Fontenot v. J. Weingarten, Inc., 50455

CourtSupreme Court of Louisiana
Citation249 So.2d 886,259 La. 217
Docket NumberNo. 50455,50455
PartiesJoseph Raymond FONTENOT v. J. WEINGARTEN, INC.
Decision Date04 May 1971

Page 886

249 So.2d 886
259 La. 217
Joseph Raymond FONTENOT
No. 50455.
Supreme Court of Louisiana.
May 4, 1971.
Concurring Opinion June 3, 1971.
Dissenting Opinions May 5 and 12, 1971.
Rehearing Denied June 28, 1971.

[259 La. 221]

Page 887

Donald Soileau, Donald Soileau's Law Office, Mamou, for plaintiff-appellant.

Plauche, Sanders, Smith & Hebert, Allen L. Smith Jr., Lake Charles, or defendant-appellee.

[259 La. 222] McCALEB, Chief Justice.

Joseph Raymond Fontenot is suing to recover workmen's compensation benefits for injuries received by him in the course of his employment with J. Weingarten, Inc., owner and operator of a large grocery store in Lake Charles, Louisiana, for a straining-type injury to his back, sustained while preparing a display of canned goods, a nonhazardous feature of defendant's business.

The trial judge granted plaintiff compensation for $35.00 a week for a period not to exceed 400 weeks. On appeal the Court of Appeal for the Third Circuit reversed, holding that the business of operating a grocery store is not hazardous, that plaintiff was not exposed to any hazardous features of such business, and that, consequently, he was not entitled to compensation benefits. 1 232 So.2d 143. We granted certiorari, 255 La. 807, 233 So.2d 248.

The record discloses that, in addition to owning and operating the large supermarket where the accident occurred, the defendant has other similar stores in the locality, and, in connection with these, it uses a number of van-type trucks necessary for the delivery of merchandise to these grocery outlets.

Plaintiff's position was categorized as that of 'stocker' or 'stockman', his principal[259 La. 223]

Page 888

duty being to move goods from a storeroom located in the rear of the building which housed the store, mark prices on them, and place them on the store shelves. However, he was required to perform numerous other services connected with the operation of the business. One of these was to serve as cashier, or checker, in the front of the store, in the course of which he operated an electric cash register and conveyor-counter, the latter being the mechanical device by which the cashier brings to him the customer's purchases and then moves it on to be 'bagged'.

Plaintiff recognizes that the operation of a retail grocery store is not listed as a hazardous business in R.S. 23:1035 of the compensation act, and our jurisprudence holds that the operation of such a store is not hazardous per se. Nevertheless, we feel impelled to note, at the outset, that during oral argument of the case, it was suggested that the nature of this defendant's business renders it hazardous, per se. We think that perhaps there is some merit in the contention, although it was not urged here by plaintiff. As indicated above, there is jurisprudence to the effect that a grocery store is not a hazardous business, per se. But we are not so certain that that jurisprudence is any longer applicable to the expanded 'supermarket' chain-store type of operation. The overall nature of the employer's business must be considered--not merely the work carried in one [259 La. 224] particular store of the enterprise. Some of the everyday observable operation of such stores is common knowledge. Certain facts brought out in this record concerning the less well known phases of the business also tend to fortify the conclusion that, given the proper suit, it might well be that the over-all operation would be held to be hazardous, per se. Thus it is well known, and compensation suits before this Court and the Courts of Appeal show, that such stores employ any number of hazardous electrical devices: meat cutting machines, coffee grinders, et cetera. The employer also operates large central warehouses to supply the individual member stores--the employees therein being subjected to the same hazards as those in commercial warehouses. Large fleets of trucks are employed, garaged and maintained. 'Bagboys' or porters deliver packages to the customer's automobiles, on expansive parking lots and are then exposed to moving vehicles. There may well be other operations of a hazardous nature carried on. Although the presence of one or two of these operations might not of itself be sufficient to characterize the entire business as hazardous, a consideration of the conglomerate might lead to a different result.

It would be inappropriate for us to decide this question in the instant case, however. First of all, the question is not raised by plaintiff and, for the reasons [259 La. 225] hereafter assigned, we allow recovery on another ground which is responsive to the issues on which the case was presented. Secondly, even if plaintiff were not allowed recovery otherwise, we could not grant him compensation benefits on the holding that a chainstore supermarket operation is hazardous in fact. The statute specifically prohibits such retroactive application. R.S. 23:1035, after declaring numerous named occupations to be hazardous then provides:

'If there be or arise any hazardous trade, business or occupation or work other than those hereinabove enumerated, it shall come under the provisions of this Chapter. The question of whether or not a trade, business, or occupation not named herein is hazardous may be determined by agreement between the employer and employee or by submission at the instance of either to the court having jurisdiction over the employer in a civil case. The decision of the court shall not be retroactive in its effect.' (Emphasis ours.)

See Fields v. General Casualty Co. of America, 216 La. 940, 45 So.2d 85.

Page 889

Plaintiff's claim for compensation is based on the well-settled jurisprudence that, even though the principal business of the employer is not among the callings which are declared to be hazardous by the act, yet an employee may be considered to come under the act where there are features of the [259 La. 226] employer's business which are classified as hazardous under R.S. 23:1035, such as mechanical or electrical appliances or equipment which are used in the business, and the employee, as an integral part of his duties, is regularly and frequently exposed to and brought into contact with such appliances, albeit he is primarily engaged in the nonhazardous part. And in such case the employee is entitled to compensation benefits even though he was injured while working in a nonhazardous phase of his employment. Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303; Collins v. Spielman, 200 La. 586, 8 So.2d 608; Luce v. New Hotel Monteleone, 234 La. 1075, 102 So.2d 461; and Richard v. United States Fidelity & Guaranty Co., 247 La. 943, 175 So.2d 277.

The pertinent part of R.S. 23:1035 provides that:

'The provisions of this Chapter shall also apply to every person performing services arising out of and incidental to his employment in the course of his employer's trade, business, or occupation in the following hazardous trades, businesses and occupations:

'The construction, installation, Operation, alteration, removal or repairs of wires, cables, switchboards or Apparatus charged with electrical current.' (Emphasis ours.)

[259 La. 227] Plaintiff proclaims that, inasmuch as the compensation statute declares that the operation of an apparatus 'charged with electrical current' is hazardous, his frequent and regular operation of the electrically motivated cash register and conveyor-counter brought him within the coverage of the compensation act thereby entitling him to its benefits for the injury sustained while in the course and scope of his employer's business.

The defendant, on the other hand, asserts that the use of the electrically motivated cash register and counter did not, per se, bring the employment of plaintiff within the purview of the compensation statute. Its counsel argues that, even if it did, plaintiff's use thereof was not extensive and that, consequently, he was not so substantially exposed to the risk as to render his employment subject to the act.

We find little difficulty in disposing of the latter defense. On that issue, our review of the record reveals that the evidence amply sustains the holding of the Court of Appeal that plaintiff 'was required to perform the duties of a checker or cashier often enough to justify the conclusion that he regularly and frequently came in contact with the cash register and the conveyor.'

The more serious question presented is whether, under the language of R.S. 23:1035, plaintiff's substantial exposure to [259 La. 228] those electrical devices rendered his employment amenable to the other provisions of the compensation law, even though it might be found that such devices were not particularly dangerous.

In dismissing plaintiff's claim the Court of Appeal adopted the reasoning of defendant and ruled that the substantial use of such electrical devices does not, of itself, render the employment hazardous, and therefore subject to the provisions of the workmen's compensation statute. Rather, it held that:

'The test to be applied in determining whether electrically-operated appliances or machinery are hazardous, and thus whether the Workmen's Compensation Act should apply to a person who regularly uses those devices in otherwise non-hazardous business, in simply whether the employee's use of or exposure to these devices is such that the risk of a work-

Page 890

connected injury is Materially or substantially increased over what it would have been had the employee not been subjected to these hazards.' (Emphasis ours.)

And after a consideration of the nature of the conveyor and cash register it concluded that they:

'* * * were not of such a hazardous nature that their use by plaintiff materially or substantially increased the risk or danger of injury to him over what the [259 La. 229] risk would have been if he had not been regularly exposed to these items. Plaintiff thus was not engaged in a hazardous...

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