Guidry v. New Amsterdam Casualty Company

• Decision Date: 30 January 1958
• Docket Number: No. 16664.,16664.
• Parties: Lena GUIDRY, Appellant, v. NEW AMSTERDAM CASUALTY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

252 F.2d 233 (1958)

Lena GUIDRY, Appellant, v. NEW AMSTERDAM CASUALTY COMPANY, Appellee.

No. 16664.

United States Court of Appeals Fifth Circuit.

January 30, 1958.

Robert Weinstein, Henry F. Yoder, Rittenberg, Weinstein & Bronfin, Fred Bronfin, New Orleans, La., John A. Shanks, for appellant.

Harry M. Mayo, Jr., Stanley E. Loeb, Henriques & Mayo, New Orleans, La., for appellee.

Before HUTCHESON, Chief Judge, TUTTLE, Circuit Judge, and HANNAY, District Judge

HUTCHESON, Chief Judge.

This appeal from a judgment denying plaintiff a recovery in a suit for workmen's compensation presents the single question whether plaintiff was under and protected by the Louisiana Workmen's Compensation Act. It comes up in this way. Plaintiff, alleging that, as a nurses' aide in the employ of the Eye, Ear, Nose and Throat Hospital of New Orleans, she was engaged in a hazardous employment,¹ as defined in the Compensation Act, LSA-R.S. 23:1021 et seq., and that she had suffered injuries in the course of that employment, brought this suit against defendant, her employer's insurance carrier, to recover compensation therefor. The insurer defended on the grounds: (1) that the occupation of a nurses' aide is not a hazardous one under the act; (2) that the business of a hospital is not a business defined under the act to be hazardous; and (3) that neither the plaintiff nor her employer was engaged in a business or occupation that is defined to be hazardous under the act.

After a full hearing, the district judge found and concluded that plaintiff had not made out a case under the act. Making and filing a thoughtful and well considered opinion,² in which he set out the facts and fully and carefully canvassed the authorities, he rendered judgment for the defendant.

Here, citing many Louisiana cases and relying particularly on Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303 and Scott v. Dalton Co., La.App., 1 So.2d 412, appellant urges upon us that the evidence showed that her duties as a nurses' aide brought her into contact with hazardous machinery and other hazards, and that the findings and conclusions of the district judge were clearly erroneous and the judgment must be set aside.

On its part, appellee invokes the settled rule that a plaintiff in a compensation case, as in any other case, is charged with the burden of proving his case by a preponderance of the evidence and that where, as here, the case is tried to a judge without a jury and the findings are for the defendant, the burden is heavily upon the plaintiff to show that the findings were erroneous. Pointing to the evidence, to the statute, and to the authoritative cases, it insists that the case was correctly decided below and that there is no basis in fact or in law for overturning the findings and conclusions.

We agree that this is so. The cases from Louisiana and elsewhere³ on the general question involved here, whether under a statute like this one, which applies only to hazardous or extra-hazardous employments, a particular employment is or is not within it, are legion, and while it is well settled in Louisiana that the statute should be given a liberal construction and the decision of each case must turn upon its own facts, it is equally well settled there that it is for the legislature and not the courts to extend the act and that it is essential to recovery that the plaintiff bring himself within it.

The district judge in his opinion recognized the rule of decision prevailing in Louisiana in cases of this kind and gave full effect to the teachings of the cases there.

We find no fault with his judgment or with his opinion. The statement, in the Statutes of Louisiana and in the statutes of the ten other states having similar provisions, of the coverage for compensation in terms of hazardous or extra-hazardous, is not fortuitous. Larson on Workmen's Compensation, "Hazardous Employment", Vol. 1, Sec. 588-60, criticizes the hazardous employment limitation as an inheritance from the pre-1917 period in which there were serious doubts whether a statute not so construed would be constitutionally within the boundaries of the police power. He points out that since New York Central R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, only one state,...