Davis v. Buquet & LeBlanc, Inc.
| Decision Date | 01 July 1963 |
| Docket Number | No. 5933,5933 |
| Citation | 155 So.2d 59 |
| Parties | Johnny DAVIS v. BUQUET & LeBLANC, INC., et al. |
| Court | Court of Appeal of Louisiana — District of US |
Cobb & Brewer by Arthur Cobb, Baton Rouge, for appellant.
Kennon, White & Odom, by John S. White, Jr., Durrett, Hardin, Hunter, Dameron & Fritchie, by Calvin E. Hardin, Jr., Baton Rouge, for appellees.
Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.
This action was initiated as a claim for maximum workmen's compensation benefits allegedly due plaintiff, Johnny Davis, for total permanent disability purportedly resulting from the loss of sight in his right eye while in the employ of defendant, Buquet & LeBlanc, Inc. Plaintiff's said employer (the sole defendant in the initial proceeding) answered the suit setting up certain pleas and defenses as hereinafter related and also reconvened praying for judgment in the sum of $50.00 representing an unpaid loan in that amount advanced petitioner. In addition, defendant filed a third party demand against Pacific Indemnity Company (sometimes hereinafter referred to simply as 'Pacific'), insurer of defendant, Buquet & LeBlanc, Inc., at the time of the accidents which purportedly resulted in plaintiff's disability, praying for judgment against Pacific for attorney's fees due third party plaintiff by said insurer because of said third party defendant's asseverated refusal to defend this action. After trial below judgment was rendered in favor of defendant employer rejecting and dismissing plaintiff's demand for compensation and also in favor of said employer on its reconventional demand for money judgment in the sum of $50.00 against plaintiff. The third party demand of defendant, Buquet & LeBlanc, Inc., against Pacific, for alleged attorney's fees, was rejected and dismissed. From said judgments plaintiff has appealed complaining the trial court erroneously rejected his demand for compensation and defendant and third party plaintiff, Buquet & LeBlanc, Inc., has likewise appealed contending the trial court erred in rejecting its claim against Pacific for attorney's fees. Third party defendant, Pacific, has answered both said appeals.
Since the legal and factual issues involved in plaintiff's main demand for compensation benefits are wholly unrelated to and independent of the third party demand of defendant employer for attorney's fees allegedly due by its compensation insurer, each said demand will be herein separately considered for the sake of clarity.
A detailed statement of the case (including a chronological narration and review of the numerous filings and actions taken by the parties prior to institution of suit) will be deferred until consideration of the third party demand of defendant is undertaken, except insofar as reference to such matters may be necessary to a proper understanding of the issues presented by plaintiff's main demand which we will consider first.
On May 16, 1962, plaintiff-appellant filed this action praying for maximum workmen's compensation benefits for alleged total permanent disability assertedly incurred as the result of two accidents purported to have occurred during the course and within the scope of his employment by defendant, Buquet & LeBlanc, Inc., (sometimes hereinafter referred to simply as 'employer'), on February 4 and August 8, 1958, respectively, involving injuries to plaintiff's right eye causing total blindness therein. In substance, plaintiff alleged he was paid wages in lieu of compensation from the dates of said accidents until April 9, 1962, and additionally averred the injuries to his eye did not manifest themselves until the development of unilateral glaucoma and a cataract resulted therefrom producing blindness on which his claim is predicated. Plaintiff's petition was ultimately amended to pray for judgment for compensation for 100 weeks for the loss of an eye rather than for 400 weeks compensation for alleged total permanent disability. Subsequent to institution of suit, namely, on June 15, 1962, plaintiff moved for and obtained a preliminary judgment ordering payment to him of workmen's compensation benefits at the rate of $35.00 weekly commencing April 9, 1962, until a hearing on the merits of his claim was fixed at employer's request. Following trial on the merits, the learned trial court rendered judgment on July 19, 1962, dismissing petitioner's main demand, vacating the preliminary judgment of June 15, 1962, and rendering judgment on the reconventional demand of defendant employer in the sum of $50.00. In oral reasons dictated into the record, the learned trial judge found no causal connection between the accidents which occurred in 1958, and the subsequent loss of plaintiff's right eye. In view of said finding, he considered it unnecessary to pass upon the pleas of one and two years prescription interposed on behalf of defendant employer and third party defendant, Pacific.
It is conceded plaintiff suffered two minor accidents involving his right eye while in the employ of defendant during the months of February and August, 1958. Likewise, it is undisputed plaintiff lost virtually no time from work as a result of either incident but continued in the employ of defendant (receiving the same wages for the same work) until April 9, 1962, on which date plaintiff left his employment because of the condition of his eye.
Regarding the pleas of prescription filed by defendant employer and third party defendant, Pacific, esteemed counsel for plaintiff-appellant contends prescription did not run against appellant until April 9, 1962, on which date wages in lieu of compensation ceased to be paid by defendant employer. In this connection, it is contended plaintiff worked the intervening three years in pain and was never able to fully perform his duties in the same manner as before the accidents. It is significant, in this regard, the record shows defendant employer was never advised by plaintiff that plaintiff was suffering pain and was totally unaware and unapprised of plaintiff's alleged decreased efficiency of performance. The argument advanced by learned counsel for appellant is admittedly ingenious but one which need not be answered herein considering the issue of prescription need not be resolved and is entirely pretermitted in view of our conclusion the record fails to establish any causal connection between the aforementioned accidents and the loss of sight of plaintiff's right eye
It is an elementary jurisprudential rule that a plaintiff in a suit for workmen's compensation benefits bears the burden of proving his demand by a preponderance of the evidence. As an indispensable prerequisite to recovery claimant must prove a causal connection between the accident occurring within the course and arising out of his employment and the injuries and disability allegedly resultant therefrom. Fortenberry v. Kingsville Timber Co., La.App., 136 So.2d 746; Spivey v. Aetna Casualty & Surety Company, La.App., 127 So.2d 297; Houston v. Atlas Sewing Centers, Inc., La.App., 121 So.2d 301.
In the case at bar plaintiff maintains his eye remained irritated as a result of the accidents occurring in 1958. In essence plaintiff contends his eye burned and ran water to such extent he constantly and habitually rubbed the injured eye in an effort to relieve the discomfort. Learned counsel for plaintiff argues the accidents in question, either directly or in conjunction and connection with the constant rubbing of the affected member, resulted in the formation of a cataract which condition induced glaucoma, and further that conditions mentioned, either individually or collectively, were responsible for the loss of sight. Plaintiff, however, offered no medical evidence in support of his contention the traumatic injury to his eye in 1958 resulted in blindness which manifest itself in 1962.
In support of its contention there was no causal connection between plaintiff's accidents and the loss of sight in plaintiff's eye, defendant offered the testimony of three eye specialists whose testimony will hereinafter be considered separately.
Dr. E. J. Herpich, an eye, ear, nose and throat specialist, treated plaintiff on February 4 and 5, 1958, for an injury resulting from muriatic acid which entered plaintiff's right eye. Upon examination some conjunctival injection was noted as well as dilation of the vessels over the surface of the eyeball, said latter condition evidenced by an increase in redness of the white of the eye. In general, however, plaintiff's eye was found to be in good condition and plaintiff was discharged after the second visit. On August 7, 1958, plaintiff was again seen by Dr. Herpich, this visit being prompted by the necessity for treatment for an injury produced when fragments of steel wool fell into plaintiff's right eye and entered the cornea resulting in minor injury--the cornea being the transparent part covering the front of the eye in which the pupil is found. Plaintiff was treated by Dr. Herpich on August 7, 8 and 11, 1958, on which latter date plaintiff's eye was considered perfectly healed and plaintiff was discharged. Plaintiff returned to Dr. Herpich on April 26 and 28, 1961, at which time it was noted plaintiff suffered a loss of reading vision in his right eye but could still distinguish between light and darkness. Examination revealed plaintiff had a cataract on the posterior surface of the lens, or possibly an intraocular tumor. According to Dr. Herpich, a cataract is an increased opacity of some part of the eye, in any degree, partial or total, on the anterior or posterior surface of the lens. Dr. Herpich further explained the causes of cataracts may be constitutional, dietetic, traumatic or unknown. He frankly conceded all...
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