Williams v. U.S. Cas. Co.

• Decision Date: 17 September 1962
• Docket Number: No. 760,760
• Citation: Williams v. U.S. Cas. Co., 145 So.2d 592 (La. App. 1962)
• Parties: Bertha Mae WILLIAMS v. UNITED STATES CASUALTY COMPANY.
• Court: Court of Appeal of Louisiana

Page 592

145 So.2d 592

Bertha Mae WILLIAMS v. UNITED STATES CASUALTY COMPANY.

No. 760.

Court of Appeal of Louisiana, Fourth Circuit.

Sept. 17, 1962.

Rehearing Denied Oct. 29, 1962.

Certiorari Denied Jan. 3, 1963.

O'Keefe & O'Keefe, New Orleans, Gerald P. Fedoroff, Trial Atty., New Orleans, for plaintiff-appellant.

Simon & Wicker, New Orleans, Lawrence D. Wiedemann, Trial Atty., New Orleans, for defendant-appellant.

Before FRUGE , MENUET and ELLIS, JJ.

J. ADOLPH MENUET, Judge pro tem.

Bertha Mae Williams brought this direct action to recover compensation for total and permanent disability against the United States Casualty Company the compensation carrier of Sanders Lawson, d/b/a Sander's Bar.

The plaintiff alleges that on or about June 3, 1961, while engaged as a barmaid in her employer's hazardous business and during the course and scope of her employment, she was shot five times by one Warren Mills. As a result of these injuries she is paralyzed from the waist down and is permanently and totally disabled. She further alleges that she will require additional medical care and for which defendant is liable up to the sum of $2500.00 or to the extent of its medical rider, whichever is greater. The petitioner prays for compensation at the rate of 65% Of her wages, tips and other benefits per week for a period not to exceed 400 weeks, together with medical expenses, interest on all past due installments and for the statutory 12% Penalty and reasonable attorney's fees.

After trial, the lower court rendered judgment in favor of the plaintiff for compensation in the sum of $16.25 per week for a period not exceeding 400 weeks from and after June 3, 1961, with legal interest on each payment from the due date thereof. Judgment was further rendered in favor of the Charity Hospital of Louisiana and against the defendant in the sum of $2500.00.

Both parties perfected appeals from this judgment. The plaintiff complains that the trial court erred in failing to award her penalties and attorney's fees. The defendant complains the trial court erred in failing to hold that the shooting of Bertha Mae Williams did not arise out of her employment and further erred in rendering a judgment in favor of the Charity Hospital of Louisiana for medical services when this said institution was not a party to the suit.

When this appeal came to be heard, the defendant-appellant moved for dismissal on the grounds that Bertha Mae Williams departed this life on May 18, 1962, subsequent to the judgment of the trial court and no substitution of proper party plaintiffs had been made herein. Opposing counsel admitted the death and stated that while her succession had been opened no judgment had as yet been rendered therein and consequently they had not as yet substituted her legal heirs. This objection of defendant-appellant was taken under advisement. While under advisement the plaintiff obtained an ex parte order of this court substituting Alphonse Bouligny, legal tutor of the minors, Gerald Gay Williams and Victoria Williams, as party plaintiffs in these proceedings.

Where an employee entitled to compensation died pending the proceedings, his claim for compensation to date of death was inherited by his widow and heirs. Richardson v. American Employees Insurance Company (La.App.1947) 31 So.2d 527. Where workmens compensation claimant died pending employer's appeal, the widow and three children were permitted to voluntarily make themselves parties to the proceedings and who were thereafter bound by the judgment of the Appellate Court. Lynn v. Arkansas Fuel Oil Co. (La.App.1940) 192 So. 764.

LSA-R.S. 23:1317 provides that the court in compensation cases shall not be bound by technical rules of evidence or procedure and shall decide the merits of the controversy equitably, summarily and simply as may be, which provisions of law apply to appellate courts as well as the courts of original jurisdiction. Harris v. Primos (La.App.1958) 98 So.2d 683.

In view of this statutory provision, as interpreted by the quoted jurisprudence and in view of the disposition hereinafter made of this cause we do not believe that the ends of justice would be satisfied by a dismissal of the suit upon sustaining the exceptions of the defendant-appellant.

The record herein reveals that there is no dispute as to the facts. During the year 1953, Bertha Mae Williams had been employed as a barmaid by Sanders Lawson at his saloon located at 2700 South Miro Street. At this time Warren Mills was engaged in running a card game within the establishment on some profit sharing arrangement with Sanders Lawson. Shortly thereafter Bertha Mae Williams and Warren Mills commenced living together as common law husband and wife. The plaintiff continued to work as a barmaid for Sanders Lawson off and on thereafter. The relationship between the plaintiff and Mills was by no means peaceful and on several occasions prior to the shooting Mills had committed acts of violence upon the plaintiff. In 1956 Mills moved to California while plaintiff remained in New Orleans. In December of 1960 Mills returned to New Orleans on a visit and he and the plaintiff thereafter moved to California where they lived together as husband and wife until she returned to the city alone shortly before the shooting. She had been re-employed by Lawson for some two weeks prior to that time. Mills returned from California and on the night before the shooting accosted Bertha Mae on the street near her home. She was successful in escaping him by seeking the safety of her mother's home. The following morning, Saturday, June 3, 1961, she reported for work about an hour late and told her employer that her tardiness was due to her apprehension because of the appearance of Mills. At about 4 P.M. plaintiff was working behind the bar when Mills came into the barroom. Plaintiff thereupon told Mrs. Lawson, the wife of the owner, 'I hope no trouble starts'. Mills then ordered an absinthe which petitioner served him. The phone then rang and petitioner walked around the bar to answer it, having to pass close to Mills in so doing. After the phone call, plaintiff started to return behind the bar and as she passed Mills he grabbed her and while her back was turned shot her five times. No arguments or discussions of any kind preceded the assault. One of the bullets from Mills' gun severed plaintiff's spinal cord, which injury has caused her to lose control of her bodily functions and which admittedly resulted in permanent disability.

The district court found that at the time of the assault the plaintiff was about her employer's business and not pursuing her own business or pleasures. The necessities of the employer's business required that she be at the place where the assault took place. At the time it took place she was serving a customer and answering a telephone call in the usual course of business. She did nothing to provoke the assault. We are in complete accord with these findings of the trial Court.

The defendant-appellant contends that the assault arose out of a purely personal matter and that her injuries and subsequent disability did not arise out of her employment because they came from a hazard to which she would have been exposed apart from her employment and accordingly, the lower court erred in not holding that the shooting of the plaintiff did not arise out of her employment.

Both parties concede that because of the issuance of the policy of insurance, under the provisions of LSA-R.S. 23:1166, the insurer is estopped to deny the hazardous...