Jack v. International Paper Co.

• Citation: 56 So.2d 875
• Decision Date: 30 January 1952
• Docket Number: No. 7715,7715
• Parties: JACK v. INTERNATIONAL PAPER CO. et al.
• Court: Court of Appeal of Louisiana (US)

Page 875

56 So.2d 875

JACK v. INTERNATIONAL PAPER CO. et al.

No. 7715.

Court of Appeal of Louisiana, Second Circuit.

Jan. 30, 1952.

Rehearing Denied March 3, 1952.

Paul R. Mayer, Shreveport, for appellant.

Dan W. Stewart, Minden, Madison, Madison, Files & Shell, Bastrop, for appellees.

GLADNEY, Judge.

This case presents an appeal by Willis Jack from a judgment rejecting his claim against the International Paper Company and Southern Kraft Paper Corporation for benefits alleged to be due him under the Workmen's Compensation Act.

The District Court maintained an exception of misjoinder filed by Southern Kraft Paper Corporation and, there being no appeal therefrom, that defendant has passed out of the picture, leaving this suit strictly a contest between appellant and the International Paper Company.

Appellant alleges that while employed as a laborer at the paper mill of defendant located at Cullen, Louisiana, he received an injury January 1, 1949, which involved a strain of the muscles, ligaments and tendons of his back, requiring him to be away from his work nineteen (19) days. He returned to his job on January 20th and worked without interruption through March 29, 1949. On the latter date he says he received a second injury which aggravated that of January 1st, causing him to suffer an acute lumbosacral strain, and permanent damage to the lumbar vertebrae and spine, which injuries have rendered him totally and permanently disabled.

The action is defended on the ground plaintiff has not presented adequate proof of any accident on March 29, 1949, and that disability attributable to either alleged injury has not been shown. Appellee concedes the occurrence of the accident of January 1st, and that plaintiff was disabled until January 20, 1949, but contends that after such date Willis Jack performed constantly until March 29th all functions and work attendant to his job. It is further asserted appellant has suffered no disability nor aggravation of injury from the accident of January 1, 1949.

In written reasons for judgment, the Judge a quo concluded Willis Jack did not furnish sufficient evidence to show he had an accident on or about March 29, 1949. His opinion also expresses the view that if plaintiff is receiving any pain from his back, the evidence adduced indicates it is not in fact due to an accident. After judgment and pursuant to a motion therefor, the trial Court reopened the case to permit the taking of testimony of Dr. C. M. Baker. It was represented in plaintiff's application that plaintiff was treated by Dr. Baker a few days after March 29, 1949, and that at the time of the trial counsel for plaintiff was not aware of that fact. After this additional evidence was received and considered the court held the testimony of Dr. Baker was so uncertain as to dates of treatment that such testimony could not change the judgment in favor of defendant.

It is proper, therefore, to determine: (1) If plaintiff, by a preponderance of the evidence has furnished sufficient proof to establish that he received an injury on March 29, 1949, while engaged in the employment of the defendant, and (2) whether, vel non, there is sufficient evidence plaintiff is suffering disability resulting from an employment accident.

Plaintiff testified that prior to January 1, 1949, he had worked for the defendant for approximately three years; that on January 1, 1949, while moving some metal sheets, he received and reported to the first aid station of the paper company a strained back, which caused him to remain away from work approximately three weeks; that following his return to his job he worked constantly until March 29, 1949, when he received a second injury to his back; that this injury occurred when he was handling some pipe in the salvage yard; that when he was hurt he, M. C. Sikes and Johnnie Baulkmon were placing in piles six inch iron pipe, twelve feet in length; that plaintiff was handling one end of the pipe and the other two employees were handling the other end; that he complained of his back sprain immediately to Sikes and Baulkmon; and that the accident occurred two days prior to March 31, 1949, the day he, together with some six other workers, were laid off by the mill because of a reduction in working force. Jack admits he did not report this injury to the foreman or to the first aid station. On cross examination appellant testified that he drew unemployment compensation amounting to about $500 over a period from April to August, 1950, and that in order to secure this compensation he represented to the government that he was able to accept employment.

Appellant's testimony is inconsistent with that of M. C. Sikes, in that Sikes testified the first time he heard of the injury was while he and plaintiff were leaving the work that evening. It was then, he said, plaintiff told him that he had been hurt. Sikes' testimony on the witness stand differed from his signed statement, wherein concerning the alleged injury to Willis Jack on March 29, 1949, he stated: 'He did not mention or show any signs of hurting his back on March 29, 1949, and he did the same kind and the same amount of work on March 30, 1949.'

Johnnie Baulkmon testified that on March 29th, while stacking the pipe, plaintiff got 'tangled up over the other pipe when he went to pick up that, and it made him fall against the pipe, and the end of the stick hit on top of there, and he said: 'I hurt my back'.' He said Jack worked on the rest of the day and two or three days thereafter before being laid off. In addition to Sikes and...