Foster v. Western Elec. Co.

• Decision Date: 01 February 1972
• Docket Number: No. 11754,11754
• Citation: 258 So.2d 153
• Parties: Albert FOSTER et ux., Plaintiffs-Appellants, v. WESTERN ELECTRIC COMPANY, Inc., Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 153

258 So.2d 153

Albert FOSTER et ux., Plaintiffs-Appellants, v. WESTERN ELECTRIC COMPANY, Inc., Defendant-Appellee.

No. 11754.

Court of Appeal of Louisiana, Second Circuit.

Feb. 1, 1972.

Lewis Weinstein, Shreveport, for plaintiffs-appellants.

Cook, Clark, Egan, Yancey & King by Gordon E. Rountree, Shreveport, for defendant-appellee.

Before BOLIN, PRICE and HEARD, JJ.

BOLIN, Judge.

Clara Foster and her husband, Albert Foster, brought this tort action against Western Electric Company, Inc., seeking damages for injuries, loss of wages and related medical expenses occasioned when Mrs. Foster slipped and fell in the cafeteria of defendant company where she was employed by Pickett Food Service which operated the cateteria. Defendant filed a general denial and answer in which it alleged Mrs. Foster, who had received a workmen's compensation settlement from Pickett's insurer for the aforesaid injuries, has no remedy in tort against Western Electric but is relegated to her recovery under the Workmen's Compensation Act. From judgment rejecting plaintiffs' demands they appeal. The judgment is affirmed .

In addition to the defense outlined above, defendant alternatively alleged there was no negligence on the part of defendant or any of its employees or agents which was the proximate cause of Mrs. Foster's injury; further, in the alternative, it pleads plaintiff was contributorily negligent.

There is little dispute as to the facts. On November 1, 1968, Clara Foster was an employee of Pickett Food Service which was under contract with Western Electric to supply food services at the Western Electric plant in Shreveport, Louisiana. The facilities were apparently built and maintained by Western Electric, which employed some 3400 persons in its local plant. These employees worked in shifts and many of them ate one or two meals a day at the cafeteria at various times. Pickett purchased and brought in the food which was prepared in Western Electric's kitchen. All personnel connected with operation of the cafeteria were employees of Pickett.

On the day of the accident Mrs. Foster walked into the kitchen area after her lunch break and as she passed near a sink she slipped and fell, causing the injuries of which she complained. It was determined the fall was caused from water on the concrete floor which she had failed to observe.

Mrs. Foster made a workmen's compensation claim against Pickett and its compensation insurer, Maryland Casualty Company, and was paid benefits by Pickett and Maryland in the total amount of $2865, together with medical expenses in the amount of $1147.91. On June 16, 1969, Mrs. Foster, represented by an attorney, entered into a workmen's compensation settlement with Pickett and Maryland which settlement was approved by the Caddo Parish District Court. Subsequent to the settlement Mrs. Foster instituted this action against Western Electric.

The issues confronting this court are: does Mrs. Foster, having received workmen's compensations from her immediate employer, have a right in tort against Western Electric; if this question is answered affirmatively, have plaintiffs proved the fall was caused by defendant's fault?

We shall direct our attention first to the question of whether Mrs . Foster's exclusive remedy is her right to recover workmen's compensation benefits.

The statutory basis of Western Electric's defense is Louisiana R.S . 23:1032, 1061. Louisiana R.S. 23:1061 provides:

'Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him. . . .'

Louisiana R.S. 23:1032 provides,

'The rights and remedies herein granted to an employee or his dependent on account of a personal injury for which he is entitled to compensation under this Chapter shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations. . . .'

The law is clear that when an employee of an independent contractor is injured by the negligence of the principal for whom the independent contractor is performing the service, the employee has no right to recover in tort from the principal if the work being performed was a part of the usual trade, business, or occupation of the principal (necessary, essential, and integral part of the principal's business), and the employee's exclusive remedy, against either his own employer or the principal, is in workmen's compensation.

Western Electric contends the food service provided by its contractor is a part of its trade, business, or occupation, and the Fosters' exclusive remedy against Western Electric is workmen's compensation benefits.

To support this contention defendant called two witnesses. Mr. Jim Bolch and Mr. O. J. Belin. Bolch, department chief from Western Electric in charge of public and community relations, training, security, and restaurant operations testified he had no knowledge of the accident itself, but was called for the purpose of describing the relationship between Western Electric and Pickett Food Service, the delineation of responsibility in the maintenance area between...