Rosenquist v. New Amsterdam Cas. Co.

• Decision Date: 31 January 1955
• Docket Number: No. 20508,20508
• Citation: Rosenquist v. New Amsterdam Cas. Co., 78 So.2d 225 (La. App. 1955)
• Parties: Mrs. Shirley G. ROSENQUIST v. NEW AMSTERDAM CASUALTY COMPANY.
• Court: Court of Appeal of Louisiana

Page 225

78 So.2d 225

Mrs. Shirley G. ROSENQUIST v.NEW AMSTERDAM CASUALTY COMPANY.

No. 20508.

Court of Appeal of Louisiana, Orleans.

Jan. 31, 1955.

Rehearing Denied March 14, 1955.

James G. Schillin, New Orleans, for plaintiff and appellee.

Henriques & Mayo, New Orleans, for defendant and appellant.

McBRIDE, Judge.

Mrs. Shirley G. Rosenquist, claiming to have been rendered totally and permanently disabled by an accident which occurred on August 4, 1951, brings this suit under the Workmen's Compensation Statute for 400 weeks' compensation at the rate of $30 per week, subject to a credit for compensation already paid, and $500 for medical expenses incurred or to be incurred.Plaintiff's claim for $1,200 for her attorney's fee has apparently been abandoned.At the time of the alleged accident plaintiff was the employee of Maison Blanche Company, and the suit is directed at the compensation insurance carrier for the said employer.

Plaintiff's occupation was combination saleslady and beauty operator on board the S.S. Del Mar(owned and operated by the Mississippi Shipping Company), which makes regular voyages for the carriage of freight and passengers between New Orleans and South American ports.Maison Blanche Company held a concession to sell its merchandise and operate a beauty parlor aboard the vessel, and plaintiff was employed by Maison Blanche Company to take charge of operating the concession.

Approximately at 3 o'clock p.m. on the date in question, Mrs. Rosenquist, garbed in a bathing suit and sandals, was on the sun deck of the vessel reclining on a pad.The Del Mar was then en route from Rio de Janeiro approximately ten days out of New Orleans.Plaintiff testified that the ship was rolling and there may have been a salt spray on deck, the surface of which was of slick steel possessing no treads of any kind.Her statement is that as she endeavored to rise from her recumbent position, the roll of the ship caused her to slip and fall.The injuries received in the fall, she claims, have rendered her totally and permanently disabled.

Mrs. Rosenquist earned a base wage of $35 per week, plus commissions on sales of merchandise averaging about $150 per month.Also, her transportation and living expenses on board of the vessel, as well as hotel and other expenses when in port in South America, were paid by Maison Blanche Company.Mrs. Rosenquist began working on the ship during the year 1949; she had been specially trained for the job at the store of Maison Blanche in New Orleans.Her duties were to sell merchandise and operate the beauty shop; she had no regular hours of work and was subject to call at any and all times whenever passengers desired to purchase merchandise, and her job was to accommodate them, even in the night time, after the shop had been closed.While in port in South America, plaintiff was also on duty as she sought orders from persons there for the goods sold by her employer.She was privileged to purchase from Maison Blanche Company at a discount rate her own clothing, which she wore both on board the ship and in South America in order show them off, the idea being to create a desire in others for such merchandise as her employer dealt in.

It was the understanding that while aboard the Del Mar, Mrs. Rosenquist was to have the same privileges as any passenger and could use all of the facilities on the vessel to the same extent as though she had been a fare-paying passenger.

The defendant raises several defenses; it is contended that plaintiff was not engaged in a hazardous employment; that she was not acting within the scope of her employment when the accident occurred; that the accident did not arise out of or in the course of the employment; that plaintiff suffered only a dislocated kneecap, which injury was treated by her own physician who discharged her as cured on January 2, 1952, whereupon she returned to her employment; that plaintiff was paid her wages in full through November 7, 1951, and is entitled to no further compensation.

Ultimately judgment was rendered in favor of plaintiff for workmen's compensation for a period not to exceed 400 weeks at a weekly rate of $30, subject to a credit of 78 weeks already paid.Plaintiff also was awarded $391 for medical expenses and the right was reserved to her to claim future medical expenses; the witness' fee of Dr. E. H. Maurer, who appeared as an expert for plaintiff, was fixed at $50.

Defendant appeals and plaintiff has answered the appeal praying that the allowance for medical expenses be increased to $1,000 so as to cover not only the expenses already incurred but those that might be incurred in the future; appellee also prays that Dr. Maurer's expert fee be increased to $100 and that an expert witness' fee in the same amount be allowed to Dr. Joel B. Gray.

Hence, we are confronted first with the proposition whether the business of retail store and beauty shop aboard a vessel plying the high seas and operating between two continents is such a hazardous business as to come within the operation of the Workmen's Compensation Law.LSA-R.S. 23:1035 provides that Chapter 10 of the Statutes, which composes the Workmen's Compensation Law of this State, shall apply to every person performing services arising out of and incidental to his employment in the course of certain of the employer's trades, businesses and occupations which are specifically designated.No mention is made in the designation of the business of retail store or beauty shop; however, the provision is made in LSA-R.S. 23:1035 that if there be or arise any hazardous trade, business or occupation or work other than those enumerated, it shall come under the provisions of the Act.

We agree with defendant's counsel that it has been held that a retail mercantile business is not hazardous per se, but in the cases in which that was the holding the business referred to was not a retail mercantile establishment conducted by the employer on board of an ocean-going steamship.We also agree that the department store operated by Maison Blanche Company on Canal Street in New Orleans might not be considered to be hazardous, but we cannot say the same thing for that part of the business which Maison Blanche operates and conducts as concessionaire on board the Del Mar; that portion of its business can be considered in no other light than hazardous.A business may consist of several department of which some are hazardous per se or made so by law, while others are clearly nonhazardous, and an employee whose duty requires him to perform services in both hazardous and nonhazardous departments and who is injured while performing those services may recover compensation.SeeCollins v. Spielman, 200 La. 586, 8 So.2d 608; Stephens, for Use and Benefit of Stephens v. Catalano, La.App., 7 So.2d 380;Staples v. Henderson Jersey Farms, Inc., La.App., 181 So. 48;Crews v. Levitan Smart Shops, Inc., La.App., 171 So. 608.

In Brownfield v. Southern Amusement Co., Inc., 196 La. 73, 198 So. 656, it was held that in applying the provisions of the Workmen's Compensation Statute to cases where employees are injured in a business not specifically mentioned as being hazardous, the inquiry must be whether the duties of the injured employee required him to perform services of a hazardous nature incidental to his employment and directly associated with the employer's business.

Surely, it cannot reasonably be said that Mrs. Rosenquist, in carrying out the duties of her occupation, did not assume much greater risks than a saleslady would be exposed to if employed by Maison Blanche Company in its department store in New Orleans.The plaintiff in undertaking her duties was exposed to all the perils of the sea, which, to say the least, are considerable and real; for instance, the record shows that on one occasion the Del Mar came into collision with another vessel, and at another time the ship ran aground.Those two specific perils, as well as numerous others, confronted the plaintiff each time her employment necessitated her making a voyage.

The settled jurisprudence is that an employer who operates motor-driven vehicles, even though his principal business be not hazardous, is to be considered as engaged in a hazardous business in workmen's compensation cases, and any employee whose duties bring him in contact with motor-driven vehicles is protected by the workmen's compensation law.This being so, we can think of no reason why a business conducted on an ocean-going vessel should not be held to be hazardous and why an employee engaged in conducting such business for the employer is to be denied the benefits of the compensation statute.To our minds, the hazards to be encountered by one called upon to work on board a ship propelled by steam are fully as great as those to which an employee is exposed in connection with the operation of motor vehicles.

Under the specific terms of LSA-R.S. 23:1035, the operation of vessels, boats, and other water craft constitutes a business which is hazardous per se, and under that provision had the retail sales establishment and the beauty shop been operated by the owner of the vessel instead of a concessionaire, there could be no denial that the claim of plaintiff would come squarely within the provisions of the Statute.Accordingly, we do not see how it can be reasoned that Mrs. Rosenquist, merely because here employer, Maison Blanche Company, and not the owner of the vessel, operated the business on shipboard cannot assert a claim for compensation.

Defendant insists that the plaintiff when the accident occurred was not performing services arising out of and incidental to her employment in the course of the business of Maison Blanche Company, the contention being that she was in a place where she had no right to be.

Under the conditions of the employment, plaintiff must be considered as having been engaged in the duties of her occupation throughout the voyage.Thus,...