Lisonbee v. Chicago Mill & Lumber Co.

• Decision Date: 07 May 1973
• Docket Number: No. 52385,52385
• Citation: 278 So.2d 5
• Parties: Mrs. Josephine LISONBEE et al. v. CHICAGO MILL AND LUMBER COMPANY.
• Court: Louisiana Supreme Court

Page 5

278 So.2d 5

Mrs. Josephine LISONBEE et al. v. CHICAGO MILL AND LUMBER COMPANY.

No. 52385.

Supreme Court of Louisiana.

May 7, 1973.

Rehearing Denied June 11, 1973.

Lancaster, Baxter & Seale, E. H. Lancaster, Jr., Tallulah, for plaintiffs-applicants.

Sevier, Yerger & Sevier, Henry C. Sevier, Jr., Tallulah, William D. Carlson, Greenville, Miss., for defendant-respondent.

SUMMERS, Justice.

Josephine Lisonbee instituted this suit on her own behalf and for her three minor children claiming benefits under the Workmen's Compensation Act for the death of her husband William S. Lisonbee. She alleged that her husband, father of the minor children, met his death while in the employ of Chicago Mill and Lumber Company and while performing services arising out of and 'incidental to' the course of his employment.

The trial court denied recovery. On appeal to the Second Circuit the judgment was affirmed, La.App., 259 So.2d 374. Certiorari was granted on plaintiff's application, 261 La. 771, 260 So.2d 700.

William S. Lisonbee had been employed for a year by Chicago Mill as a night watchman at their Tallulah, Louisiana, mill. The mill site comprised approximately 100 acres. A box factory, sawmill, lumber yard, office and miscellaneous buildings were situated on the premises. The whole acreage was enclosed by a wire fence on three sides. The fourth side, on the south, was unfenced, and a railroad track bounded the site here. Highway 80 (Green Street) bordered the mill site on the north.

Three watchmen were usually employed by Chicago Mill to detect fires and thefts, and to prevent unauthorized entry. Lisonbee's shift was at night. Watchmen were required to tour the mill grounds once each hour in a cart powered by a gasoline engine. The tour involved punching a time clock at 33 stations scattered about the complex. Each tour required about 45 minutes to complete.

Tours of inspection began and ended at a watchman's shack situated near the mill's main gate opening onto Highway 80. During the fifteen-minute intervals between tours of inspection, watchmen were expected to remain at the watchman's shack. This sheltered vantage point provided an unobstructed view of the main gate and a substantial part of the main mill, lumber yard, office building, etc. In this position unauthorized personnel could be denied entry at the main gate, and at the same time the watchman on duty could maintain surveillance of the mill and lumber yard.

Although other employees of the mill were given breaks for meals during which they were allowed to leave the premises, the watchmen were not granted this liberty. Except to bring cart tires to a nearby service station for repair when necessary, the watchmen were expected to remain on the mill grounds. They were considered to be on duty and at work from the time their shift began until they were relieved by another watchman. Watchmen were paid by the hour, and no deductions were made for breaks of any kind, including meals. Lisonbee was authorized to carry his own gun while on duty.

On Sunday April 12, 1970 the mill was idle. Lisonbee had the 4 p.m. to midnight shift. He had made his hourly rounds of the plant site, punching the time clock stations as required. Usually Mrs. Lisonbee brought his evening meal about eight o'clock, but because of her church activities on this Sunday she was late. Therefore, in order to get a snack while waiting for his meal, Lisonbee left his station at the watchman's shack, walked out the main gate and crossed Highway 80 to Williamson's Grocery directly opposite.

While Lisonbee drank a carton of milk and chatted with Izola Williamson, the proprietor, and the clerk Jack McLaughlin, a Negro stranger named Charles Ballet entered the store. He ordered a candy bar, and when McLaughlin served him, Ballet shot him without provocation. Whereupon Lisonbee drew his gun and exchanged shots with Ballet. In the exchange Lisonbee received a fatal wound. Ballet was hit but fled, shooting twice at Izola Williamson as he left the store.

Section 23:1031 of the Workmen's Compensation Act provides that the employer shall pay compensation to the employee who 'receives personal injury by accident Arising out of and in the course of his employment.' The terms Arising out of, and In the course of are not synonymous. The former suggests an inquiry into the character or origin of the risk, while the latter brings into focus the time and place relationship between the risk and the employment. The two requirements cannot, however, be considered in isolation from each other. A strong showing by the claimant with reference to the Arise-out-of requirement may compensate for a relatively weak showing on the During-course-of requirement, or vice versa. As a corollary it follows that whenever the showing with respect to both requirements is relatively weak a denial of compensation is indicated. Malone, Louisiana Workmen's Compensation, §§ 162, 192.

These concepts are developed from cases interpreting the spare phrases Arising out of the employment, and In the course of the employment. But the question of which risk shall be included within the act and which shall be excluded cannot be decided by phrases. Each case must be determined from its own facts. Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932); Myers v. Louisiana Ry. & Nav. Co., 140 La. 937, 74 So. 256 (1917).

An accident occurs during the course of the employment when it occurs during the time of the employment and at a place contemplated by the employment. Kern v. Southport Mill, Supra. Lisonbee was shot shortly after 8:10 p.m. on April 12, 1970. His employment hours on this day were from 4 p.m. to 12 midnight. Clearly, then, he incurred the fatal gunshot wound during the Time of his employment. But the Place of the employment presents a seriously controverted question.

As we understand plaintiffs' argument, although Chicago Mill may have had a company rule prohibiting watchmen from leaving its premises during their tour of duty, this rule was often violated, with the knowledge and acquiescence of the management of the mill.

Williamson's Grocery is located immediately across the street (Highway 80) from the main gate of the mill site, 75 feet away. Plaintiffs' version is that watchmen on duty would cross the street to Williamson's Grocery to purchase tobacco, snacks or meals during the break between rounds, and this custom prevailed for many years. That is to say, it is contended that Williamson's Grocery was, with the tacit consent and acquiescence of the employer, considered to be a place where watchmen were authorized to be during their employment. In essence the argument attempts to supply the element of Place associated with the Time and Place requirements ordinarily inquired into to determine Course of employment.

The trial judge found, 'There is little dispute that Lisonbee as well as the other watchmen were instructed not to leave the premises without first obtaining relief from another watchman or a supervisor.' This conclusion is concurred in by the Court of Appeal by this finding: 'Testimony of the officers of defendant is positive and unequivocal of the company's policy requiring that its watchmen be restricted to the premises during the entire interval of their daily employment.' 259 So.2d 374, 375. Our review of the record supports these findings.

A short time before April 12, 1970 Lisonbee was observed by one of the mill superintendents several blocks away from the mill premises during working hours. This fact was reported to Lisonbee's superior who reprimanded him for violating company regulations. This evidence is in keeping with the testimony of company officials that they were planning to discharge Lisonbee for failing to properly perform his duties or to observe company regulations.

The trial judge found that Mrs. Lisonbee customarily brought her husband's lunch, delivering it to him at the main gate, and that she was not permitted beyond that point. He concluded this practice made it unnecessary for Lisonbee to go off the premises to the store for food. In the trial judge's opinion, the fact that watchmen had their meals brought to them corroborated the company policy that watchmen were not permitted to leave company premises while on duty.

He was further of the opinion, with which we agree, that Lisonbee's, or the other watchmen's, practice of leaving the mill premises while on duty to make purchases at the store has not been adequately established. For although Izola Williamson testified that company watchmen patronized her store, she could not say they did so while on duty. And while McLaughlin survived the melee, he was not called to testify. His failure to testify was not explained. Nor was it shown that this practice occurred with much frequency, or with the knowledge of company officials. If the practice did in fact exist, therefore, it did not evidence an acquiescence in the practice by the company contrary to its regulations. To the contrary, the reprimand received by Lisonbee shortly before April 12, 1970, when he was found to be off company premises during duty hours, belies such a conclusion.

The company policy not permitting watchmen to leave the premises, while other employees could, is explained by the need to maintain a continuous surveillance for fire, the watchman's paramount duty. It is for this reason, also, that no 'break' was provided for watchmen, not even for meals, they being required to eat while on duty, maintaining all the while a lookout for fire.

In recognizing that compensation is allowable when the injury occurs in the course of the employment, the law contemplates that the employer is free to define the scope of his work, and to determine when and where the work shall be done. Thus when an employee abandons his post of duty in violation of orders or contrary to practices prevailing on the job, he is outside the course of his employment, and if he is killed or...