McQueen v. Tremont Lumber Co.

• Decision Date: 03 January 1934
• Docket Number: 4670
• Court: Court of Appeal of Louisiana — District of US
• Parties: MCQUEEN v. TREMONT LUMBER CO

151 So. 683

MCQUEEN v. TREMONT LUMBER CO

No. 4670

Court of Appeal of Louisiana, Second Circuit.

January 3, 1934

T. A Carter and Wade Broussard, both of Alexandria, for appellant.

Theus Grisham, Davis & Leigh, of Monroe, for appellee.

OPINION

TALIAFERRO Judge.

Plaintiff sues to recover compensation for disability alleged to have resulted from and as a sequence to an accident which befell him while in the employ of defendant. The predicate of his action is found in paragraph IV of his petition, which we quote: "Petitioner shows that on or about the spring of the year of 1919 he became ruptured on the right side while in the scope of his employment and not realizing the condition of said injury he continued his work and again in June 1931, he again became ruptured on the left side, although he endeavored to perform his duty to the best of his ability and knowledge."

This is followed by an allegation that at no time did defendant's physician inform him that his injury was of such serious nature as to militate against his performing his regular work duties, and for this reason he continued to labor for defendant; and, following these allegations, plaintiff avers that on or about September 16, 1931, defendant informed him that his services could be availed of no longer because its physician had discovered that he "was ruptured on both sides." He finally alleges, in paragraph VII, that "said accident arose out of, and that said injury was incidental to," his employment by and with defendant. He claims to be totally and permanently disabled to perform manual labor, such only as he has performed for twenty-eight years, and that the ruptures have "decreased his earning capacity."

Defendant's answer is a general denial, coupled with a special averment that plaintiff, while in its employ, never received any injuries that resulted in a rupture or any other kind of injury; and, further, that when plaintiff was "let out" on September 16, 1931, he was working five days a week, eight hours per day, at 671/2 cents per hour.

When the case was called for trial, defendant filed an exception of no cause and no right of action. The record does not disclose that the exception was in any manner acted on by the court. Defendant objected to the introduction of any evidence in the case, and reserved all of its rights under the exception. The record shows that all the evidence in the case was admitted subject to the objection. In this court the exception is urged and briefed. The case was tried on the merits; considerable evidence was adduced; plaintiff's suit was dismissed and his demands rejected. He has prosecuted this appeal.

As a rule, an exceptor, by not insisting upon a ruling by the court on his exception, waives his rights thereunder, but in the present case exceptor protected itself against being placed in such a predicament by objecting to the introduction or reception of any evidence to support plaintiff's case. If no cause of action was disclosed by the petition, necessarily there was no issue before the court, and, over objection, a cause of action could not be eked out by admission of evidence which, without objection thereto, would have had the effect of enlarging the pleadings to the extent of disclosing a cause of action.

The petition says that plaintiff was ruptured on the right side in 1919, but does not say that he was in defendant's employ at that time. It says he continued to work at his regular occupation and was ruptured on the left side in June, 1931. It is not affirmatively alleged that he was then in defendant's employ. He does not set up the facts and circumstances of either rupture, nor that there was an accident to him which caused the ruptures. The exact part or parts of the body involved in or affected by the ruptures is not disclosed, beyond general references to left side and right side. It is true it is alleged that "said accident" arose out of plaintiff's employment with defendant, but these allegations are merely conclusions that there was an accident, as defined by section 38 of the Workmen's Compensation Act (as amended by Act No. 38 of 1918), and that, when it occurred, plaintiff was discharging duties arising out of and within the scope of his engagement with defendant. Where plaintiff was at the time, and what he was doing when injured in 1931, as well as in 1919, are not set out by the petition. The facts necessary to base such conclusions upon are absent. All ruptures to which the human body is subject do not necessarily depend upon an accident for their existence, and all ruptures which a workman may experience do not necessarily arise out of and in the course of his employment. The exception would be well founded if the suit were not for compensation. In such cases the technical rules of evidence and procedure are materially relaxed (subsection 2 of section 18, Act No. 20 of 1914, as amended by Act No. 85 of 1926); and, as held in Pierre v. Barringer, 149 La. 71, 88 So. 691, if the general purport of the petition discloses it to be by an employee against his employer for compensation resulting from an alleged accident arising out of and in the course of petitioner's employment, that is sufficient, and a cause of action is disclosed. The act requires the judge to "decide the merits of the controversy as equitably, summarily, and simply as may be." Dewey v. Lutcher-Moore Lbr. Co., 151 La. 672, 92 So. 273. If the lower court had sustained the exception of no cause of action or had excluded the testimony objected to, the case would have been dismissed as of nonsuit; and in either case a new suit could have been brought on the same cause of action.

The lower court held, after considering the testimony of both sides, that plaintiff failed to make out his case, and finally rejected his demand. That judgment, if affirmed, forecloses any future suit by plaintiff on the same cause of action.

We have carefully studied the evidence in the record and found ourselves in accord with the judge of the trial court on the merits of the case. The testimony...