Boggs v. Great Atlantic & Pacific Tea Co., 160

• Decision Date: 19 December 1960
• Docket Number: No. 160,160
• Citation: 125 So.2d 419
• Court: Court of Appeal of Louisiana — District of US
• Parties: Lillian Marie BOGGS et al., Plaintiff and Appellant, v. GREAT ATLANTIC & PACIFIC TEA COMPANY et al., Defendant and Appellee, v. FOREMOST DAIRIES, INC., Third-Party Defendant and Appellee.

Page 419

125 So.2d 419

Lillian Marie BOGGS et al., Plaintiff and Appellant, v. GREAT ATLANTIC & PACIFIC TEA COMPANY et al., Defendant and Appellee, v. FOREMOST DAIRIES, INC., Third-Party Defendant and Appellee.

No. 160.

Court of Appeal of Louisiana, Third Circuit.

Dec. 19, 1960.

Bryan Forrest Gill and Eugene Lawes, by Bryan Forrest Gill, Lake Charles, for plaintiff-appellant.

Anderson, Hall, Raggio & Farrar, by Edgar F. Barnett, Lake Charles, for defendant-appellee.

Cavanaugh, Hickman, Brame & Holt, by Meredith T. Holt, Lake Charles, for third party defendant.

Before FRUGE , CULPEPPER and TATE, JJ.

CULPEPPER, Judge.

In this suit Lillian Marie Boggs, individually, and on behalf of her four minor children, seeks death benefits under the Workmen's Compensation Act as the legal dependents of Laurence Boggs, deceased. From an adverse judgment in the lower court, plaintiff has appealed.

The record in this case shows that Laurence Boggs had been employed by the Great Atlantic & Pacific Tea Company for approximately fourteen years in various capacities, but for several years preceding the date of his injury on November 14, 1958, he was a price marker. In this capacity his duty was to assist in receiving merchandise delivered to the rear of the grocery store building in trucks belonging to other parties. These trucks were unloaded by using long metal rollers to convey the cases of merchandise from the trucks to the loading platform. There is no evidence that Mr. Boggs ever climbed into the trucks, it being his duty to stand on the loading platform and there receive from the rollers the cases of merchandise which he stacked up and subsequently moved into the storeroom of the grocery store by means of a hand truck. Mr. Boggs would then mark the prices on the individual items of merchandise for placement on the shelves of the grocery store. The dairy supplies, such as eggs, butter, cheese, etc., were placed by Boggs in two dairy boxes. The testimony of the various witnesses and the pictures filed in evidence show that all of the compressors and other machinery used to cool these boxes was located on the top, completely out of reach of anyone opening the doors to store or remove dairy products.

A further part of Mr. Boggs' price-marking duties was to change prices. According to the testimony, this was usually done on Mondays and consumed almost that entire day. Mr. Boggs worked five days a week, usually taking off on Saturday, and the evidence is clear that the above were his principal duties as price marker and consumed all of his time.

The evidence also shows that in emergencies Mr. Boggs acted as a checker at the cash registers where customers paid for their purchases. Mary Isaacs, who worked as a checker during this same period of time, testified that Mr. Boggs checked 'every once in a while', but she gave no estimate as to the exact number of times per week or per month and stated that his principal duties were those of a price marker. Anna Mae Moss, who also worked as a checker during this same period of time, testified that Mr. Boggs worked in the back of the store as a price marker, and that when they were rushed he would help carry the customers' groceries out of the store to their automobiles, and that he also checked 'in an emergency'. Mr. James C. Duhon, assistant manager of the store, testified as follows with reference to Mr. Boggs' checking activities:

'Q. In emergencies, Mr. Duhon, did Mr. Boggs help out on the cash register checking? A. Yes, sir.

'Q. How often did he do this? A. Well, sometimes it might be * * * he might help once or twice a week, or maybe sometimes it might be a month that we would have to call him. It wasn't his regular duty.

'Q. When he would be called upon to do anything like that, any checking, how long a time did he have to check? A. Most of the time it was more or less a relief, maybe for others to go to lunch, or if something happened that some of them were short in case they were sick or something.'

Mr. Abriam Cormier, the manager of the store, testified that Mr. Boggs' 'main job was to price mark in the back room, check in the merchandise and change prices. That was his main duties.' With reference to Boggs' checking activities, Mr. Cormier testified, as follows:

'Q. As a part of his regular duties did he operate any cash registers? A. Well, on occasion, yes. He has on occasions.

'Q. Was that part of his regular duties? A. I don't quite get what you mean. Do you mean was it consistent or as the need arose?

'Q. Was that a customary part of his duties? A. If the need would arise, he would be called and he would check but that wasn't his main duty.'

Although none of these witnesses could remember ever having seen Mr. Boggs put new detail tape in one of the cash registers, Mr. Cormier stated he felt sure Mr. Boggs, in operating them, must have had occasion to change the tape. Mr. Duhon, the assistant manager, also testified to this effect. There is no evidence that in changing the tape on one of these cash registers, the operator was required to come in contact with any uninsulated electric wires or with the electric motor, or with any other portion of the machine from which he might have received an electrical shock. The operation of the cash register consisted simply of punching the keys thereon to tabulate the cost of the various items of merchandise purchased.

The evidence also shows that there was a coffee grinder located at each checking counter. This machine is approximately three feet long, one foot deep and two and one-half to three feet high, rests on top of the counter, and is used for the purpose of grinding coffee beans to the degree of coarseness requested by the customer. When a customer came to the checking counter with a bag of coffee beans, the checker would open the bag, turn on the machine and pour the coffee in the top thereof. The coffee would pass down through the machine where it was properly ground and then would be caught by the checker in the bag at the bottom of the machine. The motor and grinders and other portions of this machine were entirely enclosed and there is no evidence that the checker had to do anything more than simply turn it on and off. The checkers never cleaned the machines because this was done by another employee of A & P stores who came around periodically for this purpose.

On November 14, 1958, Mr. Boggs was coming into the store through two wooden swinging doors at the rear and was pulling a loaded hand truck. Boggs had his back toward the doors and as he reached them, an employee of third-party defendant, Foremost Dairies, Inc., was coming out of the building pushing a dolly. The milkman's dolly hit the door, which, in turn, struck Mr. Boggs in the back and caused him to be thrown against the handle of the hand truck, which struck Mr. Boggs approximately in the stomach. Boggs was hurt to the extent that he sat down for a few minutes and then went to the rest room where he vomited. Later that same day Mr. Boggs went to see Dr. Russell T. Harris, who specializes in surgery. Dr. Harris found spasm of the abdominal muscles, but no bruises or other evidence of injury. Dr. Harris recommended hospitalization, x-ray and further tests, but Mr. Boggs refused at that time. Mr. Boggs continued to have gastric distress to some extent, although not sufficient to keep him from playing in a dance band the night of his injury, nor to keep him from continuing with his work. On November 17, 1958, Boggs finally went to the hospital where x-ray and other tests were negative as to injury. Mr. Boggs continued working but was seen by Dr. Harris two or three times during the latter part of November and finally Dr Harris requested that Mr. Boggs return to his family physician, Dr. Price. Approximately one month before the date of the injury, Dr. Price had seen Mr. Boggs for complaints of epigastric distress similar to that which plaintiff was suffering after the injury, but Dr. Price found no palpable mass in the abdomen. It was in December of 1958 that Dr. Price first found a palpable mass which he felt to be a tumor of the pancreas. After that date Mr. Boggs' symptoms continued to worsen and further tests by Dr. Price and Dr. Harris caused them to diagnose a tumor on the head of the pancreas. On January 5, 1959, Dr. Harris performed an exploratory laparotomy which revealed a large malignant tumor on the head of the pancreas which was too widespread for radical surgery. The operation was concluded and Mr. Boggs recovered normally from the surgery but died on June 8, 1959, due to this cancerous condition.

It was the opinion of Dr. Harris that the blow received by Mr. Boggs to his abdomen struck a pre-existing cancer of the pancreas and contributed to its spread and to the speed of its growth, thereby hastening the death of Mr. Boggs by from three to six months. Dr. Holcomb and Dr. Knapp, who were called as witnesses by the defendant, testified that from a reading of the hospital records, reports of Dr. Harris and Dr. Price, and an interview with Dr. Harris, they were of the opinion that this single trauma did not aggravate the pre-existing cancer nor shorten the life of Mr. Boggs.

The lower court decided plaintiff had not sustained her burden of proving a causal relation between the injury and the subsequent death of Mr. Boggs. However, we do not find it necessary to pass on this issue of causal relationship because we have come to the conclusion that Mr. Boggs was not required to perform hazardous duties. The only portions of the decedent's work which plaintiff might possibly contend were hazardous were the truck unloading operations in which Mr. Boggs received merchandise at the end of a conveyor of rollers, carrying groceries out to the customers' automobiles, the storing of products in the dairy boxes which Mr. Boggs also occasionally cleaned and the use of the cash register and coffee grinder when Mr. Boggs was requested, in...