Gray v. Broadway

• Decision Date: 05 November 1962
• Docket Number: No. 645,645
• Citation: Gray v. Broadway, 146 So.2d 282 (La. App. 1962)
• Parties: Lee Russell GRAY, Plaintiff-Appellant, v. Roy BROADWAY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana

Page 282

146 So.2d 282

Lee Russell GRAY, Plaintiff-Appellant, v.Roy BROADWAY et al., Defendants-Appellees.

No. 645.

Court of Appeal of Louisiana, Third Circuit.

Nov. 5, 1962.

Booth, Lockard, Jack, Pleasant & LeSage, by James J. Thornton, Jr., Shreveport, for plaintiff-appellant.

Hall & Coltharp, by L. H. Coltharp, Jr., DeRidder, for defendants-appellees.

Before TATE, SAVOY, and HOOD, JJ.

TATE, Judge.

The plaintiff was injured in a truck accident.By this suit he claims workmen's compensation benefits from his employer, Broadway, and the latter's compensation insurer.The trial court dismissed this suit, and the plaintiff appeals.

The trial court summarized the principal issue and the relevant facts concerning this issue, as follows:

'From the testimony adduced on trial of the case, on the morning of February 27, 1960, claimant reported to work and was told by his employer that he was to drive a certain truck in the hauling of pulpwood that day.The employer told the claimant that he was to report to a certain section of the woods as soon as a helper arrived and that he, the employer, was going to go ahead of the claimant to the area to which the claimant was to report.

'After the employer left for the appointed place in the woods, the claimant discovered that he had left his driver's license at home, whereupon, he decided he should go home first to get his driver's license.He took the employer's truck as a means of conveyance to his home, and while on the way to his residence, which was some three miles from Robeline, Louisiana, the location of the employer's place of business, the truck the claimant was driving turned over, and in this accident he received certain injuries.

'The key question to be first resolved is whether or not the injuries received by the claimant arose out of and in the course of his employment.'

The trial court then held that the claimant's injuries did not arise out of his employment because, in going home to get his driver's license, he was on a personal mission at the time of the accident, even though the duties of his employment included driving his employer's truck on the highways.(The trial court noted: 'As far as this employer was concerned, this claimant could just as well drive the truck with his license at home as on his person, as the employer's only responsibility is to make certain that a license has been issued to a driver.')

Although the trial court's factual findings are disputed, we find them to be supported by the evidence and adopt them as our own.

However, the trial court's conclusion that, under these facts, the plaintiff's injuries did not arise out of his employment, is inconsistent with the holdings in the recent decisions of this court, Castille v. Traders & General Ins. Co., La.App., 137 So.2d 396andAlexander v. Insurance Company of the State of Pennsylvania, La.App., 131 So.2d 558, neither of which decisions was called to the attention of the trial court.

In the latter case, we summarized the law and jurisprudence concerning the principal issue herein as follows, 131 So.2d 560:

'An employee protected by the Louisiana statute is entitled to receive workmen's compensation if disabled 'by accident arising out of and in the course of his employment.'LSA-R.S. 23:1031.As stated in Kern v. Southport Mill, 174 La. 432, 141 So. 19, 21, a leading case on the subject: For purposes of the workmen's compensation act, 'an accident occurs In the course of an employment when it takes place during the time of such employment' and it Arises out of the employment when it is 'the result of some risk to which the employee is subjected in the course of his employment to which he would not have been subjected had he not been so employed'.In a later leading case, Edwards v. Louisiana Forestry Commission, 221 La. 818, 60 So.2d 449, our Supreme Court held an employee's disability compensable as arising out of and in the course of his employment, even though when incurred in departing from the post of duty in order to rescue a child attacked by a large dog, because the rescue attempt 'was reasonably within the scope of those things contemplated by his employment.'60 So.2d 454.

'Thus, in St. Alexandre v. Texas Co., La.App. Orleans, 28 So.2d 385, certiorari denied, compensation was awarded to an employee injured while getting a soft drink away from the bulk plant where he worked and while visiting temporarily in the main office of his employer.Likewise, in Rigsby v. John W. Clark Lbr. Co., La.App., 28 So.2d 346, certiorari denied, a bookkeeper received compensation, although injured when voluntarily and in excess of his assigned duties attending to a broken telephone wire dangling on the approaches to his employer's premises.

"An employee is within the course of his employment where he is doing the work that he was engaged to do or an act or service naturally related or incidental thereto, Or those reasonable things expressly or impliedly authorized by his contract of employment,' 99 C.J.S.Workmen's Compensation§ 216, p. 711.(Italics ours.)'Acts necessary to the life, comfort or convenience of an employee while at work, although personal to him and not technically acts of service, are incidental to the service, and an injury occurring while in the performance of such acts is compensable as 'arising out of', and 'in the course of', the employment.'99 C.J.S.Workmen's Compensation§ 220, pp. 722--723.'

Applying these standards, we held in the Alexander case that an...