Hymel v. Employers Liability Assur. Corp., Ltd., of Great Britain

• Decision Date: 16 June 1959
• Docket Number: No. 9027,9027
• Citation: 113 So.2d 481
• Parties: Addie Jean HYMEL, Plaintiff-Appellant, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, LTD., OF GREAT BRITAIN, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 481

113 So.2d 481

Addie Jean HYMEL, Plaintiff-Appellant, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, LTD., OF GREAT BRITAIN, Defendant-Appellee.

No. 9027.

Court of Appeal of Louisiana, Second Circuit.

June 16, 1959.

G. A. O'Steen, S. V. Prunty, Jr., Shreveport, for appellant.

Cook, Clark, Egan, Yancey & King, Shreveport, for appellee.

GLADNEY, Judge.

The plaintiff, Mrs. Addie Jean Hymel, instituted this suit for recovery of workmen's compensation from the insurer of her employer, The Gowen Sanatorium, of Shreveport. After a trial on the merits there was judgment in favor of Employers Liability Assurance Corporation, Ltd., of Great Britain, rejecting plaintiff's demands, hence this appeal.

Mrs. Hymel was employed in the capacity of a nurse's aide or attendant at an institution which administered to elderly patients. The sanatorium consists of seven or eight cottages, a main office building and the kitchen building, none of which is connected. In each of the cottages five to ten patients and housed and it was in such a patients are housed and it was in such a that while acting within the scope of her employment on April 18, 1957, she sustained an injury to her back for which she is entitled to workmen's compensation. For this injury, which was diagnosed as a mild sprain of the lower back, Mrs. Hymel was treated by Dr. Ford J. Macpherson from the date of her injury to May 23, 1957. The doctor reported the patient as being totally disabled through May 26, 1957, and certified that she was able to return to work as of May 27, 1957. The defendant made weekly payments of workmen's compensation during disability as above reported to it by the attending doctor.

In defending this action, the defendant contends appellant was not engaged in an occupation covered by the workmen's compensation statute, nor were her duties of such a nature as to cause the provisions of the act to be applicable to her claim. It is further asserted plaintiff suffered no disability beyond the period for which she was compensated by the insurer.

For statement of a cause of action plaintiff has pleaded that her occupation required that she operate electrically powered machinery, that she assist in the operation of X-ray machines, prepare food for herself and patients, use a slicing machine and electric dishwasher, and that she also assist in the operating room. Her testimony does not show that she performed duties which required the use of the machinery as alleged.

Dr. Gowen, the head of the sanatorium, testified the employee never operated the X-ray machine, did not use a food mixer in preparing food for the patients, and that the institution had never had a slicing machine. He stated that Mrs. Hymel did not use the electric dishwasher and that the kitchen was in a separate building from the cottage where Mrs. Hymel customarily worked; and that there was no operating room and no operations were performed at the institution, but there was a room for treatment of minor injuries such as a burn, or injury to the hand. Mrs. Freda M. James, a dietician in charge of the kitchen, and Mrs. Etta Davidson, the supervisor of nurses at the sanatorium, gave essentially the same testimony. We find the evidence conclusively shows the duties of the employee were confined to bathing patients, moving patients around in bed, feeding patients meals brought from the kitchen by a maid, and occasionally getting food or juices from a refrigerator in the dining room; that occasionally Mrs. Hymel fixed her own breakfast in the kitchen, and under the supervision of a nurse, she would turn the valve on an oxygen tank or maintain it at a certain point. The oxygen tank used was 4 1/2 high and 10 to 12 in diameter, and it was cut off by turning a valve just as a garden water faucet is cut off. She did not start or handle the tank.

It is earnestly insisted by counsel for appellant that the duties of the employee, and especially those in connection with the oxygen tank, were hazardous within the intent and meaning of the Louisiana Workmen's Compensation Statute. We do not agree with this conclusion. The statute, LSA-R.S. 23:1035, specifies certain hazardous occupations and then provides:

'If there be or arise any hazardous trade, business or occupation or work other than those hereinabove enumerated, it shall come under the provisions of this Chapter. The question of whether or not a trade, business, or occupation not named herein is hazardous may be determined by agreement between the employer and employee or by submission at the instance of either to the court having jurisdiction over the employer in a civil case. The decision of the court shall not be retroactive in its effect.'

In keeping with the intent of the Legislature, the courts have consistently accorded a liberal construction to the above statutory provisions. This court took occasion to comment in Hammer v. Lazarone, 1956, 87 So.2d 765, 769:

'The right of an employee to compensation is generally determined by the nature of the business of the employer rather than by the particular duties performed or services rendered by the employee. Brown v. Remington-Rand, Inc., La.App., 81 So.2d 121; Harrington v. Franklin's Stores Corp. of New Iberia, La.App., 55 So.2d 647; McAllister v. Peoples Homestead & Savings Ass'n, La.App., 171 So. 130; De Lony v. Lane, La.App., 155 So. 476; Charity Hospital of Louisiana v. Morgan, La.App., 143 So. 508; Kern v. Southport Mill, Limited, 174 La. 432, 141 So. 19.'

It was also noted in this opinion that in determining whether an employee is entitled to recovery under the Workmen's Compensation Act for an injury received in performing services in a business not specifically designated as hazardous, the inquiry is always whether or not the duties of the injured employee required performance of service of a hazardous nature incidental to the employment and directly associated with the employer's business. This court in Brown v. Remington-Rand, Inc., 1955, 81 So.2d 121; Coleman v. Sears, Roebuck & Co., La.App.1955, 83 So.2d 469, and Hammer v. Lazarone, supra, held the duties of the employees involved were entirely confined to non-hazardous work and to non-hazardous features in connection with the employer's business, and that accordingly, the Workmen's Compensation Statute was without legal application. Further authority to this effect is found in Guidry v. New Amsterdam Casualty Co., D.C.1958, 148 F.Supp. 248, affirmed, 5 Cir., 252 F.2d 233. Therein Judge Christenberry, in discussing the application of the Louisiana statute, opined:

'Cake slicers, food mixers, dish-washers and ventilating fans were installed and in use in the kitchen of the hospital, located in the basement. As the Court said in Atkins v. Holsum Cafeteria, sup...