Robbins v. Caraway-Rhodes Veterinary Hospital, CARAWAY-RHODES

CourtCourt of Appeal of Louisiana (US)
Writing for the CourtAYRES; In a footnote, Justice McCaleb; BOLIN; BOLIN
Citation299 So.2d 446
PartiesJoe Walter ROBBINS, Plaintiff-Appellant, v.VETERINARY HOSPITAL et al., Defendants-Appellants.
Docket NumberCARAWAY-RHODES,No. 12337,12337
Decision Date01 July 1974

Page 446

299 So.2d 446
Joe Walter ROBBINS, Plaintiff-Appellant,
No. 12337.
Court of Appeal of Louisiana, Second Circuit.
July 1, 1974.
Rehearing Denied en Banc. Sept. 4, 1974.
Writ Granted Nov. 8, 1974.

Page 447

Hal V. Lyons, Shreveport, for defendants-appellants.

Burnett, Harrison, Sutton & Walker by Glenn E. Walker, Shreveport, for plaintiff-appellant.


AYRES, Judge.

This is an action for workmen's compensation. Also sought are penalties and attorney's fees on account of defendants' alleged arbitrary refusal to pay compensation. The defendants are Caraway-Rhodes Veterinary Hospital, a partnership, and its partners, Drs. Hugh L. Caraway and J. C. W. Rhodes, veterinarians, against all of whom recovery is sought in solido.

Plaintiff claims that in the course of defendants' business of operating a veterinary hospital and within the scope of his employment he sustained an accidental injury while lifting a dog.

The defense to plaintiff's claim is that defendants' business is not hazardous within the intent and purpose of the workmen's compensation statute, LSA-R.S. 23:1021 et seq., and that, consequently, whatever injury and disability plaintiff sustained were not included in nor covered by the statute.

The court, after trial, found plaintiff's occupation with the defendants was that of an issistant to the veterinarians; that the nature of the work performed was hazardous inasmuch as the employee was subjected to the possibility of being bitten, scratched, and clawed by the animals with which he worked, as well as subjected to the possibility of contracting rabies. Plaintiff was therefore awarded compensation for five weeks, the period of his disability, and medical and hospital expenses in the sum of $519.20. Plaintiff's demands for penalties and attorney's fees were disallowed. From that judgment, defendants appealed.

Plaintiff's own classification of his employment was that of a helper in the animal hospital, and the nature of the services generally performed was that of cleaning the premises.

The provisions of the compensation act apply to persons performing services arising out of and incidental to their employment in the course of the employer's trade,

Page 448

business, or occupation in designated hazardous trades, businesses, and occupations. LSA-R.S. 23:1035. This section of the statute (paragraph 3 of Section 1 of Act 20 of 1914) concludes:

'If there be or arise any hazardous trade, business or occupation or work other than those hereinabove enumerated, it shall come under the provisions of this Chapter. The question of whether or not a trade, business, or occupation not named herein is hazardous may be determined by agreement between the employer and employee or by submission at the instance of either to the court having jurisdiction over the employer in a civil case. The decision of the court shall not be retroactive in its effect.'

The question of whether defendants' business, which is concededly not one of those listed in the statute, is hazardous has not been determined by agreement of the parties nor by a court having jurisdiction over the employer in a civil case. Such a determination, either by the court or by an agreement of the parties, is not retroactive in its effect. LSA-R.S. 23:1035, 23:1036. Plaintiff contends, however, that, under the language contained in the first sentence of the above quoted provision of the statute, the court's determination of the character of defendants' business as hazardous may be made contemporaneously with and in the same action in which he seeks to recover compensation.

It appears appropriate to note that notwithstanding defendants' business is not one of those hazardous occupations listed in the statute, it is neither claimed nor established that such business or any features thereof are hazardous by virtue of the use of equipment or appliances of any nature or kind.

In Fontenot v. J. Weingarten, Inc., 259 La. 217, 249 So.2d 886, 888 (1971), the court, in emphasizing the aforesaid quoted provision of the workmen's compensation statute, stated that compensation benefits could not be awarded plaintiff therein on a finding that a 'supermarket' chain-store operation is hazardous In fact inasmuch as the statute specifically prohibits such retroactive application.

In Fields v. General Casualty Co. of America, 216 La. 940, 45 So.2d 85 (1950), plaintiff was employed as a laborer in a retail feed-and-seed business. His duties were to keep the store clean and to load sacks of feed in cars or trucks of customers of the store. He claimed he suffered a hernia when he picked up a sack of feed to load it on a half-ton truck. An unsuccessful operation was performed and, as a consequence, he was totally and permanently disabled to do work of a reasonable character. The Court of Appeal, First Circuit, when the case was before it, expressed the opinion that the accident was not compensable because his employer was not engaged in a hazardous occupation. 36 So.2d 843 (1948).

The Supreme Court granted certiorari, and in the course of its opinion observed:

'After a full consideration of the case in this court, we are of the opinion that the judgment of the Court of Appeal is correct. A retail seed and feed store is admittedly not a business designated as hazardous under paragraph 2 of Sections 1 of the Employer's Liability Act (LSA-R.S. 23:1035) wherein various trades and occupations, considered to be dangerous, are specifically enumerated. Accordingly, there can be no liability for compensation unless plaintiff is able to show that there are certain hazardous features of the business, with which he has been brought in contract, or that the business has been previously declared to be hazardous, either by agreement or judicially, under paragraph 3 of Section 1 or that, if not hazardous, the parties have contracted in writing to be governed by the act as provided in paragraph 4 of Section 1.'

45 So.2d 87.

Page 449

In a footnote, Justice McCaleb, author of the opinion, stated:

'It is well settled that it is the nature of the employer's business and not the particular work done by the employee which is the determinative factor in suits for compensation. Paragraph 2 of Section 1 of Act No. 20 of 1914; Shipp v. Bordelon, 152 La. 795, 94 So. 399; Kern v. Southport Mill, 174 La. 432, 141 So. 19 and Hogan v. T. J. Moss Tie Co., 210 La. 362, 27 So.2d 131.' (Emphasis supplied.)

45 So.2d 87.

See, also:

Stephens v. Catalano, 7 So.2d 380 (La.App., Orl., 1942).

In the Stephens case (7 So.2d 381), the court recognized the legal principles with which we are presently concerned. In the court's opinion, we find this pertinent observation:

'There can be no doubt that the only occupations protected or made applicable by the compensation laws of this state are:

'(1) Those businesses specially designated in the act.

'(2) Those persons who, by agreement, have elected to come under the terms of the act; and,

'(3) Those businesses determined by the courts, prior to the occurrence of the accident, to be of a hazardous nature.

'In a per curaim opinion rendered in the case of Atkins v. Holsum Cafeteria, Inc., La.App., 160 So. 655--and in which many cases were reviewed--this entire subject was fully discussed by this court.' (Emphasis supplied.)

The following cases were cited as supporting the aforesaid holding: (Claiborne v. Smith et al., 2 So.2d 714 (La.Appp., Orl., 1941); Rester v. Community Stores, Inc., 169 So. 183 (La.App., 1st Cir., 1936); Atkins v. Holsum Cafeteria, Inc., 159 So. 758 (La.App., Orl., 1935); Stockstill v. Sears-Roebuck & Company, 151 So. 822 (La.App., 2d Cir., 1934); Smith v. Marine Oil Company, 10 La.App. 674, 121 So. 782 (1929).

In Stockstill v. Sears-Roebuck & Company, supra, the court emphasized that:

'The business of a merchant is not named by the act as a hazardous occupation, and we know, as a matter of common knowledge, that such a business is not per se hazardous, but such a business may have incidental departments or accessory lines that could and would be classed as hazardous; and, After all, it is the character of business of the employer, with respect to it being hazardous or not, and not the nature of the particular duty of the employee, which determines the right or lack of right of the employee to compensation when injured in the course of the employment. White v. Equitable Real Estate Co., 18 La.App. 714, 139 So. 45; Dewey v. Lutcher-Moore Lbr. Co., 151 La. 672, 92 So. 273; Shipp v. Bordelon, 152 La. 795, 94 So....

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2 cases
  • Robbins v. Caraway-Rhodes Veterinary Hospital, CARAWAY-RHODES
    • United States
    • Supreme Court of Louisiana
    • June 23, 1975 $35.75 per week) and medical expenses ($519.20) resulting from the work-injury. The court of appeal reversed and dismissed the suit. 299 So.2d 446 (La.App.2d Cir. 1974). It found no compensation due, because the compensation statute does not classify the plaintiff's particular employment......
  • Robbins v. Caraway-Rhodes Veterinary Hospital, CARAWAY-RHODES
    • United States
    • Supreme Court of Louisiana
    • November 8, 1974
    ...8, 1974. In re: Joe Walter Robbins, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo, 299 So.2d 446. It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for pla......

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