155 So. 2d 112 | La. Ct. App. | 1963
Lead Opinion
This suit was brought by plaintiff against her employer to recover compensation, medical expenses, penalties and attorneys’ fees under the Workmen’s Compensation Act because of an injury received by her while in the course and scope of her employment in February of 1961.
After a trial on the merits, the district judge rejected plaintiffs demands and dismissed her suit. Plaintiff appealed to this Court from said judgment.
The facts of this case are that plaintiff was hired as a saleslady in the corset and foundation department of her employer. Plaintiff was injur'ed when she fell or stepped on the premises of her employer shortly before commencing her work on the date of the accident. When the occasion arose, plaintiff would make alterations so that the garments purchased by her customers would fit them better. In making the alterations, plaintiff used an electrically powered sewing machine such as is commonly used in the home. The alterations were made in the stock room next to the department since all alterations in that particular department were handled exclusively by the employees of that department.
Plaintiff testified that the time consumed in altering the garments depended upon the number of customers requiring alterations so as to properly fit them. The majority of her customers required no alterations. The alterations consisted of taking up seams and “tucks” in the material.
Mrs. Olive Bradbury, a fellow employee, stated that the alterations in said department were limited to brassieres; and that it usually took between four (4) and ten (10) minutes to make said alterations.
In its reasons for judgment the lower court held that there were two (2) primary questions to be resolved in the instant case, namely: (1) whether plaintiff’s duties required her to be exposed or come in contact with any hazardous feature of her employer’s essentially non-hazardous business; (2) that if the answer to the first question was in the affirmative, then the next question presented was whether plaintiff was regularly exposed to or frequently brought in contact therewith (the hazardous feature) to the extent that a substantial part of her duties brought her within the coverage of the law.
The court found that the operation of an electrically powered sewing machine was hazardous under the provisions of LSA-R.S. 23 :1035 of the Workmen’s Compensation Act.
The court also held that the use of said sewing machine to make alterations was an integral part of the duties of the plaintiff. However, recovery was not allowed plaintiff. The trial judge was of the opinion that the use of said sewing machine was not sufficiently substantial to characterize her employment as hazardous. He found, also, that the injury arose while plaintiff was on her way to punch the time clock prior to commencing work shortly after having had a cup of coffee on the premises of her employer on the morning of the accident.
Counsel for appellant, in his brief and on oral argument, concedes that the district judge has thoroughly analyzed the law in the instant case, but argues that he misapplied the law to the facts of this case.
Counsel for plaintiff contends that the test used by the trial judge, namely, the
In the case of Luce v. New Hotel Monteleone, 234 La. 1075, 102 So.2d 461 (1958), the Supreme Court said:
“ * * * It is now well settled that an employee is covered where he is regularly exposed to or is frequently brought in contact with the hazardous feature of the business, even though he is primarily engaged in the nonhazardous part. * * * ”
As stated by the trial judge, this Court, in the case of Boggs v. Great Atlantic & Pacific Tea Company, (La.App., 3 Cir., 1960), 125 So.2d 419, reviewed the cases on the subject.
It is the opinion of this Court that the work performed by plaintiff on the sewing machine was hazardous within the meaning of the Workmen’s Compensation Act.
We next have to determine whether plaintiff was required to frequently come in contact with and be frequently exposed to a hazardous phase of her employer’s business.
In Luce v. New Hotel Monteleone, supra, the court allowed recovery to plaintiff, stating that she was covered by the provisions of the Workmen’s Compensation law where the facts showed that as an in-spectress she was required frequently every day to travel from floor to floor in the hotel by means of an electrically powered freight elevator and she was actually injured while alighting therefrom.
In the instant case the record reveals that plaintiff was injured before commencing her work on the date of the accident; that she used the sewing machine at infrequent times; and that a substantial part of her duties was not required in the operation of the sewing machine.
The appellate courts of this State have declined to apply the doctrine of Byas v. Hotel Bentley, 157 La. 1030, 103 So. 303, where the hazardous work is not a substantial part of the employment. This was first indicated in Brownfield v. Southern Amusement Company, 196 La. 73, 74, 198 So. 656, and by subsequent decisions of the Supreme Court and the Courts of Appeal of this State.
This Court concludes, as did the-district court, that plaintiff is not entitled to recover compensation and other related benefits under the Workmen’s Compensation Act and the jurisprudence of this State for the reasons stated herein.
For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.
Affirmed.
Dissenting Opinion
(dissenting).
I respectfully dissent.
The majority finds that the injured plaintiff was exposed to hazardous features of her employment as an integral part of her duties. Nevertheless, the majority denies, recovery because the hazardous work was. “not a substantial part” in time of her employment- — -truly an uncertain and unad-ministerable test.
In the determination of the question before us, the majority has applied no test recognized by the Louisianan Supreme Court. As most recently stated in Luce v. New Hotel Monteleone, 234 La. 1075, 102 So.2d 461, 463: “ * * * It is now well settled that an employee is covered where he is regularly exposed to OR is frequently brought in contact with the hazardous feature of the business, even though he is primarily engaged in the nonhazardous.
The majority overlooks that the claimant was “regularly exposed” to hazardous features of her employment as an integral part of her duties, even though perhaps not frequently, and even though perhaps such exposures did not occur during a substantial part of the working hours of every day. Nevertheless, the claimant was employed as a "trained corseteer” to make alterations of the lingerie sold as required by the customers. She was on call (and required by her duties) to make alterations by use of equipment classified as hazardous by our compensation act during all hours of the working day. Had each customer so requested, the claimant could have been required to spend most of her working day in the performance of hazardous duties.
The parent case on the question is Byas v. Hotel Bentley, 157 La. 1030, 103 So. 303. There, in allowing compensation for the death of an employee killed while performing a non-hazardous portion of his duties, the Supreme Court pointed out that the employee was engaged “in both hazardous and nonhazardous branches of his employer’s business. It was all one employment for which he received but one compensation. Therefore, it is immaterial whether his nonhazardous duties constituted his major employment to which his hazardous duties were merely incidental, or vice versa.” 157 La. 1033, 103 So. 304.
As noted in the Luce case, cited above, the employee is covered by the compensation act “where he is regularly exposed to * * * the hazardous feature of the business, even though he is primarily engaged in the nonhazardous part”. This, the latest expression of the Supreme Court on the subj ect, seems to exclude any time-study approach to determine whether or not compensation coverage extends to an employee regularly exposed to hazardous features as an integral part of his employment.
Otherwise stated, an employee injured while performing the nonhazardous portion of his duties is nevertheless within the coverage of the compensation act, if the employee’s occupation requires his exposure to hazardous features of the employment “as a necessary incident thereto”. Fontenot v. Fontenot, 234 La. 480, 100 So.2d 477, 480. See also: Collins v. Spielman, 200 La. 586, 8 So.2d 608; LeBlanc v. National Food Stores, La.App. 3 Cir., 118 So.2d 500, certiorari denied; Talbot v. Trinity Universal Ins. Co., La.App. 1 Cir., 99 So. 2d 811, certiorari denied.
In denying coverage, the majority relies primarily on Brownfield v. Southern Amusement Co., 196 La. 73, 74, 198 So. 656.
Likewise, in Boggs v. Great Atlantic and Pacific Tea Co., La.App. 3 Cir., 125 So.2d 419, we denied recovery where the employee’s exposure to the hazardous features of the employment was only occasional— “ ‘every once in a while’ ”, “ ‘in an emergency’ ”, 125 So.2d 420. Ultimately, we held that “occasional operation” of hazardous equipment, 125 So.2d 423, was insufficient to classify the employee’s employment as hazardous, so as to justify his recovery when he was injured in a nonhazardous feature of the work. Again, the employee’s exposure to hazardous features was occasional and sporadic; he was not, as here, specifically employed to perform
In the present instance, as an integral part of her duties, the claimant was on call each minute of the working day to perform duties classified by the legislature as hazardous. This was a recurrent part of her regular duties. She was therefore regularly exposed to hazardous features and accordingly entitled to the protection of our workmens’ compensation act under the well-settled jurisprudence summarized and followed in Luce v. New Hotel Monteleone, cited above.
The real danger of the majority’s holding herein lies in its disregard of established tests as to the coverage of the compensation act in instances such as the present, and in its unsettling substitution of an impractical time-study approach to determine just how many hours of each day are spent in hazardous and how many in non-hazardous features of an occupation. Coverage or not will depend on the variable memories of witnesses as to indefinite matters of which there is usually no objective record.
In the present instance, I think the majority has unwisely failed to apply the settled jurisprudence and accepted principles of compensation law, to the effect that an employee is within the coverage of our workmen’s compensation act whenever he is employed to perform hazardous work as an integral part of his duties and “as a necessary incident thereto” (Fontenot cast at 100 So.2d 480), “even though he is primarily engaged in non-hazardous work” (see Luce at 102 So.2d 463) which takes up less than a substantial proportion of his time.
For these reasons, I respectfully dissent.
. Actually, tlie Brownfield case is not authority for its holding under its facts, because a rehearing was granted and the original opinion was set aside. See the Supreme Court’s recent comment to such specific effect in Meyers v. Southwest Region Conference, etc., 230 La. 310, 88 So. 2d 381.
Rehearing
On Rehearing.
EN BANC.
We granted a rehearing in this case to reconsider our original conclusion that plaintiff’s employment and the duties which she performed in connection with that employment were of such a nature that she was not covered by the provisions of the Louisiana Workmen’s Compensation Act at the time the accident occurred.
As we pointed out in our original opinion, plaintiff was employed as a saleslady in the corset and foundation department of defendant’s department store. Her duties primarily were to wait on customers and to make sales, but she also was required to make alterations to the garments sold in that department when such alterations were necessary. She made these alterations by using an electrically powered sewing machine. The great majority of her time was spent in waiting on customers and making sales, and only a very small portion of it was occupied in altering garments.
The operation of a general merchandise or department store, such as the one owned by the defendant-employer in this case, is not a hazardous business as defined in the compensation act and it is not hazardous per se. Harrington v. Franklin’s Stores Corp. of New Iberia, La.App. 1 Cir., 55 So.2d 647; Coleman v. Sears, Roebuck & Company, La.App. 2 Cir., 83 So.2d 469; Richmond v. Weiss & Goldring, Inc., La.App. 3 Cir., 124 So.2d 601; Honeycutt v. Sears, Roebuck and Company, La.App. 3 Cir., 146 So.2d 860 (Cert. denied). We held in our original opinion, however, that although defendant’s business was not hazardous within the meaning of the compensation act, the operation of an electrically powered sewing machine constituted a hazardous feature or phase of that business, and we re-iterate that holding here.
The operation of a sewing machine, powered by electricity, requires more than the plugging in of an electrical cord, the turning on of a switch or the pressing of buttons or keys. It requires the manipulation of material under a rapidly moving needle while the machine is running, and thus there is a much greater danger of injury,
The jurisprudence of this State has been established to the effect that although the main business of the employer is neither hazardous per se, nor so declared to be by the compensation act, an employee may be considered to come under the act under some circumstances if in connection with the principal business or occupation, or incidental thereto, the employer conducts a subsidiary line of business that is hazardous, or when there is used in connection with such business machinery or other hazardous appliances or equipment. Byas v. Hotel Bentley, 157 La. 1030, 103 So. 303; Brownfield v. Southern Amusement Co., 196 La. 73, 74, 198 So. 656; Collins v. Spielman, 200 La. 586, 8 So.2d 608; Luce v. New Hotel Monteleone, 234 La. 1075, 102 So.2d 461.
In the instant suit, plaintiff contends that she is covered by the compensation act because she was required as a part of her duties to use the electrically powered sewing machine, and thus she engaged in this hazardous feature of defendant’s business as an “integral” part of her employment. Defendant, on the other hand, contends that plaintiff is not covered by the act because her use of the sewing machine constituted only an occasional or incidental portion of her overall duties and her connection with that hazardous feature of the business cannot be considered as a “substantial” part of her employment. The principal question presented here, therefore, is whether plaintiff’s exposure to or her contact with the hazardous feature of defendant’s business was of such a nature as to entitle her to coverage under, the Workmen’s Compensation Act.
In the landmark case of Byas v. Hotel Bentley, supra, decided in 1924, our Supreme Court awarded compensation for the death of an employee in a nonhazardous business who was killed while performing nonhazardous duties. The decedent was a bellboy and although his general duties were of a nonhazardous nature, he was required to operate elevators, instruct new elevator operators, make minor repairs or adjustments to the electric switch controlling the elevators, and frequently to go on errands to the engine room of the defendant, all of which were hazardous features of the business. In holding that the employment was covered by the compensation act, the court used the following significant language:
“In the present case, plaintiff’s husband was admittedly engaged in both hazardous and nonhazardous branches of his employer’s business. It was all one employment for which he received but one compensation. Therefore, it is immaterial whether his nonhazardous duties constituted his major employment to which his hazardous duties were merely incidental, or vice versa. The fact remains that the deceased met his death while actually engaged in performing duties, whether main or incidental, called for by his employment.” (Emphasis added.)
The rule announced in the Byas case seems to have been modified to some extent a few years later in Brownfield v. Southern Amusement Co., supra. The plaintiff in that case was the manager of a theatre and her principal duties were of a clerical nature. She spent all of Iter working time in the theatre, except for a “few hours each
“ * * * Plaintiff’s occasional use 'Of her own automobile was so remotely «connected with her employer’s business that the effect of holding her oc- ■ cupation a hazardous one would be to place almost every occupation or business in the same category. As business is now conducted, there are few occu- ■ pations in which employees holding positions of absolute safety may not occasionally use their own automobiles, • or even public conveyances in their employer’s business. If plaintiff’s the- ■ ory be correct, all such employers would be subjected to liability under .the Workmen’s Compensation Law.
* * * * * *
“ * * * The leading case on the subject and the one most frequently quoted in support of the doctrine is Byas v. Hotel Bentley, 157 La. 1030, 103 So. 303. There the major portion of the employee’s duties brought him into contact with the machinery used in his employer’s business. Here the case is different. The major portion of plaintiff’s work did not require her to come into contact with automobiles.” (Emphasis added.)
We are uncertain as to the effect which should be given to the holding in the Brownfield case, because a rehearing was granted in it and the case was compromised after it had been argued and submitted on rehearing. In a later case, however, the Supreme Court discussed the Brownfield decision and, although stating that it was not authority, the court seemed to approve of the reasoning and conclusions reached in it. See Meyers v. Southwest Region Conference Association of Seventh Day Adventists, 230 La. 310, 88 So.2d 381.
In Collins v. Spielman, supra, the compensation act was held to apply to a general farm hand, who was injured while performing nonhazardous duties, but whose duties required him to operate a tractor during farming seasons and to deliver milk three times a week by truck. Although there is nothing in that case to indicate the test which should be applied in determining whether there is compensation coverage, we think the facts show that a substantial portion of plaintiff’s work involved the use of hazardous machinery.
In Meyers v. Southwest Region Conference Association of Seventh Day Adventists, supra, a minister was held to be covered by the compensation act after being injured in an automobile accident because he was required to use his automobile “extensively” in his employment. The Supreme Court distinguished that case from the Brownfield decision by pointing out that in the Brownfield case “the use or maintenance of the automobile [was] so remotely connected with the employer’s business as to make the risk from its operation negligible,” whereas the use of an automobile by the claimant in the Meyers case was “an every day affair necessitated by the work of the church.”
In the recent case of Luce v. New Hotel Monteleone, supra, plaintiff was an in-spectress for defendant’s hotel, and as such she was obliged “to travel frequently each day from floor to floor by means of an electrically powered freight elevator owned
“ * * * It is now well settled that an employee is covered zvhere he is regularly exposed to or is frequently brought in contact with the hazardous feature of the business, even though he is primarily engaged in the nonhazardous part.
“Indisputably, the duties of this plaintiff required that she frequently come in contact with and be regularly exposed to a hazardous phase of her employer’s business — the maintenance and operation of the freight elevator. Consequently, under the mentioned existing jurisprudence of this state she is covered by the provisions of the Workmen’s Compensation Law.”
In the Luce case, unlike the facts in the Byas, the Brownfield and the Collins cases and unlike the facts in the instant suit, the plaintiff was injured while she was engaged in performing the hazardous portion of her work. The court, nevertheless, based its decision that there was coverage on the fact that she frequently came in contact with and was regularly exposed to the hazardous phase of the business. There is no question but that the operation of the hazardous freight elevator constituted a substantial portion of her employment.
In Fontenot v. Myers, La.App. 1 Cir., 93 So.2d 245, plaintiff was held to be covered by the compensation act because his “major employment” was in the hazardous portion of his employer’s business, and his duties in the nonhazardous portion were “incidental” to his major employment. The Brownfield case was distinguished on the ground that there the plaintiff performed only “occasional acts” in the hazardous phase of the business. In Richardson v. American Employers’ Ins. Co., supra, the court held that the oiling of two electric fans and the motors in an electric cooler was not sufficient to provide compensation coverage because that duty was not a “major and material part” of plaintiff’s employment; but that his use of an automobile in hauling merchandise to and from the restaurant of his employer was sufficient to provide coverage because the use of the automobile was a “substantial and integral part of his employer’s business in that it was constantly and daily used by the employer or the plaintiff in hauling necessary supplies for the conduct of the business,” and that it was a “major and material part of plaintiff’s employment.”
In Honeycutt v. Sears, Roebuck and Company, supra, we held that plaintiff was not covered because she “rode the escalator only infrequently.” And, in Richmond v. Weiss & Goldring, Inc., supra, we held that a secretary who was required to operate a switchboard (classified as hazardous in the compensation act) for two hours each day was covered because “an integral portion of her duties regularly exposed her to substantial contact with a hazardous feature of her employer’s business.”
Finally, in Boggs v. Great Atlantic & Pacific Tea Company, supra, the injured person was employed as a price marker in a grocery store, a nonhazardous business, and the accident occurred while he was engaged in the nonhazardous part of his work. In emergencies, however, the employee acted as a checker, using an electric cash register and an electric coffee grinder. He did this at most once or twice a week and sometimes not for a month at a time. There is no question but that his duties required him to use the cash register and coffee grinder on these occasions and that the use of those machines constituted an integral part of his employment. Yet, we held that, assuming that those machines were hazardous, his use of them was “not a sufficiently substantial portion of his du
It is apparent that the appellate courts of this State, in determining that the employee’s performance of duties in hazardous features of the employment was sufficient to provide him with compensation coverage, have based that conclusion on a finding that his duties were “to a large extent hazardous in nature,” that the “major portion” of his work required him to come in contact with automobiles, that the hazardous duties were an “every day affair,” that they were a “major and material part” of his employment, that the car was used “most extensively,” that the use of it was a “substantial and integral part” of the employer’s business, that it was “constantly and daily used,” and that the employee was “regularly exposed to” or was “frequently brought in contact with” the hazardous feature of the business. In determining that the employee was not covered by the compensation act, the courts have reasoned that his hazardous duties were “occasional” or “incidental,” that they were “remotely connected” with the employer’s business, that the “major portion of plaintiff’s work did not require her to come in contact with automobiles,” that the employee “rode the escalator only infrequently,” that the use of an automobile was so remotely connected with the employment as to “make the risk from its operation negligible,” and that the hazardous duties were not a “sufficiently substantial portion” of his employment.
It seems to us that the basic reasoning behind all of these decisions, and one which is consistent with the purposes of our Workmen’s Compensation Law, is that an employee in a nonhazardous business, who is injured while performing nonhazardous duties, is nevertheless covered by the compensation act if the duties which he is required to perform in a hazardous feature of the business are of such a nature, or bear such a relationship to his overall duties, that the risk or danger of a work-connected accident or injury is materially or substantially increased over what it would have been had he not been subjected to these hazards. If his exposure to or his contact with the hazardous features of the business is such that the risk or danger of accident and injury is not substantially increased, or if the increased risk is insignificant, occasional, incidental or relatively minor, then we think the employee is not entitled to compensation coverage.
In our opinion, an employee in a business which is not classified as hazardous under the compensation act, and is not hazardous per se, whose duties are primarily nonhazardous in nature but who is required as an integral part of his employment to perform duties in a hazardous feature of the business, and who is injured while engaged in the nonhazardous portion of his employment, is not entitled to compensation unless the performance of such hazardous duties materially or substantially increases the risk or danger of work-connected accidents or injury. If the performance of hazardous work does materially increase that risk, then it may logically be said that the hazardous duties performed by him constitute a substantial part of his employment.
We think this conclusion is in complete accord with the rules expressed by the Supreme Court in the cases hereinabove cited. In the Luce case, supra, the court held that an employee is covered “where he is regularly exposed to or is frequently brought in contact with the hazardous features of the business.” If an employee in a nonhazardous business is required as an integral part of his employment to perform hazardous duties, he still would not be covered under the ruling in the Luce case unless he is “regularly exposed to” the hazardous feature, or unless he is “frequently brought in contact with” it. The hazardous duties would necessarily be a substantial portion of his employment, and the danger of a work-connected injury would be materially increased, if either of these last two conditions existed. We cannot agree with plaintiff’s argument that if the haz
The question of whether the performance of hazardous duties constitutes a substantial part of the employment in any case, we think, must be resolved by a consideration of the facts of that particular case. The amount of time which the employee devotes to that feature of his work may be one of the facts to consider, but we do not think that that should be the sole determining factor. The importance or necessity of the performance of those duties, the skill required, the danger involved, the nature of the duty itself, the frequency with which the exposure occurs, and other factors may also be considered.
In the instant suit the record shows that all of the salesladies in this department, including plaintiff, used the sewing machine for the purpose of making alterations to brassieres when necessary. The making of these alterations consisted of taking up “seams” or making “darts” in the garment, and it usually required between four and ten minutes to alter one such garment. Plaintiff testified that no alterations were necessary in a majority of the sales made in that department, that the greatest number of alterations she ever had to make in one day was eight or ten, and that “quite a few” days would go by when it was not necessary to make any alterations at all. Mrs. Olive Bradbury, who worked in the same department with plaintiff, stated that several days would go by without requiring an alteration, and then on other days they would have to alter “maybe one or two,” and that the salesladies in that department would not average “more than ten minutes a day” in making such alterations. Mrs. Marguerite Fontenot, another saleslady in' that department, says that it would “go for-days, maybe a month,” without a requirement for an alteration, and again they may have “one or two a day.” In their very-busy season, she says, they may have “three or four, but that’s very seldom.”
Although plaintiff has been referred to as-a “trained corsettiere,” it appears to us that only a minimum amount of training or skill! was necessary to qualify her for this type of work. The alterations were made on a household type sewing machine, and the only training apparently taken by plaintiff, aside from the practical experience acquired in making the alterations, was reading a book which was loaned to her by the head of the department and then discussing the matter with other workers from time to. time.
Under the facts presented here, we are-convinced that the duties which plaintiff performed in a hazardous feature of her employer’s business, that is, the use of an electrically powered sewing machine, was so occasional, incidental and insignificant, that the risk or danger of a work-connected! accident and injury was not materially or substantially increased by the performance of those duties. We conclude, therefore,, as did the trial judge, that the hazardous-duties which plaintiff performed did not constitute a sufficiently substantial portion of her duties in that employment to entitle-her to coverage under the compensation act.
For the reasons herein assigned, the judgment appealed from is affirmed. All costs of this appeal are assessed to plaintiff-appellant.
Affirmed.