Renfroe v. City of New Orleans, 12002
| Decision Date | 05 February 1981 |
| Docket Number | No. 12002,12002 |
| Citation | 394 So.2d 787 |
| Parties | Audrey RENFROE, Surviving Spouse of Anthony Polito, Individually and on Behalf of the Dependent Minors, Frank Joseph Polito and Samuel Wayne McLellan v. CITY OF NEW ORLEANS, General Motors Corporation and the Royal Globe Indemnity Insurance Company. |
| Court | Court of Appeal of Louisiana — District of US |
Dalton, Gillen & Roniger, Gregory W. Roniger, Jefferson, for plaintiffs-appellees.
Turner & Young, George P. Hebbler, Jr., New Orleans, for defendants-appellants.
Before SAMUEL, GULOTTA and CHEHARDY, JJ.
Defendants, General Motors Corporation and its insurer, appealing from an award of death benefits under the Louisiana Workmen's Compensation Act to the widow of Police Captain Anthony D. Polito, contend there was no proof of an employment relationship between General Motors and Polito. Alternatively, they argue that Polito's fatal automobile accident did not arise out of and in the course and scope of his employment and that the trial judge erred in excluding certain evidence indicating Polito was on a personal mission rather than a job-related activity when he died. Defendants further contend that Polito's intoxication at the time of the accident bars his widow from recovery under LSA-R.S. 23:1081. 1
Although we agree with the trial court that an employment relationship existed and that the accident arose out of and occurred in the course of Polito's employment, we conclude that Polito's intoxication was the proximate cause of his accident. Accordingly, we reverse the trial court's judgment.
For five days prior to his death in the early morning hours of February 2, 1977, Captain Polito was in charge of a special detail of six police officers at the National Automobile Dealers Association convention in New Orleans. Although the officers were New Orleans policemen, they had been specially detailed to protect and escort Buick Motor Division executives during their stay in the city. Each officer, except Polito, was assigned as a chauffeur and bodyguard to a Buick executive or VIP. Polito had the responsibility of overseeing the detail. Each officer, including Polito, was provided with a new Buick automobile for use in carrying out his assignments. Polito and his men were on 24-hour call during the convention period. Often their work would occupy them from 7:30 or 9:00 a. m. until 2 or 3 a. m. the following day as they accompanied the executives at dinner and night spots in the city. Although Polito would coordinate assignments, the record indicates that he was also seen at restaurants with Buick executives during the convention.
At the conclusion of the convention and after the Buick executives had been returned to the airport on the morning of February 1, 1977, Polito and his men met at the Fairmont Hotel during the early afternoon and each officer was paid his earnings. Also at that time, Polito informed them that there would be a dinner for them that evening at a local restaurant. Although some officers returned their loaned cars at that time, Polito exercised an option to return the vehicle on the following day.
The dinner lasted from approximately 6 to 9 p. m. and was attended by the officers in the detail and some Buick personnel. The record indicates that Polito had two glasses of wine with the meal and, after dinner, returned to the Fairmont where he consumed more drinks in the hotel lounge over a period of about an hour. He then went to the hotel night club. Polito was drinking heavily before leaving at approximately 11:30 p. m.
At some time between midnight and 1 a. m on February 2nd, Polito's Buick, while traveling at a high rate of speed in a westerly direction on I-610, hit the curbing and rolled over the guardrail in the vicinity of the 17th Street Canal and I-10 in the city of New Orleans. 2 Police officers arrived between 1:35 and 1:40 a. m. and found Polito dead at the accident scene, approximately six blocks from his home. A blood-alcohol test performed during his autopsy revealed an alcohol content of 0.23%.
At the outset, we reject defendants' contention that there has been a failure of proof of the employment relationship between Polito and General Motors. Although it is true that a workmen's compensation claimant must prove by a preponderance of the evidence that he was an employee of defendant at the time of his injury, 3 we hold that there was ample proof of the employment relationship in our case.
Robert J. Adams, manager of sales promotion and merchandising of the Buick Division of General Motors at the time of the 1977 convention, testified that he had contacted a former New Orleans police officer, Joe Vitare, to arrange for security for General Motors executives during their stay in New Orleans. Vitare contacted Polito who picked the officers for the detail. Each officer under Polito's command was assigned a General Motors management member from the Buick division. During the convention Polito remained in contact with Adams and oversaw security of the Buick executives. A seven-page bill from Buick's advertising agent to the Buick Motor Division, General Motors Corporation, shows payment in connection with the police detail, made to "Captain Anthony D. Polito." Payment was made by General Motors to the officers for the services rendered by them. This is not a case where the officers were employed by the City of New Orleans or were assigned by the New Orleans Police Department. 4 Under the circumstances, we conclude the evidence established an employment relationship between Polito and General Motors.
In his written reasons for judgment, the trial judge concluded that Captain Polito was acting "within the course and scope of his employment at the time of his fatal accident." The judge noted that Polito was on "24-hour call" on February 1, 1977, even though the officers had been paid in the early afternoon. He further observed that for purposes of the workmen's compensation action the detail extended beyond the time of payment and that Polito's duties as commanding officer would have continued until the detail was completed by his return of the automobile to the Buick dealer on February 2, 1977, even though his duties to escort Buick representatives had ended on February 1. The court was of the opinion that where the employer furnishes an automobile to his employee who has an accident on the way to his home, compensation should be allowed, even though the employee may be diverted prior to returning home.
Defendants contend that the fatal accident did not arise out of or occur in the course of Polito's employment for General Motors. Since the special detail had ended during the afternoon of February 1, and Polito had requested that he be allowed to keep his vehicle until the next morning, the defendants argue that Polito at the time of the accident in the early morning of February 2 was not about his employer's business but rather was returning from a "night on the town". According to defendants, the necessities of the detail did not require him to be at the place of this accident at the time it occurred. They argue that the mere driving of the assigned Buick automobile by Polito at the time of the accident does not automatically prove he was in the course and scope of his employment.
LSA-R.S. 23:1031 provides that compensation shall be allowed for accidental injury "arising out of and in the course of" the claimant's employment. Under the jurisprudence interpreting this statute, it has been held that the terms "arising out of" and "in the course of" are not synonymous but must be considered together. The former phrase suggests an inquiry into the character or origin of the risk, while the latter phrase brings into focus the time and place relationship between the risk and the employment. Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La.1973).
in determining whether an accident "arose out of employment", at issue are whether the employee was then engaged about his employer's business instead of merely pursuing his own business or pleasure and whether the necessities of that business reasonably required that the employee be at the place of the accident at the time it occurred. Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932); Whitney v. U.S. Fid. & Guar. Ins. Co., 373 So.2d 728 (La.App. 2nd Cir. 1979), writ denied, 376 So.2d 320 (La.1979); Blakeway v. Lefebure Corp., 393 So.2d 928 (La.App. 4th Cir. 1981). An accident occurs during the course of the employment when it occurs during the time of the employment and at a place contemplated by it. Lisonbee v. Chicago Mill and Lumber Company, supra; Whitney v. U.S. Fid. & Guar. Ins. Co., supra. A determination whether an employee was engaged in a purely personal endeavor or in the course of his employment depends upon the facts of the particular case. Whitney v. U.S. Fid. & Guar. Ins. Co., supra; Keller v. Wallace Industrial Constructors, 224 So.2d 31 (La.App. 1st Cir. 1969), writ refused, 254 La. 782, 226 So.2d 771.
We have no difficulty in concluding that Polito's accident "arose out of" his employment. Driving the automobile was a responsibility contemplated and carried out in Polito's employment. The risk of an automobile accident was of the character associated with his duties as chauffeur to the Buick executives. He had been entrusted with a Buick automobile for use in that assignment and was permitted to drive it home each night before returning it to the Buick dealer at the end of the detail. The risk of an accident while driving that vehicle was to be expected and we cannot say that the fatality in this case did not arise out of the employment.
A more difficult question, however, is whether the fatality occurred "in the course of" Polito's work for General Motors.
Although it is clear that the officers in the detail were paid on the...
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