Yarbrough v. Great American Indemnity Co.

• Decision Date: 08 March 1935
• Docket Number: 4968
• Citation: 159 So. 438
• Court: Court of Appeal of Louisiana — District of US
• Parties: YARBROUGH v. GREAT AMERICAN INDEMNITY CO

159 So. 438

YARBROUGH v. GREAT AMERICAN INDEMNITY CO

No. 4968

Court of Appeal of Louisiana, Second Circuit.

March 8, 1935

Rehearing denied April 3, 1935.

E. W. &amp P. N. Browne, of Shreveport, for appellant.

Harry V. Booth, of Shreveport, for appellee.

OPINION

TALIAFERRO Judge.

Plaintiff, while performing the duties of his employment to his brother, Sam N. Yarbrough, engaged in the business of excavating and dredging, sustained a serious injury to his left hip joint and to the upper part of the femur of the left leg. He was paid compensation by the Great American Indemnity Company, the employer's insurer, from May 7, 1933, to April 10, 1934, forty-nine weeks, at the rate of $ 9.75 per week, being 65 per cent. of his weekly wages when injured, but further payments were refused. This suit was then filed against the employer and the insurer company to recover compensation at the rate of $ 20 per week for four hundred weeks, less the amounts previously paid him. The basis for this demand for increase in amount of compensation payments is that until a short time prior to the accident plaintiff's wages equaled $ 35 per week, and that he is totally and permanently disabled to perform work of a reasonable character.

Defendant Yarbrough answered, but thereafter made voluntary surrender in bankruptcy. A stay motion filed by him was sustained. He passed from the case.

The insurer filed a plea of estoppel against plaintiff's demand for compensation in excess of the rate paid to and accepted by him for nearly one year, alleging that by accepting such payments he thereby acquiesced in, ratified, and admitted said payments to be correct and proper. This plea was by agreement referred to the merits without prejudice. The insurer's answer is a general denial, with these exceptions: That plaintiff was injured on May 7, 1933, while working for the insured, and that prior payments of compensation to him on basis of temporary disability were made to him. It further pleads, viz.:

"Further answering, respondent shows that it is informed and so alleges, that the said plaintiff could correct all of his injuries and disability by an operation removing the bony protrusion, and that after said operation has been performed, he should have entirely recovered within 90 days thereafter, and therefore in no event is respondent indebted unto petitioner in any further sum than for compensation up to and including July 11, 1934, as for temporary disability.

"Shows further, in the alternative, and only in the alternative, should the court hold that plaintiff is entitled to compensation for a greater period of time than as above set out, then and in such event, he should be limited to compensation as for the loss of a leg, or for a total of 175 weeks at $ 9.75 per week from date of accident; and in no event should he recover more than 300 weeks as for temporary total or partial disability."

And, finally, it pleads in the alternative that should any further compensation be recovered by plaintiff, due credit for the amounts paid him, a total of $ 477.75, should be given it, as well as for $ 283 for hospital and medical bills paid for his account. The prayer of the answer is in consonance with the above quoted and paraphrased allegations.

There was judgment for plaintiff for four hundred weeks at the rate of $ 9.75 per week, less payments previously made to him.

A motion for new trial was filed, based upon the bare averment that the judgment was contrary to the law and evidence in the case. This motion was supplemented by another one, wherein it was specifically urged that a new trial should be granted and the case reopened to afford mover "the right to make a legal tender of an operation by a competent medical expert, to plaintiff, or the price of same." It is alleged in this supplemental motion that it was established on the trial that a surgical operation on plaintiff was necessary to relieve his condition and that same would not be a serious one, from which he would fully recover after five months, and be able to do the same work he did do when and before he was injured. It was further averred that no operation was tendered in open court, when the case was tried, because plaintiff had refused to submit to one before the trial and reiterated such refusal during trial, and a tender would have been vain and idle; and, further, that mover's conception of the law and jurisprudence existing at the time of filing its answer was such that it believed that such an operation would not be ordered, even in the alternative, but that since filing said answer the Court of Appeal, Parish of Orleans, in the case of Crawford v. Tampa Inter-Ocean S. S. Co., 155 So. 409, had held that where an operation is tendered, and if performed it would not be attended by grave danger, in fact would not be a serious operation, the injured employee must submit thereto in order to minimize compensation. These motions were overruled, and defendant appealed to this court.

Plaintiff and his brother, defendant, were engaged in "jacking up" a heavy drag line so that it could be shoved onto a flat car. One of the jacks slipped in some manner, and to avoid being crushed or otherwise maimed from the falling drag line, plaintiff and others there hurriedly sought safety. He was run against or into by one of the laborers and knocked down and onto a pile of brick nearby and received the injuries ultimately producing the cause of disability of which he complains. The base of the femoral neck was fractured, accompanied with a tearing loose and displacement upwards for one and one-half inches of the lesser trochanter. The ligaments, muscles, and tissues about the joint were also injured. The fractured neck was reduced, and at time of trial there was firm union thereof without any displacement or deformity. The lesser trochanter, however, in the words of Dr. Durham, "remains in same position (after being displaced) and has become strongly united to the shaft (femur) by an elongated spur of bone about one half inch in diameter." It is one and one-fourth inches long. Dr. Durham, in his report, further says of this bony spur:

"This abnormal bone formation or exostosis has evidently formed in the torn periosteum which remained attached to the femoral shaft and displaced lesser trochanter. This bony exostosis is the probable cause of the occasional pain of which the claimant complains, since it is in very close apposition to the ischium and may, when the leg is forcibly adducted, impinge against it."

Plaintiff was taken to a sanitarium immediately after being hurt and remained there, in a plaster paris cast, for six weeks. He was confined to his bed at home for sixty more days, and following this experience he went about with the aid of crutches for another sixty days. When the case was tried (June 15, 1934), he complained of a stiffness and soreness in and about the hip joint, which was aggravated by standing on his legs for long intervals and by walking. He was unable to stoop over and lift heavy weights without experiencing pain about this joint, and when he makes an awkward step, or the left leg is forced to extreme ranges, the pain is more severe and acute. There is also some weakness in the power of flexion of the left thigh. These pains and lack of flexion, Dr. Durham is of the opinion, are due to the bony exostosis impinging against the lower dorsal part of the innominate bone, called the "ischium." This reasoning, in view of the juxtaposition of these bones, appears to be sound. The unnatural exostosis pressing into and against the flesh around it and against the ischium, it seems, should produce the pain and discomfort of which plaintiff complains. He has not the function of the leg necessary to perform hard manual labor.

Plaintiff is 52 years of age, and prematurely old in appearance. He was a foreman in his brother's working organization, but performed heavy work himself. His duties required him to be on his feet nearly all the time. It was also his duty to keep the time of the laborers under him. It is not shown what other line of work, if any, he ever followed. It is shown that he is now incapable of performing the duties he was...