Tate v. Gullett Gin Co.

• Decision Date: 20 March 1956
• Docket Number: No. 4168,4168
• Citation: Tate v. Gullett Gin Co., 86 So.2d 698 (La. App. 1956)
• Parties: Adolphus TATE, Plaintiff-Appellant, v. GULLETT GIN COMPANY & LIBERTY MUTUAL INS. CO., Defendants-Appellees.
• Court: Court of Appeal of Louisiana

Page 698

86 So.2d 698

Adolphus TATE, Plaintiff-Appellant, v. GULLETT GIN COMPANY & LIBERTY MUTUAL INS. CO., Defendants-Appellees.

No. 4168.

Court of Appeal of Louisiana, First Circuit.

March 20, 1956.

Rehearing Denied April 27, 1956.

Writ of Certiorari Denied June 11, 1956.

Edgar Corey, New Orleans, Iddo Pittman, Jr., Hammond, for appellant.

Ponder & Ponder, Amite, for appellee.

TATE, Judge.

This is a workmen's compensation suit. The chief issue is whether plaintiff is disabled by traumatic neurosis. Appeal is taken from judgment dismissing plaintiff's suit.

Plaintiff Tate allegedly wrenched his back at work while lifting a 370-Ib gin brush, on or about September 22, 1953. He continued working until September 28th, according to his testimony with increasing pain. He is somewhat corroborated by a co-employee, Hart, who while denying Tate's informing him immediately after the accident, admitted Tate told him of same 2 or 3 days later and was walking 'sort of stiff-backed'. On September 28th he reported his need of medical attention to his foreman, and was sent to Dr. R. W. Osborn, who found a mild lumbosacral strain for which Tate was treated for about 10 days and discharged on October 7th as cured. ¹

Although defendants contend no accident was proven, the testimony of the employee corroborated by surrounding circumstances preponderantly proves the initial accident, see Zito v. Standard Accident Insurance Company, La.App. 1 Cir., 76 So.2d 25, Dolhonde v. Gullett Gin Co., La.App. 1 Cir., 25 So.2d 104. It may be noted that Tate consistently repeated from the beginning this history of a wrenching back injury, nor did the District Court find an accident did not occur.

The serious question for our determination is whether there is any residual disability resulting from what concededly was not a serious injury.

The testimony of Dr. Osborn and of Dr. R. H. Alldredge, orthopedist, support the District Court's finding that as of the trial there was no residual physical or functional disability at the time of the trial, despite plaintiff's contention that the hypertrophic fringes about the bodies of the lumbar vertebrae shown by x-ray represent an aggravation of a dormant osteo-arthritic condition into a painful one. According to Dr. Alldredge, such formations properly speaking were not a disabling osteo-arthritis, but a non-disabling osteo-phytosis which probably antedated the back strain by several years.

Plaintiff's initial petition filed December 19, 1953, alleged disability resulting only from 'lumbo-sacral sprain, aggravation of an arthritic condition of the lumbar vertebrae.' By amended petition filed April 8, 1954, plaintiff further supplemented his claim of disability as resulting from 'post-traumatic neurosis'. Defendant's argument that said amended and supplemental petition could not be filed (after its answer and the initial fixing for trial) as changing the nature of the demand, overlooks the statutory provision that in compensation suits 'the court may in its discretion * * * allow amendments of the petition and answer at any stage of the proceedings', LSA-R.S. 23:1315; Osborne v. McWilliams Dredging Co., 189 La. 670, 180 So. 481, Clark v. Employers' Liability Assurance Corp., La.App. 1 Cir., 27 So.2d 464. 'Amendments are permissible at any stage of such a case, even in the Supreme Court', Mitchell v. Sklar, La.App., 196 So. 392, 394. The District Court properly allowed filing of the amended and supplemental petition.

Concerning the disability resulting from traumatic neurosis or hysteria, there are two depositions from medical expert psychiatrists in the record, that of Dr. H. R. Unsworth, offered on behalf of plaintiff, and that of Dr. David Freedman, offered by defendant.

Defendant objected to admissibility of the former deposition taken by oral examination for several reasons. Its contention that the testimony of this apparently well qualified psychiatrist should be totally disregarded because of a critical view expressed by our brethren of the Orleans Court as to his attitude toward the case their in question, Ladner v. Higgins, La.App., 71 So.2d 242, is unsupported by any citation of legal authority or reason.

Further, we see as little merit in its contention that counsel for defendant was relieved from attending the deposition on April 19, 1954, pursuant to notice received by it on April 9, 1954, as provided by LSA-R.S. 13:3761, by an order to show cause obtained by defendant on April 17, 1954, returnable on April 30, 1954, 'why supplemental petition should not be stricken from the record, and why any testimony taken April 19, 1954, under the discovery rules of practice should not be excluded from the record.' This is not by its terms such an order whereby a court may 'for cause shown enlarge or shorten the time', LSA-R.S. 13:3761, or may 'upon motion seasonably made * * * upon notice and for good cause shown * * * order that the deposition shall not be taken,' LSA-R.S. 13:3762.

However, defendant correctly urges that the deposition of Dr. Unsworth offered by plaintiff, sworn to and taken before plaintiff's attorney, was not admissible since: 'Depositions shall be taken before an officer authorized to administer oaths, who is not an employee or attorney of any of the parties or otherwise interested in the outcome of the case', LSA-R.S. 13:3743. (Italics ours.) For defendant did not agree to the deposition to be taken before such officer, LSA-R.S. 13:3741, nor waive by failing to object to such disqualification 'before the taking of the deposition', LSA-R.S. 13:3744, subd. B since counsel for defendant failed to appear at such time. It therefore appears that the objection was timely made 'as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.' LSA-R.S. 13:3744, subd. B.

For this reason, we are unable to consider the deposition of Dr. H. R. Unsworth and must sustain the objection of defendant to its admissibility.

Defendant took the deposition of Dr. David A. Freedman, psychiatrist and neurologist, and Dr. Rufus H. Alldredge, orthopedist above discussed, by written interrogatories after trial, reserving his right to do so at the end of the trial. Counsel for plaintiff objected to the motion to issue a commission to take written interrogatories as no longer authorized since the specific repeal of Code of Practice Articles 425-440 by the Louisiana Depositions and Discovery Act, Act 202 of 1954, Section 2, LSA-R.S. 13:3741 et seq. Reserving its rights, however, plaintiff filed cross interrogatories. All of these interrogatories and cross interrogatories were duly answered before the Notary to whom the commission and interrogatories were sent.

Although indeed the procedure utilized appears to have been that formerly required by the repealed codal articles, we fail to see how plaintiff was prejudiced, since the substantial requirements of the less cumbersome procedure of the new Depositions Act for depositions by written interrogatories were met, see LSA-R.S. 13:3771, 3772.

The deposition of Dr. David Freedman is therefore properly before us and was properly considered by the District Court. As to this testimony, the District Court simply observed: 'The testimony of Dr. Freedman, a neurologist and psychiatrist, is that the man did not have any post traumatic neurosis.'

Because we believe that the very able District Court reached an erroneous conclusion concerning Tate's neurotic disability largely attributable to overlooking the full content of Dr. Freedman's deposition, filed long after the closing of the trial, we are setting forth at some length excerpts therefrom:

'A. I was not asked to see Mr. Tate from the standpoint of his physical problem. I was asked to evaluate him from a psychiatric standpoint and I did not perform a physical examination. (Tr-5)

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'A. I did not examine this man from the standpoint of post traumatic neurosis. I found him to be in manner a pleasant and cooperative man. He gave me the appearance and history of a steady, sober, hard-working individual who had worked for this company for many years, because he had a very strong sense of duty and was imbued with the feeling that unless he worked hard he would lose all support and all security; that he displayed a great deal of anxiety about his security and a great deal of need to conform and do the proper things. The picture he presented did not seem to me to be that which I associate with a diagnosis of post traumatic neurosis; that is, no acute and sudden event had occurred which overwhelmed this man so that he was left with marked symptoms of anxiety. It seemed to me that possibly he had suffered some local trauma to an already pathological area, an inference I drew from having read the reports of other examiners, and I felt that his preoccupation with this area together with his anxiety about being out of work, apparently the first time that he had found himself to be physically incapacitated in many, many years, led to a fixation of his symptoms. (Tr-8-9)

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'A. According to my concept of a post traumatic neurosis he is not suffering from post traumatic neurosis. (Tr-9)

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'A. According to my conception of a post traumatic neurosis Mr. Tate's findings are inconsistent with such a diagnosis. (Tr-10)

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'Q. 22. Doctor, it is your opinion, is it not, that the combination of whatever injury Tate suffered and his own insecurity may well have served to fix his attention on his back and intensify what in themselves might not be significant symptoms? A. Such was my opinion.

'Q. 23. And it is your opinion, is it not, Doctor, that the accident and injury brought into play and focused his attention on the previous pathology in his back? A. It is my opinion that symptoms which previously were present but which he tended to disregard he now began to pay attention to, yes.

'Q. 24. Doctor, is it not also your opinion that...