Reynolds v. Be-Neat Tank Cleaning Corp.

• Decision Date: 03 January 1983
• Docket Number: No. CA,BE-NEAT,CA
• Citation: 425 So.2d 881
• Parties: John REYNOLDS v. TheTANK CLEANING CORPORATION, et al. 0091.
• Court: Court of Appeal of Louisiana — District of US

Page 881

425 So.2d 881

John REYNOLDS v. The BE-NEAT TANK CLEANING CORPORATION, et al.

No. CA 0091.

Court of Appeal of Louisiana Fourth Circuit.

Jan. 3, 1983.

Richard M. Goldman, New Orleans, for appellant.

Dillon & Cambre, Gerard M. Dillon, New Orleans, for appellee.

Before SCHOTT, CIACCIO and WILLIAMS, JJ.

CIACCIO, Judge.

Plaintiff appeals from a judgment of the district court which dismissed his claim for workmen's compensation.

The suit arose out of the following facts:

In November, 1979, plaintiff, John Reynolds, was employed as an onshore and offshore equipment and material clean-up worker for the defendant, Be-Neat Tank Cleaning Corporation. At the time, the defendant company was under contract to Chevron Oil Company and was engaged to clean oil tanks in Buras, Louisiana. The job lasted thirty (30) days and during the time of the operation the defendant's work crew was based in Buras, Louisiana, at a local motel. The crew was supervised by the owner of the defendant company, Joe Benitte, Jr. and his son-in-law, Joe Druant. The workers were paid for on the site duty, that is, from 6 a.m. until 6 p.m. each day, with their work day beginning at the motel. The plaintiff earned five ($5.00) dollars per hour. In addition to the hourly wage, each crew member received ten ($10.00) dollars per day for sustenance. This sum was generally used for breakfast and dinner, as their employer provided sandwiches for the crew's daily lunch.

On November 9, 1979, the date of the accident, plaintiff and the crew had been in Buras, Louisiana for three (3) days and they were lodged at a motel near the job site. The motel did not have laundry facilities and the nearest laundromat was five (5) miles from the motel. The plaintiff and his fellow workers returned to their motel rooms after work. The plaintiff showered, dressed, picked up his clothes and travelled by company truck, with his fellow workers, to a local cafe for supper. Plaintiff, following supper, borrowed the keys to a company truck from one of his supervisors. He was instructed by the supervisor not to lend the truck to anyone. The plaintiff and two crew members proceeded by truck to the laundry to wash their clothes. At approximately 8 p.m., while in the laundry, the plaintiff and his fellow worker, Warren Griffith, became involved in an altercation. The incident was witnessed by a third employee, Christopher Parker. Immediately before the confrontation, Griffith had requested that Reynolds give him the keys to the truck so that he could secure his radio from the front seat of the vehicle. Reynolds refused to give over the keys, as he recalled the directive of his boss that he should not lend the truck to anyone. Griffith struck the plaintiff and a two minute fight ensued. The plaintiff sustained a broken jaw and facial injuries. The eyewitness, Christopher Parker, called their supervisor, Joe Druant, to inform him of the incident. Mr. Druant hitchhiked to the laundry and then drove the plaintiff to the hospital in the company truck.

The plaintiff filed suit to recover workmen compensation benefits, claiming that his injuries were work-related.

After trying the issue of liability, pursuant to a joint stipulation for a bifurcated trial, the district court dismissed the plaintiff's suit. The district court rendered the following reasons for judgment:

Plaintiff was not in the course and scope of his employment at the time of the fight. The affair was after normal working hours, and the mission was purely personal. The limitation placed on plaintiff's use of the truck were not job related instructions, but rather were the typical conditions any owner might properly impose when loaning his vehicle to another.

Plaintiff's action will be dismissed.

On appeal, plaintiff argues that his accident arose out of and was in the course of his employment, in that his injuries occurred while he was performing a function which was incidental to his employment and reasonably contemplated by his employment contract. He reasons that his injuries occurred at a laundry facility which was used by the workers of the defendant for the cleaning of their work clothes and it occurred while the plaintiff was using his employer's truck and while he was under specific instructions from his employer regarding the use of the truck. Therefore, he concludes plaintiff's actions were "undertaken pursuant to custom in the establishment and that it was knowingly accepted, without objection by those in authority." We do not agree.

An employee shall be entitled to compensation if he "receives personal injury by accident arising out of and in the course of his employment." R.S. 23:1031. The "arising out of" and "during the course of" elements of the statute are not synomyous, but must be considered together. Lisenbee v. Chicago Mill & Lumber Co., 278 So.2d 5 (La.,1973); Renfroe v. City of New Orleans, 394 So.2d 787 (La.App., 4th Cir., 1981), writ den. 399 So.2d 621. In making a determination whether the employee has satisfied the requirements necessary to receive compensation, each case must be determined by its own facts. Lisonbee v. Chicago Mill & Lumber Co., supra.

The "arising out of" requirement of the statute deals with the character or origin of the risk. R.S. 23:1031. Lisonbee v. Chicago Mill & Lumber Co., supra; Brumfield v. Patterson & Yearly Steel Co., 416 So.2d 217 (La.App., 1st Cir., 1982); Renfroe v. City of New Orleans, supra. In order to determine if an employee experienced an accident "arising out of" his employment, there must be a two-fold inquiry: first, it must be determined whether the employee was then engaged in the employer's business and secondly, whether the necessities of the employer's business reasonably required the employee to be at the place of the accident at the time of the accident. Guidry v. Serigny, 378 So.2d 938 (La.,1979); Renfroe v. City of New Orleans, supra. That is, 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. Lisonbee v. Chicago Mill & Lumber Co., supra.

The "during the course of" element of the compensation statute, brings into focus the time and place relationship and the employment. R.S. 23:1031. Renfroe v. City of New Orleans, supra; Brumfield v. Patterson & Yearly Steel Co., supra. Therefore, an accident occurs "during the course of" employment, for purposes of the Louisiana Compensation statute, when it occurs during the time of the employment and at a place contemplated by the employment. Lisenbee v. Chicago Mill & Lumber Co., supra; Renfroe v. City of New Orleans, supra. Thus, the general rule is that the accident must occur during normal working hours and at the employee's place of work. Brumfield v. Patterson Yearly Steel Co., supra, citing Kern v. Southport Mill, 174 La. 432, 141 So. 19 (La.1932). It is for this reason that an employee is generally not covered by the workmen's compensation statute when he is injured while going to or returning from work. Landry v. Benson Gold Chevrolet, 398 So.2d 1262 (La.App., 4th Cir., 1981). This general rule is subject to a number of jurisprudentially...