Bates v. Gulf States Utilities Co.

• Decision Date: 12 December 1966
• Docket Number: No. 48288,48288
• Citation: Bates v. Gulf States Utilities Co., 193 So.2d 255, 249 La. 1087 (La. 1966)
• Parties: Alvin K. BATES v. GULF STATES UTILITIES COMPANY.
• Court: Louisiana Supreme Court

Page 255

193 So.2d 255

249 La. 1087

Alvin K. BATES v.GULF STATES UTILITIES COMPANY.

No. 48288.

Supreme Court of Louisiana.

Dec. 12, 1966.

Rehearing Denied Jan. 16, 1967.

Anthony J. Graphia, Hebert, Glusman & Moss, Baton Rouge, for plaintiff-appellant.

F. W. Middleton, Jr., W. S. McKenzie, Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for defendant-appellee-respondent.

HAMLIN, Justice:

In this workmen's compensation proceeding, we exercised our supervisory jurisdiction (Art. VII, Sec. II, La.Const. of 1921) by directing certiorari to the Court of Appeal, First Circuit, (249 La. 581, 187 So.2d 741), in order that we might review its judgment which affirmed the judgment of the trial court rejecting plaintiff's demands for alleged total and permanent disability plus medical and incidental expenses.(186 So.2d 895)

The same issue--whether plaintiff received personal injuries by an accident arising out of and in the course and scope of his employment--presented to the trial court and the Court of Appeal for determination is advanced herein.See, LSA-R.S. 23:1031.

From the facts of this case stipulated in the trial court, we quote those necessary for an understanding of our opinion.

'Plaintiff was employed by defendant on or about May 28, 1956, and continued in its employ through December 22, 1964.He was employed to do strenuous, heavy work, heavy lifting and digging and operations relative to the installation of gas lines, which work forms a part of the regular trade, business or occupation of defendant.

'On December 22, 1964, plaintiff was working at a job site near the Airline Highway installing and readjusting a gas line.Plaintiff left the job site by means of transportation furnished by defendant at approximately 4:05 o'clock P.M. and was returned to defendant's premises at approximately 4:25 o'clock P.M.

'Defendant's premises are located on Choctaw Drive within the City of Baton Rouge.Choctaw Drive is a major thoroughfare which traverses the City of Baton Rouge from East to West. Defendant's premises consists of a parcel of land surrounded by a fence which encloses several buildings and a parking lot used for defendant's vehicles and for the vehicles of its employees who choose to drive their own automobiles to work.Defendant's premises are serviced by a city bus line. * * *

'Upon re-entering defendant's premises, plaintiff and the remainder of his crew debarked from their crew truck at the Tool House.After checking through the locker room in the Gas Service Building, plaintiff was released from further duty for the day at 4:30 o'clock P.M., which was the regularly scheduled time for plaintiff and his fellow employees to be dismissed for the day.He was then allowed to leave defendant's premises by whatever means he desired.Plaintiff proceeded to his own automobile which was parked in the Employee's Parking Area on defendant's premises adjacent to Choctaw Drive.Plaintiff had the intention of driving his automobile home.

'Upon reaching his automobile, plaintiff discovered that his right rear tire was flat.He then removed the tire from his automobile; and while still in the Employee's Parking Area near his automobile, he repaired his flat tire.

'As part of the facilities located on its premises which includes the Employee's Parking Area, defendant maintains a Garage for the repair and maintenance of defendant's vehicles.After completing his repair of the tire, plaintiff rolled his tire to the Garage and into an area of that building known as the lubritorium.This area is primarily used to lubricate defendant's trucks.He did not use defendant's tire repair room which contained equipment to fasten down a tire while it was being repaired.

'Plaintiff was never required to use the facilities of the Garage while engaged in the activities which he was hired to perform for the defendant.Additionally, he was not hired to perform, was never assigned, nor did he ever perform any duties relating to the repair and maintenance of vehicles.

'Using defendant's air compressor and hose located in the lubritorium, plaintiff began to inflate his tire.During the course of this undertaking, plaintiff was struck on or about the upper part of his body and face by the tire and/or rim when his tire exploded against the floor, propelling its wheel into the air striking plaintiff and causing him serious and disabling injuries.

'Plaintiff did not seek permission from or assistance of any of the three employees of defendant who were on duty in the Garage at the time of the accident. * * *

'On the date on which the injury occurred, the business in which the defendant was engaged was considered hazardous under the compensation laws of the State of Louisiana as were the regular duties performed by plaintiff.

'As a result of the injuries sustained in the accident complained of plaintiff is totally disabled up to the present time, and will be for an undetermined future time.

'Defendant has refused to pay petitioner any compensation notwithstanding amicable demand but has paid plaintiff an amount equal to his regular wages for a period of ten (10) weeks through March 8, 1965, under an informal employee sickness and benefit procedure, voluntarily followed by defendant in most cases.'

The Court of Appeal stated that an injured employee might recover under the Workmen's Compensation Act if the accident suffered and resulting injury occurred during the time the employee was acting pursuant to orders or was doing some phase of his employer's work under such circumstances as could be construed as implied consent.It found that at the time of the instant accident, plaintiff was not engaged about his employer's business but was merely pursuing his own private business changing the tire on his own private automobile.The Court of Appeal said that under the facts stipulated to it could not find the employee's business reasonably required the plaintiff to be at the place of the accident at the time the accident occurred.

Plaintiff contends that the Court of Appeal erred in its findings, and that he should not be deprived of compensation by the mere fact that the accident occurred while he was engaged in attempting to repair his vehicle.He argues that his right to recovery should be the same as...