Burroughs v. Maryland Cas. Co.
| Decision Date | 25 March 1958 |
| Docket Number | No. 8796,8796 |
| Citation | 102 So.2d 271 |
| Parties | John R. BURROUGHS, Plaintiff-Appellant, v. MARYLAND CASUALTY COMPANY et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Frederick J. Stewart, Shreveport, for appellant.
Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for appellees.
Plaintiff instituted this action against his former employer, the State of Louisiana, through the Department of Highways, and its compensation insurer, Maryland Casualty Company, to annul a judgment approving a workmen's compensation settlement and then to recover compensation for the maximum statutory benefits as for total and permanent disability and for penalties and attorney's fees provided for in the event of arbitrary and capricious refusal of the employer and its insurer to pay compensation, less the sum of $330 paid in the alleged settlement.
It is conceded that plaintiff is presently totally and permanently disabled to do the same work or work of a similar character as he was doing when he was allegedly injured. For resolution are two primary issues. The first is the question of causal connection between plaintiff's present condition and the injuries allegedly sustained by plaintiff while in the employ of the Department of Highways of the State of Louisiana, and the second is, if such causal connection is established, as to the validity of the settlement entered into and approved by the court April 6, 1956.
A brief re sume of the facts is indispensable to a proper understanding of the issues involved. Plaintiff was employed by the Department of Highways as a night watchman and in this capacity serviced trucks with gasoline and performed incidental and similar tasks While so employed he claims to have sustained a hernia on one side in 1952 and on the other side in 1953. Notwithstanding these hernias he continued in his employment. On December 10, 1954, he claims, while night watching on a job in DeSoto Parish, he stumbled over a stump in the darkness of the night and fell, striking his stomach on the stump. This accident, he says, aggravated the hernias he had previously sustained to such an extent that he sought medical aid, though continuing to work until January 24, 1955, when he was hospitalized by Dr. S. W. Boyce, who, the following day, repaired his hernias by surgical operation. Plaintiff's hospitalization continued for about a week following the operation when he was fitted with an abdominal belt and released. In the meantime, plaintiff continued under the care and attention of Dr. Boyce, who, from an examination of April 1, 1955, reported that plaintiff had fully recovered and was able to resume his work. Nevertheless, plaintiff was formally discharged from his employment April 14, 1955.
During May, 1955, plaintiff secured employment with H. C. Price Company, a construction concern of Hazelhurst, Mississippi, to do work of a character similar to that he had formerly performed for the Department of Highways in Louisiana. While so employed plaintiff claims to have suffered another accident under date of July 19, 1955, while straightening a cable being pulled by a vehicle in connection with the aforesaid construction work, when he slipped and fell, straddling a log. At the request of his employer, plaintiff was examined the following day by Dr. J. C. Blaine of Hazelhurst, Mississippi. Plaintiff claimed that in that accident he received skin injuries to his scrotum but later produced a small splinter which he claimed to have been retrieved from the wound. Dr. Blaine on his examination found bleeding from two points on the left side of the scrotum, one of which he said could be interpreted as a small punctured wound. Additionally, he found a swelling in the area of the right inguinal region approximately two inches wide and three inches long, which he characterized as a recurrent hernia, which, in his opinion, antedated the accident of July 19, 1955. The wound on the scrotum was located some three or four inches from the site of the inguinal hernia which had been repaired by Dr. Boyce.
By operation of August 4, 1955, Dr. Blaine repaired the recurrent hernia as found by him in his examination of July 20. This hernia was slightly above the suture line of the right inguinal hernia which had been repaired by Dr. Boyce. This suture line was found intact and in proper order. According to Dr. Blaine, the former operation was expertly and successfully performed.
The operation performed by Dr. Blaine was not so successful. The tissues did not heal and drainage continued as if from an open wound, even to the date of trial. Nevertheless, plaintiff, represented by an attorney of Mississippi, on October 10, 1955, entered into a compromise settlement of his claims, predicated upon said injuries. The settlement, which was duly approved, was for the sum of $450 in addition to $250 for medical expenses. In this connection, it may be stated, however, that, under the law of the State of Mississippi, the aggravation of a pre-existing hernia is not compensable.
Plaintiff claims that the protrusion referred to by Dr. Blaine--and he and his wife so testified--became manifested only a few days following the removal of the abdominal belt as fitted by Dr. Boyce, which he had worn for four months or more. Other than plaintiff and his wife, only two persons saw this protrusion until seen by Dr. Blaine. Neither of these persons was produced as a witness because, according to p...
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Thomas v. Indemnity Ins. Co. of North America
...hernia recurred within a short time after the original operation. Defendant cites the opinion of this court in Burroughs v. Maryland Casualty Company, La.App.1958, 102 So.2d 271, as supporting the decision of the district court in this case. Plaintiff endeavors to distinguish that from the ......
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Johnson v. American Creosote Works, Inc.
...induced him to enter into the compromise agreement. The identical contention was made in the case of Burroughs v. Maryland Casualty Co. (2nd Cir., 1958, writs denied), 102 So.2d 271, in which plaintiff's action for annulment of a compromise settlement was rejected by the court by reason of ......