text:
    Ernest GLOSTON v. COAL OPERATORS CASUALTY CO.
    No. 4108.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    Rehearing Denied Feb. 3, 1956.
    Writ of Certiorari Denied March 26, 1956.
    Gravel, Humphries, Sheffield .& Mansour, Alexandria, for appellant.
    Dubuisson & Dubuisson,. Opelousas, for appellee.
   LOTTINGER, Judge.

This is a suit for workmen’s compensation wherein the petitioner claims total and permanent disability, as well as' penalties and attorney fees. The defendant is the insurer of petitioner’s employer, Wesley Darby. The Lower Court awarded judgment for petitioner in the sum of $27.50 per week commencing July 8, 1952, during the period of his total disability not to exceed 400 weeks, subject to a credit of $426.29 already paid, plus medical expenses up to $1,000 subject to a credit for medical expenses paid by defendant, plus 12% penalty and $1,100 as attorney fees. The defendant has appealed.

The evidence discloses that petitioner is a common laborer of approximately 38 years of age. He has never been to school and has little education, if any. He is unable to read. He alleges that on July 8, 1952, and prior thereto he was working for Wesley Darby as a truck driver. Mr. Darby was a contractor and at the time of the alleged accident, petitioner was hauling gravel to a site where a bridge was being constructed. Petitioner’s general duty was to drive the dump truck, however, on some occasions it was necessary for him to help load the gravel into the dump truck from a railroad box-car by means of a shovel.

At the time of the alleged accident, petitioner had just hauled a load of gravel to the construction site in St. Landry Parish, and was'on his return run. He heard air leaking from one of his tires, and stopped to check. His inspection showed that the right rear tire to the outside of the truck was flat. He secured a lug wrench from the truck and commenced to take the wheel off the axle. The lug Wrench slipped' and petitioner fell backward against a stump which was lying alongside the' road. His back struck the stump at the small of his back, and he lay there motionless for an undisclosed period of time, from five tó twenty minutes.

When petitioner had recuperated somewhat, he got into the truck!and drove to his employer’s home where he told Mr. Darby of the accident. Petitioner claims that Mr. Darby took him into town, purchased a Red Cross plaster for his back and then drove petitioner home. As a result of the accident, petitioner claims that he suffered a marked' protrusion of the lumbo-sacral intervertebral disc, with severe compression of the first sacral nerve on the right. He complains of pain to his back and says that he is unable to resume work of any reasonable character.

Unfortunately the alleged accident to petitioner occurred on a lonely gravel road and there were no eye witnesses to the accident. Defendant contends that he knew nothing of any type of accident to petitioner until several days after the alleged date of the accident. The defense further attempted to. show that petitioner was a malingerer, and had missed work often, and was always complaining of being sick.

Several neighbors and acquaintances of petitioner testified in behalf of an injury to petitioner. While they knew nothing of the accident itself, they testified that, at the approximate time of the accident and thereafter, petitioner began to walk with a stick and that he would bend over as though his back hurt. They testified that, prior tp the time of the accident, petitioner was, a hard worker.

Defendant claims that plaintiff has failed' to prove the accident and has cited Malone, Louisiana Workmen’s Compensation Law and Practice, 1951',’Chapter 12, Section'252, pages 294, 295, as follows :

“In such cases proof by eyewitnesses is not always feasible, and the courts have been willing to rely upon the testimony of the plaintiff alone to establish the occasion on which he was injured if his story is plausible and consistent and is supported by surrounding circumstances.”

They contended in this connection that plaintiff’s story is not plausible and not consistent .and is not supported by -surrounding circumstances. To this argument we do not fully agree ■ as we are of the opinion that his story is plausible and consistent and is supported by surrounding circumstances. The facts .hereinabove stated is plaintiff’s testimony. In addition to that his sister Elvira Gloston with whom he was staying at the time testified as follows:-

“Q. Now when did you first know that Ernest was complaining about having hurt his back ?
“A. When,he came home that day with the Red Cross plaster.”

We next note that the plaintiff was examined by Dr. S. J. Rozas on July 9, 1952 which was the day after the accident -and plaintiff informed the Doctor of the history of -the accident the same as is stated hereinabove and the Doctor' diagnosed plaintiff’s condition as sacroiliac sprain. We do not believe that this mentally deficient man would know enough about the compensation law to report a false story to his Doctor the day after the accident and then to adhere to the same facts throughout the entire investigation ■ of the claim, the medical treatment of the injury and the trial of the case.

The Lower Court felt that the petitioner proved the accident, as it awarded him a judgment. We do not feel that there is any error in such finding as would justify a reversal thereof. The trial Court was personally faced by all of the witnesses, and was in an excellent position to weigh the credibility of their testimony. It evidently chose to believe the testimony of petitioner and his witnesses on this score, and we certainly are unable to find any obvious error in the finding.

The medical testimony is almost as conflicting as the testimony as to the accident itself. On the first day following the accident, petitioner was examined by Dr. Rozas in Opelousas. His diagnosis was sacroiliac sprain. His treatment by Dr. Rozas lasted from July 9, 1952, through October 24, 1952. During this period of time, he received treatment by the doctor, or his staff, for an average of about every other day. ■ On October 13th, Dr. Rozas put petitioner in the hospital at the suggestion of Dr. Gilly, so that petitioner might receive complete bed rest and so that he could receive' Buck’s extension, which is a device to' put traction on the leg to relieve pain in the back. Petitioner remained in the hospital for a period of eight days. At the end of the hospitalization period, petitioner told Dr. Rozas that he. felt much better and wanted to go back to work.

The day after leaving the hospital, petitioner attempted to help a friend dig fencepost holes when-he immediately experienced severe pain in his back causing him to go back to bed.

It is interesting to note that on August 21, 1952, Dr. Rozas wrote a letter to the defendant company to the effect that petitioner was a malingerer/ However, he further stated in his letter as follows: .

“My suggestion, therefore, would be either an examination by a specialist or a settlement or possibly a combination of both in order to be of absolutely sure grounds and have somebody else’s opinion of his general condition.”

In spite of this letter, the doctor treated the patient until the end of October, and, during the month of October, put petitioner in the hospital on the recommendation of Dr. Gilly.

Dr. Gilly is an orthopedic surgeon in Lafayette, Louisiana. His testimony was introduced via deposition. He examined petitioner first on September 10th, 1952, at the request of Dr. Rozas. ■ He found “tenderness over the spinus process of the fourth and fifth lumbar vertebra and marked muscle spasm of the right erector spinae muscle groups.” He again examined petitioner on October 29, 1953, at which time the patient still complained of tenderness over the spinus process of the fourth lumbar vertebra. His opinion, at this time, was “that the patient was mostly exaggerating his complaints and that his responses to certain tests were definitely not consistent in that I felt that after a history of approximately ten months of sciatic pain the findings would be definitely localized and there would be some depression of reflexions as well as muscular atrophy which it failed to do in this instance.”

Dr., Gilly testified that on his first examination of September 10th, he was definitely of the opinion that petitioner was disabled to perform his duties. As a result of this examination he reported to defendant that this plaintiff had sustained a moderately severe sprain of the lumbosacral spine which was still present and that his complaints of pain were still valid. He recommended that plaintiff be hospitalized and given traction and further reported in September 1952 that plaintiff would be disabled for at least four months. The doctor did not rule out the possibility of a disc injury, as sometimes they cannot be detected except-by surgery. Dr. Gilly did find muscle spasm on his last examination. Although he believed that petitioner’s complaints were exaggerated, he did feel that petitioner was experiencing pain.

Petitioner was examined by Dr. Moss M. Bannerman, an orthopedic surgeon, on December 22, 1952. His letter, of January 13, 1953; to defendant compány is in part as follows:

“This patient apparently sustained a rather severe contusion over his lower back at the time of the fall. He did not show any seriously disability or abnormalty on the present examination. The strength appeared to be good and his motion is satisfactory but the only persistent finding which we have is some tenderness over 1^-5 S-l.
“In' view of the negative x-ray findings it is thought that these are incidental to his injury but do not represent any type of serious disability. It is thought that the continued use of heat, hard bed, arid perhaps a slight correction, of his right heel, together with postural exercises will cause a disappearance of these complaints over the next four to six weeks.
“I would suggest that he be. instructed iñ these lines and if his progress is not 'satisfactory over the next month or so have him return for further examination.”

The doctor did not rule out the possibility, of a disc injury. He stated that sometimes the patient with such injury would be free of pain and the usual symptoms of a disc, and that on other occasions the pain and symptoms would reappear. He testified-that x-rays showed some narrowing of the space between 1^5 and S-l. He did not think plaintiff to be a malingerer.

Petitioner was examined by Dr. Homer, D. Kirgis, a neuro-surgeon, whose examr ination was performed on February 21, 1953. He testified as follows:

“There was marked spasm of the lumbar and sacral perivertebral muscles, with considerable flattening of the lumbar lordotic curve. There was also a scoliosis of the lower spine, with the concavity of the scoliotic curve facing the right.
“There was severe exacerbation of. his discomfort with percussion over the lumbosacral interval space, and with such percussion the pain would radiate from the lower part of the back into the posterior or lateral aspect of the right lower extremity.
“To. sensory examination, there was rather marked hypoesthesia; that is, diminished sensation in the area of distribution of the first sacral nerve on the right.
“There was slight degree of weakness of the posterior and lateral leg inuscles on'the right, but there was no atrophy present.
“The reflexes were bilaterally equal and normal, except for the right ankle, which was moderately hypoactive.
“The straight leg raising was very severely positive on the right, and with this test there was both exacerbation of pain in the lower part- of the' back and in the right lower extremity.
■ “This test applied on the left caused exacerbation of pain in the lower part of the back and also pain in the right lower extremity.
“The flexed leg raising test caused exacerbation of the pain in the lower part of the back. This test was positive bilaterally, but was more positive on the right than on the left.”

Dr. Kirgis testified that x-rays revealed a slight degree of narrowing of the lumbo-sacral intervertebral disc space. He stated that, at the time of his examination, petitioner was completely disabled, and that the history and findings were completely compatible with th¿ diagnosis of herniation of the lumbo-sacral interval disc, with severe compression of the first sacral nerve on the right. Dr. Kirgis felt certainly, to avoid an extremely long period of disability, he ■should have the nerve decompressed by an operation.

At the request of defendant, the patient was examined by Dr. Karr, a neurological surgeon,-on November 23, 1953, who found no symptoms of a disc injury. He felt that petitioner showed no disability. We feel that the ■ medical evidence as a whole discloses that the petitioner did suffer a disc injury which would disable him from performing his duties as a truck driver. Dr. Kirgis was very definite in his opinion, and as a. fact, was so definite in his opinion as to recommend surgery. He took into consideration the length of time which had elapsed since the accident, and felt that, due to the history and symptoms found on his examination, surgery was definitely justified.. Most of the other doctors who examined petitioner did so prior to Dr. Kir-gis’ examination, and it appears that they felt that the symptoms might disappear in due time, however, as Dr. Bannerman stated “if his progress is not satisfactory over the next month or so have him return for further examination.”

There is no serious question as to the, compensation allowed, petitioner by the Lower Court, and we feel that same was justified by the evidence. On this score, therefore, the judgment of the Lower Court will be affirmed.

Nor do we find any error in the award of penalty as per the provisions of LSA-R.S. 22:658. According to this section of law and the cases of Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695 and Richard v. Traders & General Ins. Co., La.App., 62 So.2d 533, the’ plaintiff is entitled to penalty and attorney’s fees if he can prove that his compensation was discontinued capriciously, unlawfully and arbitrarily and without probable cause. It is stipulated in the record “that the first draft was mailed to the employer July 29, 1952 in the amount of $55.26 covering the period of July 16, 1952 through July 29, 1952; that the second draft was mailed to the employer on August 11, 1952 in the amount of $27.63, covering compensation from July 30, 1952 through August 5, 1952; the third draft was mailed to the attorney on August 21, 1952 in the sum of $82.89, covering the -period of July 9, 1952 through July 15, 1952; and that draft also the period from August 6, 1952 through August 19, 1952; the fourth draft was mailed October 4, 1952 in the sum of $165.78, it was sent the attorney covering the period August 20, 1952 through September 30, 1952; the fourth (fifth) draft was mailed to the attorney on October 14, 1952 in the sum of $55.26, covering the period October 1, 1952 through October 14, 1952; the sixth draft was mailed November 14, 1952 in the sum of $39.47 covering the period of October 15, 1952 through October 24, 1952” which was the date of discharge by Dr. Rozas. As stated hereinabove the accident occurred on July 8, 1952. Plaintiff was treated by Dr. Rozas from July 9, 1952 until October 24, 1952 at which time he was discharged on the strength of the statement made by the plaintiff to the doctor that he was well and able to return to work. It appears from the evidence that on September 16, 1952 Dr. Gilly reported to defendant that petitioner would be disabled for at least four months and recommended traction. It was after the use of this traction as recommended by Dr. Gilly and applied by Dr. Rozas that petitioner advised Dr. Rozas that he thought he was able to return to work, and Dr. Rozas notified defendant that he was discharging petitioner because he was able to return to work. However petitioner immediately learned that he was not able to use his back and defendant was so notified by letter of counsel for plaintiff on November 19, 1952 apprising them that plaintiff’s back was still in pain and that he was unable to do any type of work similar to what he was doing at the time of injury. It should be pointed out here that Dr. Gilly’s prognosis was that plaintiff would be disabled for at least four months from September 16, 1952 which was the date of his letter to defendant. That being true, plaintiff would have been disabled until approximately the middle of January, 1953. According to the record petitioner was examined by Dr. .Bannerman on December 22, 1952 and he reported to defendant on January 13, 1953 that plaintiff might be able to return to work in four to six weeks. It is to be remembered that during all this period of time, petitioner, through his attor* ney, was making demand upon defendant to resume compensation payments to plaintiff, which they failed to do despite the fact of all the medical reports thus had in their possession.. Then again petitioner furnished defendant with a report of Dr. Kir-gis on March 20, 1953 which report was dated March 16,- 1953 on an examination made on February 21, 1953.' Still the de1 fendant failed to pay compensation as is required by law. Suit was then filed on June 19, 1953. Of course after the suit was filed,, plaintiff, was examined by defendant’s Dr. Karr on November 23, 1953, but at the time that suit was filed defendant was in possession of reports of Dr. Gilly, Dr. Ban-nerman and Dr. Kirgis, all to the effect that plaintiff at the time of said reports, was disabled. Defendant only had one report from the local general practitioner Dr. Rozas that he had discharged plaintiff on October 24, 1952 because as stated in his report on said date “patient stated (10/24/52) that he was well and able to return . to work.” In view of the fact that counsel for plaintiff had notified defendant on November 19, 1952 that plaintiff’s back was paining him again and he was unable to work, and in further view of the fact of the medical reports. that were in defendant’s possession during said period of time and immediately thereafter and before and at the timé suit was filed, we are of the opinion that defendant’s failure to resume plaintiff’s compensation payments at that time was capricious, arbitrary and without probable cause and that the penalty allowed by the Lower Court will be affirmed.

As to claim for medical expenses, the petitioner failed to furnish proof. The only medical expenses shown in the record were paid by defendant. Although the provisions of LSA-R.S. 23:1203 allows medical expenses not to exceed $1,000, such expenses must be proved. In the case of Hibbard v. Blane, La.App., 183 So. 39, 43, Justice Hamiter, the then organ of said court, stated:

“ ‘Under the act an injured employee . is éntitled to medical and surgical ex- ' penses not exceeding' $250.00 but unless he spends or becomes obligated for that much he ‘ cannot recover that amount. In any event, he cannot recover more than he proves.’ ”

Likewise in the case of Sewell v. W. Horace Williams Co., La.App., 12 So.2d 33, 35, Justice LeBlanc,. the then organ of said court, said:

“With regard to the $250 allowed for medical expenses we find that the evidence fails to show that plaintiff expended any amount whatever or that he became obligated in any way for medical treatment, and under the authority of Finley v. Texas Co., La.App., 162 So. 473 and Hibbard v. Blane, La.App., 183 So. 39, he is not entitled to recover on that item.”

As no medical expenses were proved by the petitioner the award of medical expenses by the Lower Court will be reversed and the judgment amended. We note, however, that Dr. Kirgis has- recommended an- operation. We therefore believe that plaintiff’s rights should be reserved in the matter to claim future medical and hospital expenses.

■ Under the provisions of the compensation law, LRA-R.S. 23:1141, the maximum attorney’s fee shall not exceed the sum of $1,000. We feel, therefore, that the award for attorney’s fees below should be reduced accordingly.

For the reasons assigned, the judgment below is amended so'as-to strike out the award for .medical expenses, and-reserving unto plaintiff his right to claim future medical and hospital expenses on a future •opr eration as recommended subject to credit to defendant for medical expenses .'expended on his behalf and to reduce the award for attorney’s fees to the sum of $1,000, and as so amended, the 'judgment’below is afErmedl All costs of this appeal are .to be.paid by defendant.

Judgment amended" arid as amended affirmed.


source: Caselaw Access Project

author: ELLIS, Judge. -

license: Public Domain

text:
    Cyrus CHAMPAGNE v. HOUSTON FIRE & CASUALTY INSURANCE COMPANY.
    No. 4112.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    Rehearing Denied Feb. 3, 1956.
    Davidson, Meaux, Onebane & Nehrbass, Lafayette, for appellant.
    Mouton, Champagne & Colomb, Lafayette, for appellee.
   ELLIS, Judge. -

Defendant has appealed from a judgment in favor of the plaintiff in which the latter was awarded compensation for total and permanent disability at the rate of $30 per week during the period of plaintiff’s disability not to exceed 400 weeks, less the number of weeks previously paid, and judgment in favor of defendant denying plaintiff’s claim for attorney fees and damages. The defendant is seeking a reversal of the judgment of the District Court on the following grounds as stated in its brief:

“As was pointed out by the District Judge in his reasons for judgment, the transcript had not been completed, and the note of evidence had not been transcribed at the time that he rendered his decision (Transcript page 156). It is respectfully submitted that a careful consideration of the entire record which has been made up in this case, including the entire note of evidence, shows that there is no substantial conflict in the medical testimony, which greatly preponderates to the effect that the plaintiff is suffering no disability as a result of any accident which may have occurred in the course of employment. We respectfully direct the attention of this Court to the testimony of the doctors who testified as we believe that a careful consideration thereof will demonstrate the error-of the District Judge in the conclusions which he reached. In the second place, we believe that there is serious question as to whether any accident occurred in the course of employment, and that the plaintiff has failed to sustain the burden of proof which was imposed upon him in that regard.
“The' jurisprudence is apparently well settled to the effect that where an analysis of the medical testimony indicates that ‘there is no irreconcilable conflict in the medical testimony’, the testimony of lay witnesses shall not be considered, and if that testimony is contrary to the plaintiff’s case, he cannot recover.
“Carter v. Consolidated Underwriters [La.App.], 62 So.2d 682 [684] (Second Circuit 1953) :
“ ‘We next come to the question of the duration of plaintiff’s disability. Analysis of the medical testimony indicates that there is no substantial degree of conflict in the testimony of the medical experts. It is well established that where there is no irreconcilable conflict in medical testimony the testimony of lay witnesses will not be considered. Sellers v. T. J. Moss Tie Co., La.App., 56 So.2d 878 (writs refused April 28, 1952); Maricelli v. Standard Accident Insurance Co., La.App., 57 So.2d 926.’
“Waldrup v. Consolidated Underwriters [La.App.], 64 So.2d 468 [469]:
“ ‘To establish injury and continuing disability plaintiff called several lay witnesses whose testimony disclosed only subjective conditions observed by them in plaintiff’s conduct. However, inasmuch as there is no conflict in the medical testimony, we are not justified in accepting lay testimony in' a case of this kind. See: Maricelli v. Standard Accident Insurance Company, La.App., 1952, 57 So.2d 926; Sellers v. T. J. Moss Tie Company, La.App., 1952, 56 So.2d 878; Fee v. Travelers Insurance Co., La.App., 1940, 193 So. 381.
“ ‘We are of the opinion that plaintiff has failed to present adequate proof of a compensable disability under the act which prescribes that our findings of fact be based upon competent evidence, and a compensation award made only for such injuries as are proven by competent evidence.’ ”

The District Judge in his written reasons stated that the transcript had not yet been transcribed, however, the testimony of Dr. Karr, who could be termed the main medical witness of the defendant, and that of Dr. Schneider, who was the main medical witness for the plaintiff, was in the record and their testimony is quoted and referred to in the opinion of the able District Judge.

We have carefully read and considered the record and briefs filed in this case and cannot agree with counsel for the defendant in his statement that there is no substantial conflict in the medical testimony, for Dr. Karr, who operated upon the plaintiff for his herniated disc positively testified that the operation was successful and that plaintiff was no longer disabled and could return to work, whereas Dr. Schneider was of the positive opinion that the plaintiff showed “definite indications of nerve-root irritations- involving the right lower extremity and this is undoubtedly due to the residual adhesion .about the lower lumbar roots, plus the further extrusion of the pulposus at the level of the previous surgery performed” and further testified, “I feel that there is a definite possibility that a segment of the nucleus pulposus, which might possibly have been retained at the time of the surgery, may have worked loose and- extruded at the site of the previous herniation.” Dr. Meuleman agreed with Dr. Karr, however, there is a definite conflict in the medical testimony as found by the District Court. We do not mean by this necessarily to indicate approval of the proposition of- law advanced by defendants, for there might be instances where credible lay testimony may prove preponderantly what medical opinion testimony indicates to be a mere possibility.

As to the second contention that there is a serious question as to whether any accident occurred in the course of employment and that the plaintiff has failed to sustain the burden of proof which was imposed upon him in that regard, we find that the Lower Court has correctly evaluated the testimony even though the transcript on this point was not complete, and he correctly held that the .plaintiff had proven an accident within the contemplation o-f the .compensation law. In view of the fact that the able District Judge has written an extensive opinion and correctly interpreted the facts and the law applicable thereto, we herewith adopt his opinion in this case.

“This action is brought by Cyrus Champagne to recover workmen’s compensation for total and permanent 'disability as a result of- an injury he claims to have sustained on December 23,-1953 in the course of his employment with the Abshier Construction Company. He- claims to have suffered the rupture of -a vertebral disc while-lifting four-inch pipes to load them onto a truck.

“On the day of the alleged injury Champagne reported for work at the Anse La Butte oil field- in St. Martin Parish at about 7:30 o’clock in the morning. At about 10:00 o’clock, while lifting one of the pipes with several of his fellow employees he claims to have felt a warm sensation in the lower portion of his back. He did not mention it to his fellow workers as he thought that the sensation would soon disappear. At noon he drove his employer’s truck to Breaux Bridge, a distance of four or five miles, where he and his coworkers live. He brought each of them to their respective homes and then went to his own. On his way in the truck he claims to have begun suffering pain and that by the time he reached home the pain was severe. It was so severe that he did not eat his noonday meal, but promptly visited Dr. Ernest Yongue and notified his foreman of his injury.

“Dr. Yongue, with the assistance of X-rays diagnosed Champagne’s injury as a ruptured disc. He prescribed the customary treatment and when the patient failed to respond to it, Dr. Yongue referred Champagne to Dr. William L. Meuleman of Lafayette, an orthopedist. Dr. Meuleman attempted further conservative treatment without success and on April 1, 1954 the doctor referred Champagne to Dr. Howard Karr of New Orleans, a neurosurgeon. On April 2, 1954 Dr. Karr performed the operation upon Champagne that is customary in such cases. According to Dr. Karr the patient made normal recovery and in the following July he released him as completely cured and physically able to return to work.

“Champagne did not return to work, however. He claims to still suffer pain in his right leg, thigh, and hip. The only beneficial effect that he admits the operation brought is a decrease of the pain in his back. Dr. Meuleman examined Champagne after he was released by Dr. Karr and concurs, in Dr. Karr’s opinion that the opera-lion was successful sand'that, the patient has fully recovered and is able-to resume his employment.

“Champagne employed Dr. George P. Schneider, Jr. of Lake Charles to examine him and was twice examined by this orthopedic surgeon. The first examination was conducted on July 29, 1954 and the second on November 11, 1954. This surgeon does not concur in the opinions of the two other doctors. He believes that ■Champagne is still disabled as he suffers too much pain to follow his customary employment of common laborer. This doctor ■saw no improvement in the patient between the two examinations and is of the opinion that Champagne’s present pain is caused hy extrusion of portions of the vertebral disc since the operation, that bear against ■nerve roots, plus adhesions around the ■nerve roots.

“Many of Champagne’s neighbors and his superiors where he worked testified that he enjoys an excellent reputation for industriousness, peace, truth and veracity.

“The plaintiff is a married man and lives ■with his wife and their children. I do not recall how many children they testified they had but it is my impression that there are four or five (The note of evidence is not jyet transcribed).

“The Abshier Construction Company had ■compensation insurance with the Houston Fire and Casualty Insurance Company. This company is the defendant and ,has joined issue with plaintiff on two points. It denies that Champagne received ,the accident and that he is disabled.

“We-encounter no difficulty in' settling the “first point. There can be no dispute that ■Champagne had a ruptured ■ disc at the noon hour on the day he claims to have "been injured. 'It is likewise obvious that he was not- suffering with this disability ■that morning when he reported.-for work. There is no testimony that could even remotely lead to the assumption that he ■could have been injured elsewhere or in .any other manner than in- that which he claims. ' ■ ■

“The second issue is pot as-easy.to settle. We are confronted with conflicting testimony.

“Doctors Karr and Meulenian who testified that the operation was a success and that, plaintiff does not suffer the pains he complains of are .prominent physicians and, their testimony should, not be taken lightly. However, Dr. -Schneider, a qualified orthopedist, disagrees with them.

“It is common to find disagreement among medical experts -in cases - involving back injuries. This is so, evidently, because injuries of the- .back often involve muscles and nerve roots whose injuries do not show on X-ray films. The muscles of the back are employed in practically every significant movement of the body, so when their activity is impaired, great disability results. So it is with the nerve roots found in the back. These 'nerve centers control the functions of the nerves in the lower extremities. An injury to the roots résponds in that part of the body. An impairment of the use of the legs results in serious physical disability.

“The two-.main symptoms of nerve injury are pain and loss of sensitivity, - That Champagne has lost sensitivity to pin prick in the lower portion of his body is not disputed.

“Dr. Meuleman testified in considerable detail as to the steps and results of''the examination he made of Champagne after the operation. The main reason he assigns for concluding that Champagne does not suffer pain is because Champagne had no muscle spasm when the affected parts of his, body were moved. It is an accepted medical fact'that muscles involuntarily go into spasm when an injured part of the body is disturbed in a manner that will produce' pain. It is nature’s way of, protecting an- injury.

“The test does not seem to be infallible, however. The'amount of'pain necessary fo:[produce muscle spasm may vary.in individuals. Then again, continued use of a member, as is necessaiy, when working, may produce pain, while -limited us'e,;,such as undergoing physical examination, may not. ‘

“Dr. Karr last saw plaintiff in July 1954. But he does not give us the benefit of describing his examination of plaintiff and the detailed result thereof, as did .Dr. Schneider. He merely gives us the overall statement that his operation was a success and that plaintiff has no further disability. It is unfortunate that the facts he used to reach his conclusion are lacking.

“In evaluating the doctor’s testimony we should consider his attitude toward compensation claimants. At page 15 of his testimony he spoke as follows:

“A. By the obliteration of the objective physical findings primarily, as well as the abolition of the complaints. I mean, both have to be considered. Of course, I would like to say at this point that no. consideration should be given to categorizing any patient as a proper guide for disc operations if that patient is involved in any litigation, and I say that and.I have very strong feelings about it. First of all, I don’t feel that patients who'have a lawsuit pending can be treated successfully by any one, and, secondly, those patients who, subsequent to treatment, undergo a lawsuit, I don’t feel that their complaints can be regarded in the same light that one normally encounters with a private patient. I mean, that is a general rule. I don’t speak specifically about Cyrus Champagne, but I personally refuse to treat any patient who comes in, even with classical clinical findings, if he tells me that he has a lawsuit. I will agree to treat him, however, after he settles his lawsuit.”

“From this statement we may glean the possibility that Dr. Karr is not sympathetic toward patients who resort to court for the collection of compensation.

“Another passage of his testimony which may assist us in assessing his evidence is his statement at page 36 in response to the following question:

“Q. But you are not able to state that the man asked to return to his original job? A. This man simply took the position that now he had been hurt, he ought to receive in effect a purple heart; that is what it amounted to. I don’t mean that facetiously, but that he felt that he was entitled to a little consideration. I said that, as far as I am concerned, I would relay that in as nice language as I could, which I. did.”

“The reason the doctor reached this conclusion is because Champagne had asked him if he could go to work and if the doctor could give him a written statement to help him get the job of foreman or pusher.

“Of course, that Champagne wanted to be rewarded for his injury could possibly be one of the motives he had in seeking the promotion. There is, also, the possibility that he felt physically unable to return to heavy manual labor and if he could be placed in the supervisory position, where he would not have to do this heavy labor, he could return to work sooner and recuperate better. That possibility did not seem to occur to Dr. Karr even though it seems more logical than the conclusion he reached, in view of Champagne’s character,' stability and record for industriousness.

“These manifestations of his attitude minimize the weight of Dr. Karr’s conclusions.

“Dr. George P. Schneider, Jr. employed mostly technical, medical terms in the giving of his testimony. As I understand it, however, he said that he had discovered certain areas of plaintiff’s lower back and right leg that were not sensitive to pin pricks and that certain movements of plaintiff’s hip and leg caused pain. He also discovered certain sensitive areas. From these he concluded that there was the possibility, and perhaps the probability, that the movement of certain parts of one of plaintiff’s vertebral discs compressed the nerve root and that there was adhesion between the nerve root and scar tissue. X-rays also showed the possibility of this condition.

''Between the examination' in July and the one in November the doctor found ,an atrophy of a quarter-inch in plaintiff’s right thigh and calf. This generally indicates lack of use of the muscles of. these members. . , , ,

“Dr. • Schneider recommends that ari X-ray opaque fluid be introduced into the nerve canal and X-rays made. This would determine the point affected. He stated, however, that this procedure should not be taken unless surgery is contemplated.

"Plaintiff complains of constant pain. His testimony, that of his wife, and his neighbors establish the fact that he mostly remains at home, frequently in bed. He claims that lying in bed reduces his pain considerably. When he is not in bed he sits in a chair with his leg extended oil another chair. He takes no physical exercise and visits his neighbors only rarely and then those who live close to him. He seldom walks. He goes to church but does not follow the ceremony by kneeling and standing. He has never .refused to work. He enjoys the esteem of the community.

“The circumstances of this case present a typical case for the application of the doctrine that our Workmen’s Compensation Act [LSA-R.S. 23:1021 et seq.] should be construed favorably to the employee. If we deny him recovery we shut the door on him and deprive him forever of the benefits of the Workmen’s Compensation Act. If future examination and treatment further confirm the fact that he is disabled, a grave injustice will have been done him.

“On the other hand, if we allow him to •recover compensation he is amenable to periodic examinations and if he recovers, the payment of compensation can be discontinued. It is most unlikely that plaintiff is a malingerer. Certainly, he does not appear to be'the type that would be satisfied to raise his .family on compensation payments if he, is ^ble to work and earn many times more.

“In addition, to the recovery of compensation plaintiff seeks the sum of $1,000 as attorney’s fees and 12% damages as well as $1,000 for medical expenses. The circumstances of the case do not justify the assessment of attorney’s fees and penalties against the defendant. The defendant, at the time it terminated the payment of compensation, was in the possession of statements from Doctors Karr and Meuleman certifying that plaintiff suffered no disability". Certainly, that is justification for stopping the , payment of compensation.

“On his medical claim the plaintiff is entitled to recover only for such medical expenses as he has incurred. I do not recall that he introduced any evidence in support of this claim. But if he has presented this evidence he is entitled to recover therefor.

“It is not disputed that Champagne’s wages were sufficient to allow him to recover compensation at the maximum rate.

“Therefore, let there be judgment in favor of the plaintiff and against the defendant for compensation payments at the rate of $30 per week during the period of plaintiff’s disability, not to exceed four hundred weeks, less the number of weeks heretofore paid for and disallowing plaintiff’s claim for attorney’s fees and damages'; allowing him to’ recover the medical expenses he has established, if any; at defendant’s costs.”

For the aboye reasons the judgment of the District Court is affirmed.


author: ELLIS, Judge.

text:
    Tom STULL v. V. J. RUSSO.
    No. 4084.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    Rehearing Denied Feb. 3, 1956.
    See also La.App., 85 So.2d 116.
    De Blicux & Hinton, Baton Rouge, for appellant.

      Cashio, Cashio & Molíoy, Maringouin, for appellee.
   ELLIS, Judge.

On the afternoon of Feb. 15, 1950 the plaintiff ' had1 been operating a concrete mixer at a'p'lánt'owned and operated by the' defendant, V.' J. Russo-. When something went wrong with the mixer and it became necessary to clean it out, Russo’s pusher or foreman Webster Wiggins ordered plaintiff to get inside of the big concrete mixer and clean it.- While the plaintiff was in 'this mixer, the foreman inadvertently turned on the switch which started the big blades revolving and injured the plaintiff’s knee severely before it could be stopped.

On August 1, 1950 plaintiff filed suit against L. J. Russo, father of V.'JV Russo, and then on February'8, 1951 he filed an. additional suit' against V. J.' RussO. It is fair to state that the two- identical suits were filed against the father and son because counsel for plaintiff did not definitely know which of them owned and operated the concrete block business. It appears that the property upon which it was located belonged to the father, L. J. Rüsso, and that the latter also operated a business located on the same lot or square of ground.

Both.cases came up for trial and it was agreed that the suit against V. J. Russo be first tried and the evidence adduced be used in both cases with the exception of the evidence relating to which of the two defendants was the employer of the plaintiff.

The main defense in the lower court by V. J. Russo was that there was no relationship of' employer-employee and, secondly, that although the defendant admitted that the plaintiff suffered injuries to his left knee he denied disability. In fact, every allegation of plaintiff’s petition except the admission as to the injury to plaintiff’s left knee was denied.

Following the trial of the two cases in the District Court, judgment was rendered in favor of each defendant, and we aré now confronted with’an appeal'b'y the plaintiff. We will disciiss- and decide plaintiff’s case against V. ■ J.' Russo and' for the reasons given in this case, togéther with any further , reasons, the case of plaintiff against L. J. Russo will be separately considered.

It., was .established without dispute that the plaintiff was injured- on the. date alleged while he. was cleaning the concrete mixer in response to the order of defendant’s . foreman. No evidence was introduced'which could contravert.the fact that the ownership of the plant belonged to any one other than V. J. Russo. The testimony further revealed that the concrete -mixing plant was not operated steadily so as "to afford full time, permanent employment to the employees and that, as a matter of fact, only two employees were regularly paid and employed and for this reason, as stated by the defendant, he always had “a big turnover.” In' other words, it was necessary that he ernpio'y new crew members very frequently.

On the day that the plaintiff was injured the employee who had previously been employed to operate the concrete mixing machine had been stricken with appendicitis and it was, therefore, necessary that some one be employed if the plant was to operate. There is no dispute from the evidence but that the plaintiff was hired and put on the job by Webster Wiggins, the defendant’s foreman. Although defendant-referred to him as' a pusher, he was in charge at all times when the defendant was not there, and it is shown by-other employees at the concrete mixing plant that when they were short a man the foreman went out and got one. On the other hand, there was a strong attempt riiade to show that the foreman only had authority to hire the employees designated and .named by the defendant.

In view of the fact that the plaintiff was injured while rendering services for the defendant, this creates a legal presumption that he enjoyed the status of an employee under LSA-R.S. 23:1044, which is as follows:

- “A person rendering service for an-. oth-er"in any of the.'trades, businesses or occupations covered by this Chapter is presumed'to be an employee under this Chapter.”

The statute above quoted was considered in the case of Harper v. Ragus, 62 So.2d 167, 169, in which the Second Circuit Court of Appeal stated:

“The difficulty in resolving the question lies in determining whether the contractual arrangement is such that the complainant is removed from the status of being an employee within the Workmen’s Compensation Act. The Workmen’s Compensation Act applies to every person performing services arising out of and incidental to his employment in the course of his employer’s trade, business or occupation in certain named hazardous trades, businesses and occupations and a person rendering service for another in any of the trades, businesses or occupations covered is presumed to be an employee. LSA-R.S. 23:1033 and LSA-R.S. 23:1044. * * *
******
“ * * * We think the evidence fails to overcome the presumption which flows from LSA-R.S. 23:1044.”

The burden of proof to sustain the defense that the plaintiff was not an employee rested upon the defendant and it is necessary that the evidence be sufficient to overcome the presumption created in favor of the plaintiff under LSA-R.S. 23 :- 1044, supra.

With regard to the employment of some one to operate the concrete mixer due to the absence of the former employee who performed this duty, the defendant testified that he was told by his foreman that “we had one man missing. He also told me Tanner Franklin was in the quarters. They called it Russo’s Quarters. I asked him to go over and get him and put him to work because I had worked him before.”1 Defendant further testified that so long as his foreman got a man who1 could do the work it was satisfactory to him. According to the quoted testimony, it is well to note that the defendant did not select Tanner Franklin but agreed after being told by his foreman that Tanner Franklin was in the Quarters that he should go over and get him. While defendant contended that the foreman had no authority to employ -anyone without instructions from him and that he usually wanted to know prior to such employment who the foreman was going to, get, when he was asked if he knew whether or not anyone was working at the , plant while he was at the Chevrolet automobile company on business, he answered: “I was hoping somebody was working.”

From defendant’s testimony he ' apparently instructed the • foreman to employ a man but he understood it was to be Tanner Franklin. However, taking all of his testimony, there is po reason to believe that prior to plaintiff’s injury he would have ob-. jected had the foreman suggested plaintiff’s employment rather than Tanner Franklin’s.

Wiggins, defendant’s foreman, testified as follows:

“A. We were short a man; he hadn’t got anybody. His orders were, we were trying to run at night and he hadn’t got there, and I don’t know, be-. cause of him not being there I went out and was hunting a man. First, I went to a fellow called Tanner and he couldn’t come for some cause and I got Tom. I picked Tom up and brought him over.
“Q. When you talked to Tom, what, did you tell him ? A. I asked him, did he want to come to work.
“Q. What did Tom say? A. He would. ■
■ “Q. Did you tell Tom where he would-work? A. I showed him where to work.
“Q. Did you put him to work ? A. Yes, sir, I put him to work.”' '

Again on cross examination he testified:

“Q. We will, change the question around. I will ask you this: When • they were shorthanded, did you some- ■ times go and get people to work at the plant? A. Now, I will give you the lineup bn that. In the morning when he comes and the crew is not there, he is short somebody, he send me out to see if I can find a man for him to put to work.”

According to Wiggins’ testimony, he 'had not seen the defendant that day until after the plaintiff was injured. In this connection he testified:

“Q. You never did see Mr. Russo at all that day until after Tom Stull got hurt? A. No, sir.
“Q. When did Mr. Russo tell you to get somebody to work at the plant ? A. That night.
“Q. That was the night before Tom Stull — A. No, I am wrong: I take it back. We were supposed to go to work that morning and we were short a man that morning but I didn’t see Mr. Russo that morning.
“Q. When did Mr. Russo tell you to get somebody to work? A. He didn’t tell me anything that day because I didn’t see him that morning.
“Why did you go out to get somebody to work? A. I just figured the job had to go, and took it on myself and went.
“Q. When you were short of men, you went out and got them? A. He would be there either in the morning or the evening and say, We are short a man; go and see if you can find somebody.’ ”

The employees of defendant who were placed on the stand testified that Webster Wiggins was the foreman in charge and that he gave the orders when the defendant was not there, that they were working five days a week at that time and when they were short a man the foreman, Wiggins, would pick up a man wherever he could find one. The witness Washington testified that he had seen Wiggins pick up a man “many a time” and that the defendant would pay the man for his work.

It is the plaintiff’s' testimony that after the foreman Wiggins was unable to get Tanner Franklin to operate the concrete mixer that the latter got in touch with him and that he reported to foreman Wiggins who told him “I am going to put you back in the mixer.. If you catch on and run it good, that will be your job.” Wiggins further told the plaintiff how to operate the mixer.

The most unfavorable inference to the plaintiff that might be drawn from the testimony is that the foreman Wiggins had at least implied authority to hire additional men for he had in the past been sent by the defendant Russo to secure an additional man, even though Russo contends that he had to approve the man before the final selection, nevertheless, from the point of view of an employee hired by Wiggins, the em-. ployer had vested Wiggins with implied authority to employ, and the further fact that it was necessary that an additional man be secured in order to operate the plant and that the defendant told the foreman Wiggins to get the crew ready and to get some one to fill out the short crew, and it was the foreman who suggested Tanner Franklin’s name, not the defendant. From the quoted testimony of the defendant it is shown that he was only interested, really, in getting the plant in operation. His defense and testimony that the foreman had only authority to employ the particular person designated by the defendant is not borne out by the record. The testimony falls far short of overcoming the presumption in favor of the plaintiff as an employee of the defendant.

The defendant has failed to overcome the presumption created by law, supra, and we therefore conclude that plaintiff was an employee of defendant and suffered an accident and injury within the course and scope of his employment.

As to the disability, the doctors clearly state that plaintiff would be unable to perform hard manual labor which required stooping or bending or picking up any heavy object. In the operation of the concrete mixer he was required to lift sacks of concrete. The doctors’ testimony tin-questionably .indicated total disability . as the plaintiff had 50% loss of.flexion of the knee and was unable to stoop, squat, or climb, and according to Dr. Spedele, defendant’s witness, he'was unable to do any hard, steady work requiring climbing or being on his feet continuously.

Defendant offered witnesses to show that plaintiff had been employed as a common laborer on a sewerage laying job in the town of New Roads. The foreman on this sewerage job testified that he recognized the fact that the plaintiff had a stiff leg and could not get in and out of the ditch and that when they assigned him his duties they took that into consideration and made no requirement that he do any labor which required him to get in and out of the ditch. This foreman stated that the plaintiff was a regular worker and a good man except for his disability.

It is therefore apparent that plaintiff, a common laborer, is unable to substantially perform all .the functions of the labor which he was required to perfom at the time of his injury, or, in fact, he is unable to substantially perform at all the duties ordinarily required of any common laborer.

As to the rate of compensation, according to the record the rate of pay would have been 50{J per hour, eight hours per day for a five day week. We accept a five day week in view of the testimony that the defendant’s plant never operated more than five week days.

While plaintiff attempted to prove medical expenses by the- introduction of a bill from Charity Hospital for treatment it was excluded, and although plaintiff stated in court that he would reopen the: note of evidence to present the Charity Hospital medical expense bill, he failed to do- so. We therefore believe that the judgment should reserve any right he or the Charity Hospital might have for the recovery of medical expenses not to exceed $1,000.

For the above reasons, it is therefore ordered that the judgment of the District-Court- be .and the same is hereby reversed and that-there.now be judgment in favor of the plaintiff'Tom Stull and agaipst -the defendant V. J. Russo, awarding plaintiff compensation at the rate of $13 per week beginning February 15, 1950.and payable each week thereafter with interest at the rate of 5% from the maturity of each past due installment, for a period not to exceed 400 weeks.

It is further ordered, adjudged and decreed that the fee for plaintiff’s attorney be fixed at a sum not in excess of 20% of the amount of the award made by this Court and provided that said attorney’s fee shall not exceed $1,000.

It is further ordered, adjudged and decreed that the right of the plaintiff and/or Charity Hospital of New Orleans for the recovery of medical expenses not to exceed $1,000 be reserved to them.

It is further ordered, adjudged and decreed that all costs be paid by the .defendant, V. J. Russo.


author: ELLIS,-Judge.

text:
    Tom STULL v. L. J. RUSSO.
    No. 4083.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    , De Blieux & Hinton, Baton Rouge, for appellant.
    Cashio, Cashio & Molloy, Maringouin, for appellee.
   ELLIS,-Judge.

This is..a companion suit to Stull v. V. J. Russo, La.App., 85 So.2d 112.

The only evidence in the record to indicate any relationship between L.' J. Russo, father, and the injured employee, is that L. J. Russo owned the land upon which V. J. Russo son operated the business in which plaintiff was injured. Since defendant herein was not plaintiff's employer, the judgment of District Court dismissing plaintiff’s suit as against L. J. Russo is affirmed. This suit is in forma pauperis, and therefore plaintiff will not be assessed with costs.


author: LOTTINGER, Judge.

text:
    Marvin C. FERGUSON v. Dorothy D. PARR and Travelers Indemnity Co.
    No. 4123.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    Rehearing Denied Feb. 3, 1956.
    Writ of Certiorari Denied March 26, 1956.

      Blanchard & Blanchard, Donaldsonville, for appellant.
    A. Deutsche O’Neal, Houma, Robt. D. Morvant, Thibodaux, for appellee.
   LOTTINGER, Judge.

This is a tort action wherein the plaintiff seeks damages as the result of having drunk a bottle of Coca Cola which allegedly contained some “foreign substance and pieces of bugs and insects.” The plaintiff alleges that on or about the second day of August, 1953, while in a restaurant owned by one Dorothy D. Parr in the town of Raceland in Lafourche Parish, the plaintiff purchased a bottle of Coca Cola and that after having drunk a portion of same, became violently nauseated and had to seek the services of a doctor. He seeks damages in the amount of $2,000 for mental and physical pain, $150 for loss of three days' work, $5.53 for medical expenses and $1,000 for the permanent damage to his stomach. Joined as defendants are Dorothy D. Parr, the owner and operator of the restaurant where the bottle of Coca Cola was purchased, and the Travelers Indemnity Company, liability insurer of the Louisiana Coca Cola Bottling Company, Ltd.

Following trial on the merits in the court below, judgment was rendered dismissing plaintiff’s suit against the defendant, Dorothy D. Parr and against the defendant Travelers Indemnity Company, awarding to plaintiff the sum of $150 for personal injuries and $5.53 for medical expenses. No appeal was taken from the judgment dismissing the suit against Dorothy D. Parr, but the plaintiff has appealed seeking an increase in the damages awarded him. The defendant Travelers Indemnity Company answered the appeal seeking a reversal of the judgment of the lower Court and, alternatively, that same be affirmed.

The question was presented for the first time upon oral argument as to whether the question of liability could be raised by the defendant on this appeal in view of the fact that no appeal was taken by it. As just stated above, while the appeal was taken only by the plaintiff, the defendant answered this appeal seeking a reversal of the judgment. It appears to be well settled that this is sufficient to bring before us the question of liability. See Code of Practice Articles 592 and 888, and also the holding of our Supreme Court in the case of Alengi v. Hartford Accident & Indemnity Co., 183 La. 847, 165 So. 8.

Coming now to the question of liability, a careful review of the record fails to disclose any manifest error on the part of the trial judge in concluding that the plaintiff became nauseated and sick as a result of drinking part of a bottle of Coca Cola purchased at Miss Parr’s place of business. The plaintiff so testified and his testimony is corroborated by that of a Mr. Emanus, a man who was with him at the time and a Miss Knight, the waitress who served him the drink. While counsel for defendant vigorously argues in his brief that the case smacks of collusion, we are unable to find anything in the record to substantiate this charge nor are we able to find any manifest error in the amount of damages awarded the plaintiff. It is clear that almost immediately following the drinking of the Coca Cola he consulted Dr. Richard Robichaux who gave him a prescription for Emetrol, a drug for the relief of nausea. The total medical bill was $5.53 and hence this amount was properly allowed. The plaintiff is a resident of Rus-ton, Louisiana, and after his return home, did not consult any other doctors. Under the circumstances, we are convinced that he was only mildly ill and that the award of $150 is adequate. The record does not substantiate plaintiff’s claim in what amount exactly he lost for the alleged few days that he was ill after returning home nor that he was ill and, consequently, there is nothing upon which to base an award for damages for loss of earnings. There is a stipulation in the record to the effect that there was no permanent disability and there is no proof as to any permanent psychological effects.

Finding no manifest error in the judgment appealed from, the same is hereby affirmed.

Judgment affirmed.


author: TATE, Judge.

text:
    Valerie DUPRE, Plaintiff-Appellee, v. Frederick J. WYBLE et al., Defendants-Appellants.
    No. 4107.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    Rehearing Denied Feb. 3, 1956.
    Writ of Certiorari Denied March 26, 1956.
    .. Lawes, Cavanaugh, Hickman & Brame, .Lake Charles, fqr appellant.
    Chas. C. Jaubert, Lake' Charles, for ap-pellee.
   TATE, Judge.

Defendants appeal from judgment awarding plaintiff workmen’s compensation benefits for total and permanent disability. The District Court summarized the issues' and its findings as follows :■

“This is ■ a suit brought under the Louisiana . Workmen’s Compensation Law wherein Valerie Dupre alleges that he was employed by Fred J. Wyble, an oil field contractor,- as a laborer dismantling an oil field plank road and that while so employed on November 21, 1952, he sustained an injury to his left leg-from which he has not recovered, in that as a result of the injury he has and is still suffering from a neurotic reaction, an emotional and general nervousness, which makes it impossible for petitioner to return and engage in his former occupation of farmer and laborer 'and that he" is permanently and totally disabled within the meaning' of the Workmen’s ' Compensation ' Act of Louisiana, LSA-R.S. 23:1021 et seq.

“This suit is brought against the insured, Fred J. Wyble, and Consolidated Underwriters, the insurer of Fred J. Wy-ble.

■ “The injury was admitted but the severity of the alleged resultant condition ■ivas denied.

“The evidence adduced shows that plaintiff has. been á farmer since he was old enough to work and that he has farmed continuously since that time and that he has done, some off season work as a laborer on several occasions.

“Subsequent to the injury, -the plaintiff was treated by his family physician several months and later was examined by ■ an orthopedist arid subsequently by a rieuro-surgeon.

“From the examinations there appeared to be no organic reasons for the continuance of plaintiff’s disability after ' March of 1953. He was then referred to Dr. Barclay’Funk, a physician specializing in psychiatry.

“Assuming that the history furnished by the patient to the psychiatrist that the plaintiff was always a steady worker was true, Dr. Funk concluded that the plaintiff was not malingering but that the prolongation of his disability was from emotional factors which were precipitated by the injury, that plaintiff was physically able to return’ to this past occupation but that he'was not emotionally able to do-so.

“The plaintiff is a man of limited education and intelligence. ■ The evidence discloses that he had worked steadily- for a period of over twenty years as a farmer -and, laborer but .that' since, the date of his injury he has performed but very little work and that he felt a pain in' his left leg whenever he attempted to work.

“The Court must conclude from the evidence and its observation of the plaintiff that he is.not malingering but is suffering from a neurotic reaction precipitated by the injury and that he is, under the Workmen’s Compensation Law of Louisiana and the jurisprudence, permanently and totally disabled.”

The only residual of the" original large bump and discoloration resulting from the accident is a scar the size of a quarter, like a vaccination mark; and after the accident, plaintiff walked with a pronounced limp, holding his left foot turned inward, according to all lay witnesses and doctors testifying. Dupre was under treatment by his family physician for four months before discharge as physically -cured, including two weeks in bed and three weeks on .crutches; and the two orthopedic specialists testifying, as well as this personal physician, testified as of the time of discharge, there was nothing functionally wrong with Dupre’s left leg and foot.

Essentially, we are called upon to determine whether this limp, the nervous disorder, the pain and suffering of which Dupre complains upon attempted use of the limb hurt in the accident, are a result of a traumatic psychoneurosis resulting from the accident, and as such, compensa-ble; or whether, on the other hand, these symptoms constitute malingering, or pretended , disability in., order to obtain compensation.

. Awards of compensation for -disability because of neurosis resulting from an accident in the course of employment have been allowed by our Louisiana courts, Buxton v. W. Horace Williams Co., 203 La. 261, 13 So.2d 855; Ladner v. Higgins, La.App., 71 So.2d 242; Peavy v. Mansfield Hardwood Lumber Company, La.App., 40 So.2d 505; Lala v. American Sugar Refining Company, La.App., 38 So.2d 415; Vega v. Higgins Industries, Inc., La.App., 23 So.2d 661; Porter v. W. Horace Williams Co., La.App., 9 So.2d 60; Vaughn v. Solvay Process Co., La.App. 1 Cir., 176 So. 241. “There is no doubt in our minds that nervousness, neurosis, or emotional disturbances, superinduced' by injuries suffered by a workman, can be just as devastating'to the ability to return to work as are physical or anatomical injuries, .and are equally as compensable under the statute”, Lala v. American Sugar Refining Company, La.App., 38 So.2d 415, at page 421.

The District .Court, who saw and heard the lay witnesses, and relied upon the diagnosis of Dr. Barclay Funk of Lake Charles, the only psychiatrist testifying; found ■ that Dupre’s disability resulted from a true traumatic psychoneü-rosis; resulting and residual from physical injury sustained in the course of plaintiff’s employment. We beliéve this finding is supported by the record and is not manifestly erroneous.

Dr. Funk’s diagnosis was that the physical injury was the' “precipitating factor” which aggravated a latent mental insecurity or neurosis or emotional weakness into the totally disabling psychoneurosis from which plaintiff was suffering at the time of the trial. This diagnosis was based on the history obtained from plaintiff, and also certain physical findings, such as hyperactive reflexes, very moist and cool hands and feet, labile (unstable) pulse and blood pressure,, etc. Dr. Funk described it as a form of psychoneurosis •called a “conversion reaction”: “certain conflicts, certain attitudes of the individual are repressed, and it is [i. e., they are] •converted into a physical symptom which gives him adequate reason for not doing ■or facing things which he is hesitant to face or which he wishes to escape, without his realizing consciously what he is doing”. It is called a traumatic neurosis, because precipitated by physical agency or trauma.

Défendants urge, first, that the limp which all witnesses state has affected plaintiff since the accident, is not authentic because: (1) Orthopedic experts testify that walking with foot turned in as plaintiff does, would increase or cause pain, rather than diminish it; (2) the ortho?-pedics who examined Dupre four months after the accident testified the left leg was not atrophied as compared to the right, which would be the normal result of favoring one leg over the other.

This opinion testimony is useful in evaluating Dupre’s credibility and that of the lay witnesses; but it does not override the acceptance of such latter testimony as truthful by the trier of fact. Besides, as to the first-mentioned testimony, medical opinion as applied to what a normal person would or would not do, does not necessarily indicate the absence of a genuine limp in a neurotic person suffering from a genuine hysteria who adjusted his foot and walk in such manner to receive (imaginary) ease from genuinely-felt pain. The significance of the lack of atrophy is lessened by the admission of both specialists that both legs might have atrophied if there was disuse of both after the accident, and also by the testimony of Du-pre’s-personal physician that perhaps atrophy- could be inhibited by Dupre’s conscientious effort to follow his doctor’s instructions to use the affected leg as much as possible.

Defendants further urge that Dr. Barclay Funk’s psychiatric diagnosis and the District Court’s acceptance thereof depend upon the truthfulness of the history upon which this diagnosis was based. They allege that the history was not correct: for instance, Dr. Funk assumed Du-pre had acquired '34 acres of land by his own efforts, whereas his wife had inherited same; but Dupre through his own efforts had constructed and paid for a residence thereupon, had purchased a truck and complete farm implements, etc.' Dr. Funk had assumed that Dupre did'public work whenever farming work was slight, whereas it turned out he did so only on occasion, and mostly throughout the war years. But in the main outline, as found by the District Court, Dupre had been an industrious and'hard working farmer pri- or to the accident, and after the accident was unable to work; and Dr. Funk’s diag-prosis basically concerned whether Dupre’s present helplessness was consistent with or differed from his former personality. If there were a basic difference, he explained it as due to a genuine psychoneurosis resulting from the accident, for certain psychiatric reasons it is unnecessary to detail.

Finally, defendants urge that even if plaintiff is disabled by a psychoneurotic condition, this condition was pre-existing the accident and is therefore not compensa-ble. However, “the issue in this case under the law is not whether the injury was the sole and proximate cause of the plaintiff’s present incapacity to work but whether the accidental injury aggravated and brought into active play his previous neurotic, mental and nervous troubles and was, therefore, the proximate cause of his present disability. (cases cited)”, Buxton v. W. Horace Williams Co., 203 La. 261, 13 So.2d 855, at pages 856-857. “As in other connections, a pre-existing weakness in the form of a neurotic tendency does not lessen the compensability of any injury which precipitates a disability neurosis,” Larson, Workmen’s Compensation Law, Section 42.22.

The evidence indicates that before the accident the emotional defect was latent and had produced no disabling symptoms; but following the accident, under the hysteria or neurosis diagnosed as genuine, Dupre appears in genuine pain when he attempts to use the affected left leg, and is affected by a severe emotional disorder causing nervousness, sleeplessness, and loss of weight. Thus the present case is distinguished from Mouton v. Gulf States Utilities Co., La.App. 1 Cir., 69 So.2d 147, where although the employee had suffered from nervous spells before the accident, he continued working for some time thereafter without difficulty, so the recurrence of the nervous spells was held not related with sufficient certainty to the accident; and also from Jackson v. Southern Stevedoring Company, La.App., 65 So.2d 674, where the accident was held to have no relation to the nervous condition, which manifested the same symptoms long before the occurrence of the accident.

Inadvertently, the District Court allowed recovery to plaintiff of the sum to $500 medical expenses as prayed for. Although the record indicates that it was necessary for plaintiff to spend various sums for medicines as a result of his disability, there is no proof as to these amounts. Plaintiff’s claim in that regard will therefore be non-suited, subject of course to credit to defendant for payment of the attending physician’s services for treatment of plaintiff over a period of four months, proven by the record.

For the above and foregoing reasons, the judgment herein will be amended so as to non-suit without prejudice plaintiff’s claim for medical expenses up to $500 prayed for, subject to credit to defendants for medical expenses expended on his behalf; and as amended, it will be affirmed in all other respects. Costs to be paid by defendants-appellants.

Amended and affirmed.


author: DREW, Chief Justice.

text:
    Lorenzo ANDERSON, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Division A.
    Feb. 1, 1956.
    Paul Lake, Tampa, for appellant.
    Richard W. Ervin, Atty. Gen., and Jack A. Sudduth, Asst. Atty. Gen., for appellee.
   DREW, Chief Justice.

This is an appeal from an order of the Judge of the Criminal Court of Record of Hillsborough County finding the appellant not to be insolvent within the meaning of Section 924.17, F.S.A.

The following is the order appealed from:

“Order Denying Insolvency
“The defendant, Lorenzo Anderson, having filed in this Court his Affidavit of Insolvency, and upon examination by the Court testified as follows:
“1. That he and his wife are living together with seven minor children, ages from two tó twelve years, and that he is the sole and. only support of his said wife and seven minor children.
“2. That he owns a 1942 Chevrolet of the • value of about Sixty ($60.00) Dollars, which said Chevrolet he uses .to go to and from his odd jobs.
“3. That he has a 33%% service-connected disability rating for services in the Armed Forces of the United States, and receives Forty-seven ($47.-00) Dollars per month as a permanent pension for injuries received’ from machine gun-shot wounds.'
“4. That his wife is not employed.
“5. That it is necessary for the defendant to take odd jobs of light work because of his physical disability.
“6. That the. defendant cannot’ hold' a regular job.
“7. That he has no other money or property in his'possession or under his control with which he can pay the Court costs in this cause,
and it further appearing to the Court that the Court costs to date for taking the appeal and Sheriff’s costs in this cause amount to approximately Fifty-five ($55.00) Dollars, and that the costs of preparing the Transcript in this cause will amount to approximately One Hundred Fifty ($150.00) Dollars, the Court finds:
“1. That the said defendant has a permanent pension in the amount of Forty-seven ($47.00) , Dollars pep month, and that he is not insolvent within the meaning of Section 924.17, Florida Statutes Annotated of the Laws of the State of Florida.
“Whereupon, in the light of the testimony above' and the finding of the Court, it is hereby
“Ordered, Adjudged and decreed that the defendant, Lorenzo Anderson, be and he is hereby declared not to be insolvent within the meaning of Section 924.17, Florida Statutes Annotated of the Laws of the State of Florida.”

In Loy v. State, Fla. 1954, 74 So.2d 650, 651, which was an appeal from a similar order by the same Judge who denied the application now under scrutiny here, speaking through Associate Justice Patterson this Court said:

“This .statute, together with Sec. 939.15, intends that no man charged with a crime shall be denied the protection of the full and complete processes of the law by reason of his inability to pay the expenses involved. The idea that those unable to pay their way are thereby deprived of a hearing in this court so offends our ’sense of justice that we must take care that we do not reach such a result in close cases by an overly strict requirement of proof under the statute. The former holdings of this court, cited and discussed in Baker v. State, Fla., 42 So.2d 768, reflect this view. We think the most reasonable conclusion to be reached from the facts in this case is that appellant, though not absolutely penniless, is nevertheless unable to pay the costs of bringing the record of his conviction here for review, and that the denial 'of his application for an insolvency adjudication precludes his appeal to this Court contrary to the purpose of the statute.”

The order appealed from is erroneous on its face and is ■ hereby reversed with directions to enter an order finding appellant to be insolvent within the meaning of Section 924.17, F.S.A,

Reversed.

TERRELL, HOBSON and THORNAL, JJ., concur.


author: HOBSON and ROBERTS, Justices.

text:
    STATE of Florida ex rel. Charles E. LIMPUS, Relator, v. Arthur W. NEWELL, as Clerk of the Circuit Court of Orange County, Florida, ex officio Clerk of the Board of County Commissioners of Orange County, Florida, Respondent.
    Supreme Court of Florida. En Banc.
    Jan. 30, 1956.

      W. H. Poe and David W.. Hedrick, Orlando, for relator.
    Akerman, Dial & Akerman, Orlando, for respondent.
   HOBSON and ROBERTS, Justices.

In original mandamus proceedings filed in this court, the relator seeks to compel the respondent, as Clerk of the Circuit Court of Orange County and ex officio Clerk of the Board of County Commissioners of that county, to accept the qualifying statement and fee required by law to qualify relator to enter the May 1956 primary for election as the Democratic nominee to-the office of Clerk-of .the Criminal Court of Record of Orange County. The respondent has declined to accept such qualifying statement and fee at this time on the ground that he is prohibited by the provisions of Chapter 29936, Laws of Florida, Acts of 1955, Section 99.061, Fla.Stat.1955, F.S.A., from accepting such tenders or permitting relator to qualify as such candidate at any time prior to March 7, 1956. Relator contends, on the other hand, that Chapter 30233, Laws of Florida, Acts of 1955, is the statute applicable to the qualifying date for candidates for county office in Orange County, and that under such statute he is required to qualify before noon of February 1, 1956.

As noted, both- statutes were enacted by the 1955 Legislature. Chapter 30233 is a “population act” applicable to counties 'having a population of not less than 113,000 and not more than 150,000 persons according to the last official census and is said to be presently applicable only to Orange, Palm Beach and Polk counties. Its purpose, as expressed in the preamble to the Act, was to give candidates for county offices in the affected counties “sufficient time between the qualifying date and the date of the primary election to canvass the electors within such counties,” and to place them on the same footing, insofar as the qualifying date was concerned, as candidates for certain state-wide offices, named in the Act. Chapter 30233 was enacted into law on May 28, 1955. At that time, the general law relating to the qualifying dates for state and county offices, Section 99.061, Fla. Stat.1953, prior to its amendment by Chapter 29936, supra, required candidates for state offices to qualify before noon of February 1st of the year in which the primary election was to he held, and candidates for county office to qualify by March 15th of such year. Chapter 30233 specifically provided that candidates for county offices in the affected counties should qualify “not later than noon, February 1 of the year in which any primary is held.”

Chapter 29936, supra, was introduced in the Senate on May 28, 1955, and became a law on June 20, 1955. This Act amended the general election law in various respects and, by Section 4 thereof, amended Section 99.061, Fla.Stat.1953, to change the qualifying dates for candidates to state and county offices. As amended, Section 99.061 establishes a 14-day period within which candidates for nomination to such offices shall qualify: as to .state offices, between the 77th and the 63rd days prior to the date of the first primary election, and as to county offices, between the 63rd and 49th days prior to such election. It was also provided in the amendatory Act (as.a part of Subsection (3) of Section 4 of Chapter 29936, supra) that

“Counties having the same filing dates • for state ■. and county candidates according to acts which so provide for such counties by population classification or local law shall continue to have the same filing date for all candidates as provided for candidates for state., offices.”

It is here contended on behalf of respondent that he was not' required to comply with the provisions of Chapter 30233 because the Act contravenes Sections 20 and 21 of Article III of our Constitution,' F.S.A. and is thus void and inoperative, and that, even if constitutional, its provisions have been repealed or amended by Chapter 29936, supra.

The real purpose of this litigation is to have this court determine the qualifying dates for candidates for county offices in those cóunties which at the time of the enactment c5f Chapter 29936, supra, had “the same filing dates for state and county candidates according to acts which so provide for such counties by population classification or local law * * In the light of the conclusion which we have reached, it becomes unnecessary for us to discuss the former contention of the respondent hereinabove set forth. We shall direct our attention to respondent’s latter contention that the provisions of Chapter 30233, supra, have been repealed or amended by Chapter 29936, supra.

We find it necessary, in order to answer fully the real query presented, to focus our attention upon that portion of Subsection (3) of Section 4 of Chapter 29936, quoted above, and to consider the constitutionality thereof.

It is clear that the Legislature designated the counties which had' “the same filing dates for state and county candidates according to acts which so provide for such counties by population classification or local law * * * ” as specifically as if it had named each of them. Our research discloses that according to the latest official census there are at least two of the so-called larger counties, namely Escambia and Pinellas, which do not have population or local laws with reference to the qualifying dates of candidates for county office. So included in the classification of counties attempted to be exempted from the provisions of Chapter 29936, supra, we find not only the three largest counties in the state grouped therein, but with said counties we find others included in the classification which are smaller in population than Pinel-las County, which does not have a population or local law upon the subject of the dates for qualification of candidate's for county office. It is probably true that the classification attempted would have been constitutional and valid had it contained a given number of the largest-counties in’this state, upon the theory that in such large counties a greater period of time between the qualifying date and the date of the primary election for candidates for county offices to canvass the electors would be needed and hence should be granted. This premise would probably furnish a reasonable basis for the classification. It is obvious, however, that the classification here attempted is arbitrary and unreasonable, since at least one county, larger, for instance, than some of those affected by Chapter 30233, and several other local or population laws, is excluded from the group. We cannot pick out and exclude from the group or classification those counties, such as Orange, Palm Beach and Polk, for which there is no reasonable basis of classification or exception and leave therein the large counties for which there is a reasonable basis of classification. Such action would be judicial legislation of the most rank order.

- We have consistently held, consonant with our constitutional provisions, Sections 20 and 21, Article III, that a general law, such as the one here under consideration, which fails to operate uniformly throughout the state is unconstitutional and invalid unless it contains a clas-isfication predicated upon a reasonable basis. In re Rouse, Fla., 66 So.2d 42; Lindsay v. City of Miami, Fla., 52 So.2d 111; Waybright v. Duval County, 142 Fla. 875, 196 So. 430; State ex rel. Baker v. Gray, 133 Fla. 23, 182 So. 620.

Primary'elections are not expressly mentioned in Sections 20 and 21, Article III or any other sections of our Constitution; and because of the inherent differences between a primary and general election, it has been held by this court that an organic provision relating to “elections” does not necessarily comprehend a “primary election”. Cf. Wagner v. Gray, Fla.1954, 74 So.2d 89, upholding a general law requiring a majority vote in a primary election for the nomination by political parties of candidates to public office, as against the contention that the Act contravened Section 8 of Article XVI of the Constitution; and Bowden v. Carter, Fla.1953, 65 So.2d 871, upholding a general law requiring an oath of party fealty as a condition precedent to voting in a primary election, as against the contention that the Act violated Sections 1 and 6 of Article VI. But, in construing other provisions of our organic law, this court has many times held that the primary election laws are a part of the general election machinery of the state. In re Hawthorne, 116 Fla. 608, 156 So. 619, 96 A.L.R. 572; State ex rel. Gandy v. Page, 125 Fla. 348, 169 So. 854; State ex rel. Merrill v. Gerow, 79 Fla. 804, 85 So. 144; Ervin v. Richardson, Fla.1954, 70 So.2d 585. “Primary election laws and laws governing general elections ate so interwoven that together they comprise the election machinery of the state * * *.” State ex rel. Merrill v. Gerow, supra, 79 Fla. 804, 85 So. 144, 146. “Primary elections are therefore the beginning of the operation of the general election laws that must ultimately result in the actual choice of our elective public officers.” Bowden v. Carter, supra, 65 So.2d 871, 875, citing State ex rel. Gandy v. Rage, supra, 125 Fla. 348, 169 So. 854. This being so, it is no less necessary to have .uniformity •of operation in a law relating to the opening and conducting of a primary election than in one relating to the opening and conducting of a general election.

We hold, then, that the requirement of Section 20 of Article III as to the “opening and conducting [of] elections” .applies to primary elections, as well as .general elections.. We conclude that that portion of Subsection (3) of Section 4 of ■Chapter 29936, supra, quoted hereinabove, is,unconstitutional and invalid.

We now turn to. the suggestion -that Chapter 29936, supra, must be held unconstitutional and invalid in toto if the ■quoted portion of Subsection (3) of Section 4 of said Chapter be unconstitutional, because said Chapter 29936, supra, does not contain a so-called severability clause. We have held that it is not always necessary to -declare an entire Act invalid where a portion thereof is unconstitutional simply because the Act does not contain a severability clause. State v. Calhoun County, 126 Fla. 376, 170 So. 883, 886, and cases therein cited. The test is whether this court can .■say that, the Legislature would not have enacted the law under scrutiny except for the provision which is herein held unconstitutional and invalid. . We have no difficulty ip determining that the primary intention -of the Legislature by the enactment of Chapter 29936, supra, was to make uniform throughout the state the qualifying dates for candidates for state offices on the one 'hand and- candidates for county offices on the other. This is exactly what every general law of this nature is supposed to do, and it can be otherwise only in the event the Legislature sets up an exception in the nature of a classification which is predicated upon a reasonable basis therefor.

We hold that .the quoted portion of Subsection (3) of Section 4 of Chapter 29936, supra, may be expunged by virtue of its unconstitutionality without destroying the primary legislative intent. Indeed, the only intent which can be gleaned and which could be destroyed would be the indent to enact an unconstitutional and invalid proviso or exception. It is obvious that the1 quoted portion of Subsection (3) of Section 4 of Chapter 29936,. supra, was no more than a secondary intention or, perhaps, “afterthought” of the Legislature and is not a necessary or essential part of the Legislature’s primary intent.

Although Chapter 29936, supra, does not contain an express provision repealing all laws in conflict therewith, we hold that it does so by virtue of the fact that upon a careful analysis of Chapter 29936, supra, we have reached the conclusion that it is in -fact a restatement or general revision of the election laws of this state. This being true, it has the effect of repealing all local laws upon the same subject. Brevard County v. Board of Public Instruction of Brevard County, 159 Fla. 869, 33 So.2d 54; City of Miami v. Kichinko, 156 Fla. 128, 22 So.2d 627; American Bakeries Co. v. City of Haines City, 131 Fla. 790, 180 So. 524; State ex rel. First Savings & Trust Co. of Tampa v. Sholtz, 125 Fla. 361, 169 So. 849; Langston v. Lundsford, 122 Fla. 813, 165 So. 898; Sanders v. Howell, 73 Fla. 563, 74 So. 802.

It is our .conclusion that the quoted portion- of Subsection (3) of Section 4 of Chapter 29936, supra, is unconstitutional and invalid for the reasons aforestated and that it may be deleted from the Act without necessitating a holding that the entire Chapter 29936 is unconstitutional. We further conclude that the remainder of Chapter 29936 effectively repealed the local election law under consideration herein. The result of our holding is that in all counties of Florida the candidates for nomination to a county office must qualify at some time “after noon of the first filing date, which shall be the sixty-third (63rd) day prior to the first primary, but not later than noon of the forty-ninth (49th) day prior to the date of the first primary in the year in which any primary is held”. We are of the firm conviction that the original, clear and salutary intention of the Legislature will be carried forward by our ruling because under the valid provisions of Chapter 29936, supra, there will be uniformity throughout the state in the qualifying dates for candidates for state offices and likewise there will be uniformity throughout the state with reference to the qualifying dates for candidates for county offices.

We therefore hold that the relator is not entitled to the mandatory relief prayed for and the peremptory writ must be and it is hereby, denied and the cause dismissed.

It is so ordered.

DREW, C. J., and THOMAS, THOR-NAL and O’CONNELL, JJ., concur.

TERRELL, J., not participating.


author: PER CURIAM.

text:
    Kelley E. WALKER, John T. Ferreira, W. N. Golphin, H. S. McKendree and Frank Shaffer, as members constituting the Board of County Commissioners of Nassau County, Florida, and T. W. Brown, as Clerk of the Circuit Court of Nassau County, Florida, Appellants, v. E. V. GARCIA and Easter Conner, as Secretary of the Nassau County Democratic Executive Committee, Appellees.
    Supreme Court of Florida. En Banc.
    Jan. 30, 1956.
    Thos. J. Shave, Jr., Fernandina, for appellants.
    E. V. Garcia, Fernandina, and Easter Conner, in pro. per., appellees. ■ ■
   PER CURIAM.

Reversed and remanded on authority of State of Florida ex rel. Limpus v. Newell, Fla., 85 So.2d 124.

DREW, C. J., and THOMAS, HOB-SON, ROBERTS, THORNAL and O’CONNELL, JJ., concur.

TERRELL, J., heard the argument but did not participate in opinion and judgment.


text:
    Edgar W. WAYBRIGHT, as Chairman, Duval County Democratic Executive Committee, Appellant, v. Ray GREENE et al., Appellees.
    Supreme Court of Florida. En Banc.
    Jan. 30, 1956.
    Edgar W. Wayb right, Jacksonville, for appellant.
    J. Henry Blount, Jacksonville, for ap-pellees. , '
   PER CURIAM.

Reversed and remanded on authority of State ex rel. Limpus v. Newell, Fla., 85 So.2d 124.

DREW, C. J., and THOMAS, HOB-SON, ROBERTS, THORNAL ’ and O’CONNELL, JJ., concur.

TERRELL, J., heard the argument hut did not participate in the opinion and judgment.


author: ROBERTS, Justice.

text:
    Florence M. BECKSTED, Appellant, v. RIVERSIDE BANK OF MIAMI, a banking Institution organized and existing under and by virtue of the laws of the State of Florida, Appellee.
    Supreme Court of Florida. Division B.
    Feb. 1, 1956.
    Olavi M. Hendrickson, Miami, for appellant.
    Dixon, Dejarnette, Bradford & Williams and Reginald L. Williams, Miami, for ap-pellee.
   ROBERTS, Justice.

The appellant, plaintiff below, was injured when she stepped on a grating covering a drain in a parking lot maintained by the defendant bank, appellee here, for its customers, and sued the bank.for damages for its alleged negligence in maintaining the drain. The deposition of the plaintiff was taken and, on the basis of such deposition and exhibits filed by defendant, the trial judge entered a summary judgment in favor of defendant. Plaintiff has appealed.

Some discussion is had here of the question of whether the plaintiff was a business visitor of the bank or a mere licensee; but we think a decision of that question is unnecessary. Even if it be assumed that plaintiff was a business invitee on the bank’s parking lot, it was nonetheless her duty to see that which would be obvious to her upon the ordinary use of her senses and to exercise a reasonable degree of care for her own safety. Bowles v. Elkes Pontiac Co., 1953, Fla., 63 So.2d 769, 772. “ * * * The duty which the plaintiff owes to herself is to observe the obvious and apparent condition of the premises.” Matson v. Tip Top Grocery Co., 151 Fla. 247, 9 So.2d 366, 368. The drain in question was not a concealed or latent danger, if danger it was. It was plainly visible and could have been seen by plaintiff if she had been looking, and she said that she wasn’t looking.

In these circumstances, we agree with the trial judge that there was no genuine issue of fact as to the liability of the bank to the plaintiff, and that it was not error to enter a summary judgment in favor of the defendant.

Affirmed.

DREW, C. J., and THOMAS and O’CONNELL, JJ., concur.


author: ■BARNS, Justice.-

text:
    Henry REINHARD, Appellant, v. Harry K. BLISS et al., Appellees.
    Supreme Court of Florida. Special Division B.
    Feb. 1, 1956.

      Joseph A. Wanick, Miami Beach, for appellant. . ,
    E. Paul Beatty, Miami,' for appellee.
   ■BARNS, Justice.-

.The appellant-plaintiff sued E. M. Weber, et al. to.quiet title to lots 18, 19, and 2(3 of Commercial Buena Vista as per plat book 12, page 56, Dade County, and other lots. The appellee R. M. Weber .answered and the chancellor entered a final decree dismissing the complaint.as to R. ft!.- Weber and plaintiff appealed and assigns, the final decree as error. We conclude the decree should be affirmed.

Plaintiff deraigns his title from one Bechard who acquired a tax deed to_ these particular lots “less the west IS feet" but alleges that the mesrie conveyances were by deeds describing the lots fully with the foregoing quoted language omitted. The bill alleges the lots to be vacant and unimproved, and that none'of the defendants are in possession. The answer of Weber asserts title to the west 13 feet of said lots and denies that title is in the plaintiff to this portion.

After the time limited 'for taking of testimony had expired the defendant moved “for the entry of a final decree herein upon plaintiff’s bill and the defendant’s answer” which wé treat as a motion for decree on the pleadings authorized by the following rule:

Rule 1.11. "(c) Motion for Judgment or Decree on the Pleadings. After the pleadings are closed, but within such time as not to delay the trial any party may move for 'judgment or de-' cree on the pleadings.”

The foregoing State rale was taken from Rule 12(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which latter rule has been interpreted and construed as follows :

As stated in 2 Moore’s Federal Practice 2269 (2d ed.) concerning a motion for judgment on the pleadings: “For the purposes of the motion, all well pleaded material allegations of the opposing party’s pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false.”

.A Federal Court of Appeal held:

“This is an appeal from a judgment entered upon the pleadings on a motion by the defendant, Rule 12(c), Rules of Civil Procedure, 28 U.S.C.A. following section 723c. In considering such a motion the facts alleged by’the plaintiff must be taken to be true and the inquiry is whether upon those facts plaintiff has stated a cause of action.” Art Metal Const. Co. for Use of McCloskey & Co., Inc., v. Lehigh Structural Steel Co., 3 Cir., 116 F.2d 57, 58 (per Circuit Judge Goodrich).

A test of the merits of defendant’s motion heard wholly on the pleading under our rule 1.11(c) supra and under 12(c), F.R.Civ.P. is the same as a motion by a defendant for a summary judgment heard wholly on the pleadings either under Rule 56(b), F.R.Civ.P., or the State rule 1.36(b).

"The motion was based ‘upon the pleadings,’ without supporting affidavits, but supporting affidavits are not necessarily required under Rule 56(b). See Reynolds v. Needle, 77 U.S.App.D.C. 53, 132 F.2d 161. It would seem that the defendant might appropriately have moved for judgment on the pleadings under Rule ‘12(c), F.R.C.P. But since the moving 'party need not cite by their respective numbers the rules relied on when those rules are clearly indicated, Galdi v. Jones, 2 Cir., 141 F.2d 984, 992, the motion may properly be treated as attacking the complaint for failure to state a claim upon which relief can be granted.” Dunn v. J. P. Stevens & Co., 3 Cir., 192 F.2d 854, 855.

Upon a hearing on defendánt’s motion for judgment on the pleadings after the defendant has answered,. matters outside the. pleadings may not be presented under Rule 1.11(c), supra as permitted by further provisions of the Federal Rule 12(c).

In passing on such motion made by defendant all well pleaded material,allegations of the complaint and all fair inferences to be drawn therefrom must be taken as true and the inquiry is whether the plaintiff has stated a cause of action by his complaint. The test we hpply in- this instance is the same as if defendant has made a motion to dismiss the complaint for “failure to state a cause of action” under State rule 1.1 i (b) (6). The allegations of the defendant’s answer are of no avail to him at a hearing on defendant’s motion for decree on the pleadings.

Applying the foregoing principles to the case at hand, it appears from the allegations of the complaint that he. is entitled to no relief against the defendants, Weber, as -to the “west 13 feet” of said lots since the complaint fails to show that he has title thereto, and in the absence of other facts the bill affirmatively shows that the plaintiff-appellant does not have title thereto.

The appellant has argued the point as to the right of R. M. Weber to answer, but the chancellor was never called on to rule on this point and therefore the point was not saved for review. The appellant went to final hearing on the motion of R. M. Weber without objection, insofar -as the record shows. We indulge in no presumption of a prejudicial procedural irregularity in this respect.

Affirmed.

DREW, C. J., O’CONNELL,' J., and CRAWFORD, Associate Justice, concur.