text:
    Sip PARISH, Plaintiff-Appellant, v. ARKANSAS-LOUISIANA GAS COMPANY et al., Defendants-Appellees.
    No. 8489.
    Court of Appeal of Louisiana. Second Circuit.
    March 23, 1956.
    Love & Rigby, Shreveport, for appellant.
    Blanchard, Goldstein, Walker & O’Quin, Shreveport, for appellees.
   GLADNEY, Judge.

This is an action to recover workmen’s compensation, instituted by Sip Parish against his employer, the Arkansas-Louisiana Gas Company and its insurer, The Fidelity and Casualty Company of New York. From an adverse judgment plaintiff has appealed.

The only issue raised is with reference to the duration of plaintiff’s disability. No contention is made as to plaintiff’s employment or the occurrence of an accident on January 26, 1954, that caused disability entitling Parish to workmen’s compensation through August 27, 1954, which has been paid', but defendants insist that the disability continued no longer than August 27, 1954, at which time the employee was able to resume his normal work. Plaintiff takes the position that he was at the time of the institution of suit on November 6, 1954, and when this case was tried on February 24, 1955, still totally disabled and unable to work.

At the time of the accident plaintiff had been employed by the Arkansas-Louisiana Gas Company as a common laborer for a period of nearly four years, was thirty-three years of age, had been married for seven years and was the father of five children. He is described as being strong and a healthy-appearing individual, somewhat obese.

On January 26, 1954, while engaged in some pipeline work Parish was walking down a muddy slope carrying a fifty foot tape when his foot slipped out from under ■him and he fell back and landed directly on his back. He testified he immediately had severe pain in his back and had to lie there for a few minutes before he could get up and when he did try to get up, he could not straighten. He was promptly taken to Dr. Tom Smith who treated him until May 13th, at which time at the request of Dr. Smith, he was referred to an orthopedist for further attention.

Thereafter plaintiff was examined and treated by Dr. Donald F. Overdyke, Jr., and his partner and associate, Dr. Ford J. Macpherson, both orthopedists. He was given other clinical and X-ray examinations also by Drs. S. W. Boyce, a general surgeon, and Gene D. Caldwell, an orthopedist. The testimony of these doctors is substantially in accord, with the exception of that given by Dr. Boyce. Dr. Boyce was of the opinion plaintiff was at the time of trial totally disabled, whereas the others testified that as of August 27, 1954, it was their opinion plaintiff had completely recovered and was able to resume his normal work. We should report that Dr. Tom Smith did not see Parish professionally after May 13th and did not testify concerning his condition as of August 27th or later.

When plaintiff was received by Dr. Smith on the date of injury, the doctor conducted thorough clinical and X-ray examinations, the X-ray examination disclosing no evidence of injury to the bony structure of the back. As a result of his physical findings Dr. Smith concluded the patient had sustained a sprain of the muscles and ligaments of the lower back, and prescribed the wearing of a sacroiliac belt, analgesics and aspirin and administered physiotherapy. Parish was observed professionally by Dr. Smith some eighteen to twenty times. After almost four months of attention Dr. Smith questioned the genuineness of the continued complaints of his patient and requested orthopedic consultation. He testified:

“Well, my opinion at that time was that I was beginning to doubt this man’s * * * all of his symptoms, and I asked for a consultation for orthopedic men to see if they could find any trouble with him. I had not seen fit to hospitalize him.”

Parish then reported to Dr. Don F. Over-dyke, Jr., and was on May 27, 1954, given a thorough clinical and X-ray examination, following which the doctor was of the opinion plaintiff could return to his employment within six to twelve weeks. He prescribed the application of a Williams’ brace and continued to treat plaintiff. In connection with the X-rays taken on that occasion Dr. Overdyke noted a marked narrowing of the fifth lumbar interspace with a bony bit of spur formation, and irregularity in the anterosuperior margin of the body of the fifth lumbar vertebra, and antero-inferior margin of the fourth lumbar vertebra. His diagnosis was that at the time of his injury, Parish had sustained a contusion of the lumbar spine and that this, superimposed on the narrow lumbo-sacral interspace, was enough to produce the complaints of pain and limitation of motion in a man of his size and weight.

While Dr. Overdyke was on a vacation from his office on July 12, 1954, Parish returned for further examination and was received by Dr. Ford J. Macpherson. Complete clinical and X-ray examinations were made during which Dr. Macpherson observed muscle spasm. Thereupon he advised a brief period of hospitalization with the application of traction and accordingly Parish was admitted to a hospital on July 27th, 1954, where he remained until August 3, 1954. After his release from the hospital, Parish was given complete examinations by Gene D. Caldwell on August 23rd and again by Dr. Over-dyke on August 26th, and on the latter date by Dr. Macpherson. The occasion for Dr. Macpherson’s second examination was a request by Dr. Overdyke, who wanted an independent check of his findings.

Dr. S. W. Boyce first examined plaintiff on November 21, 1954, and later made an additional examination about one week preceding the trial of the case. The doctor did not relate in detail, as did the other medical witnesses, the fullness of his examination. We assume, nonetheless, that his clinical and X-ray examinations were complete. Dr. Boyce said that his X-ray films were entirely negative of bone pathology, but thought Parish had sustained either a sacroiliac strain or a ruptured disc. He inferred that if he had experienced a sacroiliac strain he should have had as of the time of trial a normal recovery therefi-om. Conceding a total absence of any objective symptoms of a ruptured disc, the doctor considered a disc injury likely because of the employee’s continued complaints of pain over such a long period of time, (approximately a year).

Counsel for appellant points to the X-ray films taken by Dr. Donald F. Over-dyke on May 27, 1954, and his reading of those as showing a narrowing of the fifth lumbar innerspace, etc., as consistent with the complaints of plaintiff. Subsequent observations and examinations by Drs. Overdyke and Macpherson completely refute the contention. All other X-ray findings, including those of Drs. Boyce and Smith, were negative as to any bone injury.

Without attempting to discuss in detail the various orthopedic tests administered by the three orthopedists who testified at length herein, the record indicates that plaintiff’s complaints were exaggerated and, voluntarily, he made unnatural responses to many of the tests applied during the several orthopedic examinations. The three orthopedists who made at least five complete examinations were unanimous in their decisions that as of August 27, 1954, plaintiff was able to return to and perform his customary work.

During the course of the trial the following colloquy took place between the trial judge and Dr. Macpherson:

“Q. Doctor, the Courts find themselves in even a more confusing position than the doctors in these cases in trying to decide them. Now, I understand that there are various tests that you can give in these back cases in order to tell objectively whether or not the person is, in your opinion, suffering pain. I think you mentioned muscle spasm; that’s one of them,, isn’t it? A. Yes, sir.
“Q. What are some of the others? A. Muscle spasm that does not shift on weight bearing and does not shift in an attempt to move the patient, which you would say would be absolute splinting, is a really rather reliable indication that the patient has pain in the area. In a low back complaint, with no other complaint, the presence or absence of this spasm is just about the only true indication you have. The complaint of pain to deep pressure over the area is pretty subjective. If the patient persists in pointing to one specific locality and never moves or varies from it or doesn’t try to dissimmate it too broadly, I think you have to put more credence on it, whereas, if you get the impression that this man is exaggerating and trying to say he hurts all over the area, certainly you begin to doubt the validity of his complaint, and other than those two impressions that you get as an examiner, it is practically impossible to say whether a human being’s back is hurting him. The fact that he will not let you move it certainly is not a decent indication, because voluntary resistance of motion is very easy to accomplish. Now, in the back injuries where the possibility of a disc protrusion or other nerve root involvements are suspected, there are other good objective signs, such as atrophy and reflex changes and sensory disturbances. Frequently the sensory disturbances become confusing because the patient is confusing them intentionally, and that often allows us to further formulate an opinion whether this man is playing honestly with you or not. In this man’s particular case, he had no leg complaints and he had no leg signs to suspect that he had nerve root involvement. So that his complaint was that of persistent stiffness and inability to move the low back because of painful restriction, and when I first saw him on July the twelfth, the man impressed me that he was hurting.
“Q. And you .found some objective symtoms to support that? A. Yes, sir.
“Q. All right now, will you tell us what those were ? A. And it was primarily the fact that he had true muscle spasm in the low back.
“Q. Now, on August the twenty-sixth when you examined him, did you find any objective symptoms consistent with his complaint at. that time? A. No, sir, he had no muscle spasm at that time, yet he would not move his hack.
“Q. So, you found no objective symptoms at that time? A. No, sir.”

In his written reasons .for judgment, the learned trial judge noted that the issue involved a question as to the sufficiency of the evidence to support plaintiff’s claim and made the following pronouncement, which we adopt with full approval thereof:

“Therefore we have the testimony of three orthopedic specialists to the effect that this plaintiff is completely recovered from the injury complained of, and the conflicting testimony of one general practitioner who says that plaintiff has not recovered, so the only way we could decide this case in favor of the plaintiff would be to completely disregard the testimony of these orthopedic specialists.
“In the case of Davis v. Swift & Co. [La.App.], 68 So.2d 670 [673], our Court of Appeal, Second Circuit, said:
“ ‘It has been repeatedly held by this court that the plaintiff carries the burden of proof to establish his claim in a workmen’s compensation suit and that conjecture and probability may not serve as a basis of judgment in such a case. See: Cain v. Delta Tank Mfg. Co., Inc., La.App.1948, 34 So.2d 662; Gaspard v. Baker Tank Company, La.App.1950, 46 So.2d 627; Knox v. Ethyl Corp., La.App.1951, 53 So.2d 443; Hogan v. Stoval Drilling Co., Inc., La.App.1951, 55 So.2d 284; Rider v. R. P. Farnsworth Co., La.App.1952, 61 So.2d 204.’
“The same thing but in different language is set out in Roberts v. M. S. Carroll Co., Inc. [La.App.], 68 So.2d 689 [693], wherein the court said:
“ ‘ * * * The most that could be said in support of plaintiff’s position is that he has succeeded in establishing a possibility of disability resulting from the accidental injury. The jurisprudence of every appellate tribunal of this state has incontrovertibly established the rule that the plaintiff in a compensation case, as in other cases, hears the burden of proof. He is required to establish his claims to a legal certainty by a reasonable preponderance of the evidence. Speculation, conjecture, probability, are not sufficient to support a judgment. These principles have been stated, restated, iterated, reiterated, emphasized and re-emphasized, in almost innumerable decisions, among which we mention only a few of the latest citations: * * *.’
“Thereafter the court cited twenty-seven cases in support thereof.
“Should there be any necessity for additional authority, it may be found in the most recent case of Green v. [A. C.] Campbell Construction Co. [La.App.], 78 So.2d 54 [56], wherein the court said:
“■ ‘ * * * Plaintiff has not established his claim with that preponderance of evidence and 'to that degree of legal certainty as required, by law. That plaintiff has the burden to so. establish and make certain his claims, even in workmen’s compensation cases, where he is given much liberality and the technical rules of evidence are not binding upon him, is firmly established in our jurisprudence. Davis v. Swift & Co., La.App., 68 So.2d 670; Roberts v. M. S. Carroll Co., Inc., La.App., 68 So.2d 689; Mouton v. Gulf States Utilities Co., La.App., 69 So.2d 147; Driggers v. Coal Operators Casualty Co., La.App., 73 So.2d 602. In these cases and in the authorities cited in each of them, as well as in many others, it was held insufficient for a claimant to make out a case that is merely probable but that such must be established by a reasonable preponderance of the evidence to a legal certainty. * * * ’
“In reaching our decision in this case we find the language used by Court of Appeal of Louisiana, Second Circuit, in Rider v. [R. P.] Farnsworth [Co., La.App.], 61 So.2d 204 [206], to be particularly helpful. In the cited case the court said:
“ ‘In deciding if plaintiff has met the requirements of establishing his case by a preponderance of the evidence, we should properly evaluate the expert testimony presented by both sides. Medicine is a scientific profession which readily lends itself to specialization, and for knowledge and treatment of certain disabilities we have learned it is best to consult a specialist whom we concede to have, by reason of training and experience, special knowledge and skill in his chosen field. Mr. Malone in his work on Louisiana Workmen’s Compensation Law, page 368, Section 286, said:
“ ‘ “The specialist and the physician with considerable experience may be preferred over the general practitioner or the newcomer.”'
“We have somewhat the same situation facing us in the present case that our .Court.of Appeal had before it in the rather recent • case of Walker v. Monroe [La.App.], 62 So.2d 676 [679], wherein the appellate court refused recovery for a compensation claimant when there was conflicting testimony of only one orthopedic specialist and one general practitioner. In denying recovery in the cited case the court said: .
“ ‘Similarly, it should be noted that the complaints of plaintiff fall within a particular field of medicine that belongs to the orthopedic specialist. Dr. Daniel M. Kingsley was the only orthopedist who testified as to the extent and nature of plaintiff’s disability. Ordinarily, his evidence relating to a disability of the back or knee must be given a higher evaluation than that of a general practitioner who examined claimant only on one occasion. See, Harmon v. McDaniel, La.App. 1949, 41 So.2d 249; Price v. T. L. James & Co., La.App.1951, 53 So.2d 182; Anders v. Employers Liability Assurance Corporation, Ltd., La.App. 1951, 50 So.2d 87.’
“In the present case we have not just one orthopedic specialist but three testifying to the extent and nature of plaintiff’s disability, against the testimony of one general practitioner who examined the plaintiff on only one occasion.”

The District Court held that the preponderance of the medical evidence established in favor of the defendants the ability of plaintiff to resume his normal occupation as of August 27, 1954. We have carefully examined all of the evidence adduced in this case, endeavoring to evaluate it in accordance with the standards employed in the judicial determination of workmen’s compensation cases, and it is our considered opinion that the judgment from which appealed is correct.

For the reasons hereinabove assigned, the judgment from which appealed is affirmed.


source: Caselaw Access Project

author: GLADNEY, Judge.

license: Public Domain

text:
    Claude N. LACY, Plaintiff-Appellant, v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Defendant-Appellant. Phillips Petroleum Company, Defendant-Appellee.
    No. 8490.
    Court of Appeal of Louisiana. Second Circuit.
    March 23, 1956.
    Rehearing Denied April 19, 1956.
    Louis Lyons, Bossier City, for Claude N. Lacy.

      James C. Murphy, Jr., New Orleans,for Employers Mut: Liability Ins. Co. of Wisconsin.
    Jackson, Smith, Mayer & Kennedy, Shreveport, for Phillips Petroleum Co.
   GLADNEY, Judge.

Claude N. Lacy sues herein to recover total and permanent disability benefits under the Louisiana Workmen’s Compensation Act, LSA-R.S. 23:1061 et seq., alleging injury as a result of an accident sustained on December 10, 1954, while engaged in the course and scope of his employment with Miller & Company, whose compensation . insurer was Employers’ Mutual Liability Insurance Company of Wisconsin. By a supplemental pleading plaintiff alleged at the time of the accident he was also employed by Phillips Petroleum Company, and made that corporation a co-defendant. Following trial on the merits, judgment was rendered against the defendant insurer for compensation of $27.30 per week for twenty-one weeks, together with medical expenses. Appellant’s demands against the Phillips Petroleum Company and for attorney’s fees and penalties were denied. From the judgment so rendered, the defendant insurer has perfected appeals to this court and Lacy, after appealing only from that portion of the judgment limiting compensation to twenty-one weeks has filed an answer to the appeal, asking the judgment be increased by awarding disability for a period not to exceed four hundred weeks, and for the imposition of penalties and attorney’s fees under LSA-R.S. 22 :658.

Presented for our consideration are issues which relate, first, .to the occurrence of an accident and its connection with plaintiff’s disability; second, the extent and duration of the disability sustained by plaintiff; third, the imposition of penalties and attorney’s fees; and fourth, the denial that plaintiff was an employee of the insured, Miller & Company.

Plaintiff, aged forty, a resident of Caddo Parish, Louisiana, was engaged as a common laborer on a mineral lease owned by the Phillips Petroleum Company near McLeod, Texas, when on Friday, December 10, 1954, he experienced pains in his stomach, chest and shoulder, which he explains came upon him under the following conditions:

“We were mixing the concrete up in a wooden box and I was toting it in a five gallon' bucket and he was pouring the steps and I was haying to go over the fire wall toting the concrete in the bucket, and that is when I first noticed the burning and hurting; it began hurting.”

At the time this happened Lacy and Billy Paul Carty were engaged in mixing, carrying and pouring concrete for some steps being constructed under the supervision of Ed Griga. The occurrence of the pain was reported to Billy Paul Carty and the latter offered to help relieve Lacy by carrying some of the cement. Lacy testified the pain was first noticed about 11:00 o’clock and during the afternoon it grew worse but he continued to work, mixing cement and carried some in buckets. Plaintiff was taken home that afternoon by Ed Griga. His wife, Ruby Lee Lacy, testified that when he arrived home he was in pain and she helped him to undress, treated him with Musterole, and applied a hot water bottle. She stated he could not eat any supper, could not sleep and was restless because of pain. On the following Monday morning Lacy voluntarily went to see Dr. J. O. Broyles. Thinking that possibly the employee had had a heart attack the doctor recommended that he go to the hospital for observation and treatment, which Lacy did. As a consequence of examinations at the Confederate Memorial Medical Center plaintiff was operated on February 28, 1954, for eventration of the diaphragm. Plaintiff appears to have made a normal recovery from the operation, but asserts he is totally and permanently disabled in that he can no longer do the same type of work he was doing at the time when he sustained his injury.

Appellant earnestly insists that plaintiff’s condition was not and is not related to his work or employment. In support of the contention, medical evidence has been adduced for the purpose of showing that trauma cannot, and in this instance did n.ot, cause the abnormal condition diagnosed as eventration of the diaphragm, and which required surgery. ' The resolution of this question rests upon the weight to be. accorded the opposing medical views reflected in the record. Available for our consideration are the records of the Confederate Memorial Medical Center which disclose the diagnosis made and performance and results of the surgery. This documentary evidence is of value principally as to the origin and source of the pain which Lacy suffered and complained of while employed on December 10th and perhaps has some bearing on our appraisal, of the ability of plaintiff to continue doing heavy manual labor. Good results were obtained from the surgery. However, it is pointed out the seventh rib was resected or pared off during the operation and scar tissue' will form and the silk sutures used will remain. These residuals taken alone are not indicative of further disability. Medical testimony was furnished by Drs. J. O. Broyles, S. W. Boyce and James H. Eddy, Jr. We have examined most "carefully the testimony of these witnesses for an answer to the question as to whether the performance of duties in Lacy’s employment was related to his condition.

In order for a layman to have a proper understanding of the medical testimony relating to this issue of cause and effect, it is necessary to understand the functions of the diaphragm in its relationship to other organs of the body. In a volume entitled “Legal Anatomy and Surgery”, Edition of 1930, by Bernard S. Maloy, there appears this informative statement:

“Part of the lower portion of the pleura is reflected or thrown back upon the diaphragm, which is the thin muscular structure . stretching or a.rching across the inside of the chest, and separating the lungs and heart above it from the stomach, liver, and intestines below it. The diaphragm bows up, or has its convex surface looking upward. When- it contracts it descends, and thus. aids in respiration by forming a larger space for the lungs to fill with air above it. When;, it relaxes it pushes upward against the' lungs, and helps to force the air out of them. * * * ”

Dr. James H. Eddy gave this further explanation of the functions of the diaphragm and described operative procedure to correct eventration of the diaphragm:

“Q. Doctor, would you please tell us what is the function of the diaphragm? A. The diaphragm has two functions; one is to separate the thoric or chest cavity from the abdominal cavity, that is the barrier, and second it is an organ of respiration.
“Q. What is the relationship of the diaphragm from’ an anatomical viewpoint to the ribs? A. The diaphragm takes its origin from the ribs; it is a muscular organ with large muscles of a thickness that may be from slightly over a quarter or one-eighth inch in thickness, and the muscles are attached in a circular fashion from the inside of the ribs and inside the breast bone and pass from the backbone; these muscles function in a manner like a tent; if you can think — let me take my handkerchief here and show you; if you will think of the dome surface of a circus tent; it is attached on the side, so is the diaphragm attached like the corners of the tent; a central portion where it attaches is called the center tendon because it is a tendonous type material.
“Q. How does it react upon ballooning, as you have described there? A. The effect of the diaphragm is to increase in size the chest cavity and it does that by moving dawn from its position, again using the circus tent for illustration, and the dome top is up in the chest cavity, and it stretches out flat, that is where the diaphragm is but when the muscles flex they convert themselves from that dome to a plain surface and that in effect increases the size of the chest cavity which increases the,pressure and causes air to be sucked in and then these muscles relax and allow themselves to move back up to the position they were in formerly; they decrease in size and diminish in pressure which forces the air out.”
< * * * * * *
"Q. Doctor, would you describe for us the operation that is performed to correct this eventration? A. A number of procedures have been suggested ; all of them start at some spot with a folding or plicating. For the benefit of what we can see in a simple folding procedure, I will try again with the handkerchief; if I put my hand into this handkerchief it makes a dome at the top; it domes up like a tent; this would represent the situation that occurs in the eventration. That is, the dome is the high point. If you would think of a more nearly normal diaphragm it is a very slight dome, more like that (indicating with his fist inside the handkerchief) ; if we take the case of eventration where the diaphragm is pushed way up into the chest — to a high point, then the repair consists of taking in the diaphragm; you might say taking tucks in the diaphragm; take one tuck and sew that; then take another and another until you kind of get it back gathered in altogether and we have then fastened the diaphragm back down. We have converted the dome to its normal size and put it into the diaphragm. That is one method and that is the method done in this particular man’s case. In other cases sometimes it is fitted and reinforced in this area and they have sewed it in some cases into what is called flags. The procedure is simply to fasten the dome down and take it down out of the chest.”

Dr. Broyles, when placed upon the witness stand was questioned but briefly by counsel for plaintiff and no questions were asked by the attorneys for appellant. It is clear that Dr. Broyles after referring Lacy to the Confedeate Memorial Medical Center was not thereafter cognizant of the treatment and condition of Lacy. He was asked the question if after an operation for eventration of the diaphragm, would the individual be able to do hard physical work? A direct answer was declined by the witness as not presenting sufficient facts for an opinion. A further hypothetical question was that if a needle was inserted in the abdomen and air pumped therein under pressure causing the abdomen to extend until something gave, where would that point be? The doctor responded by saying the weakest place would give and it was possible for the diaphragm to be extended or ruptured. The testimony elicited from the doctor, therefore, is not particularly helpful in assisting us to determine whether or not the occurrence of the eventration of the diaphragm was caused or affected by the labor being performed by Lacy on December 10, 19S4.

The testimony of the two remaining medical witnesses is directly contradictory. Dr. S. W. Boyce gives the opinion the disability was caused by Lacy lifting and carrying five-gallon buckets of cement, and further, that although the operation was skillfully performed and plaintiff’s diaphragm is now in its normal position, Lacy should never hereafter resume common labor requiring any heavy lifting and that he is, therefore, totally and permanently disabled. Dr. Eddy testified that eventration of the diaphragm is not caused by trauma except where there is a crushing injury such as sustained in automobile accidents, but is usually congenital in its origin, and he further stated his opinion that as a result of the operation Lacy’s diaphragm is now normal and he is capable of performing in the same manner any type of work he has ever done.

As plaintiff’s right to recover herein is dependent upon the evaluation which we accord to the opinions expressed by Drs. Boyce and Eddy, we have reviewed their testimony as thoroughly as possible. The judgment rendered by the judge a quo holds that Lacy’s disability was caused by or related to his employment but its duration was only twenty-one weeks. No written reasons for judgment were assigned by the judge. In our appraisal of the divergent views expressed by Drs. Boyce and Eddy, we feel justified in stating that a disabling condition from eventration of the diaphragm is of unusual or rare occurrence and there is a paucity of informative writings evidencing a relationship with trauma. The testimony of the two aforementioned doctors discloses that during their extensive medical practice they were cognizant of but one or two such cases.

These observations would seem to indicate, at least so far as this suit is concerned, the opinions of the two medical experts are not strongly fortified by specialized study or experience. We reach this conclusion not with a spirit of criticism but from an endeavor to properly evaluate the medical evidence.

Dr. Boyce testified Lacy was hurt when he lifted a heavy object and this brought on the condition for which he was operated. As to the residual condition following the operation, Dr. Boyce opined that Lacy is now limited at least seventy-five (75%) per cent by the operation. He considered the patient in much better physical condition than he was before the surgery but thought it inadvisable for him to go back to heavy manual labor until January, 1956, and said he should not ever lift five-gallon cans of cement or anything that heavy. He said Lacy now does not have a normal diaphragm but one made up of scarred tissue and sutures which would be subject to more tearing again if he lifted heavy objects, or had unusual pressure over the abdomen. With reference to the pain and condition which brought on the necessity for the operation, the doctor stated Lacy was “severely affected by something; I don’t know whether he hurt himself carrying cement or not. He got it carrying something.” And asked if the diaphragm could not have been extended and stretched without herniating, he related:

“Without the tearing, yes, sir, that is my opinion of what happened. The individual muscles and tissues were stretched and torn a little at a time, like the one I talked about operating on, and you have enough relaxation of the whole diaphragm to have them just stretch and then relax instead of all of the tearing at one time.”

Dr. Boyce did not subscribe to the theory that plaintiff’s disability whs solely caused by a congenital condition, stating that in his opinion he had not had this thing all of his life because he would not have been doing manual labor with a defect like that.

Dr. Eddy gave the following answer to a question as to whether there was any relationship between Lacy’s employment and his condition:

“There is no relationship between eventration of the diaphragm and trauma. In my own experience I have never found any. People I have talked to, surgeons who have seen this condition, have not related it to trauma and I reviewed the literature back as far as 1950 trying to find some relationship to trauma that somebody might even have suggested, and I could not find it. Nor do I, when I think about it, find any possibility that it could be traumatic in origin.
“There is more and more thought that eventration is something you are born with, and it is simply discovered the first time somebody takes a chest picture.
“The people who have put forward the theory that this thing is congenital have used four points to illustrate why they think so:
“First, they point out that eventration is almost always on the left side; a collected series shows at least nine to one on the left side as compared to the right. They point out that is congenital because the left diaphragm is much more complicated than the right.
“The second thing is that the condition is present in the fetus — the baby not yet born. The idea here is that in development it is present so that you can’t ever consider birth trauma as having anything to do with it. So the second reason is that it is seen in babies before they were born.
“The third is the absence of symptoms over a very long period of time. I think this man in this particular case found it all of a sudden but it had been there all along; he has never found it and will not until he has a chest picture and it is discovered.
“The writer in one of these articles said he had never found an adult who had ever had a chest picture until the time the eventration was discovered. He reasoned back and found they did not have the picture until something called it to their attention. There are exceptions where a tumor of the area has occurred. Such conditions are probably all congenital and only appear late in life when the first chest picture is taken.
“Unfortunately, there is a tendency in many people merely to confuse even-tration with hernia when oftentimes even the diagnosis is difficult.
“The essential point is that in even-tration the diaphragm is present in all parts of the membrane separating the thorax from the abdomen, that is the muscles thin out; this is not a place where -the muscle fibre is separated and missing such as in a hernia; in a true eventration there must be a layer of pleura muscle and peritoneum. It thins out in the fibres instead of tearing.
“They are confusing because they look alike but actually in eventration the diaphragm thins out, moves up to a high position; in eventration there is usually some little movement in respiration, very minor and there may be none.”

The foregoing excerpts and expressions substantially state the basis for the opinions as stressed by the two principal medical witnesses on the causal relationship between plaintiff’s employment and his condition. In the light of the medical testimony can we hold plaintiff has established his case to a legal certainty ?

The rule has been often stated by this and other courts that the plaintiff carries the burden of proof to establish his claim in a workmen’s compensation suit and that conjecture and probability may not serve as a basis for judgment in such a case. In Roberts v. M. S. Carroll Company, Inc., La.App.1953, 68 So.2d 689-693, this- court expressed the requirement as follows:

“Under the circumstances, and in view of the even balance as between the evidential support of the opposing contentions of plaintiff and defendants, we can only conclude that plaintiff failed to support his claim by the requisite preponderance of the evidence. The most that could be said in support of plaintiff’s position is that he has succeeded in establishing a possibility of disability resulting from the accidental injury. The jurisprudence of every appellate tribunal of this state has incontrovertibly established the rule that the plaintiff in a compensation case, as in other cases, bears the burden of proof. He is required to establish his claims to a legal certainty by a reasonable preponderance of the evidence. Speculation, conjecture, mere possibility, and even unsupported probability, are not sufficient to support a judgment. These principles have been stated, restated, iterated, reiterated, emphasized and reemphasized, in almost innumerable decisions, among which we mention only a few of the latest citations: * (There follows some twenty-seven citations in support of the announcement.)

Where, as in the instant case, there is a serious- conflict in the medical testimony the court often looks to lay evidence in order to find some certainty upon which to base an opinion. Unfortunately herein, the only lay evidence in the record was tendered for the purpose of establishing certain facts concerning which there is no dispute. These are the experience of pain by Lacy on December 10th and his subsequent suffering. No great assistance, therefore, can be derived from such lay testimony or warrant us in evaluating it along with the conflicting medical opinions.

In Taylor v. Mansfield Hardwood Lumber Company, 1953, 65 So.2d 360-363, this court made the following observations:

“Perhaps the first case in which compensation was awarded for the aggravation of a pre-existing disease or the activation of a dormant disease was that of Behan v. John B. Honor Company, Ltd., 1918, 143 La. 348, 78 So. 589, L.R.A.1918F, 862. In that case compensation was granted to a longshoreman who received a blow upon the head. In discussing the relationship of the injury to the disease, Judge O’Niell found that prior to the accident the employee apparently was in sound health, attending to his daily occupation without inconvenience, was working regularly and earning good wages, but because of the injury from the accident and the immediate change in his physical condition there could be no doubt the accident superinduced and was the proximate cause of the disability of which complained. His form of reasoning has been followed in: Donahoe v. Scharfenstein & Son, 1923, 154 La. 815, 98 So. 256; Broussard v. Union Sulphur Company, 1927, 5 La.App. 340; Causey v. Kansas City Bridge Company, La.App.1939, 191 So. 730; Custer v. Higgin’s Industries, Inc., La.App.1946, 24 So.2d 511; Vautrot v. Maryland Casualty Company, La.App. 1947, 32 So.2d 500.
* * * * * *
“It is only sufficient that plaintiff show that the accident during his employment caused an injury which contributed to the disability or hastened the progress of his disease, thereby shortening his life. It is not required he prove the exact cause of his disability. See: Phillips v. Yazoo & M. V. R. Co., La.App., 2 Cir. 1938, 183 So. 43, 46; Clifton v. Glassell-Taylor Co., La.App. 2 Cir. 1944, 19 So.2d 590; Lowery v. W. Horace Williams Company, La.App., 1 Cir. 1942, 8 So.2d 704.
“It was pointed out by this court in Biggs v. Libbey-Owens-Ford Glass Company, Inc., 1936, 170 So. 273, that the difference in the employee’s condition arose while he was performing the services of his employment and even though the disability was not immediately caused by an unusual strain of physical effort or some awkward movement of the body, it was sufficient for recovery that the affected parts of his body gave way while at work for defendant.”

Taylor v. Mansfield Hardwood Lumber Company involved the question of whether trauma aggravated a pre-existing cancer. It is well recognized in our jurisprudence that cancer can be aggravated by trauma. This was held in the cited cases of Causey v. Kansas City Bridge Company, La.App. 1939, 191 So. 730; Custer v. Higgins Industries, Inc., La.App.1946, 24 So.2d 511, and other citations to which we need not refer.

The instant case involves an issue as to whether there is any relationship whatsoever between straining while carrying a heavy bucket of cement and the condition of plaintiff. It is denied that the employment did in any wise contribute to the condition later discovered. This court in Hogan v. Stovall Drilling Company, Inc., 1951, 55 So.2d 284, 286, said:

“The burden of proof even though accorded the liberality established in our jurisprudence, must be read in the light of accepted facts that the medical profession neither knows the cause of leukemia nor whether an acceleration or aggravation of the disease can be induced by external means. Little medical proof is available.”

In determining a causal relationship in medical problems in Vautrot v. Maryland Casualty Company, La.App.1947, 32 So.2d 500, 504, Dr. Guy Caldwell of New Orleans, an eminent orthopedist, stated:

“If there were continuing symptoms from the time of the fall through the time of the severe symptoms which indicated the actual collapse of the vertebra, you would have to think of the two as being related.”

In attempting to reach a decision we believe to be material and relevant our findings that: first, the record fails to disclose plaintiff suffered from or had any knowledge that there existed a potential eventration of the diaphragm prior to his experience of .pain on December 10th, which came upon him while he was actively engaged in performing heavy manual work. From "the time when such pain was first experienced, symptoms of his disability were continuous from December 10th until the following February 28th when the operation was performed; and second, the medical' evidence as presented discloses there are some theories but little proof as to a causal relationship between work straining and precipitation of the condition styled eventration of the diaphragm.

After reviewing as thoroughly as we can the evidence and especially the medical testimony, we cannot say there is manifest error in the judgment from which appealed, and we find that we should adhere to the decision of the trial judge, holding that plaintiff’s condition resulted from the injury of December 10, 1954.

Appellant contends Lacy did not sustain an accident within the meaning of the’ Workmen’s Compensation Statute. The record demonstrates beyond doubt that plaintiff did experience for the first time pain while engaged in his work while carrying a five-gallon bucket of cement, and it is our opinion that the pain so experienced was produced by the eventration of the diaphragm.

The trial court established the duration of plaintiff’s disability as twenty-one weeks from the date of his injury. The evidence on this point, we think, adequately supports the holding of the District Court, and we approve of the conclusion so reached.

Lastly, we deem it necessary to consider the question raised by counsel for the appellant that plaintiff was not an employee of Miller & Company. It is argued that Lacy was an employee of Phillips Petroleum Company. The charge is not made out. The latter company is not now a party litigant since the judgment of the trial court rejected plaintiff’s demands against it and there'has been no appeal from that portion of the judgment. The question is only material as to the employee-employer relationship between plaintiff and Miller & Company. The following facts were stipulated between the Employers Mutual Liability Insurance Company of Wisconsin and Phillips Petroleum Company:

“C. L. Banks is employed by Phillips Petroleum Company as a lease foreman and has been so employed in the Mooringsport, Louisiana, area for approximately nine years.
“Miller & Company is engaged in the oil well servicing business which substantially consists of the furnishing of equipment and labor for reworking and servicing oil wells. They also engage in the furnishing of labor for lease maintenance work.
“Employers Mutual Liability Insurance Company of Wisconsin is the compensation insurer of Miller & Company.
“Under date of December 9, 1954, C. L. Banks issued a work order to Miller & Company authorizing the performance of certain work upon a lease owned and operated by Phillips Petroleum Company, said work order being No. 506945 attached hereto and made a part hereof.
“Following the issuance of the above work order C. L. Banks employed Claude N. Lacy for the account of Miller & Company for the purpose of assisting in the performance of the work authorized under the above mentioned work order.
“The work in which Claude N. Lacy was engaged was under the supervision and control of C. L. Banks.
“Upon the completion of said work C. L. Banks prepared a time statement showing the names of the men working upon this job and the hours worked by them and the rate of pay for which they had been hired. This statement was forwarded by C. L. Banks to Miller & Company at New London, Texas. A copy of the time sheet in connection with the above mentioned work order is attached hereto and, made a part hereof.
“Under the agreement existing between Phillips Petroleum Company and Miller & Company laborers were to be paid on the basis of $1.05 per hour and Miller & Company was to bill Phillips Petroleum Company for these services at the rate of $1.30 .per hour. ‘Pushers’ were to be employed on the basis of $1.50 per hour and Phillips Petroleum Company was to be billed on the basis of $1.85 per hour. The difference between the amount paid to the worker and the amount charged by Miller & Company was to cover the insurance, overhead and profit (if any) of Miller & Company.
“Upon receipt of the above mentioned time sheet Miller & Company issued its payroll checks to each of the named workers and then forwarded those checks to the workers and at the same time forwarded- to C. L. Banks an invoice showing the charges of Miller & Company, a copy of the invoice issued in connection with work order No. 506945 being attached hereto and made a part hereof.
“The invoice of Miller & Company was O. K.’ed by C. L. Banks, forwarded to his immediate superior for approval who in turn forwarded it to the home office of Phillips Petroleum Com-' pany in Bartlesville, Oklahoma to be placed in line for payment.
“Operations under the above arrangements have been carried on by these companies for approximately ten years.”

The insurer’s liability, of course extends only to the legal liability of its insured. We find the facts show the liability of Miller & Company for the reason that Lacy was either its direct employee or was an employee of its independent contractor -under LSA-R.S. 23:1061 of the Workmen’s Compensation Act, and therefore, the distinction, if any, is immaterial.

Thus under the foregoing stipulation we find that it was immaterial whether Lacy was an employee of Miller" & Company or Phillip's Petroleum Company.

Although counsel for appellee has answered the appeal seeking an .award for penalties and attorney’s fees, the contention has not been pressed in argument or brief. We find no merit in the contention because of the serious issue as to causation, and the demand will be denied.

By way of recapitulation, we hold that plaintiff was totally disabled within the meaning of the Workmen’s Compensation Act from an accident due to his employment; that said disability was of twenty-one weeks’ duration; that penalties and attorney’s fees are not due under LSA-R.S. 22:658 and that Miller & Company was responsible for any workmen’s compensation due Lacy. This is in accord with the judgment from which appealed and it follows from these findings that the judgment should be and is hereby affirmed at appellant’s cost.


author: AYRES, Judge.

text:
    Elmore LYONS, Plaintiff-Appellee, v. SWIFT & COMPANY et al., Defendants-Appellants.
    No. 8491.
    Court of Appeal of Louisiana. Second Circuit.
    March 23, 1956.
    Rehearing Denied April 19, 1956.
    Writ of Certiorari Denied May 7, 1956.

      Browne, Browne & Bodenheimer, Shreveport, for appellants.
    Wilson, Abramson & Maroun, Shreveport, for appellee.
   AYRES, Judge.

Plaintiff has instituted this action for compensation in the sum of $30 per week as for total and permanent disability, together with the maximum statutory allowance for medical expenses, plus 12 percent penalties and a reasonable attorney’s fee, against his employer, Swift & Company, and its compensation insurance carrier, Security Mutual Casualty Company.

From a judgment in plaintiff’s favor against both defendants, in solido, for the amount of compensation as prayed for, together with $222 for medical expenses, defendants prosecute this appeal. Plaintiff has answered the appeal and prayed that the award be amended by increasing the medical expenses to the statutory limit and by allowing penalties and attorney’s fees.

Plaintiff bases his claim for compensation upon an accident alleged to have occurred December 6, 1953, while in the employ of Swift & Company as a truck driver on a trip to deliver fertilizer to Camden, Arkansas, and on return via El Dorado for a load of ammonium nitrate. The vehicle consisted of a truck and trailer combination, the trailer having a length of 24 to ■28 feet. Plaintiff sustained an injury in loading his vehicle with nitrate obtained from a railroad car. He was assisted in this loading by two fellow employees. In the performance of this task they were using a 2-wheeled hand truck, upon which seven or eight 100-pound sacks of ammonium nitrate were placed and conveyed from the car, over a runway, up an incline to the truck. Plaintiff was operating the truck, and, on proceeding up the runway, his feet began to slip because of fertilizer spilled thereon and the truck threw him back, jamming him against the car, one of the truck handles striking him in the abdomen.

Plaintiff made an immediate report to his fellow employees that he had been injured, although, apparently, from the positions in which they were working, they did not see the accident. Plaintiff was unable to continue with his work and obtained the services of others to complete the load. However, he drove the truck back to Shreveport, arriving about 11:00 o’clock P.M. His fellow employees corroborated his testimony as to the report made to them of his injuries.

On the morning following his injury plaintiff reported to his superior, defendant’s superintendent, and informed him that he was injured the day before at El Dorado by the hand truck getting overbalanced. The superintendent denies that the report was made but indicates that plaintiff complained of being sick, whereupon he was sent to the Company physician, Dr. J. R. Brown, who says that plaintiff came to him on December 8, 1953, complaining of indigestion after eating, as well as vomiting, and with no appetite, gas on his stomach and the loss of 20 pounds weight in two months. The doctor omits from his record any statement made by plaintiff that he sustained an accident. He denies plaintiff gave him that information. From the symptoms suggested by plaintiff’s complaints, the doctor was evidently apprehensive that plaintiff was suffering from a stomach cancer, or carcinoma, which is defined as a common malignant epithelial cell tumor, which is mobt frequent in certain organs of the body, including the stomach. The doctor examined plaintiff and began a series of tests, for the completion of which plaintiff was referred to the Confederate Memorial Hospital, due to his financial condition. The tests consumed some weeks and plaintiff was admitted to the hospital, where he was operated upon February 1, 1954. A major portion of his stomach was removed.

It is plaintiff’s contention' that as a result of the aforesaid accident he sustained severe and serious injuries to his intestines, stomach and the lymph nodes; that prior to the accident he had been suffering with a stomach condition, the nature of which was unknown to him, but which was probably a carcinoma; that the accident aggravated the condition to such an extent as to render him totally and permanently disabled. Following the operation and his recuperation therefrom, plaintiff was given employment for several weeks as a night watchman, but his services were eventually discontinued. Plaintiff’s employment with the defendant began in 1947 as a truck driver, the duties of which required the driving of a truck with a trailer 24 to 28 feet in length attached thereto, with a load capacity from 10 to 15 tons, and the loading and unloading therefrom of loads of merchandise, particularly fertilizers. Prior to December 6, 1953, plaintiff was apparently in robust health and good physical condition.

Defendants denied the occurrence of the accident but admitted that prior to the alleged date thereof plaintiff was suffering with a carcinoma of the stomach, which they contend was neither activated nor aggravated by the trauma.

That plaintiff is, and has been since December 6, 1953, permanently and totally incapacitated from the performance of the duties of his usual occupation of driving a truck, loading and unloading merchandise therefrom, or from the performance of labor of a similar character, has been established beyond all serious doubt. The fact of the occurrence of the accident as alleged and contended by plaintiff has likewise been sufficiently established.

Neither in his petition, nor on trial, nor before us did plaintiff claim that the injury caused or produced the cancer. His position is that this body infirmity was activated, aggravated and accelerated to its inevitable disabling effect by the accident. The issue is thus presented for determination. We are, therefore, relieved from a discussion or consideration of considerable of the testimony of the experts, particularly those portions dealing with controversial questions in the medical profession as to whether or not trauma, constantly applied over a long period of time, or a single act of trauma, may produce or su-perinduce a cancer. In passing, however, it may be stated that the consensus of the experts is that a constant application of trauma, such as in irritation, rubbing or of a more severe or serious nature, may produce cancer. A diversity of opinion exists as to whether a single act of trauma may produce such effect.

Four expert witnesses testified in this case, one, Dr. G. H. Cassity, for the plaintiff, and Drs. J. R. Brown, U. H. Stoer and Thomas R. Simpson for the defendants. All, except Dr. Stoer, are engaged, in a general practice of medicine and surgery. Dr. Stoer, who received his degree in 1943, is a pathologist at Schumpert Sanitarium.

Dr. Cassity received his degree as Doctor of Medicine in 1903 and had 52 years’ practice, 45 of which were in Shreveport, on the date this case was tried. Drs. Brown and Simpson received their degrees in 1926 and 1931, respectively.

Dr. Cassity, who examined plaintiff before testifying at the trial, in answer to hypothetical questions based upon the facts and history of plaintiff’s employment, accident and physical condition, stated there was very likely a relationship between the injury and the cancer, which, in his opinion, existed in a dormant stage and was very likely activated or aggravated by the blow to the stomach. It was his opinion that the cancer may have been 'encapsulated or surrounded by a membrane, which the blow could have disrupted, producing a metastasis, or a moving of the cancer cells from one place in the body to another. This change or removal, it was explained, might be through the lymphatic system or in the blood stream, which was explained as meaning that cells from the original cancer may be carried either by the lymphatic cells or the blood stream to other parts of the body, even to those parts some distance from the site of the original cancer. He explained that trauma could possibly bruise or crack up the cancer, causing it to break up, or would so injure it that some cells would become detached and be picked up by the lymphatic system or the blood stream. He was asked “Is there any doubt in your mind but that that blow such as I have described to you, could render an existing cancer or cause it to break up so as to cause that condition?”, to which he replied: “Not much doubt; I have seen quite a number of those cases in which I thought the injuries caused the cancer to emigrate, but I have seen a case or two where I have thought the injury caused the cancer.” The doctor is one of those in the profession who has the opinion that trauma may cause a cancer. It was explained that, in his opinion, the trauma received by plaintiff was the thing that produced the pain and plaintiff’s immediate incapacity to continue with his work on the day of the accident. The doctor expressed agreement with statements of eminent authorities on cancer to the effect that trauma is accepted as a cause of aggravating a cancer, one of whom referred to was Dr. Boyd, Professor of Pathology at the University of Toronto, who was an author of a treatise on surgical pathology, wherein it was stated:

"Trauma frequently reveals and aggravates a tumor, but that is very different from causing it. Whenever an apparently trivial injury is said to have produced some peculiar and exaggerated effect, and a tumor is later discovered, it should raise the suspicion that the tumor antedated the injury.”

This witness was in agreement with two other recognized authorities, Dr. Moritz and Dr. James Ewing, that a mechanical injury may cause a tumor to form in an individual, who, for other reasons, is predisposed to the condition, the tumor or tissue in such a person being less able to withstand the mechanical stress than normal tissue in a normal person not so predisposed to that disease. A summary of the testimony of this witness as to plaintiff’s case was briefly stated:

“Q. Then, doctor, is it fair to say that the sum total of your testimony is that this man was suffering with carcinoma of the stomach, which we know was not ’disabling at that particular time, but that this blow accelerated and aggravated the condition to the point where he was totally disabled and necessitated this operation? A. I would say that, yes, sir.
“Q. You consider that ..after that day and that injury he became totally incapacitated and was rendered useless for any labor whatever ? A, Yes, sir.”

Drs. Brown, Stoer and Simpson were of the opinion trauma could not aggravate a cancer or accelerate its development unless the blow or trauma received is sufficient to perforate or penetrate the cancer, in which event a rupture or bleeding therefrom would result. However, such conditions would appear as almost positive symptoms of the existence of the disease and of its aggravation. It was shown, however, that bleeding from such a rupture may subside altogether, and, while prevalent on one day, may not show up at all the following day. No tests whatever were made immediately following the accident and whatever tests were made thereafter may have been too late to have revealed the condition which is claimed would have resulted from an injury to, or an aggravation of, the cancer. Dr. Cassity explained, however, that the rupture might result within the cancer itself, comparable to a blow to an ’exterior surface where blood would appear in the tissues but none on the surface.

The medical authorities differ as to whether trauma, or a blow, to a cancer may aggravate its condition and activate or accelerate the rapidity of its growth in destructive power and thereby hasten the incapacity and disability in a manual laborer. If a blow is received that would affect healthy, normal tissue in a robust, healthy man, and render him incapacitated for the performance of his customary duties, it appears consistent with reason that a blow to diseased tissues or organs would, at least, tend to produce the same effect. As stated heretofore,- the opinions of the experts offered • by defendants are not wholly in agreement on the proposition that a blow or trauma cannot or will .not affect or aggravate a trauma. Their explanations are qualified with the additional requirements that, as to the location of this particular carcinoma in plaintiff’s stomach, the blow, in order to have such effect, would have to be 'followed by a perforation or penetration of the cancer or trauma and then a bleeding therefrom. That, of course, concerns rather the degree of severity of the trauma and of the extent of the aggravation caused thereby. Necessarily, the location of the'disease, the protection afforded by other tissues and organs of the body are important considerations. Nevertheless, the injuries inflicted by the trauma to the diseased tissues may have been to a lesser degree and extent and of a milder nature and thereby not have produced in such a pronounced manner the symptoms additionally relied upon by these experts.

Plaintiff’s position, that the trauma to his abdomen was sufficient to and did activate, accelerate and aggravate his previously existing physical infirmity and as a result of which he is totally and permanently incapacitated within 'the purview of the provisions of the Workmen’s Compensation Statute, LSA-R.S. 23:1021 et seq., so as to entitle him to the benefits thereof, finds support in Professor Malone’s “Louisiana Workmen’s Compensation Law and Practice”, as well as iñ the decisions of the appellate courts of this State.

For instance, Professor Malone, on page 278, Sec. 232 of said work, says:

“The courts have firmly established the principle that the employer must take the worker as he finds him. The worker who is abnormally susceptible to disability from an accident is entitled to the full protection of the compensation statute, even though the same accident would have caused little or no harm to a healthy worker. It is not important that the diseased or weakened condition might alone have eventually produced disability or death. To take into consideration the health deficiencies of the employee would destroy at once the beneficial scheme of the Act.
* * * * * *
“Custer v. Higgins Industries ([La.App.] 24 So.2d 511) is particularly indicative of the wide scope of the protection which is afforded deficient employees under the Act. Vath, the worker, was suffering from a malignant peritoneal tumor. One day on the job he braced his elbows against his abdomen in order to lift a skylight hatch door. Recovery was allowed upon the basis of medical testimony that the slight pressure on the abdomen caused by the lifting was sufficient to accelerate the progress of the tumor to inevitable death. Similarly, disability or death may be precipitated by a relatively slight accident event affecting cancer, arteriosclerosis, arthritis, tuberculosis, prostatitis, among others.
“In the cases considered above the deficiency of the employee served to make him peculiarly susceptible to an accident; he was hurt by an event which might well prove harmless to the healthy worker. Similarly, the condition of the worker may be such that peculiar complications flow from a hurt which would prove much less disastrous for the average worker. The leading case of Behan v. John B. Honor Company (143 La. 348, 78 So. 589, L.R.A.1918F, 862) allowed recovery of a worker who died of lo-comotor ataxia following a fall. The court found that although the dormant disease may have eventually developed to the fatal stage by itself, the shock of the accident activated the disease and accelerated the death of the employee.
“Usually, the aggravation of a disease is combined with serious traumatic injuries, as in the Behan case. However, the principle of the Behan case has been extended to cases where the only disabling effect of the accident is to arouse or accelerate the disease. In Brooks v. Lewis-Chambers Construction Company ([13] La.App. [402] 1930, 128 So. 321) the claimant received a blow in the abdomen and later became deaf. Compensation for the loss of hearing was awarded on a finding from the medical testimony that the blow activated dormant syphilis which caused the deafness.” ,

In Causey v. Kansas City Bridge Co., La.App., 191 So. 730, 732, it appears that Causey sustained an injury while performing services for his employer in the construction of the Mississippi River bridge at Baton Rouge. Heavy rocks and stones were being unloaded in the river to serve as foundations for the bridge, piers and, while straining and lifting or pushing one of these heavy rocks, plaintiff strained himself causing a severe pain and serious injury in the lower abdominal region, resulting, as contended, either in the formation of a cancer or the aggravation and activation of a pre-existing dormant cancerous growth in the lesser curvature of the stomach, from which he died slightly more than two months following the accident. The defense was that Causey’s death was due solely from the malignant cancer' without any connection whatsoever with his employment. The record there disclosed that Causey most certainly must have had a pre-existing malignant stomach cancer prior to the injury. In passing upon the principal issue, the court stated:

“The next question to determine is whether or not Causey’s injury had the effect of activating the cancer from which he died. As set forth in the trial court’s reasons for judgment, it is clear from the testimony of witness after witness, including fellow employees, relatives, and acquaintances, that prior to the accident Ralph Causey had always been in apparent good health and physically able and fit to do and perform hard manual labor, and that subsequent to the accident he went into a shocking and rapid decline; that he grew pale, weak and emaciated and his condition steadily grew worse until his death on February 5, 1938. Dr. Lorio, who acted as. physician in examining company employees, testified that he was instrumental in securing employment for Causey with the defendant company, and that he was in normal health at the time he was employed. We agree with the trial judge that Ralph Causey’s sudden lapse into complete disability on the occasion when he was unloading these heavy rocks, when always prior thereto he had been a vigorous, active, hardworking laborer, is rather convincing that he at that time suffered a severe strain which must necessarily have had serious effect on the cancerous growth. That conviction is strengthened by the medical testimony to the effect that a blow or strain could aggravate or activate a dormant cancerous growth.” (Emphasis supplied.)

To the same effect is the holding in Broussard v. Union Sulphur Co., 5 La.App. 340, wherein the court, with reference to a similar situation, observed:

“* * * it is not contended by plaintiff that the injury which her husband received, caused or originated the cancer from which he died.. Her contention is that the injury he suffered, excited, set in motion or activated the cancerous cells which resulted in a cancerous growth and the spreading of the disease in his system, finally resulting in his death. It is not disputed that the cancer of which Mr. Broussard died was in his lymph or axillary gland, which is located in the armpit. The cancerous cells were in-disputedly there at the time of the accident, as the experts all agree that the injury could not have caused or originated the cancer. Therefore, the question is as to whether these cancerous cells were at that time in a dormant or 'quiescent condition and that by the injury or its effects, were activated, excited or set in motion, thus starting them on their mission of destruction. It is on a determination of this issue, as we understand the case, that its proper solution depends.”

The court concluded that the widow was entitled to recover compensation for the death of her husband where it was shown that he was afflicted with a dormant disease when he suffered the injury which caused this disease to develop into a malignant cancer, causing his death; The condition previously existing was held to have been aggravated by the injury.

In the Behan case, cited by Professor Malone, the plaintiff was employed as a longshoreman for the defendant and while attempting to remove a skid from the ship to the wharf slipped and fell into the river, striking his head and spine against wooden piling or stringers. At the time of the trial plaintiff was afflicted with locomotor ataxia, which, - it was testified, could not have been caused or produced by the accident. There was, however, no proof that plaintiff would have ever been disabled on account of said disease had it not been for the accident. Before the accident plaintiff was in ordinary, good health, attending to his daily occupation, working regularly, earning good wages and supporting his family, unconscious of the fact he was diseased. This was apparently one of the first cases of this nature to reach an appellate court of this State, and as to the ■evidence offered in support of the defense urged, the court stated:

“The proof goes no further, in support of the defense of this suit, than to show that the plaintiff might, and perhaps would, at some time, have become disabled by the disease that was lurking, in his system, even if the accident complained of had not happened. And that is not much more of a defense than to say that every man must some day come to the end of his worldly career, accident or no accident.
“The evidence leaves no doubt that the plaintiff’s physical disability resulting from the accident is worse than it would be if he had not been diseased at the time of the accident. But the accident was, none the less, the proximate cause of the present disability. We are not aware of a decision of this court on the subject, but it is well settled in the jurisprudence elsewhere that the fact that a person was already afflicted with a dormant disease that might some day produce physical disability is no reason why he should not be allowed damages or compensation for a personal injury that causes the disease to become active or virulent and superinduces physical disability. See Hilliard v. Chicago City Railway Co., 163 Ill.App. 282; Larson v. Boston Electric Railroad Co., 212 Mass. 262, 98 N.E. 1048.”

Custer v. Higgins Industries, La.App., 24 So.2d 511, 515, was a workmen’s compensation suit, instituted by the widow of a deceased employee on behalf of herself, and three minor children, wherein defendant denied that the employee sustained any injury resulting ultimately in his death. It was contended that the employee’s death was due solely to a malignant tumor which existed prior to the day on which he was hurt and the existence of which came to notice only on that date. In the course of its opinion, the court commented:

“It is true that some of the surgeons said that they could not say positively that the development of the tumor had been accelerated by that happening, but it is certain from the reading of the opinions of these surgeons that they thought that this acceleration had taken place.
* * * * * *
“Here, however, the medical evidence shows that the doctors evidently felt that there is even more than a probability that the progress of the tumor was accelerated by the occurrence.
“Of course, the doctors do not say positively that such was the case, but if absolute certainty in such a case is to be required, then in many, if not in', most. cases of internal injuries, there can be no recovery, because seldom can a physician say with absolute certainty that such an internal injury was caused by a designated 'external happening. Where, here the record shows that the doctors are evidently of the opinion that the effect on which the claim is based is the result of the cause which is relied upon, we think that that opinion must be accepted. Particularly is this true where the sequence of events is so significant. Until March 2nd, 1944, the .plaintiff was apparently perfectly healthy and normal. On that day the pressing of his elbows against the abdomen caused a sudden pain. Shortly thereafter, the pain became worse and .it developed that he was suffering from a tumor, and with great rapidity the tumor grew and, in a few months, caused his death.
* * * * * *
“The whole story evidences the fact that the happening on that day accelerated the growth of the tumor. If it did, there can be no doubt of the right •to recover, because for many years it has been held that, even though the accident might not have produced disability except for the condition of the employee, nevertheless, there can be recovery if the accident accelerated or lighted up the dormant physical condition and thus produced disability. In Behan v. John B. Honor Co., 143 La. 348, 78 So. 589, L.R.A.1918F, 862, the Supreme Court found that the employee had suffered from locomotor ataxia long prior to the accident and that the accident caused ‘the immediate change in his physical condition' * * *.’ The court then found that the accident had thus caused ‘the disability of which he complains’ and held that the employee was entitled to compensation. That result has been followed in this State ever since.”

Vautrot v. Maryland Cas. Co., La.App., 32 So.2d 500, 504, is a suit for compensation for injuries sustained by plaintiff in the employ of the Aluminum Ore Company, defendant’s insured. Plaintiff was injured while descending a flight of stairs when he slipped and slid from the top of the stairs to the bottom. On reaching the lower floor plaintiff was' lying in a twisted position on his right side and complained of severe pain in his back midway between his shoulders. The accident produced serious injuries to his spinal column, in' addition to which there was a complete collapse of the 6th dorsal vertebra due to its destruction by a giant cell tumor. Dr. Guy A. 'Caldwell performed an operation to relieve this condition. The question was one of causal connection between the accidental injury and the aforesaid disease to the vertebra. In referring to Dr. Caldwell’s testimony, the court stated:

“After expressing an opinion that either one or two things may have happened, he is asked the question ‘In either case, there would be a definite relationship to a greater or less extent, between the fall and the tumor?’ to which he answers: ‘Yes, if there were continuing symptoms from the time of the fall through the time of the severe symptoms which indicated the actual collapse of the vertebra, you would have to think of the two as being related.’ Aside from that opinion 'expressed from a medical viewpoint, to us laymen this is the most reasonable hypothesis and, in the absence of any other hypothesis on which to base the real and actual cause of plaintiff’s condition, we say it is sufficient evidence to support plaintiff’s claim.”

The court concluded that plaintiff’s disability was caused by the accident, and, as the accident was the original cause of his condition, there was a causal connection between the accident and the collapse of the vertebra.

Although there is a conflict in the medical testimony as to whether plaintiff’s pre-existing condition was aggravated by the trauma to his abdomen, yet, to our minds, one of the strongest, single faictors supporting plaintiff’s claim is that until the very date and moment of the'áccident ahd for several years prior thereto, he .wás in apparent good health, robust, strong, able to do and doing heavy, strenuous' labor. From that day and moment forward- he has been totally and completely disabled and unable to perform any work of a reasonable character. There must have been a cause for this sudden' change. Plaintiff has advanced a substantial reason for such change. The evidence preponderates in his favor. No contrary view is urged by defendants other than that plaintiff had a pre-existing carcinoma of the stomach, which, notwithstanding the accident and injury sustained by plaintiff, was the sole and only ground for plaintiff’s condition and that such disease could not be and was not aggravated, activated or accelerated by the injury received in the aforesaid accident. 'Similar defenses have been urged to no avail in other cases, as is shown by the authorities cited and quoted herein-above in addition to" which may bfe cited: Renfrow v. Caddo Parish Police Jury, La.App., 155 So. 291; Murray v. Mengel Co., La.App., 9 So.2d 818; Weaver v. Mansfield Hardwood Lumber Co., La.App., 4 So.2d 781; Books v. Keen & Woolf Oil Co., 9 La.App. 288, 120 So. 99; Brim v. Home Acc. Ins. Co., 15 La.App. 681, 131 So. 762; Dow v. Stanolind Oil & Gas Co., La.App., 9 So.2d 828.

It therefore follows that the judgment appealed, so far as awarding plaintiff compensation as for total and permanent disability and in the award of $222 for hospital and medical expenses, is, in our opinion, correct and should be affirmed. It is contended, however, that in plaintiff’s condition further medical expenses will necessarily have to be incurred. Of course, judgment could not be awarded in his behalf for any additional medical expenses prior to the incurrence of such- expense. His right to the difference between the allowance herein made and the statutory maximum of $1,000 should be reserved to him.

Plaintiff also urges that the judgment should be further amended by the allowance, as against the Security Mutual Casualty Company, the employer’s insurer, of penalties and attorney’s fees, as provided in LSA-R.S. 22:658, for its arbitrary and capricious failure to pay compensation. While the record discloses a considerable basis for plaintiff’s complaint, a consideration of the entire record leads us to the conclusion that defendant’s position was not so untenable, as to classify its failure to pay compensation as arbitrary or capricious or that it acted without probable cause in presenting its defense to the court for determination. For these reasons, we concur in the conclusion reached by the trial court.

Accordingly, the judgment appealed is amended so as to reserve to plaintiff his right to the maximum statutory limit of $1,000 for medical expenses, less the allowance of $222 awarded by the district court, and, as so amended, is affirmed at appellant’s cost.

Amended and affirmed.


author: HARDY, Judge.

text:
    William F. JOHNSON, Jr., Plaintiff-Appellee, v. QUAD DRILLING CORPORATION, Defendant-Appellant.
    No. 8493.
    Court of Appeal of Louisiana. Second Circuit.
    March 23, 1956.
    Rehearing Denied April 19, 1956.
    Writ of Certiorari Denied June 11, 1956.

      Cook, Clark, Egan, Yancey & King, Shreveport, for appellant.
    Love & Rigby, Shreveport, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff seeks judgment against defendant in the principal sum of $1,223.93, representing the balance due on premiums on insurance policies issued by plaintiff. After an amendment of plaintiff’s petition, pursuant to the filing of an exception, defendant answered, denying the allegations of plaintiff’s petition. In the course of trial defendant tendered in open court the sum of $710, representing the sum of $661.71, which it admitted to be due, together with accrued court costs and interest, which tender was refused.

After trial there was judgment in favor of plaintiff for the amount prayed, from which defendant has appealed.

Quad Drilling Corporation was organized in or about the year 1946, the officers being four brothers, Malcolm H. Sneed, President; S. T. Sneed, Vice-President; W. J. Sneed, Secretary; and Hugh Sneed, Treasurer. The corporation is actively engaged in the principal business of oil and gas well drilling operations, and, in the usual course of its business, carries customary insurance protection, particularly automobile and workman’s compensation liability. Plaintiff has handled the insurance account of the corporation since its organization until some time during the year 1953, when he found it necessary to cancel defendant’s insurance policies. Upon the basis of a final audit made in September, 1953, a corrected audit made in June, 1954, and a reformation of defendant’s account upon the basis of charges and credits ascertained by these audits, plaintiff claims the balance set forth in the sum of $1,223.93, representing unpaid premiums for insurance protection, which premiums he alleges he has paid to the insuring companies which he represents as an agent.

Defendant disputes the correctness of plaintiff’s account, first, on the ground of an alleged overcharge to the extent of $588 in premiums claimed on a workman’s compensation insurance policy issued by Traders & General Insurance Company covering the officers of the corporation, and, second, defendant denies liability to the extent of $279.35 charged as premium for an insurance binder issued by Lloyd’s' of London for excess insurance, which binder, according to defendant’s contention, was not issued until a date subsequent to cancellation of the insurance.

Plaintiff urges that defendant is without right to seek judicial relief inasmuch as it has failed to exhaust administrative remedies before the Louisiana Insurance Commission. This position was sustained by our learned brother of the district court in his written opinion on the ground expressed as follows:

“It is a-fundamental rule of law that an administrative remedy provided by the Legislature must be exhausted before relief can be sought in the courts.”

Cited in support of this holding was. the case of O’Meara v. Union Oil Co. of California, 212 La. 745, 33 So.2d 506, 507, 509, from the opinion in which the district judge cited, with approval, the following language of the Supreme Court:

,“We also called attention to the fact that administrative officers with fact finding powers relieved the Legislature and the judiciary from a great deal of detail work and imposed these duties on an officer as agent of the State for determination because of his peculiar knowledge of such matters. We pointed out also that courts will not place their judgment above such administrative officers because of this fact. On account of the development and growing progress of our country, it would be practically, if not impossible, for the Legislature and courts to expeditiously dispose of these matters, if it were not for the fact that these administrative officers relieve the Legislature of all this detail work and the courts from being congested with many matters that can be thrashed out by those familiar with them.”

Wé concede the soundness of the well recognized doctrine that administrative remedies must be exhausted before relief can be sought from the courts; O’Meara v. Union Oil Co. of California, supra; Shreveport Laundries, Inc., v. Southern Cities Distributing Co., 176 La. 994, 147 So. 56; Porter v. O’Neal, 205 La. 445, 17 So.2d 622; State ex rel. Johnson v. Higgins, La.App., 47 So.2d 56; Richardson v. Parish Council of Parish of East Baton Rouge, La.App., 53 So.2d 458; Marino v. City of Baton Rouge, La.App., 61 So.2d 586.

However, in the instant case we are called upon to determine, not the validity of the general principle above expressed, but the question as to whether statutory provisions require the determination of the factual issue here involved by an administrative body as a condition precedent to judicial review.

Zealous counsel for plaintiff urges the applicability of the statutory provisions set forth in that part of the Insurance Code designated as LSA-R.S. 22:1351-22:1365 under the heading “Administrative Orders, Hearings' and Appeals”.

Reference to the sections noted discloses that they provide for the procedure and conduct of hearings “for any purpose within the scope of this code” as the Secretary of State may deem necessary.

Unquestionably, these statutory provisions would apply in and to any questions involving the rules and regulations of the Louisiana Insurance Commission regarding the establishment of rates and classifications under policies of workman’s compensation insurance. But that is not the question which is presented in the instant case. Defendant does not take issue with the premium rates and the classification of operations which have been fixed, by the Commission. The defendant does object, and consequently contests, the correctness of the action of the insurance company in placing one of defendant’s officers in the classification of driller instead of what defendant insists is the proper classification of a public relations official. The materiality of this issue is demonstrated by the fact that the premium rate for the classification of driller is fixed at approximately $7 per hundred dollars salary compensation, while the premium rate for a public relations officer of the corporation is fixed at eight cents per hundred dollars salary compensation, which difference in rate in the instant case amounts to a total sum of $588.

This question does not involve, nor does it have bearing upon, the correctness or reasonableness of the rate fixing and classification rules and regulations of the Louisiana Insurance Commission, and, therefore, it does not concern the authority nor does it fall within the jurisdiction of the Commission as fixed, established and provided by the Insurance Code. On the contrary, the issue here presented concerns a simple dispute between the insurance company and its policy holder with respect to the resolution of a question of fact.

Under the circumstances we do not regard any of the above mentioned authorities as being appropriate to the instant case. The O’Meara case involved a matter over which the Conservation Commissioner had been vested with jurisdiction by legislative act, which act contained a provision requiring the exhaustion of administrative remedies before relief might be sought from the courts. The Shreveport Laundries and the Porter cases involved matters under the jurisdiction of the Public Service Commission bearing upon the rate fixed and the regulatory authority of that body. The Johnson case presented a purely administrative question within the express jurisdiction of the Department of Public Welfare. The Richardson and Marino cases concerned the right to the issuance of beer and liquor permits, respectively, which authority had been delegated to the Board of Tax Appeals.

As we have attempted to point out in this opinion, the subject matter of this litigation does not involve nor concern any of the powers, duties nor authority conferred upon and delegated to the Louisiana Insurance Commission by the Legislature under the provisions- of the Insurance Code. The issue is limited to the determination of a factual question as between the insurer and the insured, and we have failed to find any authority which requires the submission of such a factual proposition to determination by an administrative authority not specifically vested with jurisdiction thereof. As was observed in Delta Life Ins. Co. v. Martin, La.App., 59 So.2d 465, 470:

“ * * * this Court knows of no law and none has been cited which authorizes our Insurance Commissioner to determine the individual rights between a policy holder and his insurer. This is a right reserved to the courts.”

With this pronouncement we are in complete and firm accord.

The distinction between an insurance commission’s rate making and classification power and the appropriate classification of a particular risk was well considered by the United States Court of Appeals, Fifth Circuit, in Rice v. Continental Casualty Co., 153 F.2d 964. The same distinction was carefully emphasized in the opinion of Judge Hamiter in Sibley L. B. & S. Ry. Co. v. Braswell Sand & Gravel Co., La.App., 199 So. 427, 429, certiorari denied, in the following language:

“It was held in the case of Pine Tree Lumber Company v. Chicago R. I. & P. Railroad Company, 123 La. 583, 49 So. 202, as the syllabus thereof shows, that: ‘Where an interstate carrier represents to a shipper that a certain freight .rate has been established between given points, and such rate has, in fact, been published, and the shipper sends his goods upon the faith of such representation and publication^ and is thereafter coerced into paying a higher rate, a state court has jurisdiction to hear and determine his suit for the recovery of the amount thus overpaid.’
“The court observes, in the opinion of such case, that there was no complaint that the alleged established rate was unreasonable, .or that the shipper contracted upon any other basis than that of the rate so established.
“It is said in the annotations on page 343 of 64 A.L.R., following the published report of the opinion in Thomas v. Chicago, Burlington & Quincy Railroad Company, 127 Kan. 326, 273 P. 451, 64 A.L.R. 322, that the generally accepted view is: Where the reasonableness of the rate is not assailed, and no question affecting the power or administrative policy of the Interstate Commerce Commission is involved, and the controversy merely involves the question whether the carrier has exacted a rate in excess of that prescribed in its own published schedules, the state court has jurisdiction.’
“In the instant case, defendant does not question the reasonableness of the Average Agreement Rule that has the approval of the Interstate Commerce Commission, and which the parties have contracted to follow in determining demurrage charges; hence, we are not asked to pass upon any legislative, administrative, or discretionary function of that approving body. It merely, complains that plaintiff has not complied with the provisions of that rule, but has computed the demurrage in some unauthorized and illegal manner. Under this complaint there is to be determined only the question of fact of what is the correct demurrage charge according to the rule agreed on. This issue may be the subject of a state ■court’s consideration, as pointed out in the above-discussed authorities.”

We think the above reasoning adequately supports the distinction as to procedure, and we now turn to the consideration of the factual issue.

The background and history of the difference of opinion between insurer and insured may be briefly stated. W. J. Sneed, the Secretary of defendant corporation, was .arbitrarily classified by the insurer as a driller, whereas defendant contends that the said W. J. Sneed is the public relations officer of the corporation and has no active connection with, nor responsibility for, the conduct of the corporation’s well-drilling .activities.

It appears that the classification of drill<er, assigned by the insurer, was originally made by or upon the recommendation of one James E. Daniel, auditor for Traders & ■General Insurance Company. On trial, Daniel testified that he arrived at the classification on the basis of information received from a Mr. Collier, who was a bookkeeper for defendant at the time Daniel made his original audit in 1953. Specifically Daniel testified as follows:

“At the time of the original audit Mr. Collier insisted that all of the ■officers classified were at the lease site .and where the wells were drilling, and ■exposed to the drilling risks. I classified my audit accordingly.”.

In June, 1954, when Daniel made his re-audit of defendant’s account, he testified that Mr. Hugh Sneed, the Treasurer, advised that:

“Mr. W. J. Sneed, the Secretary, is a pilot and public relations man; and .according to Mr. Sneed, he’s supposed to more or less keep the * * * their partners in leases, and so on, happy and content.”

Continuing his testimony, Daniel declared "that he furnished this information to the home office of Traders & General Insurance Company, which again fixed the classification of W. J. Sneed as driller.

Controverting the basis for the classification, Mr. Hugh Sneed, Treasurer of the defendant corporation and brother of W. J. Sneed, testified on direct examination as follows:

“Q. Now from the beginning, what did each one of the brothers do, what were their duties with the Corporation? A. Well, in the beginning, it was a kind of a catch as catch can proposition, and I have been in the office approximately one hundred percent, but in days gone by, W. J. was in charge of drilling, or was considered probably the drilling Superintendent, but in recent years, he has been set up as public relations man, and does mostly the contacts in negotiating contracts or selling interests or what have you.
“Q. W. J. is the one that you said was the Secretary? A. Yes, sir.
“Q. When did he become the public relations and contact man ? A. It has been four or five years ago.
“Q. Would it have been before 1952? A. Yes, sir.
“Q. What did Malcolm Sneed, the President, do? A. Pie is actively in charge of drilling operations as the representative of the Company. He has a drilling superintendent, and he also has drillers on the job.
“Q. How about S. T. Sneed, Vice President? A. He has been for a number of years strictly in the obtaining of leases, curing of titles, and we refer to him as a land man.
“Q. Let’s say starting in 1951, to the present date, what have been the duties of the four officers, you and your three brothers? A. Well, Malcolm has been in charge of drilling operations as a tie between the office and the field, and S. T. has been in his capacity as land man, and Billy has been public relations man, and I have been in the office. , .
“Q. Now from 1951 until the present date, has there been any change in the duties of the officers? A. No, I wouldn’t think so.
“Q. In other words, they are doing the same things now that they did hack in 1951, 1952 and 1953 and so forth? A. I would say ‘yes’.”

On cross-examination the same witness testified:

“Q. Mr. W. J. Sneed you testified is public relations and contact man. In that job, what are his principal duties in that job? A. Well, his principal job is to sell and to solicit business and to keep the people who are interested with Sneed Brothers in connection with the drilling of wells informed and keep them happy and satisfied.
“Q. Does he perform any work in connection with drilling of wells? Does he perform any actual work that would be performed by employees himself? A. He is not supposed to. As I said about Malcolm, he is not going to do any more in that — he is not supposed to do any. Now, according to my knowledge, he doesn’t.
“Q. I show you a document marked P-41 for identification, which appears to be a surgeon’s report covering an injury to W. J. Sneed on October 26, 1952, and ask if you are familiar with that injury and the background of it? A. Yes, sir. According to this he was hurt a lot worse than I think he was. I don’t understand all of these phrases they got in here (indicating).
“Q. What do you know about the injury to W. J. Sneed at that time ? A. Well, he was attempting to assist in starting a motor on a pumping well.
“Q. Would that be in connection with drilling operations or would that be in connection with lease operation after completion? A. That would be in connection with lease operations, but he had no business doing either one. In other words, I suppose if you saw a man with a flat tire on the side of the road and you knew him you could help him with fixing the flat. In this case here it was his own Company man on the job there, and maybe by himself, and he was trying to be of some assistance and got his hand under a belt on the pumping well, and apparently he fractured a finger or cut him up pretty bad.”
******
“Q. If W. J. Sneed is on the well, have you been on these different lease sites and seen him there ? A. No, sir.
“Q. What is his principal work, as far as you know? A. Well, in most instances, it would be to someone who is interested in this particular operation would be the final outcome of the well, and he would be there as being the contact between Sneed Brothers or Quad Drilling Corporation and those parties, and he would in all probability if the Schlumberger was run he would be present at the picking of points of the side wall samples or in making the final decision as to whether we would proceed with, drilling or abandon the well, or something we might want to test or something in that connection. He may be called upon at some time and he would probably visit the well and there would be certain things needed and if he was going direct to a telephone or to town and he might order something to go out there to that well, or to the rig or to the lease. But he is not supposed to take part in any drilling operations or in any lease operations as far as the actual coming in contact with the equipment.
“Q. Did you have occasion to question his being rated as a driller; Mr. W.J. Sneed? A. Yes, sir.”

The testimony of Daniel and Hugh Sneed constitutes the only evidep.ce in the record with reference to the issue of the proper classification of Mr. W.- J. Sneed. Daniel, himself, admitted that he is totally unfamiliar with the drilling business, and it is apparent that ’his original classification of W. J. Sneed as a driller was made solely upon the basis of casual information, procured at thé timé he was in defendant’s office, to the effect that all of the Sneed brothers were out at the site of drilling operations on a lease in which they were interested. We think this ground was totally inadequate to support the classification made. Nor do we think plaintiff has succeeded in' showing any additional or stronger reason for the continuance of the classification after Daniel’s re-audit. On the other hand, Hugh Sneed’s testimony is uncontradicted, and we think he has made it perfectly clear that W. J. Sneed has no practical connection with nor responsibility for the company’s drilling operations. In short, it appears to us that plaintiff’s principal, the Traders & General Insurance Company, was grossly in error in classifying W. J. Sneed as a driller on what seems to us to be no more certain ground than a quite normal and natural interest on the part of said W. J. Sneed in the operations of the corporation in which he was personally interested.

A very similar factual situation was considered by our brethren of the First Circuit in New Amsterdam Casualty Co. v. Whitehead Motor Co., Inc., La.App., 170 So. 565, in which the court held that an isolated instance of the performance of hazardous work did not’ justify a high rate classification of a corporation executive.

Under this resolution of the factual issue presented it follows that defendant is entitled to the credit of $588, for which it contends on the basis of the lower premium rate classification which should have controlled the coverage on W. J. Sneed.

The application of this credit as a deduction from the account claimed by plaintiff in the sum of $1,223.93 would serve to reduce the amount due by defendant below the sum which it tendered in open court. However, the effect of defendant’s tender serves to fix, by its own admission, a liability to the extent' thereof, and it follows that plaintiff is entitled to the full amount of the tender.

The above calculation serves to eliminate the necessity for the consideration of defendant’s second contention for the allowance of an additional credit in the sum of $279.35.

For the reasons assigned the judgment appealed from is amended by reducing the amount thereof to the principal sum of $710, which amount at the time of the tender was sufficient to cover all costs accrued thereto. It follows that all other costs of both courts subsequently incurred should be, and accordingly they are, taxed against plaintiff-appellee. . As amended the judgment appealed from is affirmed.