Murphy v. B. Mutti, Inc.

• Decision Date: 09 March 1936
• Docket Number: 16261
• Citation: 166 So. 493
• Court: Court of Appeal of Louisiana — District of US
• Parties: MURPHY v. B. MUTTI, Inc., et al

166 So. 493

MURPHY v. B. MUTTI, Inc., et al

No. 16261

Court of Appeal of Louisiana, Orleans.

March 9, 1936

James G. Schillin and Eraste Vidrine, both of New Orleans, for appellants.

Maurice R. Woulfe, of New Orleans, for appellee.

OPINION

JANVIER Judge.

Alphonse Murphy alleges that on December 28, 1934, in the course of his employment by B. Mutti, Inc., he sustained accidental injury which has resulted in his permanent total disability from "a hernia and sacro-iliac injury." He avers that he had been earning $ 15 per week and that he is, therefore, entitled to $ 9.75 per week for 400 weeks. He seeks solidary judgment against B. Mutti, Inc., his employer and Great American Insurance Company of New York, alleging the latter corporation to be the insurer of the former.

Both defendants deny that the Great American Insurance Company of New York is the insurer, and they also deny that the accident resulted in severe or permanent injury to plaintiff, and aver that if he is at present disabled by the hernia, the disability results from his refusal to submit to an operation which, it is contended, could be performed with absolute safety and with little pain and with almost complete assurance of success.

In the district court there was judgment reading as follows:

"In this matter heretofore submitted to the court, the court considering the law and the evidence to be in favor of the plaintiff, for the reasons orally assigned.

"It is ordered, adjudged and decreed, that there be judgment herein (in compensation) in favor of the plaintiff, Alphonse Murphy, and against the defendants, B. Mutti, Inc., and Great American Insurance Company of New York, jointly and in solido, for the sum of $ 9.75 per week from December 28, 1934 to December 8, 1935, and with legal interest on all deferred payments from date due until paid, subject to a credit of six weeks at $ 9.75 per week.

"It is further ordered, adjudged and decreed, that the said plaintiff shall submit to an operation for cure to his hernia, suffered by him, on or before July 26, 1935, by physician to be selected by him (all hospital and medical fees to be paid by the defendants) and on his failure to submit to said operation, the defendants herein shall be relieved from the payment of any compensation from and after December 8, 1935.

"It is further ordered, adjudged and decreed, that should plaintiff delay the performing of the operation by more than two weeks from this date, but shall subsequently submit to same, that the delay between July 26, 1935 and the date he undergoes said operation, shall be deducted from the period of his compensation.

"It is further ordered, adjudged and decreed, that should the health of the plaintiff prevent the operation at the present time, the said plaintiff shall be entitled to additional compensation for the time it is necessary to build up his constitution to submit to same.

"It is further ordered, adjudged and decreed, that in the event that plaintiff shall undergo said operation and same proves unsuccessful he shall be entitled to compensation at the rate of $ 9.75 per week for 400 weeks subject to a credit of whatever compensation has been paid.

"Defendants to pay all costs."

Defendants having appealed, plaintiff has answered the appeal and, to his answer, has attached copies of letters written to counsel for defendants in which he agrees to submit to the operation under the terms and conditions set forth in the judgment.

So far as the Great American Insurance Company of New York is concerned, there is not one word in the record to connect it in any way with the matter except the allegation in plaintiff's petition that it is the employer's insurer. It is evident that the judgment, so far as it runs against this defendant, is erroneous and must be reversed.

Considering first the claim of plaintiff that he sustained a sacro-iliac injury, we reach the conclusion that the evidence does not convincingly show that such injury existed. The medical testimony on this point overwhelmingly demonstrates that he sustained no such injury and that his testimony concerning it resulted from afterthought in no way prompted by the facts.

But there can be no denial of the fact he was and is suffering from a hernia and there is no evidence contradictory of that given by him which is to the effect that this injury was sustained in the course of employment and as the result of accident.

While there may be some doubt as to the ability of plaintiff to do certain kinds of work in his present condition, it is apparent that even defendant's expert surgeons are of the opinion that any laborious work would be fraught with danger and that he should undergo...