text:
    COBB v. A. G. McKEE & CO. et al.
    No. 3227.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.

      Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellants.
    Major & Sanders, Baton Rouge, for ap-pellee.
   ELLIS, Judge.

This is a suit by Delton D. Cobb under the Workmen’s Compensation Law against A. G. McKee & Co., employer and the General Accident Fire and Life Assurance Corporation, Ltd., the employer’s insurer, for permanent and total disability as the result of an accident and injury to an interverte-bral disc in his back, necessitating the removal of a small portion thereof. Plaintiff, in -addition to the necessary allegations of employment and duties as a structural steel worker, the accident, injury, the operation and removal of a small portion of the ruptured intervertebral disc, and his continued total and permanent disability despite the operation, alleged that he was due and prayed for compensation at the rate of $20.00 per week from April, 28th, 1948 to July 28th, 1948, the effective date of Act No. 175 of 1948, and thereafter under the provisions of said Act, at the rate of $30.00 per week for a period not exceeding 400 weeks, subject to a credit of compensation paid to December 14, 1948 at the rate of $20.00 per> week.

The defendants in their answer denied the happening of the accident although they admit that one was reported by plaintiff and that he was treated by several physicians and finally underwent an operation for the removal of the ruptured disc on September 9th, 1948. They deny that he was suffering pain as alleged or that he was unable to do the same kind of work he was doing before the accident or that he was entitled to be paid any additional compensation, and further denies any liability for the medical expenses claimed, alleging that they have paid or agreed to pay medical expenses in a substantial sum. They deny all -other material allegations of plaintiff’s petition and, in the alternative, allege that plaintiff's compen-sable rate under no circumstances should exceed $20.00 per week as that was the maximum compensable rate prescribed by the law in force and effect at the time of the alleged accident and at the time the said insurance policy was written. They further alleged in the alternative that if the. aforesaid Act was intended to have a retrospective effect it is violative of the Constitution of- Louisiana and of the Fifth -and Fourteenth Amendments to the Constitution of the United States in that it would deprive defendants of their property without due process of law and would deny them the equal protection of the law.

The case was duly tried and judgment was rendered in favor of the plaintiff awarding him compensation at t-he-rate of $20.00 per week from the date of the accident, April 28, 1948, against the defendants in solido during plaintiff’s disability, not exceeding 400 weeks, with legal interest on all past-due installments from due date until paid, less the amount paid from the date of the accident to December 14, 1948. Defendants have appealed to this Court.

Counsel for the defendants concedes in his brief that the plaintiff suffered a ruptured intervertebral disc during the course of bis employment and submits that the only questions presently before the Court are these:

1. Has the plaintiff fully recovered ?

2. If the plaintiff has not fully recovered, is he presently totally and permanently disabled within the meaning of the Act?

3. If the plaintiff is still disabled, is 'he entitled to an increased compensation rate from $20.00 to $30.00 per week from the effective date of Act No. 175 of 1948?

The third question which the Lower Court, in a well-written opinion, decided against the plaintiff and in favor of the defendants is no longer at issue as counsel for the plaintiff in his brief admits that the District Judge was correct in his analysis and interpretation of the law concerning the effects of Act No. 175 of 1948 and now concedes that since the appellee was injured prior to the effective date of Act No. 175 of 1948 that he is bound by the provisions of law as existed at the time of his injury and hence entitled only to compensation at the rate of $20.00 per week and, accordingly, asks that the judgment of the Lower Court be affirmed.

The plaintiff was a structural steel worker which required the “setting of steel, driving'steel, driving of rivets, plumbing of the steel, placing steel floors, plates and gratings and the general construction of the whole building, everything that pertains to iron”, and also to climb as most of the duties of a steel worker are above the ground as their main duties are performed in the construction of industrial plánts and the like. On April 28, 1948, the date that the plaintiff was injured, he was assisting in assembling steel floor plates on what he termed “the catwalks between the reactors.” It is shown that these steel plates weighed maximum around 600 pounds and minimum 200 to 250 pounds.

After approximately six weeks treatment plaintiff continued to suffer and was sent by Dr. Godfrey of Baton Rouge, Louisiana, to Dr. Howard H. Karr of New Orleans, Louisiana, who, as a result of a myelograph test, definitely diagnosed the plaintiff’s trouble as a ruptured disc in the lower part of his back, and recommended an operation as the only means of relieving his condition. The plaintiff made his own arrangements with Dr. Karr to perform the operation, which he did on September 9th, 1948, at Touro Infirmary in New Orleans. On September 14th the plaintiff returned to his home in Baton Rouge and after two months returned to Dr. Karr for a check up. As a result of this check up he stated Dr. Karr told him to do light work and that as he had some friends who were working for Stone and Webster, they found him an easy job “flagging a- rig, crane, giving signals. That is all I do, with my hands,” which job he was still holding at the time of the trial of this case on May 19, 1949.

Plaintiff testified that after -the operation he seemed to get some better and then his back began to hurt him in practically the same place so that he was unable to do any hard work, and it also interfered with his rest at night for during this time he would get a “charley horse in my legs, the muscles get so hard my wife has to rub them with alcorub to get them out.” Also, that he had requested the foreman to allow him to try to see if he could do heavy work in assisting to unload a car load of iron while some one else flagged the crane, and his back pained him to such an extent that he could not do the work. As a result of his continued suffering he again went to Dr. Godfrey who told him that after the disc was removed his back would never be the same and that there was nothing further to be done about it, but he did send him to Dr. Toups of Baton Rouge.

Plaintiff’s testimony is corroborated by hi^ wife, a fellow worker at the time of the accident, plaintiff’s friend and foreman at Stone & Webster who had given him the flagging job after the operation and who stated that the plaintiff was unable to do anything else “but flag the crane,” as he had "tried him out — at his request” and that, further, the plaintiff’s complaints of pain had increased from the time he had gone to work for the company.

On the first question, as to whether the plaintiff has fully recovered, the medical testimony is in irreconcilable conflict. Dr. Karr, who is a neurosurgeon and admittedly one of the best, stated that he removed a portion of the intervertebral disc which was approximately of an inch in diameter or seven millimeters, and that a normal disc measures approximately fifty-five by thirty-two millimeters; and that the portion of the disc which was removed was “simply the protruded portion of the disc and -not the rim-of the disc or the supporting element of the disc,” and that the operation was successful in that plaintiff made a quick recovery,. and that when he was discharged from the hospital there was a total absence of any symptoms of plaintiff’s previous troubles. Dr. Karr saw the plaintiff again on November 9th, 1948 and in his report stated that on this date “from an objective point of view the patient had shown remarkable recovery and from a subjective point of view was asymptomatic.”

Dr. Karr again saw the’ plaintiff on December 14, 1948, at his office at which time he stated plaintiff told him he had returned to work about one week prior to his visit and “found himself able to do eight hours of work except for some low back discomfort on arriving at home after the performance of the day’s work.” He further stated that “Objectively, he had no muscle spasm. He had increased capacity to bend forward at that time, being able to reach within six to eight inches from the floor, and that there was still some flattening of the lumbar curve on forward bending.” Also, “that as a result of the operation which was carried out on September 9th there was marked subjective relief, and marked objective improvement. I felt' at that time, that his physical findings were of a character to qualify him for full performance of work.”

Dr. Karr again examined the plaintiff on April 24, 1949, and at that time the plaintiff told him that he had been having intermittent episodes of what he referred to as “Charley horses” in the left calf during the night and which were characterized by a cramping sensation and that they had begun approximately several weeks prior to plaintiff’s visit, and as a result of his examination on this date all of his findings which he described in medical terms, were normal and that he concluded at that time "that the patient was in excellent condition insofar as the condition for which he was operated upon was concerned. I concluded that he had made an excellent recovery from the operation, and that he was now qualified for performance of his usual work.”

Thus, we see that it was definitely Dr. Karr’s opinion that the plaintiff had no disability as a result of his injury or the operation and could have resumed his former duties as a structural steel iron worker.

On the other hand, we have the testimony of Dr. James R. Godfrey who testified that he had examined the plaintiff twice, first on June 24, 1948 at which time he diagnosed his trouble as a ruptured intervertebral disc and recommended that he go to Dr. Karr for surgical treatment. The second examination was subsequent to the operation, at which time the plaintiff told him that he had never gone back to his previous heavy job but had been doing light work, and further stated “that the pain at that time was much better than it had been before the operation” but that “he had a steady soreness and aching in the site of the operation much of the time and that lifting heavy objects caused the back soreness to become severe.” Dr. Godfrey stated that he also told him that “he had attempted to lift heavy objects several times deliberately, trying to see what it did to the back, and the pain immediately became severe and persisted for perhaps a day after the episode.” Dr. Godfrey’s examination at this time was negative as to the lower extremities, and plaintiff had a good range of back motion with a six inch scar along the lower portion of his lumbar region, extending upward from the top of the sacrum, and it was'in the lower portion of this scar in the region of the lumbo-sacral joint of which he complained of his almost constant aching that was made so much worse by heavy lifting. As a result of this visit and examination, Dr. Godfrey decided “that Mr. Cobb had had an intervertebral disc or a section of a disc removed and that the operation had been quite successful, had given him quite satisfactory improvement, and that he was now capable of doing work that did not require too heavy straining on the region from which the segment of disc had been removed.”

Dr. Godfrey saw the plaintiff twice after that and had talked with him on the phone several times and at these times the plaintiff had complained of considerable pain in his lower left extremity and that one time he had sent him to Dr. Toups to see if hé might know of something that might be of some assistance to the plaintiff. It was Dr. Godfrey’s opinion that “the neuritis and the discomfort Mr. Cobb has down his left lower extremity with charley horses and the areas of anaesthesia are going to disappear in time. I think they are due to neuritis and I think in time they will disappear. The labor or activity part of his back is completely a matter of degree. Mr. Cobb may some day reach the point where he can’ do fairly heavy laboring work, but I don’t think Mr. Cobb will ever be able to do as heavy laboring work as he 'was capable of doing before the back was originally injured., because an important part of the back is not there.” (Emphasis added.)

Dr. Toups was of the opinion that even though the disc had been removed the plaintiff still had pain due to pressure that was against the nerve when the disc was present in the back, out of location, and that this pressure brought about a neuritis which still existed, so that in his opinion the only treatment to relieve this pain would be the administration of narcotics. It was further his opinion that heavy lifting would tend to make this pain more acute.

The trial judge, while taking cognizance of the conflict in the medical testimony in deciding whether the plaintiff had fully recovered, had this to say:

“Regardless of which of these physicians is correct, Mr. Cobb has convinced me that he does suffer intense pain at times. His testimony is corroborated by his wife.”

“The fact that h'e is able to do light work and is still classified as an iron worker does not necessarily mean that he has recovered or that he can do the kind of work he was doing before he was injured. Indeed, I am convinced that he made an honest effort to do heavy work since the accident and failed to successfully do the same without pain and discomfort.”

“In these circumstances, I am of the opinion that he is in a legal sense totally and permanently disabled to do the work to which he was accustomed before the accident and therefore entitled to recover.”

“Butzman v. Delta Shipbuilding Co., Inc., et al., [La.App.], 21 So.2d p. 80; Vega v. Higgins Industries, Inc., et al., [La.App.], 23 So.2d 661; Stieffel v. Valentine Sugars, Inc., 188 La. 1091, 179 So. p. 6.”

While we realize that Dr. Karr is a specialist and a distinguished expert in neurosurgery and his opinion is entitled to greater weight, all things being equal, than one who is not a specialist in this particular field, the trial judge who heard and saw all the witnesses on the.stand by virtue ,of the lay. testimony stated that he was convinced that the plaintiff did suffer intense pain and was in a legal sense totally and permanently disabled. We cannot say that there was any manifest error- in this conclusion.

Counsel for the'defendants contends that the cases relied upon by the trial judge are not applicable for in those cases, as well as the cases cited, the Courts applied the rule that when an employee is a skilled mechanic or trained and experienced in his special trade, and an inju'ry in the course of employment causes a total disability to continue carrying on his trade or work for which he alone is suited by training and experience and he is totally disabled to do any work of a similar character, disability is total notwithstanding the injured employee may have succeeded in obtaining, after the accident, employment of a different kind and not requiring any special skill or training, whereas in the present case the plaintiff is still employed and classified as a structural steel worker and doing work which a structural steel worker is required to do and drawing 25^ an hour more pay than on the date of the accident. Counsel asks: “What incentive is there for him to resume his regular duties in view of these circumstances,” and then states: “If the Court should affirm the -judgment in his favor then he can continue indefinitely as a structural steel worker drawing higher wages than he was drawing when injured and, in addition, drawing compensation at the maximum amount pefmitted by law,” and that if the judgment is affirmed “the plaintiff will be in effect receiving a bonus.” He submits that the plaintiff’s case can be likened to the cases of Warlord v. Arkansas Fuel Oil Co. et al., La.App.2d Cir. 1937, 176 So. 682, certiorari denied; Colbey v. Edwards Chevrolet Co. et al., La.App.2d Cir. 1938, 186 So. 884, certiorari denied, and Rendueles v. Solomon et al., La.App.Or. 1949, 39 So.2d 465.

It is true that plaintiff was still classified as a structural steel iron worker and that the flagging of the crane, that is, giving signals to the crane operator when to lift the steel and when to let it down, etc., was always done by a structural steel iron worker where the crane was being used in connection with their work just as a similar flagging of the crane was done by a boiler maker when it was engaged in work being done by boiler makers. It is equally true that plaintiff’s job, aside from being easy and the work very light, as compared to the other duties which a regular structural steel iron worker was required to do, was also ■not a permanent job and ordinarily the worker selected to flag the crane would, as soon as it was no longer necessary to operate the crane, be directed to any one of the other duties required of a structural steel worker. For instance, it may be necessary to hoist some steel for the construction of the building, and as soon as a sufficient amount was hoisted into place, the crane operation would cease, yet construction of the building would continue. Therefore, ordinarily the foreman would call one of the workers to flag this crane and when the crane had finished or was no longer needed, the worker would be directed back to placing steel plates or riveting or any one of the other various kind of work that a structural steel worker is called upon to do. Plaintiff testified that he had gotten this job through friends who were working for Stone and Webster, and it is shown by the testimony that at no time since his injury, the operation, or beginning of his work as a flagman of the crane had he ever been seen doing any other kind of work that has been described as part of the duties of a structural steel iron worker. Plaintiff testified that had he been called upon to do the other work he would have had to quit as he could not' lift anything heavy or do any part of the heavy work.

In addition to these facts, the foreman under whom plaintiff was working as a flagman, testified that he had known the plaintiff for about six or seven years and had had occasion to work with him before he was injured in structural steel work' and that although such a worker is called upon to drive rivets, hang iron, rig for raising heavy material such as tanks and drums, climb, and do anything that pertains to putr ting up a building or anything else that is made from iron, that the plaintiff was unable to perform these duties and that as he knew the plaintiff quite well and knew his condition he gave him this job so that he could make a living. He further testified that -there was no such thing as flagman, that is, a permanent flagman, and that he had created this particular job for him. It is true that he testified that at times he needed a flagman and “we need him (plaintiff) there but the times that this rig isn’t in use we need him other places,” but that he did not use him other places as he was unable to do any of the heavy work. He also testified that when the crane work was done they would not retain the plaintiff as a steel worker because he is not physically able to do the other work required of the regular structural steel iron worker.

Under these facts, we are of the opinion that the judge of the lower court was correct in his finding that in a legal sense the plaintiff is'totally and permanently disabled to do the work to which he was accustomed before the accident and, therefore, entitled to recover, and that the cases cited and relied upon by the Judge of the lower court are applicable, and that the cases which counsel for defendant submits as being controlling are not, under the facts in this case. Clearly, under the facts in this case, the plaintiff could not follow the line of work for which he was trained and which he was performing when injured, for prior to his injury he was an excellent structural steel1 iron worker and was able to perform all of the duties of such a worker, which consist almost completely of heavy, ardous labor, whereas, after the injury the only thing that he could do was to flag the crane which it might be said was a duty incidental to the main duties of a structural steel iron worker, and which was done spasmodically by any structural steel worker when it was necessary to hoist steel so that the construction work could continue. It was never in a sense considered a permanent job or one in itself, if that alone was done, which would qualify the person doing it as a structural steel iron worker or to be classified as such. The mere fact that he is earning more money by reason of the fact that a friendly foreman saw fit to create a job where none had existed before merely for the benefit of the plaintiff, and where he is disabled to do any of the other duties of a structural steel iron worker would not, under the law and jurisprudence be sufficient to- deny him compensation. Although the plaintiff might be classified as a structural steel worker and draw pay accordingly, under the facts he is not in reality a structural steel iron worker for he was unable to do any of the permanent duties required of one and which he had performed prior to his injury.

Counsel for defendant in his brief alternatively contends that the plaintiff should recover as for partial disability and cites as his authority Vilce v. Travelers Insurance Co., La.App., 24 So.2d 485. We do not think this case is applicable for it is based upon the proposition that if the ability of an injured employee to do work similar to that which he was doing when injured is only impaired or reduced and he is able to do in a substantial manner his former work with only reduction in his earning capacity, then he is to be compensated under the partial disability clause. Sec. 8, Subsection 1 (c) of Act No. 20 of 1914, as amended, Act No. 242 of 1928, page 357. In the present case, the plaintiff is not able to do in a substantial and reasonable manner work similar to that which he was doing when injured. In fact, he is unable to perform the very work he was doing and was called upon to do at the time of and prior to his injury, and can now only perform the duties of a flagman of a crane, which it is not shown he ever did before and which is an incidental and temporary duty of a structural steel iron worker.

It is therefore ordered that the judgment of the District Court be affirmed.


source: Caselaw Access Project

author: FRUGE, Judge ad hoc.

license: Public Domain

text:
    TONEY et al. v. BURRIS.
    No. 3236.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.
    Delos R. Johnson, Franklinton, Benj. W. Miller, Bogalusa, for appellant.
    Ott & Richardson, Bogalusa, for appel-lees.
   FRUGE, Judge ad hoc.

This is a suit for damages brought by Frank L. Toney and his collision insurer, Resolute Fire Insurance Company, against the defendant, Hugh Burris, for the purpose of recovering the amount of damage sustained by each of them as the result of a collision between an automobile owned and operated by the plaintiff, Toney, and a truck 'owned and operated by the defendant Burris. The amount prayed for by the plaintiff, Toney, is the sum of $50, which represents the uninsured portion of the damage to his car under a policy of collision insurance issued by his above named insurer and containing the usual $50 deductible clause. The amount prayed for by the plaintiff insurance company is in the sum of $107.96, which represents the amount paid to the plaintiff Toney by the said company under the above mentioned policy of insurance which was in full force and effect at the time of the above mentioned collision, said company having become subrogated to ■ all of the plaintiff's rights against the defendant by virtue of an act of subrogation executed by the insured in favor of his insurer. The plaintiffs predicate their demands upon the alleged negligence of the defendant Burris. Principally that the defendant made a left turn into the lane of traffic occupied by the plaintiff while the said plaintiff was in the act of passing the truck operated by the defendant, by failure of defendant giving any signal or warning to indicate his intention of making a left turn, by the defendant’s failure to look in the rear before attempting to -make a left turn, by defendant’s failure to heed the warning .given by plaintiff indicating his intention to pass the defendant, and defendant’s failure to make any effort to avoid the accident after he saw or should have seen the plaintiff’s, automobile attempting to pass him.

The defendant has denied the allegations of negligence and the resultant liability of the defendant for damages to the Toney automobile as a result of the collision between the above mentioned vehicles, and has specifically pleaded contributory negligence on the part of the plaintiff Toney in the alternative and in case the Court should find that the defendant was guilty of negligence. Defendant prayed in reconvention that there be judgment herein in favor of him and against the plaintiff Toney for damages to jhis truck in the sum of $60.23.

The acts of negligence' alleged by the defendant of the plaintiff are in plaintiff’s failing to observe the defendant’s signal for a left turn, plaintiff’s failing to observe defendant making a left turn while he was some 700 feet behind defendant, plaintiff’s failure to bring his car under control so as to avoid the accident, in plaintiff’s traveling at a high and dangerous rate of speed, in plaintiff’s attempting to pass the truck of defendant on the left side of the road when defendant had preempted that lane in making the turn, in failing to keep a proper lookout, and, in ' failing to take any precautions whatever to avoid the accident.

The District Court rendered judgment in favor of plaintiff, Frank L. Toney, in the sum of $50 and Resolute Fire Insurance Company in the .sum of $107.96 against the defendant, Burris, finding that the negligence of the defendant was the proximate and sole cause of the accident. Defendant appeals.

The automobile collision which is the basis of this case happened on August 22, 1948,'at approximately the hour of 6:00 P. M. The plaintiff Toney was driving in á southerly direction along the Clifton-Franklinton highway and so was the defendant Burris. The car of the plaintiff Toney was behind-and following the truck driven by the defendant. The Lower Court found that Toney was traveling at a moderate rate of speed and pulled his car to the left and into the left lane of traffic, preparatory to passing the truck owned and operated by the defendant; that the road was clear' of traffic and obstructions and that the plaintiff blew his horn in order to signal the defendant Burris of his intention to pass the truck, but that just as he was in the very act of overtaking and passing the truck of defendant, the defendant suddenly and without any warning or signal whatever made a left turn in front of the car of the plaintiff intending and desiring to make a left turn into a gravel road leading in a northeasterly direction known as Pico Road, and that the plaintiff was unable to avoid-striking the truck owned by the defendant because he was in such close proximity thereto at the time the defendant made the left turn which was directly into the path of the plaintiff’s automobile.

It is well recognized that a strong presumption of correctness attaches to the finding of the trial court on a question of fact, and the conclusion of the trial court on questions of fact will not be disturbed in the absence of obvious or manifest error. Paquet v. Renken, La.App., 30 So.2d at page 218.

The Trial Judge in giving his reasons for judgment stated: ■

“The testimony in this case shows that the defendant Burris was operating his truck on the Clifton-Franklinton Highway, at a point some three miles north of the town of Franklinton, and he was proceed-, ing along same in a southerly direction toward said town of Franklinton; that he was traveling at a rather slow rate of speed and when he came to a point in the highway about 50 feet north of what, is known as the Pico Road, which is a graveled road on the west of said highway, he began preparations to make a left turn into said Pico Road. The car of the plaintiff Toney was traveling in the same direction as the truck of the defendant Burris, and I am satisfied from the evidence in the case that this car was being operated at a speed of between 50 and 55 miles per hour. Before the defendant Burris completed his left turn into the Pico Road, the car driven by the plaintiff Toney hit the said truck on the left rear side thereof, causing the damages which form the basis of this suit. •

“The evidence further shows that there is a curve in the Clifton-Franklinton highway about 450 feet north on said highway from where the Pico Road leads into the highway. The defendant Burris testified that, at the time he started to make the left turn from the highway into the Pico Road, he looked through his rear-view mirror and saw the car of the plaintiff coming around the curve 450 feet away. He then states that he curved his truck to go, into the Pico Road and at that time. signaled his intention to make a left turn. In other words, the truck was turning into the Pico Road at the time he signaled with his left hand ■ his intention to turn. I am convinced from the evidence that the defendant Burris was not traveling at a greater rate of speed than 12 miles per hour when he started to make the left turn, and this is the rate of speed it is admitted he was traveling by his counsel in the brief which has been filed. I am further satisfied that the plaintiff Toney was operating his Nash automobile at a rate of speed between 50 and 55 miles per hour. A car which is moving 12 miles per hour is moving at a rate of approximately 17 feet per second, and a car which is traveling at a rate of speed of 50 miles per hour is moving at a speed of 74 feet per second, or if it is traveling at a rate of 55 miles per hour it will be moving approximately 78 feet per second. See Chart of Speed of Automobiles, 9 (Part 2) Blashfield Cyclopedia of Automobile Law and Practice, page 706.

“Thus if, as the defendant Burris has testified, he was 50 feet from the Pico Road when he began making the left turn across the highway and he was traveling at a rate of speed of 12 miles per hour and, as he has further testified, the plaintiff at that time was in the curve 450 feet behind him, traveling at a rate of speed of 50 or 55 miles per hour, then it is obvious that the defendant would have traversed the 50 feet and been out of the highway and into the Pico Road before the car of the plaintiff reached that point. In other words, traveling at the top speed of 55 miles per hour, which is a rate of speed of 78 feet per second, the plaintiff could not have reached the Pico Road from a distance of 400 to 450 feet away in less than five seconds, whereas with the defendant traveling at a rate of speed of 12 miles per hour (or 17 feet per second) it would have required him only three seconds to get into the Pico Road. Accordingly, the accident could not have happened as explained by the defendant.

“The evidence shows that the car - of plaintiff Toney made skid marks on the pavement for a distance of approximately 110 feet prior to the time it hit the defendant’s truck. This leads, me to believe that the plaintiff Toney was in the neighborhood of 160 feet behind the defendant’s truck at the time the defendant started to make the left turn because, as is shown by the Chart cited above, the average driver reacts to a warning in %ths of a second and naturally the plaintiff Toney traveled some SO or 60 feet before he realized that Burris was turning to the left across the highway. While I don’t doubt that Burris indicated his intention to turn by giving a signal with his left hand, I am further convinced that he did not give this signal until (as he says) he was “in the curve” and consequently, this was too late. I am further satisfied from the testimony of both Toney and his wife that the plaintiff sounded his horn, denoting his intention to pass, and it is impossible for me to understand why the defendant did not hear the horn except for the reason that the truck was making so much noise it prevented him from hearing the sound of the horn * *

“I am convinced from the facts of this case that the defendant, before making the left turn across the highway, did not ascertain that the movement could have been made in safety. As has heretofore been pointed out, the plaintiff’s car could not have been where the defendant placed it prior to the time the defendant began making the left turn. Consequently, I am bound to conclude that the defendant did not look to his rear immediately before making the turn, for had he done so he would have seen the plaintiff’s car not more than (at the outside) 170 feet behind him in the act of going by him in the left lane of the highway. His failure to look constituted the negligence which was the proximate cause of this accident and, since I am unable to find any act on the part • of the plaintiff that constituted ■ contributory negligence, then liability must attach to said defendant.”

We have examined the transcript of evidence carefully and have found the same factual situation as given by the trial judge in his reasons for his judgment.

. The law involved is well settled as follows:

That the burden is on the operator of a motor vehicle who desires to make a left turn, carries the responsibility of being certain that the turn can be made without danger to normal overtaking or oncoming traffic, and he must yield the right of way to such vehicles. See Michelli v. Rheem Mfg. Co., La.App., 34 So.2d 264; Gomez v. Broussard, La.App., 34 So.2d 643; Lane v. Bourgeois, La.App., 28 So. 2d 91; Seale v. Stephens, La.App., 24 So. 2d 651; Home Insurance Co. v. Warren, La.App., 29 So.2d 551.

Highway .Regulatory Act, Act No. 286 of 1938, § 3, Rule 10, subsection (a) provides: “The driver of any vehicle upon a public road, highway or bridge of this State, before starting, stopping or turning from a direct line sháll first see that such movement can be made in safety * * * and, whenever the operation of any other vehicle may be affected by such movement, shall give a signal as required in this Section, plainly visible to the driver of such other vehicle, of the intention to make such movement.”

For the reasons assigned it is ordered that the judgment appealed from is affirmed at defendant’s costs.


author: REGAN, Judge.

text:
    MAYERHEFER v. LOUISIANA COCA-COLA BOTTLING CO., LTD., et al.
    No. 19390.
    Court of Appeal of Louisiana. Orleans.
    March 27, 1950.
    Marion G. Seeber, New Orleans, for appellant.
    Frank T. Doyle and Nicholas Masters, New Orleans, for appellees.
   REGAN, Judge.

•The plaintiff, Joseph M. Mayerhefer, claiming that he suffered a severe illness as a result of consuming about one-half the contents of a bottle of coca-cola which contained a deleterious substance which, upon on analysis was revealed to be a chemical known as iodine, brought this suit against the Louisiana Coca-Cola Bottling Company, Ltd., and its liability insurer, Hartford Accident and Indemnity Company, for the recovery of damages in the sum of $2,611.50.

Defendants answered denying the allegations of the petition and pleaded as a special defense that the Louisiana Coca-Cola Bottling Company’s plant is equipped with the most modern and scientific machinery for the purpose of bottling its product, therefore, defendants maintain that it is a physical impossibility for any foreign substance to find its way into the coca-cola or into the bottles and, if the plaintiff was injured as alleged, then defendants aver that said foreign substance was not in the bottle of coca-cola when it left its plant and when it was delivered to the dealer; and that if any iodine was present in the bottle, this occurred only after the bottle had passed into the possession of third parties and was, therefore, beyond the control of the defendants.

From a judgment in favor of defendants dismissing plaintiff’s suit, plaintiff prosecutes this appeal.

The record reveals that under date of-Thursday, September 18, 1947, at about 11:30 p. m., the plaintiff, endeavoring to relieve a headache, purchased two bottles of coca-cola from a neighborhood vendor of the product, designated as “Johnny’s Pool Room,” located in 2025 N. Claiborne Avenue and returned to his home in 2009 N. Claiborne Avenue, took a headache powder, opened one of the 'bottles of coca-cola and swallowed about one-half of the contents thereof. Plaintiff, moments later, suffered an intense irritation and burning sensation of his throat and stomach causing retching and regurgitation. Upon examination of the bottle he detected that the beverage had a peculiar taste and odor. The incident occurred near midnight and the plaintiff’s daughter being concerned over her father’s illness, summoned his brother, Adolph Mayerhefer, a police detective, to his home. The brother, shortly after his arrival and after consummating the usual arrangements, conveyed plaintiff to the Hotel Dieu where he was examined and treated by Dr. R. E. Gillaspie, the family physician. Dr. Gillaspie’s diagnosis was acute gastro enteritis for which appropriate medication was prescribed in the form of sedation, rest and diet. Plaintiff was confined to the hospital until September 20th, 1947. The manifestations of the same ailment recurred five days later ostensibly from the same cause and, on September 25th, plaintiff was conveyed' from his place of employment to the Charity Hospital and from there to the Hotel Dieu, where he remained until Sep-, tember 27th, under the care of Dr. Gil-laspie. The same diagnosis was made and similar treatment prescribed as on the occasion of his first visit to the hospital.

Dr. Gillaspie testified that his examination revealed pain and tenderness in the mid-a'bdominal region; that plaintiff’s blood pressure was within normal limits, but that plaintiff was retching and vomiting. He further testified that the plaintiff informed him that he had drunk some coca-cola about one-half hour or forty-five minutes prior to the first examination and that it had a peculiar odor and taste to it and in order to alleviate the pain which plaintiff suffered, he administered morphine and demerol; that plaintiff was confined to the hospital for a period of two days; he had occasion to see plaintiff again on September 25th, at the Hotel Dieu and he was in the same condition as on the previous occasion, i. e., he was suffering pain in the mid-abdominal region and he again diagnosed plaintiff’s illness as acute gastro enteritis. Dr. Gil-laspie related that he had treated the plaintiff on several occasions prior to this illness and the condition of his health was good except for hypertension. He further testified that if plaintiff had actually ingested a coca-cola containing iodine that the symptoms would be comparable to the ones which plaintiff had manifested.

Adolph Mayerhefer, plaintiff’s brother, corroborated plaintiff’s testimony with respect to his suffering and regurgitating. He testified that shortly after arriving at plaintiff’s home he had smelled the beverage and there was a peculiar odor emanating from the liquid which remained in the bottle from which his brother had consumed about one-half the contents, and that it was his idea to have the contents examined by the City Chemist. In pursuance thereof he made the necessary arrangements, through police channels, in order to facilitate the analysis and subsequent report; that he, personally, was unable to deliver the bottle to the City Chemist on the morning of the 19th of September, 1947, as he anticipated because he had to report for police duty. He ■ then turned the bottle and its sealed contents over to his sister, Mrs. Verlander. She testified that she received the sealed bottle from her brother on the morning of September 19th, 1947, and that she locked it in her china closet where it remained under her exclusive custody and control for several days, due. to the intervening hurricane of September 19th, 1947, which thus delayed delivery of the bottle in question to the City Chemist for an analysis.

Dr. John M. Danneker, the City Chemist, testified that his office received the contents of the coca-cola remaining in the bottle on September 26th, 1947, and his analysis revealed that “the bottle contained 61 ci cs. which is approximately 2.1 fluid ounces. The color of the sample was normal for coca-cola, but the odor was characteristic of iodine and it gaye-positive results when tested. A 'quantitative examination was made which showed that there was- .053'-% of free iodine in the sample which would be the equivalent of 94 milligrams of iodine in a six ounce bottle”. On -cross-examination Dr. Danneker testified as follows:

“Q. What is the average dose of iodine used for internal purposes ? A. The iodine usually given internally is in the form of a solution, it is a compounded solution known as Lugol solution. The maximum dose of Lugol solution is ten drops or minims, which contains about -6/100 of a gram or 60 milligrams.

“Q. Now assuming that this plaintiff drank one-half of that bottle, how much more than the maximum dose of iodine would that be? A. About one and one-half times the maximum.”

George John Virga, the son of the proprietor of “Johnny’s Pool Room”, testified that on the night of September 18th, 1947, he sold two unopened bottles of coca-cola to the plaintiff, which had originally been purchased in case lots from the Louisiana Coca-Cola Bottling Company, Ltd., and they had been contained in what he designated as a dry storage'box used for the chilling of bottled beverages. He further testified that the bottles had not been tampered with from the time that his father had purchased them in case lots from the Louisiana Coca-Cola Bottling Company, through the time that he sold the two bottles to the plaintiff herein. He further testified that he had received no other complaints concerning the coca-colas which he had sold to various customers.

The only evidence introduced by the defendant which is worthy of note, is of a negative character. The defendants, through Charles C. Collins, Assistant Superintendent of the Louisiana 'Coca-Cola Bottling Company, explained in minute detail the method used in sterilizing, cleaning and filling the bottles; he testified that the plant is ultra modern and equipped with ample facilities intended to insure the purity and quality of this product when it reaches the ultimate consumer. The conclusion which defendants would have us draw from the testimony of Mr. Collins is-that it would be impossible, in view of the abundant precautions taken, for a deleterious substance to be found in any bottle of coca-cola when it left the defendant’s plant,, however, Mr. Collins testified on cross-examination that foreign matter had been found in bottles of coca-cola and that it was part of the bottling process in defendant’s plant to subject the bottles to a final light test for the purpose of discovering the presence of such foreign matter, the inspection being made -by women employed for that specific purpose.

Counsel for plaintiff, in his brief, contends and endeavors to logically prove that the doctrine of res ipsa loquitur is applicable to the facts developed in this matter.

Defendants contend, on the other hand, that before the doctrine of res ipsa loquitur can become operative, certain factual requirements must be present, to-wit: (1) the plaintiff must show actual injury; (2) that the beverage contained a foreign ingredient that caused the injury and (3) that the bottle had not been improperly handled or tampered with after it left the bottler’s possession, and that since plaintiff failed to comply with any of these requirements, he has not made out a prima facie case against the defendants and cannot, therefore, invoke the benefits of the doctrine. In the alternative, defendants maintain that assuming a prima facie case was actually made out by plaintiff, then certainly what has been proven concerning the method employed by the defendants in the bottling process, effectively negatives the existence of any negligence on the part of the defendant bottler which may have been inferred from the testimony adduced by the plaintiff.

Tlie question posed by virtue of the pleadings and evidence adduced herein is solely one of fact, i. e., did the bottle from which the plaintiff drank the coca-cola, contain a foreign matter and, if it did, was plaintiff injured as a result thereof?

In Dye v. American Beverage Company, La.App., 194 So. 438, 440, this . Court, through Judge McCaleb, observed that: “We have many times' said (see Hill v. Louisiana Coca-Cola Bottling Co., La.App., 170 So. 45, Russo v. Louisiana Coca-Cola Bottling Co., La.App., 161 So. 909, and other cases) that, where the plaintiff shows by a preponderance of evidence that the beverage contained a foreign substance, that he consumed it and suffered injuries as a result, the burden of proof shifts to the defendant to excuse itself from liability by proving to the satisfaction of the court that the foreign matter did not enter the beverage during the bottling or manufacturing process.”

In our opinion the plaintiff has made out a prima facie case and he has proved, by a fair preponderance of the evidence, not only that the bottle of coca-cola, from which he drank, contained a deleterious substance, but that he was rendered ill as a direct result of its consumption. As a logical consequence thereof it was encumbent upon the defendants to show that the matter found in the bottle did not enter the bottle during the manufacturing process. The evidence submitted by defendants is to the effect that the defendant bottling company operates a most modern scientific and sanitary plant and that it is quite impossible that a foreign substance could have entered the product during the process of manufacture, but, the same evidence also revealed that after the bottles are filled defendants have employees to carefully examine each bottle through reflected light to .ascertain if any deleterious substance is present therein. If it is impossible for any foreign substance to enter the bottle or to remain there while the bottle is processed through the washing and filling plant, it occurs to us that it would be a vain and unnecessary gesture to have employees to diligently observe the filled bottles passing through reflected light, patiently waiting for an impossible event to occur.

A fortiori the evidence submitted by defendants herein, is not of itself sufficient to offset the very positive testimony submitted by the plaintiff and his witnesses which, after careful scrutiny, we find to be worthy of belief and to authorize the conclusion" that plaintiff was rendered ill as a result of the- negligence of the beverage company. ■

The courts of this State have consistently held bottlers of beverages to a very high degree of care; yet, by the same token, the courts have borne in mind that the manufacturer of beverages, of necessity, can have at his disposal no adequate means of disproving by eyewitnesses that the alleged incident actually transpired. Therefore, safeguards have been erected and in order to establish his case the plaintiff must allege and prove three distinct factual requisites: Dye v. American Beverage Company, Inc., supra, (1) that the beverage contained a harmful substance,' (2) that the plaintiff partook of the contents of the bottle and (3) that injury resulted. When these facts have been sufficiently established, the defendants then bear the burden of rebutting the prima facie case of negligence thus established against it by the plaintiff in order to escape liability. Auzenne v. Gulf Public Service Company, La.App., 181 So. 54.

We are of the opinion that plaintiff has established a prima facie case of negligence which the defendants have failed to rebut.

Plaintiff, an automobile paint sprayer, was ill for approximately one week. He claims that as a result of his indisposition he lost a week’s earnings amounting to the sum of $44.00; that he paid his physician, Dr. Gillaspie, $39.00 for professional services and the Hotel Dieu the sum of $28.50, making a total of $111.50. These charges appear reasonable, were adequately proved and were not disputed by the defendants. In our opinion the record amply sustains plaintiff’s contention that he suffered severe and agonizing abdominal pains incurred by virtue of having consumed one-half. of the contents of a bottle of coca-cola containing iodine which resulted in severe acute gastro enteritis, accordingly, we are of the opinion that $500.00 is a reasonable award for his pain and suffering under the circumstances.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of the plaintiff, Joseph M. Mayerhefer, and against the defendants, Louisiana Coca-Cola Bottling Company, Ltd., and Hartford Accident and Indemnity Company, in the sum of $611.50, with legal interest from judicial demand until paid and for all costs.

Reversed.


author: McBRIDE, Judge.

text:
    AMERICAN SUGAR REFINING CO. v. W. L. RICHESON & SONS, Inc.
    No. 19364.
    Court of Appeal of Louisiana. Orleans.
    March 27, 1950.
    Deutsch, Kerrigan & Stiles and Rene H. Himel, Jr., New Orleans, for plaintiff and appellant.
    Jones, Flanders, Waechter & Walker, New Orleans, for defendant and appellee.
   McBRIDE, Judge.

Plaintiff, American Sugar Refining Company, has appealed from a judgment dismissing its suit against defendant, W. L. Richeson & Sons, Inc.

The petition alleges that on or about November 22, 1946, there were discharged from the S.S. Coastal Observer onto the First Street dock in the City of New Orleans, 3443 bags of sugar belonging to plaintiff, and that defendant, on or about said date, by verbal contract, undertook, for a stipulated price, to load plaintiff’s sugar into railroad cars and to consign the same to plaintiff at its Chalmette refinery. It is further averred that when the cars reached plaintiff’s refinery there was a shortage of 57 bags of sugar, and by this suit plaintiff seeks to recover from defendant the sum of $1215.24, the alleged value thereof.

The defendant admits that it had agreed to provide freight cars and the labor to load the sugar belonging to American Sugar Refining Company, which was to be discharged from the steamship, but averred that under the agreement it was obligated to load into the cars only that sugar pointed out to it and identified as belonging to plaintiff. Defendant contends that all of its obligations under the agreement were completely fulfilled.

The record discloses that on or about November 22, 1946, the vessel was scheduled to berth at the First Street wharf and discharge a cargo of raw sugar, which came from the same point of origin, a portion of which was consigned to the American Sugar Refining Company. The District Freight Agent of plaintiff called defendant’s office and advised defendant as to the “approximate” amount of sugar expected, and requested defendant to perform the usual and customary car-loading service, which consists of arranging for freight cars and the necessary labor at the whai'f to 'load the raw sugar into the cars; and consigning them to plaintiff’s refinery. The arrangement was identical with previous transactions between the parties.

The vessel arrived on schedule, and its cargo was discharged onto the First Street wharf. Only a relatively small amount of the cargo belonged to plaintiff — the major portion was owned by and'consigned to another sugar refinery.

The prevailing procedure in handling raw sugar at this port is shown by the evidence. The bags are taken from the vessel by stevedores by means of slings, are conveyed in hand trucks to the public weigher’s scales, and are then wheeled away in the hand trucks and stacked by the stevedores on the wharf wherever there is room. After the bags are thus stacked on the wharf, the car-loading contractor picks them up and places them in freight cars which have been secured and spotted on the wharf, and the cars are then consigned to the owner of the sugar.

The evidence shows that there were no identifying marks on the bags by which it was possible to determine to whom any particular bag of sugar belonged. At the particular time when the cargo was unloaded from the S.S. Coastal Observer, the wharf was in a highly congested state, this condition resulting from the fact that the vessel carried more than 20,000 bags of sugar, and besides that belonging to plaintiff, there were some 17,000 bags in the shipment consigned to another refinery.

Plaintiff’s witnesses admitted that defendant could not identify, through any markings on the bags, which sugar it should handle for the plaintiff, and that someone had to point out to defendant which bags to pick up on the wharf and load into the railroad cars. It was likewise admitted that defendant’s duty was fulfilled when it completed loading all of the sugar thus pointed out. The chief checker of the American Sugar Refining Company, who was on the wharf when defendant completed the loading of the freight cars, stated that as far as he knew defendant removed from the wharf and loaded into the cars all sugar belonging to American Sugar Refining Company.

Whether defendant contracted to handle and load 3443 bags, as plaintiff contends, or whether defendant undertook to handle and load only such sugar as was pointed out to it and identified as belonging to American Sugar Refining Company, makes no difference, for in either event we fail to see how there could be any liability in defendant. There is no doubt that all of the bags which had been segregated as belonging to plaintiff were loaded into the freight cars by defendant. While the stevedore had. instructions to stack the bags consigned to plaintiff in specifically designated bays, and to separate them from other sugar on the dock; it has not been shown that 3443 bags actually were placed in the designated bays, or that this number of bags were set apart as being the sugar consigned to plaintiff. Cieutat, plaintiff’s checker, admitted, on cross examination, that he checked the sugar at the scales, but that neither he nor any of plaintiff’s representatives followed the employees of the stevedore to see that the bags were stacked in the-proper place, and that it was possible that sugar coming off the vessel could have been placed into the wrong pile.

The theory of plaintiff’s case is, and plaintiff contends, that the duty rested upon defendant to have counted the bags, and to have made certain that 3443 bags were taken from the wharf and placed into the freight cars. We cannot agree with this contention. When defendant was engaged to handle the shipment (which was before the arrival of the vessel), it was given only an estimate as to the number of bags of sugar expected to arrive, and this estimation was given so that defendant could make proper ■ provision for the necessary labor and the requisite number of freight cars. Defendant made these arrangements, and all of the bags segregated as belonging to plaintiff, and identified and pointed out as being plaintiff’s were loaded into the cars and consigned to the American Sugar Refining Company. The evidence convinces us that this was all defendant was required to do under its contract, and that defendant’s duties were fulfilled in the usual and customary manner prevailing at this port.

For the above reasons, the judgment appealed from is affirmed.

Affirmed.


author: PER CTJRIAM.

text:
    PALMER v. PENTON LUMBER CO., Inc.
    No. 3205.
    Court of Appeal of Louisiana. First Circuit.
    March 28th, 1950.
    Gahagan & Pierson, Natchitoches, for appellant.
    Edward K. Alexander, DeQuincy, for appellee.
   PER CTJRIAM.

Plaintiff, in his application for rehearing, contends that we erred in granting him compensation for eight weeks rather than four hundred weeks because the operation had not been successful. In answer to his contention, plaintiff overlooks the fact that he had failed to prove to our satisfaction that the two abnormalities which existed at the time of the trial of his suit were the result of the accident or the operation. He also failed to prove to our satisfaction that these two abnormalities rendered him disabled within the terms of the compensation act. Act No. 20 of 1914, as amended.

However, applying the facts of this case in a very liberal way, we were of the opinion that justice would be better served by allowing him compensation for the additional eight weeks in view of the testimony of Dr. Drez.

Application for rehearing refused.