Coleman v. Sears, Roebuck & Co.
| Citation | 83 So.2d 469 |
| Decision Date | 02 November 1955 |
| Docket Number | No. 8425,8425 |
| Court | Court of Appeal of Louisiana (US) |
| Parties | Dorothy French COLEMAN, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee. |
Morgan, Baker & Skeels, Shreveport, for appellant.
Wilkinson, Lewis & Wilkinson, Shreveport, for appellee.
Plaintiff instituted this action against her employer, Sears, Roebuck & Company, to recover compensation on a claim for total, permanent disability and has brought this appeal from a judgment sustaining an exception of no cause or right of action and dismissing her suit.
A resume of the facts alleged is first in order for an understanding of the issues presented by the exception. Plaintiff alleges that the defendant operates a large department store in the City of Shreveport Louisiana, where it sells all types of appliances, both mechanical and electrical, materials of all kinds and types, including building materials, automobile supplies, parts and equipment; where it operates elevators, escalators, and other mechanical contrivances; where it demonstrates mechanical contrivances of all kinds and types, including electrical, gas-burning and gasoline-powered motors, and that in connection with its business operates trucks, automobiles and warehouses, and further conducts such a large operation in said city that it requires a multiple six-story building to house its operations, and, in connection therewith, the operation of elevators and escalators is required, and that in its bookkeeping department the defendant is required to operate electrically powered office machines of all types and kinds and that, accordingly, the business of the defendant is in fact hazardous within the terms of the Louisiana Workmen's Compensation Law, LSA-R.S. 23:1021 et seq.
Plaintiff alleges that on or about July 28, 1953, and for some time prior thereto she was employed by the defendant as a supervising cashier; that in the performance of her duties she was required to travel throughout the store, to oversee the conduct and activities of the cashiers in the several departments, to collect money as it was received and to convey it to the central office, and to provide the various cashiers with necessary funds and change. In the discharge of her aforesaid duties, she was required to ride elevators and escalators in the building and to come in contact with gasoline and electrically powered appliances and motorized equipment and the demonstrations thereof, and to work in close proximity to electrically driven accounting machines.
It was further averred that at 9:30 A.M. on the aforesaid date while carrying out her aforesaid duties with the defendant and particularly while carrying an arm load of change from the second floor to the credit department on the third floor of the building and while riding an escalator, plaintiff lost her balance and fell backward the length of the escalator, causing her to sustain serious and permanent injuries which she enumerated and contended resulted in her total and permanent disability within the intent of the Workmen's Compensation Act.
The exception of no cause or right of action was based primarily on the following propositions: (1) that the operation of a general merchandise or department store is not designated as one of the hazardous businesses, trades or occupations in the Compensation Statute, and (2) that none of the duties of plaintiff's employment was hazardous.
That the operation of a general merchandise or department store is not designated in the Compensation Statute as a hazardous business has been uniformly recognized in the decisions of the courts of this State. Stockstill v. Sears-Roebuck & Co., La.App., 151 So. 822; Scott v. Dalton Co., Inc., La.App., 1 So.2d 412; Goodman v. National Casualty Co., La.App., 15 So.2d 173; Wells v. Morgan & Lindsey, Inc., La.App., 42 So.2d 282; Fields v. General Cas. Co. of America, 216 La. 940, 45 So.2d 85; Harrington v. Franklin's Stores Corp. of New Iberia, La.App., 55 So.2d 647.
But it is contended that a nonhazardous business or one that is not designated hazardous under the statute may have certain hazardous features, and that in the performance of his duties in such features or activities an employee is protected under the provisions of the Workmen's Compensation Statute. This contention is well taken. The jurisprudence is settled that while an employee renders services in a hazardous branch of his employer's non-hazardous business, he is covered by the statute; and even where the employee performs services in both the hazardous and non-hazardous features of his employer's business, he is entitled to compensation for disabling injuries sustained while performing services in the non-hazardous activities of such business. Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303.
However, such is not the rule when an employee sustained accidental injuries in the performance of her duties, which were wholly non-hazardous and in a nonhazardous branch of the employer's business. Plaintiff was essentially a clerical employee. It was not within the alleged scope of her duties to operate any of the mechanical office equipment or to operate or demonstrate any gasoline or electrically powered appliances. Neither was she required to operate elevators or escalators or any other form of machinery. The performance of her duties was entirely confined to non-hazardous work and to the non-hazardous features of her employer's business, if, indeed, such business possessed hazardous features. In the discharge of her duties plaintiff was as free from danger, from accident and injury as she would have been had her employer been engaged exclusively in a non-hazardous business. Defendant's principal business, at least, is non-hazardous and in that respect unlike that of the Tremont Lumber Company in Gray v. Tremont Lumber Co., La.App., 185 So. 314, where the hazardous character of defendant's business was not open to question; the essential and material facts are similar to the facts here. There, in addition to its operation of a large sawmill, the defendant maintained an office building wherein its clerical force, records and equipment, indispensable adjuncts of its manufacturing business, were housed. The employee, whose death was the subject of that action, was a porter whose duties were to sweep and clean the floors, start the fires and dust off the furniture and to perform other similar acts. He carried the mail to and from the post office. His duties did not require that he have any contact with the sawmill, its machinery or equipment and, in fact, he had no such connection. While sweeping one of the office rooms, he was suddenly stricken with apoplexy, became unconscious and partially paralyzed, dying the following day. This court held that inasmuch as the employee's duties were wholly non-hazardous and he was stricken while in the performance of such non-hazardous duties, his death was not compensable under the statute.
In the recent case of Brown v. Remington Rand, Inc., La.App., 81 So.2d 121, 123, compensation was denied to a clerical worker who sustained a ruptured intervertebral disc while reaching above to a supply shelf for the purpose of obtaining four one-ream packages of printed requisition forms approximating a total weight of twenty-four pounds. In denying plaintiff recovery there, this court stated:
'Distinguished counsel for plaintiff ably argues that all of plaintiff's duties were in necessary connection with and promotion of her employer's hazardous business, thus bringing the case within the oft-repeated and well established general pronouncement of our courts to the effect that the right of an employee to compensation is determined by the nature of the business of the employer and not the particular duty or service of the employee. Kern v. Southport Mill, 174 La. 432, 141 So. 19; Charity Hospital of Louisiana v. Morgan, La.App., 143 So. 508; De Lony v. Lane, La.App., 155 So. 476; McAllister v. Peoples Homestead & Savings Association, La.App., 171 So. 130; Harrington v. Franklin's Stores Corp., La.App., 55 So.2d 647.
'The effect of the application of the general rule, stated supra, in the instant case would be to extend the benefits of coverage of the workmen's compensation statute to every employee of every hazardous business, no matter how farremoved such employee might be from the hazardous features of such enterprise. We think such a holding would be an unwarranted extension of the benefits of the statute and would do violence to the very purpose and intent thereof. The effect of such a holding, for example, would permit recovery by typists, clerks, bookkeepers, secretaries and members of similar classifications who perform their duties in an administrative office building in Shreveport as employees of an oil company engaged in the hazardous business of refining oil production with the actual site of such operations in the City of Baton Rouge. We have used this farfetched illustration in order to emphasize the necessity for the interpretation of the general rule above stated with respect to the qualifications of factual circumstances in individual cases. The facts of the instant case, in our opinion, clearly remove it from the application of the general rule, for this plaintiff was stricken while in the performance of her duties, which were wholly non-hazardous, and in the performance of which she was far removed from any contact with the hazardous phases of defendant's business. The facts involved in the instant case are strikingly similar to those adduced in the case of Gray v. Tremont Lumber Co., La.App., 185 So. 314, 315 (certiorari denied). In the cited case the defendant was engaged in a hazardous business, the...
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