Franklin v. Old Colony Ins. Co.
| Decision Date | 04 March 1963 |
| Docket Number | No. 943,943 |
| Citation | 150 So.2d 892 |
| Parties | Mrs. Carrie YOUNG, Widow of Conley FRANKLIN, Jr. v. OLD COLONY INSURANCE COMPANY and Saverio J. Nicolosi. |
| Court | Court of Appeal of Louisiana — District of US |
John P. Dowling, New Orleans, for plaintiff-appellant.
Bienvenu & Culver, P. A. Bienvenu and Timothy J. McNamara, New Orleans, for defendants-appellees.
Before McBRIDE, YARRUT and SAMUEL, JJ.
This suit was instituted under the Louisiana Workmen's Compensation Act by the widow of Conley Franklin, Jr., a deceased employee. She seeks death benefits, burial expenses, statutory penalties and attorney's fees. Defendants are the employer and his compensation insurer.
The petition alleges that plaintiff's husband died on July 25, 1960, of a myocardial infarction caused and precipitated by the work he was performing. Defendants filed an answer chiefly in the form of a general denial. They now contend, as they did before the district court after trial, that plaintiff has failed to prove the occurrence of an accident, compensable under the act, which had a causal connection with her husband's death and that the actual medical cause of death also has not been proved. The trial court found that the facts did not show a causal connexity between the type of work the decedent was performing and the cause of his death and rendered judgment in favor of defendants, dismissing the suit. Plaintiff has appealed.
Franklin was a 40 year old carpenter. He had a prior history of heart disease (myocardial infarction) as shown by medical records of the Veteran's Administration Hospital in New Orleans, which records were introduced in evidence, and the testimony of his treating physician who had seen him for the last time during January of 1959 when Franklin was continued on madication for the heart. He had had many attacks prior to the day of his death (well over 75 according to the hospital record) and on several occasions had left his work because of illness.
In the morning of the day of his death Franklin drove plaintiff to her place of employment. He left her there and proceeded to his work. At that time he was not ill and was in high spirits. He arrived at his work sometime before 8:10 a.m.
Franklin's on that day, described by the testimony as being ordinary carpentry work, i.e., neither light nor heavy, consisted of nailing rafters in place on top of the roof of a residence under construction. The rafters were 2 6 and of varying lengths from 2 to 18 feet. On the preceding work day they had been cut to proper size and placed on the roof. Franklin was working with another carpenter, each on an opposite end of each rafter, and it was necessary for them to put each rafter in its proper position and nail it in place. During the time decedent worked that day, on the roof under the sun, the temperature was not lower than 86 and not higher than 90 .
Franklin became ill while he was working and left the job to return home. The early details of the illness are not revealed by the record due to the fact that the only person who could have testified to those facts, the other carpenter with whom Franklin was working, was out of the state at the time of trial. He reached his home with the assistance of two other men. The record is not clear as to what happened between the time he left his work and the time he arrived at his residence due to the fact that the two men were unknown and therefore not available for the giving of testimony. But from all the evidence we conclude that Franklin attempted to drive home in his own car, was unable to do so because of his illness, and received assistance from the two strangers.
Upon arriving at his home three of the neighbors, two women and a man, holped the two strangers to get Franklin into the house and into bed. He was either assisted or carried from the automobile. He was conscious and told them where to get his 'white pills'. The Pills fave him some relief but only for a short time. He complained of a pain in the chest, was short of breath, pale, perspiring and foaming at the mouth. One of the neighbors left to get plaintiff from her work and she arrived at her residence shortly before Franklin died. His death occurred approximately three hours after he had left work to return home. He was not seen by a physician on that day prior to his death.
In compensation cases the burden is upon the plaintiff to prove his claim to a legal certainty by a preponderance of the evidence; conjecture and probability alone cannot serve as the basis for a judgment in his favor. Fontenot v. Camden Fire Insurance Association, La.App., 96 So.2d 640; Davis v. Reynolds, La.App., 96 So.2d 368; see Howard v. Globe Indemnity Company, La. App., 147 So.2d 912. Our jurisprudence uniformly recognizes that benefits are due in compensation cases involving heart conditions resulting in disability or death, whether or not the condition is preexisting, when caused, precipitated or accelerated by even the usual and customary activities, exertions and other factors directly connected with the employment. Andrepont v. Calcasieu Paper Company, La.App., 131 So.2d 585; Talbot v. Trinity Universal Insurance Co., La.App., 99 So.2d 811; Hemphill v. Tremont Lumber Co., 209 La. 885, 25 So.2d 625.
The issue here involved is one of causal connection between Franklin's employment activity, i.e., the work he was engaged in at the time he became ill, and his death. Two questions are presented for determination: (1) Was the immediate cause of his death myocardial infarction or other heart failure?; and (2) If so, has plaintiff proved, to a legal certainty by a preponderance of the evidence, that such work brought on, precipitated or accelerated the fatal heart attack?
The record contains the testimony of only two medical witnesses, both produced by the plaintiff, Dr. Arthur Z. Blamphin, Franklin's treating physician, and Dr. Ignacio Medina, as assistant coroner.
Dr. Blamphin testified that on the basis of his patient's history he had diagnosed Franklin's illness as angina and had placed him on medication designed for patients with angina coronary occlusions. He had seen the decedent for the last time in January of ...
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