Spivey v. Aetna Cas. & Sur. Co.

• Decision Date: 20 February 1961
• Docket Number: No. 21607,21607
• Citation: 127 So.2d 297
• Court: Court of Appeal of Louisiana — District of US
• Parties: James L. SPIVEY v. AETNA CASUALTY & SURETY COMPANY.

Page 297

127 So.2d 297

James L. SPIVEY v. AETNA CASUALTY & SURETY COMPANY.

No. 21607.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 20, 1961.

Rehearings Denied March 13, 1961.

Certiorari Denied April 24, 1961.

Adams & Reese, John T. Cooper, New Orleans, for defendant and appellant.

Dodd, Hirsch, Barker & Meunier, Wilfred H. Boudreaux, Jr., New Orleans, for plaintiff and appellee.

Before JANVIER, REGAN and YARRUT, JJ.

REGAN, Judge.

Plaintiff, James L. Spivey, employed as a roustabout, instituted this suit against the defendant, Aetna Casualty and Surety Company, insurer of H. B. Hughes, his employer, endeavoring to recover maximum workmen's compensation for permanent and total disability, resulting from a heart attack which he asserts was incurred on November 8, 1957, when he attempted to move a water pump, weighing approximately 300 or 400 pounds. Plaintiff further prayed for statutory penalties and attorney's fees.

Defendant pleaded various exceptions which were abandoned and then answered, admitting the occurrence of the accident but denied that plaintiff had incurred a heart attack as a result thereof. In the alternative, the defendant requested that it be credited with compensation ¹ and medical expenses ² previously paid.

From a judgment in favor of plaintiff at the rate of $35 per week, not to exceed 400 weeks, subject to a credit for nine weeks compensation paid in the amount of $315, attorney's fees in the amount of $2,000, and medical expenses in the sum of $1,000, less a credit for such previously paid, defendant has prosecuted this appeal.

Pending this appeal, the plaintiff died on September 24, 1960; his widow, the administratrix of his succession, Mrs. Maudie Pearl Spivey, was substituted in his stead.

At the inception of this opinion we feel compelled to remark that all of the evidence appearing herein, including more than 250 pages of medical testimony, was adduced through the medium of depositions, some of which were unnecessarily laborious and repetitious. In view of the nebulous nature of this case and the fact that the conclusions reached herein by the trial court were predicated on the depositions hereinabove referred to, we feel constrained to quote therefrom more liberally than usual.

The record reveals plaintiff's ³ husband, age 47, had been employed for a little over a year by H. B. Hughes Construction Company as a 'roustabout' whose primary duty was to operate a water pump. Fresh water was transported by barge to Venice, Louisiana. A gasoline pump, mounted on wheels weighing between 300 and 400 pounds, was used by him to pump water from the transporting barge to a smaller one, to expedite the filling of water towers. Usually, two to four men were required to complete this operation as the pump, together with four large hoses, had to be moved manually onto the deck of the water barge.

On November 8, 1957, as was his practice in the past, plaintiff requested his foreman, Harvey Lee, to supply additional men to assist him in moving the pump. He was told there was no one available, and: 'You will have to move it yourself.' In any event, he did move the pump and, as a result thereof, incurred a severe pain in his left chest. He promptly informed the supervisor thereof who advised him to visit a doctor. He selected Dr. James T. Reeves whose office was nearby in Buras, Louisiana.

Lee corroborated plaintiff's testimony in that he usually sent two to six men to help move the pump, and on this occasion he told plaintiff he had no one available. He admitted that 'moving the pump' was not a 'one-man job' and that plaintiff had promptly reported the accident. He did not admit telling plaintiff to move the pump unassisted, however, he thought plaintiff had tired of waiting for help, so he moved it himself.

Plaintiff testified that his injury was diagnosed by Dr. Reeves as a 'pulled muscle'. He was treated for about three weeks with heat and medicine to alleviate his pain.

During this time plaintiff continued to work, but was given a much easier job. It was no longer necessary to move the pump as longer hoses had been attached thereto, so plaintiff's work principally consisted of observing the gauges thereon. He worked 12 hours a day, alternating midnight to noon shifts, seven days a week, and continued to receive his former wage of $400 monthly.

On the 24th of February, 1959, shortly before midnight, he had such severe pains in his chest that he was unable to report for work, nor did he ever return thereto. The next day he reported to H. B. Hughes who advised him to consult another physician. Upon the recommendation of a friend, plaintiff visited Dr. Casimir Di Cristina.

Dr. Di Cristina hospitalized plaintiff in the Montelepre Hospital for about three weeks. His diagnosis was that plaintiff had fractured a rib and treatment was initiated therefor. He appeared to progress satisfactorily and, on March 14th, he was told that he could leave the hospital for two weeks. He then visited his home in Cayuga, Texas.

Plaintiff, whose testimony was both convincing and impressive, related that he had never obtained permanent relief from his chest pain and as a result thereof, he was compelled thereby to consult Dr. John W. Gibson, a general practitioner, residing in Athens, Texas. Dr. Gibson, following a thorough examination, informed him that he had suffered a heart attack on November 8, 1957, and treatment therefor was begun immediately. At the time that Dr. Gibson's deposition was taken on September 24, 1959, plaintiff was still under his care. Plaintiff died on September 24, 1960, apparently from a heart disorder. This information was elicited from respective counsel by interrogation of the court, since no certificate of death appeared in the record.

Dr. Reeves, a general practitioner, whom we have already referred to hereinabove, appeared on behalf of defendant and related that clinically, and through the medium of one X-ray, he had examined plaintiff on November 8, 1957, and was of the opinion that he was suffering from a 'pulled muscle,' and that no rib fracture was revealed by his X-ray. Heat treatment and empirin for pain were prescribed.

Dr. Reeves was shown X-rays made at the suggestion of Dr. Di Cristina, and he testified that one X-ray showed a fracture at the junction of the rib with the cartilage of the 4th rib. He also reviewed an electrocardiogram made at the Montelepre Hospital, and asserted that he saw nothing unusual about it, but very cautiously emphasized that he was not an expert in the field of radiology.

In concluding his deposition, Dr. Reeves restated his diagnosis of a 'pulled muscle', which he said generally heals in a couple of weeks, and if plaintiff had incurred a rib fracture, this would require about six to eight weeks to heal. This testimony was elicited from him since plaintiff continued to suffer from chest pains long after a 'pulled muscle' or 'rib fracture' would normally have healed. He conceded that symptoms exhibited by a pulled muscle are some of the same ones pertinent to a diagnosis of 'cracked' cartilage, arteriosclerosis or coronary occlusion.

Dr. Di Cristina, also a general practitioner, appeared on behalf of defendant and testified that he initially examined plaintiff on February 25, 1958, and hospitalized him from February 26th to March 14, 1958, at which time he was discharged and instructed to return as an 'office patient.' Various examinations and tests were made which included a blood series, an electrocardiogram, X-rays, and cholesterol tests. The cardiogram reflected a normal heart. The first chest X-ray taken on February 25th revealed a heart of normal size and a fracture of the cartilage of the 4th rib, left side.

Dr. Di Cristina expressed the opinion that the plaintiff did not have a myocardial infarction, thrombosis or occlusion; however, he conceded that it was possible that plaintiff's effort to pull the pump may have caused a coronary occulsion or it may have caused a small myocardial infarction, but his diagnosis of a fractured rib, he insisted, was based on objective evidence.

Dr. I. L. Robbins, an internist experienced in the reading of electrocardiograms, also testified on behalf of the defendant. He expressed the opinion that the cardiogram taken of plaintiff at the request of Dr. Di Cristina was within normal limits and therefore revealed no myocardial infarction; however, he very carefully emphasized that he was unable to conclude from one cardiogram that the plaintiff did or did not have a myocardial infarction within the last two months; hence the diagnosis of myocardial infarction could be correct.

Dr. John W. Gibson appeared on behalf of plaintiff and related that he first saw the deceased on March 18, 1958, or about four months after the accident, having been referred to him by attorneys in Athens, for the purpose of determining the extent and nature of his disability. Several days were consumed in acquiring the history of the injury, routine physical examinations, X-rays, electrocardiograms and cardiac tolerance tests. In conformity with plaintiff's account of his previous medical treatment he stated his examination had been directed primarily toward ascertaining the existence of a healed rib fracture or...