Prevost v. Felix's, Inc.

• Decision Date: 23 May 1960
• Docket Number: No. 21380,21380
• Citation: 121 So.2d 91
• Parties: Lucille Jenkins PREVOST v. FELIX'S INC., and United States Fire Insurance Co.
• Court: Court of Appeal of Louisiana — District of US

Page 91

121 So.2d 91

Lucille Jenkins PREVOST v. FELIX'S INC., and United States Fire Insurance Co.

No. 21380.

Court of Appeal of Louisiana, Orleans.

May 23, 1960.

Rehearing Denied June 20, 1960.

Reed, Reed, Reed & Garvey, New Orleans, for plaintiff-appellant.

Sessions, Fishman, Rosenson & Snellings, Cicero C. Sessions, Gerald P. Fedoroff, New Orleans, for defendants-appellees.

JANVIER, Judge.

This is a suit for workmen's compensation. Plaintiff was a sandwich maker in the employ of Felix's, Inc., which operates a restaurant on Iberville Street, in New Orleans. She slipped and fell to the floor, sustained injury, and brought this suit against her employer and its compensation insurer, United States Fire Insurance Company. She prayed for judgment based on total, permanent disability, for penalties of 12% And for attorney's fees on the contention that compensation had been arbitrarily and capriciously withheld.

The defendants answered, denying liability primarily on the ground that the business in which the employer is engaged is not hazardous and that the work of the plaintiff-employee was not hazardous, and on the further ground that no disability from the accident continued beyond the period during which compensation was paid.

From a judgment dismissing the suit plaintiff has appealed.

It is conceded that the accident occurred in the course of and arose out of the employment. Counsel for plaintiff, sensing the possibility of a holding that the employment of plaintiff was not hazardous, has, in the alternative, contended that the insurer is nevertheless liable because of the effect of Act 495 of 1958, which provides that, where there is insurance, the insurer is estopped to deny liability on the ground that the employment was not hazardous. On behalf of the defendant-insurer this contention is met by the argument that the statute is not retroactive and that, since the policy of insurance was issued and the accident occurred before the effective date of the statute, it has no effect in the case. We must first consider this contention for if that statute is retroactive, then the nature of the business of the employer and the particular occupation of the plaintiff are of no importance since there would be compensation liability in the insurer in any event if there is disability.

The accident occurred on February 7, 1958; the statute of 1958 went into effect on July 30, 1958, which was almost five months after the occurrence of the accident and was even longer after the issuance of the policy. Whether in such situation that particular statute could be given retroactive effect was given consideration by the Court of Appeal for the Second Circuit in Hymel v. Employers Liability Assurance Corporation, Ltd., of Great Britain, 113 So.2d 481, 484. That Court cited many authorities, and, giving reasons which meet with our entire approval, held that the statute could not be given retroactive effect:

'* * * Act 495 of 1958 imposes upon an insurer of employers liability for compensation irrespective of the hazardous or non-hazardous work of the employee. It is clear, therefore, that should retroactive effect be given to the provisions of the 1958 act in this case, the statute would increase the pecuniary liability of the insurer beyond that which existed at the time of the confection of the contract. Under such a ruling the statute would impair the obligation of the contract as written.

'LSA-C.C. Art. 8, declares:

"A law can prescribe only for the future; it can have no retrospective operation, nor can it impair the obligation of contracts.'

'The language of Act 495 of 1958 clearly shows the Legislature did not intend the statute to be retroactive * * *.'

On the question of what statutes may be given retroactive effect, see, also, Talbot v. Trinity Universal Ins. Co., La.App., 99 So.2d 811, and Honeycutt v. National Auto & Cas. Ins. Co., La.App., 41 So.2d 119.

Our conclusion is that that statute has no effect here and that, unless the nature of the work in which plaintiff was engaged was hazardous within the contemplation of LSA-R.S. 23:1021 et seq., there can be no recovery in compensation.

That ordinarily the business of conducting a restaurant is not within the contemplation of the statute has been many times held, notably in Atkins v. Holsum Cafeteria, La.App., 159 So. 758, 160 So. 655; Richardson v. American Employers' Ins. Co., La.App., 31 So.2d 527; Claiborne v. Smith, La.App., 2 So.2d 714, and Rauk v. Clarke, La.App., 91 So.2d 47.

Counsel for plaintiff have vehemently criticized the decision of this Court in the Atkins case in which we said that the business of operating a restaurant is not hazardous per se and in which we also said that ordinarily the kitchen of a restaurant is no more hazardous than is a domestic kitchen. Counsel also complain bitterly of those other cited decisions. A mere reading of the statute itself shows that the operation of a restaurant is not one of those businesses which are especially designated and characterized as hazardous and are expressly brought within the coverage of the statute. Thus, if any particular restaurant is to be brought within the contemplation of the statute, it must be as the result, and only as the result, of a showing that in that restaurant there are features which bring it within the rather broad blanket provisions which in the statute follow the express list of hazardous businesses. In other words, does the business of this particular restaurant, though it is not expressly and by name brought within the coverage of the statute, bring it within the protection afforded to certain kinds of work regardless of whether the business in which the work is done is especially and expressly named in the statute? Those blanket provisions to which counsel for plaintiff point are:

1. 'The construction, installation, operation, alteration, removal or repairs of wires, cables, switchboards or apparatus charged...