Simmons v. Liberty Mut. Ins. Co.

• Decision Date: 27 April 1966
• Docket Number: No. 1676,1676
• Citation: Simmons v. Liberty Mut. Ins. Co., 185 So.2d 822 (La. App. 1966)
• Parties: Lois Carolyn SIMMONS, Plaintiff and Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant and Appellant.
• Court: Court of Appeal of Louisiana

Page 822

185 So.2d 822

Lois Carolyn SIMMONS, Plaintiff and Appellee, v.LIBERTY MUTUAL INSURANCE COMPANY, Defendant and Appellant.

No. 1676.

Court of Appeal of Louisiana, Third Circuit.

April 27, 1966.

Hall, Raggio & Farrar, by C. Barry Hillebrandt, Lake Charles, for defendant-appellant.

Henry Yelverton, Lake Charles, for plaintiff-appellee.

Before TATE, SAVOY and CULPEPPER, JJ.

CULPEPPER, Judge.

This is a workmen's compensation case.The district judge awarded weekly payments for approximately 28 months of disability.The defendant insurer appealed.

The sole issue on appeal is whether the accident arose out of and in the course of plaintiff's employment.

There is little, if any, dispute as to the facts.Plaintiff was a part-time salesclerk for the Muller Company Department Store in Lake Charles.On the date of the accident, June 20, 1963, she worked from 8:30 a.m. until 1:00 p.m.Then, this being the day on which employees received their weekly paychecks, she went to the office on the third floor to pick up her check.She was told that under company rules the checks would not be issued until after 3:00 p.m.She left the premises and went home.

About 4:30 p.m. she returned to the store.She first went to the third floor where she picked up her paycheck and cashed it at the office.The evidence shows that while plaintiff was at work that morning she had picked out a 'bra' and a 'piece of goods' and told the clerks to put her name on them and hold them until she returned that afternoon after receiving her paycheck.She says that after picking up her check she stopped on the third floor for the bra, and on the second floor for the piece of goods.She did not 'browse' or do any 'shopping' but simply picked up and paid for these two items, which had been laid aside for her, and then proceeded to leave the building.As she went out a rear door, she caught the heel of her shoe in the floor and fell down a cement ramp, receiving injuries to her back and ankle.

It is conceded that plaintiff was acting within the course of her employment when she returned to the store about 4:30 p.m. to pick up her paycheck.But, defendant contends that when Mrs. Simmons, after cashing her check on the third floor, decided to remain on the premises for the purely personal business of purchasing a 'bra' and a 'piece of goods', her employment terminated for the day and her status changed from that of employee to that of a customer.

As opposed to this argument, plaintiff contends (1) that the mere picking up and paying for these two articles on her way out of the building did not constitute a departure from the course of her employment and (2) that if turning aside for this purpose should be considered a deviation, she had returned to the course of her employment as she left the building.

LSA-R.S. 23:1031 provides in pertinent part that an employee shall receive benefits for personal injury 'by accident arising out of and in the course of his employment'.The general test to be applied, in determining whether the accident arose out of the employment, is set out by our Supreme Court in the leading and frequently cited case of Kern v. Southport Mill, 174 La. 432, 141 So. 19, as follows:

"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 situation involved here is one where the employee was injured after regular working hours and while still on, but leaving, the work premises.Malone, Louisiana Workmen's Compensation Law and Practice, Section 169, makes the following pertinent observations:

'The observation has been made in previous sections that an employee is acting in the course of his employment while he is actually engaged in his employer's work even before or after working hours.Furthermore, even if he has finished the day's work and is preparing to leave, or is in the act of leaving, he is entitled to a reasonable period while still on the premises which is regarded as within the course of the employment.The working day embraces these intervals just as it includes reasonable periods for rest, relaxation or the attendance of personal needs.This applies also to periods prior to the actual beginning of work under similar circumstances.

'Of course the employee may so prolong the period that he becomes a mere loiterer on the premises and is not entitled to compensation protection.No fast line can be drawn in such cases, and reference must be made to the purpose that prompted him to remain and the relationship between that purpose and the conditions surrounding his work.An employee, for example, whose only available means of transportation brought him to the place of work a half hour before the commencement of his duties might be protected during this interval, while an employee who came an hour early from purely personal choice might well be excluded.Similarly, an employee who was required to walk a considerable distance home after work that exposed him to the cold would be entitled to remain on the premises for a time in order to warm himself in preparation for...