Cutno v. Neeb Kearney & Co.

• Citation: 103 So.2d 494
• Decision Date: 09 June 1958
• Docket Number: No. 21146,21146
• Court: Court of Appeal of Louisiana — District of US
• Parties: Daniel CUTNO v. NEEB KEARNEY & COMPANY, Inc., Fidelity & Casualty Company of New York.

Page 494

103 So.2d 494

Daniel CUTNO v. NEEB KEARNEY & COMPANY, Inc., Fidelity & Casualty Company of New York.

No. 21146.

Court of Appeal of Louisiana, Orleans.

June 9, 1958.

Rehearing Denied June 27, 1958.

Writ of Certiorari Granted Dec. 15, 1958.

Edmond E. Talbot, Jr., and Lloyd Cyril Melancon, New Orleans, for plaintiff-appellant.

Christovich & Kearney, A. R. Christrovich, Jr., New Orleans, for defendants-appellees.

LOUIS H. YARRUT, Judge ad hoc.

Plaintiff sues his employer and its compensation insurer for total and permanent disability as a result of an alleged accident which occurred on or about July 18, 1956, pursuant to the provisions of the Louisiana Workmen's Compensation Act, LSA-R.S. 23:1021 et seq., and LSA-R.S. 22:655.

The employer, Neeb Kearney & Company, Inc., will be referred to herein as the employer and the Fidelity & Casualty Company of New York as the insurer.

Employer is engaged on the river front in loading and unloading maritime cargoes for shipment and transhipment. Plaintiff was employed as a common laborer. He contends that, while lifting a 100-pound sack of flour, he suffered pains and was unable to continue work, went home shortly thereafter, and was taken to Charity Hospital, where a surgical operation disclosed a perforated duodenal ulcer. Defendants resist the claims on three grounds:

(1) That plaintiff did not suffer an accident while performing the duties of his employment;

(2) That, if plaintiff did suffer an accident, the employer was not notified within six months but more than one year thereafter;

(3) That, if plaintiff did suffer such an accident, he has fully recovered and, if now unable to do similar work, the disability is without connection with or related to his employment.

In rendering judgment for defendant, the District Judge gave as his reasons:

'From a medical standpoint, the Court is not convinced that a traumatic perforation of an ulcer is impossible. However, from the evidence adduced in connection with the failure of the plaintiff to notify his employer of the alleged accident and the testimony of the witnesses regarding the alleged occurrence, the Court is convinced that Daniel Cutno did not suffer a perforation of a pre-existing ulcer during the course and scope of his employment or under circumstances which would allow a compensation award. The Court is further of the opinion that from the testimony of the plaintiff himself, as well as of others, any disability which he may have is one which stems from natural causes and not from injury while performing his work for the defendant employer.

'However, if it were conceded that a compensable accident occurred (which the Court does not hold) then the Court must state that from the more trustworthy evidence in the record it must conclude that the 'notice' contemplated under the act was not given to the employer, Neeb Kearney & Company, Inc., or its agents.'

With reference to the first issue, to-wit: whether the employee suffered an accident while in the course of his employment it must first be conceded that the law is very clear that, in the course of employment, any injury suffered initially, or the aggravation of a pre-existing injury, is compensable under the Workmen's Compensation Law. The facts on this phase while somewhat disputed, medically and otherwise, are for the most part primarily these: Plaintiff had a previous history of a perforated ulcer and heart trouble for which he had been hospitalized. On the day in question he was working in a gang, loading and unloading freight, as a common laborer. He testified that, while lifting a heavy sack of flour, he suffered pain. Shortly thereafter, he went home in a friend's automobile, driven by himself, and while at home suffered so much that he had to be rushed to the Charity Hospital that afternoon. Surgery disclosed a perforated duodenal ulcer.

Members of his work gang (who were related or life-long friends) testified that plaintiff complained he suffered pain and was unable to work. His principal witness was one McCary, who admitted having signed a statement reading as follows:

'On or about July 18, 1956, which was a Wednesday, I was working in foreman 'Rodney' gang at Poydras St. Wharf, Sections 28 to 16 unloading 100 pound bags of flour from a boxcar into a handtruck and placing them on the wharf. Daniel Cutno who I call 'Joe' and I were working in the same car on the same end. His wife is my first cousin. Only one man lifts the bag of flour. About 10:00 A.M. I noticed Joe had slowed down for about five minutes and I asked him what was wrong and he told me he had a pain in his stomach. I told him to take it easy for awhile as I thought he was getting overheated. He went to the wharf and got a drink of water and returned shortly. He kept working slow and about 11:00 A.M. he told me his stomach was hurting him more and said he was going home. He left about 11:30 A.M. and only got about a block away from his house in Willie Irvin's car which he borrowed. I was told the next morning about 8:00 A.M. that he was operated on. I told Mr. Rodney, the foreman, that morning, Thursday, that Joe was operated on as he was feeling sick while at work the day before. The next day, Friday, Mr. Rodney asked me how Joe was coming along. Joe did not report his illness to Mr. Rodney. Ernest Cutno, his nephew, told me that Joe was operated on for bursted appendix and an ulcer. Joe had ulcers before he took sick on the job but never complained of an appendix attack. Joe and I were raised together in Hilleryville, La. near Burnside, La. I know he was not drinking before the took sick. Joe has not worked since he was operated on.

'I have read the above statement of one and one-half pages and it is true and correct.

'(Signed) B. McCary, Jr.'

McCary, while on the stand, unsuccessfully sought to recant and repudiate his written statement, by means of one excuse or another, principally pretended ignorance.

Dr. Louis Ochs, Jr., a Gastro-Enterologist, testified for the plaintiff and Dr. Mayo Emory testified for the defendants.

Both doctors concede that recognized medical authorities agree that 'the perforation of a duodenal ulcer may be precipitated by staining at stool, coughing, vomiting or other vigorous exertion.'

Dr. Ochs, though opinion that the perforation was due to lifting of the sack of flour, examined plaintiff for the first time a year after the injury and based his opinion solely on what plaintiff told him. Dr. Emory testified he could not state positively that the lifting of the sack caused the perforation because the perforation could just as well have been coincidental with natural erosion of the tissue. In fact, statistics prove that more ulcers are perforated while the patient is inactive, than when he is active.

In Cordray v. Standard Oil Co. of Louisiana, 9 La.App. 458, 121 So. 220, 221, the facts were that the claimant testified he suffered a perforation and then descended a 64-foot ladder, walked over and took a drink of water, and returned to the derrick 'before beginning to get sick.' After reviewing the medical evidence at great length, the Court decided in favor of the defendant on the primary basis that the perforation of a duodenal ulcer would cause pain and suffering which would prevent the activities engaged in by the man after the incident complained of. The Court said:

'* * * On the contrary, in view of the testimony of the physicians that duodenal ulcer ruptures by the ulcer eating through the tissue or the sloughing off of the tissue of the duodenum in the natural progress of the ulcer, as well as by strain, and that intense pain and total disability instantaneously follow, we conclude that the cause of the rupture was not strain from the lifting of the sheave wheel or a slip of petitioner's foot or a jerk of the sheave wheel, as contended for by plaintiff, but to the sloughing off of the tissue of the duodenum in the natural course of the progress of the ulcer.'

...