is totally disabled because of the injury, at least up to the time of the trial.
The principal question raised by the defense is whether or not plaintiff was injured while engaged as an employee of Fleming in loading, or in preparing to load, the ship under the contract with the organization to which plaintiff belonged. Under this contract between Fleming and the L. L. A., there can be no question but that Fleming invested the business agent of the organization with the power to select the employees from the members of this organization who, when they were selected and had entered upon their employment, were just as much the employees of Fleming as though he has employed them himself. Section 6 of Act No. 20 of 1914, as amended by Act No. 85 of 1926. The business agent was given the implied authority to hire men for Fleming in loading this ship, as the arrangement between Fleming and the L. L. A. contemplated that only members of this organization would be employed, and the business agent was the person by whom the men were selected.
There is considerable dispute as to whether or not Fleming suggested that all the members of the L. L. A. be at the docks Sunday evening. Knight testifies that Fleming suggested that he bring all the men out Sunday evening; Fleming denies this. However, I am satisfied that the men were out on the docks Sunday evening with the consent and approval of Fleming, if not at his suggestion. Fleming gave orders to Knight on Saturday to have the men ready for work when the ship came in. Knight says that on Sunday afternoon about 3 o'clock Mr. Horace Austin told him to have the men out at the docks at 7 o'clock Sunday evening and stand by for orders. Now I am satisfied that Austin was looking after the interest of Fleming and directing the work for him. Knight testified that he was directed by Austin Sunday afternoon over the telephone to bring the men down and carry them to shed No. 5. Knight further testified that both Fleming and Austin told him that the docks would be picketed by the I. L. A. on July 1st; that he (Knight) should bring his men out Sunday evening; that there would be guards to protect them.
The district attorney, Mr. Robira, and the sheriff, Mr. Reid, went to Fleming's home about 4 o'clock Monday morning, July 1st, to ask Fleming to get the men *Page 376 out of the docks as they feared trouble. Fleming agreed to meet them at the docks in a few minutes, but wanted to see some one else before doing anything. Mr. Robira says that the person Fleming wanted to see was Austin. Why did Fleming want to see Austin, if Austin did not have anything to do with the matter?
Both Mr. Robira and the sheriff considered that Fleming and Austin were the ones to consult in getting the men off the docks. Moreover, when Fleming reached the docks that morning between 4 and 5 o'clock, just before plaintiff was shot, he went directly to the office of Austin on the docks, and after talking to Austin for a few minutes, called in the district attorney and the sheriff, and in the conversation that followed Austin did the talking for Fleming when it was agreed that work would not begin until noon Monday. Robira and the sheriff told the leaders of the I. L. A. what had been agreed to by the other side, but the I. L. A. wanted the L. L. A. to leave the docks. The district attorney and the sheriff came back to convey this proposition to Fleming, but Fleming had left, and they spoke to Austin with whom they had first talked in the presence of Fleming. Austin refused to have his men leave the docks, saying, according to the district attorney: "We are ready for them — Let them come."
The sheriff says in his testimony that Mr. Mayo represented the I. L. A. and Mr. Fleming represented the L. L. A. at the meeting early Monday morning. In other words, we have the statement of the sheriff that Fleming was not only the person that he dealt with as having authority to postpone work on the ship, but also as the person who represented the members of the L. L. A. who had come out and were ready to begin work at 7 or 8 o'clock Monday morning. The sheriff says that Fleming and Austin both agreed to wait until 12 o'clock before beginning work; that both of these men spoke with equal authority in the matter. When the sheriff and the district attorney had come back to Austin's office after getting the proposition from the I. L. A. to remove the L. L. A. from the docks, Fleming was gone, but Austin, evidently speaking for Fleming as he had done before, said: "We have the position and the defenses and to Hell with them; we are going to hold what we have got."
It is interesting and important to know why Austin was down at the docks that morning and whom he was representing. He says that he was there to look after the interests of the Lake Charles stevedores who had some property and an office on the docks. But why was he so much interested in keeping the members of the L. L. A. on the docks and why was he so active in speaking and acting for Fleming? Why did he assume so much authority to speak for Fleming, if he had nothing to do with his affairs? Why did Fleming go to Austin before discussing anything with the district attorney and the sheriff about removing the men? What made these two officers who had no interest in the matter other than to preserve peace consult Austin as well as Fleming? Austin was not a member of the L. L. A., nor did he claim to be representing the L. L. A. except in his anxiety in seeing that the men were kept on the docks to hold the advantage which they had over the members of the striking union.
The only conclusion to be drawn from the facts is that Austin was there advising with and for the interests of Fleming just as Knight had said that he was and just as the district attorney and the sheriff thought he was. Austin denies that he had told Knight to have the men down at the docks Sunday night. He also denies that he told the district attorney and the sheriff that he was not going to remove his men (the L. L. A.) from the docks. But I prefer to believe the testimony of these two officers rather than that of Austin on this point.
Knight testified that Fleming had told him that there would be guards to protect the men and suggested that none of the men bring guns. Fleming denies making such a statement. It is significant and important to note, however, that a witness, Mr. Thibodeaux, one of the men called out, testified that Fleming was out on the docks about five or ten minutes before plaintiff was shot, and Fleming came out where witness was and called for the guards; that there were three guards there and Fleming told the men to hold the lines and not let anybody come in. Another witness, Hewitt, testified that Fleming told him just a few minutes before the shooting to stand by and wait for orders to go to work. Fleming did not tell the men to go home.
In the light of this evidence and the circumstances and conditions existing at the time, I am satisfied that these men, including plaintiff, were out on the docks early *Page 377 Monday morning with the consent and approval of Fleming; that they were there in order to begin loading the vessel at 7 or 8 o'clock that morning in accordance with the contract between Fleming and the L. L. A. Furthermore, I am also satisfied that the full membership was out to meet the emergency and to keep the shifts going in the face of the strike order of the I. L. A.
In any event, plaintiff and the other men were there ready to begin work. They were allowed under the contract two hours free time before beginning work. If the men were to begin work at 7 o'clock, plaintiff was injured within this two-hour period; if they were to begin work at 8 o'clock, under the circumstances, it was not an unreasonable time for plaintiff to be on the docks ready for work when he was injured just before 6 o'clock. It was necessary for him and the other men to be there before the I. L. A. blocked the entrance with pickets.
It is true that plaintiff was not paid any wages nor had he actually begun work. But it is not necessary in order for an employee to recover compensation that he actually be at work when injured, or that the injury occur during the work period. If the circumstances are such that the employee is on or about the premises where the work is to begin and is ready to begin work, and if he is under the control of the employer or his agents and the injury occurs within a reasonable time before actual work is begun, and while the employee is doing something in the interest of the employer by reason of which the employee is subjected to greater hazards than the general public, the injury is compensable.
In this case, plaintiff was on the premises ready for work under an employment made with defendant through the organization to which plaintiff belonged, and plaintiff was there with the implied, if not the express, consent and approval of the defendant to carry out the employment. The fact that plaintiff had not actually been selected for one of the gangs is immaterial. The gangs were being made up for work and under the arrangements between defendant and the L. L. A. plaintiff was ready to be called on one of the three-hour shifts. His wages were already fixed in the contract, and the hours and the class of work to be done were agreed upon, through the organization to which plaintiff belonged and the defendant.
The exigencies of the situation required plaintiff and the other men to be on the premises before the picketing of the other organization began. Plaintiff was subjected to unusual hazards because of the situation, and as he was shot while on the premises and by reason of his exposure to extra hazards, not common to the public at large, in attempting to serve the employer, he is entitled to compensation. Ivory v. Philpot Const. Company (La.App.) 145 So. 784; Malky v. Kiskiminetas Valley Coal Company, 278 Pa. 552, 123 A. 505, 31 A.L.R. 1082.
I therefore respectfully dissent.