Arrington v. Singer Sewing Mach. Co.

• Decision Date: 28 October 1943
• Docket Number: 6647.
• Citation: 16 So.2d 145
• Court: Court of Appeal of Louisiana — District of US
• Parties: ARRINGTON v. SINGER SEWING MACH. CO.

16 So.2d 145

ARRINGTON v. SINGER SEWING MACH. CO.

No. 6647.

Court of Appeals of Louisiana, Second Circuit

October 28, 1943

Rehearing Denied Dec. 2, 1943.

Certiorari Denied Jan. 3, 1944.

T W. Arrington, of Tulsa, Okl., and Albert P. Garland, of Shreveport, for appellant.

O W. & B. D. Bullock, of Shreveport, for appellee.

TALIAFERRO Judge.

Plaintiff, the widow of Thomas A. Arrington, deceased, brings this suit against the Singer Sewing Machine Company, employer of deceased, to recover workmen's compensation at the rate of $19.50 per week for three hundred weeks, and medical and funeral expenses.

It is alleged that during the forenoon of March 25, 1941, the deceased, while performing the duties of his employment, sustained an accident from the effects of which he died the third day thereafter. After alleging that deceased stopped his automobile on a road, some two hundred yards from the residence of George Gipson, a customer, whom he desired to see, and then climbing through a barbed wire fence, plaintiff further alleged: " * * * that in returning, after seeing said customer * * * and while climbing and crawling through the said barbed wire fence to return to his car * * * deceased accidentally became hung on said barbed wire fence, which caused him to stumble, strain, fall, swing and trip in such a manner that serious and grievous injury resulted; that said accidental injuries included the rupture, tearing and injury to certain internal organs and tissues, and particularly to the organ or tissue known as the mesentery, and to blood vessels of a vital nature which resulted in the death of deceased, through internal bleeding or hemorrhaging * * * ".

Defendant resisted the suit in the court below and here on these grounds, to-wit:

That deceased did not experience an accident while discharging the duties of his employment in the manner nor at the time and place alleged upon nor otherwise; but, if it should be found and held that the proof warrants the conclusion that deceased suffered an accident at the time and place alleged, there was no causal connection whatever between the accident and his death; that the accident did not to any extent contribute to his death.

The case was tried before Judge J. H. Stephens of the First Judicial District, but was decided by Judge Enos C. McClendon of the Third Judicial District, who, under assignment of the Supreme Court during Judge Stephens' absence on account of illness, acted in his place.

Plaintiff's demand was rejected and her suit dismissed. She prosecutes this appeal.

Questions of fact only are involved. Appellants stress the fact that the judge who decided the case did not see and hear the witnesses as they testified, and from this it is argued that the usual weight to be accredited to a judge's conclusions on questions of fact should not be accorded in this instance. We have given the case our best attention and consideration, and have not allowed the lower court's judgment to have more influence upon us than it justly deserves.

The deceased lived in the southern portion of the City of Shreveport. He had been in defendant's employ for over thirty years. He left home about eight o'clock the morning of March 25th, telling his wife he was going into the country to make collections and might not be home for the midday meal. He called on Mr. Gipson who lived several miles below the City, at about the hour of 9:30 o'clock in the hope of making a collection. To reach Gipson's home, the deceased, after parking his car on the road, climbed a barbed wire fence of four strands, which crossed a well-beaten path that led directly to Gipson's home. On one side of the path the wires were affixed to a post and on the other side to a tree. The intervening distance is about ten feet. The strands are from twelve to eighteen inches apart and sagged some from use.

The alleged accident occurred on the return trip from Gipson's residence. To get through the fence a right-handed man (as was the deceased) would depress with his hand or hands the second strand from the ground. This gave clearance of about twenty inches. While the wire was thus depressed the right leg would be lifted over while the weight of the body rested upon the left leg and to some extent upon the hand or hands holding the wire. This finished, the person would be astride the wire. The left leg would then be lifted over the wire while the right leg and the hand or hands on the wire sustained the body's weight.

There were no witnesses to the alleged accident. All we know about it is what the deceased told his wife on his return home that afternoon. This was purely hearsay, but was admissible under the Employers' Liability Act No. 20 of 1914, Sec. 18, subd. 4, as amended, Act No. 85 of 1926, which reads: "The Judge shall not be bound by technical rules of evidence or by technical rules or (of) procedure other than as herein provided, but all findings of the fact must be based upon competent evidence * * *."

This law provides the basis for an exception to the general rule barring hearsay testimony.

Following the alleged accident Mr. Arrington continued to contact customers to make collections. For nearly two hours immediately thereafter the record does not reveal his whereabouts. About 11:15 o'clock he made a social call at the store of his close friend, Mr. J. C. Webb, some five and one-half miles from the Gipson home and seven miles from deceased's residence. While there Mr. Webb complimented the suit of clothes deceased was wearing (which was a present to him from defendant) and he remarked that he had cut a slit in one of the cuffs of the trousers while getting through a wire fence, but Mr. Webb could not recall which leg the slit was in, although he saw it. At this time the deceased's physical appearance and actions were normal. He made no complaint of pain nor did he comment on tearing the trousers beyond what is said above, other than to state that he had previously torn the pants above one of the pockets at defendant's storeroom. This tear was also observed by Mr. Webb.

The deceased next appeared at the store of Mr. E. L. Ray, south of Shreveport, between 1:30 and 2 o'clock and made a collection on account from him. The two talked for about twenty minutes. The deceased made no complaint concerning his physical condition nor did he refer to the tearing of his trousers. Mr. Ray said his appearance was normal; his own words being: "Exactly as usual, I thought."

The last call made by the deceased that day was at the residence of Mrs. E. A. Connell, six miles north of Shreveport. To her he "looked as usual". Prior to making this call he 'phoned Mrs. Connell to ask if she was in a position to make the monthly payment on her account. She was unable to fix the time of the call, but it is definitely proven that this call was subsequent to that made on Ray.

It is evident from the record that in point of time there is error on the part of some of the witnesses. Mr. Ray is quite certain the deceased was at his place after 1:30 o'clock but adds that deceased told him he would next call on a customer on the Robinson Place. Gipson lives on this place and he testified that Arrington came to his home at about the hour of 9:30 o'clock A. M. Mr. Webb is equally certain the deceased was at his store at around 11:15 o'clock A. M. It is quite certain he was there after seeing Gipson. To add to this confusion as regards the time factor, plaintiff's recollection is that the deceased arrived back home at about 1:30 o'clock. More than a year elapsed between the death of Mr....