Gasca v. Texas Pipe Line Co.

• Decision Date: 30 June 1925
• Docket Number: 2363
• Citation: 2 La.App. 483
• Court: Court of Appeal of Louisiana — District of US
• Parties: ISABEL TRAVINO GASCA v. TEXAS PIPE LINE COMPANY

2 La.App. 483

ISABEL TRAVINO GASCA v. TEXAS PIPE LINE COMPANY

No. 2363

Court of Appeals of Louisiana, Second Circuit

June 30, 1925

Rehearing Opinion and Decree July 23, 1925.

Writ of Certiorari to Supreme Court Refused October 6, 1925.

Appeal from the Second Judicial District Court of Louisiana, Parish of Claiborne, Hon. John S. Richardson, Judge.

This is a suit brought by the wife of an employee killed by being struck by lightning. There was judgment for plaintiff and defendant appealed.

Judgment affirmed. Rehearing refused.

Judgment affirmed.

E. E Clack, Smitherman Tucker & Mason, of Shreveport, attorneys for plaintiff, appellee.

Barksdale Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendant, appellant.

REYNOLDS, J. CARVER, J. ODOM, J., dissents.

OPINION

REYNOLDS, J.

This is a suit by Mrs. Isabel Travino Gasca as the widow and for Andrique Gasca as the minor child of Gil Gasca, deceased, for compensation under the Workmen's Compensation Act for the death by lightning of Gil Gasca while in the employment of defendant in Claiborne parish, Louisiana.

Defendant denied liability.

The case was tried on an agreed statement of facts as follows:

"In this case it is agreed between counsel for plaintiff and counsel for defendant that the case be submitted on the petition of the plaintiff and the answer of the defendant and the exception of no cause of action pleaded on the following statements of facts, to-wit:

"That the Texas Pipe Line Company on the 31st day of July 1923, and before and after, engaged in laying a pipe line in Claiborne parish, Louisiana, and that the deceased, Gil Gasca, at said date and at the time of his death was employed by the said company as a laborer in laying said pipe line, his wages being $ 3.00 per day and his total weekly compensation being $ 18.00.

That the said Gil Gasca with his coworkers lived in a camp furnished them by the Texas Pipe Line Company approximately two miles from the place where the deceased was struck by lightning; that said Gil Gasca and his said co-workers were conveyed to and from the said camp to the place of employment where the accident in question happened by the said Texas Pipe Line Company; that meals were furnished by the said Texas Pipe Line Company to the said Gil Gasca and his said co-workers, said meals being brought from the camp to the place of employment and accident by the said Texas Pipe Line Company in a wagon which was stopped some seventy-five yards from the spot where they were working and the employees were given the usual noon hour off for lunch.

"That on July 31, 1923, during the noon or rest hour between twelve and one o'clock after the said Gil Gasca and his co-workers had stepped off a short distance from their work and had eaten their lunch and a short time before time for them to return to their work, a thunder storm and rain came up, and that the said Gil Gasca and two of his companions sought to take shelter from the rain under a tree near the spot where they were working; that there was no other shelter and that said tree was the most convenient shelter from the rain available for them, and that while under said tree the said Gil Gasca and his two fellow-workmen were struck by lightning and were in stantly killed.

"That the defendant company did what it could to communicate with the relatives of the deceased workmen and to comply with their requests as to disposition of the bodies, and that defendant had the body of the said Gil Gasca embalmed and shipped with an attendant to Dallas, Texas, at its own expense.

"It is agreed and admitted that plaintiff, Isabel Travino Gasca, is the surviving widow of the said Gil Gasca, deceased, and that she was living with him at the time of his death; that Andrique Gasca, aged two years and two months, is the sole and only living child of the marriage of plaintiff with Gil Gasca, deceased; that at the time of his death the plaintiff was wholly dependent upon the said Gil Gasca, deceased, for support."

On final trial there was judgment in favor of the plaintiff and defendant appeals.

OPINION

Judge John S. Richardson, who tried the case, gave the following well-considered reasons for the judgment rendered herein:

"This is a suit for compensation under the Workmen's Compensation Act of this state, brought by the surviving widow and child of one Gil Gasca, killed by lightning while working for defendant in Claiborne parish, Louisiana.

"The facts are not disputed and the case is submitted to this court upon an agreed statement of facts.

"The circumstances under which Gasca was killed were about as follows:

"In the month of July, 1923, Gil Gasca, a Mexican, was employed by defendant to work on its pipe line being built through Claiborne parish, Louisiana. The company maintained a camp about five miles from the place of the accident for the benefit of Gil Gasca and his fellow-employees and meals were sent from the camp to the place of work.

"On the particular day in question, lunch had been brought to Gil Gasca and his fellow employees by the company and distributed to them near his place of work. A few minutes prior to resumption of actual labor on the pipe line a thunder storm and rain came up and Gasca and his fellow-workmen sought shelter under a tree in the vicinity. Lightning struck the tree and killed Gasca and two others with him.

"Upon the refusal of the defendant to pay the widow and surviving child compensation for the death of their husband and father as set forth in said act, this suit was brought.

"The defense to this action is that death by lightning, under the circumstances set forth above, is not such an injury arising out of and in the course of his employment as is contemplated by Section 2 of the Workmen's Compensation Act of this state.

"Therefore, the matter to be determined by the court is whether the injury complained of was such an injury arising out of and in the course of his employment, as contemplated by Section 2 of the Workmen's Compensation Act of the State of Louisiana, or whether the injury complained of was the act of God.

"The phrase, 'out of and in the course of his employment,' which in itself appears to be clear enough, has given occasion in its interpretation to a great many decisions, both in this country and in England, for it occurs in the Workmen's Compensation Act or statute of England, which is the prototype of our American statutes on the same subject, including Act 20 of 1914. The courts have had no trouble from the various decisions in agreeing that 'out of' does not mean the same thing as 'in the course of,' but means something more; that an injury may have been received 'in the course of the employment' and yet not 'out of it.' The words, 'out of,' point to the origin or cause of the accident; the words, 'in the course of,' to the time, place and circumstances under which the accident occurs. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as conveyed by the words, 'out of,' involves the idea that the accident is in some sense due to the employment. The courts have finally determined that each case must be determined from its own facts, that the question cannot be solved by phrases; illustrative cases, therefore, will best serve as a guide to what has been considered to be the intention of the statute

"In Lawyers' Reports Annotated, 1916A, page 40, there are various English cases covering this principle of law, covering all points arising from the point being presented to the court in this matter. The report goes at length in giving various decisions. I will call attention to only a few, but refer to the entire citations as therein contained.

"In the case of Rowland vs. Wright, an English case, it was held that where a workman employed in a stable was bitten by the stable cat while eating his dinner, the court held that the injury was incidental to the employment.

"In the case of Morgan vs. Zenaida, 25 Times L. 446, the court held that an ordinary seaman who, while engaged in painting the sides of a vessel lying in a port of the Mexican coast, was seized with sunstroke, is injured by accident arising out of his employment.

"In the case of Andrew vs. Failsworth Industrial Society, 2 K. B. 32, the court held that an injury to a bricklayer on a scaffolding twenty-five feet high by lightning may be said to be caused by an accident arising out of the employment.

"Taking these decisions together with many decisions referred to in the said Lawyers' Reports Annotated, the court is of the opinion that from the English court the claims of the plaintiff in this case should be sustained.

"Now as to the jurisprudence of states other than Louisiana on questions of this nature:

"In the case of Nicholls vs. Indianapolis Abattoir Co., 92 Conn. 274, 102 A. 604, and other cases cited in 10 A. L. R. 1489, we find: 'That an injury to an employee may be said to arise in the course of his employment when it occurs within the period of his employment at the place where he reasonably may be and while he is reasonably fulfilling the duties of his employment or is engaged in something incidental to it.'

"In * * * American Lawyer's Reports the court says, in quoting from decisions therein stated, that 'even though a workman was paid by the hour the intermission for dinner could be regarded as part of the time allowed for some purpose ancillary to the work to be done; as an example eating the necessary food; it would be taking a strained view to say that the pause in the middle of the work for dinner was a break in the...