Velotta v. Liberty Mut. Ins. Co.

• Decision Date: 29 June 1961
• Docket Number: No. 45548,45548
• Citation: 241 La. 814,132 So.2d 51
• Parties: Frank VELOTTA v. LIBERTY MUTUAL INSURANCE COMPANY.
• Court: Louisiana Supreme Court

Page 51

132 So.2d 51

241 La. 814

Frank VELOTTA v. LIBERTY MUTUAL INSURANCE COMPANY.

No. 45548.

Supreme Court of Louisiana.

June 29, 1961.

Bodenheimer, Looney, Richie & Jones, Patrick W. Looney, John A. Richie, Shreveport, for plaintiff-relator.

Mayer & Smith, Shreveport, for defendant-respondent.

SUMMERS, Justice.

On August 29, 1958, Frank Velotta was employed by the Washington-Youree Hotel of Shreveport, Louisiana, as a janitor. Prior to and on August 29, 1958, Liberty Mutual Insurance Company was the Louisiana Workmen's Compensation insurer of Velotta's employer.

This suit was instituted by Frank Velotta directly against the insurer, ¹ contending that he is totally and permanently disabled as the result of an accident sustained in the course and scope of his employment on August 29, 1958; it being contended that on such date Frank Velotta was assaulted unjustifiably and without provocation by a fellow employee, a Negro known to the claimant only as 'Bailey.' Bailey struck plaintiff with great force with his fist and, as the result, Velotta was knocked to the floor and against a metal locker or bench sustaining, among other injuries, a brain concussion and contusion which it is contended caused total and permanent disability. Liberty Mutual Insurance Company filed an answer admitting that there had been an altercation between the employees, Velotta and Bailey, which occurred in the basement of the hotel while Velotta was engaged in the course and scope of his employment. The defendant insurer, however, denied that plaintiff was totally and permanently disabled and also set up the affirmative defense that the sole and proximate cause of the altercation was words or actions of plaintiff, Velotta, and that he was therefore barred from recovery under the Workmen's Compensation Act by virtue of the terms of LSA-R.S. 23:1081 which provide that no compensation shall be allowed for 'injury caused (1) by the injured employee's wilful intention to injure himself or to injure another. * * *'

By stipulation the trial below was confined to these two issues and judgment was rendered in favor of plaintiff. The Court of Appeal reversed the lower court, holding that the affirmative defense had been satisfactorily established and that the injury to Velotta and disability, if any, was caused by the wilful intention of Velotta to injure another. See 126 So.2d 445. It was not, therefore, necessary to adjudicate the question of the nature or extent of the disability resulting from the injury.

The issue presented concerns the interpretation of the special defense provided for by the quoted provisions of LSA-R.S. 23:1081. It is to be observed that in determining whether an employer shall be exempt from and relieved of paying compensation because of injury caused by the injured employee's wilful intention to injure himself or to injure another, the burden of proof is upon the employer. LSA-R.S. 23:1081.

The defendant insurer sought to discharge the burden with which it was charged in this case. We understand the following to be a summary of the facts:

Velotta, a white man, is five feet six inches in height, weighing on the date in question approximately one hundred pounds, and being then fifty-eight years of age. Bailey, a Negro, by contrast, was nineteen years of age, six feet tall and weighed between one hundred fifty to one hundred eighty pounds. Velotta was occupied with his duties in cleaning the basement or locker room where employees changed uniforms. Bailey entered the locker room and while changing clothes called out to Velotta referring to him as 'Shorty' or 'Mr. Shorty,' 'Where is your buggy?'--having reference to a basket or buggy used to store dirty clothes. Whereupon Velotta replied, 'Don't call me Shorty, boy.' Bailey then countered, 'I won't call you Shorty if you don't call me boy.' Both participants raised their voices in an angry manner during the exchange. Velotta then immediately and impulsively either threw or swung a pair of trousers at Bailey, striking him about the face, without causing injury, and Bailey lashed back with his fist, striking Velotta violently on the jaw, knocking him headlong, his head striking the floor and a locker or bench with the resulting injuries.

In considering such cases, where the injury results out of and in the course and scope of employment, it is to be presumed that the injury is compensable until the employer, charged with sustaining the proof necessary to support the special defense made available to him by statute, has met the burden required. The requirement of the statute setting forth the proof necessary for this special defense is a stern one, for 'wilful intention to injure' undoubtedly was added to the Workmen's Compensation Act to support the generally prevailing belief that no person should be rewarded for injuries which flow from his criminal conduct of a serious and wilful nature. ² However, it is not indicated that making this special defense available to the employer should have the effect of permitting the employer to avail himself of the defenses of contributory negligence, fault or misconduct, for it was one of the primary purposes of this legislation to eliminate the defenses ordinarily invoked in tort actions. A proper statement of the view adopted by some courts concerning the language in question is contained in the Law of Workmen's Compensation by Arthur Larson, Vol. 1, Sec. 11.15(d) as follows:

'The words 'wilful intent to injure' obviously contemplate behavior of greater gravity and culpability than the sort of thing that has sometimes qualified as aggression. Profanity, scuffling, shoving, rough handling or other physical force not designed to inflict real injury do not seem to satisfy this stern designation. Moreover, as is shown in the...