Richmond v. Weiss & Goldring, Inc.

• Decision Date: 17 November 1960
• Docket Number: No. 146,146
• Citation: 124 So.2d 601
• Court: Court of Appeal of Louisiana — District of US
• Parties: Kathleen B. RICHMOND, Plaintiff-Appellant, v. WEISS & GOLDRING, INC., et al., Defendants-Appellants.

Page 601

124 So.2d 601

Kathleen B. RICHMOND, Plaintiff-Appellant, v. WEISS & GOLDRING, INC., et al., Defendants-Appellants.

No. 146.

Court of Appeal of Louisiana, Third Circuit.

Nov. 17, 1960.

Rehearing Denied Dec. 14, 1960.

Gold, Hall & Skye, by George B. Hall, Alexandria, for defendants-appellants.

Gravel, Sheffield & Fuhrer, by Camille F. Gravel, Jr., Alexandria, for plaintiff-appellee.

Before TATE, FRUGE and HOOD, JJ.

TATE, Judge.

The plaintiff was awarded workmen's compensation benefits for total and permanent disability. The defendants, her employee and its insurer, appeal; and the plaintiff answers the appeal requesting that, additionally, she be awarded penalties and attorney's fees for an allegedly arbitrary termination of her weekly compensation.

The facts are virtually undisputed. The plaintiff was a clerical worker in an office of the large department store operated by the defendant employer. Although she was employed primarily as a stenographer, her duties also included work as the relief switchboard operator, requiring her to operate the office switchboard regularly for about two hours each day during the absence of the regular operator at lunchtime and otherwise. The plaintiff twisted her back on October 11, 1956 while lifting office records and sustained the injury for which recovery is sought.

Both the accident and the initial disability are not disputed, and in fact the plaintiff was paid workmen's compensation for 2 1/2 years. By this appeal, the defendants principally question the trial court's determinations: (a) that the plaintiff's employment was hazardous so as to entitle her to the coverage of our Workmen's Compensation Act, LSA-R.S. 23:1021 et seq.; and (b) that the plaintiff was still disabled at the time compensation payments were terminated in 1959 and at the time of the trial ending in 1960.

Although it is conceded that the operation of a department store is not be itself hazardous, the trial court concluded, correctly in our opinion, that the plaintiff's own employment was hazardous within the contemplation of the compensation statute because, as a regular and daily duty, she was required to operate a switchboard, an occupation specifically classified as hazardous by the act, LSA-R.S. 23:1035. ¹ 'It is now well settled that an employee is covered Where he is regularly exposed to or is frequently brought in contact with the hazardous feature of the business, even though he is primarily engaged in the nonhazardous part', Viator v. New Hotel Monteleone, Inc., 234 La. 1075, 102 So.2d 461, 463. (Emphasis supplied by the Supreme Court.) Likewise, as the trial court held, in such instances a disability is compensable even when it is sustained during the performance of the non-hazardous portion of the duties. Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So.2d 303; Talbot v. Trinity Universal Ins. Co., La.App. 1 Cir., 99 So.2d 811; Fontenot v. Myers, La.App. 1 Cir., 93 So.2d 245.

In the above-cited Talbot case, for instance, the plaintiff was employed as an assistant manager and clerk in the operation of a large grocery store, a business again which is not in itself classified as hazardous. Although the principal portion of his duties involved non-hazardous work, the plaintiff as a regular and daily portion of his duties operated an electric meat slicer and grinder during the absence of the butcher at lunch or for other cause, which latter duties the court found were a hazardous feature of his employment for purposes of compensation coverage. ² The employee's disability resulted from an accident during the perfromance of the nonhazardous major portion of his duties, when he stooped over to pick up a paper and his back gave way due to a previously latent disease. Not only was compensation awarded the disabled employee, but the compensation insurer's refusal to pay compensation was found to be arbitrary so as to subject it to penalties and attorney's fees.

The defendants-appellants further contend that the present employee's own duties cannot be considered as involving contact with a hazardous feature of her employment because, in fact, this particular switchboard was not dangerous and involved no appreciable possibility of contact with the live electric current or of injury by electrical shock. However, 'When the legislature has declared an occupation to be hazardous for purposes of the compensation act, it is not open to the courts to question the classification, or to segregate it into hazardous, covered components and non-hazardous, non-covered components. Guillory v. Coal Operators Cas. Co., La.App. 1 Cir., 95 So.2d 201; Fontenot v. Myers, La.App. 1 Cir., 93 So.2d 245,' LeBlanc v. National Food Stores, La.App. 1 Cir., 118 So.2d 500, 502.

Under these authorities, the plaintiff's injury in the course of the non-hazardous portion of her duties was clearly compensable, since her employment was within the coverage of the compensation act because an integral portion of her duties regularly exposed her to substantial contact...