Smith v. Brown Paper Mill Co., Inc.

• Decision Date: 05 February 1934
• Docket Number: 4674
• Citation: 152 So. 700
• Court: Court of Appeal of Louisiana — District of US
• Parties: SMITH v. BROWN PAPER MILL CO., Inc

152 So. 700

SMITH v. BROWN PAPER MILL CO., Inc

No. 4674

Court of Appeal of Louisiana, Second Circuit.

February 5, 1934

Julius T. Long, of Shreveport, for appellant.

Shotwell & Brown and Theus, Grisham, Davis & Leigh, all of Monroe, for appellee.

OPINION

MILLS Judge.

Charles H. Smith brings this action against his employer Brown Paper Mill Company, Incorporated, claiming compensation for four hundred seven-day weeks at $ 9.10 per week, and $ 200 medical expenses, under the provisions of Act 20 of 1914, as amended; and, in the alternative, damages in the sum of $ 35,000 under article 2315 of the Civil Code. He alleges that while in the course of his employment, he was compelled by the order of defendant to submit to an injection of typhoid serum in the left arm, by a trained nurse in the employ of defendant; that as a direct result of the inoculation his left arm was permanently paralyzed and the shoulder and right side, abdomen, and hip are seriously and permanently impaired, rendering him unable to ever again do work of any reasonable character.

In support of the alternative plea, he alleges that the injection was improperly and negligently given, in that it was made too near the shoulder so that it affected the musculospiral nerve.

The correctness of the overruling by the lower court of an exception of no cause or right of action, and a motion to strike out, is not before us for review, as defendant did not appeal nor answer the appeal of plaintiff.

The allegations of the petition denied in the answer are that the employee was required to take the treatment, and the claim to a seven-day week. The answer affirmatively sets out that the nurse was permitted to give these inoculations for the benefit of the employees and the people of the community and only at their request; that in the present instance it was given in the proper manner and without accident or negligence; that plaintiff's admitted impairment was a hazard incidental to the treatment so rare in its occurrence that it could not be foreseen and guarded against.

Plaintiff appealed from a judgment rejecting his demand.

The testimony shows that the defendant maintains in its mill a first-aid room for the speedy treatment of sick or injured employees and engages a trained nurse to take charge of the room and administer necessary treatments. That because of this service its rates on employer's liability insurance are decreased. The woman in charge was an experienced and competent operator. It is not improper for such a nurse to give injections of typhoid serum. This serum is injected into the system with a hypodermic syringe having a needle one-half inch long. The proper and accepted method is to lift the skin from the muscle tissue with the thumb and forefinger of one hand and with the other force the needle through the skin and discharge the serum between the skin and the muscular tissue.

Owing to the pollution of its waters due to flood, the Health Unit of Ouachita Parish was giving these inoculations to the citizens free of charge. The Brown Paper Mill Company obtained a supply of serum from the parish and instructed and authorized its nurse to give the treatments to its employees and to other people of the vicinity. A notice was posted upon the company's bulletin board at its plant, the wording of which is disputed. Plaintiff contends that it read: "To All Employees of the Brown Paper Mill: Report to first-aid room for typhoid shots." The nurse testifies that she wrote and posted the notice, but that she could not remember its exact wording; that according to her recollection it read something like: "Those desiring typhoid shots report to the first-aid room this week." The sign was not offered in evidence. It is not shown that signs were posted by the company anywhere except at its plant. It had been the custom for five years for the company to post these notices and give these shots. It was not only inconvenient, but impracticable, for the workmen to go to the place, five miles distant, where shots were given by the parish authorities. On this point the nurse testifies: "The main reason we give them out there, the men were working 8 or 9 hours a day and had no way to come to town and besides that they would get off from work after the Health Unit was closed and when they went to work they didn't have time to go. The hours they worked they couldn't get to the Health Unit."

On April 10, 1932, at about 9:30 a. m., while the cutter on which he was working was temporarily stopped, plaintiff, who had already received from the nurse at least two of the series, stepped into the first-aid room and was given another injection. She says it was given in the left arm about two inches below the point of the shoulder, in the deltoid region of the arm, under the skin, and in the usual and proper manner. He says that the needle was driven into the muscle. Smith experienced no immediate ill effects, but after returning to work, about 2 o'clock in the afternoon, he felt a tingling sensation in the fingers of his left hand. By 3:30 his arm had begun to go dead, and pain had increased to such an extent that he was relieved from work and went home. He awoke from a troubled sleep at about 9 o'clock that night to find his left arm paralyzed. The disability has extended to his abdomen, side, and hip, so as to render him totally, and we think permanently, disabled.

The facts in the case are so little in dispute that as to the right to compensation the issues are reduced to two: Was there an accident within the terms of the act; and, if so, did it arise out of the employment?

Section 38 of Act No. 20 of 1914, as amended by Act No. 38 of 1918, reads in part: " (3)5C that the word "Accident,' as used in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening, suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury."

There may be some question of degree, but there can be no doubt that the puncturing of the skin and tissues with a hypodermic needle and the forcible injection into the system of a foreign serum is an act of violence to the physical structure of the body. In this case the act itself was contemplated, but the disastrous results directly attributable to the act happened suddenly and were wholly unforeseen and unexpected.

That the injection caused the disability is admitted. Why it did so is a question made difficult of solution by the usual hopeless conflict in the medical testimony, in this case extending even to the location of the musculospiral nerve. It seems that there are two possible explanations: The occurrence of what is termed "serum disease," or an injury to the musculospiral nerve. The disease occurs so rarely that it is little understood by the medical profession. The danger from it is not of sufficient gravity to discourage the giving of the treatment. It may result from the use of any serum injected into any part of the body. An injection in the leg may result in paralysis of the arm. The authorities say that it is due to a rare hyposensitiveness peculiar to the individual. Neither its symptoms nor the final paralytic result become apparent as quickly as occurred in the present case. The investigation of this unusual medical complication has been most interesting. We could write several pages in attempting to explain what the doctors themselves are unable to make clear. We will, however, content ourselves by stating that in our opinion the paralysis was caused by the destruction of the musculospiral nerve, not by serum sickness, but by the injection of the serum into or in the area of the nerve, causing direct injury or shock. We draw this conclusion from the tingling sensation felt in the fingers so soon after the puncture of the arm, the resulting paralysis occurring within twelve hours, and the absence of any rash or skin eruption. Also from the fact that the two or three previous injections had failed to injuriously affect the patient. We are not prepared to say just what the nurse did, but it is evident that she accidentally and unintentionally gave this injection in a different manner from those given before, to have caused the startlingly different result.

Dr. J. W. Williams, the parish health officer, testifying for defendant, says:

"Q. Typhoid fever serum supposed to be given in the muscles? A. Try to keep it out of the muscle, but we certainly put it a million times in the muscle." This is not a case where a pre-existing disease is activated or accelerated by an accident, but is one where the injury originates directly from...