Patrick v. Grayson & Yeary

• Decision Date: 24 March 1930
• Docket Number: 3701
• Parties: PATRICK v. GRAYSON & YEARY ET AL
• Court: Court of Appeal of Louisiana — District of US

127 So. 116

13 La. App. 228

PATRICK v. GRAYSON & YEARY ET AL

No. 3701

Court of Appeals of Louisiana, Second Circuit

March 24, 1930

Rehearing Refused April 10, 1930.

Writ of Certiorari and Review Refused by Supreme Court May 5, 1930.

Appeal from the First Judicial District Court, Parish of Caddo. Hon T. F. Bell, Judge.

Action by Ivan Patrick against Grayson & Yeary et al.

There was judgment for plaintiff and defendants appealed.

Judgment affirmed.

Harry V. Booth, of Shreveport, attorney for plaintiff, appellee.

John B Files, of Shreveport, attorney for defendants, appellants.

OPINION

DREW J.

Plaintiff brings this suit for compensation under the Employers' Liability Act (Act No. 20 of 1914, as amended), alleging that he was employed by the defendant, a commercial partnership, as saw filer, and that his duties required him to do anything necessary to be done around the mill, and that on the day he was injured he was attempting to crank a gas engine which operated and controlled a water pump by which water was furnished to operate the saw mill and planer. That while in the act of cranking said pump he felt a sharp pain in the small of the back near the left hip bone, which pain at the time nearly prostrated him; that he fell to the ground and was unable for some time to arise for the reason that he could not pull his feet together on account of the severity of the pain; that the injury caused severe damage to the muscles, tendons and ligaments in the lower portion of the back near the left hip bone, in or near what is known and referred to as the sacro-iliac joint; and that it caused a sprain of the sacro-iliac joint, totally disabling him from doing work of any reasonable character. He further alleges that he reported the injury to the defendant and that defendant did not offer him any medical attention. He prays for judgment in the sum of $ 20 per week for a period of 400 weeks and for the further sum of $ 250 for medical service and fees.

Defendants admit the allegation of commercial co-partnership and that the partnership is domiciled in Caddo parish, Louisiana, and, further answer by pleading a general denial of each allegation of the plaintiff's petition.

There was judgment in the lower court for the sum of $ 15 per week for a period of not exceeding 300 weeks, the first payment to be due as of May 17, 1929, together with 5 per cent. interest on each payment from its maturity until paid, subject to a credit of nine weeks theretofore paid, and rejecting, as of non-suit, plaintiff's demand for medical fees.

From this judgment the defendant appealed, and plaintiff has answered the appeal, asking this court to amend the judgment of the lower court by allowing $ 75 as fees of expert witnesses and allowing $ 250 as medical fees.

Plaintiff began work for defendant about the first of February, 1929, and, on the 5th of March thereafter, while attempting to crank an engine used to operate a pump which furnished water for the saw mill and planer it was necessary for him to extend himself in a rather awkward position, and while in the act of trying to spin the crank of the engine, the crank being somewhat similar to the crank of an old model Ford, he felt a severe pain in his back. He was forced to sit down and remain there about ten minutes before he could get up, due to the fact that he could not get his feet together. As soon as he was able to do so he returned to the mill, a distance of approximately a half mile, and reported to Mr. Yeary, one of the partners, and who was in charge of the mill, that he had hurt his back trying to start the engine, and that he was not going to try it any more, and that he would have to send someone else to start the pump. There were no witnesses to the accident, due to the fact that the pump is located out in the woods on a branch. However, we think the testimony of plaintiff and of the defendant, Yeary, is sufficient to establish the fact that the accident occurred as alleged by plaintiff, and that the same was reported to the defendant at the time.

Defendant did not suggest that plaintiff see a physician or offer the service of one, and in fact the testimony shows that plaintiff did not visit a physician until a week or more after the accident when he went, of his own accord, to Dr. Gandelman, who diagnosed his trouble as a sprain of the sacro-iliac joint and gave him a purgative, suggesting that he have an X-ray made, and on the following morning when plaintiff called on him again, he strapped plaintiff's back with adhesive tape.

Plaintiff states that his back continued to hurt him from the time of the accident, although he continued to work at the mill on the day of the accident and thereafter until May 10, 1929, at which time he quit. He states that he worked under difficulty, and did not do any more than he had to, that other men in the mill assisted him in his work, and that he really was not able to carry on his work. This testimony is corroborated and contradicted. However, there is no reason given for his quitting, except that he was no longer able to do the work and that he had allowed the mill to run down by not being able to properly do his work. During this time, he had complained on a number of occasions, to the other workmen, and to the defendant Yeary.

Some time after the accident, another mill in Texas offered plaintiff a job with a salary of $ 125 a month, which was a raise of $ 25 a month over what he was then receiving, and the raise was met by the defendants on April 1, 1929, after the accident.

Between the time plaintiff was injured and the time he quit, he only lost four or five days at one time, while attending physicians for examination and treatment in the Charity Hospital.

We think the evidence is clear that plaintiff received an injury to his back, as alleged by him, and that he suffered from that injury during the time he continued to work for defendant, and there is no dispute that at the time of the trial plaintiff was disabled insofar as doing any reasonable work of the character he was accustomed to do.

The evidence is also convincing that plaintiff was suffering from arthritis of longer duration than the time of the injury. Plaintiff was not disabled before the accident, and had never before complained of his back. This was shown by witnesses who worked with him and who had known him for many years. He did suffer continuously after the accident, and within two months' time became totally disabled, and this condition continued up to the time of the trial.

In the case of Hammons vs. Southern Carbon Co., 5 La. App. 187, the court said:

"The physicians for defendant, as we gather, attributed the condition of plaintiff solely to arthritis, and although they did not so state we infer that the disease had at the time of the accident reached such a stage that disability would have soon resulted without regard to the accident; but it does not follow that the accident was not a contributing cause to his disability, which, as we have stated, was inferentially shown by the fact that plaintiff was not disabled before the accident and has been continuously disabled since."

"The fact that an employee, injured in performing services arising out of and incidental to his employment in the course of his employer's occupation, was already afflicted with a dormant disease that might some day have produced physical disability is no reason why the employee should not be allowed compensation, under the employers' liability statute, for the injury which, added to the disease, superinduced physical disability." Behan vs. John B. Honor Co., Ltd., 143 La. 348, 78 So. 589, L.R.A. 1918F, 862; Craft vs. Gulf Lumber Co., 151 La. 281, 91 So. 736, 737.

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