Rogers v. Aetna Cas. & Sur. Co.

• Decision Date: 24 March 1965
• Docket Number: No. 1380,1380
• Parties: Johnny H. ROGERS, Plaintiff and Appellee, v. The AETNA CASUALTY AND SURETY COMPANY et al., Defendants and Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 231

173 So.2d 231

Johnny H. ROGERS, Plaintiff and Appellee, v. The AETNA CASUALTY AND SURETY COMPANY et al., Defendants and Appellants.

No. 1380.

Court of Appeal of Louisiana, Third Circuit.

March 24, 1965.

Rehearing Denied April 14, 1965.

Writ Refused May 3, 1965.

Gold, Hall & Skye, by Leo Gold, Alexandria, for defendant-appellant.

Bernard Kramer, Alexandria, for plaintiff-appellee.

Before CULPEPPER, TATE and HOOD, JJ.

HOOD, Judge.

Plaintiff, Johnny Rogers, as tutor of the two surviving minor children of Mrs. Kay Jones, claims workmen's compensation benefits alleged to be due said children because of the death of their mother. Mrs. Jones was an employee of Charles D. Ward at the time of her death. The suit was instituted against Ward and his compensation insurer.

After trial on the merits, judgment was rendered by the trial court, awarding plaintiff compensation at the rate of $18.70 per week for 400 weeks, together with penalties and $1,500.00 as attorney's fees. Defendants have appealed, and plaintiff has answered the appeal, praying that the amount awarded as attorney's fees be increased.

The principal question presented on this appeal is whether Mrs. Jones' death resulted from an accident 'arising out of and in the course of' her employment.

The evidence shows that on October 13, 1963, Mrs. Jones was working for defendant, Ward, as a taxicab dispatcher in the City of Alexandria. At about 7:25 a.m. on that date, she was shot to death by a cab driver named James Frank Moody. At that time, Moody was renting a cab from defendant Ward, and he was operating it from the cab stand, or dispatcher's office, where Mrs. Jones worked.

Mrs. Jones had accepted Moody's invitation to meet him at a bar in Alexandria at about 4:00 p.m. on October 12, and she remained with Moody from that time until about 2:30 a.m. on October 13. During that time, both the decedent and Moody consumed several drinks of beer or alcoholic beverages. At about 2:30 that morning they became involved in a minor automobile accident outside the city, and shortly thereafter Mrs. Jones left Moody and rode back to Alexandria with another cab driver named Marvin Guillory. Moody, apparently being displeased over the fact that Mrs. Jones had left, began to search for her in Alexandria. He located Guillory and Mrs. Jones about 4:30 that morning, and an argument or disturbance then ensued which was terminated when the City Police intervened and compelled Moody to leave. There is no question but that Moody was angry with Mrs. Jones at that time.

Mrs. Jones was scheduled to report to work at 7:00 a.m. on that day, October 13. The dispatcher's office where she worked is located in the rear portion of a building, the front portion of which is occupied by Lavergne's Telephone Answering Service. About 6:35 that morning, Mrs. Jones entered the office of the telephone answering service and visited with the operator of that service who was on duty at that time. At about 6:55, Mrs. Jones left that office and went into the rear portion of the building to the taxicab dispatcher's office where she customarily worked. The operator of the telephone answering service then turned down the telephones in that office so that thereafter Mrs. Jones would receive all incoming calls of the cab company. And, as soon as Mrs. Jones reached her office she disconnected a microphone which theretofore had been used by the answering service to transmit calls for taxicabs.

Moody entered the front door of the building where these offices were located at 7:05 that morning. After visiting with the operator of the telephone answering service in the front of the building for two or three minutes, he then walked back to the rear part of the building into the dispatcher's office where Mrs. Jones was working Moody and Mrs. Jones remained in that office until 7:25 a.m., at which time he shot Mrs. Jones six times, killing her almost instantly. Moody walked out of the dispatcher's office shortly after the shooting and informed the operator of the telephone answering service that he had shot Mrs. Jones.

Immediately after the shooting, the decedent's body was found on the floor of the dispatcher's office very near and almost in front of her desk. The evidence clearly establishes that she was in her office and at her desk at the time of the shooting. Although defendants contend otherwise, we think the evidence establishes that Mrs. Jones had been performing the duties of her office from the time she was scheduled to be at work at 7:00 a.m. until the time of the shooting, and that she was engaged about her employer's business at the time she was killed.

Under the provisions of LSA-R.S. 23:1031, the employer is obliged to pay compensation benefits if an employee receives personal injury by accident 'arising out of and in the course of his employment.' The defendants contend that the injury which resulted in the death of Mrs. Jones did not occur 'in the course of' her employment, and that the shooting was not an accident 'arising out of' that employment.

Since the injury was sustained at the place of the decedent's employment, during her regular working hours and while she was engaged in her employer's business, we think it clearly occurred 'in the course of' her employment. The question remains, however, as to whether the shooting constituted an accident 'arising out of' the employment.

The two leading cases which set out rules or tests to be applied in determining whether an accident is one 'arising out of' the employment are Myers v. Louisiana Railway & Navigation Company, 140 La. 937, 74 So. 256, and Kern v. Southport Mill, Ltd., 174 La. 432, 141 So. 19.

In the Myers case, decided in 1917, our Supreme Court applied a rule which has been referred to at time as the 'increased risk doctrine.' According to that decision, the test to determine whether injuries to an employee arose out of the employment is not whether the cause of the injury was something peculiar to that line of employment, but Whether the nature of the employment was such that the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment. In so holding, the court said:

'It ought to be sufficient that the nature of the employment was such that the risk from which the injury resulted was greater for the workman than for a person not engaged in the employment.'

Defendants point out, correctly we think, that the rule set out and applied in the Myers case is the one which is followed by courts in a majority of our states. See Larson, The Law of Workmen's Compensation, Sections 6.10, 7.20 and 11.21. And we note, as pointed out by the defendants, that the Myers case has been cited and followed in a number of later decisions in this State.

In Kern v. Southport Mill, Ltd., supra, decided in 1932, the Supreme Court determined that a new, different and much more liberal test should be applied in determining whether an accident is one 'arising out of' the employment, the rule set out in that case being referred to sometimes as the 'time, place and circumstance doctrine.' In that case the court stated:

'In determining, therefore, whether an accident 'arose out of' the employment, it is necessary to consider only this: (1) Was the employee then engaged about his employer's business and not merely pursuing his own business or pleasure; and (2) did the necessities of that employer's business reasonably require that the employee be at the place of the accident at the time the accident occurred?'

The rule announced and applied in the Kern case was quoted and followed by our Supreme Court in the later case of Harvey v. Caddo De Soto Cotton Oil Company, Inc., 199 La. 720, 6 So.2d 747. In the Harvey case, the court, in commenting on the earlier decision, said:

'It will be seen from the foregoing that this Court has enunciated a view with respect to the meaning of the words 'arising our of' as used in our compensation statute which is considerably broader than the interpretation placed upon similar language by other State courts.

'A careful reconsideration of the Kern case impresses us with the soundness of the opinion, for, when we delve into the underlying theory upon which workmen's compensation laws have been enacted, we believe that it is in keeping with the spirit of such statutes to resolve that any accident which befalls an employee, in consequence of a force to which he is subjected because he is required to be at a particular place at the time the force exerts itself, is one arising out of and having causal connection with the employment. With due deference to the jurisprudence to the contrary, it seems to us that the laborious efforts of some of the courts in weighing the evidence in order to discern whether the hazard to the employee has been increased by reason of the employment are tenuous and involve considerable guesswork and conjecture on the part of the judges.

'We prefer to place our decision on what we believe to be a sound footing, that is--that the deceased, by reason of his employment, was required to be in a building which fell upon him; that his death was due to the fact that his employment necessitated that he be at the place where the accident occurred and that, therefore, giving the compensation act the liberal interpretation to which it is entitled, the accident arose out of, and was incident to the employment.'

The Kern case also has been cited and followed on numerous occasions since that decision was rendered.

Plaintiff, asserting that the Kern case is applicable, contends that the accident involved here was one 'arising out of' the employment because it occurred at the Time and the Place of the employment, and while the decedent was engaged about her employer's business. He argues, therefore, that all of the elements necessary to meet the test set out in the Kern case are present.

Defendants, on the other hand, contend that the rule set...