Brown v. State Mut. Life Ins. Co. of America

• Decision Date: 30 August 1979
• Docket Number: No. 7157,7157
• Citation: 377 So.2d 355
• Parties: Cleola BROWN, Plaintiff-Appellant, v. STATE MUTUAL LIFE INSURANCE COMPANY OF AMERICA, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 355

377 So.2d 355

Cleola BROWN, Plaintiff-Appellant, v. STATE MUTUAL LIFE INSURANCE COMPANY OF AMERICA, Defendant-Appellee.

No. 7157.

Court of Appeal of Louisiana, Third Circuit.

Aug. 30, 1979.

On Rehearing Nov. 12, 1979.

Neblett, Weeks & Neblett, B. Gerald Weeks, Alexandria, for plaintiff-appellant.

Watson, Murchison, Crews, Arthur & Corkern, R. Raymond Arthur, Natchitoches, for defendant-appellee.

Before SWIFT, STOKER and DOUCET, JJ.

STOKER, Judge.

This is a suit to collect insurance benefits based on the alleged accidental death of the insured, Johnny R. Brown. His widow, Cleola Brown, is the plaintiff-appellant. The policy sued on is an accidental injury death policy. ¹ The sole question presented by the case and this appeal is: Did the plaintiff prove that an accident caused her insured husband's death? The trial court held that plaintiff-appellant did not prove this essential fact. We reverse.

The decedent's death did not occur on the date of his alleged injury. There is no question of his death and that it resulted from infection of his left foot which developed into gangrene. Plaintiff-appellant claims the infection was caused by an accident in which her deceased husband stepped on a crate and stuck a staple in his foot. There was only one witness to the alleged incident. This was the son of plaintiff, Clinton Johnson. The defendant-appellee insurer denies the incident took place. It urges that Johnny R. Brown was a diabetic and that he suffered circulatory and foot infection problems through the years. The defense to the action urged by defendant, State Mutual Life Insurance Company of America ("State Mutual") is that plaintiff failed to prove that an accident occurred.

Alternatively, State Mutual contends that the death did not result directly and independently of any other cause. ²

The widow's claim rests entirely on the import and effect given to the testimony of her son. The trial court rejected the son's testimony. It found that plaintiff did not show that Brown's death was the result of an accident. The trial court remarked as follows:

The evidence offered by the plaintiff fails in its quality or weight to tip the scales; therefore the plaintiff's case must fall for lack of preponderance of evidence that an accident happened.

Undisputed Facts.

From a medical standpoint the deceased, Johnny R. Brown, suffered exceptionally from diabetes. For some time prior to the Summer of 1976 he continually consulted Dr. Raymond R. Utke of Leesville for his condition. Generally, it manifested itself in foot infection. Brown was employed as a Vernon Parish school bus driver; he was also employed by the Army and Air Force Exchange System at Ft. Polk, Louisiana. In the latter employment, Brown drove a truck for what was known as the Running Chef Concessionaire.

Brown consulted Dr. Utke on June 26, 1976, for an infection of the bottom of the left foot. On a return visit on July 2, 1976, the foot was much better and had apparently healed; however, on July 23, 1976, Brown returned and Dr. Utke was alarmed by the condition of the foot. By deposition Dr. Utke testified that on July 23, "he had one of the worse infections I've ever seen." His record shows no history of trauma. Dr. Utke was so concerned that he immediately referred Brown to Dr. William H. Heath of Alexandria and Brown was hospitalized. In taking a history from Brown, Mrs. Brown, the plaintiff, related that infection had begun some three weeks prior to that time when Brown stuck a staple in his foot.

Dr. Heath was unable to control the infection because of the diabetic problem and the infection went into Brown's lower leg. Ultimately, the left leg was amputated above the knee in an effort to avoid the progress of gangrene. This occurred August 4, 1976. Nevertheless, Brown died on September 6, 1976.

Dr. Utke's testimony was that Brown never gave him any history of trauma as the cause of the infection. On the other hand, he could only say his record did not show any notation of trauma. He admitted that Brown was a "poor historian" in giving facts. Dr. Heath testified that the incident concerning the stepping on the staple and injury to Brown's foot was emphatically mentioned to him by Mrs. Brown in Brown's presence when he took his history. Dr. Heath observed a collar button type abscess between the great and second toe which went all the way through from top to bottom. What he found was medically consistent with a nail puncture wound of the left foot. The medical testimony appears to establish that in patients suffering from severe cases of diabetes, trauma is not necessary to cause infection. In any event, exceptional trauma is not necessary as infection may result from a slight scratch or from the cutting of one's toe nails.

Disputed Facts.

Plaintiff alleged in her petition that her deceased husband sustained an accidental puncture of his left foot on June 26, 1976, which caused infection which progressed toward gangrene and eventually caused his death. Defendants urge this was impossible, because on that date he saw Dr. Utke, and the condition of his foot was such that it could not have resulted from trauma that day. Moreover, the fact that Dr. Utke recorded no trauma in connection with his history shows according to defendants, that the infection of June 26, 1976, did not result from a nail or staple puncturing the deceased's foot that day.

As stated above, Clinton Johnson, was the sole witness to the foot puncturing incident. Johnson is plaintiff's son and was the step-son of the deceased. He testified that on the date of the incident he assisted Johnny R. Brown and helped clean out his Running Chef truck at North Ft. Polk. Johnson stated Brown stepped from the truck and his left foot landed on a dilapidated crate. In the process, Brown stuck a metal object, a long thin staple used in holding the wooden crate together, in his left foot between the great toe and second toe.

After the evidence was taken, plaintiff took the position that her allegation that the incident and injury occurred on June 26, 1976, was not binding, because that allegation had stated the event occurred "on or about June 26, 1976". Plaintiff-appellant then took the position that the incident happened after July 2, 1976, subsequent to the time of the second visit to Dr. Utke when the condition complained of on June 26, 1976, had cleared up.

Trial Court's Holding.

This case was tried on July 18, 1978, approximately two years after the time of the alleged accident. The trial court found Clinton Johnson's testimony unworthy of belief. The trial court also pointed out that plaintiff-appellee, Cleola Brown, filed a statement of claim in which she stated her husband's injury happened three weeks before his death. In written reasons for judgment the trial court set forth the following reasons for its holding:

The Court notes these things that are in evidence. Dr. Rodney R. Utke was the family physician who treated decedent over a period of several years for a problem associated with diabetes including a hospitalization in June of 1975 with an infected left foot. On the date alleged that this accident occurred, June 26, 1976 Dr. Utke treated Brown for an infected bottom left foot. Dr. Utke again saw decedent on July 2, 1976 when it appeared that the infection had improved but when he examined decedent on July 23, 1976 the infection had worsened. Dr. Utke obtained no medical history of trauma on these occasions. The decedent was referred by Dr. Utke to (Dr. William H. Heath in Alexandria.) The history relating to the nail being stepped on was given to Dr. Heath by decedent's wife. The only witness to the alleged accident was the step-son of Johnny Ray Brown who is named Clinton Charles Johnson. Clinton Charles Johnson related the events of the day which included the operation of a school bus on that date and the cleaning of decedent's truck at Fort Polk on the date of the accident. Clinton Charles Johnson was not sure of the date of the accident, not even the year. He did say that it was in the summer time and that he thought it was in June. Finley Stephen Stanley, Supervisor of the Vernon Parish School Bus Routes, stated that school was out on May 28, 1976, further that there were no school buses running to public schools on June 26, 1976. He further stated that there was no inspection of school buses for Vernon Parish schools in June.

Concerning the Fort Polk Exchange and the Post Exchange and Johnny R. Brown's relationship to "Running Chef", there was a rule that every minor accident had to be reported and that Johnny R. Brown reported no accident during the period under consideration. The Court notes a great disparity between the date of June 26, 1976 and 3 weeks before death on September 6, 1976. If the accident occurred 3 weeks before death then the accident occurred in August and not June nor July.

If in fact Johnny R. Brown went to see Dr. Utke on June 26, 1976 he did not do all of the things that his step-son testified he did. If in fact the Vernon Parish public school buses were not running on June 26, 1976 then the testimony of Clinton Charles Johnson concerning school bus operation on the date of the accident is incorrect. If the accident which is alleged in the petition to have occurred on June 26, 1976 did not happen on that date(,) then when did the accident happen? Clinton Charles Johnson failed to even be able to tell us the year. The evidence offered by the plaintiff fails in its quality or weight to tip the scales; therefore the plaintiff's case must fall for a lack of preponderance of evidence that an accident happened.

Determination of Manifest Error.

In opposition to the trial court's holding, the plaintiff-appellee urges that the trial court has been unjustifiably harsh in judging the testimony of the single eyewitness concerning dates of occurrences two years after they happened. Counsel complains on behalf of plaintiff that ...