Fontenot v. J. Weingarten, Inc.

Citation232 So.2d 143
Decision Date11 February 1970
Docket NumberNo. 2972,2972
PartiesJoseph Raymond FONTENOT, Plaintiff-Appellee, v. J. WEINGARTEN, INC., Defendant-Appellant.
CourtCourt of Appeal of Louisiana (US)

Plauche Sanders & Smith, by Allen L. Smith, Jr., Lake Charles, for defendant-appellant.

Donald Soileau and John Saunders, by John Saunders, Mamou, for plaintiff-appellee.

Before FRUGE , SAVOY and HOOD, JJ.

HOOD, Judge.

This is a workmen's compensation suit instituted by Joseph Raymond Fontenot against his former employer, J. Weingarten, Inc. Judgment was rendered by the trial court in favor of plaintiff, awarding him compensation benefits based on total and permanent disability. Defendant has appealed.

One of the important issues presented is whether plaintiff's employment was hazardous within the meaning of the Workmen's Compensation Act, and thus whether he is entitled to benefits as provided in that act because of an injury allegedly sustained by him during the course of his employment.

Fontenot sustained a back injury on June 2, 1968, while he was working as a 'stocker' or 'stockman' for defendant. The accident occurred in a large retail grocery store which was owned and operated by defendant Weingarten in Lake Charles. Plaintiff and a co-worker were stacking some merchandise on the floor of the store for display purposes, and he sustained a straining-type injury to his back as he was lifting a carton of canned goods.

Plaintiff had worked as a stocker for defendant in that store for about ten months before this accident occurred. His principal duties were to keep the shelves on several aisles in the store stocked with merchandise. Most of the goods which were placed on the shelves were obtained from a storeroom in the rear of the store, and they were transported to the proper shelves on handcarts or flats which were not motorized or powered in any way. It was plaintiff's job to mark the prices on these goods and then to place them on the shelves.

Although Fontenot's principal duties were to mark merchandise and restock shelves, he also was required to assist in unloading large van-type trucks owned by defendant and used by it in delivering merchandise to its various stores. Some of the merchandise was kept in a storeroom located in the rear of the store and in a cold storage or freezer room maintained by defendant in the store building. Plaintiff frequently entered this storeroom and the cold storage room. He also was required at various times to serve as a cashier or checker in the front of the store, and while doing so he used a cash register and an electrically-driven conveyer belt located near the register. On at least two occasions while working for defendant he used his own automobile to deliver items of merchandise to other stores.

The operation of a retail grocery store is not listed as a hazardous business in LSA-R.S. 23:1035, an our jurisprudence is settled that the operation of such a store is not hazardous per se. Boggs v. Great Atlantic & Pacific Tea Company, 125 So.2d 419 (La.App . 3 Cir. 1960); Talbot v. Trinity Universal Insurance Company, 99 So .2d 811 (La.App. 1 Cir. 1957); Le Blanc v. National Food Stores of Louisiana, Inc., 118 So.2d 500 (La.App. 1 Cir. 1960); Pinchera v. Great Atlantic & Pacific Tea Company, 206 So.2d 793 (La.App. 2 Cir. 1968).

Although the main business of the employer is neither hazardous per se, nor declared to be hazardous by the compensation act, an employee may be considered to come under the act in some circumstances where hazardous appliances or equipment are used in the business and the employee, as an integral part of his duties, is regularly exposed to and is frequently brought in contact with the hazardous features of the business. Mercer v. Sears, Roebuck & Company, 155 So.2d 112 (La.App. 3 Cir. 1963).

In the instant suit, the trial judge concluded that Fontenot, as an integral part of his duties, was regularly exposed to and frequently came in contact with hazardous features of the business of his employer, and that he thus was entitled to recover under the compensation act, even though he was injured while performing non-hazardous duties. Defendant contends that the trial court erred in reaching that conclusion.

The evidence shows that Weingarten maintained and operated a number of van-type trucks which it used to deliver merchandise to its various stores. Almost daily some of these trucks were brought to the rear of the store where plaintiff worked, and plaintiff assisted in unloading them. He often went inside the vans while helping in these unloading operations. Usually the tractor was separated from the van after the latter was parked, and when that occurred plaintiff did not work around any machinery as he assisted in unloading the vans. Occasionally, however, the tractor remained attached to the van when fresh produce was delivered and while the van was being unloaded. Plaintiff did not ride in trucks at any time, and he had nothing to do with the operation or repair of the motors or engines in those vehicles.

A device called a 'roller' was used by plaintiff and his co-workers in unloading the vans. This roller, or conveyer, consisting of an aluminum frame with a number of small rollers on it, was constructed in such a way that heavy cartons of merchandise could slide or roll easily over the length of the frame. It was not motorized or powered in any way.

Plaintiff contends that he was performing duties of a hazardous nature since he was required to work around trucks and to use the above-described metal rollers in the performance of his duties.

In Boggs v. Great Atlantic & Pacific Tea Company, supra, the decedent's duties were similar to those of the plaintiff in the instant suit. There, Boggs regularly unloaded trucks, using metal rollers in doing so and using hand trucks to transport the goods into the store. He also occasionally was required to take groceries out of the store to the automobiles of customers. We held that his contact with motor vehicles under those circumstances, and his use of metal rollers in unloading trucks, were not sufficient to make his employment hazardous, and that he thus was not subject to the provisions of the Workmen's Compensation Act.

Our brothers of the First Circuit Court of Appeal held in Allen v. Yantis, 196 So 530 (La.App. 1 Cir. 1940), that an employee on a farm who regularly assisted in loading and unloading a truck and rode in it occasionally, but did not drive it, was not engaged in a hazardous feature of the employment. In so holding, the court said:

'* * * the farmer who regularly uses a motortruck in his farming operations may be said to be engaged in a hazardous business only as ot the driver or operator of the truck, and not as to those who load and unload that truck with cotton, corn, potatoes and other farm produce. * * *

'For us, we can see no more hazard involved in loading and unloading, and occasionally riding on for that purpose, a farm truck, than in loading and unloading and riding on a wagon drawn by horses or mules. In fact, there would be less danger in loading and unloading a truck standing with the gasoline cut off than in loading or unloading a wagon with one or more fractious or kicking mules or horses hitched to it. Some of us brought up on the farm are familiar with the dangers incident to the latter operation. Of course, this does not apply to the driver or operator of the motortruck whose duties are declared by the law itself to be hazardous.'

In Horton v. Western Union Telegraph Co., 200 So. 44 (La.App. 2 Cir. 1941), it was held that an employee who used a bicycle to deliver telegrams, and thus was exposed to the dangers and hazards of motor vehicle traffic on streets and highways, was not engaged in a hazardous feature of an otherwise non-hazardous business.

Our appellate courts have held consistently that an employee in a non-hazardous business, such as a grocery store, will not be considered as being engaged in a hazardous feature of that business, and thus subject to the provisions of the compensation act, simply because he loads and unloads purchases into the automobiles of customers. Fields v. General Casualty Co. of America, 216 La. 940, 45 So.2d 85 (1950); Hammer v. Lazarone, 87 So.2d 765 (La.App. 2 Cir. 1956).

The above-cited cases indicate the plaintiff in the instant suit should not be considered as having performed hazardous duties simply because he assisted in loading and unloading trucks. There are other cases, however, which tend to show that he should. See Allen v. Travelers Insurance Company, 124 So.2d 367 (La.App. 1 Cir. 1960); Richardson v. Crescent Forwarding & Transportation Co., 17 La.App. 428, 135 So. 688 (La.App.Orls.1931); Snear v. Eiserloh, 144 So. 265 (La.App.Orls.1932). We, however, distinguish each of the cited cases from the instant suit. In the Richardson and the Snear cases the evidence showed that the employee in each instance was required to ride in the trucks, as well as to unload them. In Allen v. Travelers Insurance Company, supra, the case was remanded for trial because there was no showing in the petition as to whether plaintiff was required to ride in the vehicles or to work about the machinery.

In our opinion, the unloading of merchandise from a parked, van-type truck is no more hazardous than moving the merchandise from one part of the store to another. In the instant suit, plaintiff did not work around or come in contact with machinery or moving vehicles as he unloaded the trucks. We do not feel that the mere fact that the van had once been attached to a tractor, or was still attached to it while parked at the grocery store, was sufficient to classify the job of unloading the van as being hazardous.

Plaintiff contends that the defendant operates a 'warehouse' in connection with the store in which he was employed, and that his...

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