The plaintiff, Mrs. Addie Jean Hymel, instituted this suit for recovery of workmen's compensation from the insurer of her employer, The Gowen Sanatorium, of Shreveport. After a trial on the merits there was judgment in favor of Employers Liability Assurance Corporation, Ltd., of Great Britain, rejecting plaintiff's demands, hence this appeal.
Mrs. Hymel was employed in the capacity of a nurse's aide or attendant at an institution which administered to elderly patients. The sanatorium consists of seven or eight cottages, a main office building and the kitchen building, none of which is connected. In each of the cottages five to ten patients are housed and it was in such a cottage that plaintiff worked. Plaintiff alleges that while acting within the scope of her employment on April 18, 1957, she sustained an injury to her back for which she is entitled to workmen's compensation. For this injury, which was diagnosed as a mild sprain of the lower back, Mrs. Hymel was treated by Dr. Ford J. Macpherson from the date of her injury to May 23, 1957. The doctor reported the patient as being totally disabled through May 26, 1957, and certified that she was able to return to work as of May 27, 1957. The defendant made weekly payments of workmen's compensation during disability as above reported to it by the attending doctor.
In defending this action, the defendant contends appellant was not engaged in an occupation covered by the workmen's compensation statute, nor were her duties of such a nature as to cause the provisions of the act to be applicable to her claim. It is further asserted plaintiff suffered no disability beyond the period for which she was compensated by the insurer.
For statement of a cause of action plaintiff has pleaded that her occupation required that she operate electrically powered machinery, that she assist in the operation of X-ray machines, prepare food for herself and patients, use a slicing machine and electric dishwasher, and that she also assist in the operating room. Her testimony does not show that she performed duties which required the use of the machinery as alleged.
Dr. Gowen, the head of the sanatorium, testified the employee never operated the X-ray machine, did not use a food mixer in preparing food for the patients, and that the institution had never had a slicing machine. He stated that Mrs. Hymel did not use the electric dishwasher and that the kitchen was in a separate building from the cottage where Mrs. Hymel customarily worked; and that there was no operating room and no operations were performed at the institution, but there was a room for treatment of minor injuries such as a burn, or injury to the hand. Mrs. Freda M. James, a dietician in charge of the kitchen, and Mrs. Etta Davidson, the supervisor of nurses at the sanatorium, gave essentially the same testimony. We find the evidence conclusively shows the duties of the employee were confined to bathing patients, moving patients around in bed, feeding patients meals brought from the kitchen by a maid, and occasionally getting food or juices from a refrigerator in the dining room; that occasionally Mrs. Hymel fixed her own breakfast in the kitchen, and
It is earnestly insisted by counsel for appellant that the duties of the employee, and especially those in connection with the oxygen tank, were hazardous within the intent and meaning of the Louisiana Workmen's Compensation Statute. We do not agree with this conclusion. The statute, LSA-R.S. 23:1035, specifies certain hazardous occupations and then provides:
In keeping with the intent of the Legislature, the courts have consistently accorded a liberal construction to the above statutory provisions. This court took occasion to comment in Hammer v. Lazarone, 1956, 87 So.2d 765, 769:
It was also noted in this opinion that in determining whether an employee is entitled to recovery under the Workmen's Compensation Act for an injury received in performing services in a business not specifically designated as hazardous, the inquiry is always whether or not the duties of the injured employee required performance of service of a hazardous nature incidental to the employment and directly associated with the employer's business. This court in Brown v. Remington-Rand, Inc., 1955, 81 So.2d 121; Coleman v. Sears, Roebuck & Co., La.App. 1955, 83 So.2d 469, and Hammer v. Lazarone, supra, held the duties of the employees involved were entirely confined to non-hazardous work and to non-hazardous features in connection with the employer's business, and that accordingly, the Workmen's Compensation Statute was without legal application. Further authority to this effect is found in Guidry v. New Amsterdam Casualty Co., D.C.1958, 148 F.Supp. 248, affirmed, 5 Cir., 252 F.2d 233. Therein Judge Christenberry, in discussing the application of the Louisiana statute, opined:
Following the rulings in the foregoing authorities we find the duties of appellant in connection with her work were exclusively of a non-hazardous nature, and the provisions of the Louisiana Workmen's Compensation Act do not apply to her case.
For the first time in this litigation, the attention of the court is directed through the brief of appellant's counsel to Act 495 of 1958, amending Section 1166 of the Louisiana Workmen's Compensation Act. (LSA-R.S. 23:1166). This statute went into effect July 30, 1958, and provided:
Plaintiff's action was filed on March 6, 1958. The defendant admitted in its pleadings the workmen's compensation policy as issued by it to plaintiff's employer was in force at the time of plaintiff's accident on April 18, 1957. Counsel for appellant argues this statute must be given retroactive effect and the insurer herein should be held liable to appellant under the terms of the 1958 statute. The appellee, on the other hand, insists the statute by its very terms and for other reasons, cannot be held to have retrospective application. It is proper to observe the liability of the insurer at the time its contract was entered into was circumscribed by the provisions of the Workmen's Compensation Statute in force and effect at that time. The insurer's liability as of the time the policy was written did not cover an employee engaged in an occupation not specified in the act as being hazardous, and the duties of which were exclusively of a non-hazardous nature. Act 495 of 1958 imposes upon an insurer of employers liability for compensation irrespective of the hazardous or non-hazardous work of the employee. It is clear, therefore, that should retroactive effect be given to the provisions of the 1958 act in this case, the statute would increase the pecuniary liability of the insurer beyond that which existed at the time of the confection of the contract. Under such a ruling the statute would impair the obligation of the contract as written.
LSA-C.C. Art. 8, declares:
The language of Act 495 of 1958 clearly shows the Legislature did not intend the statute to be retroactive. The general rule is that a law will not be given retroactive operation unless the intention that it should so operate is so clearly expressed that no other construction is possible. Cassard v. Zacharie, 1899, 52 La.Ann. 835, 27 So. 368, 49 L.R.A. 272; State ex rel. Knollman v. King, 1903, 109 La. 799, 33 So. 776. In State v. El Rito Transportation Co., Inc., 1939, 193 La. 548, 190 So. 803, 808, the Supreme Court said:
Confronted with a somewhat similar situation, the court remarked in State v. Spence & Goldstein, Inc., La.App. 1942, 6 So.2d 102, 104:
The foregoing authorities, in our opinion, are sufficient to preclude us from according any retroactive effect to Act 495 of 1958.
By way of summarizing our findings, we hold: first, that the employment of plaintiff as of the time of her accident on April 18, 1957, does not fall within provisions of the Louisiana Workmen's Compensation Statute in effect at that time, such work being exclusively of a non-hazardous nature; secondly, we find that Act 495 of 1958 amending the Louisiana Workmen's Compensation Statute (LSA-R.S. 23:1166) does not have retrospective operation; and thirdly, we are of the opinion that according to the testimony of the only doctor who attended Mrs. Hymel she had fully recovered from her injury and was able to resume the duties of her employment as of May 27, 1957, and that she has received weekly compensation payments for the period of disability, although strictly speaking, such payments were not legally due by the insurer under the Louisiana Workmen's Compensation Statute.
For the foregoing reasons the judgment from which appealed is affirmed at appellant's cost.