Mitchell v. Employers Mut. Liability Ins. Co. of Wisconsin

Decision Date21 December 1976
Docket NumberNo. 5732,5732
PartiesShirley Jordan MITCHELL, Individually and as natural tutrix of her children, Plaintiff and Appellee, v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN et al., Defendants and Appellants.
CourtCourt of Appeal of Louisiana — District of US

Jack O. Brittain, Natchitoches, for defendants and appellants.

G. F. Thomas, Jr., Natchitoches, for plaintiff and appellee.

Gahagan & Gahagan by H. C. Gahagan, Jr., Natchitoches, for third-party defendant-appellee.

Before CULPEPPER, WATSON and GUIDRY, JJ.

CULPEPPER, Judge.

This is a suit for death benefits under the Workmen's Compensation Act. Plaintiffs are the widow and minor children of Sam Mitchell, who worked as supervisor of a chicken catching crew for the defendant, J&M Poultry, Inc. One night Mitchell was sitting in his pickup truck with a Mrs. Durr about one-fourth of a mile from the chicken house where his crew was working. Mrs. Durr's husband shot and killed Mitchell and fatally wounded her. The district judge found Mitchell's death arose out of and in the course of his employment. From a judgment awarding benefits but denying penalties and attorney's fees, defendants appealed. Plaintiff answered the appeal, seeking penalties and attorney's fees.

The decisive issue is whether Mitchell's death resulted from an accident 'arising out of and in the course of his employment', within the meaning of the Workmen's Compensation Act.

Defendant J&M Poultry, Inc. is in the chicken processing business. Employees of J&M gather chickens from various chicken farms for live shipment by truck to the company's processing plant in Alexandria, Louisiana. The chicken gathering or 'catching' is accomplished by crews of 8 to 10 persons who go into large chicken houses located on farms of contract growers and physically catch the chickens and load them into shipping crates. These chicken catching crews work only at night because chickens are easier to catch in the dark. Depending upon the number of chickens at each farm, a crew might work at as many as three chicken farms in one night.

All catching, crating and trucking operations at the chicken farms are directed and controlled by an employee entitled 'crew supervisor'. Crew supervisors do not catch chickens, nor does J&M require that they maintain a constant vigil over the actual chicken catching operation. Instead, each crew supervisor is 'his own boss' at the jobsite and is given considerable latitude in the method he employs to satisfy the objective of seeing that all of the chickens are caught, crated and trucked away. Often, crew supervisors are required to leave the jobsite in order to secure machine parts or to perform other tasks necessary for the completion of the job. In addition, J&M allows its crew supervisors to leave the jobsite to perform business of a personal nature unrelated to the job.

Sammy Mitchell was a crew supervisor for J&M. The record shows that he and his crew of chicken catchers were working at a chicken farm in a rural area of Sabine Parish on the evening and night of September 10, 1975. Mr. Mitchell left the jobsite on at least two occasions after the catching operations commenced. Early in the evening he left the site in his own pickup truck to tell Johnny Carline, a J&M truck driver, how to get his truck to the chicken houses. This first absence occurred at about 6:00 p.m. and lasted for about 15 minutes. Later, Mr. Mitchell again drove away from the jobsite in his pickup truck. He apparently drove down the dirt road leading from the chicken house where his crew was working and turned onto Louisiana Highway 175. After turning onto the highway, he encountered fellow-employee, Dennis McFerrin, who was driving a J&M chicken truck. Mr. Mitchell and Mr. McFerrin stopped their vehicles on the side of the highway near its intersection with the dirt road and began a conversation. A second pickup truck driven by Janet Moran approached the two men. Riding with Janet Moran were her two year old son and Martha Durr, the wife of Chester T. Durr. Upon seeing the Moran vehicle, Mitchell ended his conversation with McFerrin and drove a short distance down the highway where he parked at a small store. Janet Moran followed Mitchell to the store, which was closed, and parked her truck beside Mitchell's truck. Mr. Mitchell told Janet Moran to follow him in her truck. Mr. Mitchell then led the way as the two trucks traveled back down the highway and onto the dirt road leading to the chicken houses where his crew was working. Mitchell drove approximately 200 yards down the dirt road and parked at a cleared area adjacent to the road. Janet Moran parked her truck next to Mitchell's truck. This secluded parking spot was surrounded by woods and could not be seen from the chicken house where the crew was working about one-fourth of a mile away.

Janet Moran related the following sequence of events leading to the death of Mr. Mitchell and the fatal wounding of Mrs. Durr. First, Janet Moran, Mr. Mitchell and Mrs. Durr listened to a tape playing in one of the trucks. Mitchell then announced that he was going to the jobsite to tell a truck driver, Johnny Carline, to drive his loaded chicken truck back to the shop. He then left in his pickup truck and returned about 15 minutes later. (Johnny Carline testified that he saw Mitchell only once on the night of September 10, at about 6:00 or 6:30 p.m.) Upon Mitchell's return, the two women got in his truck, Mrs. Durr next to Mitchell and Mrs. Moran on the right. Mitchell drank coffee while he and his two female companions conversed. After Mitchell had been back for about 20 minutes, Chester T. Durr, husband of Mrs. Durr, arrived at the parking spot in his pickup truck. A brief conversation between Mr. and Mrs. Durr ensued. Mr. Durr asked his wife if she was coming home, to which she replied 'No'. Immediately after hearing his wife's negative response, Mr. Durr shot both Mr. Mitchell and his wife with a small caliber pistol. Mitchell died almost immediately. Mrs. Durr died later of complications from her wounds. Mrs. Moran was not injured. The shooting occurred at about 9:00 p.m.

Mitchell's wife testified she knew that Mr. Durr had accused her husband of 'having an affair' with Mrs. Durr. Janet Moran testified that on several previous occasions she had taken Mrs. Durr to meet Sammy Mitchell at the farms where his crew was working. She also testified that she knew that Mrs. Durr went with her on the night of the killing in order to meet Mr. Mitchell. A truck driver, Johnny Carline, testified that Mitchell and Mrs. Durr met at jobsites five or six times during one and one-half to two months immediately preceding the killing, and each time they met they drove away together in Mitchell's truck and did not return until one and one-half or two hours later.

Mr. and Mrs. Durr had separated three days prior to the killing, and Mrs. Durr was living in the house trailer of her friend, Mrs. Moran.

Mr. Durr was also employed by J&M at the time of the shooting. He was a truck driver for a crew other than the one supervised by Mitchell, and was off duty at the time of the killing. His wife, Martha Durr, was previously employed as a chicken catcher in Mitchell's crew, but she was not an employee of J&M on the night of Mitchell's death. Janet Moran was a friend of William Mitchell, Sammy Mitchell's brother. William Mitchell was a member of his brother's chicken catching crew on the night of the killing.

The employer conspicuously posted a written rule forbidding its employees from having visitors at the farms where they worked. This rule was in effect at the time of Mitchell's death, and in all probability, he knew of its existence.

The above review of the facts is substantially the same as the finding of facts stated in the trial court's written reasons for judgment.

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.' Our appellate courts have often turned to Professor Malone's Treatise on Workmen's Compensation (Malone, La. Workmen's Compensation Law (1951) hereinafter cited simply as Malone), for guidance in interpreting these two requirements. In the recent case of Lisonbee v. Chicago Mill & Lumber Company, La., 278 So.2d 5 (1973), involving an assault on an employee by a gunman during work hours, Justice Summers stated his synopsis of applicable sections of Professor Malone's Treatise:

'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, Sections 162 and 192.

Speaking specifically of assault cases, Professor Malone suggests this formula '* * * (T)he risk of assault should be administered like the risk of lightning or tornado, through the time-place rule of the Kern decision. (Kern v. Southport Mill, Limited, 174 La. 432, 141 So. 19 (1932)). If the employee was actively engaged in the performance of duties, * * * or even if he was taking a short permissible rest from his labor, he should be protected against assault without reference to the nature of the difficulty that prompted the attack or the identity of his assailant. If, however, at the time of the aggression the victim was only barely within the course of his...

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