Brown v. Toler
| Decision Date | 09 November 1944 |
| Docket Number | 2659. |
| Citation | 19 So.2d 680 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | BROWN v. TOLER. |
Durrett & Hardin, of Baton Rouge, for appellant.
Taylor Porter, Brooks & Fuller and W. G. Randolph, all of Baton Rouge, for appellee.
Plaintiff alleges that he was employed by the defendant to work in the store and market operated by the defendant, and that his duties were to do whatever he was told to do by the defendant in the operation of the store and market; that some of the duties performed by him were to open oysters, grind meat on an electrically operated meat grinder, and take the grinder apart and clean it; clean out the coffee mill, cook dog meat on a furnace over a fire, and work flower beds with a hoe in the yard; sweep the store and dust the merchandise on the shelves, deliver merchandise on foot for the store, and do various other things in connection with the operation of the store and market, and in the operation of the machinery and electrical appliances which were ordinarily and customarily used in the operation of the store.
He alleges that on or about November 25, 1939, while opening oysters in the course of his employment, he cut his right hand and forefinger on an oyster shell; that his hand became infected from the cut, and chronic osteomyelitis developed, making it necessary to remove the index finger of his right hand; that he has become totally and permanently disabled by reason of said injury. He sues for compensation at the rate of $3.90 per week for four hundred weeks.
Defendant filed an exception of no cause or right of action which was overruled. He then answered denying that plaintiff was employed by him, but alleged that his wife employed plaintiff on a temporary basis to work in her yard and garden. He admits that plaintiff was required to sweep the floor in the store and dust the merchandise, but denies that plaintiff was required to open oysters or operate the meat grinder and coffee mill. While he denies that plaintiff was employed to open oysters, he admits that plaintiff might have done so voluntarily. He also denies that plaintiff was injured and suffers any disability, and denies that he was employed to do any hazardous work.
The trial resulted in a judgment in favor of the defendant, dismissing plaintiff's suit, and he has appealed.
The plaintiff evidently seeks to bring his claim for compensation under the principle laid down by the courts that an employe is entitled to compensation where he is injured in performing nonhazardous duties, if his duties require him to perform both hazardous and nonhazardous work. In other words, he alleges and so testified that he was required to feed and clean the electric meat grinder in connection with sweeping out the store, opening oysters and in doing other nonhazardous duties around the store.
He has shown with reasonable certainty that he cut his finger while opening oysters in defendant's market and that a piece of oyster shell stuck in his finger from which infection set up resulting in osteomyelitis and the final loss of his finger.
We deem it unnecessary in this case to enter upon a full discussion of the rather unsettled state of our jurisprudence as to the relative extent of hazardous duties as compared to nonhazardous duties an employe must be performing in order for him or his dependents to recover compensation where his employment requires him to perform both hazardous and nonhazardous work and where he is injured while performing nonhazardous services. Suffice it to say that we do observe in what was said in the case of Brownfield v. Southern Amusement Co., Inc., et al., 196 La. 73, 74, 198 So. 656, a tendency to modify somewhat the holding in the case of Byas v. Hotel...
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