Freeman v. Clark
| Decision Date | 14 June 1956 |
| Docket Number | No. 8509,8509 |
| Citation | 88 So.2d 419 |
| Parties | Jessie L. FREEMAN, Plaintiff-Appellee, v. Dr. Albert Irving CLARK, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Wilson, Abramson & Maroun, Jack H. Kaplan, Shreveport, for appellant.
Malcolm E. Lafargue, Shreveport, for appellee.
Jessie L. Freeman obtained a judgment for workmen's compensation as for total and permanent disability from which defendant has appealed. In assigning error and denying liability, appellant contends that Freeman's employment was not hazardous within contemplation of the Employers' Liability Act, LSA-R.S. 23:1021 et seq., that he provoked the difficulty which led to his injury and, finally, that his disability resulted from intoxication.
Plaintiff on June 19, 1954, received a stab wound in the left arm with injury to the radial nerve, at which time he was acting in the course and scope of his employment as a salesman and collector. During the previous week plaintiff was shown the route assigned to him and received instruction in his duties connected with collections and the sale of merchandise consisting of clothing, ready-to-wear, bed spreads, towels, household appliances, television sets, and practically everything in the household line. In order to cover his route and supply his customers his employment required that he own a car or truck and plaintiff did so provide a truck which was owned by him and used to carry on his work. The goods tendered for sale were kept in defendant's warehouse from which they were loaded into plaintiff's truck and as sold, delivered direct to his customers. Freeman was remunerated with a commission of 30% of his sales. He received $75 for his first week's employment but was informed by his employer he should thereafter realize $125 per week. His employer retained the right to discharge the employee at any time.
While being assigned his route and introduced to his customers he visited the house of Aggie Shelton, a Negro woman, to make a collection, and was advised by her to come back on the following Saturday, June 19th, and she would pay something on the account. On the Saturday aforesaid Freeman was making his route in his truck for the purpose of collecting for prior sales and he started work early that morning. After working all day, about 8:00 o'clock in the evening he drove his truck to Aggie Shelton's house. An argument concerning the promised payment ensued and Aggie Shelton left the porch where the discussion was taking place and went inside the house, which was dark. Plaintiff was holding in his hands his collection cards and a pencil when he was stabbed with a butcher knife through the screen door. Freeman then left and drove to his lodging and after receiving some first aid assistance from his neighbors, he was carried in an ambulance to a hospital where he remained until Monday afternoon under treatment by Dr. James W. Tucker.
Counsel for appellant earnestly argues the business of the defendant was not hazardous within the meaning of the Workmen's Compensation Act, principally resting his contention on the holding of this court in Reagor v. First National Life Insurance Company, La.App.1946-1947, 28 So.2d 527, 212 La. 789, 33 So.2d 521, Id., La.App., 85 So.2d 312. It is well settled by our jurisprudence that it is not the work performed by the particular employee which determines whether the employer is engaged in an occupation contemplated by the statute. Consideration of the duties of a particular employee are important only to the exent that those duties may indicate the nature of the business in which the master or the employer is engaged; for whatever may be the duties of the employee, the act has no application unless a trade, business or occupation of the employer brings him under it. The statute itself so provides: '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'. LSA-R.S. 23:1035.
The very nature of defendant's business involved the use of trucks in the delivery of merchandise and the instant employee was required to own and drive such a vehicle. The operation of the motor vehicle unquestionably was a necessary incident in the master's business and, therefore, a hazardous feature which subjected defendant to the provisions of the Workmen's Compensation Statute. The following decisions are authoritative and informative upon the announced principle:
Franz v. Sun Indemnity Company of New York, La.App.1942, 7 So.2d 636 and Richardson v. Crescent Forwarding & Transportation Company, Ltd., 1931, 17 La.App. 428, 135 So. 688; Haddad v. Commercial Motor Truck Company, 1920, 146 La. 897, 84 So. 197, 9 A.L.R. 1380; State v. Lanasa, 1922, 151 La. 706, 92 So. 306; Holland v. Continental Casualty Company, La.App.1934, 155 So. 63; Crews v. Levitan Smart Shops, Inc., La.App.1937, 171 So. 608; Pierre v. Farm Development Corporation, La.App.1949, 39 So.2d 154; Fields v. General Casualty Company of America, La.App.1948, 36 So.2d 843, affirmed 216 La. 940, 45 So.2d 85; Livingston v. Henry & Hall, La.App.1952, 59 So.2d 892; Troquille v. Lacaze's Estate, La.App.1952, 59 So.2d 505, Id., 1953, 222 La. 611, 63 So.2d 139; Edwards v. Louisiana Forestry Commission, 1952, 221 La. 818, 60 So.2d 449.
We think the Reagor case inapposite. Our opinion was reviewed by the Supreme Court and although the exception of no cause and no right of action sustained by the district court and this court was affirmed, the case was remanded by the Supreme Court to permit plaintiff to amend his petition to state a cause of action. See Reagor v. First National Life Insurance Company, 1946-1947, 212 La. 789, 33 So.2d 521, 522. In remanding the case, the Supreme Court declared:
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