St. Alexandre v. Texas Co.

• Decision Date: 02 December 1946
• Docket Number: 18519.
• Citation: St. Alexandre v. Texas Co., 28 So. 2d 385 (La. App. 1946)
• Court: Court of Appeal of Louisiana
• Parties: ST. ALEXANDRE v. TEXAS CO. et al.

28 So.2d 385

ST. ALEXANDRE v. TEXAS CO. et al.

No. 18519.

Court of Appeal of Louisiana, Orleans.

December 2, 1946

Rehearing Denied Dec. 23, 1946.

Writ of Certiorari Denied Feb. 10, 1947.

Edward Rightor and Benjamir Washastrom, both of New Orleans, for plaintiff-appellee.

Rosen Kammer, Wolff, Hopkins & Burke, of New Orleans, for defendnat-appellant.

JANVIER Judge.

Plaintiff, a shipping clerk at the bulk plant of The Texas Company in New Orleans, sustained a serious injury to his right hand as he was endeavering to remove the cap from a bottle of a non-intoxicating beverage or 'soft drink' known as R C Cola. Alleging that as a result of the injury he had been totally and permanently disabled and that, under the circumstances surrounding the accident, he was entitled to be paid compensation in accordance with the provisions of the Workmen's Compensation Act of Louisiana (Act No. 20 of 1914, as amended), he brought this suit and prayed for judgment in compensation at $20 per week for 400 weeks against his employer, The Texas Company, and its insurance carrier, Maryland Casualty Company. He also prayed for $500 for medical, surgical and hospital services and medicines. In the alternative, he alleged that, in the event it be found that under the facts of the case he was not entitled to compensation, he should have judgment ex delicto against The Texas Company and the Maryland Casualty Company, and also against American Beverage Company, a partnership, and the various members composing that partnership and against Liberty Mutual Insurance Company, the insurers of the partnership, in the sum of $20,865.05.

The Board of Administrators of the Charity Hospital of Louisiana at New Orleans intervened and alleged that the plaintiff had been treated at the Charity Hospital in New Orleans, and had been furnished 'certain drugs, medicines and X-rays' at a cost $166, and the intervenor prayed that in the event plaintiff should recover judgment, the said intervenor, in turn, have judgment to be paid out of such amount as plaintiff might recover together with attorney's fees and costs.

After various exceptions had been filed and amendments required by these exceptions had been made, the defendants answered. The American Beverage Company and the members composing that partnership, and Liberty Mutual Insurance Company denied all liability on their on their part, and The Texas Company did its insurers, Maryland Casualty Company, denied all liability either in tort or in workmen's compensation, asserting especially that the accident in which the plaintiff had been injured did not occur in the course of his employment, and did not arise out of it.

In the District Court there was judgment in compensation in favor of plaintiff and against The Texas Company and Maryland Casualty Company for $20 per week for 400 weeks, subject to credit for payments already made and for $500 for medical, surgical and hospital services and medicines. There was judgment in favor of American Beverage Company and the individuals composing that partnership, and in fovor also of Liberty Mutual Insurance Company. There was also judgment in favor of the intervenor, Board of Administrators of the Charity Hospital of Louisiana at New Orleans for $166, and 10% attorneys fees and interest 'said amount to be paid by plaintiff herein.' From this judgment The Texas Company and Maryland Casualty Company have appealed and there has been no answer to the appeal of those corporations, and no independent appeal by any of the other parties.

There is no dispute over any of the facts except that The Texas Company and Maryland Casualty Company, hereinafter referred to as defendants, in addition to contending that those facts show that the accident did not occur in the course of the employment and did not arise out it, also contend that plaintiff is not permanently or totally disabled and they especially contend that if he is so disabled, his condition is not the result of the accident.

The facts surrounding the accident are as follows: The plaintiff, for many years prior to the accident, had been employed by The Texas Company as a shipping clerk in its bulk plant on Claiborne Avenue in New Orleans. Sometime before the accident, the employees had established the custom whenever one of them was sick, or whenever there was a death or an operation, of constributing small amounts to be used in sending flowers, gifts, etc. One of the employees conceived the idea that, instead of calling on the others on such occasions, a revolving fund might be created by the introduction into the plant of a candy machine from which candy could be purchased by the employees by placing the necessary coins in the slots of the vending machine. The profits accummulated were used for the purpose mentioned. The company had placed in its office a water cooler consisting of a box with coils through which the water passed and in this box, on top of the coils, ice was placed to cool the water. This water was furnished for the employees, and in addition to the water furnished by it, The Texas Company permitted its employees to leave the plant and go to a cold drink stand a short distance away for soft drinks. When these drinks became scarce, the employee who had originated the idea of the candy vending machine, arranged with the American Beverage Company to supply R C Colas and these drinks were bought with the profits of the candy machine. The bottles containing R C Cola were placed in a small box near the water cooler, which box was furnished by The Texas Company and the bottles were coolded with ice also furnished by that company. When an employee desired to partake of the contents of one of the bottles, he would place the necessary coin in a box nearby and help himself and the profits were used to renew the supply of soft drinks.

Late in the afternoon on the day on which the accident occurred plaintiff went from the place at which he worked into the main office of the company for the purpose of obtaining a record so that he might continue his work for the day. There he noticed some of the other employees drinking soft drinks taken from the box above described, and one of them invited him to join them in having a drink. He took a bottle out of the cooler and in attempting to open it, cut his hand rather badly.

Passing, for the moment, from the question of the extent of the disability and whether that disability resulted from the accident described or from the prior condition of the plaintiff we immediately devote our attention to the problem of determining whether or not the accident in question can be said, as a matter of law, to have occurred in the course of employment and to have arisen out of it. It is conceded, of course, that it is well settled that when an employee temporarily leaves his work to get a drink or to go to the toilet, he is, nevertheless, considered as still being 'at work' to such an extent that if, during that interval, he is injured in an accident, it is proper to say that the accident occurred 'in the course of the employment'.

But it is not enough that the accident occur in the course of the employment; the statute requires also that it must arise out of it.

Counsel for defendants concede that it is well established under the jurisprudence of this state and elsewhere that if an employee is required by the business of his employer to be in the particular place in which he is at the time of the occurrence of an accident, it is proper to say that that accident, whatever may have been its cause, arose out of the employment, but they argue that if the employee was in the place in which the accident occurred not because he was called there by the necessities of the master's business but solely to serve a purpose of his own or for his own pleasure, an accident which then occurs does not arise out of his employment. There is unquestionably in each of our three most pertinent cases at least on expression which encourages counsel and lends color to their suggestion that we should see a distinction between such cases as those in which an employee either was at work at the time of the accident or was in the exact place in which he had been called by his work, and a case such as this in which the employee had left the place in which his work required him to be and, for purposes of his own, had gone to some other place.

For instance, in Nesmith v. Reich Bros. et al., 203 La. 928, 14 So.2d 767, 772, the Supreme Court held that there could be recovery in compensation because the employee was at the place at which the accident occurred '* * * for no other purpose than to serve his employer, * * *'. Again, in Kern v. Southport Mill, Ltd., 174 La. 432, 141 So. 19, 21, the court said: 'It was his employer's business which called him to the place and time of the accident and not his own pleasure or business * * *'.

Similarly, in Harvey v. Caddo De Soto Cotton Oil Co., 199 La. 719, 720, 6 So.2d 747, 750, we find the following language: '* * * 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. * * *'

Counsel for defendants in their brief say: 'It cannot be said that St. Alexandre's duty to The Texas Company required him to go to the water cooler or to drink or attempt to drink the R C Cola and it cannot be said that he was there and attempting to drink the R C Cola for no other purpose than to serve The Texas Company.'

We are not so sure of this. It is certain that a master must realize that an employee...