Rigsby v. John W. Clark Lumber Co.

• Decision Date: 23 December 1946
• Docket Number: 2849.
• Citation: Rigsby v. John W. Clark Lumber Co., 28 So.2d 346 (La. App. 1946)
• Court: Court of Appeal of Louisiana
• Parties: RIGSBY v. JOHN W. CLARK LUMBER CO. et al.

28 So.2d 346

RIGSBY v. JOHN W. CLARK LUMBER CO. et al.

No. 2849.

Court of Appeals of Louisiana, First Circuit

December 23, 1946

Rehearing Denied Jan. 29, 1947.

Writ of Certiorari Denied March 17, 1947.

Gist Thornton & Murchison, of Alexandria, for appellants.

Griffin T. Hawkins, of Lake Charles, for appellee.

LeBLANC Judge.

Plaintiff in this case suffered an accidental injury on August 16, 1943 for which he instituted this suit to recover compensation from the defendants, his employer and the latter's compensation insurance carrier, for the maximum amount of compensation for total, permanent disability.

He was employed as a bookkeeper and office manager by the defendant lumber company but the testimony shows positively that he also had other duties to perform which took him outside of the office, principally to tend a gasoline filling station situated some twelve feet from the door of the building in which his office was located.Besides he had to deliver messages and orders to the sawyer at the saw mill.This latter part of his work necessitated his walking a considerable distance from the office to near the saw mill where he either wrote or posted the orders on a blackboard attached to a post near the mill.

Therefore considering the different things he had to do, there cannot be much doubt that under the jurisprudence of this State plaintiff's duties in connection with his employment were of a hazardous nature and the important question is whether or not he was engaged in the performance of any of the hazardous duties of his employment at the time he was injured.

The undisputed facts concerning the accident are as follows:

Plaintiff was sitting at his desk, engaged at the moment in some of his clerical duties, when he heard a noise on the outside of the office building which sounded to him like a pistol shot.He went to the window and looked out and as he saw a truck in motion at the time he thought that the noise was caused from a backfire of the motor.He apparently paid no further attention to what had happened until a negro came in and told him that a telephone wire had broken and was wrapped around the high powered line which paralleled it.He then went to the outside and saw that the line was broken.He would have called someone whose business it was to do so, to come and repair it, but the telephone in his office had gone dead; so considering it part of his duty to warn anyone of the danger that might exist, he sat down in a chair in the door of the office where he could be on the lookout for traffic that might come in contact with the wire.He remained there for about thirty minutes and then took it upon himself to do something about the situation.He looked to see if the high powered wire was insulated and also asked the negro if he thought it was.Apparently satisfied that it was, he caught hold of the hanging wire, pulled on it a couple of time and was unable to get it loose.He then stepped back two or three paces at an angle to pull on it again and on doing so he was knocked unconscious by an electric shock which he sustained and from the result of which he suffered burns to his hand and back and on the bottom of his right foot.

He was taken to a doctor to be examined and was placed on compensation immediately, receiving payments regularly until February 2, 1944, on which day he returned to limited employment with the defendant and was paid $20.00 per week until March 23, 1944.Payments made for this limited employment were thereafter increased to $25.00 per week and he again received subsequent increases whenever the other employees of defendant obtained raises in pay.On the day of the trial of the casehe was still receiving such payments.

As a result of these payments the defendant, after suit was instituted, filed a plea of prematurity and exceptions of no cause or right of action.Very little testimony was taken on this plea and on these exceptions which disclosed facts regarding payments made by the defendant as just outlined and on the authority of the case of Thornton v. E. I. DuPont De Nemours & Co., 207 La. 239, 21 So.2d 46, they were overruled.

The other defenses raised on the merits were rejected by the trial judge who awarded compensation for total, permanent disability at the maximum rate, payments to begin on September 10, 1945.The defendant appealed.As the exceptions and the plea which had been overruled do not seem to be urged on the appeal we do not find it necessary to refer to them.

Most of the brief of counsel for the defendant is devoted to the question of the nature of the accident and its relation to the plaintiff in connection with the duties of his employment.The point is strongly stressed that the plaintiff was not engaged in a hazardous employment under the provisions of the compensation law.Counsel seem to rely strongly on the case of Brownfield v. Southern Amusement Co., 196 La. 73, 198 So. 656, and also on the case of Brown v. Toler, La.App., 19 So.2d 680.In both these cases it was held that where an employer's business partakes of both the hazardous and non-hazardous features of the compensation act, an employee, in order to recover compensation when injured, must show that the major portion of his duties brought him in contact with the hazardous feature of the employment.In the Brownfield case, the plaintiff was injured when she fell off of a high stool at the ticket window of a moving picture theater of which she was manager and it was held that even though she occasionally used her automobile in connection with other of her duties, the work she was performing at the time of her injury was so remote from that part of her work which required her to use her car, it could not be said to have any possible connection with it and therefore compensation was denied.In the Brown case it was held that an employee who was engaged by a storekeeper and who was injured when he was opening oysters, while in the course of his employment, could not recover from the employer on the ground that in connection with his business the employer also used an electrically driven meat grinder which the injured employee also occasionally operated.

Several other cases are also referred to by counsel for defendant but all of them were decided on the particular facts involved in each, as indeed all of these cases have to be.

In the present case there can be no doubt that under the testimony the plaintiff's duties were not restricted to the simple matter of working in an office and keeping books and clerical accounts.It is urged that the filling station which he attended was defendant's private station but that would make no difference even if it were so.The facts do show however that occasionally gasoline was sold and served to strangers.Besides that, his duties in delivering orders to the saw mill certainly took him outside of the office and that also could be said to have had some connection with the hazardous features of his employer's business.

The crucial point therefore is whether his attending to that broken wire at the moment he was injured had any connection with the hazardous features of his employment and which may be said to have brought him...