Templet v. Intracoastal Truck Line, Inc., 3205

• Decision Date: 06 January 1969
• Docket Number: No. 3205,3205
• Citation: Templet v. Intracoastal Truck Line, Inc., 217 So.2d 725 (La. App. 1969)
• Parties: Carroll P. TEMPLET v. INTRACOASTAL TRUCK LINE, INC., et al.
• Court: Court of Appeal of Louisiana

Page 725

217 So.2d 725

Carroll P. TEMPLET v.INTRACOASTAL TRUCK LINE, INC., et al.

No. 3205.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 6, 1969.

Charbonnet & Charbonnet, Robert P. Charbonnet, New Orleans, for plaintiff-appellant.

James C. Murphy, Jr., of Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, for defendants-appellees.

Before SAMUEL, REDMANN and JOHNSON, JJ.

REDMANN, Judge.

Plaintiff appeals from a judgment dismissing his workmen's compensation suit for injuries sustained in an automobile collision which occurred as he was making a left turn from a public roadway into his employer's premises to report for work.

Plaintiff worked as a truck driver for defendant, and defendant agrees that on the day of the collision plaintiff was to make an early distant delivery, for which he properly should have started out shortly after the 5:00 a.m. hour of the collision.

Not having yet started his work, and not being yet on his employer's own premises (although he says the left front wheel of his car was on those premises), plaintiff must recover, if at all, under the theory referred to as the proximity rule or threshold doctrine.Defendant argues from Verret v. Travelers Ins. Co., 166 So.2d 292(La.App.1964), that plaintiff is not entitled to compensation under the proximity rule because there was 'no hazard peculiar in this case that does not exist in the case of every employee who travels to work in his own automobile and is allowed the privilege of parking in a parking area adjacent to his employer's plant.'

The proximity exception to the general rule of no liability for injuries while going to and from work¹ was held not to contravene the Fourteenth Amendment in Cudahy Packing Co. of Nebraska v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532(1923).

The expression of the exception starts in Louisiana in Jones v. Louisiana Central Lbr. Co., 2 La.App. 260(1925), cert. denied.There the successful plaintiff lived on his employer's property, but his quarters were separated from the sawmill where he worked by a railroad right of way, on which there stood a line of box and log cars used to log the mill.His foot was crushed as he attempted to cross over the standing cars on his way to work.Tracking in part Parramore's language, the court at 2 La.App. 262 stated 'in principle the plaintiff was as though upon the actual premises of the defendant, * * *'The court then added it thought plaintiff'was performing services arising out of and incidental to his employment.'Quoted as authority were Prevost v. Gheens Realty Co., 151 La. 508, 92 So. 38(1922), a case of employee lodging on the premises; and Parramore.²The court did not discuss any requirement as to the nature of the risk or hazard encountered in the area it considered 'in principle * * * the actual premises.'

In Ward v. Standard Lbr. Co., 4 La.App. 89(1925), the successful plaintiff was crossing the highway adjacent to the employer's premises to go to lunch when struck by a fellow-employee's car.The court opined

'* * * the place of the accident, being in close proximity to the place of employment and being the way over which plaintiff had access to the premises, * * * the accident arose in the course of the employment.(Citing Jones and Parramore.)'

The court immediately added that the highway risk being increased by the fellow-employee's use, the hazard was greater by reason of the employment, and the accident arose out of the employment.

Baker v. Texas Pipe Line Co., 5 La.App. 25(1926), cited by plaintiff, involved an accident which at least began to occur on the employer's actual premises, as plaintiff was struck by, or slipped at, the exit gate post and fell from a truck into a cattle guard which injured him.Baker did not cite Parramore, Jones or Ward, and it may be questioned whether it adds anything to the development of the proximity or threshold doctrine, although the court did note, at 5 La.App. 27,

'The evidence shows that plaintiff was leaving his employer's premises at the close of the day's work and that the entrance at which he was hurt was one commonly used by defendant's employees in leaving the premises, whether walking or riding.'

In Le Blanc v. Ohio Oil Co., 7 La.App. 721(1928), cert. denied, plaintiff was employed on an 80-acre oil lease, through which a public highway ran, and plaintiff's usual work required him to cross the highway to go from one part of the premises to the other.However, the injury occurred prior to his starting the day's work, as he alighted from an automobile and was crossing the highway on foot to go to work.

The court opined, at pages 722--723:

'* * * the question does not relate so much to the time of the accident as to the place of the accident, and as to whether the risk resulting in the accident was incidental to the employment.

'While the place of the accident was upon the public highway, and The accident was directly attributable to a risk which was common to all persons using the highway, these facts do not necessarily preclude recovery, provided it can be said that the employment resulted in exposing plaintiff to the risk beyond that to which the public was subjected (Cudahy Packing Co. v. Parramore, supra; Katz v . (Kadans)Kadaus & Co., 232 N.Y. 420, (134 N.E. 330)23 ALR 401) Or that it can be said the accident occurred on the employer's own premises (CitingParramore, Jones and Prevost, supra).

* * *

* * * 'In addition to the facts previously stated, the evidence, we find, shows that the highway was the only practical way of immediate ingress and egress to and from the premises, and it appearing that the employment of plaintiff required the use of the highway at the point where the accident occurred In the performance of his work, we are of the opinion that the place of the accident should be considered as on the premises of the employer and the accident to have arisen in the course and out of the employment, and the defendant held liable under the statute.'(All emphasis supplied.)

Thus Le Blanc states the rule as requiring either more exposure to the common risk Or justification for treating as on premises.The quoted portion of the opinion seems to follow the 'access to the premises' language of Ward as well as the basicconstructive-premises language of Jones.But it also notes an added circumstance, namely that the in fact off-premises area was one plaintiff had to use During his work, and not merely to get immediately to and from work.(And we note the somewhat similar situation of our plaintiff, who of course had to use the entrance-exit during his work of driving trucks from and to the actual premises.)

In Crysel v. R. W. Briggs & Co., 146 So. 489(La.App.1933), the court declared the general rule of no coverage to and from work, then the various exceptions by description of the cases declaring them, and held plaintiff's case not within any exception.The court said of Ward, 'a workman on his way to lunch * * * struck by an automobile on the highway * * * contiguous to his employer's plant, was held injured in the course of his employment.'Of Jones, it said 'The railroad was not only immediately adjacent * * * but was so connected * * * as to form in principle a part' of the premises.Of Le Blanc, it said 'The court held that the road was the only practical way of ingress and egress, and because of its situation should be regarded as a part of the premises * * *.'The court's conclusion in Crysel was that plaintiff, injured some 400 yards from the actual highway construction site, 'was actually or constructively, neither on the premises of his employer or on premises adjacent thereto.'

In Harless v. Forgy, Hanson & McCorkle, 149 So. 135(La.App.1933), the court stated at 149 So. 135--136, the question was whether

'* * * the place at which he was injured was in such close proximity to the employer's premises, or so connected therewith, that in principle the accident may be considered as having happened on the actual premises, and consequently to have arisen in the course of the employment.'

Again, in Harless special hazard is not discussed as an element necessary to recovery.The court refused recovery, saying at p. 136:

'* * * it would require a strained construction of the statute, indeed, to hold that an accident which happened after the employee's work for the day had ceased, on a stranger's truck, four hundred yards away from the employer's premises, was in effect and in law an accident which occurred on the premises.'

Thus by 1933 Louisiana had granted recovery in Jones, Ward and Le Blanc without specifying special hazard as a necessary element of the proximity exception, and had refused recovery in Crysel and Harless because of lack of proximity, without specifying special hazard as a necessary element.

Then in Walker v. Lykes Bros.-Ripley S.S. Co., 166 So. 624(La.App .1936), where recovery was denied for other reasons, the court stated, at 166 So. 626--627, the proximity exception exists when the injury occurs before or after working hours and in close proximity to the premises

'* * * and results from a hazard to which the employee, by reason of his employment, when considered in connection with the situation of his employer's premises, is subjected to a greater risk than the public in general.For this exception to be invoked, the means of customary ingress and egress to and from the master's premises must be such as to compel the employee to submit, by reason of his employment, to greater hazards than the public in general, although such risks may exist, in some measure, with respect to the general public.Moreover, it has been held in these cases that a continuance of the course of the employment is extended in allowing the employee a reasonable time, before or after working hours, to enter or leave the premises, or hazards adjacent thereto, (citing Parramore and Bountiful Brick Co. v. Giles, 276...