Stephens, for Use and Benefit of Stephens v. Catalano

• Citation: 7 So.2d 380
• Decision Date: 13 April 1942
• Docket Number: 17753.
• Court: Court of Appeal of Louisiana — District of US
• Parties: STEPHENS, for Use and Benefit of STEPHENS, v. CATALANO.

7 So.2d 380

STEPHENS, for Use and Benefit of STEPHENS, v. CATALANO.

No. 17753.

Court of Appeal of Louisiana. Orleans.

April 13, 1942

Appeal from First City Court of New Orleans; W. Alex. Bahns Judge.

Martin E. Kranz, of New Orleans, for appellant.

Guy J. D'Antonio, of New Orleans, for appellee.

SIMON, Judge.

Plaintiff brings this suit under the Workmen's Compensation Act (No. 20 of 1914, as amended) for and on behalf of his minor son, Wilmington N. Stephens, to recover compensation for injuries received by his son in an accident that befell him while in defendant's employ.

Plaintiff alleges that defendant maintains and operates a meat market that Wilmington N. Stephens was employed as a delivery and general utility boy; that it was part of his duties to grind meat through the use of an electrically-driven meat grinder used and maintained by defendant in his place of business and that, consequently, the employment was hazardous. It is further alleged that, while young Stephens was engaged in grinding meat on July 28, 1941, his index, middle and ring fingers were cut off at the base of the left hand; that at the time of the injury Stephens' wages were $5 per week and that, therefore, compensation is due in the sum of $3.25 per week for a period of seventy (70) weeks, with interest on each installment from its due date until paid.

Under the rules of the First City Court, defendant filed, concurrently with his answer on the merits, an exception of no right or cause of action, which was overruled by the court below. In his answer defendant admitted the employment of Stephens as an errand boy and porter, averring that his duties consisted of delivering goods purchased by customers and "of cleaning and sweeping up his shop". Defendant also alleged that young Stephens was not employed to perform any hazardous duties and that he had been specifically instructed not to touch or operate any of the machinery, knives cleavers and other such instruments used in the operation of the meat market. Defendant admitted the nature of the injury received in this instance, but averred that the operation of the meat grinder, from which the accident arose, was undertaken without his knowledge or consent and was beyond the scope and course of Stephens' employment.

From a judgment awarding compensation in the amount of $3.25 per week for a period of seventy (70) weeks, with interest as provided by the statute, defendant prosecutes this appeal.

In support of the exception of no right or cause of action, defendant contends that the business in which he is engaged and in which Stephens was employed is not one of those specifically set forth in the compensation laws as hazardous; has not been declared to be hazardous by any judgment of court obtained in advance, and that the parties had not, by agreement, stipulated that Stephens' employment should fall within the contemplation of the statute.

There can be no doubt that the only occupations protected or made applicable by the compensation laws of this state are:

(1) Those businesses specially designated in the act.

(2) Those persons who, by agreement, have elected to come under the terms of the act; and,

(3) Those businesses determined by the courts, prior to the occurrence of the accident, to be of a hazardous nature.

In a per curiam opinion rendered in the case of Atkins v. Holsum Cafeteria, Inc., La.App., 160 So. 655--and in which many cases were reviewed--this entire subject was fully discussed by this court. Also, see Smith v. Marine Oil Company, Ltd., 10 La.App. 674, 121 So. 782; Stockstill v. Sears-Roebuck & Company, La.App., 151 So. 822; Atkins v. Holsum Cafeteria, Inc., La.App., 159 So. 758; Rester v. Community Stores, Inc., La.App., 169 So. 183; Claiborne v. Smith et al., La.App., 2 So.2d 714.

One of the hazardous occupations named in Section 1, paragraph (a), subsection 2 of the Workmen's Compensation Act, as amended, is "the construction, installation, operation, alteration, removal or repair of wires, cables, switchboards or apparatus charged with electrical current" and " * * * installation, repair, erection, removal or operation of boilers, furnaces, engines and other forms of machinery".

In the Sears-Roebuck & Company case, supra, , it was said:

"It is the character of business of the employer, with respect to it being hazardous or not, and not the nature of the particular duty of the employee, which determines the right or lack of right of the employee to compensation when injured in the course of the employment. White v. Equitable Real Estate Co., 18 La.App. 714, 139 So. 45; Dewey v. Lutcher-Moore Lumber Co., 151 La. 672, 92 So. 273; Shipp v. Bordelon, 152 La. 795, 94 So. 399."

The business of operating a meat market is not named by the compensation act as a hazardous occupation and we know, as a matter of common knowledge, that, generally, such a business is not per se hazardous, but such a business may have incidental departments or accessory lines that could and would be classified as hazardous.

Here, plaintiff definitely alleges the hazardousness of defendant's business through the use of an electrically-driven meat grinder and other appliances, the operation and use of which was a major accessory to defendant's retail meat business, and, further, that a part of the duties of Stephens, under the employment engagement with defendant, was to operate this machinery in supplying the needs and orders of special customers and the general trade.

The case of Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303, is authority for two principles, viz.:

"(1) That, though operation of a hotel is not declared by the Workmen's Compensation Law to be a hazardous business yet it became so when, in the conduct of its business, it did...