Johnson v. G. M. Johnson Lumber Co., Inc.

• Decision Date: 29 November 1940
• Docket Number: 6176.
• Citation: 200 So. 48
• Court: Court of Appeal of Louisiana — District of US
• Parties: JOHNSON v. G. M. JOHNSON LUMBER CO., INC.

200 So. 48

JOHNSON v. G. M. JOHNSON LUMBER CO., INC.

No. 6176.

Court of Appeal of Louisiana, Second Circuit.

November 29, 1940

Rehearing Denied Jan. 13, 1941.

Writ of Certiorari and Review Denied Feb. 3, 1941.

Appeal from First Judicial District Court, Parish of Caddo; John R Pleasant, Judge.

Proceeding under the Employer's Liability Act, Act No. 20 of 1914 as amended, by Ebbie Lee Johnson, employee, opposed by G. M Johnson Lumber Company, Incorporated, employer. From a judgment awarding compensation, the defendant appeals and the plaintiff answers the appeal.

Affirmed.

Hollingsworth B. Barret, of Shreveport, and Wallace & Stinson, of Benton, for appellant.

Julius T. Long, of Shreveport, for appellee.

DREW Judge.

This is a suit for compensation. The lower court awarded plaintiff compensation for a period of 8 months and defendant has appealed. Plaintiff has answered the appeal praying that the award be increased to a period not to exceed 400 weeks.

Due to the great conflict of testimony on all material issues and the further fact that both plaintiff and defendant are complaining of the judgment of the lower court, we have restudied this case several times and are convinced that the judgment of the lower court is correct.

While we might elaborate on some of the issues as discussed by the lower court in its opinion, our final conclusion would be the same and we are satisfied we cannot improve on the opinion of this court. It is as follows:

" The plaintiff, Ebbie Lee Johnson, brings this suit under the provisions of the Employer's Liability Act (No 20 of 1914, as amended), as the result of injuries sustained by him in an accident while operating a truck for the defendant, G. M. Johnson Lumber Company, Incorporated. He seeks compensation at the rate of $9.75 per week during disability not to exceed 400 weeks, less the sum of $60.45 which had been received by him from the defendant prior to this suit.

" The defense is based on three of the defenses provided in Section 28 of Act No. 20 of 1914, as amended, which read as follows:

" ‘ 1. Be it further enacted, etc., That no compensation shall be allowed for an injury caused (1) by the insured employee's wilful intention to injure himself or to injure another, or (2) by the injured employee's intoxication at the time of the injury, or (3) by the injured employee's deliberate failure to use an adequate guard or protection against accident provided for him or (4) by the employee's deliberate breach of statutory regulations affecting safety of life or limb.

" ‘ 2. In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for the causes and reasons set forth in this Section, the burden of proof shall be upon the employer.’

" The three provisions underscored above are the ones on which the defendant relies in this case.

" The case was tried before the late Judge T. F. Bell on May 26th and 27th, 1938. Subsequently, a motion to reopen was sustained and some additional testimony was taken before the writer of this opinion.

" It is admitted that the plaintiff was employed by the defendant as a truck driver and was earning $2.50 per day or $15.00 per week at the time of the accident, and that if he is entitled to compensation, the same would be at the rate of $9.75 per week.

" The accident occurred on a narrow bridge about two miles south of Mooringsport on the Shreveport-Mooringsport Highway and involved two trucks owned by the defendant. The two trucks, heavily loaded with lumber to be used in the construction of oil well derricks, left the defendant's mill near Plain Dealing in Bossier Parish, about two o'clock and were proceeding toward Trees City in Caddo Parish at the time of the accident. The truck in front was being operated by John Edmonds, who was accompanied by a negro helper, Jesse Rawls. The second truck was being operated by the plaintiff, who was alone in the truck at the time of the accident. The only other witness at the scene of the accident was James C. Starnes, who was driving a Schuster Produce Company truck and who had stopped at the opposite approach of the bridge at the time of the accident.

" There was considerable conflict in the testimony of facts preceding the accident. We did not hear the testimony, but as we understand the law applicable to this case, and as we analyze the testimony as to the actual wreck, it is unnecessary to try to reconcile all of the conflicting testimony or to determine which set of witnesses are falsifying in their testimony.

" Under the provisions of Section 28 of this Act, the burden is on the defendant not only to prove the fact of intoxication, but that the intoxication was the cause of the injury suffered by the employee. Without reaching any conclusion on the absolute conflict in the testimony as to intoxication, we think the defendant has failed to sustain the burden of proving that the injury was caused by the intoxication of the defendant if he was in fact intoxicated.

" As we have heretofore stated, there were four witnesses who testified as to the accident and its cause: the plaintiff, Ebbie Lee Johnson, J. C. Starnes, an employee of Schuster Produce Company, John Edmonds and his helper, Jesse Rawls. The last two were employees of the defendant at the time of the accident and at the time of the trial. We shall review the testimony of these four witnesses.

" The plaintiff's version of the accident is that he was traveling about 30 to 35 feet behind the truck operated by Edmonds immediately prior to the accident. That this distance varied during this trip from 35 feet to 100 yards. In answer to a question as to the cause of his running into the Edmonds truck, the plaintiff said:

" ‘ Well, the truck that Edmonds was operating, of course, he was ahead of me, and something caused him to have to stop, and we were traveling at a pretty good speed, in a hurry to get there, and something caused him to have to stop, and he stopped, and I was too close to him to stop. The brakes failed to stop me before I hit him, driving too close to stop my truck.’

" The testimony of Mr. Starnes, the driver of the Schuster Produce Company's truck, was given pursuant to a re-opening of the case. Mr. Starnes was traveling in the direction of Shreveport and met the two Johnson Lumber Company trucks at the scene of the accident. We find no mention in his testimony of any act on the part of this plaintiff that would indicate that intoxication, if the plaintiff was intoxicated, had anything to do with this accident. According to his version, the Edmonds truck was some 100 feet ahead of plaintiff's truck when they were in the bend prior to the accident. This distance was only an estimate. According to his testimony all the trucks were going about 40 to 45 miles per hour prior to reaching the bridge. He said that the Edmonds truck started stopping about 100 feet from the bridge and came to a stop about the middle of the bridge and that almost instantly the crash occurred.

" The only other witnesses who gave testimony concerning the accident were Jesse Rawls and John Edmonds. According to their testimony, the plaintiff's truck was about four to six feet behind them. That they began to slow down about 250 feet before reaching the bridge and had shifted to second gear and started up as the crash occurred. This does not seem plausible. The plaintiff would have struck them long before reaching the bridge if he had been only four or five feet to the rear at the time the first truck began to slow down.

" We find no testimony in this record that intoxication, if it existed, had anything to do with this accident. To find that as a fact would require the court to presume that the accident was caused by intoxication. From the testimony, it seems to us that the accident was caused by the sudden stopping of the Edmonds truck, together with the negligence of plaintiff in traveling too close behind it. We cannot presume that this was caused by intoxication.

" The defense, under this Section, has been before the court in four cases, namely; Watkins v. Roach, 4 La.App. 258; Evans v. Louisiana Gas & Fuel Company, 19 La.App. 529, ; Hall v. A & B Pipe & Supply Company [[[La.App.], 159 So. 417, and Lee v. Maryman [La.App.], 191 So. 733.In the first two cases the defense was rejected and the plaintiffs awarded compensation for the reason that the defendant failed to prove that intoxication caused the injury. In the last two cases, the

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