Harrington v. Franklin's Stores Corp. of New Iberia

• Decision Date: 20 December 1951
• Docket Number: No. 3474,3474
• Citation: 55 So.2d 647
• Parties: HARRINGTON v. FRANKLIN'S STORES CORP. OF NEW IBERIA et al.
• Court: Court of Appeal of Louisiana — District of US

Page 647

55 So.2d 647

HARRINGTON v. FRANKLIN'S STORES CORP. OF NEW IBERIA et al.

No. 3474.

Court of Appeal of Louisiana, First Circuit.

Dec. 20, 1951.

Bienvenu & Culver, New Orleans, for appellant.

Jacob S. Landry, Guyton H. Watkins and Jack J. Cousin, all of New Iberia, for appellees.

ELLIS, Judge.

This suit is for workmen's compensation for total and permanent disability for injuries sustained by plaintiff while in the employ of the defendant, Franklin's Stores. This defendant's insuror was joined as a defendant. Exceptions of no legal right of action and no legal cause of action were overruled, and answer filed, and after a trial on the merits judgment was rendered in favor of the plaintiff and against the defendants awarding compensation at the rate of $7.80 per week for a period of thirty weeks. From that judgment defendants have prosecuted this appeal, which was not answered by the plaintiff.

Plaintiff was employed as a maid by the defendant, Franklin's Stores, and her principal duties consisted of general cleaning and the pressing of merchandise used for display in the window with an electrically powered steam iron. In cleaning the store she used an electrically powered vacuum cleaner. While performing her general duties plaintiff fell backward on a stairway from the upper floor of the establishment in which she worked, resulting in injuries, forming the basis of this suit. At the time she was not operating either of the appliances mentioned.

Since there is no dispute over the facts of this case, nor the amount of the award, the sole question presented is whether plaintiff's employment falls within the category of 'hazardous trades, businesses and occupations' covered by the Workmen's Compensation Act, LSA-RS 23:1021 et seq.

Plaintiff contends that the operation of the electric iron and vacuum cleaner makes her employment hazardous and that such instruments are covered under the following language of Section 1, Paragraph 2, of the Workmen's Compensation Act, LSA-RS 23:1035, which enumerates certain hazardous features which have the effect of injecting hazardous elements into businesses otherwise nonhazardous, so as to make them subject to the provisions of the compensation laws. Among these set forth in Section 1, Paragraph 2 of the Act are:

'* * * The construction, installation, operation, alteration, removal or repairs of wires, cables, switchboards or apparatus charged with electrical current. * * *'

'* * * The installation, repair, erection, removal or operation of boilers, furnaces, engines and other forms of machinery.'

Plaintiff does not contend that defendant's business is one listed as hazardous per se, nor that it has been so declared previously by agreement or judicially. It is plaintiff's contention that the operation of the apparatus charged with electrical current was an integral part of defendant's business and it therefore became hazardous.

Defendants, on the other hand, take the position that the injuries sustained by the plaintiff were not compensable since the business of her employer was not hazardous, and there was no agreement between plaintiff and defendant prior to the accident electing to come under the terms of the Act, nor had it been determined by the Courts that the business was of a hazardous nature. It is also urged that the language of the Statute upon which the plaintiff bases her contention does not cover the operation of the iron or the vacuum cleaner, or such similar appliances, and that the operation of the iron and vacuum cleaner was not a substantial and integral part to defendant's business.

It is well settled that the nature of the employer's business and not the particular work done by the employee is the determinative factor in suits of this type. Fields v. General Casualty Co. of America, 216 La. 940, 45 So.2d 85, and authorities cited.

The business of a retail merchant, that conducted by the defendant employer, is not declared by the Act as a hazardous occupation, Wells v. Morgan & Lindsey, La.App., 42 So.2d 282, and it is common knowledge that such a business is not per se hazardous.

The problem of a partially hazardous employment was first presented in the leading case of Byas v. Hotel Bentley, 157 La. 1030, 103 So. 303, in which case the Supreme Court announced the doctrine that where an employee is required to discharge both hazardous and nonhazardous duties it is immaterial that the injury occurred while he was engaged in nonhazardous work. There is no difficulty in applying the doctrine of this case when the hazardous work performed by the employee is a substantial part of his employment, and in such cases our Courts have followed this doctrine. Scott v. Dalton Co., La.App., 1 So.2d 412; Franz v. Sun Indemnity Co. of New York, La.App., 7 So.2d 636; Richardson v. American Employers Insurance Co., La.App., 31 So.2d 527.

A more difficult problem arises however when the employee performs only occasionally acts that can be regarded as hazardous, and is injured in the...