Talbot v. Trinity Universal Ins. Co., No. 4534

• Court: Court of Appeal of Louisiana (US)
• Writing for the Court: ELLIS; LOTTINGER
• Citation: 99 So.2d 811
• Parties: Emmic J. TALBOT v. TRINITY UNIVERSAL INSURANCE COMPANY and James M. Johnson, d/b/a Stop and Shop.
• Docket Number: No. 4534
• Decision Date: 23 December 1957

Page 811

99 So.2d 811 Emmic J. TALBOT
v.
TRINITY UNIVERSAL INSURANCE COMPANY and James M. Johnson,
d/b/a Stop and Shop. No. 4534. Court of Appeal of Louisiana, First Circuit. Dec. 23, 1957.
Rehearing Denied Feb. 3, 1958.
Writ of Certiorari Denied March 17, 1958.

Page 812

Mouton, Champagne & Colomb, Lafayette, for appellant.

Davidson, Meaux, Onebane & Nahrbass, Lafayette, for appellees.

ELLIS, Judge.

Plaintiff has filed this suit in which he is claiming compensation for total, permanent disability as the result of an alleged accident and injury which he also alleged occurred on June 19, 1956, while he was employed as assistant manager of a grocery store located in Lafayette, Louisiana, named 'Stop & Shop' owned by his employer, James M. Johnson, who, together with his insurer, were made parties defendant.

The case was duly tried and submitted and judgment rendered in favor of the defendant dismissing plaintiff's demands for the reason that the facts failed to sustain plaintiff's allegation that he had suffered an accident and, in any event, 'there is no causal connection between the employment activity in which he was engaged, and the present disability of which he complains.'

The defendant in the lower court also filed an exception of no cause of action which he styled no right or cause of action and which was referred to the merits by the trial court. In addition the principal defenses are, first, that defendant's business is not covered by the workmen's compensation act and plaintiff's employment was not hazardous within the definitions of the statute, and, second, that plaintiff did not sustain an accident within the contemplation of the law. In his written reasons for judgment the learned judge below overruled the exception filed by the defendant and further held that the first of the defendant's two principal defenses was not sound under the facts and the jurisprudence. We agree with his reasons as well as his ruling and we quote that portion of his written reasons:

Defendants filed exceptions of no right and no cause of action which were referred to the merits, based on the proposition that plaintiff's suit seeks compensation

Page 813

and medical payments under the increased allowance of the 1956 amendment, and also that the suit asks statutory attorney's fees and penalties against the defendant Johnson, who is an individual and not subject to the demand. These exceptions are overruled, for the obvious reason that even conceding the correctness of defendant's position, the judgment rendered by the court would be merely a reduction of plaintiff's demands.

'During the trial, defendant Trinity Universal Insurance Company objected to the taking of any testimony tending to show insurance coverage, on the grounds that same constituted an enlargement of the pleadings, which do not contain any specific allegations of coverage. A reading of plaintiff's petition, however, leaves no doubt as to the position of this defendant, and under the relaxed rules of pleading which prevail in compensation cases, the objection is considered to be without merit and is overruled.

'The record discloses that defendant Johnson operates a self-service grocery store in the City of Lafayette, and in conjunction with this enterprise employs a butcher, who is in charge of the meat counter. Plaintiff was engaged in work which he himself terms 'assistant manager and clerk.' His duties called for him to help customers entering the store, operate the electric cash registers, and to assist the butcher whenever the occasion required. His hours were from 12 noon to 4 p.m., and from 6 p.m. to 11 p.m. He was alone in the store from 12 to 1, except for the butcher who got off at 12:30 p.m., coming back to work from 4:30 p.m. until 8 o'clock. Most of plaintiff's time was devoted to waiting on customers, and during slack periods, putting up merchandise, straightening up the shelves, and getting things in order.

'It is also clear from the record that when the butcher was not in the store, plaintiff was required to handle the meat counter, and to operate an electrically powered meat slicer and an electrically powered meat grinder.

It is generally conceded as common knowledge that the operation of a retail grocery store and meat market is a non-hazardous occupation, and one not coming within the purview of the compensation statute. Defendant's position is, therefore, well taken, unless, because of the factual situation outlined above, it falls under the concluding paragraph of LSA-R.S. 23:1035, and is one involving '* * * The construction, installation, Operation, alteration, removal or repairs of wires, cables, switchboards or Apparatus charged with electrical current.' (Emphasis supplied.) No other type of machine is used in Mr. Johnson's business, nor is there an automobile or delivery truck used therein.

'Plaintiff relies strongly upon the decision of the Orleans Court of Appeal in Stephens v. Catalano, 7 So.2d 380, and Storm v. Johnson, 23 So.2d 639, also decided by the Orleans Parish Court of Appeal.

'In Stephens v. Catalano, plaintiff suffered the loss of the middle, index, and ring fingers of his left hand while using an electric meat grinder in defendant's meat market. He was employed as delivery and general utility boy in the establishment. The Orleans court held that the use of this machine and other appliances rendered the defendant's business hazardous within the meaning of the compensation law, and, since plaintiff's employment required him to use the machine once or twice daily, recovery was allowed.

'In Storm v. Johnson the Court followed the Catalano case and held that the use and operation of a meat slicer and meat grinder in a restaurant business was sufficient to bring such business under the above quoted section of the Act, and allowed recovery to an assistant manager who cut his left thumb while using the meat slicer.

Page 814

'Both cases cite and rely upon the Supreme Court decision of Byas v. Hotel Bentley, 157 La. 1030, 103 So. 303, applying the proposition therein announced to factual situations which are, in the opinion of this Court, not entirely similar. In the Byas case, plaintiff was required to use and operate an electric elevator and to go on errands to the engine room of the hotel, where a variety of mechanical equipment was operated by the hotel, such as the elevator, electric water pump, boilers, electric generating and distributing machine and system, etc. The Supreme Court found that the Hotel business so operated, entailing the use of such equipment as a substantial and integral part of the operation, rendered the business hazardous. The same Court, in the case of Brownfield v. Southern Amusement Co., 196 La. 73, 74, 198 So. 656, in referring to the Byas case said:

"There the major portion of the employee's duties brought him into contact with the machinery used in his employer's business. * * * Byas v. Hotel Bentley represents the uttermost extent to which the doctrine should be made to apply.'

'In Meyers v. Southwest Region Conf. Ass'n of Seventh Day Adventists, 230 La. 310, 88 So.2d 381, the Supreme Court again applied and affirmed the doctrine of the Byas case, in holding that a minister required to drive an automobile as a necessary regular incident or part of his employment as such was covered by the Workmen's Compensation Act, even though the business of conducting a church organization is clearly not hazardous per se.

'On the other hand, defendants cite and rely upon the cases of Richardson v. American Employer's Insurance Co. (La.App.), 1st Cir., 31 So.2d 527; Foret v. Paul Zibilech Co., Inc. (18 La.App. 363), 137 So. 366; Atkins v. Holsum Cafeteria (La.App.), 159 So. 758; Harrington v. Franklin Stores (La.App.), 55 So.2d 647; and Brown v. Toler, (La.App.), 19 So.2d 680.

'In Foret v. Paul Zibilech Co., Inc., it was held that an oyster shucker was not covered by the act, the business not being specifically designated hazardous, and the presence of a small gasoline motor used in the plant being considered insufficient to bring the business under the omnibus clause of the Statute.

'In Atkins v. Holsum Cafeteria, it was held that the presence of steam tables, dishwashing machines and cooking ranges in a cafeteria did not render the business hazardous, and plaintiff, a porter and general utility man, required to work 'among' such devices, was denied recovery. It is noted further that plaintiff's duties did not require him to operate these devices.

'In Harrington v. Franklin Stores, a colored maid in a mercantile establishment was required to use a steam iron, electrically motivated, and an electric vacuum cleaner, and it was held there that there was no showing that the devices themselves were any more hazardous than those used in modern, up to date homes.

'Brown v. Toler, however, presents a situation where plaintiff's duties were those of clerk in a grocery store and meat market, and required him to occasionally use an electrically powered meat grinder and coffee mill, but who was injured while opening oysters, and the Court found that plaintiff had failed to sustain the burden of proving that his duties required him to operate and to clean these appliances, or that if he did do so, that it constituted a major part of his employment. The decision in that case was based upon a lack of evidence in the record.

'The same Court, in Harrington v. Franklin Stores, supra, has this to say in reviewing the jurisprudence on this point:

"The operation of a meat market has been held hazardous because it involved the use of an electrically driven meat grinder as an Integral part of the business. Stephens for Use and Benefit of Stephens v. Catalano, La.

Page 815

App., 7 So.2d 380. Also Storm v. Johnson, La.App., 23 So.2d 639.'

thereby recognizing the factual distinction between the appliances there under discussion and the established hazardous character of the meat slicer and...