Lisonbee v. Chicago Mill & Lumber Co.

• Decision Date: 29 February 1972
• Docket Number: No. 11779,11779
• Citation: 259 So.2d 374
• Parties: Mrs. Josephine LISONBEE et al., Plaintiffs-Appellants, v. CHICAGO MILL AND LUMBER COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 374

259 So.2d 374

Mrs. Josephine LISONBEE et al., Plaintiffs-Appellants, v. CHICAGO MILL AND LUMBER COMPANY, Defendant-Appellee.

No. 11779.

Court of Appeal of Louisiana, Second Circuit.

Feb. 29, 1972.

En Banc. Rehearing Denied March 27, 1972.

Writ Granted May 1, 1972.

Lancaster, Baxter & Seale, by E. H. Lancaster, Jr., Tallulah, for Mrs. Josephine Lisonbee and minor children of William S. Lisonbee, plaintiffs-appellants.

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

Before AYRES, BOLIN and HALL, JJ.

AYRES, Judge.

This is an action under the workmen's compensation statute, LSA-R.S. 23:1021 et seq., wherein plaintiff, in her individual capacity and as representative of four minor children, seeks to recover of the defendant, Chicago Mill and Lumber Company, compensation at the maximum statutory rate for the death of her husband, the late William S. Lisonbee.

Lisonbee, employed as a night watchman by defendant at its plant and mill, located at Tallulah, Louisiana, went to his death about 8:15 p.m. during his working hours on April 12, 1970, through an exchange of pistol shots with a man who opened fire on a clerk at Williamson's Grocery, located across U. S. Highway 80 in front of the entrance to defendant's plant.

The issue determinative of this cause is whether Lisonbee's death arose out of and was within the course and scope of his employment. Defendant contends that Lisonbee's death did not arise out of his employment nor occur in the course and scope of his employment, as Lisonbee had, at the time of his death, deviated from his duties by leaving his employer's premises contrary to explicit instructions.

The trial court sustained defendant's contentions and rejected plaintiff's demands. From the judgment accordingly rendered and signed, plaintiff devolutively appealed to this court.

Defendant's millsite, comprised of approximately 100 acres, was fenced on three sides, with the rear bordering on a railroad right of way. On the site, within the bounds of the fence and railroad, were a sawmill, a lumber yard, a box factory, an office, and miscellaneous buildings.

The watchmen's duties required that they keep watch on the premises, particularly for fire and for the entry of unauthorized persons. In addition, the watchmen were required to punch a clock at 38 'key' stations distributed over the premises. This errand was on an hourly basis. For transportation over the premises, the watchmen were furnished gasoline-propelled carts. The time consumed in making each round was approximately 40--50 minutes. No time off was allowed for meals. Mrs. Lisonbee customarily brought her husband's 'lunch' to him about 8:00 p.m. She endeavored to arrive at the watchmen's station inside the entrance a few minutes before his arrival to avoid any delay on his part. In such events, she would pass through the entrance and wait at the watchmen's station.

On the day of his death, a Sunday, Lisonbee reported for work on the shift from 4:00 p.m. until midnight. Mrs. Lisonbee, due to church activities, was late in arriving with her husband's 'lunch' as she had theretofore explained to him she might be. Upon his arrival at the watchmen's station, finding that his 'lunch' had not arrived, he walked across the street to the grocery store and bought a snack which he proceeded to eat while engaged in conversation with Mrs. Williamson. While Lisonbee was so engaged, a man, Charles Ballet, came into the store and purchased a candy bar from a clerk, Jack McLaughlin. While McLaughlin was returning change to Ballet in consummating the purchase, Ballet shot McLaughlin, using a pistol, whereupon an exchange of shots took place between Ballet and Lisonbee. Ballet also fired two shots at Mrs. Williamson. Lisonbee was killed in the affray about 8:15 p.m. Neither words, argument, nor fracas of any kind is shown to have preceded or precipitated the shooting.

From the store front, a distance of about 75 feet to the entrance to defendant's plant, one had a general view of a very large segment of defendant's premises. From inside the store, where Lisonbee was standing at the beginning of the affray, the view of the mill was more restricted or limited.

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. The purpose intended to be served was an early detection of any fire or other hazard. This requirement for a constant surveillance of the premises was conducive to a favorable insurance rating. Nor is there any question that appropriate instructions were given the watchmen, including Lisonbee, that they were to so remain on the premises throughout the hours of their daily assignments.

The denial of compensation by the trial court was based upon the conclusion that Lisonbee's death did not arise from nor was it in any manner connected with his employment for the reason that Lisonbee had abandoned his employment and was not so engaged at the time he was shot. A fundamental provision of the Workmen's Compensation Act is that:

'If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident Arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated. * * *' (Emphasis supplied.)

LSA-R.S. 23:1031.

In giving effect to the above statutory provision certain tests have been established. For instance, in Myers v. Louisiana Ry. & Nav. Co., 140 La. 937, 74 So. 256, 259 (1917), it was held that a proper test to determine whether injuries to a workman arise out of his employment is not whether the cause of the injury, that is, the agency producing it, was something peculiar to the line of employment, but whether the nature of the employment was such that the risk from which the injury resulted was greater for the workman than for a person not engaged in the employment. In further amplification of the statute, it was stated in Kern v. Southport Mill, 174 La. 432, 141 So. 19, 21 (1932):

'Now an accident Occurs in the course of an employment when it takes place during the time of such employment; just as a happening occurs in the course of any given day when it takes place during that day. Hence the provision that the accident, to entitle the employee to compensation,...