Hammer v. Lazarone, 8502

• Decision Date: 21 May 1956
• Docket Number: No. 8502,8502
• Citation: 87 So.2d 765
• Parties: Ellis H. HAMMER, Sr., Plaintiff-Appellant, v. John A. LAZARONE et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 765

87 So.2d 765

Ellis H. HAMMER, Sr., Plaintiff-Appellant, v. John A. LAZARONE et al., Defendants-Appellees.

No. 8502.

Court of Appeal of Louisiana, Second Circuit.

May 21, 1956.

Gravel, Humphries, Sheffield & Mansour, Alexandria, for appellant.

Stafford & Pitts, Alexandria, for appellees.

AYRES, Judge.

Plaintiff instituted this action for and on behalf of his minor son, hereinafter designated employee, against the workmen's compensation insurer of his son's employer for compensation at the maximum statutory rate and as for total and permanent disability.

Defendants filed an exception of no cause or right of action, predicated on these propositions: (1) That the employee was not engaged in a hazardous occupation and (2) that the employee was injured outside the course and scope of his employment.

On the basis of the second of defendants' contentions, the trial court sustained the exception. From a judgment accordingly dismissing his suit, plaintiff appealed.

A consideration of the issues presented requires a statement of the alleged facts. The employer is alleged to own and operate a drive-in cafe and restaurant located on Lee Street in the City of Alexandria, Louisiana, where plaintiff's son was employed as a waiter or 'car-hop'. The son's duties were to serve the patrons in their cars in the parking area of the restaurant and, in the performance thereof, it was necessary that he come in contact with such motor vehicles as they arrived and departed and moved upon the lot. It was additionally alleged that plaintiff's son was required to work in the kitchen in close contact with a mechanical potato peeler, cooking grills and other mechanical, electrical and gas equipment, and, too, that in the conduct of the business the employer owned and operated a motor truck. A further contention was made that the employee and other personnel of the restaurant habitually parked their automobiles across Lee Street from the restaurant as they were required to park outside the employer's premises.

On the occasion of the accident out of which this action arose, it is alleged that, after the completion of the night's work, the employee left the place of business in the early hours of the morning of November 8, 1954, and crossed Lee Street where his car was parked the night before, preparatory to returning to his residence; that he had difficulty in starting his car, whereupon, with the assistance of two others, he began pushing his automobile south along the curb on Lee Street, and that during this operation the employee was struck by an automobile driven by William B. Alexander.

Consideration is first directed to the issue secondly enumerated hereinabove. It was, as heretofore stated, upon the sustaining of defendants' contention in that regard that the exception was sustained. In sustaining this contention, the trial judge stated:

'The question here is whether plaintiff's injury comes within the 'threshold doctrine'. As a general rule an accident which takes place when an employee is going to or from work does not give rise to liability for compensation unless the employer is furnishing the transportation. Neyland v. Maryland Casualty Co. [La.App.], 28 So.2d 351. However, our jurisprudence has established an exception to this general rule and this exception is known as the 'threshold doctrine'. In the case of Attaway v. Fidelity [&] Casualty Co. of New York [La.App.], 39 So.2d 632 cited by plaintiff, the Court allowed recovery where an employee had to cross dangerous railroad tracks in order to get to his employer's premises and plaintiff was actually injured while crossing these tracks. In the case of Ward v. Standard Lumber Co., 4 La.App. 89, cited by plaintiff, the Court allowed recovery where an employee was on his way to lunch at the noon hour and while crossing the highway at a point contiguous to employer's premises he was struck by an automobile being driven by a fellow employee.

'In the case of LeBlanc v. Ohio Oil Co., 7 La.App. 721, recovery was allowed where the plaintiff was injured while crossing a public road which lead through his employer's premises on his way to work.

'It must be noted that in all of the cases cited by plaintiff the Court allowed recovery where the employee was actually injured at the time he was leaving or going to his employment and crossing the highway, railroad tracks, etc. The Courts have never extended this doctrine to allow compensation in a case where an employee has actually completed the crossing of the street and has already successfully surmounted the hazards surrounding his place of employment. As a matter of fact the case of Walker v. Lykes Bro[thers]-Ripley Steamship Co. [La.App.], 166 So. 624 , presented a factual situation almost identical to the one set forth by the allegations of the petition in the present case, and the Court in denying recovery held as follows:

"Can it be said that a servant, after successfully surmounting the obstacles surrounding him, may again, of his own volition, bare himself to such risks at a different location, for strictly private purposes, and thereby create liability on the part of the master who has lost, actually and constructively, all supervision and control over the servant's movements? We think not. The act of the plaintiff was one personal to himself. Thus the resulting accident could not and did not have any causal connection with the business of his master. Neither did his injuries occur during the course of his employment nor arise out of his relationship with the defendant. Compare Cudahy Packing Co. of Nebraska v. Parramore [263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366]; Bountiful Brick Co. v. Giles, supra, and [276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507], LeBlanc v. Ohio Oil Co., 7 La.App. 721."

In the instant case, from plaintiff's allegations, it clearly appears that the employee, after his employment had ceased for the night, left the employer's premises and crossed the street to the lot beyond where he had parked his automobile the night before. After reaching his automobile, he experienced difficulty in starting the motor, whereupon, with the assistance of others, the car was pushed south on Lee Street near the curb, where the accident occurred. While plaintiff contends that it is not alleged that the employee crossed and then reentered the street, no other conclusion could be reached. On reaching the parking lot beyond the street, the employee surmounted the hazards of such crossing which may have had connection with his employment. His reentry into the street was an exposure to new risks at a different location while in pursuit of a private purpose wholly disconnected with his employment. It is immaterial that the accident occurred within a short distance of the place where the employee worked or where he had just recently crossed the street, or, for that matter, that he reentered the street and subjected himself to such new risks and hazards at the precise point at...