Hall v. Sears, Roebuck & Co.

• Decision Date: 07 April 1969
• Docket Number: No. 3166,3166
• Citation: 221 So.2d 642
• Parties: Irma Tuggle HALL, wife of/and Leonard P. Hall, Jr. v. SEARS, ROEBUCK & COMPANY, Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 642

221 So.2d 642

Irma Tuggle HALL, wife of/and Leonard P. Hall, Jr. v. SEARS, ROEBUCK & COMPANY, Inc.

No. 3166.

Court of Appeal of Louisiana, Fourth Circuit.

April 7, 1969.

Rehearing Denied May 5, 1969.

Henican, James & Cleveland, Murray F. Cleveland and Carl W. Cleveland, New Orleans, for plaintiffs-appellants.

Favret & Favret, Clarence F. Favret, New Orleans, for defendant-appellee.

Before REGAN, SAMUEL and REDMANN, JJ.

SAMUEL, Judge.

This is a suit for workmen's compensation. Plaintiffs are the employee, Mrs. Irma Tuggle Hall, who seeks recovery for total and permanent disability benefits, penalties and attorney's fees under the act, and her husband, Leonard P. Hall, Jr., whose claim is limited to medical expenses incurred on his wife's behalf. The sole defendant is the wife's employer, Sears, Roebuck & Company, Inc. After trial there was judgment in favor of the defendant and against the plaintiffs, dismissing the latters' suit. Plaintiffs have appealed.

Plaintiff (we will use this designation with reference to the employee, Mrs. Hall) was employed by the defendant as an assistant security officer in its department store in the Oakwood Shopping Center. The store building consisted of two floors and was serviced by an escalator, an elevator and a stairway. The back injury which forms the basis of this suit occurred as follows: While walking around the lower floor on the lookout for shoplifters, plaintiff heard a child scream near the foot of the escalator. The child had injured one of his fingers which was bleeding profusely. She picked the child up and, using the escalator, carried him to the first aid station on the second floor. The child was crying and struggling because of pain from the injured finger and the sight of blood. When she put the little boy down on a bed in the first aid station she felt a tug in her back. That night she had headaches and severe back pains.

The judgment appealed from is based on the trial court's factual finding and conclusion that defendant's business was nonhazardous within the meaning of, and therefore not covered by, the Louisiana Workmen's Compensation Act and plaintiff was not injured while performing hazardous duties in the nonhazardous business of her employer. These two issues are the primary ones presented for our consideration. If those findings and conclusions of the trial court are correct the judgment appealed from must be affirmed.

Our settled jurisprudence, including several cases involving the present defendant, is that under the provisions of LSA-R.S. 23:1035 the operation of a department store, or a retail general mercantile establishment, is not hazardous per se. Richard v. United States Fidelity & Guaranty Co., 247 La. 943, 175 So.2d 277; Honeycutt v. Sears, Roebuck & Company, La.App., 146 So.2d 860; Allen v. Travelers Insurance Company, La.App., 124 So.2d 367; Stockstill v. Sears-Roebuck & Company, La.App., 151 So. 822.

Plaintiffs contend Mrs. Hall's employment must be regarded as hazardous because she was engaged in hazardous features of the defendant's business in the following respects: (1) she worked prior to the completion of the store while heavy machinery, electrical wires, burglar alarms, etc. were being installed; (2) she was required to cross a dangerous parking area to reach the automotive department located approximately 300 feet away from the main building; (3) she was required to look for thieves and shoplifters and to apprehend and detain them when found, thus being constantly exposed to the danger of assault; and (4) in the regular performance of her duties she was frequently required to use the escalator.

We do not agree...