LeCompte v. Kay

• Decision Date: 01 July 1963
• Docket Number: No. 5930,5930
• Citation: 156 So.2d 75
• Parties: Barbara Thibodaux LeCOMPTE, Individually and as Natural Tutrix v. Fred KAY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 75

156 So.2d 75

Barbara Thibodaux LeCOMPTE, Individually and as Natural Tutrix v. Fred KAY et al.

No. 5930.

Court of Appeal of Louisiana, First Circuit.

July 1, 1963.

Rehearing Denied Sept. 26, 1963.

Certiorari Refused Nov. 12, 1963.

Borowski & McMahon, by Ted J. Borowski, Houma, for appellant.

O'Neal & Waitz, by A. D. O'Neal, Houma, for appellees.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

LANDRY, Judge.

Plaintiff, Barbara Thibodaux LeCompte, instituted this action, individually and as natural tutrix of her late husband's posthumous child, to recover workmen's compensation benefits allegedly due for decedent's death resulting from an accidental self-inflicted gunshot (pistol) wound purportedly occurring during the course and arising out of decedent's employment by defendant, Fred Kay, d/b/a Kay Oil Tool Company, admittedly engaged in a hazardous business. The trial court rejected plaintiff's demands for compensation death benefits on the ground the deceased employee was not acting within the scope or during the course of his employment at the time of the accident and also found the record supported appellees' alternative contention decedent's accidental injury and death was due to decedent's inebriation at the time of the fatal incident. From said adverse judgment plaintiff has appealed.

The facts giving rise to this litigation are not in dispute. There is, however, considerable difference of opinion between opposing counsel regarding the interpretation of the admitted facts as well as the law applicable thereto. Insofar as they are pertinent to the legal issues herein presented for determination, the facts may be summarized as follows:

Decedent, Errol Jean LeCompte, husband of plaintiff, Barbara Thibodaux LeCompte and father of the minor, Lisa Ann LeCompte, a young man approximately 20 years of age, was employed by defendant, Fred Kay, in the capacity of warehouseman or handy man. The nature of decedent's employment required his availability at all hours of the day and night. His duties consisted of whatever services his employer demanded including answering the telephone, receiving and filling orders, driving trucks, making deliveries, cleaning tools and supervising defendant's warehouse wherein was stored oil field equipment rented by decedent's employer. For his services decedent received a monthly salary of approximately $400.00.

Although it was not absolutely necessary to the operation of his business, defendant, Kay, owned and maintained a fishing and hunting camp on Bayou Copasaw which camp or lodge was used by defendant for the entertainment of 'clients' and 'prospective customers'. Approximately two months preceding the fatal accident, defendant commenced to repair and renovate the camp building and certain appurtenances. More precisely, defendant undertook addition of a screened porch to the rear of the existing structure and rebuilding the foundation supporting the water cistern as well as improving and renewing the water pump and piping system. The work then in progress was intermittently performed by Emmett McChargue, a construction carpenter, assisted by William Garrett, a mechanic, said workmen commuting to and from the campsite by means of a boat owned by defendant Kay and placed at their disposal. Both McChargue and Garrett were paid by the hour for services rendered in connection with the work. They kept their own time and reported to their employer the number of hours for which each was due wages.

On the morning of March 30, 1959, defendant arranged for Garrett and McChargue to resume work on the camp in order to complete the desired repairs. Upon instruction from defendant, McChargue and Garrett were to work that day, spend the night at the camp and finish their assigned tasks the following day. Decedent became aware of the impending visit to the camp and prevailed upon Garrett to request defendant to let him, decedent, accompany McChargue and Garrett to assist them in the remaining work. Defendant acceded to Garrett's intervention on behalf of decedent and dispatched LeCompte to the camp with instructions to clean up and help in the performance of the remaining work. The record reflects decedent's assignment was predicated upon his own instigation, his services were not actually required or necessary at the camp and decedent was delighted at the prospect of accompanying McChargue and Garrett. It appears equally well established, however, decedent was not sent by his employer to the camp solely for decedent's own recreation and pleasure and that whereas defendant felt he was conferring a favor upon decedent, nevertheless, decedent was expected to clean the camp and prepare meals for the workmen in order that the latter could devote their full time to performance of their respective skills.

On the afternoon of the tragedy, the three employees boarded defendant's boat at a location known as Gofsco which the record reveals to be situated approximately 25 miles (by water) from defendant's camp. Prior to leaving, the trio purchased a quantity of beer estimated at between 12 and 14 bottles. The journey to the camp involved a ride of approximately one and one-half hours duration in the course of which a portion of the beer was consumed by the three men in approximately equal portions. Upon arriving at the camp at approximately 4:30 P.M., however, neither McChargue nor Garrett felt an impelling urge to work and it was immediately decided the three companions would spend the remainder of the afternoon fishing, in which sport they indulged themselves until approximately dark or about the hour of 6:30 P.M. During the interlude devoted to the above mentioned personal pursuit the remainder of the beer was consumed.

Although there is some testimony of record to the effect defendant had previously informed McChargue and Garrett guns were not permitted at the camp except during hunting season, Garrett and decedent had each taken along a .22 caliber pistol. It is conceded decedent engaged in some target practice during the time spent fishing and also upon returning to the camp thereafter.

When darkness necessitated abandonment of the aforesaid recreational pursuits, the party returned to the camp and Garrett immediately commenced preparation of the evening meal which consisted of steak and potatoes. While Garrett was preparing supper decedent occupied his time by continuing practice shooting from the camp porch. Occasionally decedent would come inside, lie down on a bed for a short while and resume his target practice by either firing his weapon from the porch or standing in the doorway of the camp and firing at objects outside. When the meal was ready, decedent was summoned but he declined to eat and lay on his bed instead. McChargue and Garrett proceeded to eat their meal during which they were exhorted by decedent to hurry so that they could all go out and shoot nutria for amusement. At about this time McChargue proceeded to cook the few fish caught during the afternoon. Garrett rose from the table to assist McChargue in cooking the fish and while both men had their backs turned they heard a pistol shot. Upon turning around they observed LeCompte had fallen to the floor. Examination revealed LeCompte had been shot. LeCompte was immediately taken by boat to a nearby landing to seek medical aid and call an ambulance, but he was dead upon arrival. The unfortunate accident occurred at approximately 8:30 P.M.

According to long established principles of law obtaining in this state, an employer's liability for workmen's compensation benefits is predicated upon accidental injury or death arising out of and in the course of the employee's employment. LSA-R.S. 23:1031.

In the case at bar appellees maintain the accident in question did not arise out of or in the course of decedent's employment by defendant, Kay, because at the time decedent was performing no services for his employer and was engaged in a purely personal pursuit during leisure hours. Appellants maintain, however, the accident occurred during the course and arose out of decedent's employment by defendant, Kay, because, at the time of the accident, decedent was in the camp of defendant to spend the night as required by his job assignment. Further, appellants argue, considering decedent was employed on a monthly basis subject to 24 hour duty, he was in fact within the course of his employment during his entire stay on defendant's said premises. Concerning the question of whether decedent's accidental death arose out of his emplolyment by defendant, it is appellant's position, predicated upon Livingston v. Henry & Hall, La.App., 59 So.2d 892, and Edwards v. Louisiana Forestry Commission, 221 La. 818, 60 So.2d 449, an employee's injury or death arises out of his employment whenever his employment requires his presence at the place where the accident occurs at the time of its occurrence.

From the foregoing statement of appellants' position, it is readily apparent appellants regard the phrases 'arising out of' and 'in the course of' as virtually synonymous both depending, according to our understanding of the position taken, upon the requirements of the employment with respect to time and place. Conceding the terms 'arising out of' and 'in the course of' as contined in the cited statute, have at times been apparently used interchangably thereby tending, in some instances, to create the impression of similarity, nevertheless, our review of the jurisprudence reveals, for reasons hereinafter discussed, said terms have repeatedly and consistently been held to constitute separate and distinct concepts irrespective of how difficult and tenuous their respective proper application may sometimes become.

An excellent statement of the nature of the concepts of the terms 'arising out of' and 'in the course of' as used in the hereinabove cited section of our workmen's compensation law, and the problems posed by the...