Pinchera v. Great Atlantic & Pac. Tea Co.

• Decision Date: 11 January 1968
• Docket Number: No. 10926,10926
• Citation: 206 So.2d 793
• Court: Court of Appeal of Louisiana — District of US
• Parties: Katherine PINCHERA et vir, Plaintiffs-Appellants, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., Defendant-Appellee .

Page 793

206 So.2d 793

Katherine PINCHERA et vir, Plaintiffs-Appellants, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., Defendant-Appellee .

No. 10926.

Court of Appeal of Louisiana, Second Circuit.

Jan. 11, 1968.

Rehearing Denied Feb. 27, 1968.

Writ Refused March 25, 1968.

Campbell, Campbell, Marvin & Johnson, Minden, for appellants.

Blanchard, Walker, O'Quin & Roberts, Shreveport, for appellee.

Before AYRES, BOLIN, and BARHAM, JJ.

AYRES, Judge.

Plaintiff Mrs. Katherine Pinchera, having allegedly sustained accidental injuries within the course and scope of her employment with the defendant, The Great Atlantic & Pacific Tea Company, Inc., and her husband, George D. Pinchera, instituted this action for a declaratory judgment to determine whether Mrs. Pinchera's remedy was through an action for workmen's compensation or in tort with an appropriate award in accordance with the court's determination of the nature of defendant's liability.

The court, after trial, discounted the fact that plaintiff Mrs. Pinchera experienced an accident while employed by defendant, but concluded that the workmen's compensation statute was without application to the facts and then found no fault upon the part of defendant or its employees that would warrant a conclusion of defendant's liability in a tort action. Accordingly, plaintiffs' demands were not only rejected but plaintiff Mrs. Pinchera was condemned to refund to defendant compensation paid in the sum of $2,030. From the judgment accordingly rendered and signed, plaintiffs appealed. Defendant has answered the appeal and prays that the item of refund be increased to $4,530 so as to include an amount of $2,500 expended by it on plaintiffs' behalf for hospital and medical expenses incurred in the treatment of Mrs. Pinchera's alleged injuries. For this refund, judgment is sought against both plaintiffs in solido.

First of primary concern is the question whether plaintiffs established Mrs. Pinchera was involved in an accident while employed by defendant. Defendant contends that the proof offered falls far short of discharging this burden under a well-established rule that in personal injury cases where there is no positive proof of an accident, except the testimony of one of the interested parties, it is necessary for the court to carefully scrutinize the testimony and to study in detail the circumstances which might tend to disprove it . Crier v. Marquette Casualty Company, 159 So.2d 26 (La.App., 4th Cir. 1963--writ refused); Davilla v. Ochsner Clinic, 103 So.2d 285 (La.App., Orl.1958); Ladmirault v. Bisso Ferry Co., 72 So.2d 8 (La.App., Orl.1954); Franklin v. Texas & P.R. Co., 35 So.2d 251 (La.App., Orl.1948).

In thus considering Mrs. Pinchera's testimony it is urged that it be evaluated under the rule there must be nothing to impeach or discredit her testimony and that for recovery her account of the alleged accident must be supported by the surrounding facts and circumstances. Carter v. Casualty Reciprocal Exchange, 163 So.2d 855 (La.App., 2d Cir. 1964); Franklin v. Texas & P.R. Co., supra. In this connection, defendant points out that the trial judge, in a written opinion, stated:

'* * * there are many inconsistencies in Mrs. Pinchera's testimony and certainly the facts and circumstances do not tend to support her account of how the accident occurred.'

Resolution of this question is dependent upon the facts which the record discloses, a review of which is necessary for that purpose.

According to Mrs. Pinchera, the accident in which she claimed to have been injured occurred while she was inside a storage area in a back storeroom of defendant's store. This area, sometimes referred to as a locker, constructed beneath a staircase, was 13 3 1/3 in overall length, with a width of 3 9 and a height of 7 8 for a distance of 7 11 . From that point, the staircase formed the ceiling of the locker and slanted downward to its minimum height of 3 3 . Entrance was through a door 2 in width located 2 4 from the rear of the locker. Against the inner back wall of the locker was a unit of storage shelves 1 5 in depth with a length of 8 4 . The aisle between the shelves and the front wall had a width of 2'.

Mrs. Pinchera's version of the accident was that she had placed a dolly near the door of the locker upon which she intended to place merchandise. She went inside to get a box of candy described as a sealed cardboard box estimated to be about 12--14 wide, 9 deep, and 18--22 long. After entering the door she turned to her left and walked toward the end of the tier of shelves, whereupon, while leaning forward, she lifted the box from the lowest shelf and started to turn to her left in order to get into position to back toward the door. In so doing, the box struck the wall causing some loose boards to fall and strike her back.

The discrepancies and inconsistencies in her testimony, to which defendant refers and with which the trial court was obviously concerned, have reference to minor details related by her on the occasions of her report of the accident, in giving a history of the occurrence to her physicians, and in testifying in court. These minor discrepancies are not, in our opinion, entitled to the importance emphasized. Taking certain isolated statements from the whole of her version of the accident, an impression may be gained she claimed to have been injured by the fall of the boards.

However, from Mrs. Pinchera's statements, when taken as a whole, the conclusion logically follows that she sustained an injury or injuries to her back by the strain in lifting the box of merchandise while she was in a stooped position. This is consistent with her statements concerning the history of the accident as related to physicians who examined and treated her. Slight but immaterial variations in statements made over a period of two years, concerning the manner of the occurrence of the accident, are insufficient to brand plaintiff as unworthy of belief.

Nor does it appear unreasonable or important that plaintiff's injury at the time did not appear to be of consequence. Pain, however, was experienced in her back, which steadily increased during the night. On the following morning, on reporting the accident to the store manager, she was advised to see a doctor. Dr. R. McIntyre Bridges was immediately consulted. Through an examination on that occasion, muscle spasm in her lower back with restricted motion was noted. A tentative diagnosis was acute lumbosacral sprain. These findings are consistent with plaintiff's claim she sustained accidental injuries on the preceding day.

The rights and remedies of an employee injured while performing duties in the course and scope of his employment, where the statute is applicable, are governed exclusively by the Workmen's Compensation Act (LSA-R.S. 23:1021 et seq., 23:1032). Thus, the application vel non of the statute to the facts of this case must be first determined.

The defendant owns and operates in the city of Minden a retail grocery store described as a supermarket which is equipped with the latest mechanical and electrical appliances. A retail grocery, however, is not listed in the compensation statute as a hazardous business (LSA-R.S. 23:1035). Nor has it been held per se to be hazardous. Boggs v. Great Atlantic & Pacific Tea Company, 125 So.2d 419 (La.App., 3d Cir. 1960); Le Blanc v. National Food Stores of Louisiana, Inc., 118 So.2d 500 (La.App., 1st Cir. 1960); Talbot v. Trinity Universal Insurance Company, 99 So.2d 811 (La.App., 1st Cir. 1957--writ refused).

Though defendant's operation is not one of those listed in the statute as hazardous, the statute provides that its operation of apparatus charged with electrical current brings it within the purview of the statute (LSA-R.S. 23:1035). It is therefore of importance to determine whether defendant maintained such apparatus or appliances and whether the plaintiff was charged with their operation as a substantial portion of her duties.

Plaintiff was manager of the coffee, dairy, and candy departments of the store. As such, she had in use an electric coffee grinder and an electric package sealer. From her position in the store and the nature of her duties, it can only be concluded that a substantial portion of her work entailed the grinding and packaging of coffee and the sealing of those packages by use of the electric sealer. These were in addition to her duties in waiting on customers, which included the custom grinding of coffee for individual customers.

Defendant cites and relies upon the decision in Boggs v. Great Atlantic & Pacific Tea Company, supra, which concerned the use by the employee of cash registers and a coffee grinder. The use of these, however, was not a customary part of the employee's duties. The substantial portion of his duties related to price marking the merchandise. It was only on occasions and in emergency situations that the employee assisted at the cash register or in the grinding of coffee.

The Boggs case is therefore distinguished from the instant case in that here the grinding and packaging of coffee and the sealing of the packages constituted a substantial part of the duties which Mrs. Pinchera regularly and daily performed through the use and operation of the electric grinder and package sealer. In the Boggs case the employee was shown to have acted as checker and, in so doing, used the cash register and the coffee grinder at most only once or twice a week and sometimes not for a month at a time. Thus, the instant case is not only distinguishable from the Boggs case but from the following: Brownfield v. Southern Amusement Co., 196 La....