Harris v. Sears, Roebuck & Co.

• Decision Date: 10 March 1986
• Docket Number: No. 85-CA-623,85-CA-623
• Citation: Harris v. Sears, Roebuck & Co., 485 So.2d 965 (La. App. 1986)
• Parties: Consuela Moses, Widow of Leroyal HARRIS, Individually and as the Natural Tutrix of Leroyal Harris, Jr., Tacia Harris and Kendall Harris, Minor Children of the Deceased, Leroyal Harris v. SEARS, ROEBUCK & COMPANY. 485 So.2d 965
• Court: Court of Appeal of Louisiana

Page 965

485 So.2d 965

Consuela Moses, Widow of Leroyal HARRIS, Individually and as the Natural Tutrix of Leroyal Harris, Jr., Tacia Harris and Kendall Harris, Minor Children of the Deceased Leroyal Harris v. SEARS, ROEBUCK & COMPANY.

No. 85-CA-623.

485 So.2d 965

Court of Appeal of Louisiana Fifth Circuit.

March 10, 1986.

James A. Babst, Dona J. Dew, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant-appellant.

Gregory W. Roniger, Jefferson, for plaintiff-appellee.

Before CHEHARDY, GRISBAUM and WICKER, JJ.

GRISBAUM, Judge.

This appeal arises from the plaintiff's decedent's worker's compensation claim for benefits. From a judgment finding compensation coverage, the defendant appeals. We affirm.

ISSUES

We are called upon to determine two issues:

(1) Whether the trial court erred in granting a motion for new trial submitted prior to its signing the initial judgment and

(2) Whether the trial court was "clearly wrong" in its finding that the plaintiff's decedent's compensation claim for benefits, at the time of his death, was within the ambit of worker's compensation coverage as defined by La.R.S. 23:1031.

FACTS

The record shows the plaintiff's decedent, Mr. Leroyal Harris, Sr., reported for work at Sears' warehouse on Whitney Avenue on May 3, 1978. By 10 or 10:30 a.m., the warehouse floor area was covered by 14 to 16 inches of standing water; the office area, by 6 to 8 inches. The employees, in the wake of continuing heavy rain, were told they could leave. During the day, water rose as high as the glove compartments of cars parked in the Sears parking lot. Mr. Harris did not leave when he first learned he might but waited around a bit to see what the rain would do. Only after the building was completely flooded did he elect to leave. Mrs. Deanna Horne, Mr. Harris' clerical supervisor, testified that he indicated he was very nervous, that he was going home to his family, that there was some problem at home, and that, despite Mrs. Horne's advising him to wait at least until some Sears repair technicians who were pushing cars to higher ground returned so that they might push him out, Mr. Harris left. Mr. Harris drove his vehicle from the Sears parking lot and down Whitney Boulevard. Within a block of the Sears building, the vehicle began to float and was swept into the Whitney Canal. Mr. Harris crawled atop the vehicle and the Sears technicians, Mr. Alan Sekinger and Mr. Glenn Steib, who had returned from pushing a car, tried to rescue him, but unsuccessfully. He was sucked into a culvert and drowned.

From a procedural standpoint, we note the trial on the merits was held on January 28, 1985, at the close of which the court orally gave judgment for the defendant. On February 4, 1985 (according to the brief for defendant-appellant), the court signed a written judgment in accord with the oral decree (this judgment not being part of our record). The record shows that, prior to the signing of the elusive judgment, appellee, on February 1, 1985, filed a motion for a new trial (limited to reargument). The court signed the attached show cause order that same day. A hearing was held on March 13, 1985, and a judgment in favor of the plaintiff was signed on Arpil 16, 1985. The defendant thereafter moved for appeal on May 9 and filed a suspensive appeal bond on May 10, 1985.

ANALYSIS

Initially, the appellant contends the motion for the new trial by the appellee was premature since it was presented prior to judgment. Accordingly, the initial judgment of February 4 (which was in favor of appellant, Sears) and which is not part of this record, should stand. We disagree.

We adopt the rationale expressed by our fellow Third Circuit in Jeanmard v. Sears, Roebuck and Co., 436 So.2d 575, 576 (La.App. 3d Cir.1983), which states:

The Supreme Court in U.S. Fire Insurance Company v. Swann, 424 So.2d 240 recently stated: "First of all there is the philosophy underlying the Code of Civil Procedure, as stated by Henry G. McMahon, coordinator of the Code of Civil Procedure [,] in the introduction to the Code:

The new code embodies procedural rules designed to permit the trial of a case to serve as a search for the truth, and to have its decision based on the substantive law applicable, rather than upon technical rules of procedure.

This procedural philosophy is embodied in La.C.C.P. art. 5051, which provides:

The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.

In recognition of the fact that procedural rules are merely to implement the substantive law, as well as the fact that appeals are constitutionally guaranteed (La. Const. art. V, Sec. 5(F) and Sec. 10), this Court has consistently held that appeals are favored in the law and should be maintained unless a legal ground for dismissal is clearly shown. An appeal is not to be dismissed for a mere technicality. Davidge v. Magliola, 346 So.2d 177 (La.1977); Howard v. Hardware Mutual Company, 286 So.2d 334 (La.1973); Louisiana Power and Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278 ( [La.] 1970); Favrot v. Favrot, 252 La. 192, 210 So.2d 316 ( [La.] 1968); Kirkeby-Natus Corporation v. Campbell, 250 La. 868, 199 So.2d 904 ( [La.] 1967). Unless the ground urged for dismissal is free from doubt, the appeal should be maintained. Gulf States Utilities Co. v. Dixie Electric Membership Corp., 248 La. 458, 179 So.2d 637 (La.1965); Emmons v. Agricultural Ins. Co., 245 La. 411, 158 So.2d 594 (La.1963).

To the same effect is the recently expressed practical holding of our fellow First Circuit in Hanson v. Perkins, 484 So.2d 705, No. 85-CA-0993, slip op. (1st Cir. Dec. 26, 1985). In disposing of a motion to dismiss, the Court reasons that the technical prematurity of a motion for new trial which was filed before the signing of a judgment is cured by the signing of the judgment, the motion becoming effective on the date of the signing. Therefore, the appellant's argument has no merit.

As to the merits, we note the trial court, in its reasons for judgment, carefully states:

This Court is of the opinion that plaintiff's claim falls within the ambit of the Workmen's Compensation Act primarily in light of the Louisiana Supreme Court holding in Edwards v. Louisiana Forestry Commission , 60 So.2d 449 (La.1952), which states:

... no more is necessary than that the work subject the employee to a peril which comes from the fact that he is required to be in the place where it strikes when it does so. It is immaterial whether the place is the employer's premises or a street; whether the risk arises from physical features or human agencies connected with the place; whether it is a common occurrence or an extraordinary happening; one which threatens only employees at work or others also.

Id., at 451 (citing Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 112 F.2d 11, 15, certiorari denied by the United States Supreme Court, 309 U.S. 689, 60 S.Ct. 891, 84 L.Ed. 1032). Furthermore, the United States Supreme Court in O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470 [95 L.Ed. 483] (1951) held that

[t]he test of recovery is not a causal relation between the nature of employment of the injured person and the accident.... Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the "obligations or conditions" of employment create the "zone of special danger" out of which the injury arose. ... A reasonable rescue attempt, like pursuit in aid of an officer making an arrest, may be "one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute." (Citations omitted).

Id., 340 U.S. at 506, 507, 71 S.Ct. at 471, 472. Lastly, as Justice Sutherland stated in Cudahy Packing Co. of Nebraska v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 154, , "whether a given accident is so related or incident to the business must depend upon its own particular circumstances. No exact formula can be laid down which will automatically solve every case."

This Court is of the opinion that it was foreseeable on the part of Sears that certain of its employees would be injured as a result of the flooding which was invading the Sears premises and surrounding areas, the "zone of the special danger" referred to in O'Leary, supra. The mere fact that some Sears employees remained on the premises while others chose to leave did not reduce or diminish the zone of danger created by the torrential rain. This Court opines that had decedent not been working for Sears on the date of the flood (the "obligations or special conditions of employment", O'Leary, supra [sic] ), he probably would not have been on or near the Sears premises at the time of the flood and not have subjected himself to the hazards created by the severe flooding. Moreover, this Court is of the opinion that the legislative intent behind the Workmen's Compensation Act was to provide coverage to those employees who were exposed to risks as a result of their employment. This Court acknowledges that the evidence shows decedent was probably attempting to go home after being allowed to do so by his supervisor; however, had the decedent not been allowed to leave, he might not have drowned. Also, in view of the fact that other Sears employees were helping those attempting to leave (some employees were guided on foot to a hotel) or move their vehicles to safer ground and that these helping employees, [sic] were still "working" for Sears, the actions of those employees, by literally going beyond the Sears premises to help others, constituted an extension of those premises. Therefore, it can be said that decedent died "on Sears premises". Had decedent attempted to leave the premises but risked his life to help another in distress, there would be no doubt that...