Burk v. Gulf Refining Co. of Louisiana

• Decision Date: 11 December 1936
• Docket Number: 5329
• Court: Court of Appeal of Louisiana — District of US
• Parties: BURK v. GULF REFINING CO. OF LOUISIANA

171 So. 135

BURK v. GULF REFINING CO. OF LOUISIANA

No. 5329

Court of Appeal of Louisiana, Second Circuit.

December 11, 1936

Fred E. Greer and J. S. Atkinson, both of Shreveport, for appellant.

Harry V. Booth, of Shreveport, for appellee.

OPINION

TALIAFERRO Judge.

Plaintiff sues for compensation alleged to be due him by defendant, his employer, because of an accident which he says befell him on August 2, 1935, while performing the duties of his employment. He alleges that the accident occurred in this manner: That at about the hour of 2:30 p. m., on said date he transported by means of a two-wheel hand truck from some place on defendant's premises into its machine shop an iron shaft weighing about 500 pounds; that the truck's wheels rolled into a depression or hole in the concrete floor of the shop, causing it to careen, with the result that the shaft slid over to its right, striking his right arm, and "suddenly and forcefully throwing him to the floor, causing a severe jerk, strain and sprain to his back." He further alleges that immediately after the accident he retired to a rest room close by, where he remained for a brief period, and later in the afternoon returned to his home, but "was unable to return to work the next morning or at any time since"; that his employer was immediately notified of the accident; that the clerk of the machine shop where he was injured executed an accident report covering the facts of the accident, forwarded same to defendant's office and, upon the disclosures of this report, defendant recognized that the accident happened and injuries followed as related by him, and paid to him compensation at the rate of $ 20 per week until December 23, 1935. The injuries of which plaintiff complains, allegedly due to the accident, are declared in detail in the petition. He contends that these injuries totally and permanently disable him from performing manual labor.

Defendant denies that plaintiff suffered an accident while working for it, and therefore disclaims liability for payment of compensation to him. It admits that it made 19 payments of $ 20 each to him under the erroneous belief that he had had an accident as claimed by him, but, having learned that no such accident occurred, discontinued the payments. Payment of medical and doctors' bills, totaling $ 137.50, for plaintiff's account while laboring under the same error, is also admitted.

The trial judge gave judgment for plaintiff as by him prayed for. Defendant has prosecuted this appeal.

Plaintiff alleged and testified that he experienced the accident complained of in defendant's machine shop at about 2:30 p. m., August 2, 1935. There is no equivocation on his part as to this being the correct date. The record before us establishes beyond the peradventure of a doubt that no such accident occurred at said place or on said date. Having unqualifiedly planted his case on this date, he is bound by his allegations, and defendant was required only to defend on this basis. We are convinced, beyond this, that plaintiff suffered no accident in the month of August, 1935, while in defendant's employ. He did carry the 417-pound shaft by truck into the machine shop. He testified that a co-worker by the name of Thomas assisted him until within a few feet of the door, and that he alone pulled the truck by its handles until the right wheel entered the depression, and jerked him down on his right knee; that he retired to the rest room for a few minutes and then returned home; that he undressed, with his wife's assistance, went to bed, and remained there for three days. He also testified that he called a co-worker, named Fish, for assistance as he went down, but that V. N. Cobb, the machinist, actually helped him to arise. He says Fish laughed at him as he arose. He also testified that he returned to his employment on the fourth day after the accident, but was unable to perform his regular duties, and for the next seven days, in his own words, he "stayed out of the way," by which he implies that he "hung around," did nothing, and drew pay. During all this time he did not report to his superiors that an accident had befallen him. He did not return to work after the end of the seven-day period because, as he says, he was unable to work, yet he did not then make known to any one of his co-workers that his disability was due to an accident. Fish and Cobb and a fellow workman, named Rice, positively contradict plaintiff's testimony about the accident. Fish says he saw him bending over slightly, but denies he was jerked to the floor. Cobb testified that plaintiff pulled the truck some eight or nine feet into the shop room and called for assistance to remove the shaft therefrom, and that he (Cobb) took hold of the shaft and held it erect as the truck was pulled away by plaintiff. Rice's testimony is practically the same as Cobb's. It seems passing strange that plaintiff would have left the truck and shaft so close to the door, as he says, without requesting some one to finish his task, in view of the...