Fontenot v. Myers

• Decision Date: 02 January 1957
• Docket Number: No. 4320,4320
• Citation: 93 So.2d 245
• Court: Court of Appeal of Louisiana — District of US
• Parties: Elza FONTENOT, Plaintiff-Appellant, v. R. L. MYERS, d/b/a Myers Garage, Defendant-Appellee.

Page 245

93 So.2d 245

Elza FONTENOT, Plaintiff-Appellant, v. R. L. MYERS, d/b/a Myers Garage, Defendant-Appellee.

No. 4320.

Court of Appeal of Louisiana, First Circuit.

Jan. 2, 1957.

Rehearing Denied March 25, 1957.

Tate & Tate, Mamou, for appellant.

Guillory & Guillory, Eunice, for appellee.

TATE, Judge.

While roping cattle at work for defendant Myers on April 15, 1955, plaintiff Fontenot allegedly sustained a rope burn on his left hand which due to subsequent complications, remains disabling. Plaintiff appeals from judgment dismissing his suit for workmen's compensation benefits.

The District Court's reasons for judgment, in full, are:

'The evidence shows that if, as a matter of fact, the plaintiff was injured while in the employ of the defendant, the injury was received while engaged in working with cattle which were owned by the defendant and kept at a place separate from that of defendant's main business, an automobile wrecking and junk yard.

'The plaintiff was employed to sell parts from wrecked automobiles which had been purchased by the defendant and placed on his junk yard. The plaintiff's salary was $5.00 a day or $30.00 a week and a house to live in.

'It is the Court's impression from the testimony that the cattle operation was separate and distinct from the junk yard and the plaintiff's connection therewith was under a separate agreement under which the plaintiff was to milk and look after the cattle, for which he received half of the milk.

'Consequently, the Court is of the opinion that there should be judgment in favor of the defendant and dismissing plaintiff's suit.'

The uncontradicted facts reveal that plaintiff was employed by Myers, the defendant, at a daily wage of $5 a day. He worked a 10-hour day, from two to three hours on a farm belonging to the defendant, and approximately seven hours a day in a junk yard, operated and owned by the defendant. In addition to the cash wage, plaintiff received free housing at the junk yard site and retained approximately three quarts of milk per day from the defendant's cows.

Plaintiff's employment in the junk yard consisted of selling parts from wrecked automobiles, some of which he would remove with small hand tools from the junked cars. In the morning and in the late afternoon, plaintiff went to defendant's farm, which was approximately a mile or two away from the junk yard, to milk 1--2 cows belonging to the defendant, and to feed approximately 60 other cattle.

Whether defendant's affirmative answer on Tr--16 to a long question lumping all of plaintiff's alleged duties indicates an intentional response admitting plaintiff's performance of such undoubtedly hazardous duties at the junk yard as operating defendant's wrecker, delivering parts, etc., is disputed by counsel (but of Tr--132, where defendant Myers admitted plaintiff had the use of defendant's truck around the junk-yard); but is in our view immaterial, since LSA-R.S. 23:1035 specifically provides that the Louisiana workmen's compensation act '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 operation, construction, repairs, removal, maintenance and demolition of * * * Junk yards * * *'. (Italics ours.)

Whether comparatively hazardous or not, the work of selling and dismantling junked parts is 'a part of the principal physical operations of a business which the act Specifically designates as hazardous' so as to entitle an employee injured in the course of these duties to compensation, Malone, Louisiana Workmen's Compensation Law, Section 98 et seq., quoted p. 116. The Legislature has specifically declared that the business of operating a junk yard is hazardous and that the employees engaged therein are protected by the compensation act. It is not open to the courts to question this classification, or to attempt to segregate the ordinary work involved in such operation into hazardous and non-hazardous duties, and then affirm the coverage of the act as to one and deny it to the other.

But the employee in the present case was not injured in the performance of the duties which can be attributed specifically to operation of the junk yard.

We cannot agree that the cases cited can be relied upon to support the District Court's legal conclusion and the defendant's astutely argued contention that because the cattle operations of the defendant were separate and distinct from the business of the junk yard, plaintiff ipso facto cannot recover compensation for injuries sustained in the cattle operations.

Mitcham v. Urania Lumber Company, La.App. 2 Cir., 185 So. 707, and Caldwell v. George Sproull Co., La.App. 2 Cir., 164 So. 651, affirmed 184 La. 951, 168 So. 112, are simply authority for the proposition that when an employer maintains two businesses, one hazardous and the other non-hazardous, an employee Engaged to perform duties solely in the non-hazardous business and injured at said work cannot recover compensation simply because his employer maintains other and separate operations covered by the act. Brownfield v. Southern Amusement Company, 196 La. 73, 198 So. 656, simply holds that Occasional performance of hazardous duties by one employed In a non-hazardous business does not render compensable an accident sustained in the performance of non-hazardous duties.

Thus, in the present case, if Fontenot had been employed solely to perform duties in connection with the cattle business, an accident while at work thereat would not have been compensable just because the employer also maintained the hazardous business of the junk yard or just because Fontenot occasionally had performed duties in connection with this other and hazardous business.

As stated in the Brownfield case, 198 So. 660, 'It is well settled in this State that where an employee is engaged in both hazardous and nonhazardous work in the same employment, his injury is compensable though it may occur in the performance of a nonhazardous portion of his work Byas v. Hotel Bentley, 157 La. 1030, 103 So. 303.'

A comprehensive discussion of the question is contained in the decision of this Court in Harrington v. Franklin's Stores Corporation, 55 So.2d 647, 649, wherein after remarking that 'the nature of the employer's business and not the particular work done by the employee is the determinative factor' in deciding whether a given employment is covered by the compensation act, we summarized the Byas case as holding as to a 'partially hazardous employment' that 'where an employee is required to discharge both hazardous and nonhazardous duties it is immaterial that the injury occurred while he was engaged in non-hazardous work.' We distinguished that situation, wherein compensation Is allowed even where the injury occurs while performing non-hazardous duties, from the Brownfield situation, 'when the employee performs only occasionally acts that can be regarded as hazardous, and is injured in the course of his normal nonhazardous work', wherein compensation is Not allowed.

We cannot construe the record to support a finding that plaintiff enjoyed two separate employments with defendant, one in the hazardous junk business, and one in the non-hazardous cattle business. Plaintiff was paid but one wage, $5 per day, plus his house, and the major portion of his duties was in the junk business, although he was required to spend two or three hours per day attending defendant's cattle. We do not feel that the evidence supports a finding that the plaintiff milked defendant's cows and fed his cattle for 2--3 hours per day, for the obviously inadequate compensation of three quarts of raw milk a day; we feel, rather, the employee's cattle duties were incidental to those of his major employment at the junk yard at $5 per day. Plaintiff had started working for defendant in 1952 as a car salesman, and had then been transferred to the junk yard as defendant went out of the used car business; the bulk of the cattle were bought 5--6 months before the alleged accident, in a fattening or feeder operation, and they were sold in June of 1955, a month or so after the accident.

The situation is similar to that in Dobson v. Standard Accident Insurance Company, 228 La. 837, 84 So.2d 210, where an employee engaged in an admittedly hazardous business was sent by his employer to perform repairs at the employer's residence. The Supreme Court rejected the contention that such personal services were not incidental to the covered employment, quoting from Kern v. Southport Mill, 174 La. 432, 141 So. 19, 20, and holding, 84 So.2d 212:

'* * * whenever the employer calls upon the employee to render any particular service, he, at least (that is to say, the employer himself), is in no position any longer to deny that the services thus requested arise out of and are incidental to the employment. Otherwise, by what right has the employee been called upon to perform them?'

Studious and ingenious counsel for defendant also relies upon cases such as Dewey v. Lutcher-Moore Lumber Company, 151 La. 672, 92 So. 273, Gray v. Tremont Lumber Company, La.App. 2 Cir., 185 So. 314, and Hinton v. Louisiana Central Lumber Company, La.App. 2 Cir., 148 So. 478, which held that non-hazardous employments (such as janitor or scavenger) incidental to logging operations (specified as hazardous by the compensation act) were not covered. These cases are distinguishable because the employee's duties therein consisted solely of non-hazardous duties which were not part of the principal physical work of logging--whereas in the present situation, the employee's duties were part of the principal physical operations of operating a junk yard which operations themselves the legislature has declared to be hazardous. Further, there is some question as to the validity of the holdings of these cited cases, in view of the...