Storm v. Johnson, 18308.

• Court: Court of Appeal of Louisiana (US)
• Citation: 23 So.2d 639
• Decision Date: 29 October 1945
• Docket Number: 18308.
• Parties: STORM v. JOHNSON et al.

23 So.2d 639

STORM
v.
JOHNSON et al.

No. 18308.

Court of Appeal of Louisiana, Orleans.

October 29, 1945

[23 So.2d 640]

Montgomery, Fenner & Brown and Wood Brown, all of New Orleans, for plaintiff-appellee.

J. J. Jackson, of New Orleans, for defendants-appellants.

McCALEB, Judge.

This is a suit for workman's compensation. Plaintiff alleges that, on or about November 21, 1944, while he was engaged in the performance of his duties as night manager of a restaurant, known as the 'Nite Life Restaurant,' situated at No. 1200 Carondelet Street in the city of New Orleans and owned and operated by a commercial copartnership composed of the defendants, William Johnson and Arden Fairchild, he received a serious injury to his left thumb which he cut with a meat cleaver; that, immediately after the accident, he went to Charity Hospital for treatment and was totally temporarily disabled to do work for a period of six weeks as a result of the injury; that his employment was hazardous within the meaning of the Employers' Liability Act, Act No. 20 of 1914, as amended; that he has suffered a partial permanent disability to his thumb to the extent of fifty per cent. of its total loss of use and that he is, therefore, entitled to receive in compensation the sum of $13 per week, representing 65% of his wages, for the six weeks during which he was temporarily totally disabled and, in addition thereto, $13 per week for a period of twenty-five weeks for the specific disability of fifty per cent. loss of the function of his left thumb.

The defendants admitted plaintiff's employment, his wage and that he was injured in the course and scope of said employment. They, however, resisted liability on the ground that the restaurant business in which they are engaged is not a hazardous industry, as defined by the compensation law, and that, even if the court should find that there are hazardous features connected with it, plaintiff's employment was not hazardous for the reason that he was not required to work in and around machinery or other mechanical and electrical devices contained in the restaurant.

After a trial on the foregoing issues, there was judgment for plaintiff in the District Court for the amount of compensation prayed for. Defendants have appealed.

The main question presented by defendants for our determination in this case is whether the injury sustained by plaintiff is compensable under the law. Defendants maintain that the restaurant business in which they are engaged is neither specially designated as a hazardous occupation under the Employers' Liability Act nor has it been determined by the courts prior to the occurrence of the accident that their business is of a hazardous nature.

The evidence shows, however, that in the operation of their restaurant, the defendants have installed therein mechanical and electrical devices--that is, a meat slicer and meat grinder, powered by electricity. Therefore, whilst the restaurant business is not a hazardous occupation per se, the particular business conducted by defendants is to be regarded as hazardous within the meaning of section 1, paragraph (a), subsection 2 of the Employers' Liability Act, since they operate electrical and mechanical devices or machinery [23 So.2d 641] in connection with their enterprise. It would serve no useful purpose for us to review the many authorities which are decisive of this question. It suffices to say that, since the decision in the leading case of Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303, the jurisprudence of this state has been well settled that, where a business, not hazardous per se, contains hazardous features such as the operation of machinery as a necessary adjunct to the conduct of the business, any employee whose duties require him to come in contract with the hazardous features of the business is entitled to receive compensation where he is injured during the course and scope of his employment even though the accident occurs while he is performing non-hazardous duties.

Defendants, however, maintain that plaintiff was not only not required to come in...