McCain v. Travelers Ins. Co.

• Decision Date: 14 May 1963
• Docket Number: No. 829,829
• Citation: McCain v. Travelers Ins. Co., 153 So.2d 124 (La. App. 1963)
• Parties: Mrs. Dora McCAIN et al., Plaintiffs-Appellants, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana

Page 124

153 So.2d 124

Mrs. Dora McCAIN et al., Plaintiffs-Appellants, v.TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees.

No. 829.

Court of Appeal of Louisiana, Third Circuit.

May 14, 1963.

Holloway & Baker, by William H. Baker, Jonesboro, for plaintiff-appellants.

Cavanaugh, Hickman, Brame & Holt, by John A. Hickman, Lake Charles, Jones, Kimball, Harper, Tete & Wetherill, by Wm. R. Tete, Lake Charles, for defendants-appellees.

Before FRUGE , SAVOY and HOOD, Judges.

FRUGE , Judge.

Mrs. Dora McCain and her husband, S. B. McCain, instituted this suit in tort against the Gulf National Bank and its insurer, Travelers Insurance Company, seeking damages for personal injuries, disabilities and medical expenses.The defendants filed a motion for summary judgment on the grounds that Mrs. McCain's exclusive remedy was Workmen's Compensation benefits.On the showing in plaintiff's pleadings and the affidavits filed herein, the trial court granted the motion for summary judgment dismissing plaintiffs' suit.From this judgment plaintiffs have appealed.

The facts and issues in this case are closely related to those in a companion suit decided this date, the decree in which is reported at Burnett v. Travelers Insurance Company, et al., La.App., 153 So.2d 127.Therein Mrs. Joyce Burnett instituted suit in tort against the Gulf National Bank and its liability insurer, Travelers Insurance Company, for loss of love and affection of her mother, Mrs. Julia Ferguson, and for funeral and other incidental expenses.Both appeals were consolidated for argument and this opinion will set forth the reasons for the judgments in both suits.

The sole question brought up by this appeal is whether the trial court was correct in granting the motion for summary judgment.

Pertinent to the rendering of a summary judgment, LSA-C.C.P. Art. 966 provides that 'the judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.'

From the allegations in their petitions (both suits allege the same facts surrounding the injury to Mrs. McCain and death of Mrs. Ferguson) and affidavits filed by plaintiffs and defendants, the following facts are undisputed: Both Mrs. Dora McCain and Mrs. Julia Ferguson were employed by the Southgate Branch of the Gulf National Bank at Lake Charles, Louisiana, as tellers, on February 16, 1961, when Mrs. McCain was wounded and Mrs. Ferguson killed by gunshot by a bandit who held up and robbed their place of employment.The robbery occurred at approximately 6:55 p.m. when the bandit entered the bank and at pistol point forced Mrs. McCain and Mrs. Ferguson to fill a suitcase with money and thereafter forced them into Mrs. Ferguson's automobile where they were directed to an uninhabited area outside of the City of Lake Charles.At approximately 7:40 p.m. the shooting took place.

Since the basis for defendants' motion for summary judgment is that Mrs. Ferguson and Mrs. McCain were in the course of their employment at the time of the shooting and the resulting injuries, we need examine the pleadings and affidavits only insofar as they relate to this question.Appellants allege in their petitions and by way of affidavit that the working hours of Mrs. McCain and Mrs. Ferguson were from 4 p.m. to 7 p.m. on the day the injuries occurred.The documentary proof and affidavits in support of the motions for summary judgment establish that Gulf National Bank and had obtained from the Travelers Insurance Company a policy of workmen's compensation insurance for its employees, which policy period spanned the date on which these claims arose.

Appellants, in urging error by the trial court, assert that there is a question of fact which precludes disposition of this case on a motion for summary judgment in that the shooting of Mrs. McCain and the killing of Mrs. Ferguson did not occur until approximately 7:40 p.m., whereas their employment would have terminated at 7:00 p.m.We do not subscribe to this argument.Every factual allegation as to how, when and where the shooting occurred which appellants set forth in their petitions is readily admitted by defendants.Indeed, the only dispute between the parties to these suits is whether or not the shooting, which took place after working hours and off of the employer's premises, arose out of and in the course of the defendant bank's business.Based on the facts as agreed upon by all litigants, this is a question of law.Thus, while there is a dispute as to what inferences may be drawn from these facts and the application of the Workmen's Compensation Act, we fail to see any dispute as to a material fact concerning scope of employment at the time injuries occurred.

As to whether the injuries to Mrs. McCain and the death of Mrs. Ferguson arose out of their employment, we have no difficulty in answering in the affirmative.It is elementary under the established jurisprudence of this state that where an employee is injured at a place and time not voluntarily, but because of an occurrence arising out of his employment, any injuries sustained thereby arise out of the necessity of his...