Edwards v. Shreveport Creosoting Co.

• Decision Date: 19 February 1945
• Docket Number: 37532.
• Citation: 207 La. 699,21 So.2d 878
• Court: Louisiana Supreme Court
• Parties: EDWARDS v. SHREVEPORT CREOSOTING CO., Inc.

21 So.2d 878

207 La. 699

EDWARDS v. SHREVEPORT CREOSOTING CO., Inc.

No. 37532.

Supreme Court of Louisiana

February 19, 1945

Rehearing Denied March 26, 1945.

Certiorari to Court of Appeal, Second Circuit.

Thomas M. Comegys, Jr., of Shreveport, for plaintiff-applicant.

Hollingsworth B. Barret, of Shreveport, for defendant-opponent.

HIGGINS Justice.

This is an action by a laborer to recover compensation in the sum of $7.80 per week for a period not exceeding 400 weeks (subject to a credit of $46.80, compensation paid for disability for six weeks), alleged to be due him for disability resulting from a crushing injury to his right hand on October 13, 1941 sustained while he was pushing tramcars loaded with long heavy poles, at his employer's place of business.

The defendant, in its answer, admitted that the plaintiff was employed by it, and that he received an accidental injury on the above date, when a portion of the distal phalanx of the third or ring finger of his right hand was crushed and amputated, and that he had been paid six weeks' compensation for this disability. It denied that any other part of the plaintiff's hand was injured and that he suffered any further disability from the accident.

After a trial on the merits, the district judge awarded the claimant $3 per week compensation for a period not exceeding 150 weeks beginning October 13, 1941, less the six weeks during which he was paid compensation, with legal interest on each weekly installment from its respective due date until paid, and taxed the defendant with court costs, including the expert medical fees of the doctors.

The defendant appealed. The plaintiff answered the appeal praying that the judgment be amended so as to grant compensation at the rate of $7.80 per week for a period of 400 weeks and, in the alternative, if the court found there was only partial disability, compensation not exceeding 300 weeks. The Court of Appeal annulled the judgment, dismissed the plaintiff's suit, and denied a rehearing. La.App., 17 So.2d 648.

The plaintiff applied to this court for a writ of certiorari or review, the granting of which was opposed by the defendant, on the basis that only issues of fact were presented. We granted the writ and the respondent then filed a motion to recall and dismiss it on the ground that no question of law was involved and, therefore, it had been improvidently issued.

The Court of Appeal, in its opinion, stated: 'The type of injury claimed to have been sustained by plaintiff has resulted in that character of affliction commonly called a 'claw hand.' The fingers have become stiffened in a semi-clutching position, and permit of no extension or flexion. * * * Careful weighing of the testimony of plaintiff's medical witnesses, even in a light most favorable to plaintiff's contention, leaves the result far from conclusive in plaintiff's favor. * * * If the disability could be attributed to an enforced disuse resulting from injuries sustained in the accident, of course plaintiff would be entitled to recover, but we do not find this to be the case. On the contrary, we can only arrive at the conclusion that the disuse was voluntary on the part of the plaintiff, and the stiffness of the fingers and the atrophy of the hypothenar eminence are attributable to his wilful neglect.' Later, the court stated that it was of the opinion that the '* * * plaintiff has failed to sustain the burden of proving his case by a preponderance of the evidence * * *.'

Counsel for the plaintiff contends that the Court of Appeal, in reversing the judgment of the district court in his favor, committed an error of law in requiring the plaintiff's medical testimony to conclusively show that the 'claw hand' or disability resulting therefrom was caused by the injury he sustained. On the other hand, counsel for the defendant argues that the Court of Appeal required the plaintiff to prove the case by a preponderance of the evidence only, as shown by the above statement.

The law is clear that the plaintiff in a compensation case bears the burden of proving his case with reasonable certainty, by a preponderance of the evidence. He is not obliged to furnish conclusive proof.

In Dart's Louisiana Digest, Second Series, Volume 7, page 322, Paragraph 149, Workmen's Compensation, Presumptions and burden of proof, it is stated:

'An employee suing for compensation under the Employers' Liability Act (Dart's Stat., 4391-4432), must make out his case by a fair preponderance of the evidence. * * * (1926) Purvis v. Ware Const. Co., 5 La.App. 684; (1927) King v. Rapides Packing Co., Inc., 5 La.App. 424; (1927) Reynolds v. Hotel Youree Co., 6 La.App. 790; (1929) Lee v. Southern Surety Co., 14 La.App. 393, 123 So. 502, 127 So. 36; (1930) Youngblood v. Colfax Motor Co., Inc., 12 La.App. 415, 125 So. 883; (1931) Hillman v. Wetherbee, 16 La.App. 136, 133 So. 535; (1932) Tullis v. United Carbon Co., La.App., 142 So. 307; (1932) Trotti v. Natalbany Lbr. Co., Ltd., La.App., 144 So. 627; (1934) Prudhome v. Cedar Grove Ref. Co., Inc., La.App., 157 So. 158; (1935) Moore v. Thompson-Ritchie Grocer Co., La.App., 161 So. 654.'

In 32 Corpus Juris Secundum, Evidence, � 1021, page 1051, under the heading 'What Constitutes Preponderance', we find:

'By a preponderance of evidence is meant simply evidence which is of greater weight, or more convincing, than that which is offered in opposition to it. * * *'

In 32 Corpus Juris Secundum, Evidence, � 1016, page 1039, under 'Weight and Sufficiency--Degree of Proof', it is stated:

'Conclusive evidence has been defined as evidence which is incontrovertible, either a presumption of law, or else evidence so strong as to overbear all other in the case to the contrary; evidence from which only one reasonable conclusion can be drawn, taking all the facts and surroundings into consideration. It has also been defined as such evidence as, being uncontradicted, controls the decision.'

In 15 Corpus Juris Secundum, page 802, we find:

'Conclusive. In its primary legal signification the word has been defined as meaning beyond dispute, or beyond question; decisive, irrefutable, or uncontrovertible; final; leading to a conclusion or decision, not admitting of explanation or contradiction, putting an end to the inquiry, debate or question, also shutting up a matter or shutting out all further evidence. * * *' See, also, American Homestead Co. v. Zemurray, 195 La. 37, 196 So. 13.

* * *

* * *

'Conclusive proof. A phrase which has been held equivalent to 'to a moral certainty' or 'beyond a reasonable doubt."

In Words and Phrases, Perm. Ed., Volume 8, pages 365 and 367, the following definitions are given:

"Conclusive' means decisive; irrefutable.'

"Conclusive evidence' is that which is incontrovertible, that is to say, either not open or not able to be questioned, as, where it is said that a thing is conclusively proved, it means that such result follows from the facts shown as the only one possible; the term conclusive proof meaning either a presumption of law or evidence so strong as to overbear everything to the contrary.'

From our study of the Court of Appeal's opinion, since it contains two conflicting statements with reference to the extent of proof, we were unable to determine, at the time the writ was granted and we are not certain now, which one of the two degrees of proof the court required of the plaintiff.

Counsel for the plaintiff in his application and in his brief challenges the correctness of the Court of Appeal's statement that voluntary disuse of an accidentally injured member or wilful neglect of an accidental injury causing stiffness to the fingers and atrophy of the muscles is a defense, particularly where it is conceded the attending physician, who was employed by the compensation insurance company, admits he did not advise petitioner to exercise his fingers or recommend any treatment for and manipulation of the injured hand. He states that Section 28 of Act 20 of 1914 deals only with a wilful intention to injure or misconduct and not with disability caused by voluntary nonuse or wilful neglect of the injured member, and that if Section 28 is applicable, such a defense must be specially pleaded and proved by defendant by a preponderance of evidence, both of which requirements the defendant failed to meet in this case.

There is no doubt that if Section 28 is applied in this case that the burden of proving the wilful intention of the claimant to injure himself is upon the defendant under the express provisions of that section of the statute, as held in the following cases. Johnson v. G. M. Johnson Lbr. Co., La.App., 200 So. 48; Youman v. Railways Express Agency, La.App., 190 So. 858; Sharbino v. Colfax Lumber & Creosoting Co., La.App., 181 So. 20; Morvant v. AEtna Casualty & Surety Co., La.App., 181 So. 595; Harris v. Lily-White Laundry, Inc., La.App., 178 So. 523; Hall v. A. & B. Pipe & Supply Co., La.App., 159 So. 417.

Section 28 provides that '* * * no compensation shall be allowed for an injury caused (1) by the injured employee's wilful intention to injure himself or to injure another * * *.' In this case it is not contended that the employee's injury was not purely accidental but that the stiffness in his fingers and the atrophy in the muscles or hand, if any, were caused by voluntary inactivity and wilful neglect to use his hand. The defendant's doctor frankly stated he prescribed no treatment or exercise for the plaintiff's hand. It is our opinion that the provisions of Section 28 of Act 20 of 1914 are not apposite here. See Section 38 of Act 38 of 1918.

From the above statements, it is clear that it cannot be successfully urged that the application for the writ and the judgment of the Court of...