Hall v. Joiner, 5257
| Decision Date | 24 December 1975 |
| Docket Number | No. 5257,5257 |
| Citation | 324 So.2d 884 |
| Parties | Bessie I. HALL, Plaintiff-Appellee, v. Wayne JOINER, Sr., Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Bolen, Halcomb & Bolton by Roy S. Halcomb, Jr., David A. Sheffield, Vincent Hazelton, Alexandria, for defendant-appellant.
Kenneth E. Doggett, Alexandria, for plaintiff-appellee; Wayne D. Joiner, Sr., in pro per.
Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
This is a workmen's compensation suit instituted by Mrs. Bessie I. Hall against her employer, Wayne Joiner, Sr., in which instance the District Court awarded the plaintiff compensation benefits for one hundred weeks under the provisions of LSA-R.S. 23:1221(4)(i) 1 plus medical expenses, but denied her claim for penalties and attorney's fees. From the adverse judgment defendant has appealed, and plaintiff has answered the appeal asking that the judgment be modified to include penalties, interest, and attorney's fees. 2
Defendant owned and operated an eleven-apartment complex at Hot Wells, Rapides Parish, Louisiana. He hired plaintiff to manage the apartments. As compensation for her services she was allowed to live in one of the apartments and received free rent and utilities in addition to a commission-type salary based on the rental receipts of the apartment complex. As manager, it was plaintiff's responsibility to rent the apartments, receive the rent from the tenants, and clean and maintain the premises. As such, she was required to use an electric vacuum cleaner and plug and unplug electric window air conditioners. The trial judge found that plaintiff was on duty seven days a week, 24-hours a day.
Plaintiff contends that she was injured while mowing grass at defendant's apartments on May 10, 1973. She alleged that a rock flew out of the lawn mower and struck her in the eye. Her daughter verified the fact that her mother did receive an injury to the eye on or about May 10th. Defendant was notified of the accident. A neighbor took Mrs. Hall to the Rapides General Hospital on May 16th, and observed that plaintiff's right eye was swollen, almost closed, and appeared to him to be a very painful injury. Defendant himself testified that he observed Mrs. Hall wearing sun glasses, and this was verified by his sons, Wayne, Jr., and Jerry.
Both sides are at odds as to whether or not the plaintiff was required to mow the grass while she was employed by the defendant. She claims that it was part of her duties and the defendant claims otherwise. The trial judge found that on some occasions the plaintiff did in fact now the grass.
The trial judge did not determine whether mowing the grass was a part of her employment. Rather, he suggested that whether the plaintiff was injured as a result of the rock being hurled by the lawnmower operated by her or was injured as a result of someone else operating the lawnmower or even if someone else had thrown a rock and hit Mrs. Hall in the eye, the injury would still have been compensable within the meaning of the compensation statute since it occurred at the place of employment during working hours.
We conclude, as did the trial judge, that the plaintiff was injured in an accident arising out of and in the course of her employment. In the recent case of Lisonbee v. Chicago Mill & Lumber Company, 278 So.2d 5 (La.1973) 3 the question of the legal tests involved were considered as follows:
(1, 2) Section 23:1031 of the Workmen's Compensation Act provides that the employer shall pay compensation to the employee who 'receives personal injury by accident Arising out of and in the course of his employment.' The terms Arising out of, and In the course of are not synonymous. The former suggests an inquiry into the character or origin of the risk, while the latter brings into focus the time and place relationship between the risk and the employment. The two requirements cannot, however, be considered in isolation from each other. A strong showing by the claimant with reference to the Arise-out-of requirement may compensate for a relatively weak showing on the During-course-of requirement, or vice versa. As a corollary it follows that whenever the showing with respect to both requirements is relatively weak a denial of compensation is indicated. Malone, Louisiana Workmen's Compensation, §§ 162, 192.
These concepts are developed from cases interpreting the spare phrases Arising out of the employment, and In the course of the employment. But the question of which risk shall be included within the act and which shall be excluded cannot be decided by phrases. Each case must be determined from its own facts. Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932); Myers v. Louisiana Ry. & Nav. Co., 140 La. 937, 74 So. 256 (1917).
(3) An accident occurs during the course of the employment when it occurs during the time of the employment and at a place contemplated by the employment. Kern v. Southport Mill, supra. . . .
(9) To 'arise out of' the employment, the accident must be the result of some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed. Time, place and circumstance must determine this. Kern v. Southport Mill, supra. Add to this a consideration of the character of the risk, which means 'The accident must be the result of some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed.' . ..'
In Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932), the Supreme Court stated:
'In determining, therefore, whether an accident 'arose out of' the employment, it is necessary to consider only this: (1) Was the employee then engaged about his employer's business and not merely pursuing his own business or pleasure; and (2) did the necessities of that employer's business reasonably require that the employee be at the place of the accident at the time the accident occurred?'
See also Powell v. Gold Crown Stamp Company, 204 So.2d 61 (La.App.2nd Cir. 1967), where the employee was shot by her estranged husband while at work, and the court found this to be a compensable injury, since it occurred at the place of employment, during the time of the employee's employment therein.
We also conclude that plaintiff's employment was hazardous within the intendment of the Louisiana Workmen's Compensation Act. Based on the case of Fontenot v. J. Weingarten, Inc., 259 La. 217, 249 So.2d 886 (1971), plaintiff is covered under the Compensation Act since her employment required that she come into contact with and operate electrical appliances, i.e. a vacuum cleaner and window air conditioning units. Our review of the record amply sustains plaintiff's position that the requirements of her employment necessitated that she operate and be exposed to the electrical appliances frequently enough so as to meet the test in Fontenot, supra. See also Shepherd v. Fort Sherwood Apartments, 270 So.2d 298 (La.App.1st Cir. 1972), writ refused 272 So.2d 375 (La.1973) 'On the facts found by the Court of Appeal we find no error of law in its judgment.' See also Robbins v. Caraway-Rhodes Veterinary Hospital, 315 So.2d 688 (La.1975).
Mrs. Hall was examined by Dr. Lisso Nachman, a board certified ophthalmologist, who treated her until March 6, 1974, at which time she was discharged. Doctor Nachman's examination indicated that the plaintiff had received a traumatic injury to her right eye. The cornea was torn and the eye had become severely infected. The doctor testified:
Doctor Nachman, in response to a specific question answered as follows:
'Question:
Answer: (Emphasis added.)'
Doctor Nachman indicated that plaintiff would be left with a scar and an irregularity in the cornea of the eye, which would impede light going through and produce an irregular stigmatism, and that she would never have any practical vision of her right eye. The doctor estimated that plaintiff lost approximately 80% Of the vision of her right eye as a result of the accident, which in his view left her with a legally blind eye. He opined, however, that she could still perform the duties required by her prior occupation, but that because of employers' reluctance to hire handicapped people, she would be unable to do the...
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