Danziger v. Employers Mut. Liability Ins. Co. of Wis., 46538

• Decision Date: 28 June 1963
• Docket Number: No. 46538,46538
• Citation: 245 La. 33,156 So.2d 468
• Parties: Harold DANZIGER v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN and Mente & Company, Inc.
• Court: Louisiana Supreme Court

Page 468

156 So.2d 468

245 La. 33

Harold DANZIGER v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN and Mente & Company, Inc.

No. 46538.

Supreme Court of Louisiana.

June 28, 1963.

Rehearing Denied Oct. 9, 1963.

Bienvenu & Culver, P. A. Bienvenu, Timothy J. McNamara, New Orleans, for defendants-applicants.

Frederick J. Gisevius, Jr., Robert F. Shearman, John G. Discon, George M. Leppert, New Orleans, for plaintiff-respondent.

McCALEB, Justice.

This suit was instituted by Harold Danziger, formerly Executive Vice President of Mente & Company, Inc., a Louisiana corporation engaged in the manufacture of textile bags of various kinds, to recover from said corporation and its insurance carrier, Employers' Mutual Liability Insurance Company of Wisconsin, benefits of $30 per week for 400 weeks under the Workmen's Compensation Act (R.S. 23:1021--1351), on account of total and permanent disability resulting from an alleged accident which occurred in September of 1952.

The facts are these. Mente & Company had been operated for many years in the city of New Orleans by Isaac Rhea and his wife, Posey Rhea. Mr. Rhea was President and principal owner of the business and actively managed its affairs for many years. The Board of Directors was composed of Mr. and Mrs. Rhea and Mr. Danziger. In 1938, Mr. Rhea, having become ill, retired from the management of the Company. He and Mrs. Rhea moved to Asheville, North Carolina where they lived until 1941, at which time they became residents of Memphis, Tennessee. During this period Mr. Danziger, who was head of the sales department, took over the active management of the corporation and remained in charge until the events hereinafter detailed.

By 1952 Mr. Rhea's health had deteriorated to such an extent that his death was expected at any time. However, Mrs. Rhea was apparently in reasonably good health. At about 1:30 o'clock a.m. on September 4, 1952, Mr. Danziger was awakened at his home by a telephone call from Mr. Rhea's sister, who informed him that Mrs. Rhea had suddenly died in Memphis. Upon receipt of this news, Mr. Danziger immediately began making arrangements to attend the funeral in Memphis with certain other employees and to provide for the continued operation of the business during his absence. He telephoned various employees to inform them of Mrs. Rhea's death and gave instructions in regard to their activities at the factory. He also arranged a conference of key personnel later in the morning and called his secretary, who was instructed to make plane reservations for those selected to attend the funeral. Shortly thereafter, the secretary, a Mrs. Mahen, telephoned Mr. Danziger to inform him that she could not contact the airport and, while speaking with him, she heard a peculiar noise and could get no further response from him. At this point Mr. Danziger's sister, Mrs. Falk, picked up the telephone and informed Mrs. Mahen that something had happened to her brother.

Mrs. Falk and her sister, Miss Edna Danziger, testified that Mr. Danziger became excited, shaky and nervous after receiving the news of Mrs. Rhea's death; that he, nevertheless, phoned other members of his staff and that, while he was speaking with Mrs. Mahen, he suddenly made a mumbling sound, as if he were trying to speak, but he became unsteady and dropped the phone. His personal physician, Dr. Manuel Gardberg, an internist, was summoned immediately and Mr. Danziger, who had suffered a paralytic stroke with loss of speech and paralysis in the right arm and leg, was taken to the hospital. After a while Mr. Danziger recovered some use of his limbs but never regained ability to speak. He was unquestionably totally and permanently disabled as a result of a cerebral thrombosis or cerebral embolism from the day he was stricken until suit was filed in 1954 and, thereafter, until his death on August 24, 1957 from a heart attack.

After his death, Mr. Danziger's sisters, Edna Gertrude Danziger and Miriam Danziger Falk, having qualified as his testamentary executrices, were substituted as parties plaintiff and, by amended petition, they claimed compensation for 258 weeks less credit of 37 weeks for unearned salary paid by the corporation before Mr. Danziger's death.

The theory of plaintiffs' case is that the stroke directly resulted from emotional shock or psychic trauma while Mr. Danziger was performing the duties of his employment and, therefore, it is a compensable accident within the meaning of the Louisiana Workmen's Compensation Act.

Conversely, defendants contend (1) that, as a matter of law, emotional shock or trauma is not an accident as defined by the Workmen's Compensation Act and (2), even if it is so classified, the 'accident' did not arise out of or in the course of decedent's employment. In addition it is asserted that plaintiffs have not proved with certainty their claim that the paralytic stroke is attributable to the alleged shock.

The district judge sustained defendants' position. However, on review, the Court of Appeal, Fourth Circuit, resolved that plaintiff had established by a preponderance of evidence that the emotional shock Mr. Danziger sustained upon receiving the news of Mrs. Rhea's death, coupled with his activity in notifying other employees and rushing arrangement to keep the plant operating during his absence precipitated the disabling attack of cerebral thrombosis; that this was an 'accident' within the meaning of the Workmen's Compensation Law and that it arose out of the employment (as it directly related to his job) and occurred in the course of his employment because Mr. Danziger was on duty, being subject to call, at all times. Accordingly, judgment was rendered in favor of plaintiffs for compensation in the sum of $7630 with legal interest thereon from judicial demand but the court, although it recognized in its opinion that defendants were entitled to a credit of $1110, neglected (evidently through inadvertence) to decree that this amount was to be credited against the total sum. See Danziger v. Employers' Mutual Liability Insurance Co. of Wis., La.App., 146 So.2d 682. We granted certiorari and the case has been argued and submitted for our decision.

A careful consideration of this matter has convinced us that the Court of Appeal erred in holding that the cerebral thrombosis suffered by Mr. Danziger was an 'injury' or that the emotional shock, which allegedly caused the stroke, was an 'accident' within the intendment of our Employers' Liability Statute. Hence, it is not of importance to our decision that we determine whether the so-called 'accident' occurred during the course of Mr. Danziger's employment and that it had causal connection with and arose out of the employment. For purposes of this discussion it will be assumed that such is the case.

The sections of the Employers' Liability Act pertinent here are LSA-R.S. 23:1021 and LSA-R.S. 23:1031. The latter provides, in part:

'If an employee not otherwise eliminated from the benefits of this Chapter, Receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.' (Italics ours).

Thus, in order for an employee to be entitled to compensation, he must receive a Personal injury as the result of an accident. What, then, is an 'accident' and 'personal injury' within the purview of the statute?

Paragraph (1) of R.S. 23:1021 defines 'accident' as follows:

'(1) 'Accident' means an unexpected or unforeseen event happening suddenly or violently, with or without human fault and Producing at the time objective Symptoms of an injury.' (Italics ours).

Accordingly, if we assume that the news of Mrs. Rhea's death and the immediate activity of Mr. Danziger in connection therewith constituted an unexpected event which happened suddenly, it still cannot be regarded as an accident unless it produced at the time 'objective symptoms of an injury'. To ascertain whether a compensable injury was produced, we must examine paragraph (7) of R.S. 23:1021, which defines 'injury' as follows:

'(7) 'Injury' and 'Personal Injuries' includes Only injuries by violence to the physical structure of the body and such Disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted.' (Italics ours).

This provision is clear and explicit; hence it needs no interpretation. In restricting by definition compensable injuries to those affecting the physical structure of the body, it (paragraph 7) necessarily narrows the scope of the statute to traumatic physical hurts, evidence of which must appear in order for the event to be classified as an 'accident' as defined by paragraph (1) of R.S. 23:1021. Consequently, then, the law of this State does not provide for the payment of compensation for disabling diseases resulting from emotion or psychic trauma upon which the claim in this case is founded. For, while compensation for Diseases suffered by an employee is recognized as compensable under our law, recovery is limited (save in cases of occupational diseases covered by R.S. 23:1031.1) as provided by paragraph (7) of R.S. 23:1021, to those diseases or infections which 'naturally result' from a traumatic physical injury to the body in an accident arising out of and in the course of the employment.

However, in their brief to this court, counsel for plaintiffs profess that 'Psychic trauma has long been recognized in Louisiana jurisprudence as a basis for a compensable accident' and, in support of this statement, they cite two cases of the Second Circuit Court of Appeal, viz., Johnson v. Zurich General Accident & Liability Ins. Co., 161 So. 667 (La.App.1935) and Roberson v. Michigan Mutual Liability Company, 90 So.2d 465 (La.App.1956).

In the first cited case plaintiff's...