Clark v. Employers Liability Assur. Corp.

• Decision Date: 09 October 1946
• Docket Number: 2822.
• Citation: Clark v. Employers Liability Assur. Corp., 27 So.2d 464 (La. App. 1946)
• Court: Court of Appeal of Louisiana
• Parties: CLARK v. EMPLOYERS LIABILITY ASSUR. CORPORATION. Limited, et al.

27 So.2d 464

CLARK v. EMPLOYERS LIABILITY ASSUR. CORPORATION. Limited, et al.

No. 2822.

Court of Appeals of Louisiana, First Circuit

October 9, 1946

Durrett & Hardin, of Baton Rouge, for appellants.

Sargent Pitcher and Fred G. Benton, both of Baton Rouge, for appellee.

OTT, Judge.

On January 28, 1944, the plaintiff Clark was employed as a mechanic by G. N. Gonzales, who operated an automobile repair shop in Baton Rouge under the name of the Gonzales Body and Fender Works.The plaintiff was seriously injured between 5:30 and 6:00 o'clock in the afternoon of that day while riding a motorcycle on his way from the repair shop to get a lunch or supper.His motorcycle was struck by a car driven by a third person, resulting in injuries to plaintiff which rendered him totally and permanently disabled.Plaintiff brought this suit against his employer and the Employers Liability Assurance Corporation Limited, the insurance carrier, for compensation, at the maximum rate of $20 per week for a period not exceeding 400 weeks, plus medical expenses of $250.

The defendants filed exceptions of no cause and no right of action, which exceptions were referred to the merits by the trial judge.The defendants then filed answer, with full reservation of all rights under their exceptions, and put at issue the only serious questions in the case; viz, whether or not plaintiff at the time of the accident and injury was in the course of his employment with Gonzales, and whether or not the accident and injury arose out of his employment and was incidental thereto.The trial judge, after hearing testimony in the case, rendered a judgment in favor of plaintiff as prayed for.The defendants have appealed.

No action was taken by the trial judge on the exceptions of no cause and no right of action, and the defendants re-urge these exceptions in this court.

Exceptions of No Cause and No Right of Action.

These exceptions are based on the ground that the petition alleges facts which show that at the time of plaintiff's injury he was not acting within the scope of his employment.The plaintiff alleges that he was injured while proceeding from his place of work to his home on a motorcycle owned by his employer, and that under the terms of his employment, he was compelled to work over time and late at night; that under the terms of his employment and while so working on his employer's time, the employees of Gonzales, including plaintiff, went to their homes and to a nearby restaurant for refreshments; that no regular time was allotted to the employees in which to get their meals, but under the terms of their employment, the employees got their meals whenever there was a slack moment around meal time; that while plaintiff was going to get his meal, he was under the supervision and control of his employer.

On the trial of the case and while a witness for plaintiff was being interrogated, counsel for plaintiff asked permission to amend the petition so as to show that plaintiff was injured while proceeding to a nearby cafe to get a sandwich on a motorcycle owned by Gonzales.Over objection of counsel for defendants the trial judge permitted the amendment, with the right of defendants to ask for a continuance of the case if they were taken by surprise.The case was continued on request of defendants' counsel and resumed at a later date.Under the circumstances, we believe the trial judge was correct in allowing this amendment as the defendants suffered no injury by reason thereof, and the Compensation Law, ActNo. 20 of 1914, as amended, contemplates liberality in pleading and procedure in cases of this kind in order to get the real facts at issue in the case.Therefore, in considering the exceptions, we will consider the facts set out in the petition as amended, and accept these facts as true for the purposes of the exceptions.

The facts as thus presented by the petition, as amended, are substantially borne out by the evidence produced on the trial of the case and what is said hereafter in passing on the merits of the case will likewise apply on the exceptions.Therefore, these exceptions are now overruled.

On the Merits.

The evidence shows that plaintiff had been working for Gonzales for several months under an arrangement by which he and the other employees kept their own time.They were paid overtime and had considerable freedom of action.It was customary for the employees, with the approval and consent of Gonzales and his foreman, to go to a nearby cafe and get coffee and other refreshments during working hours.The employees were not...