Blake v. Fidelity & Cas. Co. of New York

• Decision Date: 01 December 1964
• Docket Number: No. 10285,10285
• Citation: Blake v. Fidelity & Cas. Co. of New York, 169 So.2d 608 (La. App. 1964)
• Court: Court of Appeal of Louisiana
• Parties: C. H. BLAKE, Plaintiff-Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK et al., Defendant-Appellee .

Page 608

169 So.2d 608

C. H. BLAKE, Plaintiff-Appellant, v.FIDELITY & CASUALTY COMPANY OF NEW YORK et al., Defendant-Appellee .

No. 10285.

Court of Appeal of Louisiana, Second Circuit.

Dec. 1, 1964.

John C. Wagnon, Farmerville, for appellant .

Davenport, Farr & Kelly, Monroe, for appellee.

Before HARDY, GLADNEY and BOLIN, JJ.

HARDY, Judge.

This is a compensation claim and plaintiff appeals from judgment rejecting his demands.

Plaintiff was employed as a lineman by United Telephone Company of Louisiana, Inc. and on Sunday, November 3, 1963, he answered an emergency call for repair work to his employer's telephone lines in the vicinity of Oak Ridge, Louisiana.Plaintiff was assisted in this work by a fellow employee, one Sam P. Williams.After completing the repairs plaintiff and Williams stopped by the telephone exchange office in Oak Ridge, and, finding no other evidence of line trouble, then drove to Williams' home, which was located about three miles west of Oak Ridge.Both plaintiff and Williams were driving company trucks.Plaintiff testified that after he and Williams stopped in front of the latter's home it was his purpose to wait until Williams checked to ascertain if any further emergency calls had been received; that he had Williams then planned to do some work on what was designated as the 516 Line, and while Williams went into his house, plaintiff began transferring some tools to the Williams' truck, seeing no need of using two vehicles for the work which was contemplated.However, plaintiff decided that he could use Williams' tools and he returned his own tools to his truck, after which he reached behind the seat of the vehicle to pick up a loaded shotgun, which accidentally discharged, and the load of shot struck plaintiff in the lower abdomen.

In support of his testimony plaintiff tendered Williams as a witness, but Williams' testimony not only fails to corroborate plaintiff's version, but, in many instances, serves to directly contradict some of its asserted facts.This witness testified that he knew of no trouble on the 516 Line and had no intention of doing any further work that day unless he found some notice of emergency calls at his home.The witness further testified that plaintiff had asked permission to go squirrel hunting in a wooded tract across the road from Williams' home, which property he owned, and that as he walked toward his house he called back to plaintiff to ask if he wanted to borrow one of his guns and was informed by plaintiff that he had his own gun.Thereafter, finding the front door locked, Williams proceeded to the back door of his home, and, at about the time he entered, heard the shot caused by the discharge of plaintiff's shotgun.

It appears that it was customary for employees, in computing their time of work, to include the time en route from their homes to the point in which they engaged in their labors and return.Plaintiff testified that if there were no other repair calls awaiting attention, he did intent to go hunting before returning to his home and would have excluded whatever time was involved in this personal mission.

On the basis of this testimony, conceding that plaintiff was on stand-by duty, it follows that he must be regarded as having been within the course and scope of his employment at the time of the accident.Therefore, the issue tendered by this appeal requires a determination as to whether the accident Arose out of plaintiff's employment.Bearing upon this point, it is pertinent to examine the reasons for the presence of the loaded shotgun in the company truck which was used by plaintiff.After testifying as to the fact that he occasionally carried sums of money belonging to his employer, and that he was sometimes on the road in rural areas after dark, plaintiff, nevertheless, admitted that his principal reason for carrying the shotgun was for use in hunting expeditions.It is noted that counsel for plaintiff in brief strenuously contends that all of the company's employees carried guns in their vehicles to the knowledge of company officials and with their consent.In this argument counsel is somewhat in error for the testimony of Mr. T. E. Payne, plant superintendent for the company, was that he knew some of the employees occasionally carried guns in their trucks and that he, himself, sometimes carried a gun, but that the reason for this practice was for the purpose of hunting game during the season and not for the purpose of protection of property of the company.

We are confronted with the necessity for construing the meaning and application of the term 'arising out of the employment.'This particular phrase was considered by the Supreme Court in Kern v. Southport Mill, 174 La. 432, 141 So. 19, and the opinion contains the following observation:

'In determining, therefore, whether an accident 'arose out of' the employment, it is necessary to consider only this: (1) Was the employee then engaged about his employer's business and not merely pursuing his own business or pleasure; and (2) did the necessities of that employer's business reasonably require that the employee be at the place of the accident at the time the accident occurred?'

The above pronouncement has resulted in the adoption of what has been designated as the 'time and place' doctrine.The effect of this standard of interpretation has led to the conclusion that an accident Arises out of the employment in every instance where the duties of the employee require him to be In the place where at the time when the accident occurred.This doctine was carried to what the author of this opinion considers a ridiculous extreme in the opinion of this court in Livingston v. Henry & Hall et al.(2nd Cir., 1952), 59 So.2d 892, which held that an employee could recover for injuries suffered by reason of an assault by a husband, to whose wife the employee had been paying some special attention, on the ground that the employee's duties required him to be in a place at a time when the jealous husband could vent his anger by shooting.

In the Livingston casethe court considered and one...