Bailey v. American Cas. Co. of Reading, Pa.

• Decision Date: 19 June 1961
• Docket Number: No. 307,307
• Citation: 131 So.2d 220
• Parties: Irene BAILEY, Plaintiff and Appellant, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA et al., Defendants and Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 220

131 So.2d 220

Irene BAILEY, Plaintiff and Appellant, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA et al.,

Defendants and Appellees.

No. 307.

Court of Appeal of Louisiana, Third Circuit.

June 19, 1961.

Mitchel M. Evans, DeRidder, for plaintiff.

Plauche & Plauche, by A. L. Plauche, Lake Charles, for defendant.

Before FRUGE , HOOD and CULPEPPER, Judges.

HOOD, Judge.

This is a workmen's compensation suit instituted by Irene Bailey against Ray C. Daugherty and his workmen's compensation insurer, American Casualty Company of Reading, Pennsylvania. Plaintiff alleges that she is permanently and totally disabled as the result of injuries sustained by her during the course and scope of her employment by defendant Daugherty. After trial of the case on its merits, the trial court rendered judgment in favor of defendant rejecting plaintiff's demands, and plaintiff has appealed from that judgment.

The only questions presented on this appeal are: (1) Whether an accident occurred as alleged by plaintiff; and (2) if an accident did occur as alleged, whether plaintiff sustained disabling injuries as a result of that accident. The trial court resolved both of these questions in the negative.

The evidence establishes that plaintiff worked for defendant Daugherty as a cook in the Tri-Way Restaurant, owned and operated by said defendant in Calcasieu Parish, from January, 1960, until July 5, 1960. Her working hours during that time, and particularly during the month of May, were from 5:00 a.m. to 2:00 p.m. She was discharged from her employment on July 5, 1960, because she had failed to come to work the previous day. Some time after plaintiff had been discharged a letter was addressed to Daugherty by plaintiff's attorney, advising that plaintiff demanded compensation payments because of an injury alleged to have been sustained by her during the course of her employment on May 18, 1960.

Plaintiff testified that at about 11:00 a.m. on May 18, 1960, while she was working in defendant's restaurant, she sent a boy who also was employed to work in the kitchen to deliver some prepared lunches to nearby establishments, and while he was gone she walked out the back door of the restaurant to go to the restroom. She stated that when she returned a few minutes later, she walked through the back door of the restaurant, and immediately after passing through that door she stumbled and fell over several cases of 'soda water bottles', which she contends were placed on the floor in the passageway while she was in the restroom. It is from this alleged fall that plaintiff claims to have sustained the injuries for which she seeks compensation.

Plaintiff further testified that at the time this accident occurred, Mr. Daugherty and Kathleen Toups, a waitress also employed by defendant, were in the restaurant. She stated that immediately after she fell, Kathleen Toups came into the kitchen and plaintiff told her to inform Mr. Daugherty of the fact that she had fallen and was injured. According to plaintiff, Mr. Daugherty came into the kitchen of the restaurant shortly thereafter, and plaintiff at that time told him about the accident and informed him that she was injured as a result of the fall. She also states that later that day she related the circumstances of the accident to Willie Rochester, another employee in the restaurant, who was scheduled to be at work at 2:00 p.m. but who for some reason had come to work about noon on that day. She testified that she asked Rochester to take over her duties in the kitchen so she could go home early.

Plaintiff states that immediately after the alleged accident occurred she suffered pain in her abdomen, and that continuously since that time she has suffered abdominal pain and pain in the low back area. She says she told Mr. Daugherty about this pain and requested that he give her some money so she could go to the doctor, but that he refused her request because 'he said he wasn't making any money'.

Willie Rochester testified that he came to work about noon one day, and that shortly after his arrival plaintiff asked him to take over for her in the kitchen so she could go home early. He said she told him that she had hurt herself and was not feeling well. He stated, however, that plaintiff did not explain to him how she had injured herself or the nature of the injury, and he was uncertain as to when, even as to the month, his conversation with plaintiff took place.

Mary Minor, plaintiff's sister, with whom plaintiff lives and who helps to support four of plaintiff's five minor children, testified that she discussed plaintiff's accident with Mr. Daugherty shortly after it occurred and that she asked him to send plaintiff to the doctor, but that Mr. Daugherty refused, stating that 'there is nothing wrong with Irene.'

Defendant Daugherty emphatically denies that plaintiff ever reported to him that she had had an accident or that she had sustained an injury during the course of her employment. He testified that neither plaintiff nor Kathleen Toups ever discussed any such accident or injury with him, and that no mention of the alleged accident or injury was every made to him by plaintiff's sister, Mary Minor, or by Willie Rochester. He stated that the first information he received of the alleged accident and injury was in a letter addressed to him by plaintiff's attorney some time after plaintiff had been discharged from her employment. He testified that if plaintiff had reported an accident or injury to him, he would not have refused to send her to a doctor, because he carried insurance for that purpose.

Kathleen...