
    Aubrey COLSTON, Plaintiff-Appellee, v. GREAT AMERICAN INSURANCE COMPANY et al., Defendants-Appellants.
    No. 1371.
    Court of Appeal of Louisiana. Third Circuit.
    March 24, 1965.
    Rehearing Denied April 14, 1965.
    Writ Refused June 8, 1965.
    Stafford & Pitts, by Grove Stafford, Jr., Alexandria, for defendants-appellants.
    E. L. Edwards, Jr., Many, La., for plaintiff-appellee.
    Before TATE, FRUGÉ and SAVOY, JJ-
   SAVOY, Judge.

Defendants appealed from an adverse judgment of the district court wherein the district judge allowed plaintiff benefits under the Workmen’s Compensation Act of this State.

As an employee of Sabine Furniture Company, plaintiff’s duties, among others, were to install and repair television antennas. On the afternoon of October 16, 1962, plaintiff went to his home to repair his television antenna. While on the roof, he fell and fractured a rib and was incapacitated for a period of eight weeks. The record reveals that plaintiff’s employer permitted the practice of allowing employees to repair their own antennas without charge.

The question to be decided by this Court is one of law.

Counsel for plaintiff contends that the accident occurred to plaintiff while in the course and scope of his employment with Sabine Furniture Company; whereas, defendants deny that the accident occurred in the course and scope of said employment.

The district judge held that since plaintiff was doing work that he customarily performed for the employer during regular working hours, the accident arose out of and in the course and scope of his employment.

In this Court counsel for appellants contends that the district court was in error in holding that merely because the accident occurred during regular working hours when the plaintiff was performing the same type of work he did for his employer, that he was entitled to workmen’s compensation benefits.

In the case of Alexander v. Insurance Company of the State of Pennsylvania, (La.App., 3 Cir., 1961), 131 So.2d 558, the following statements were made by this Court:

“An employee protected by the Louisiana statute is entitled to receive workmen’s compensation if disabled ‘by accident arising out of and in the course of his employment.’ LSA-R.S. 23 1031. As stated in Kern v. Southport Mill, 174 La. 432, 141 So. 19, 21, a leading case on the subject: For purposes of the workmen’s compensation act, ‘an accident occurs in the course of an employment when it takes place during the time of such employment’ and it arises out of the employment when it is ‘the result of some risk to which the employee is subjected in the course of his employment to which he would not have been subjected had he not been so employed’. In a later leading case, Edwards v. Louisiana Forestry Commission, 221 La. 818, 60 So.2d 449, our Supreme Court held an employee’s disability compensable as arising out of and in the course of his employment, even though when incurred in departing from the post of duty in order to rescue a child attacked by a large dog, because the rescue attempt ‘was reasonably within the scope of those things contemplated by his employment.’ 60 So.2d 454.”
* * * * * *
“ ‘An employee is within the course of his employment where he is doing the work that he was engaged to do or an act or service naturally related or incidental thereto, or those reasonable things expressly or impliedly authorized by his contract of employment,’ 99 C.J.S. Workmen’s Compensation § 216, p. 711. ‘Acts necessary to the life, comfort or convenience of an employee while at work, although personal to him and not technically acts of service, are incidental to the service, and an injury occurring while in the performance of such acts is compensable as “arising out of”, and “in the course of”, the employment.' 99 C.J.S. Workmen’s Compensation § 220, pp. 722-723 * * * ”

Applying the above rules laid down in the Alexander case, supra, we are of the opinion that since plaintiff was injured during regular working hours prescribed by his employer, that he is entitled to receive workmen’s compensation since he was disabled by an accident arising out of and in the course of his employment; especially in view of the fact that the type of work he was doing at the time of the accident was one of the duties which he was required to perform because of his employment with Sabine Furniture Company.

The district court granted defendant, Great American Insurance Company, the sum of $68.80 as expenses and attorney’s fees incurred by it for attending a deposition in Many, Louisiana, for which plaintiff did not appear. Plaintiff complained of this in his answer to the appeal.

We are of the opinion that LSA-C.C.P. Article 1457, relied on by the trial judge in allowing counsel for defendant $68.80 as traveling expenses in going from Alexandria to Many, Louisiana, to take the discovery deposition of plaintiff, is not applicable to the instant case because the formalities provided by said article were not complied with, and also because this article applies in the case where the party giving the notice of the intention to take the discovery deposition fails to appear. Nor were the provisions of LSA-C.C.P. Article 1451 complied with. This article deals with notice in writing of intention to take discovery depositions. Accordingly, this item will he disallowed.

For the written reasons assigned, the judgment of the district court is amended so as to disallow the defendant’s claim for $68.80, and, as amended, is affirmed at appellants’ costs.

Amended and affirmed.

On Application for Rehearing.

En Banc. Rehearing denied.

TATE, Judge

(concurring).

The plaintiff employee’s duties included the erection and repair of television antennas, the work in which he was injured. At the time of the accident he was being paid wages, and the injury occurred during normal working hours. His employer’s testimony is included by stipulation, and it is to the effect that she did not charge her employees for television work or repair in connection with the employees’ personal sets, whether such was done by the employee himself or by a fellow employee, the reason for her policy in this regard being that she considered it beneficial to her business in creating a better employee and employer relationship.

Under the circumstances, I think our majority opinion correctly holds that the employee is entitled to workmen’s compensation, even though the television antenna on which he was working when injured was his own. The employee’s right to compensation for injuries sustained while performing for wages his regular duties during his regular working hours, should not depend upon incidental circumstances such as whether the property upon which he was working for wages with his employer’s consent belonged to himself or not, or such as whether the employer did or did not charge the consumer (in this case, the employee himself) for these services. The work in which the plaintiff was injured was part of his employment duties, he was paid wages for performing the work in which injured during regular working hours, and the work in which he was injured was part of the business of his employer; the disability so resulting is compensable as arising out of a risk to which the employee is subjected because of his employment and in the course of his work and his working hours.

For these reasons, in addition to those stated in our original majority opinion, I concur in the denial of the application for rehearing.

HOOD, Judge

(dissenting).

The rule which is applicable in determining whether an accident is one “arising out of” the employment is clearly and concisely set out in the leading case of Kern v. Southport Mill, Ltd., 174 La. 432, 141 So. 19, as follows:

“In determining, therefore, whether an accident ‘arose out of’ the employment, it is necessary to consider only this: (1) Was the employee then engaged about his employer’s business and not merely pursuing his own business or pleasure; and (2) did the necessities of that employer’s business reasonably require that the employee be at the place of the accident at the time the accident occurred?”

The time, place and circumstance doctrine announced in the Kern case has been recognized and applied by appellate courts in this state on numerous occasions. We applied it recently in Rogers v. Aetna Casualty & Surety Company, La.App., 173 So.2d 231.

In the instant suit the accident occurred during the hours of plaintiff’s ¿mployment, but'it did not occur at the place of the employment and it did not occur while the employee was engaged about his employer’s business. Applying the rule set out in the Kern case, therefore, the accident cannot be said to be one “arising out of” plaintiff’s employment, because only one of the three essential requirements is persent to satisfy that test. Since the accident did not occur at the place of the employment and since the plaintiff was not engaged about his employer’s business, but was merely pursuing his own business or pleasure at the time the accident occurred, I feel that the accident clearly was not one “arising out of” the employment, and thus is not covered by the workmen’s compensation law.

For these reasons I respectfully dissent from the refusal of the majority to grant a rehearing.

CULPEPPER, J., dissents for the reasons assigned by HOOD, J.  