Allen v. Travelers Ins. Co.

• Decision Date: 15 November 1960
• Docket Number: No. 5105,5105
• Parties: Robert L. ALLEN v. TRAVELERS INSURANCE COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 367

124 So.2d 367

Robert L. ALLEN v. TRAVELERS INSURANCE COMPANY et al.

No. 5105.

Court of Appeal of Louisiana, First Circuit.

Nov. 15, 1960.

Jos A. Gladney, Baton Rouge, for appellant.

Taylor, Porter, Brooks, Fuller & Phillips, Frank W. Middleton, Jr., Baton Rouge, for appellee.

Before ELLIS, LOTTINGER, JONES and LANDRY, JJ.

LANDRY, Judge.

This case is before us on appeal from the judgment of the trial court sustaining defendant's exception of no cause of action levelled at plaintiff's petition seeking recovery of benefits under the Workmen's Compensation Laws of this state for injuries allegedly received in the course of plaintiff's employment as a stock room clerk by defendant D. R. Ourso, doing business as Ourso and Company, operator of a retail department store consisting of grocery, hardware and dry goods department with a warehouse in connection therewith.

In his petition, as supplemented and amended, plaintiff alleges defendant's business to be hazardous for the following reasons: (1) It constitutes operation of a 'warehouse' as defined in our compensation law, more particularly LSA-R.S. 23:1035 which expressly classifies the operation of a warehouse as a hazardous undertaking; (2) In the course of plaintiff's principal duties (consisting of working in defendant's warehouse) plaintiff is frequently required to use a hand cart or 'dolly' (a two wheeled, hand operated contrivance designed to assist in the moving of heavy, bulky objects); (3) Plaintiff's duties frequently require that he load and unload merchandise from defendant's trucks into and from defendant's warehouse as well as load trucks for deliveries to be made to customers all of which necessitates his frequent contact with such motor vehicles and his working in close proximity thereto (it is not alleged, however, that plaintiff is required to operate or ride in or upon said trucks); (4) Plaintiff's duties necessitate use of a dangerous instrumentality, namely, a 'case cutter', a device alleged to consist of a handle into which a razor blade may be inserted in such manner that one-quarter of an inch of the blade protrudes therefrom as a cutting edge for opening cartons of merchandise; (5) That plaintiff was exposed to traffic hazards inasmuch as his duties require carrying packages from defendant's store to customer's automobiles in a parking lot situated across the street from defendant's establishment and (6) That in using the hand cart or 'dolly' plaintiff is required to lift, handle and move about extremely large objects of considerable weight and bulk all of which entails extremely arduous physical exertion. Alternatively, plaintiff pleads estoppel against defendant Travelers Insurance Company predicated upon Act 495 of 1958 (LSA-R.S. Title 23:1166) which stipulates that an insurer issuing a policy of insurance to an employer covering claims for injuries to employees arising within the scope of the employer's business is estopped to deny liability thereunder on the ground the employment was not hazardous.

In considering first the plea of estoppel interposed by learned counsel for plaintiff against defendant Travelers Insurance Company, we note the petition avers the accident sued upon occurred July 20, 1954, on which occasion a case of Clorox plaintiff was in the act of moving fell upon plaintiff's foot and produced the disability for which plaintiff seeks benefits herein. Plaintiff concedes the policy under which defendant Travelers is sought to be held liable in these proceedings was issued prior to the effective date of Act 495 of 1958, from which it follows that, unless the provisions of said act are found to be retroactive in effect, plaintiff's plea of estoppel is without merit. Learned counsel for plaintiff argues that the act should be liberally interpreted in accordance with the well established jurisprudence that workmen's compensation laws shall be generously construed so as to extend rather than restrict the right of workmen to recover thereunder. It suffices to say the issue thus presented for determination has previously been resolved adversely to the contention of learned counsel for plaintiff. In Hymel v. Employers Liability Assurance Corp., Ltd. of G.B., La.App., 113 So.2d 481, our brothers of the second circuit expressly held the statute in question was not retrospective in operation. We agree with the views therein expressed as we find nothing in the statute indicative of legislative intent the courts should apply the provisions thereof retroactively. For the reasons stated, we find the trial court properly overruled plaintiff's plea of estoppel.

Under our Workmen's Compensation Laws (and the jurisprudence interpreting same) it is the settled law of this state that the benefits therein provided may be availed of only by an employee engaged in one of the hazardous occupations specifically enumerated in LSA-R.S. 23:1035 or some other business not mentioned therein but determined by the courts to be hazardous in nature. In addition, there is that line of decisions (commencing with Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303), wherein recovery of compensation is permitted when, even though the primary business of the employer is non-hazardous, the employee is, in the course of his duties compelled to come into contact with hazardous aspects thereof.

Learned counsel for plaintiff argues first that the operation of a retail grocery, department store and meat market by defendant Ourso together with the warehouse maintained in conjunction therewith characterizes the business as hazardous inasmuch as LSA-R.S. 23:1035 specifically classifies operation of a 'warehouse' a hazardous undertaking. Secondly, he maintains that if defendant's primary business be held non-hazardous, plaintiff is nevertheless entitled to compensation under the rule of the Byas case, supra, considering plaintiff's duties were hazardous for the reasons hereinabove set forth.

Counsel for plaintiff concedes the operation of a retail mercantile business is not specifically declared hazardous under the provisions of LSA-R.S. 23:1035. He argues, however, that because defendant operates a warehouse in conjunction with its business and plaintiff's principal duties were confined to work therein, defendant Ourso should be adjudged to be in the business of operating a warehouse within the meaning and intendment of the term as used in the quoted codal authority. We find this argument completely without merit because operation of a retail mercantile business has previously been adjudged to be of a primarily non-hazardous nature. Wells v. Morgan & Lindsey, La.App., 42 So.2d 282; Harrington v. Franklin's Stores, La.App., 55 So.2d 647; Talbot v. Trinity Universal Ins. Co., La.App., 99 So.2d 811. The fact that the operator of such an enterprise maintains a private warehouse in conjunction therewith does not constitute the undertaking the operation of a 'warehouse' within the meaning of the term 'warehouse' as employed in LSA-R.S. 23:1035. The term 'warehouse' as used therein has been construed to mean a 'warehouse' operated for profit wherein goods of third persons are stored for profit. There is no allegation in the petition that defendant Ourso is engaged in operating a public warehouse in which goods are stored for the public and fees charged therefor. The conducting of private storage or warehouse facilities exclusively for the storing of one's own goods in connection with one's own retail mercantile business does not constitute operation of a 'warehouse' of the character denoted as hazardous by our compensation law. Caldwell v. George Sproull Co., La.App., 164 So. 651; Wells v. Morgan & Lindsey, Inc., La.App., 42 So.2d 282; Fields v. General Casualty Co. of America, La.App., 36 So.2d 843.

Since the decision in Byas v. Hotel Bentley, supra, (handed down in 1924), the jurisprudence of this state has been to the effect that where an employee is injured in a business neither specifically declared hazardous by our compensation laws nor found hazardous by the courts, if an employee of such business is required to perform services of a hazardous nature directly associated with the employer's business such an employee, if injured, is entitled to compensation even though injured while performing services of a non-hazardous nature. The aforesaid rule of the Byas case, supra, has been affirmed on innumerable subsequent occasions. For example see Reagor v. First National Life Ins. Co., La.App., 28 So.2d 527, amended 212 La. 789, 33 So.2d 521; Fontenot v. Fontenot, 234 La. 480, 100 So.2d 477; Luce v. New Hotel Monteleone, Inc., 234 La. 1075, 102 So.2d 461; Talbot v. Trinity Universal Ins. Co., La.App., 99 So.2d 811.

In Fontenot v. Fontenot, supra (234 La. 480, 100 So.2d 480), the rule is succinctly set forth as follows:

'Broadly stated, the jurisprudence in Louisiana, in cases of this kind, is to the effect that where an employer's main or primary business is nonhazardous but some features of it partake of a hazardous nature and one of his employees is engaged in both parts of the work, his injury may be compensable even though it should occur when he is engaged in the performance of his duties in the nonhazardous part. But, as stated, he must be engaged in both features of the work or at least it should appear that his services are occasionally connected either directly or indirectly with the hazardous part of the business.'

Having concluded defendant's primary business (operation of a retail grocery, department store and meat market) to be non-hazardous the next issue for decision is whether or not performance of services of a hazardous nature incidental to said primary non-hazardous business forms a substantial part of plaintiff's duties. The rule is otherwise well stated in Malone, Workmen's Compensation Law and Practice, by Professor Wex S. Malone, at Page 116, Section 98 as follows:

'* * * An employee who at the time of the injury is...