Richardson v. American Emp. Ins. Co.

• Citation: 31 So.2d 527
• Decision Date: 30 June 1947
• Docket Number: 2910.
• Parties: RICHARDSON v. AMERICAN EMPLOYERS' INS. CO. et al.
• Court: Court of Appeal of Louisiana — District of US

31 So.2d 527

RICHARDSON v. AMERICAN EMPLOYERS' INS. CO. et al.

No. 2910.

Court of Appeals of Louisiana, First Circuit

June 30, 1947

Rehearing Denied Oct. 3, 1947.

See 32 So.2d 108.

Appeal from Fourteenth Judicial District Court, Parish of Calcasieu Mark C. Pickrel, Judge.

Thompson Lawes & Cavanaugh, of Lake Charles, for appellants.

M R. Stewart, of Lake Charles, for appllee.

DORE, Judge.

Plaintiff brought this action to recover from his employer, Telismare Belaire, and the American Employers' Insurance Company his employer's compensation insurer, compensation at the rate of $20 per week for a period of not exceeding four hundred weeks, for total and permanent injury alleged to have resulted from personal injuries sustained while in the scope and course of his employment.

Plaintiff alleges that on May 2, 1945, the alleged date of the accident, his employer was the owner and operator of a business known as 'Belaire Drive-Inn' in the City of Lake Charles and that the operation of said business entailed the continuous use of an automobile in hauling merchandise, including cases of beer which had to be stacked in a store room, and the operation of electrical machinery which included three electrical motors, two thirty-six (36) inch suction fans and an electrical cooler, and a large furnace which had to be lighted with gas. The last item was abandoned for the reason that the evidence showed that this furnace was installed after the accident.

He alleges that his duties were to supervise the entire business in the event of his employer's absence, to operate his employer's or his own automobile, to unload merchandise therefrom, to oil, take care of and operate the electrical machinery, plug and unplug said electrical machines, and perform services at and around said machines.

After alleging his average weekly wages, 65% of which would allow the maximum of compensation per week, he describes the alleged accident as happening when reaching, while standing on his tip-toes, with both hands above his head, for and taking hold of a case of beer on a stack and giving the case of beer a jerk, his collar bone was fractured or misplaced.

The defendants first filed an exception of no right or cause of action, which exception was referred to the merits, and, secondly, filed a joint answer in which they admitted that defendant Belaire owned and operated the business of 'Belaire Drive-Inn'; that plaintiff complained to defendant of having sustained an injury to his shoulder; that plaintiff was referred to a physician, who made an examination of the plaintiff, but that plaintiff remained in the employ of defendant Belaire and did not cease to perform his accustomed duties, receiving therefor his full weekly wages, until defendant Belaire ceased to own and operate the said 'Inn.' Otherwise, they denied all of plaintiff's allegations.

The trial of the case resulted in a judgment for plaintiff and against the defendants for the maximum compensation during disability not exceeding 400 weeks. Defendants have appealed. Plaintiff has answered the appeal, praying for a penalty of five per cent. on the amount due contending that the appeal was taken for delay and is frivolous.

As stated by the defendants, there are but two questions for decision, viz.:

'1. Under the pleadings and facts, was the business of the employer and the duties of the plaintiff in connection therewith such as to entitle plaintiff to relief under the Compensation Act?

'2. Do the injuries which the plaintiff suffered totally disable him from performing the same sort of duties as were being performed by him at the time of the accident?'

We shall discuss these questions in the order named.

The evidence shows that defendant owned and operated a place of business known as 'Belaire Drive-Inn' in the City of Lake Charles, which said business was a restaurant and, in connection therewith, a soft drink and beer bar. In the place of business, there were two suction fans powered by electrical motors which had to be plugged in when operated, and plugged out when not in operation, and three other electrical motors which were used to operate the compressors which cooled the refrigerators used in connection with the business. The defendant daily used an automobile in connection with his business to haul merchandise from the various warehouses houses and wholesale businesses in the City of his place of business for resale or use. Plaintiff was assistant to the defendant and his duties consisted of waiting on the trade, keeping the ice boxes filled with various beverages, operating, by plugging in the electrical cords, the fans and oiling of all the motors, the unloading of all merchandise from the automobile and to place such merchandise in the store room, and in the absence of the owner, to use the automobile of the owner, occasionally his own, to haul merchandise as might be needed to conduct the business. Also, in the absence of the owner, plaintiff had the entire supervision of the operation of the business. Plaintiff was injured by reaching above his head as high as he could, lifting a case of beer from the top of a stack, which handling or removing of the case of beer was a part of his regular duties.

We again have that rather unsettled question of what makes a business hazardous when such business is a non-hazardous business in itself, because it must be conceded that the operation of a restaurant and beer bar is not hazardous per se. If we are to find that the defendant's business was partly non-hazardous and partly hazardous, we must find that what made it hazardous was the operation of these suction fans and the electrical motors and the use of an automobile, coming under the omnibus clause of Section 1, Sub-Section, 2, of the Compensation Act, Act No. 20 of 1914, as amended, which in part reads as follows: 'the construction, installation, operation, alteration, removal or repair of wires, cables, switchboards or apparatus charged with electrical current. * * * installation, repair, erection, removal or operation of boilers, furnaces, engines and other forms of machinery.'

As to the suction fans and the five electrical motors, it is to be noted that these appliances are generally found, today, in all restaurants and soft drink stands. The evidence shows that he did take care of them occasionally, such as oiling the fans and motors, and the plugging in of the electrical cords whenever necessary; he did whatever necessary maintenance work there was to be done in order to maintain the machinery used in connection with the business. The presence of these suction fans and electrical motors in the place of business and the services performed by the plaintiff to them were not, we believe, sufficient to bring defendants' business within the language of the act quoted supra. However, conceding that these fans and electrical motors come within the purview of the act so as to make it hazardous within the purview of the law, yet the evidence shows that the services performed by plaintiff occupied very little of plaintiff's time and were merely incidental and were not a major and material part of plaintiff's employment, but merely incidental thereto. See Brown v. Toler, La.App., 19 So.2d 680.

As to the automobile, the situation is different. The operation of motor vehicles was early held, in Haddad v. Commercial Truck Company, 146 La. 897, 898, 84 So. 197, 9 A.L.R. 1380, to characterize the business as hazardous and thus bring the operators under the protection of the act. The basis of the coverage was not the dangers that arise from traffic hazards such as collision or upset, but rather the concept of danger arising from association with and operation of an engine and other forms of machinery as provided in the so called omnibus clause, viz: 'The installation, repair, erection, removal or operation of boilers, furnaces, engines and other forms of machinery.' (Italics ours.) We grant that in that case the plaintiff's husband was fatally injured while actually operating the truck, and that the rule thus established has been applied to cover an injury sustained by the driver while operating the vehicle. See Plick v. Toye Bros. Auto & Taxicab Co., 169 La. 44, 124 So. 140...