Mabry v. Fidelity & Cas. Co. of New York

• Decision Date: 20 June 1963
• Docket Number: No. 9987,9987
• Citation: Mabry v. Fidelity & Cas. Co. of New York, 155 So.2d 44 (La. App. 1963)
• Parties: Roy D. MABRY, Plaintiff-Appellant, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana

Page 44

155 So.2d 44

Roy D. MABRY, Plaintiff-Appellant, v.The FIDELITY AND CASUALTY COMPANY OF NEW YORK et al Defendants-Appellees.

No. 9987.

Court of Appeal of Louisiana, Second Circuit.

June 20, 1963.

Rehearing Denied July 12, 1963.

Certiorari Refused Oct. 9, 1963.

Love, Rigby & Donovan, Shreveport, for appellant.

Blanchard, Goldstein, Walker & O'Quin, Shreveport, for appellees.

Before HARDY, GLADNEY and AYRES, JJ.

AYRES, Judge.

This is an action for workmen's compensation.The question presented for resolution is whether plaintiff sustained accidental injuries within the course and scope of his employment.From an adverse judgment, plaintiff has appealed.

The facts material to the issue presented may be briefly stated.Plaintiff is a used-car salesman for a local automobile agency.A car which had undergone repairs at the Packard Body & Paint Shop was returned to the used-car lot.The employee of the repair shop making the delivery was driven back to his place of business by plaintiff.On the return trip, plaintiff stopped at a bakery, parked his car upon the street, and, after alighting therefrom, took a couple of steps upon a sidewalk leading to the bakery.In so doing, he slipped and fell upon the icy walkway, inflicting the injuries for which he claims compensation.Plaintiff's purpose in stopping at the bakery was to obtain some bread for his wife to feed the birds.

On the basis of the aforesaid facts, defendants contend that the accident did not occur, nor did plaintiff sustain disabling injuries, while performing any duty within the course and scope of his employment.

Plaintiff obviously recognized that, at the time of his accidental injuries, he had deviated from his employment.Nevertheless, he contends that such deviation was inconsequential; that he had the implied consent of his employer in thus deviating from his employment, and that his deviation was of the type of a personal-comfort errand which does not serve to remove an employee from the course and scope of his employment.

A condition precedent to recovery of compensation is that the employee must have sustained personal injuries through an accident arising out of and in the course and scope of his employment.LSA-R.S. 23:1031.

And, as observed by Prof. Wex S. Malone, as a general rule, the employee who abandons his work, with or without permission, for the purpose of attending to his own personal business is not acting within the course of his employment.Malone's Louisiana Workmen's Compensation Law and Practice, § 167, p. 188.

In determining whether an accident arose out of an employment, it is necessary to consider only the questions: (1) Was the employee then engaged in his employer's business and not merely pursuing his own business or pleasure, and (2) did the necessities of the employer's business reasonably require the presence of the employee at the place of the accident at the time the accident occurred?Kern v. Southport Mill, 174 La. 432, 141 So. 19.

This rule was cited with approval in later cases.Harvey v. Caddo De Soto Cotton Oil Co., 199 La. 720, 6 So.2d 747;Nesmith v. Reich Bros., 203 La. 928, 14 So.2d 767;Laine v. Junca, 207 La. 280, 21 So.2d 150;Warren v. Globe Indemnity Co., 217 La. 142, 46 So.2d 66;Williams v. United States Casualty Company, La.App.4th Cir., 1962, 145 So.2d 592(writ denied).

From these cases, it clearly appears that both elements of the test laid down in the Kern case must be satisfied before an injury can be held to have arisen out of the employment.Therefore, if an employee is engaged in the performance of an act solely for his own personal benefit, or if the necessities of his employer's business do not reasonably require him to be at the place the accident occurs when it occurs, he is not entitled to the benefits of the Workmen's Compensation Act.In this regard, the court, in Moss v. St. Paul-Mercury Indemnity Co., La.App.1st Cir., 1948, 35 So.2d 867, 870, used this language:

'Where the employee steps aside from his employer's business to do some act of his own, not connected with his employer's business, the relationship of employer and employee, or master and servant, is, as to that act, completely suspended, and an accident occurring at that time, resulting in injury to the employee, does not arise out of the employment so as to restrict the employee to a right of recovery under the Workmen's Compensation Act.'

Under the facts in the instant case, it could not be said that plaintiff, at the time he sustained his fall, was engaged in his employer's business.He was on his way into a bakery, as stated, to get bread for his...