Brown v. Benton Creosoting Co.

• Decision Date: 26 October 1962
• Docket Number: No. 9762,9762
• Citation: 147 So.2d 89
• Parties: Roosevelt BROWN, Jr., Plaintiff-Appellant, v. BENTON CREOSOTING CO., Inc., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 89

147 So.2d 89

Roosevelt BROWN, Jr., Plaintiff-Appellant, v. BENTON CREOSOTING CO., Inc., et al., Defendants-Appellees.

No. 9762.

Court of Appeal of Louisiana, Second Circuit.

Oct. 26, 1962.

Rehearing Denied Nov. 29, 1962.

Certiorari Denied Jan. 14, 1963.

Smallenberger, Eatman & Tooke, Brown & O'Hearn, Shreveport, for appellant.

Cook, Clark, Egan, Yancey & King, Shreveport, for appellees.

Before HARDY, AYRES and BOLIN, JJ.

AYRES, Judge.

This is an action under the workmen's compensation statute, LSA-R.S. 23:1021 et seq., wherein plaintiff seeks to recover the benefits as therein provided for total and permanent disability, together with penalties and attorney's fees. Recovery is sought not only against Benton Creosoting Co., Inc., as plaintiff's immediate employer, but against Kennedy Sawmills, Inc., as the principal of Benton Creosoting Co., Inc., or as its alter ego.

After trial, the court reached the conclusion that plaintiff had not sustained his demands as to his disability by a preponderance of the evidence, and, accordingly, plaintiff's demands were dismissed. From the judgment, plaintiff appealed.

The issues, factual in character, relate (1) to the nature of plaintiff's injuries and the extent and duration of disability resulting therefrom, and (2) to the liability of Kennedy Sawmills, Inc., because of its relationship to the Benton Creosoting Co., Inc.

Brief reference may be first made to the nature of plaintiff's employment and the manner of the occurrence of the accident in which he was allegedly injured. Plaintiff was employed as a 'steamer' and as a 'treater' of wood products, such as poles piling, and other timbers, in the process of creosoting them. As a 'steamer,' plaintiff's duties were to 'fire' a marine-type boiler with natural gas, to maintain pressure therein at approximately 180 pounds, and to operate the necessary valves and machinery in connection therewith in drying the materials to be creosoted. As a 'treater,' plaintiff was charged with the duty of pressure-treating the materials with creosote. In the instant case, a cylinder 92 feet in length and six feet in diameter was used in the process. Materials were placed in the cylinder with approximately 15,000 pounds of creosote. The hatch, or door, at each end of the cylinder was then closed and sealed airtight. Through a manipulation of the valves, an air pressure of 60 pounds was developed inside the cylinder in order to pressure-treat the materials with creosote. Plaintiff's duties required the operation of boilers, valves, and machinery.

Plaintiff's injuries were sustained while performing his duties as a 'steamer.' While making an inspection for a leak in the boiler, a blowout occurred and plaintiff was burned by a blast of the burning gas.

Following the accident, plaintiff was carried to the clinic of Dr. S. G. Carrington, a general practitioner, in Benton, where, from a casual observation, it was ascertained that plaintiff had sustained fire burns to his face, shoulder, and hand. Sedatives and a narcotic were administered for the relief of pain, and, to soothe the burns, an ointment was applied. A more detailed examination was made the following day whereby it was discovered that plaintiff was, indeed, severely burned. An examination, at that time, revealed he had sustained first- and second-degree burns to his left arm, face, forehead, left ear, eyelids and lashes, and nose. Numerous blisters had developed. The burned areas on the left of plaintiff's forearm and on the upper arm were characterized by the doctor as large and raw.

In the meantime, plaintiff has developed a mild conjunctivities in his eyes from the flash of the fire. For the treatment of this injury, plaintiff was referded to Dr. Louis A. Breffeilh, an ophthalmologist, whose examination confirmed Dr. Carrington's diagnosis.

Plaintiff continued under the care and treatment of Dr. Carrington from the date of the accident, May 12, 1960, until June 9, 1960. On the latter date, an examination revealed that the burns had healed, in the doctor's opinion, to such an extent that plaintiff could return to work. The doctor, however, was of the further opinion that plaintiff would experience, for an indeterminable period of time, sensitiveness or intolerance to sunlight and heat, which intolerance would cause discomfort. The use of a long-sleeved shirt as a shield was suggested.

Plaintiff was also examined by Dr. A. A. Herold, Jr., a general practitioner, on July 18, 1960, and May 1, 1961. On the occasion of his first examination, Dr. Herold ascertained that plaintiff had sustained severe burns characterized as second- or third-degree burns. Due to intolerance to heat experienced after such burns, the doctor was of the opinion plaintiff could not return to work. On the occasion of his second examination, Dr. Herold continued in the opinion that, although plaintiff had undergone considerable improvement through the healing process, he, nevertheless, was still unable to return to work. Due to the presence of intermingled nerve fibers in the scar tissue, Dr. Herold was of the further opinion that plaintiff would not be able to return to his work without extensive surgical procedure, and that his disability was probably permanent.

Dr. Lewell C. Butler, Jr., plastic surgeon, also examined plaintiff on the dates of July 26, 1960, and May 1, 1961. On those occasions, plaintiff's principal complaint was sensitivensess to the burned areas and intolerance to heat, particularly in those areas which has been deeply burned. Such intolerance was described as characteristic of deep burns and of scarring in the healing process. On the occasion of the first of the examinations, Dr. Butler anticipated that surgery would be necessary before plaintiff would recover sufficiently to return to work. Later, however, after considering the risk involved in surgery, the doctor reached the conclusion that plaintiff should accept a moderate degree of disability rather than submit to surgery.

With reference to the permanency of plaintiff's condition. Dr. Butler testified:

'* * * the exact degree to which this heat intolerance will subside is very difficult to foresee. It may be permanent, and it may subside; and there appears to be no way of knowing which will happen.'

From our review and appreciation of the testimony of the medical experts, and particularly that to which we have referred, plaintiff was unable, at the time of trial, because of the burns sustained by him, to return to and discharge the duties of his employment. The probable duration of such disability was not established. Hence, no definite conclusion can be reached as to when he may be able to return to his work and discharge his duties. This conclusion is predicated on a finding that, for some indefinite period of time, plaintiff will experience pain and discomfort because of sensitiveness and intolerance to heat and sunlight.

The general rule applicable to the aforesaid state of facts is that, where a claimant for workmen's compensation is shown to be totally disabled at the time of trial and the evidence is insufficient to determine the duration of disability, compensation should be awarded for the maximum period of time prescribed for permanent, total disability; as the courts will not indulge in conjecture or attempt to fix the number of weeks for which compensation shall be payable where it appears the injury will produce disability for an extended and indefinite period of time. Moore v. Great American Indemnity Company, La.App.2d Cir., 1958, 106 So.2d 771, 775; Powell v. Travelers Insurance Company, La.App.2d Cir., 1960, 117 So.2d 610, 616 (writs denied); Moody v. Red Ball Motor Freight, Inc., La.App.2d Cir., 1960, 119 So.2d 644, 645, 646 (writs denied).

Remaining for consideration is the question of liability, vel non, of Kennedy Sawmills, Inc., for workmen's compensation as claimed by Roosevelt Brown, Jr. The basis of plaintiff's claim in this regard is twofold: (1) that there existed a relationship of principal and agency between Kennedy Sawmills, Inc., and Benton Creosoting Co., Inc., and (2) that the former was merely and simply an alter ego of the other. These issues are factual in character and must be determined from the facts established in the record.

A history of Benton Creosoting Co., Inc., was recounted by a number of witnesses. A partnership under the name of Benton Creosoting Co. was organized in 1946 by D. E. Burchett and Max Henderson. During the course of its operation, the partners did business with Kennedy Sawmills, Inc., a wholesale lumber dealer. The products sold included creosoted products of the type manufactured by the partnership. Also, during the course of its operations, the partnership borrowed substantial amounts of money and obtained advances from Kennedy Sawmills, Inc. The indebtedness incurred was secured by mortgage on the assets of the partnership.

Henderson died ...