Turner v. U.S. Fidelity & Guaranty Co., 5696
| Decision Date | 10 November 1976 |
| Docket Number | No. 5696,5696 |
| Citation | 339 So.2d 917 |
| Parties | Johnny B. TURNER, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-appellant.
Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for defendants-appellees.
Before DOMENGEAUX, WATSON and HUMPHRIES, JJ.
In this workman's compensation case, an employee, who shot himself accidentally with a fellow employee's gun in the employer's parking lot, appeals from the trial court's determination that the accident did not arise out of his employment. Plaintiff is Johnny B. Turner. Defendants are: Turner's employer, The Town of Boyce, Louisiana; and its compensation insurer, United States Fidelity & Guaranty Company. After trial on the merits, the trial court ruled in favor of defendants and denied compensation benefits to plaintiff.
There is no dispute that plaintiff would be otherwise qualified to receive weekly compensation benefits in the amount of $65 per week,as well as medical benefits, if his accident were determined to be in the course of and arising out of his employment. The medical evidence in the record (see, particularly, the deposition of Dr. Lloyd G. Megison, a neurosurgeon of Shreveport, who testified that, by reason of the penetration by a bullet of the middle of the left side of the brain, plaintiff has permanent right hemiparesis) establishes total and permanent disability.
On February 17, 1975, the date of the accident, Turner was employed by the Town of Boyce in its utility department as a repairman, having various duties in connection with the electricity, gas, sewers and other services furnished by the municipality. At about 11:30 a.m., Turner and his superior, A. M. Coutee, the utility superintendent of the Town of Boyce returned from a job site to the Town warehouse or shop building; Turner went inside to work on some electrical materials and Coutee went into his office. Shortly thereafter, Coutee, Turner and three other employees, Shepherd, Mabry and Evans, walked outside to the parking lot, awaiting the noon whistle which customarily signaled the beginning of their lunch period. The warehouse and the parking lot are both owned by the Town of Boyce.
At this juncture, Evans produced a pistol which he had had inside the warehouse. Evans, also an employee of the town's utility department, had taken the gun out of his car earlier that morning, had borrowed a can of 'WD--40' from a police officer employed by the town, one Davion, and had cleaned his gun in the warehouse. As the men stood on the parking lot, the superintendent, Coutee, asked to see the gun and Evans gave it to him for inspection. Then Turner, the plaintiff, asked to see the gun and Coutee either handed it to him or put it down on a truck hood where Turner picked it up. Turner asked Evans for a cartridge. Evans gave Turner a cartridge and Turner put it in the gun. Some joking remark was made between Turner and Coutee about shooting out a street light or a light on top of the truck. Coutee, Evans, and the others present glanced away from Turner for some reason and, at that instant, the gun fired accidentally and struck Turner in the head, the bullet traversing a portion of his brain, but remarkably, failing to cause his death. Medical attention was obtained speedily and Turner received various treatments thereafter, although he remained, at the time of trial, totally and permanently disabled within the contemplation of the Louisiana Workmen's Compensation Act .
No compensation benefits were paid so Turner initiated suit against the town and its compensation insurer. Defense of the suit was based on the theory that the accident did not arise out of and in the course of Turner's employment. Turner also demanded penalties and attorney's fees, contending that the insurer had failed, arbitrarily and capriciously, to pay benefits.
The applicable statute is LSA-R.S. 23:1031, which provides in paragraph one, as follows:
'If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated. * * *'
The trial court found the facts substantially as outlined above, emphasizing that, while the accident occurred on the employer's premises and during the hours of the employee's work day, Turner was not required to use or be exposed to a gun in performing his duties. Then, relying principally on its analysis of Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La., 1973), the trial court concluded, as we read the assigned reasons, that the accident occurred during the course of employment but did not arise out of it and was not compensable.
The issues to be decided on appeal are:
(1) whether the accident occurred in the course of the employment;
(2) whether the accident arose out of the employment; and
(3) if benefits are due, whether plaintiff is entitled to penalties and attorney's fees.
LSA-R.S. 23:1031, quoted in pertinent part above, is couched in general terms and details no criteria for measuring 'in the course of' and 'arising out of' employment. Therefore, we must examine the jurisprudence and the doctrine to obtain assistance in resolving the issues.
The first question, whether the accident was during the course of employment, is answered easily under the long-established rule that an accident is in the course of employment when it occurs during the hours of employment at a place contemplated by the employment. Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932); Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La., 1973). In the present case, Turner was within the hours of employment. His supervisor and others testified that the noon whistle had not yet blown when the accident occurred. It is undisputed that the hours of employment were from 8:00 a.m. to 12:00 noon and from 1:00 p.m. to 5:00 p.m. The accident occurred at a place reasonably contemplated by the employment, that is, the parking lot owned by the Town adjacent to the utility warehouse. There was agreement among the witnesses that, if the employees concluded their duties prior to noon, they were under instruction by the Town officials to remain on the Town's premises until the whistle blew for lunch. Theoretically, they were there subject to being assigned to any duty or task which became necessary as they were waiting.
The question of whether the accident arose out of the employment is somewhat more difficult.
Our courts have decided many cases involving accidents on or near the job caused by knives or guns. There are three cases whose analysis provides the greates assistance in resolution of this question. These are: Lisonbee v. Chicago Mill and Lumber Company, supra, which is the latest expression of the Louisiana Supreme Court concerning the course of and arising out of features of the statute; LeCompte v. Kay, 156 So.2d 75 (La.App. 1 Cir. 1963), writ refused, 245 La. 91, 157 So.2d 233; and Singleton v . Younger Brothers, Inc., 247 So.2d 273 (La.App. 4 Cir. 1971), writ denied, 259 La. 59, 249 So.2d 202.
In Lisonbee, a night watchman, who was away from the company premises in violation of specific orders to the contrary, was shot by a desperado wielding a gun in the store where the watchman was buying a snack. The watchman was held not to be in the course of his employment. The Supreme Court emphasized the idea expressed by the leading authority on workmen's compensation law in Louisiana, Professor Wex S. Malone, that:
'A strong showing by the claimant with reference to the Arise-out-of requirement may compensate for a relatively weak showing on the During-course-of requirement, or vice versa.' 278 So .2d 7.
Also emphasized was the fact that, while Lisonbee was within the hours of his employment, he was not at the place of his employment. Thus, the court found that he was not in the...
To continue reading
Request your trial