Robbins v. Caraway-Rhodes Veterinary Hospital

• Decision Date: 23 June 1975
• Docket Number: CARAWAY-RHODES,No. 55378,55378
• Citation: 315 So.2d 688
• Parties: Joe Walter ROBBINS, Plaintiff-Appellee-Relator, vVETERINARY HOSPITAL et al., Defendants-Appellants-Respondents.
• Court: Louisiana Supreme Court

Page 688

315 So.2d 688

Joe Walter ROBBINS, Plaintiff-Appellee-Relator, v CARAWAY-RHODES VETERINARY HOSPITAL et al Defendants-Appellants-Respondents.

No. 55378.

Supreme Court of Louisiana.

June 23, 1975.

Rehearing Denied July 25, 1975.

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

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

TATE, Justice.

The plaintiff Robbins was injured while working for a veterinary hospital. The trial court awarded compensation for the disability (five weeks at $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 as hazardous (although in fact it is).

We granted certiorari, 302 So.2d 305 (La.1974), because of our doubt, reinforced by the strong dissent in the court of appeal, that the majority's interpretation of the compensation statute was realistic and sound in denying compensation benefits to an employee injured while working in an occupation which In fact is hazardous.

(1)

The plaintiff was employed as an assistant to the veterinarians operating a veterinary hospital. We find supported by the record the trial court's finding that his employment was hazardous beyond the ordinary risks of employment because of the abnormal or undue risk of being bitten, scratched, or clawed by the animals with which he regularly worked, as well as the risk of contracting rabies in the course of such work.

The plaintiff was injured while lifting a heavy dog in such work, i.e., in performing the non-hazardous portion of his duties. Nevertheless, if employment in the occupation is covered by our workmen's compensation act as hazardous, an employee sustaining a disabling injury while performing a non-hazardous feature of his employer's business is entitled to compensation. Fontenot v. J. Weingarten, Inc., 259 La. 217, 249 So.2d 886 (1971); Luce v. New Hotel Monteleone, Inc., 234 La. 1075, 102 So.2d 461 (1958); Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303 (1924); Malone, Louisiana Workmen's Compensation, Section 101 (1951).

(2)

In holding the plaintiff's employment non-hazardous and thus not covered by the compensation act, the majority of the court of appeal in an excellently reasoned decision principally relied upon Fields v. General Casualty Co. of America, 216 La. 940, 45 So.2d 85 (1950), some dicta in our Fontenot decision cited above, and upon numerous court of appeal decisions, most of which were decided during the 1930's. These decisions are based upon an interpretation of La.R.S. 23:1035 (1950), a re-enactment of the original of such provision found in Act 20 of 1914, our original compensation act.

Section 1035, the cited enactment, is set forth in full as Appendix 'A' to this opinion. The defendants essentially contend that the second paragraph's enumeration of hazardous businesses and activities is exclusive for purposes of statutory compensation coverage. The plaintiff denies that the hazardous nature of employment, for workmen's compensation purposes, is exclusively determined by reference to this paragraph of the section. He contends that, by the third paragraph, the section authorizes the courts to determine that trades, businesses, occupations or work additional to those enumerated are hazardous and thus covered by our workmen's compensation law.

(3)

By Section 1035, employees of private businesses which are hazardous ¹ in nature are mandatorily covered by the compensation act. ²

The second paragraph of the section first provides that compensation coverage is afforded to certain 'hazardous trades, businesses and occupations' specifically described by a lengthy enumeration. Then, the paragraph attempts additionally to classify other businesses in terms of hazardous characteristics (electricity, construction work, explosives, boilers, etc.), without reference to the specific kind of business involved. See also Malone, Section 92.

The occupation in which the present plaintiff was injured is neither one of those businesses specifically described nor is it affected with any of the hazardous characteristics specifically set forth by this second paragraph. Based on this circumstance and the jurisprudence it cited as interpreting the statute to such effect, the majority of the court of appeal held that, no matter how hazardous in fact the plaintiff's employment, it is not covered by the Louisiana workmen's compensation act since not specifically described or classified by the statute as hazardous. This conclusion is in general accord with the prior jurisprudence.

(4)

The plaintiff, however, relies upon the third and concluding paragraph of 1035. He relies on the first sentence of this paragraph, which provides: '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.' ³ (Italics ours.)

We agree with the trial judge and the dissenting intermediate judge that the quoted legislative provision unambiguously provides for mandatory ('shall') coverage of 'any hazardous trade, business or occupation or work Other than those. . . . enumerated' by the preceding or second paragraph. This unambiguous intent is even more clearly demonstrated by reference to Act 20 of 1914, which in enacting the original compensation act set forth the specified hazardous businesses in Section 2 (now the first and second paragraphs of 1035), and in an entirely separate and independent classification set forth as Section 3 (the present third paragraph verbatim) the provision that additionally subject to the compensation act were other hazardous employments existing or to arise in the future.

According to the concurring opinion in this court in Fontenot v. J. Weingarten, Inc., cited above, at 249 So.2d 891--92, the meaning of the provision is that: '* * * (T)he court must declare in any case, when warranted under the facts, that a trade or occupation is hazardous and is included under R.S. 23:1035, and that a holding is applicable to the case at issue and all others of a similar nature. The Legislature has of a similar nature. The Legislature has clearly mandated the courts to classify, when necessary, new occupations as hazardous.'

This concurring opinion also concluded, 249 So.2d 892--93:

'R.S. 23:1035 was adopted in 1914 and has not been changed since that time. The Legislature intended that the courts of this state supply the necessary interpretation to make the Workmen's Compensation Act applicable to present times. Sixty years after the passage of that particular section, we are still applying definitions which were used by the Legislature to correct ills then apparent. The Legislature was trying to provide some financial assistance to the employees who it believed in those times were most exposed to harm because of the nature of the Business in which they were employed. While operation of motor vehicles for hire is not a named hazardous occupation, certainly the Legislature of 1914, if it were possible, and our present Legislature would join us in stating that it is an occupation far more hazardous than chimney-sweeping, which is a named hazardous occupation. * * *

'As previously noted, hazardous features of employment, hazardous work, are not defined by the statute. Rather than be strait-jacketed and misled by resorting to an inapplicable section of the statute for definition of hazardous activities, we should be realistic and include hazard in fact. . . . We cannot wrap ourselves in the cocoon of R.S. 23:1035 and declare that we are bound to define hazardous duties under the terminology there found (in the second paragraph). * * *'

To reiterate, the plaintiff relies upon the first sentence of 1035's third paragraph. ⁴ Reading the sentence as a whole, we note that the 1914 legislature mandated that workmen's compensation 'shall' apply to 'any hazardous trade, business or occupation or work', whether this classification of business then existed ('If there be') or whether it came into existence in the future ('or (if there) arise').

We conclude, therefore, that the concurring opinion in Fontenot correctly ascribed the legislative intent of the sentence: The legislature mandated that compensation coverage not only be mandatory for employments specified as hazardous by the 1914 enumeration, but also for those others which are in fact hazardous, including not only those employments then (in 1914) hazardous but also those to arise in the future which in fact are hazardous.

(5)

We are re-enforced in this conclusion by our judicial interpretations broadly interpreting the 'hazardous' characteristics specifically enumerated by the act. Malone, Sections 91--104. Over the past six decades, with legislative approbation, compensation coverage has thus been broadly expanded, with modern-day characterization as hazardous being so tenuous as not to be related to any actual undue risk of injury at work. Malone, Coverage--Hazardous Business, 33 La.L.Rev. 284--88 (1973).

Thus, for instance, because the 1914 legislation classified as hazardous the operation of an apparatus 'charged with electrical current', we held (consistently with past jurisprudence) that an employment was covered by the compensation act because the employee was regularly operating an electric cash register. Fontenot v. J. Weingarten, Inc., 259 La. 217, 249 So.2d 886 (1971). We held this result to be legislatively required, even though the inherent danger of injury while operating the device was slight.

Consistently with these interpretations, the legislative purposes of affording compensation protection to employees subject to undue risk of work-injury will, it seems to us, be served rather than violated by affording compensation coverage...