Atkins v. Holsum Cafeteria, Inc., 15012
| Court | Louisiana Court of Appeal |
| Writing for the Court | LECHE, Judge. |
| Citation | 159 So. 758 |
| Parties | ATKINS v. HOLSUM CAFETERIA, Inc., et al |
| Docket Number | 15012 |
| Decision Date | 18 March 1935 |
159 So. 758
ATKINS
v.
HOLSUM CAFETERIA, Inc., et al
No. 15012
Court of Appeal of Louisiana, Orleans.
March 18, 1935
Rehearing denied 160 So. ---.
Leslie P. Beard, of New Orleans, for appellants.
S. Roccaforte and H. W. & H. M. Robinson, all of New Orleans, for appellee.
OPINION
LECHE, Judge.
This is a suit for workmen's compensation, and from a judgment in favor of plaintiff, defendants have appealed.
Plaintiff sued the Holsum Cafeteria, Inc., and its surety, the Central Surety & Insurance Corporation, alleging that the former maintains and operates a restaurant or cafeteria wherein are contained steam tables, dishwashing machines, cooking ranges, and other machines and devices for use in said business. He alleges that he was employed as porter and general utility man, which necessitated his working about and among the machines and devices aforesaid, and that, consequently, his employment was hazardous. He further alleges his weekly wages and says that, while engaged in his usual duties, he stuck some small object or instrument into his thumb and was injured. Defendants filed exceptions of no right or cause of action, as well as other exceptions, all of which were tried and overruled by the court below.
The Workmen's Compensation Law (Act No. 20 of 1914, as amended) provides that its provisions shall apply only to persons performing services arising out of and incidental to their employment in the course of one of the hazardous trades, businesses, or occupations named in the act. The statute does not include or designate the business of operating a restaurant or cafeteria. The jurisprudence is overwhelming to the effect that the provisions of the statute do not apply unless the employer is engaged in one of the designated hazardous trades, businesses, or occupations. Shipp v. Bordelon, 152 La. 795, 94 So. 399, and Gerstmayr v. Kolb, 158 So. 647, decided by this court January 21, 1935, and authorities therein cited.
Subsection 3 of section 1 of the compensation act reads as follows: "If there be or arise any hazardous trade, business or occupation or work other than these hereinabove enumerated, it shall come under the provisions of this act. The question of whether or not a trade, business or occupation not named herein is hazardous may be determined by agreement between the employer and employee or by submission at the instance of either employer or employee to the Judge of the Court which shall have jurisdiction over the employer in a civil case. The decision of the Court shall not be retroactive in its effect."
In the case of Dejan v. Ujffy, 14 Orleans App. 230, 231, there was a situation similar to that in this case. Justice St. Paul, as the organ of the court, said:
"It is not seriously disputed that plaintiff's occupation is in its nature more or less hazardous, and because of the contention made by plaintiff and hereinafter mentioned, it may be stated that such occupation takes him in and around railroad depots and terminals for the purpose of receiving and delivering freight for his employer. [159 So. 759]
"The question therefore arises, whether the relations between plaintiff and defendant come within the terms of the Employer's Liability Act.
"Now, defendant's business of wholesale merchant, and plaintiff's occupation of driving a freight and delivery wagon, are not specially mentioned in the act as occupations declared hazardous, and necessarily within the terms of the act. And it is not claimed that the parties have agreed that their relations should come within its provisions.
"But the contention is made that, owing to plaintiff's being obliged to go in and around railroad depots and terminals, his occupation is therefore "incidental to the business of operating a railroad,' and brings him within the act.
"We cannot accept this contention as well founded.
"The words of the statute are that it applies only to
" "Every person performing services arising out of or incidental to his employment in the course of his employer's...
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Talbot v. Trinity Universal Ins. Co., 4534
...(La.App.), 1st Cir., 31 So.2d 527; Foret v. Paul Zibilech Co., Inc. (18 La.App. 363), 137 So. 366; Atkins v. Holsum Cafeteria (La.App.), 159 So. 758; Harrington v. Franklin Stores (La.App.), 55 So.2d 647; and Brown v. Toler, (La.App.), 19 So.2d 'In Foret v. Paul Zibilech Co., Inc., it was h......
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McAllister v. Peoples Homestead & Savings Ass'n, 5361
...155 So. 63. In this case the defendant admitted it was engaged in a hazardous business. Atkins v. Holsum Cafeteria, Inc. (La.App.) 159 So. 758. This decision is good authority for the view we have taken herein, and in no wise conflicts. He also relies upon the case of Clementine v. Ritchie,......
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Robbins v. Caraway-Rhodes Veterinary Hospital, CARAWAY-RHODES
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Guidry v. New Amsterdam Casualty Co., Civ. A. No. 4511.
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