Powell v. Gold Crown Stamp Co.

• Decision Date: 30 October 1967
• Docket Number: No. 10858,10858
• Citation: 204 So.2d 61
• Parties: John Spurgeon POWELL, In his capacity as the duly qualified Tutor of the Minors, John Edward Powell and Tommy Powell, et al., Plaintiffs-Appellants, v. GOLD CROWN STAMP COMPANY, Inc., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 61

204 So.2d 61

John Spurgeon POWELL, In his capacity as the duly qualified Tutor of the Minors, John Edward Powell and Tommy Powell, et al., Plaintiffs-Appellants, v. GOLD CROWN STAMP COMPANY, Inc., et al., Defendants-Appellees.

No. 10858.

Court of Appeal of Louisiana, Second Circuit.

Oct. 30, 1967.

Rehearing Denied Nov. 28, 1967.

Jones, Blackwell, Chambliss & Hobbs, West Monroe, for appellants.

Theus, Grisham, Davis, Leigh & Brown, Monroe, for appellees.

Before GLADNEY, AYRES and BOLIN, JJ.

GLADNEY, Judge.

The question on appeal is whether the fatal injuries to the employee intentionally inflicted by her estranged husband constitute an accident arising out of and in the course and scope of her employment within the meaning of the Workmen's Compensation Act.

All relevant facts have been agreed upon through stipulation. We relate these as necessary for resolving the issue:

Evelyn Ann Powell was fatally shot by her estranged husband, John Sebe Powell, at the Gold Crown Stamp Company, Inc. store in Monroe, Louisiana, on the afternoon of February 16, 1966. At the time and for several years prior thereto she had been employed as a manager of the store and was actively engaged in her employment in the display room at the store when her husband entered from the rear. The store consisted of a display room in the front part, a store room in the center, and an additional store room in the rear which was adjoined by a parking lot. Powell first accused an employee, Keith Pierce of Gold Crown Stamp Company, Inc., of kissing the said Evelyn Ann Powell and then insisted upon talking to her on the outside, but she refused to leave her place of employment. Upon realizing there was going to be trouble if she did not talk to him, she agreed to and walked into the second stock room, leaving the door open between the stock room and the display room. Pierce stood in the doorway between the display room and the stock room and observed the two engaged in conversation. He saw Powell display a pistol and then replace it in his pocket, and was 20 feet distant from Mrs. Powell and her husband when Powell forced his wife behind some strong steel shelving. Within a few minutes thereafter Pierce heard two shots. Evelyn Ann Powell was found fatally wounded behind the steel shelving and John Sebe Powell was found dead a few feet from her with the pistol by his side. In her capacity as manager for the Gold Crown Stamp Company, Inc. Evelyn Ann Powell worked in all three rooms of the store. The room wherein she was shot was a store room in which articles were stored and from which they were delivered to customers in exchange for stamps. Mrs. Powell's duties also required that she take the articles shipped to the room from the shipping crates and place them in the stock room. She was responsible for the overall conduction of the business of her employer on the premises.

In his capacity as Tutor, John Spurgeon Powell on behalf of the two minor children of Evelyn Ann Powell, John Edward and Tommy Powell, seeks recovery of the benefits to which they are entitled under the workmen's compensation law, together with interest, penalties, and attorneys' fees. Claudia Greer, as Administratrix of the Estate of Evelyn Ann Powell, sues for recovery of medical bills and the funeral bill of the deceased employee.

The trial judge assigned reasons for judgment in a carefully and thoroughly written opinion, holding that when Evelyn Ann Powell left the front of the store and went into the other room to talk to her husband about their personal affairs, she was engaged about her own personal business and not about the business of her employer. The opinion reflects the views supported by appellee with citations of Moss v. St. Paul-Mercury Indemnity Company, La.App., 35 So.2d 867 (1st Cir. 1948), Seals v. City of Baton Rouge, La.App., 94 So.2d 478 (1st Cir. 1957, cert. denied), Mabry v. Fidelity & Casualty Company of New York, La.App., 155 So.2d 44 (2nd Cir. 1963, cert. denied), LeCompte v. Kay, La.App., 156 So.2d 75 (1st Cir. 1963, cert. denied) and Blake v. Fidelity & Casualty Company of New York, La.App., 169 So.2d 608 (2nd Cir. 1964) .

Awards of workmen's compensation were made in the following cases which plaintiffs have cited as controlling the issues presented herein: Rosenquist v. New Amsterdam Casualty Company, La.App., 78 So .2d 225 (Orl.1955); St. Alexandre v. Texas Company, La.App., 28 So.2d 385 (Orl.1946 cert. denied); McCain v. Travelers Insurance Company, La.App., 153 So.2d 124 (3rd Cir. 1963); Harvey v. Caddo DeSoto Cotton Oil Company, Inc., 199 La. 720, 6 So.2d 747 (1942); Edwards v. Louisiana Forestry Commission, 221 La. 818, 60 So.2d 449 (1952); Livingston v. Henry & Hall, La.App., 59 So.2d 892 (2nd Cir. 1952); Williams v. United States Casualty Company, La.App., 145 So.2d 592 (4th Cir. 1962 cert. denied); Rogers v. Aetna Casualty & Surety Company, La.App., 173 So.2d 231 (3rd Cir. 1965); Simmons v. Liberty Mutual Insurance Company, La.App., 185 So.2d 822 (3rd Cir. 1966); Carter v. Lanzetta, 249 La. 1098, 193 So.2d 259 (1966); Bates v. Gulf States Utilities Company, 249 La. 1087, 193 So.2d 255 (1966) .

Whether or not an accident or injury occurred in the course of and arose out of the employment has been the source of a great deal of litigation. As Justice Provosty in the Myers v. Louisiana Railway & Navigation Company, 140 La.Ann. 937, 74 So. 256 (1917) case concluded, no exact formula can be laid down which will adequately solve every case. He said:

'* * * after vain attempts at formulating some verbal test for determining when the injury has or not arisen out of the employment, the courts have come to the conclusion that each case must be determined from its own facts; that the question cannot be solved by phrases.' (74 So. 256, 258)

The test prescribed in the landmark case of Kern v. Southport Mill, Ltd., 174 La. 432, 141 So. 19 (1932) for determining whether or not an accident arose out of the employment, has exercised the strongest influence on our courts. Malone's Louisiana Workmen's Compensation Law & Practice, concluded the decision held that:

'* * * an accident arises out of the employment if the employee was engaged about his employer's business at the time of the accident and the necessities of the employer's business required that he be at the place of the accident at the time the accident occurred.' (Malone's Louisiana Workmen's Compensation Law & Practice, p. 225)

This test has sometimes been referred to as the time, place and circumstance doctrine. In Malone's work, supra, he made the following comment which appears pertinent:

'The observation has been made in previous sections that an employee is acting in the course of his employment while he is actually engaged in his employer's work even before or after working hours. Furthermore, even if he has finished the day's work and is preparing to leave, or is in the act of leaving, he is entitled to a reasonable period while still on the premises which is regarded as within the course of the employment. The working day embraces these intervals just as it includes reasonable periods for rest, relaxation or the attendance of personal needs. This applies also to periods prior to the actual beginning of work under similar circumstances.' (Emphasis supplied) (Chapter 8, § 169, p. 193)

Hartford Accident & Indemnity Company v. Cardillo, 72 App.D.C. 52, 112 F.2d 11, 15 (cert. denied, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415, 1940), a landmark case in workmen's compensation law, observes the need for recognizing that environment created by the work includes associations as well as conditions, and that associations include the faults and derelictions of human beings as well as their virtues and obediences. The court then made this comment:

'* * * Men do not discard their personal qualities when they go to work. Into the job they carry their intelligence, skill, habits of care and rectitude. Just as inevitably they take along also their tendencies to carelessness and camaraderie, as well as emotional make-up. In bringing men together, work brings these qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flare-up. Work could not go on if men became automatons repressed in every natural expression. 'Old Man River' is a part of loading steamboats . These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment.' (112 F.2d 11, 15)

Prior to the Kern case the Supreme Court considered the case of Myers v. Louisiana Railway & Navigation Company, supra, which had enunciated the rule that the accident must be the result of some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed.

We are not inclined to a discussion of the tests of liability as set forth in Myers and Kern. Both cases have been regularly cited with approval in our appellate decisions and an analysis of each is to be found in Malone, supra, pp. 225--230. Our review of decisions found in the jurisprudence of this state indicates that the majority of the appellate court decisions, including those of the Supreme Court, have followed the time, place and circumstance doctrine of the Kern case.

The facts and issues found herein, in our opinion, bear a closer analogy to those in Livingston v. Henry & Hall, Williams v. United States Casualty Company, and Rogers v. Aetna Casualty & Surety Company, supra.

The employee in Livingston v. Henry & Hall was shot and killed by a third party because of some improper attention which the decedent was supposed to have paid to the assailant's wife. The court held that the accident arose out of the employment and thus was compensable, reasoning that the deceased would not have lost his life except for the fact...