Robbins v. Caraway-Rhodes Veterinary Hospital, CARAWAY-RHODES
Citation | 299 So.2d 446 |
Decision Date | 01 July 1974 |
Docket Number | CARAWAY-RHODES,No. 12337,12337 |
Parties | Joe Walter ROBBINS, Plaintiff-Appellant, v.VETERINARY HOSPITAL et al., Defendants-Appellants. |
Court | Court of Appeal of Louisiana (US) |
Hal V. Lyons, Shreveport, for defendants-appellants.
Burnett, Harrison, Sutton & Walker by Glenn E. Walker, Shreveport, for plaintiff-appellant.
Before AYRES, BOLIN and PRICE, JJ.
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 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:
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:
In a footnote, Justice McCaleb, author of the opinion, stated:
(Emphasis supplied.)
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:
(Emphasis supplied.)
The rule of law with which we are here concerned was recognized by the late Judge Westerfield of the Orleans Court of Appeal, Foret v. Paul Zibilich Co., 137 So. 366, 367 (1931), wherein he stated:
(Emphasis supplied.)
The jurisprudence appertaining to the subject matter herein involved was reviewed in a per curiam by the Orleans Court of Appeal in refusing an application for a rehearing in Atkins v. Holsum Cafeteria, Inc., 160 So. 655 (La.App., Orl., 1935). In resolving an identical issue as the one now before this court, the court made the following observations:
'Council (sic) For plaintiff, in application for rehearing, Vigorously assert that our interpretation of paragraph 3 of section 1 of Act No. 20 of 1914 is unsound, and that it was the purpose of the framers of that paragraph to permit a claim for...
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