author: ELLIS, Judge.

text:
    Henry GRIFFIN and Elry Griffin v. BANK OF ABBEVILLE & TRUST COMPANY.
    No. 4204.
    Court of Appeal of Louisiana. First Circuit.
    May 25, 1956.
    Rehearing Denied June 29, 1956.
    Writ of Certiorari Denied Sept. 28, 1956.
    J. Minos Simon, Lafayette, for appellants.

      Davidson, Meaux, Onebane & Nehrbass, Lafayette, for appellee.
   ELLIS, Judge.

This is a suit for $3,659.61 filed by the plaintiff brothers against the Bank of Ab-beville & Trust Company and its president, F. W. Kerksieck, under an agreement of contract of dation en paiement which was executed by the plaintiffs in favor of the bank. The main question involved in the Lower Court, as well as in this court, was whether parol evidence was admissible to explain, vary, add to or contradict the authentic agreement between the parties.

The Lower Court permitted parol evidence and dismissed the plaintiff’s suit and they have appealed.

The history of this suit shows that the plaintiffs were engaged in farming, and being in need of financial assistance borrowed money from the bank on the 11th day of January 1951, and as a result gave the bank a note and mortgage for $75,000. The pertinent portions of this mortgage are as follows:

“ * * * Personally came and appeared Elry Griffin, husband of Mary Lou Greene, and the said Mary Lou Greene: Henry Griffin, husband of Jeanne Viator, and the said Jeanne Viator, all residents of Vermilion Parish, Louisiana, hereinafter called Borrower (whether one or more) who declared that Borrower is engaged in vultivating for the purpose of making thereon crops of rice and other agricultural -products for and during the current crop year, the property and lands hereinafter described, situated in the Parish of St. Mary, State of Louisiana, to-wit:
“That certain part of Riverside Plantation belonging to Wallace J. Pugh, containing 800 acres, and being bounded North and East by the Atacha-falaya River, South by Wallace J. Pugh and West by Six Mile Lake.
“Pledgors giving one-fifth of the crop on the above tract as land rental.
“The Borrower, being in need of funds for the cultivation and making the crops on said land during the current crop year, has applied to Bank of Abbeville & Trust Company hereinafter called the Creditor, for advances in money as required, from time to time, for the production of said crops, up to the total sum of Seventy-Five Thousand and No/100 ($75,000.00) Dollars; and the Borrower, to represent said advances, has executed one promissory note of even date herewith described as follows; in the sum of $75,000.00, falling due on November 1, 1951, all drawn by the Borrower to the order of the Creditor, and bearing interest at the rate of six per cent per annum from date until paid * * *.
“ * * * the Borrower does specifically pledge and pawn all of said agricultural crops, either planted and growing or in contemplation of being planted and grown, as well as the proceeds thereof, unto and in favor of the Creditor and any future holder or holders of any or all of said notes, and does hereby mortgage in favor of the Creditor and any future holder or holders of any or all of said notes, the following described movable property

On July 23, 1951, plaintiffs executed another crop lien pledge and chattel mortgage identical with the above described mortgage except that by error which is obvious on the face of the document it states “Pledgors giving one-fifty of the crop on the above tract as land rental.” There is no question raised and it is clear that this should have been %th of the crop.

The plaintiffs, being unable to meet their obligations, entered into negotiations with the bank which resulted in an agreement to cancel all obligations of the plaintiff to the bank upon the former releasing all property described in the chattel mortgages and crop liens which had been given by plaintiffs as security for their indebtedness. The pertinent part of this dation en paiement reads as follows:

. “Whereas, party of the first part holds the following chattel mortgages and crop liens and the note accordingly secured thereby, viz.:
“1. Chattel mortgage and crop lien dated January 11th, 1951, from Elry Griffin and Henry Griffin and their wives in favor of the Bank of Abbe-ville & Trust Company, for the sum of $75,000.00, recorded in Volume 14-A at Page 1695, under Entry No. 118429, of the chattel mortgage records of Vermilion Parish, Louisiana.
“2. Chattel Mortgage and Crop lien dated July 23rd, 1951, from Elry Griffin and Henry Griffin and their wives in favor of the Bank of Abbeville & Trust Company, for the sum of $6,000.00 recorded in Volume 14-A at Page 2619, under Entry No. 121524, of the Chattel Mortgage Records of Vermilion Parish, Louisiana.
“3. Chattel Mortgage dated October 6th, 1951, from Henry Griffin and Elry Griffin in favor of the Kaplan Farm Equipment Co., recorded in Volume 19, at page 337, under Entry No. 122634, of the Chattel Mortgage Records of Vermilion Parish, Louisiana, which chattel mortgage is in the sum of $4,000.00.
“That all of said crop liens and chat-tie mortgages are likewise of record appropriately in the Parish of St. Mary, Louisiana.
“That the notes, crop liens and chattel mortgages represented under items one, two and three above, have been used as collateral and secured those certain two promissory notes, the first dated January 18th, 1951, in the sum of $75,000.00 bearing interest at the rate of six per cent from maturity, made due and payable November 1st, 1951, executed by Henry Griffin and Elry Griffin in favor of the Bank of Abbeville & Trust Company, and upon which obligation there is an approximate balance due of $49,200.00 with six per cent, interest from November 1st, 1951, and the second note in the sum of $21,100.00 dated December 12th, 1951, due thirty days after date, bearing interest at the rate of six per cent from maturity until paid, with a credit thereon of $4,816.38 paid on March 18th, 1952, said note being executed by Henry Griffin and Elry Griffin in favor of the.Bank of Abbeville & Trust Company.
“Parties of the second part in order to satisfy in full, cancel and erase said obligations agree hereby to turn over to party of the first part wherever situated and authorized fully that taking thereof by party of the first part all items described in said mortgages in full title and ownership to party of first part, the particular items presently existing and being here dealt with, being fully described as follows, to-wit: * * *
“ * * * Four-Fifths of approximately 1,200 barrels of Rexore rice in the Vermillion Farmers Co-Operative Warehouse at Abbeville, Louisiana, which has been sold and is presently being delivered to American Rice Mill.
“Four-fifths of the proceeds of this rice belongs to and is to be turned over to the party of the first part.
“ * * * In consideration whereof at the end of said thirty days party of first part hereby agrees to deliver the notes and papers representing said obligations to parties of second part thereby declaring fully satisfied, extinguished, canceled and released all said obligations existing between said parties as well as any other obligations which may be owed to it by parties of second part, all in full satisfaction, accord, transaction and settlement between the parties.”

The District Court found and there is no' doubt but that the plaintiffs had pledged to the bank all of the rice grown on the Riverside Plantation belonging to Wallace J. Pugh except %th of the crop which was to be paid to the said Pugh as rental on the land. The entire crop of approximately 1,537 sacks had been stored in the Vermilion Farmers Cooperative Warehouse at Abbeville, Louisiana. However, on the date of the execution of the dation en paiement or shortly prior thereto, during the negotiations leading up to the agreement, the bank called Vermilion Farmers Cooperative Warehouse in order to find out the amount of rice which the plaintiffs had stored there, in order to place said amount in the written agreement. They were told that the amount there was twelve hundred and some odd sacks and, therefore, inserted in the written agreement “approximately 1,200 barrels.” The plaintiffs failed to tell the bank that they had already removed Yqth of the rice and given it to the land owner, Pugh, for rental.

The Lower Court gave a detailed discussion of the testimony in his written reasons and we thoroughly agree that there is no doubt but that the defendant bank was entitled to the entire proceeds of the approximately 1,200 barrels of rice remaining in the Vermilion Farmers Cooperative Warehouse on the date the agreement was entered into, but in order for the mistake to be corrected and plaintiffs denied judgment it is necessary that parol evidence be admissible.

Counsel for plaintiffs contends that the Trial Jtidge committed reversible error in permitting parol evidence to contradict, vary and add to the recitals of an authentic act, in the absence of any allegation of:

(a) Contrary recitals in a counter letter.
(b) Contrary evidence through the agency of interrogatories on facts and articles.
(c) Allegation of fraud or error.

In the case of Locascio v. First State Bank & Trust Co. of Hammond, 168 La. 723, 123 So. 304, 305, our Supreme Court stated:

“There is no allegation in the pleadings of fraud or error. The defendant signed the act of sale voluntarily and went into possession of the property on the faith of that deed.
“ ‘The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.’ R.C.C. art. 2236 (2233).
“ ‘Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.’ R.C.C. art. 2276(2256).
“The foregoing articles of the Civil Code have been uniformly and strictly applied by this court in cases too numerous to mention here. The recently decided cases are Harris v. Chrichton [Crichton], 158 La. [358], 359, 104 So. 114; Glover v. Abney, 160 La. 175, 106 So. 735; Plaza Amusement Co. v. [Frank] Rubenstein & Co., 163 La. [272], 282, 111 So. 702.
“It is the unbroken rule that authentic sales cannot be attacked,' except by means of a counter letter, or by interrogatories on facts and articles, or by allegation and proof of fraud or error.”

In the case of Holloway Gravel Company v. McKowen, 200 La. 917, 9 So.2d 228, at page 232, the Supreme Court stated:

“It is elementary that in the execution of deeds and like instruments the intention of the parties must be gathered from an inspection of the instruments without the aid of extrinsic evidence, but if the instrument is so ambiguous as to leave the mind in doubt as to what the parties intended, extrinsic evidence may be resorted to as an aid in its construction. Hudson & Collins v. McGuire, 188 Ky. 712, 223 S.W. 1101, 17 A.L.R. 148.
“The rule that the intent of the parties governs the scope of the contract is set forth in Article 1959 of the Civil Code in these words: ‘However general be the terms in which a contract is couched, it extends only to the things concerning which it appears that the parties intended to contract.’ ”

In the case of Reynaud v. Bullock, 195 La. 86, 196 So. 29, upon rehearing at page 34, the Supreme Court stated:

“It is an established rule of law in our jurisprudence that ‘Either party is always permitted, in a suit between the parties to a contract, to correct any error in the instrument purporting to evidence the contract, so as to' make it express truly and correctly the intention of the parties.’ (State v. Standard Oil Company of Louisiana, 164 La. 334, 354, 113 So. 867, the cases therein cited, and Fair v. Williams, 187 La. 953, 175 So. 631) provided the rights of third parties have not intervened. Sentell v. Randolph, 52 La. Ann. 52, 26 So. 797; Adams v. Drews, 110 La. 456, 34 So. 602; Bender v. Chew, 129 La. 849, 56 So. 1023; Fran-tom v. Nelson, 142 La. 850, 77 So. 767; Giovanovich v. Breda’s Widow and Heirs, 149 La. 402, 89 So. 251; Waller v. Colvin, 151 La. 765, 92 So. 328; 12 American Jurisprudence 631, Section 138; Williston on Contracts, Revised Edition, Volume 5, Section 1585, page 4423; 23 Ruling Case Law 333, Sections 25 and 27; 53 Corpus Juris 908, 935, 936 and 962. The error or mistake must be mutual. Hello World Broadcasting Corp. v. International Broadcasting Corp., 186 La. 589, 173 So. 115; Crowell and Spencer Lumber Co. v. Hawkins, 189 La. 18, 179 So. 21; Topps v. North British & Mercantile Ins. Co., La.App., 148 So. 470; 13 Corpus Juris 373, Section 254; 13 Corpus Juris 520, Section 481; 53 Corpus Juris 941, .Sections 59 and 60; 23 Ruling Case Law 327, Section 20; 12 American Jurisprudence 624, 625, Section 133; and Article 1826, Revised Civil Code. The burden is on the one seeking the reformation to prove the error (Metcalfe v. Green, 140 La. 950, 74 So. 261; White v. Myane, 10 La. App. 195, 120 So. 650; Crais v. Castaing, 13 La.App. 395, 128 So. 300; Coussons v. Smythe, La.App., 178 So. 657), and he must carry the burden by clear, and the strongest possible, proof. Palangue v. Guesnon, 15 La. 311;, Dickson v. Dickson, 36 La.Ann. 870; Ker v. Evershed, 41 La.Ann. 15, 6 So-566; Bryan v. Wisner, 44 La.Ann-832, 11 So. 290; Gladdish v. Godchaux, 46 La.Ann. 1571, 16 So. 451; Chaffe v. Minden Lumber Co., 118 La. 753, 43 So. 397; Waller v. Colvin, 151 La. 765, 92 So. 328; and Nelson, Curtis & Nelson v. Bridgeman, 152 La. 190, 92 So. 855.
“It was held in the case of Nelson, Curtis & Nelson v. Bridgeman, 152 La. 190, 92 So. 855, 860, that: '* *i a strong presumption obtains that the deed, as executed, properly describes and conveys all of the land intended to be conveyed. * *• * the evidence [of an omission or error] * * * must be clear and convincing * (Brackets ours.)”

Summing up the law and jurisprudence, it is clear that as between the parties if the act “is so ambiguous as to leave the mind in doubt as to what the parties intended, extrinsic evidence may be resorted to as an aid in its construction,” or it may be varied by parol upon an allegation of error or fraud.

An examination of the dation en paiement in question in this case reveals that by general terms the plaintiffs intended to convey to the Bank all property covered by the chattel mortgages enumerated therein, and then the instrument states:

“Parties of the second part in order to satisfy in full, cancel and erase said obligations agree hereby to turn over to party of the first part wherever situated and aitthorized fully that taking thereof by party of the first part all items described in said mortgages in full title and ownership to party of first part, the particular items presently existing and being here dealt with, being fully described as follows to-wit:
* * >{c * * *
“Four-fifths of approximately 1200 barrels of Rexora rice in the Vermilion Farmers Co-Operative Warehouse at Abbeville,. Louisiana, which has been sold and is presently being delivered to American Rice Mill.
“Four-fifths of the proceeds of this rice belongs to and is to be turned over to the party of the first part.”

The defendants contend that the agreement is ambiguous on its face as it clearly stated that all items covered in the chattel mortgages were to'be given to the Bank and then an examination of the chattel mortgage would show that all of the rice raised on the Pugh Plantation except %th was mortgaged to the Bank, and also that “approximately 1200 barrels” is ambiguous and subject to specific proof. We cannot agree with this contention as the general statement must yield to the specific description “ * * * the particular items presently existing and being here dealt with, being* fully described as follows, to-wit: * * *” On the face of the dation en paiement the rice in question is definitely fixed and limited to the Rexora 'rice in the Vermilion Farmers Cooperative Warehouse at Abbeville, La., “which has been sold and is presently being delivered to American Rice Mill.” On the face of the agreement there is no doubt as to what ‘rice the plaintiffs agreed to give to the defendant, therefore, parol evidence was not admissible on the theory that the contract was so ambiguous “as to leave the mind in doubt as to what the parties intended.”

It is next necessary that we examine the defendant’s answer to see whether error has been in' fact pleaded. We find the following allegations of fact:

“IL The allegations of Paragraph Two ; of. plaintiffs’ petition are admitted... Defendants further expressly aver that ■ plaintiffs agreed to transfer and deliver to the defendant Bank their entire interest in all property on which the Bank had any lien, mortgage or other pledge including specifically four-fifths of all of the rice produced on the property belonging to Wallace Pugh.
“III. The allegations of Paragraph Three of plaintiffs’ petition are admitted. , And further answering defendants expressly aver that plaintiffs agreed to transfer and deliver and defendant Bank agreed to accept among other items enumerated, four-fifths of all of the rice produced by plaintiffs on the property of Wallace Pugh, which four-fifths represented the entire share belonging to plaintiffs and the other one-fifth represented the landowner’s share in said crop.
“IV. In answer to the allegations of ■ Paragraph Four of plaintiffs’ petition, defendants admit that four-fifths of the Rexora rice crop produced on the property of Wallace Pugh was sold for ■ the sum of Nine Thousand Nine Hundred Seventy Three and 07/ioo ($9,973.-07) Dollars, of which amount the sum of One Thousand Eight Hundred Fifty-five and 87/ioo ($1,855.87) Dollars was retained by Vermilion Farmers ’ Co-Operative Association, Inc., -for its charges, leaving a net of Eight Thousand One Hundred Seventeen and 2%oo ($8,117.20) Dollars, which amount was turned over to the Bank of Abbe-ville & Trust Company at the request of F. W. Kerksieck, President, pursuant to the agreement which had been made by the said Bank and the plaintiffs herein. All allegations of Paragraph Four in conflict with or inconsistent with the above are denied and all other allegations whatsoever contained in Paragraph Four are denied.
“V. In answer to the allegations of Paragraph Five of plaintiffs’ petition, defendants admit that Elry Griffin came to the Bank in Abbeville and asked F. W. Kerksieck, the President, to pay to him one-fifth of the proceeds of the said Rexora rice, .which was refused because of the fact that plaintiffs had no interest in said proceeds, it having been specifically understood that the entire interest of the said plaintiffs was transferred and delivered to the said Bank. All other allegations of Paragraph Five are denied.
******
“XIII. That at the time of the execution of the agreement of dation en paiement hereinabove referred to, it was specifically understood by and between the parties thereto and the plaintiffs knew that they were delivering to the said Bank their entire four-fifths interest in all Rexora rice which had been produced on the property belonging to Wallace Pugh and that the one-fifth interest not transferred constituted the land owner’s share of said rice in which the plaintiffs had no interest.
“XIV. That the said plaintiffs offered for sale and did sell, subject to the terms and provisions of the crop lien and chattel in favor of the Bank of Abbeville & Trust Company, their share of the Rexora rice through the Vermilion Farmers Co-operative Association, Inc., on March 10, 1952, which consisted of four-fifths of the production of said Rexora rice and which was stored in the Vermilion Farmers Co-Operative Association warehouse and same was being delivered before the execution of the said dation en paiement contract, and the exact amount of the said rice could not be determined as it was then in process of being weighed by the Edmondson-Duhe Rice Mill of Rayne, Louisiana, as per their contract and agreement of purchase. The figure of ‘1200 barrels’ was an approximate figure and did not enter into a determining factor as set forth for the division of said crop of Rexora Rice produced by plaintiffs on the land of the said Wallace Pugh.
“XV. That defendant Bank received the proceeds of said rice pursuant to the agreement which had been made between the parties and as part of the consideration paid to the said Bank for the cancellation of the indebtedness hereinabove referred to.”

The facts as pleaded by the defendants set forth the complete intention of the parties insofar as the property which was to have been transferred to the defendants in the dation en paiement. It clearly states and sets forth that the Bank was to receive ^ths of the Rexora rice crop produced on the property of Wallace Pugh, and that, accordingly, the plaintiffs sold, subject to the terms and provisions of the crop lien and chattel mortgage in favor of the defendant Bank, their share of the Rexora rice through the Vermilion Farmers Cooperative Warehouse on March 10, 1952, which consisted of %ths of the rice produced on the Pugh plantation which was stored in the Vermilion Farmers Cooperative Warehouse, and that the rice was being delivered before the execution of the dation en paiement contract and the exact amount of said rice could not be determined as it was then in the process of being weighed at Rayne, Louisiana, and that the figure of “1200 barrels” was an approximate one.

It is not necessary that the defendant have specifically alleged a legal conclusion of error but it is sufficient if they allege facts which clearly put at issue the error in the dation en paiement contract. This they have done by a complete recital of the material facts surrounding the execution of the dation en paiement contract, and parol evidence was therefore admissible to show the error, viz., that the 1,200 barrels was an approximate figure and the true intent of the parties was to transfer %ths of the entire crop produced on the Pugh plantation as shown by the chattel mortgages and crop lien which was introduced and admissible as written evidence.

As previously stated, the District Court correctly found and gave a detailed discussion of the evidence supporting its finding that the defendant Bank was entitled to the entire proceeds of this 1,237 sacks of Rexora rice which constituted %ths of the crop produced by plaintiffs on the Pugh Plantation, stored in the Vermilion Farmers Cooperative Warehouse, and therefore was entitled to the entire proceeds of the sale of such rice.

For the above and foregoing reasons the judgment of the District Court dismissing plaintiffs’ suit is affirmed.


source: Caselaw Access Project

author: TATE, Judge.

license: Public Domain

text:
    Ira TURNER, Plaintiff-Appellant, v. SOUTHERN INDUSTRIES COMPANY et al., Defendants-Appellees.
    No. 4215.
    Court of Appeal of Louisiana. First Circuit.
    May 25, 1956.
    Rehearing Denied June 29, 1956.
    Writ of Certiorari Denied Sept. 28, 1956.
    Godfrey & Edwards, Many, for appellant.

      Gist, Murchison & Gist, Alexandria, for appellees.
   TATE, Judge.

Plaintiff Turner appeals from dismissal of his workmen’s compensation suit against Southern Industries Company, a partnership. The District Court found no accident had been proved.

Plaintiff alleges disability by reason of hernia sustained while working for defendant. There is little doubt that at date of trial and from at least a few days after Turner’s alleged accident, he was disabled by reason of hernia. The question is whether this hernia originated from industrial accident within the meaning of the Louisiana workmen’s compensation act, LSA-R.S. 23:1021 et seq.

Turner testified that at about 4:00 A.M. on December 8, 1954, he twisted while stacking 90-lb. bundles of paper in the •course of his employment; he felt a burning in his lower abdomen and a nausea. He sat down for a short time, then (in his words) “I got up and drug in the rest of the time until 6:30 the best I could,” Tr-121.

At this end of this shift at 6:30 A.M., Turner drove directly home, informed his wife of the accident, took an aspirin, and went to bed. The pain becoming worse, he stayed in bed throughout that day and the following night, sending word that he •could not report to work when his shift began at 10:00 P.M. that evening. He stated that he did not report to the office of Dr. C. L. Saint, company physician, on the afternoon of the 8th, a Wednesday, because the office was closed on Wednesday afternoons. His wife’s testimony corroborated his as to his complaint of the accident and his at first slight pain on his arrival home, with increasing pain thereafter.

Turner reported to the company doctor the following morning, December 9th. Of this examination and visit, Dr. Saint testified : “The patient walked in in a somewhat ■doubled-up attitude, somewhat fixed manner, alleged that this pain began at 4:00 A.M. December 8 while unloading paper from a dolly to a stack. Now, on specific questioning, he gave no history of a strain or lifting an unusually heavy bunch.”

As to this testimony of Dr. Saint, the District Court commented that it was favorable to Turner in that it fixed the time of the accident as testified by plaintiff (who consistently gave the same history to other examining physicians), but that “it is unfavorable to the plaintiff in that plaintiff on specific questioning gave no history of a strain.” (Tr-217.)

We believe therein the very able District Court fell into error. An aggravation of a latent weakness is a compensable accident, or “the giving way of any portion of the laborer’s body while engaged in his work.” Rivero v. Leaveau, La.App., 45 So.2d 418, at page 422. The jurisprudence is “well settled” that “an injury is compen-sable where excessive heat, heavy lifting or other strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition” (many citations), Hemphill v. Tremont Lumber Company, 209 La. 885, 25 So.2d 625, at page 627.

Except for Dr. Saint, all medical witnesses who examined Turner after the accident (some within a few days thereafter) found plaintiff disabled by reason of hernia. The four physicians who testified on behalf of plaintiff found bi-lateral (that is, on both sides) indirect inguinal herniae, while the other specialist who testified for defendant found such hernia only on the right side. These five physicians uniformly agreed that Turner is unable to perform the duties similar to those of his former employment, and there is little question that by reason of the aforesaid hernia(e) Turner is totally disabled within the meaning of the compensation act.

Although Dr. Saint testified that on the original examinations of December 9th and 15th, 1954, and again on examination during the trial, he diagnosed no hernia(e), he admitted that on the examination at the trial he found what he denoted as a “potential hernia sac”, stating that “a hernia is not a hernia until it comes out and manifests itself as a hernia,” Tr-78. This seems to be the definition of a direct or a complete hernia, but as noted by the testimony of all the other physicians and held by the jurisprudence, the traumatically caused indirect or incomplete hernia is also disabling and compensable if incurred in the course of employment, Ashworth v. Calcasieu Paper Co., Inc., La.App. 1 Cir., 85 So.2d 681, certiorari denied' May 6, 1956; Long v. Louisiana Highway Commission, La.App., 2 So.2d 683; Parker v. Weber-King Mfg. Co., 1 Cir.,' 19 La.App. 177, 139 So. 660; Plumlee v. Calcasieu Sulphate Paper Co., T Cir., 16 La.App. 670, 132 So. 811.

Dr. Saint admitted that he was able to insert his index finger into plaintiff’s inguinal canal and'to. feel the cough impulse transmitted, which is indicia of the hernia, •whether direct or indirect, see testimony of Dr. Murdock, Tr-71, testimony of Dr. Reid, Tr-99.

Dr. Saint testified that he had examined Turner seven months before the accident, when Turner had applied for work with defendant. He stated Turner’s condition was the same at the trial as when he reported for work. The following questions and italicized medical notations by Dr. Saint are abstracted from his report of initial examination (Tr-80):

“7. Any trace of hernia ? No. * *
“9. Any other noticeable physical impairment? Left tonsil has insisted fib (fine) lesion — Markedly enlarged and moderately relaxed inguinal rings.”

Dr. Saint approved Turner for employment with the comment: “Other than enlarged inguinal rings applicant is o. k. for work.”

Turner, 38 years of age, had worked his entire life at hard labor without previous complaint, and was passed by defendant’s doctor for employment at hard labor. In view of the unanimous testimony of all five other doctors who examined Turner as of date of trial that because of his indirect hernia, Turner was not a safe employment risk for hard labor, it is most difficult to conclude that Dr. Saint would have failed to note on the original examination reports the “potential hernia sac” - he noted at the trial, if such had-actually existed at date of original employment, in view of the notation of other minutiae and since this was the very purpose of this physical examination.

We must therefore conclude that this company physician was mistaken when he gave his opinion that Turner’s condition was the same at trial as at date of original employment; and we note the District Court made no factual finding contrary to this conclusion.

As defendant urges, an unfavorable inference arises from plaintiff’s failure to call one doctor who examined plaintiff at plaintiff’s request; but this unfavorable ■inference is not sufficient to outweigh the positive sworn testimony' of all other examining physicians (save the aforesaid Dr. Saint) that indeed plaintiff has a hernia.

In holding that Turner’s testimony did not bear the burden of proving the accident, the District Court stressed that although he testified he “drug in” the rest of his time with difficulty, he admitted not discussing the accident with his two co-employees or reporting it to his foreman, although he knew the company regulations required such report; and that the co-employees did not notice Turner sitting down following the injury.

Turner explained that working conditions .were not conducive to conversation since “with the knocking of the paper and the racket of the machine why you couldn’t holler and hegr a man back there”, Tr-138, and “I didn’t feel sick enough to go to the doctor. I didn’t think it was anything serious at the time”; “It started hurting me bad on Wednesday evening” “and I couldn’t go that evening because Dr. Saint was closed”, Tr-142.

Dr. Saint’s testimony included the following : ,

“Q. Now, when a hernia comes on suddenly as the result of a strain, if it’s aggravated or if it’s caused traumatically, if there is such a thing, what are the usual symptoms of the patient? A. They usually notice a burning pain of varying severity at the point of herniation.
“Q. From your experience, is this pain such as would allow a man to continue with his work? A. Depending on the severity of the pain — how severe the pain is. Most of them that I’ve seen continue their work because the pain was not severe enough to stop them. (Tr-179.)
******
“Q. And I believe you told Mr. Turner on that sixth day to go by the office and see about his compensation, didn’t you? A. I told him to report to the foreman, that’s all I know.
“Q. You don’t recall whether you said anything about compensation or not? A. He didn’t report to the foreman — a lot of these men have injuries and come to me and then report to the foreman. It’s important in getting the record straight in their cases.” (Tr— 190.)

As this testimony of Dr. Saint emphasizes, no particularly unfavorable inference should be drawn from plaintiff’s failure to know that the hernia initially sustained was a serious injury, nor to report it either to his foreman or to his co-employees. Equivalent circumstances surrounded the accident in several cases for which an employee was allowed compensation when disabled by hernia, see e. g., Bailey v. Long-Bell Lumber Co., La.App. 1 Cir., 63 So.2d 452; Howell v. Clemons Bros. Lumber Co., La. App. 1 Cir., 32 So.2d 60; Hill v. J. B. Beaird Corporation, La.App., 19 So.2d 295 (employee continued working after he felt burn; did not know he had sustained hernia until three days later, after medical examination) ; see, also, McGlothlin v. Ford, La. App., 6 So.2d 754.

The District Court further drew an unfavorable inference from this illiterate workingman’s answer of “I don’t know” to several questions, the answers to which the District Court felt should have been.known by him. We do not find his failure so material or incredible, as to cast doubt upon his veracity, to know the answers to such questions as: the name of another member of his crew; the name of the doctor to whom he had been sent by his attorneys, or this doctor’s diagnosis; whether or not he had complained to a doctor who had examined him several years ago (concerning an auto-train wreck injury) of pain in his testicle (there is no indication whatsoever in the record, other than counsel’s question, that he had ever so complained); whether or not he had informed his new employer, the defendant, at the time of his application for employment of this auto-train wreck injury.

We may add that even if, as defendant’s employees state, Turner did not inform them of this auto-train wreck injury when he applied for employment and incorrectly told them he had suffered “no accidents”— even assuming he knew the question referred to tort claims, as well as industrial accidents — we fail to see how, as defendants urge, any unfavorable inference can be drawn that he would not tell the truth under oath. Perhaps the unsworn misstatement of this father of four small children, in an effort to obtain employment, would not be commendable; but, similarly, “puffing” of commercial enterprises or promises of political candidates, although sometimes untrue, do not relevantly indicate whether or not the individual concerned would give false testimony under solemn oath before a court.

The positive sworn testimony of plaintiff and his wife of his pain commencing on the job and increasing thereafter at home up until and past his examination by the physicians, corroborated by the testimony of all physicians testifying that such accident and_ symptoms as described were compatible with and if true the cause of plaintiff's present disability, is not in our opinion materially disputed by plaintiff’s failure to report or discuss the accident with his foreman or co-employees in the initial and less painful stages of the injury. “Courts will not impute perjury to apparently credible witnesses, Miller v. Hartford Live Stock Ins. Co., 165 La. 777, 116 So. 182; Fogleman v. Interurban Transportation Co., 192 La. 115, 187 So. 73, particularly in the absence of any evidence in the record to indicate that the evidence was false or unreliable. Bonanno v. Decedue, 186 La. 1041, 173 So. 756.” Cockrell v. Penrod Drilling Co., 214 La. 951, 39 So.2d 429, at pages 432-433. “Uncontradicted testimony should be accepted as true” (syllabus), Coleman v. Manufacturers Casualty Insurance Company, 229 La. 105, 85 So.2d 47, at page 48, citing this “familiar rule of law” as supported by the above cases.

In our opinion, the proof does not admit of serious doubt that Turner entered the employ of defendant (after a lifetime of hard work) free from disabling hernia seven months before the accident, was able to perform his duties up until the time of the accident without pain and satisfactorily, but that he has been continuously disabled since he appeared at Dr. Saint’s office on the day following the accident.

We believe the able District Court erred in concluding that no accident occurred within the meaning of our compensation act, as above stated; and that if the effect of the decision is to place the burden upon the employee of proving that in the 24-hour interval between his leaving work and re-' porting to Dr. Saint, no strain or aggravation had occurred which produced the disabling symptoms, instead Of the industrial accident, then that as a matter of law such burden does not lie upon him, in view of his positive sworn testimony (corroborated by medical witnesses that such would be the history), of the burning pain and nausea on the job, uncontradicted by any testimony nor made suspect by any suspicious circumstances.

The uncontradicted testimony is that plaintiff’s disability is permanent, but that it may be cured by operation. Immediately prior to trial, defendant filed an amended and supplemental answer requesting that Turner be denied compensation in the event of his failure to submit to hernia operation. This allegedly was on the basis of Leday v. Lake Charles Pipe & Supply Co., La.App. 1 Cir., 185 So. 655, which however concerned only amputation of a finger tip, a very minor operation with almost no danger or pain and suffering and with almost a certainty of success. Pretermitting whether there has been sufficient procedural tender of this serious operation made by supplemental answer, and we doubt that there was, see Benefield v. Zach Brooks Drilling Co., La.App., 59 So.2d 710; it has been and is well settled that an injured employee is not required to undergo a surgical operation for hernia on penalty of compensation being denied to him, see Johnson v. U. S. Fidelity & Guaranty Co., La.App., 58 So.2d 261, containing comprehensive survey of the jurisprudence concerning same.

The physicians testifying herein stated that repair'of a hernia is a major operation; the mortality rate is .1%, or one in a thousand (and some estimates were higher) ; the hernias recur in at least 5%-10% of the cases after the operation. An injured employee is not required to undergo such risk with such chance of recurrence, on penalty otherwise of starvation for himself and his family.

For the above and foregoing reasons, the judgment of the District Court herein is reversed; .judgment is rendered in favor of plaintiff, Irá Turner, and against defendants, Southern Industries Company, a partnership composed of M. R. McGehee, C. C. McGehee, Roy Sutton McGehee, and Belia Crawford McGehee, holding said partnership and said partners individually and in solido liable in the full sum of $30 per week during plaintiff’s disability, commencing December 8, 1954, not to exceed 400 weeks in all, with legal interest on each weekly compensation installment from the date when due until' paid, and reserving plaintiff-the right to recover medical expenses incurred as a result of this accident, within the statutory limits. The fees of the medical experts testifying are fixed, per stipulation approved by the trial court, at $35 each, except for that of Dr. Saint which per another court-approved stipulation is fixed at $50. All costs of these proceedings to be paid by defendants-appellees.

Reversed and rendered.


text:
    Lester HEBERT v. HARTFORD ACCIDENT and INDEMNITY COMPANY.
    No. 4217.
    Court of Appeal of Louisiana. First Circuit.
    May 25, 1956.
    Rehearing Denied June 29, 1956.
    Bass & Nichols, Lake Charles, for appellant.
    Jones, Kimball, Harper, Tete & Wethcr-ill, Lake Charles, for appellee.
   ELLIS, Judge.

Plaintiff is seeking compensation as the result of an alleged accident on June 22, 1954, while employed by Graver Construction Company for total and permanent disability less thirteen weeks compensation previously paid, together with reasonable medical expenses and a penalty of 12% on all past due benefits until paid, together with an attorney fee.of $750.

The defendant’s answer was a general denial and the case was duly tried and judgment rendered in favor- of the defendant, from which the plaintiff has appealed.

Plaintiff was a carpenter by trade, and on June 22, 1954, had been employed for approximately two years by Graver Construction Company. During most of his employment with this company he had been working as a foreman but there had been a reduction in force and he was doing heavy carpentry work, and on the particular date of the accident he and Felix Labouve were engaged in bolting three x eights onto steel plates, and it was necessary that they carry each piece of timber. While doing so, in going down an incline or “hill”, the plaintiff tripped but did not fall but “twisted my back.” He continued to work for about fifteen or twenty minutes and then for the rest of the afternoon he did nothing but wait for the truck that took the men to and from work. His foreman, Shelton Chaumont, was on the truck when it came to pick up the workmen and plaintiff reported the accident to him.

The next morning the foreman gave him a slip to go to First Aid and from there he was sent to Dr. Briel. Dr. Briel diagnosed plaintiff’s injury as “a sprain of the gluteus muscle fibers and te?/dons.” Dr. Briel stated that on this examination, June 23, 1954, his findings were limited to “a tenderness over the fibers just lateral to the sacro iliac joint and along the posterior rim of the ilium.”

In view of the fact. that we are now dealing with the question of whether plaintiff suffered an accident, we will not discuss Dr. Briel’s testimony in detail until we consider the question of disability.

The plaintiff’s testimony as to the accident is corroborated in full by his fellow employee, Labouve. This witness stated, “We was fixing a dam for the skimming pit and we was putting 3x8’s on that and we started carrying it and he stumbled.”

Shelton Chaumont, plaintiff’s foreman, stated that about 3:30 P. M. he went “to pick up the men and that was when I heard about the accident.” At this time plaintiff told him he was feeling “sore in his back,” but that it was too late to go to First Aid, and this foreman told him that if he still hurt the next morning he would take him to First Aid, and the next morning “it looked like the man was hurting more than he thought he was so I took him to First Aid.”

Plaintiff was not satisfied with Dr. Briel’s examination, which he testified was very brief and superficial, and he then went to see Dr. Crookshank. This doctor testified that plaintiff told him that he was working at a skimming pit and “was placing a 3x12 piece of lumber and strained his back, supposedly about 10 A. M.” The doctor found muscle spasm of the lower back muscles and limitation of stooping and lateral motion and tightness of the back muscles on flexion of the trunk, and no evidence of any neurological involvement. X-rays were made at the doctor’s request on June 28, 1954 and they showed a congenital second degree spondylolisthesis, which is an instability of the joint where the body of one vertebra slips on the other.

Defendants question the accident and the learned Judge of the Lower Court commented upon the same for the reason that Dr. Briel stated that the plaintiff told him that “He was putting steel bolts into plates and 3x8’s when he pulled on a wrench and he felt a sudden hot pain in the lower part of his back,” whereas plaintiff testified and told the other doctor that he injured his back while carrying a 3x8 when he slipped. It is also shown that plaintiff stated that these 3x8’s were to be bolted onto two steel plates and naturally in the bolting process wrenches would be used. In view of the fact that there does not seem to be any question of the occurrence of the accident in the manner testified to by plaintiff as he is corroborated by his fellow employee who was helping him to carry this 3x8, and in view of the fact that a description of the work he was doing would include the use of the wrench in bolting the 3x8’s to the steel plate, it is more than likely that Dr. Briel in writing his report became confused in which portion of the process plaintiff suffered an accident. Every doctor that examined plaintiff found some evidence, of injury, which is corroborative of the testimony as to the occurrence of an accident. We believe from' the testimony that an accident has been amply proven.

As to plaintiff's disability, it is shown that he followed his trade after being discharged by Dr. Crookshank in September of 1954 to return to light work with only the usual loss of time necessary to locate new employment at the termination of previous employment. This is subject, however, to testimony that the plaintiff attempted to do some heavy work and the pain became worse in his back and he had to quit and secure light work. However, plaintiff has proven by a preponderance of the testimony that during the time he was working he did only that which was considered light work in his trade. His employer, P. B. Flowers, knew of his weak back and instructed his foreman to go easy on him because the plaintiff was a good worker and he had plenty of light work for plaintiff to do.

L. E. Hennigan, business agent for the Carpenters’ Union, testified that the plaintiff applied to the Union for work after having been off some two or three months and “specifically asked for light duty or trim work” or anything else where he would have to do no particularly heavy work. He told plaintiff that most construction jobs were void of light duty but there was a possibility if plaintiff was referred to a job that he could talk to the job superintendent who might assign him to trim work. Hennigan testified that on a few occasions he had definitely assigned plaintiff to work in which there would be no lifting. It is also shown by this witness that he discussed two jobs with the plaintiff but that the latter turned them down, presumably due to the heavy nature of the duties.

Edward- W. Millstead, Jr., testified that he worked with plaintiff on two jobs, Wein-garten’s store and on the Dave Miller job at Firestone, which was light work. This witness stated that if the plaintiff had not been kept on lighter work he could not have handled the job. It was on the Wein-garten job that plaintiff was boring holes in 2xl2’s with an electric drill when it hung up and struck him in the chest. He was sent to Dr. Alexander as a result of this accident but there is nothing in the testimony to reveal that it had any significance on the back condition which plaintiff claims is disabling.

Another fellow employee, Roland Fon-tenot, testified that he worked with the plaintiff on the Bass job at Sulphur and the Miller job at Firestone in 1955. On the Bass job he and plaintiff were hanging sheet rock but the plaintiff was unable to do this work on account of his back and after four and a half hours he quit. On the Miller job at Firestone, this witness stated that the plaintiff was doing mostly light jobs, and that he noticed that while plaintiff was working “he handled himself like he was kind of hurting. You could tell by the way he handled himself.” This man had also worked with the plaintiff on a Stone & Webster job building a power house in 1949 and stated that as far as plaintiff’s physical condition was concerned, “I couldn’t see nothing wrong with him then.”

Murphy Miller, witness on behalf of plaintiff, stated that he was a carpenter and had worked with the plaintiff on two different jobs, viz., the Honeycutt Furniture Store and Trinity Baptist Church, and that on the former they were fixing window casings for a show window and in doing so it was necessary that they tear out some of the old stuff in order to build the new. They also moved some steps. He stated that he and plaintiff were working as partners and were supposed to do trim work which was considered light work on the Honeycutt job, and that one morning (date not given) plaintiff acted as if he was hurting and left the job to see a doctor.

Plaintiff also offered the testimony of a neighbor, Edward Manuel, and of Jesse Fontenot, who at the time of the trial occupied part of plaintiff’s home. Both testified that prior to the accident plaintiff worked steady and never complained, but that subsequent to the accident he appeared to be suffering and slept at times upon the floor or a hard bed.

Therefore, from the above and foregoing we conclude that the plaintiff suffered an accident and injury to his back, and that after approximately three months treatment he returned to regular employment insofar as his trade was concerned but this employment, it is shown by a preponderance of the testimony, was composed of light work, and as to the degree of disability from a medical standpoint we will now proceed to discuss such testimony.

It is admitted by all doctors that plaintiff is suffering from spondylolisthesis, second grade, and that x-rays revealed quite a bit of slippage of the fifth vertebra. Dr. Briel was called on behalf of the defendant and his diagnosis has previously been given, however, he further testified that in his experience with spondylolisthesis he could not remember any case in his experience where he could say definitely that an individual had a sudden slippage without having a considerable amount of spasm in the lower back. He further stated:

“ * * * The only way I have ever felt that we could be certain of that would be to have an X-ray just before the accident happened of his back, and an X-ray afterward. I don’t believe that any proponent of the traumatic theory or the congenital theory of spondylolisthesis have any absolute proof of what happens in the spondylo-listhesis.”

This doctor further stated that the x-rays of the plaintiff showed “you have practically no intervertebral disc remaining between D-5 and S-l”. It was his opinion that the plaintiff’s grade 2 spondylolisthesis which he observed in the x-rays did not occur as a result of the accident on June 22nd but that it had gradually taken place over a number of years “and as the ligaments and musculature have gradually stretched and given away as an individual such as that has done in his work and exercise, then this slippage gradually occurs. I do feel that the ligaments and musculature which hold a spondylolisthesis in place are definitely weakened by that slippage and as a consequence those ligaments and musculature can be injured more easily than they would if they were in a normal condition.”

This doctor was of the opinion that persons with a back condition such as the plaintiffs, after they have injured themselves and once become symptomatic, whether as the result of direct trauma or over a period of time that they will clear up and definitely resume the condition which existed before the accident. Dr. Bri-el stated that when he examined the plaintiff in the hospital while Dr. Crookshank was treating him on June 28, 1954, that he found muscle spasm and that Dr. Crook-shank had placed plaintiff in traction in order to reduce this muscle spasm. He stated that “it was true muscle spasm,” and when asked to account for the fact that he had none when he examined him on June 22nd, he stated: “That does happen.”

The Court questioned Dr. Briel as follows :

“The Court: As I understood your testimony, you feel that that slipping had all occurred gradually .and there was no additional slipping as a result of the accident that he reported oni June 22.
“The Witness: No, I did not testify to that. I testified I didn’t think all of this occurred at the time of his accident on the 22nd. Now, whether he had any additional slippage I couldn’t tell, and I don’t think anyone could tell fromi looking at X-rays such as that.
“The Court: I thought I understood you to say that if there had been any additional slippage there would have been considerably more muscle spasm..
“The Witness: Well, I feel that there should be.
“The Court: In your opinion there was not any great amount of slippage as a result of the accident as he reported on June 22.
“The Witness: That’s right.
“The Court: Doctor, I assume this;That in an instance where there is spondylolisthesis there is a gradual slipping and eventually it reaches a point where it either pinches nerves or causes some symptoms of pain. Is that correct? .
“The Witness: As a usual rule it does, although I had an opportunity to examine a man sixty-five years old for something else not so long ago and in taking X-rays this man had a grade 3 spondylolisthesis and he said he had never had any backache in his life.
“The Court: In cases where there are symptoms of pain, or when symptoms of pain do develop, can trauma bring about those symptoms of pain?
“The Witness: Yes.
“The Court: Now, if it does bring about the symptoms of pain and then the patient either receives treatments or in the course of time the pain disappears, then will his back be in as good condition as it was immediately prior to the trauma that caused the pain?
“The Witness: I will have to answer it this way: I will say if the man had -a sprain of the surrounding ligaments which hold those two vertebra which Rave slipped on each other, if he has a ■sprain of those ligaments, which means he has a certain amount of tearing or •stretching with subsequent pain and ■disability, then I feel that the individual is subsequently — those ligaments .are subsequently weakened to the point where further sprains may occur, or •even further slippage may occur, but it is so gradual that it is very difficult to even pick it up in an X-ray over a period of several years sometimes. You can’t see any change in those spondylolisthesis.”

Dr. Crookshank, witness on behalf of plaintiff, testified that when he examined the latter shortly after the accident he found muscle spasm of the lower back ■muscles, etc. supra, and that the x-rays-which he had made show congenital sec•ond degree spondylolisthesis of 1^5 on S-l and that a laminal defect on the right side with partial obliteration of the fifth lumbar interspace, - with no other evidence of any fracture or dislocation. He started the plaintiff out with microthermic treatments, light work and anti-spasmodics, and later on he hospitalized him, put him om a hard mattress and he was given traction:His diagnosis at this time was a sacral muscle strain with a possible ruptured or injured intervertebral disc. His treatment began in June, shortly after the accident, and was terminated on October 1, 1954. He discharged plaintiff to do his regular work, which plaintiff had told him was relatively light carpentry work. This doctor stated that on August 20, 1954, his notations on the plaintiff were “He is improving. Today we have no neurological involvement and there is little muscle spasm.” On 9-3-54, “patient stated he feels no more pain in the back but he has done very little work. He was advised to start light work and return to see me in two weeks. 9-17-54, patient states he feels no pain. He had done some light work and is going to try his regular work. At that time I found no neurological involvement and very slight, if any, muscle spasm.” Dr. Crookshank in the beginning had found a sciatic nerve irritation.

On January 31, 1955, plaintiff came to Dr. Crookshank with a complaint that his back had been hurting and he had had some trouble, on a couple of jobs, but that he just kept on working and hadn’t made any mention of it. On this visit he examined plaintiff and found muscle spasm “more marked on the last visit, * * * The plaintiff remained under the doctor’s care from January 31 to February 8, 1955 and was given heat treatments during most of this time. It was Dr. Crookshank’s opinion that on the occasion of his last visit and treatment in January and February, 1955, plaintiff could not have done any heavy work without pain.

Mr. Crookshank stated that spondylolis-thesis could be aggravated by strain or trauma and that plaintiff’s had been aggravated. He testified that he had treated plaintiff’s wife in the latter part of 1955 and that she came to his office with plaintiff but that on those occasions he could not recall whether plaintiff had made any complaint to him that his back was still bothering him.

Dr. Charles V. Hatchette testified on behalf of plaintiff that he had examined the latter on July 9, 1955, and his chief complaints were constant low back pain, aggravated by any attempted lifting, and he stated that while employed as a carpenter for Graver Construction Company at Cities Service Refinery, “He was carrying a 3x8x20 board when his foot slipped, and in attempting to prevent the board from falling he twisted his low back region in some way. He felt a burning type pain in the mid low back region associated with weakness. * * * ” The plaintiff gave him no history of any previous injury to his back and as a matter of fact, there is no record of the plaintiff ever having suffered with his back prior to the accident of June 22, 1954. Dr. Hatchette had x-rays made of the plaintiff which showed the Grade 2 spondylolisthesis in the fifth lumbar vertebra and the first sacral segment with narrowing of the lumbo sacral interspace. He testified as to his opinion of the plaintiff’s condition as follows:

“My opinion at that time was that Mr. Hebert had a grade 2 spondylolis-thesis of the fifth lumbar vertebra on the first sacral segment, and it was my belief that he was not able to carry on the usual duties of a carpenter at that time. I stated that I did not know whether or not there had been additional slippage of the vertebra as a result of the accident above described, but must assume so due to the fact that his complaints dated from the time of the accident. The treatment of Mr. Hebert resolves itself in a spinal fusión with probable removal of the lamina on both sides of the vertebra, and it was also my opinion that he was getting some nerve root compression as evidenced by complaints of pain and numbness in the lower left extremity, and it was also my belief that this had no bearing whatsoever on a ruptured intervertebral disc, but was the result of slippage of the fifth lumbar vertebra on the first sacral segment.
“Q. How does that slippage cause this sensation of pain and numbness in the leg? A. By pressure against the nerve radicles, pressure against the fifth lumbar nerve. When the vertebra slips it carries with it soft tissues which compress the nerve root against another part of the vertebra and causes what we call a compression against the nerve root.
“Q. Could you give any idea as to how long this man would be disabled without the operation ? A. Well, it is my opinion that his defect is certainly a permanent thing and I could and I could not say how long he would be disabled. As far as I am concerned, it is indefinite. There are some cases of spondylolisthesis without even knowing it, but when they become symptomatic then the estimation of disability is certainly an indefinite thing. No one can tell when they will be relieved of pain, or whether or not they will be relieved of pain, and about the only way that they can be relieved is by operation.”

On cross examination, Dr. Hatchette stated that spondylolisthesis was a congenital condition and he could not say how much slippage plaintiff had prior to his alleged injury; that it might have slipped a great deal and the injury might have caused some additional slippage but that he could not determine this without seeing x-rays of the plaintiff’s back prior to the injury, and of course, none exist as plaintiff had no complaints with his back prior to the injury. The doctor felt sure that the condition had been present for a very long time and he felt that any accident the plaintiff had, “assuming his statements are true and correct, only aggravated a preexisting condition.” Of course, from a legal stand point, it is immaterial whether the accident and injury actually caused the condition or aggravated a pre-existing condition which brought on plaintiff’s disability. He was positive in his statement that heavy duties are more prone to bring on an aggravation of spondylolisthesis than light duties, and he also stated that he did not believe that an individual with Grade 2 spondylolisthesis who has become symptomatic, that is, with complaints of pain, should do heavy work, for as a general rule once a person with a spondylolisthesis has an accident and begins to have pain, they continue to have the pain and difficulty with their back until it is relieved by surgery. One important statement made by Dr. Hatchette in his testimony was in answer to a question by the Court to the effect that if the plaintiff did experience pain from his particular back condition, is it probable or improbable that he would have had muscle spasm. He answered: “Strangely enough very few spondylolisthesis cases have muscle spasm and we do not find positive straight leg raising in these cases.” Furthermore, this doctor positively testified in answer to the court that once spondylo-listhesis becomes symptomatic it usually remains that way, and once an individual gets a back injury with spondylolisthesis they are always prone to get another one “with the least little strain.” He was positive when questioned by the Court that there was nothing to indicate in any way that plaintiff could do heavy labor. It was also his belief that the plaintiff had the pain of which he complained. He was in agreement with the testimony of the other doctors that plaintiff’s condition could be caused over a period of time or by sudden strain, however, in either event plaintiff would be entitled to compensation if the congenital weakness which he had caused the break down in any part of his body that was disabling as a result of heavy work he was doing at the time of the injury, or if the accident aggravated his condition to a disabling degree.

The plaintiff has definitely proven an accident in this case and has shown that pri- or to the accident on June 22, 1954, there was no record of any trouble with his back nor any complaint by the plaintiff himself as to any pain in his back, and that he performed heavy manual labor, whereas after the accident the x-ray revealed the spondy-lolisthesis which is a congenital condition, and a slippage of about one inch, together with muscle spasm and tenderness and complaints of pain, and he was treated for approximately three months by Dr. Crook-shank. It is further shown that the plaintiff engaged only in light duties connected with his trade after being discharged by Dr. Crookshank shortly prior thereto, up to the date of the trial. He had to quit one job on account of the heavy duties causing his back to pain him.

The medical testimony preponderates in favor of the theory that plaintiff’s condition could have been and was aggravated by the accident on June 22, 1954, or that it could have caused the entire slippage. In either event, the result of the accident was disabling to the plaintiff to such an extent that Dr. Hatchette was definitely of the opinion that his disability was indefinite and that he should not and could not do any heavy work, in other words, as a result of the accident and injury on June 22, 1954 plaintiff suffered a permanent and total disability.

The learned judge of the District Court based his opinion upon a finding that it appeared to him that plaintiff became symptomatic as a result of the accident which occurred on June 22, 1954, but that by September of 1954 he became assymptomatic and was as able thereafter to work as a carpenter as he was before the accident occurred. We cannot agree with this finding in yiew of the testimony which has been discussed in detail above, viz., that plaintiff was unable to do heavy work, and it is not shown that he successfully performed any heavy duties as a carpenter after his accident and injury on June 22, 1954. The entire testimony shows that he performed only light duties, and it was positively the opinion of the medical men that once a person becomes symptomatic with a spondylolisthesis condition, it is subject to aggravation with the least strain and particularly by heavy work. As stated, we do not believe from the showing in this record that plaintiff could perform the same type of heavy work he was doing prior to the accident and that his only relief could come as a result of an operation to fuse the back, which is classified as a major one.

As to plaintiff’s claim for penalties and attorney fees we do not believe that this record would justify their imposition.

Accordingly, the judgment of the Lower Court is reversed and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Lester Hebert, and against the defendant, Hartford Accident and Indemnity Company, awarding the said Lester Hebert compensation in the full sum of $30 per week beginning June 22, 1954, for permanent and total disability not to exceed 400 weeks, less compensation previously paid, with legal interest from maturity on all past due installments until paid.

It is further, ordered, adjudged and decreed that the fees of the medical experts testifying in this cause be taxed as costs, and that all costs be paid by the Hartford Accident and Indemnity Company.


author: PER CURIAM.

text:
    Irving OSBORNE v. Mrs. Caroline C. REDNOUR, Widow of William Rednour, doing business as William Rednour Transfer & Storage Company.
    No. 20007.
    Court of Appeal of Louisiana. Orleans.
    May 28, 1956.
    Rehearing Denied June 25, 1956.
    Wagner & Jarreau, New Orleans, for plaintiff-appellant.
    Jesse S. Guillot, New Orleans, for defendant-appellee.
   PER CURIAM.

This is a suit for workmen’s compensation. Plaintiff claims to be totally and permanently disabled and has appealed from a judgment dismissing his suit.

The trial in the Civil District Court was held on October 23 and 24, 1951.

The appeal was filed in this Court on June 23, 1952.

Because of the failure of the Court Reporter to prepare the transcript of testimony, the transcript was not filed here until June 18, 1954. Thereafter there were several continuances requested by counsel and the matter finally came before us on May 16, 1956, more than five and one-half years after the evidence had been taken in the Civil District Court.

Counsel for appellant filed a motion to remand on the ground that evidence now available shows that during that interval of five and one-half years plaintiff has spent much time in the Charity Hospital of Louisiana at New Orleans under treatment for the various conditions on which the suit is based. Attached to the motion to remand is a voluminous transcript of the record of the Charity Hospital covering such parts of that period of five and one-half years during which plaintiff was undergoing treatment in the said hospital.

Counsel for defendant-appellee opposes the motion to remand, contending that while it is true that plaintiff during that interval spent much time in the hospital, the conditions which were responsible for those visits were the same as the conditions which were relied on when the case was tried in the Civil District Court and that since the District Court held that there was no liability in compensation, such new evidence would be merely cumulative and would not justify a reversal of the judgment.

We feel that since so much time has elapsed since the evidence was taken below and since obviously plaintiff has undergone much treatment in the hospital during that time, it would be in the best interests of justice to remand the matter to the Civil District Court for such evidence as may now be available to both parties touching upon the present condition of plaintiff and the causes therefor.

Accordingly:

It is ordered that the judgment appealed from be and it is annulled, avoided and reversed and that the matter be remanded to the Civil District Court for the Parish of Orleans for the introduction of such additional evidence as either party may desire to offer, and in accordance with the views herein expressed; all costs to await final judgment or final decree if on appeal.

Remanded.


text:
    Mrs. Bessie L. SALES et al. v. Dillard CLOUD and Frank Singletary.
    No. 4214.
    Court of Appeal of Louisiana. First Circuit.
    May 25, 1956.
    Rehearing Denied June 29, 1956.
    Writ of Certiorari Denied Sept. 28, 1956.

      Alva Jones, C. W. Berry, Jr., Oakdale, for appellants.
    John R. Hunter, Jr., Alexandria, for appellees.
   ELLIS, Judge.

This suit arose from an automobile accident which occurred on March 13, 1954 at about 6:30 P.M. on Highway 165 which leads out of the City of Oakdale, La. John D. Sales was killed in this accident and his widow, on behalf of herself and as natural tutrix of her two minor children, seeks damages against Frank Singletary and Dillard Cloud, claiming the injuries from which he died resulted from the negligence of both defendants. Trial in the lower court resulted in favor of the plaintiff, and the defendant Dillard Cloud has appealed.

The original petition designated the District Court of Allen Parish as the 14th Judicial District. As a matter of fact the Parish of Allen forms part of the 31st Judicial District. Both defendants filed exceptions to the jurisdiction. Thereupon, the plaintiff filed, with leave of the Court, a supplemental and amended petition showing the Parish of Allen to be in the 31st Judicial District. The exceptions were overruled.

The appellant, Dillard Cloud, then filed a motion to strike the amended petition^ based upon the premise that in order to allow the amendment of a petition, a court must be first vested with jurisdiction of the suit. The District Court overruled this motion but the exceptions and motion to strike are reurged on appeal.

The accident occurred in the Parish of Allen and the petition was addressed to the District Court of said Parish. The appellant maintains the plaintiff’s suit should be dismissed as the lower court did not have the authority to allow an amendment; that had the case resulted in a judgment being rendered upon the original petition, such judgment would have been a nullity. It strikes us that such a contention is without merit since the proper district court was addressed in the original petition and its designation as the 14th Judicial District instead of the 31st did not in any way abrogate any right the defendants may have had and it certainly was within the discretion of the lower court to allow an amendment to properly designate the numerical order of the court when the district court of the proper parish was addressed in the original petition. It might be that a petition is filed and typographical error made to designate the judicial district as the 4th, when, as a matter of fact, it is the 3rd. If the suit is brought in the proper parish the trial court can allow an amendment to correct this unimportant error. , Counsel for the appellant states in his brief that we will find a number of decisions upon this point, but failed to cite any.

In Bruno v. Gauthier, La.App., 70 So.2d 693, 695, an appellant sought the dismissal of a suit since the petition, as originally filed, was addressed to a non-existent court and there could be no amendment to cure this defect. The Court, quoting authorities, held that a caption might be amended, and quoted the language of our Supreme Court; from Southport Mill v. Friedrichs, 167 La. 101, 118 So. 818:

“ ‘The whole tendency of modern practice is to yield as little as possible to technicalities and afford aid to the filing of amendments as far as is consistent with substantial justice,’ ”

It is beyond doubt that the plaintiff could have dismissed suit and immediately brought another, heading the petition the 31st Judicial District instead of the 14th. We believe that justice is done by allowing an amendment.

The record shows that the plaintiff was a passenger in the car operated by her husband, and that her minor son, Johnny-Sales, was in the car with her and her husband on the front seat. This car was being driven through the city limits of Oakdale, Louisiana, when two automobiles approached it from the opposite direction. One was being driven by Frank Single-tary, one of the defendants, and the other by Dillard Cloud, the other defendant. The deceased, who Was traveling north in his right lane, pulled his car over onto the shoulder of the highway and stopped. His lights were burning. The two cars approached, side by side from the north, traveling south, at a very high rate of speed. The Singletary car attemped to pass the Cloud car, and these two vehicles collided and the Singletary car struck the car in which the deceased was seated, producing injuries which resulted in his death.

Singletary filed what amounts to a general denial. Cloud denied any negligence, alleging he was traveling at a legal rate of speed and driving in a careful and prudent manner; that the accident was caused entirely by the negligence of Single-tary.

The fact that the Sales car was parked on the shoulder of the highway when the accident occurred is not disputed by any evidence whatsoever, nor is the fact that his lights were burning, and he had pulled over to the shoulder prior to the time of the accident. Consequently, there is absolutely no doubt but that he and the occupants of his car were free from any fault whatsoever and could not have contributed to the collision.

Mrs. Sales testified that her husband pulled off onto the shoulder of the road; that they had been driving very slowly; that he used his brakes and stopped; that when she looked up she saw the two vehicles approaching from the north at a very high rate of speed and as one was attempting to pass the other it collided, pitched up into the air, turned over and struck the car in which she was seated.

The defendant, Singletary, and his wife, who was riding with him, stated that he and Cloud had been racing; that he had passed Cloud and after going some two or three miles Cloud passed him, when he, Single-tary, was then going about 60 miles per hour; that he finally caught up to Cloud when they had nearly reached Oakdale, and then he pulled over to go around Cloud, but that Cloud pulled into the left lane to prevent him passing, then pulled to his right, and that he then tried.to pass him again, but that Cloud again pulled his car toward him and the accident occurred. Singletary also testified that at the time of the accident he was traveling at about 90 miles per hour but was not able to pass the Cloud vehicle, and that the accident happened within the city limits of the Town of Oakdale. He also admitted he and Cloud had been racing for some time, and at the coroner’s inquest he told the coroner that at the time of the accident he was traveling about 97 miles an hour. Both Singletary and his wife stated that previous to the accident 'the Cloud car had passed them and that he had to pull off onto the shoulder of the road to keep from having a collision with a car approaching from the opposite direction.

Shortly before the accident it appears, from the testimony of Mr. and Mrs. Adolph Daspit, that the Cloud and Singletary vehicles had passed them and were traveling very fast, apparently racing each other; that their speed at that time was about 80 miles an hour, and Daspit had to brake his car to keep from having a collision.

A State Trooper, Jaringan, testified that he came to the scene- of the accident about one-half hour after its occurrence and found the parties still there. He examined the physical facts and talked to Cloud and Singletary. According to his testimony Cloud told him he was going 95 miles per hour at the time of the accident and Single-tary stated he was going about 97. Jarin-gan testified that Cloud’s car traveled 390 feet after the impact and cut down a pine tree some 8 inches in diameter.

Cloud denied that he had been racing with Singletary and stated he was only traveling around 45 or 50 miles an hour. This is not borne out by the fact that his car traveled 390 feet after the accident and ran into a ditch after cutting down the pine tree mentioned. He also stated he did not see the Sales car and did not know any other vehicle except the Singletary vehicle was involved in the accident.

Louisiana Revised Statutes, LSA, Title 32, Section 223, states:

“No person shall operate or drive any passenger or other motor vehicle upon the highways of this state at a speed in excess of sixty miles per hour outside of any town or village not incorporated, or at a speed in excess of twenty-five miles per hour within any town or village not incorporated.”

Louisiana Revised Statutes, LSA, 32:227, reads:

“In addition to the specific speed limitations of this Chapter, no person shall operate any vehicle upon the highways of this state at other than a reasonable and proper speed upon the circumstances, or at a speed endangering the persons or property of others.
“Whoever operates a vehicle in violation of the speed limitations of this Chapter shall be prima facie at fault and responsible for any accident proximately caused by such operation.”

In Dyck v. Maddry, La.App., 81 So.2d 165, 167, we find the following:

“Provisions of Plighway Regulatory Act, LSA-R.S. 32:227, prohibit the operator of any vehicle upon the highways of this state from driving at other than reasonable or proper speed under the circumstances. A driver shall at all times be on the alert, steadily watching road conditions ahead as they are revealed, and keep his vehicle under such control and maintain such ■ speed as- is commensurate with circumstances, and the greater the known hazard the greater should be the degree of care exercised. * * * ”

There is no doubt but that Singletary as well as Cloud were guilty of the grossest negligence. They were both traveling at a speed that in itself constituted negligence. Both utterly disregarded their own safety as well as the safety of others and their culpable behavior cannot be excused. The deceased took every precaution possible to protect himself and his family and we can state positively the proximate cause of the collision was the negligence of both Singletary and Cloud.

The Sales minor, who was a passenger in the Sales car, was injured slightly, and the District Court awarded his natural tutrix, upon his behalf, the sum of $100. We find this award to be correct.

The District Court awarded the plaintiff $11,000 individually, and $10,000 upon behalf of the minors. Plaintiff’s brief asks that this judgment be affirmed and does not seek an increase in these awards.

The judgment of the District Court is affirmed.