#### LECKIE v. H. D. FOOTE LUMBER CO., Inc., et al.

No. 7212.

Court of Appeal of Louisiana. Second Circuit.

Nov. 24, 1948.

On Rehearing April *29, 1949.*

Writ of Certiorari Denied May 31, 1949.

Hudson, Potts, Bernstein & Davenport, of' Monroe, for. appellants.

John J. McKeithen, of Columbia, for appellee.

KENNON, Judge.'

This is a suit for 400 weeks compensation, less 70 weeks previously paid. The petition alleges that plaintiff was employed as a saw filer and scaler; that, while in the course of his. employment, and, while attempting to .trim a piece of lumber by the use of a. power driven cut off saw, he received an injury which resulted in the loss of a substantial portion of his.left hand, including the thumb, the first joint of the first ’ and middle fingers, the first two joints of the ring finger and a stiffening of all remaining finger joints. Plain*250tiff alleged that as a result of the injury, he was totally and permanently disabled within the meaning of the Workmen’s Compensation Law Act No. 20 of 1914, as amended; that he could no longer follow the occupation of saw filing, an occupation that he had followed for more than twenty-five years, and. that he is unable to perform manual labor of any kind.

Defendants filed a joint answer, admitting ' the employment of plaintiff at the sawmill of the defendant lumber company and the payment by the defendant insurance company of $1400.00 in compensation, but denied that plaintiff was engaged in the operation of trimming lumber at the time of his injury and denied the allegations relative to the extent of disability.

The District Court found for plaintiff and the case is before us on appeal from that judgment.

Plaintiff was second in charge to> a Mr. Baum in the operation of defendant’s sawmill. His specific tasks were to scale such logs as were received at the mill and to file crosscut saws. In addition, he performed general tasks around the mill and was free to do whatever seemed necessary in facilitating the mill’s operation.

The injury occurred on a Saturday afternoon while only plaintiff and defendant’s manager, Mr. Baum, were present at the mill. They were performing the customary Saturday task of preparing the small mill for its weekend shutdown. Part of this weekly shutdown work consisted of burning out the slab pile so as to reduce the fire hazard. Mr. Baum went to the burning pit, leaving plaintiff 'to attend to. the operation of the two engines, which operated the mill machinery, including a blower which accelerated the burning of the slabs and waste. Plaintiff was being paid for this Saturday afternoon work. In addition to being on duty with the engines, he was available — and used when occasion required — to scale any logs that might arrive on Saturday afternoon.

The mechanical set-up of the mill was such that when it was desired to operate the blower which accelerated the burning of waste, all the other machinery connected to the engines was also automatically put in operation. Included in the machinery which was necessarily — though idly — operating on the Saturday afternoon in question, was a circular cut off saw situated about ten feet from the motors which plaintiff was attending. Plaintiff’s injury occurred when he picked up a short piece of scrap lumber and proceeded to run it through the cut off saw. Plaintiff’s petition alleged tha-t his purpose in using the saw at the time was “to trim, a piece of lumber.” Defendants introduced evidence at the trial 'that the material was only a piece of slab, less than 30 inches long, incapable of being used for lumber and that plaintiff’s purpose was to cut it in two pieces for his own use as stove wood. The District Court found — and the record amply sustains this finding — that the board being trimmed by plaintiff at the time of his injury was not fit for sale and was usable only as fire wood.

After 70 weeks, defendants discontinued paying compensation and the defense in the present suit is that plaintiff at the time of his injury had turned aside from his. employment and was engaged in a task which served his own interest exclusively and had not sufficient relationship to his-employment to entitle him to benefits, under the compensation law.

Plaintiff’s contention is that he was. simply taking advantage of the fact that the nature of the duty he was performing —namely, that of watching the engines- and being available for the scaling of such logs as might be brought to the mill— permitted him to cut some stove wood for himself; that, when he was injured, he had not left the place of his employment or ceased to perform the duties required of him at the time.

The record discloses that the defendant lumber company permitted its employees to carry away for fuel slabs which-otherwise would have been burned as-waste and had permitted employees at convenient times while on duty to cut such slabs into convenient lengths for wood. The alternative method of disposing of waste slabs was to place them in the conveyer trough (situated some four feet from the cut off saw) to be carried to the burning pit.

*251The case turns upon a question of law. Is compensation due an employee who is injured, while at his place of duty, while watching machinery as required by his employer, while available on the premises for his other duty of scaling any logs that might arrive, but whose injury occurs when the employee is also performing some other act for his own benefit?

In the case of St. Alexandre v. Texas Company et al., La.App., 28 So.2d 385, 387, an employee was granted compensation for an injury which he received while opening a bottle of RC Cola, which he had taken during work hours — as was permitted by the company — from a cooler set up on the premises for the use of all employees. The Court in the course of that opinion noted that it is well settled that “when an employee temporarily leaves his work to get a drink or to go to the toilet, he is, nevertheless, considered as still being 'at work’ to such an extent that if, during that interval; he is injured in an accident, it is proper to say that the accident occurred ‘in the course of the employment.’ ”

This case quotes with approval from an article in the Indiana Law Journal, Vol. 21, No. 4, which recites that many acts of a personal nature, such as getting fresh air, smoking, resting, eating food or ice cream, drinking water or other refreshment, taking baths in showers provided by the employer, using the telephone, •etc., are compensable incidents of the employment should injury occur.

In an earlier Supreme Court case, Kern v. Southport Mill, Ltd., 174 La. 432, 141 So. 19, the Court laid down the rule that in determining whether an accident arises out of the employment, it is necessary to consider only two questions. First, was the employee then engaged about his ■employer’s business *and not merely*pursuing his own business or pleasure and second, did the necessity of the employer’s "business reasonably require that the employee be at the place of the accident at the time the accident occurred.

In the case before us, plaintiff’s injury “arose out of his employment” according to the test set forth in the Kern case. Certainly the necessities of the employer’s business reasonably required him to be at the place of the accident at the time the accident occurred and, while he was incidentally pursuing his own business in that he was trimming stove wood for himself, he was also satisfactorily performing the required duty of attending to the operation of the motors. He was also about his employer’s business to the extent that he was available at the mill site in the event logs should arrive for scaling. The fact that he was at the time, and without ceasing to attend to his employer’s business, using the cut off saw, which otherwise would have been idle, for his own benefit did not alter the inescapable fact that he was also at the time performing the duties required of him by his employment.

The legal situation would have been no different than had he been injured by an Act of God, such as in the case of Harvey v. Caddo De Soto Cotton Oil Co., Inc., La.App., 6 So.2d 742, or had he been injured while taking refreshments for his own pleasure as in the St. Alexandre case, supra.

To sum up, we find as a matter of fact that at the time plaintiff Leckie was injured, he was not engaged in trimming lumber for the benefit of his employer, nor was he engaged in the picking up of boards as a part of any clean-up duty which might have benefited his employer. We find that Mr. Leckie’s duty at the time of his injury, as assigned to him by defendant’s . foreman, was to attend to the running of the engines and machinery, including the blower, and to keep himself available to scale any 'logs that might arrive at the mill. We find that his injury resulted when he, taking advantage of the fact that his duties did not require the use of his hands for any purpose at the minute, picked up a small board and proceeded to cut some stove wood for his own personal use.

We think that under the Louisiana authorities plaintiff is entitled to compensation. At the time of his injury he was, to the extent that he was watching the engines, engaged in his employer’s business. It is true that he was also engaged in cutting stove wood for his own purposes, *252but under the test of the Kern case, supra, it could not be said that “he was merely-pursuing his own business.” He meets the further requirement of the Kern case that ■ the necessities of the employer’s business reasonably required that he be at the place of the accident at the time the accident occurred.

The judgment is affirmed, with costs.

HARDY, Judge

(dissenting).

As stated in the majority opinion this case turns upon a question of 'law, and I am unable to concede the pertinence and applicability to the instant case of the authority cited, namely, Kern v. Southport Mill, Ltd., 174 La. 432, 141 So. 19, and St. Alexandre v. Texas Co. et al., La.App., 28 So.2d 385, which latter case quotes an article in the Indiana Law Journal, Volume 21, No. 4.

The- facts in Kern v. Southport Mill, supra, are so entirely different from those involved in the case before us as to render any enunciations of principle or pronouncements contained in the opinion purely obiter. The majority opinion seizes upon and emphasizes an expression found in the opinion in the Kern case [174 La. 432, 141 So. 21], “not merely pursuing’his own business or pleasure”. Reference to standard and accepted dictionaries discloses the definition of merely to be, among others: “only, singly, including nothing else, barely”. Under the undisputed facts of this case I respectfully ask: How can an employee engaged in cutting a stick of wood on a buzz saw, which act and the purpose thereof included nothing .else except the satisfaction of his own personal interest, be considered as having been in the course of his employ-' ment and engaged upon his employer’s business at the time? It may be argued that his attention .to the minor and momentary detail of cutting stove wood did not prevent him from giving supervision to the machinery of his employer under his charge. The test, -in my mind, is not his attention, but his ability to perform his employer’s work if it had been required at the exact moment. Obviously it would have been necessary for him to have first desisted from' the work he was doing in his own interest and for his own advantage. And, under such circumstances, I protest that the doctrine of employer’s liability is being carried to an absurd extreme.

With respect to the holdings in questions involving a pause in employment for acts of a personal nature, for purposes of refreshment, brief recreation, etc., I am not impressed by the asserted analogy. All of these actions are definitely to be considered as in the employer’s interest because they are for the benefit of the employee as an employee, enabling him the better to give his time, attention and best effort to; his employment. Non constat in the instant case, since the cutting of the stove wood did not advance the employer’s business or the employee’s efforts in the course of his employment.

Being of the opinion that the use of a dangerous instrumentality by an employee in the prosecution of' the exclusive service of his own personal interest is not an incident to his employment within the interpretation and meaning of the Workmen’s Compensation Statute, I respectfully -dissent.

On Rehearing

TALIAFERRO, Judge.

The facts of this case are clearly set out in our former opinion. They will not be at length iterated herein. The members of this Court are unanimous in the opinion that plaintiff when injured had turned aside from his over-hour duties to his employer and was engaged in the per-formaiice of an act purely for his own interest and benefit; that is, to convert a discarded and non-commercial piece of timber into- stovewood for his own use; that in so -doing he unnecessarily exposed himself to the dangerous instrumentality that caused'the injury but-for which the accident would not have happened.

The accident happened in the course of plaintiff’s employment, but to entitle him to recover compensation, of course, it must be found and held that it arose out of and/or was incidental to such employment. In other words, did the turn*253ing aside to engage in a purely personal, dangerous act, several feet from where he was required to be to perform his duties, for the moment, deprive plaintiff of the benefits of the Workmen’s Compensation Law, as regards an accident that occurred while he was so engaged ? On this question a. majority of this court takes the affirmative. The question is one of law arising from the factual findings of the Court’s entire membership.

In cases of this character the courts of this state have frequently held that whether or not an injury arises out of the employment depends necessarily upon the facts and circumstances of ea.ch case. No hard and fast rule in such cases is possible- of intelligent adoption. If it should be held that the facts of this case warrant recovery by plaintiff, it is difficult to perceive to what extent the rule might be carried. Can it logically be said that had the accident occurred fifty feet farther from the exact locus of his duties, it would not be compensable, whereas since it happened only ten feet therefrom, it is com-pensable ? We believe the factor of distance is not entirely controlling. To the nature of the act of deviation or turning aside should be' accredited controlling influence.

The testimony shows that about the immediate locus of the accident plaintiff had assembled a goodly quantity of discarded pieces of lumber he evidently intended to carry home for stovewood. And, it is shown that plaintiff’s superiors did not of-, fer objection to this being done, nor to the use of the saws, when not otherwise engaged, to cut .the pieces into appropriate lengths, but in so doing in each instance, the employee acted for himself and not for his employer. He was subserving his own personal interest.

It is argued, and so held by. the lower court, that the acts of employees in assembling and carrying home stovewood was really in the interest of the employ^ er, who, otherwise, would have had to burn the same. We think the argument without material bearing in the case. Non-commercial pieces of timber, slabs, etc., were carried by rollers out from- the mill to a pit and there burned. This roller was in constant movement while logs were being converted into lumber. Its burden was to no material extent reduced because a limited quantity of the slabs, etc., were diverted to private use. The rollers, regardless of this diversion, would run as regularly and as continuously as they would had same not been done. The attitude of the employer in permitting this practice was simply an indulgence, an act of generosity on its part.

This case, in principle, is distinguishable from St. Alexandre v. Texas Company et al., La.App., 28 So.2d 385, cited in our original opinion,’ wherein the workman was accidentally injured when opening a bottle of coca cola while on duty, which he intended to drink to refresh and invigorate his" body, fatigued from work. The same rule applies in cases where the workman, for a moment, retires from the immediate locus of his duties to smoke, get fresh air, rest, eat, etc., and is actually injured while doing so, because in such instances physical endurance is bolstered and the ability to render efficient service promoted.

The Supreme Court, it seems to us, has clearly pointed out in several opinions the line of demarcation in cases of this character, including the following: Pierre v. Barringer, 149 La. 71, 88 So. 691; Kern v. Southport Mill, Ltd., 174 La. 432, 141 So. 19; Laine v. Junca, 207 La. 280, 21 So.2d 150.

The Pierre case, supra, is strikingly similar to that at bar. We quote therefrom, as follows:

> “The case was tried on its merits, and it was shown that plaintiff was á young colored boy who was engaged as a fireman in a sawmill, and that his employment did not take him in the vicinity of the circular saw by which his hand was severely injured. The evidence further shows that he, the plaintiff, was not performing services' -arising out of and incidental to his employment, and that the accident did not happen in the course of his employment trade, business, or -occupation. The accident to plaintiff happened because of his neglect of the duties assigned to him and the ' unnecessary exposure- by him to a very dangerous implement. It was his duty to have taken care of himself, and *254not to have placed himself unnecessarily in a place of danger. He had deserted his post of duty at the furnace, and wandered some distance from the boiler when he met with the accident.”

The following decisions of the Courts of Appeal are pertinent to the question: Gooding v. Beauregard Laundry Company, Inc., 9 La.App. 392, 120 So. 507; Liner et al. v. Riverside Gravel Company et al., 13 La.App. 664, 127 So. 146; Como v. Union Sulphur Company, La.App., 182 So. 155.

For the reasons herein assigned, the judgment 'from which appeal was taken is reversed, and plaintiff’s suit is hereby dismissed at his cost.

KENNON, J., dissents for the reasons assigned in the original opinion, contained herein.