author: LeBLANC, J.

text:
    No. 903
    First Circuit
    PARKER v. WEBER-KING MFG. CO.
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)
    (March 30, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Jackson & Smith,- of Shreveport, attorneys for plaintiff, appellant.
    Woosley & Cavanaugh, of Leesville, attorneys for defendant, appellee.
   LeBLANC, J.

The defendant appeals from a judgment in .the district court condemning it to pay plaintiff compensation at the rate of $20 per week for a period of 400 weeks. The judgment also fixed the fees of the experts who testified in the case as well as the fees of the attorneys for plaintiff.

The injury for which plaintiff recovered compensation was a hernia on the right side which was caused by straining while he was engaged in the performance of his duties as master mechanic for the defendant, straightening out an axle of one of their trucks.

. The facts in the case are not disputed, the main defense being that plaintiff is not totally incapacitated from performing work of a reasonable character, as the injury he suffers from is what is referred to as an incomplete hernia as distinguished from a complete hernia. Defendant' also urges in the alternative, that should it be finally decreed that plaintiff is entitled to compensation, the evidence shows that at the time he stopped working, which was two months after his injury, he was being p'aid $21 per week, and therefore, his compensation should be based on that wage, 65 per cent of which is $13.65, and that it should be limited to 300 weeks as for partial disability.

We are not aware of any distinction ever having been made between a complete and an incomplete hernia for the purpose of considering an award for compensation to an employee. In 1926, the legislature in amending certain sections of the original compensation statute of 1914 made special provisions regarding claims for disability arising out of hernia. See paragraph 17 under sub-section (d) of paragraph 1 of section 8 of Act No. 85 of 1926. But even then, with all the effort that appears to have been made to regulate this class of claims, which sometimes appeared of a questionable character, the legislature drew no distinction between complete and incomplete hernias. The attempt made by the legislature to go even as far as it then did, must not have proved very satisfactory, as in the subsequent amending act, we find those provisions entirely omitted, and they are therefore no longer in effect. See Act No. 242 of 1928, which amends and re-enacts section 8 of the original compensation statute as already amended by various other statutes including Act No. 85 of 1926.

We know that medical science recognizes a difference between a hernia that is called complete and one that is referred to as being incomplete. That is shown by the testimony of the doctors who testified in this case. They all state, however, that whether complete or incomplete, it is a hernia nevertheless and renders the patient disabled to do work that requires straining and heavy lifting. One of the doctors, Dr. W. R. Reid, in making the comparison refers to them as reducible and irreducible hernia instead of complete and incomplete. The term he uses portrays the condition perhaps a bit better to our minds for we understand the incomplete or reducible hernia to be one which can be reduced and made to go back into the abdominal cavity and can be kept there by use of a truss, whereas the irreducible or complete hernia cannot be pushed and kept back, because the rupture in the abdominal wall is too large. In cases of complete hernias, what Is referred to hy the doctors as “strangulation” takes place, and that becomes ' a serious condition, because then the hernia comes through the outer ring and the hlood circulation is then cut off. It appears, however, that if a reducible hernia is not kept in the abdominal cavity hy means of the truss, it will, on the least bit of strain, become strangulated with very serious resulting effects. One of the doctors testifying in behalf of the defendant in this case, says that there is no doubt that if the plaintiff had not been wearing a truss and had been doing his regular work, he would in time have had a complete hernia.

We have not found, nor have we been referred to, any decision of any court holding that there was any difference between a complete and an incomplete hernia as relates to the fixing of an employee’s compensation, and as it is not disputed in this case that the plaintiff is suffering from a hernia, and that it resulted from an accidental injury sustained while he was engaged in the course of his employment, we are of the opinion that he is entitled to recover.

The evidence regarding his ability to do work of some character is a bit conflicting. We think, however, that plaintiff has shown by a preponderance of testimony that he is unable to do the same kind of work he was engaged in at the time of his injury when he was earning wages which entitled him to the maximum amount of compensation under the statute. The light work he was given after his injury and for which he earned a much smaller wage, appears to us, to have been an act that was prompted' by the munificence of a sympathetic employer as a reward for the efficient and faithful service of a good employee. We do not believe-that the acceptance by the latter of that kind of employment should defeat his right to recover compensation based on the average weekly wage he was receiving at the time he was injured, and which it was shown he was fully capable of earning. The testimony of the several doctors satisfies ' us that he is unable to do that character of work, and that being so, his case must be considered as one of total disability for which he is entitled under the provisions of the act of 1928 to be paid during the period of disability, not exceeding 400 weeks.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. 917
    First Circuit
    VINTON PETROLEUM CO. v. L. SEISS OIL SYNDICATE, INC.
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)

      C. R. Liskow, of Lake Charles, attorney for plaintiff, appellee.
    Moss & Siess, of Lake Charles, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff company and defendant syndicate had each a derrick near the dividing line between their oil leases standing at a distance of about seventy or eighty feet from each other. Plaintiff’s derrick was constructed of steel, that of defendant of wood.

Jesse Burton was employed by defendant to remove this wooden derrick of defendant and to replace it by another. While Burton was endeavoring to remove it, the derrick broke about forty feet above its foundation and its top fell on the crown of plaintiff’s derrick, completely demolishing it.

This suit is brought by plaintiff for $1,275 for the destruction qf its derrick with legal interest, for which judgment was rendered in its favor.

Defendant appeals.

Plaintiff alleges that defendant company had allowed this wooden derrick to stand on its property for a long period of time, without being repaired; that it had rotted, was decayed and dangerous; that when defendant attempted to remove it from its location, because of its rotten and decayed condition, it fell on plaintiff’s steel derrick and wrecked it completely.

In the alternative, plaintiff avers that if the destruction of defendant’s derrick was not caused by its decayed condition, it was allowed to fall on plaintiff’s derrick through the lack of care and negligence of defendant in endeavoring tb remove it.

After denying all of the foregoing allegations, defendant company answered that Jesse Burton, who undertook to remove the derrick, under its agreement with defendant, was an independent contractor.

The rules of law governing the issues presented under the pleadings are simple enough, the difficulty arising as usual in correctly applying them to the facts of the case.

We will consider the questions submitted in their reverse order and will therefore, first consider the defense as to whether defendant can shield itself from responsibility under its plea that Burton was an independent contractor.

The proof shows that the contract for the removal of defendant’s derrick was made between Burton and Savoie, the representative of defendant company.

There were only two ways, the evidence shows, that could be followed in removing the derrick. One was by tearing it down, and the other was by pulling it down.

Burton says the derrick was in a condition that made it dangerous to tear it down.

Savoie, field representative of defendant who entered into the contract with Burton, as hereinabove stated, says before entering into the agreement they both examined the derricks, and looked at the distance “he had to move the other derrick and where this one (meaning defendant’s derrick) would be throwed.” He says also that he does not remember that he spoke to Burton about tearing the derrick down. “The understanding,” he says, “was to throw it down and clear just enough of the foundation to put the new derrick in place.”

That 'understanding qr agreement constituted the contract between defendant company and Burton. It is clear from that agreement that he was to “throw down” the derrick and was not to tear it. The method of its demolition was therefore not left to the choice or discretion of Burton as it had been provided for in the contract itself. As the particular method which was to be pursued in demolishing the derrick resulted from the direct act of defendant, as expressed in its agreement, Burton was not an independent contractor; and defendant cannot find shelter from responsibility under that defense. Faren, Tutrix, v. Sellers & Co., 39 La. Ann. 1011, 3 So. 363, 4 Am. St. Rep. 256.

The next question is as to whether the damage resulted from the decayed or rotten condition of defendant’s wooden derrick.

This part of plaintiff’s complaint is based on the provisions of article 2322, Civil Code, which says:

“The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it,” etc.

Burton testifies that sometimes derricks are dismantled a piece at a time, but that this derrick was old, and that • he “hardly ever took one down that way when it is rotten.”

The evidence shows that this wooden derrick was five or six years old; that derricks of that age are sometimes repaired, and then go “on seven or eight years” before they are “discarded” altogether.

As it had been standing in the oil field some five or six years, it is not rash to say that decay had obviously set in when defendant undertook its removal. The fact is that after the derrick had fallen, Gribble, production foreman for plaintiff company, visited the scene of the accident, and says that he picked up pieces of the derrick which “were very rotten.” More than that, Savoie testifying for defendant company, says that a few days before the derrick was pulled down he worked on it on a tubing job. He was asked: “Didn’t that work convince you that the derrick needed removing before it was rotten?” He answered: “It did either removing or repairing. I knew it was time to have something done with it.” Then he goes on to add that a wooden derrick after eight or nine years would have “something rotten about it.”

It was shown that a cable was attached to the top of this derrick, which, with the protection of guy wires adjusted by Burton, was pulled on defendant’s side of the oil field. If it had been a new derrick or not rotten, the proof shows it would have fallen on that side and that no damage would have resulted to plaintiff’s derrick. Instead of following the pull given to it, the derrick broke in two, about thirty feet above its foundation and its top fell on the other derrick causing its demolition. The cause of the break and its toppling over on plaintiff’s derrick, the record shows, was due to its decayed or rotten condition. The way it fell is a circumstance which strongly corroborates the testimony of Burton and dribble that it was rotten, justifying the remark of Savoie, witness for defendant, that he “knew it was time to do something with it.”

The conclusion of fact, from the foregoing considerations, is therefore inescapable that the derrick was decayed or rotten at the time Burton attempted to remove it.

In the case of Rock v. American Const. Co. et al., 120 La. 831, 45 So. 741, 742, 14 L. R. A. (N. S.) 653, the court recognized the principle of respondeat superior as not extending, as a rule, to cases of independent contracts. In recognizing that doctrine, the court however, quoting from Dillon, Municipal Corporations, and other authorities, said it was important to bear in mind that the general rule above cited in reference to independent contractors “does not apply when the contract directly requires the performance of a work intrinsically dangerous, however skilfully performed. In such case the party authorizing the work is justly regarded as the author of the mischief resulting from it, whether he does the work himself or lets it out by contract.”

Here, although the work was perhaps skilfully performed, it was evidently “intrinsically dangerous,” as it appears that the derrick was rotten; that Burton considered that its removal was dangerous to the workmen; that the defendant company so viewed the situation as its contract maáe through Savoie provided that in removing it, the derrick should not be torn down but should be pulled down.

Not only was the derrick intrinsically dangerous, but its precarious condition was known to Savoie, field representative of defendant, who said that, in tubing the well over while it stood a few days before it toppled over, he “knew it was time to have something done with it.”

Even if Burton was an independent contractor, as the contract required the performance of a work intrinsically dangerous, though skilfully performed, defendant having authorized the work must “justly be regarded as the author of the mischief resulting from it.”

Defendant’s counsel in their brief say that when an independent contractor is employed, the contractee is not responsible, unless the work is inherently dangerous, which we find to have been the case for the reasons hereinabove stated. Counsel further say that if the work could be done without probable injury except for negligence in the manner it is done, no liability attaches to the contractee. In so far as is disclosed by the record, Burton was not chargeable with negligence in the method he pursued in dismantling the derrick, as he was following the terms of his contract with defendant company. Counsel further say that the cause of the damage lies in the fact that the cable was negligently attached to the derrick, without which the accident would not have happened. The record does not support that contention, but shows that the cause of the damage was due to the decayed and rotten condition of the derrick and to no other cause.

Counsel for defendant have submitted a well-prepared and able brief, but after a careful study of the evidence and the law applicable thereto, we are unable to find any error in the judgment appealed from, which is therefore affirmed with cost.-


text:
    No. 915
    First Circuit
    BROWN v. INDUSTRIAL LUMBER CO.
    (March 8, 1932. Opinion and Decree.)
    Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   LeBLANC, J.

This is a compensation suit in which the plaintiff, a section track foreman, was injured when he was thrown from the motorcar in which he was riding as it collided with an automobile. He fell on the track rails and received rather severe injuries to his right wrist and right knee. He was being paid a wage of $4 per day. The accident and nature of his injuries are not disputed. In fact, plaintiff was paid compensation at the rate of $1.5 per week from November 5, 1929, the date of his injury to September 13, 1931, when it is alleged by the defendant he had entirely recovered. His claim here is for four hundred weeks’ compensation as for total disability, less of course the amounts already paid, and for attorney’s fees. He also prays that the fees of the expert witnesses be fixed at not less than $25 for each and that they be taxed as costs.

From a judgment rejecting his demand, he has appealed.

The petition sets out various injuries about the body and also to the heart and kidneys which it is alleged plaintiff suffered as a result of the accident, hut these are not mentioned in the testimony hy any one, and we take it that the disability he complains of is limited to the injuries to his knee and wrist, and the real issue is whether or not his present condition is the result of the said injuries or whether it is not due to natural causes and those infirmities incidental to advancing old age.

The testimony of the plaintiff himself and the two lay witnesses who testified for him are of very little assistance in determining the real issue involved, except it he to the extent that it shows that prior to the injury he was not aware of any impairment of health and was able to do more work than he presently can. We have therefore to rely in a large measure on the testimony of the five physicians, who testified in the case for a solution of the question presented. Of the five, one was called by the plaintiff and the four others by the defendant. All five are regarded by the district judge as experts who are very competent and high-class men. They all, including Dr. Hargrove, who was called by plaintiff, agree in their statements. that the plaintiff’s right knee no longer showed any effects of the injury. We quote from Dr. Hargrove:

“He gave a history of having had an injury some months ago and complained of having stiffness in his right wrist and some trouble with his right knee; I examined both; I found no trouble that I could determine in the knee, but some stiffness in the wrist.”

He described the condition of the wrist more minutely by saying that there was “some retarded motion, both front and rear,” and he attributed it to trauma which he connected with the injury presented in the history of the case. On this showing, therefore, all discussion as to there being any connection between the accident and injury to the knee and the alleged disability can be eliminated, and the issue is further narrowed down to the question as to what must we attribute the condition in the wrist.

Besides-.the opinion of Dr. Hargrove, we find Dr. McKinney stating that there is a slight possibility of injury to the wrist. He testifies, that he found “no evidence of injury to the wrist, except the slight possibility of an injury on the lower anterior articular border of the radius — slight possibility.” Further on, he adds that it is very doubtful whether or not there is any injury.' Like two of the other experts called by defendant, Dr. McKinney was of the opinion that .the plaintiff was suffering from arteriosclerosis, commonly referred to as a hardening of the arteries. He, as well as they, based this opinion on the lime or calcium deposits in the arteries as revealed in the X-ray plates introduced in evidence. Dr. Holcombe and Dr. Rand, the two other experts referred to, are very positive in their conclusions, that the plaintiff presented a case of marked or advanced hardening of the arteries which they could not connect with the injury he had suffered more than a year before the time they examined him. Dr. Holcombe was pronounced in his views that if there was any injury at all at this time in the wrist it was pathological and not traumatic. Drs. Holcombe and Rand both state that it is impossible to point out the specific cause of hardening of arteries. It is usually associated with old age, high blood pressure, Bright’s disease, and found among people who have focal infections and poor elimination. All the doctors seem to think that the plaintiff is a man of premature old age. Even Dr. Hargrove, his own witness, states that although his age is fifty-seven years, he presents the appearance of a man about sixty-five. Dr. Holcombe found his blood pressure to be excessively high and that he had a focal infection in the mouth which he associated with four remaining diseased teeth. “In making a resume of this case,” he said, “I think it is a case of pathological destruction, which has been superinduced by his infective processes.”

In addition to the testimony of the experts. who examined plaintiff at varied times a good many months after his injury, we have that of Dr. Mangham who attended him and treated him immediately following the accident. His examination at the time showed that the plaintiff had contusions to the tissues of his knee and wrist joints, with much swelling, which subsided in two or three weeks. Plaintiff lived at Oakdale and wanted to return to his home. He was permitted to do so but instructed to remain in bed for a time, and then to report to the doctor once a week, which he did for several months, after which time he was considered as having recovered from any disability and was taken off of the compensation list. Dr. Mangham was of the opinion that he was then suffering from hardening of the arteries.

We fail to find in the testimony of any of the doctors that hardening of the arteries is ever connected with injuries resulting from trauma. Dr. Holcombe leads us to believe on the contrary, that there can be no connection between the two. Asked whether the calcium deposit on the arteries found in plaintiff’s case would have been brought about by the condition he found, regardless of any trauma, he answers that it would and adds: “No calcium deposits are acquired in any artery from trauma.” In view of this statement and the lack of any positive proof that it is a condition which even might have been superinduced by the injury plaintiff received, we do not think that this is a case where the doctrine of a pre-existing or latent disease being activated by the injury so as to produce the disability, is to be applied.

The learned trial judge gave careful consideration to the case as appears from the ably prepared reasons for judgment submitted by him and with which we agree fully.


author: ELLIOTT, J.

text:
    No. 923
    First Circuit
    WILLIAMS v. LAKE CHARLES STEVEDORES, INC.
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)

      Hawkins & Pickrel, of Lake Charles, attorneys for plaintiff, appellee.
    Moss & Siess, of Lake Charles, attorneys for defendant, appellant.
   ELLIOTT, J.

John Williams, a longshoreman, while employed by and working for Lake Charles Stevedores, Inc., on the docks at Lake Charles, received on December 9, 1930, an accidental injury to his foot and ankle causing him a very serious, painful, and lasting injury. He claims of Lake Charles Stevedores, Inc., compensation at the rate of $20 per week for a period of 125 weeks on account of his injury, less $110 already paid.

Defendant denies liability, but plaintiff’s right to compensation is not questioned by evidence. The dispute has to do with the method which should be used in computing the amount -due him and the extent of the disability which plaintiff suffers on said account.

The lower court fixed his compensation at $13.08 per week for 125 weeks, less $110.11 received, reserving to each party the right to apply for a reopening of the case any time within six months. Defendant has appealed.

The injury which the plaintiff sustained is at the place where the foot and ankle join, but has affected both the foot and the ankle. A number of physicians gave testimony concerning the injury and the probable duration of plaintiff’s disability due to same. Their opinions on the subject are not the same; consequently the observations of the court concerning plaintiff’s condition, as stated in his written opinion, is welcomed by us as a very -important help in arriving at a satisfactory conclusion.

The duties, of a longshoreman require physical strength, and the work cannot be performed except by manual labor such alifting, , walking, and sometimes standing on the feet. Dr. Holcombe gave it as his opinion that plaintiff was suffering pain and was not in any condition to perform any kind of labor which usually falls to the lot of a longshoreman; he was a total disability in that respect. The doctor had reference to the time of the trial, which was about seven months after the injury.

Plaintiff is a negro laborer, not qualified to do any other kind of work except manual labor, and his business is that of a longshoreman. Therefore, if he cannot lift weights, walk fast' or stand on his feet, his disability is total in so far as the work of a longshoreman is concerned. There is no other kind of manual labor which he can do, without the use of his foot, and, as he suffers excruciating pain when he walks or stands on his foot, there is nothing he can do in his present condition.

Dr. McKinney says:

“It is evidently impossible for plaintiff to stand on his foot and work without a great deal of pain. Plaintiff is a permanent disability; his foot will never be normal again.”

Dr. Tutem gave testimony on the subject along the same line as did Dr. Holcombe and Dr. McKinney.

Dr. Watkins gave testimony more favorable to the defendant on the subject of plaintiff’s incapacity, but, when his testimony is considered as a whole, it leaves us under the impression that plaintiff, in . his present condition, is, in his opinion, a total disability, and no time can be fixed when his. condition will be such that he can resume his usual vocation.

Dr. Kushner, called on to treat plaintiff immediately after his injury, had him under his care about 4 months. He then discharged him, and, speaking of his condition at the time of his discharge, says:

“Discharged him with the notation — he stated he had some pain. At that time the ankle was not swollen; he was wearing a brace.
“Q. Doctor, did you consider him entirely well and able to go back to work at the time you discharged him?
“A. I considered he had some disability. I believe most of it was due to his blood condition, if not all of it, due to syphilis, not on account of the injury.”

In response to question as to whether there was any difference in the condition of plaintiff’s foot then and at the time he was discharged, Dr. Kushner said:

“Seemed to be more swollen then, than at the time I discharged him.”

He inferentially states that plaintiff’s ' present condition is not due to injury, but to the syphilitic condition of his. blood, and that he would have recovered had it not .been for that condition. The evidence shows that plaintiff’s syphilitic condition existed previous to the injury. It was shown that it was dormant, inactive, and was not giving any trouble at all, and it might have never given any if it had not been for the injury in question. The most that can be said on the subject is that plaintiff’s, syphilitic condition retards his recovery.

The physicians were asked concerning the percentage of incapacity which plaintiff suffers, and in their answers they estimate the percentage as if his disability could be calculated in that way. One places it at 10 or 15 per cent; others as high as. 25 per cent. The defendant urges that we should be governed by this percentage of incapacity in fixing plaintiff’s compensation.

We cannot adopt such a method and do justice to the plaintiff, because, according to the evidence, plaintiff suffers pain all the time and it becomes excruciating when he stands on his. feet or walks. No time can be fixed when he will be free from pain and suffering, due to his injury, nor able to resume the use of his foot, absolutely necessary in the performance of his work as longshoreman, or to do any other kind of manual labor that he is qualified to do. It would be unreasonable to hold that plaintiff must work in the condition he is now, and has been constantly since the time he was injured. He must be regarded for the time being as if he had suffered the loss of his foot, and be compensated accordingly.

As for the right of either party to apply for a reopening of the case at the end of six months, we approve of that part of the judgment. The parties would have that right, however, as a matter of law, without any reservation on the subject.

The next question is, How should plaintiff’s compensation be computed? The situation in the matter of the employment of the plaintiff is exactly the same as existed in the case of Mrs. Anna Gousoulin v. Lake Charles Stevedores, Inc., 19 La. App. 96, 139 So. 747, this day decided. We quote the lower court:

“As a member of the Longshoreman’s Union and under the agreement with the defendant, Williams worked when and only when, there were ships in port to be loaded or unloaded. Ships came in at irregular times and Williams had to hold himself in readiness to work 7 days a week and at any time during the day or night. He usually had several hours notice of the arrival of a ship and of the fact he was needed to work. Had he not responded for work when called he would have lost his job, and he was therefore unable to work at any other job when ships were not in port.”

Plaintiff worked by the hour and was paid according to the number of hours that he worked. The amount of his wages per hour depended on whether the ships on which he was working were ocean-going or coastwise vessels. He got extra wages for overtime. He worked consecutively 9.43 weeks immediately preceding his injury. During this period of time he earned a total of $189.90, which was an average of $20.13 per week. Using this as a basis, 65 per cent of the same amounts to $13.08, which, as found in the lower court, is the compensation to which the plaintiff is. entitled, subject to a credit of $110.11 paid. The judgment appealed from is correct.

Judgment affirmed. Defendant, appellant to pay the cost in both courts.


text:
    No. 931
    First Circuit
    BOUDREAUX v. ROSSEN
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)
    (March 30, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      C. A. Blanchard, of Morgan City, attorn ney for plaintiff, appellee.
    Rene Himel, of Franklin, and Walter T. Gilmore, of Morgan City, attorneys for defendant, appellant.
   LeBLANC, J.

Plaintiff was employed by the defendant in the latter’s moss gin in Morgan City, in the parish of St. Mary. He alleges that on or about November 14, 1930, while in the performance of his. duties as such, in the act of feeding moss to the gin, his left hand was accidentally caught in the rollers of the gin and severely injured. He seeks to recover compensation as for total disability for a period of 400 weeks at the rate of $6.82 per week; the amount being based on an average weekly wage of $10.50, which is at the rate of $1.75 for a 6-day week. In the alternative, he pleads, first, that, should his disability be decreed to be partial instead of total; he recover for a period of 300 weeks; and, secondly, that, should both of those demands be denied, he recover compensation for 150 weeks as for the loss of his hand.

Plaintiff made allegations in his petition under which, had hé complied formally with the provisions of Act 156 of 1912, he was. entitled to litigate his cause in forma pauperis. Section 2 of that act requires that a plaintiff, in order to exercise the rights granted under it, shall file with his petition his own affidavit declaring that, because of his poverty and want of means, he is unable to pay the advance costs or other costs as they accrue, or to furnish bond for the payment of same. In addition thereto, he must supply the affidavit of a third person declaring that he knows the party and knows his financial condition, and that he firmly believes that he cannot pay the costs in advance or as they accrue or give bond to protect them.

Instead of furnishing these affidavits, the plaintiff merely swore to the truth of the allegations of his petition, among which were those declaring his inability to pay costs or furnish bond. He did, however, furnish the affidavit of two other persons which substantially met the requirements of the act. The district judge signed an order permitting him to prosecute his suit in forlna pauperis, whereupon the defendant ruled him into court to show cause why the order should not be set aside. On a hearing of the rule, the court held that there had not been a compliance with the mandatory provisions of the statute, but, as there appeared to have been an honest effort on the part of plaintiff .to do so, he was given 10 days within which to make the proper affidavit in accordance with the provisions of the act. Plaintiff reserved its rights against further proceedings under the form in which the defects were cured, and in this court asks that the case be remanded and the action be relegated to one in which the plaintiff had to pay the necessary costs or furnish proper bond therefor.

Counsel for plaintiff assimilates the requirement of an independent affidavit in an action of this kind to the form required in a mandamus proceeding, in which it was held in the case of Porteau v. Gluck, 149 La. 653, 89 So. 886, that the oath required under article 840 of the Code of Practice could not be supplied by a verification of the allegations of the petition by plaintiff’s attorney, as the Pleading and Practice Act, No. 300 of 1914, did not have the effect of repealing these provisions of the Code of Practice. The court states in its opinion in that case that there is no indication in the Pleading and Practice Act of the intention of the Legislature to repeal the rigid requirements of the Code of Practice for obtaining a writ of mandamus or other supervisory writ. Conceding that the ruling in that case as applied to a mandamus proceeding applies with equal force to a proceeding filed under the Pauper’s Act of 1912, and .that neither was. the latter act repealed by the Pleading and Practice Act, it is observed that the facts here are not the same as they appeared in the case cited. There, the verification to the petition had been made by the plaintiff’s attorney, whereas here it is in the form' of an affidavit made by the plaintiff himself. Here, moreover, plaintiff filed the other affidavit required by the act, of not only one, but of two third parties, and this last affidavit, although not in the exact language of the act, contained the substance of what is required. Be all of that as. it may, however, the district judge, in the exercise of what he believed to be his discretion, ■granted plaintiff time in which to supply the proper affidavits which cured any defect that may have existed, and we are not prepared to say that he made any abuse of that discretion, especially when it is considered that this is a compensation suit in which the trial judge exercises greater discretion than in ordinary proceedings, and is not bound by any technical or formal rules of procedure. The ruling of the court on this matter is affirmed.

Coming now to a consideration of the case on the merits, we find that there is no doubt but that plaintiff was injured on November 11 or 14, 1931, while he was feeding moss to defendant’s moss gin. The sole question involved, as we see it, is whether or not his disability in his hand is a result of the injury, or did it exist before.

Plaintiff’s disability, if any, is due to an ankylosis of the index and little fingers of the left hand. In this case, it was the second joint of the index and little fingers that were involved. We are given to understand that an ankylosis is a stiffening of the joint, and usually appears in rheumatic conditions or in gout.

Plaintiff’s wife, his daughter, son and a lady named Mrs. Theresa Tourere, say that his left hand was entirely free of injury or showed no defect before the accident of November, 1930. Dr. J. H. O’Neil, to whom he was taken for attention following the accident, and who treated his hand, states, that the fresh injury consisted of a fracture of the first phalange of the ring finger, lacerations of all the flesh between the second phalange of all his fingers, bruises between the joints, and contusions and lacerations in the palm of the hand. He observed the ankylosis, in the second joints of the index and little fingers which he says looked to him as the result of prior injuries; or perhaps of rheumatism. The defendant, J. W. Rossen, his son, Wyatt Rossen, and a witness named John F. Davidson, all testify to having seen plaintiff’s left hand before the accident, and that there was some defect in it.

In 1920 plaintiff had employed Mr. W. T. Gilmore as his attorney to bring a compensation suit for an injury to the index finger of his right hand. Mr. Gilmore testifies that in going over his case with him the condition of his left hand was discussed with the view of ascertaining whether it interfered in any way with his handling of an axe, as at that time plaintiff worked in the swamps,' and he told Mr. Gilmore that it did. Mr. Gilmore is positive that he observed the left hand, and is equally as positive in his recollection that the index finger was stiff and the little finger crooked. Plaintiff informed him then that he had had a bone felon on the index finger, and that he had also had the third and fourth fingers injured by a saw. Asked to state what difference he saw in the condition of his hand as compared to the time he was consulted by plaintiff, he answers that it is practically the same. Plaintiff does not rebut a word of all this testimony.

With what evidence we have already referred to, plaintiff has failed, in our opinion, to show with that legal certainty required that the disability he claims is the result of his injury of November, 1930. He relies a great deal, as seems to do the trial judge, on the testimony of Dr. Guy Aycock, who states that the condition shows a tearing of the soft structure in the palm of the hand and a stiffening of the tissues on healing, which produced an ankylosis of all four fingers. He finds plaintiff’s hand useless to him for any purpose except to balance things, saying that “he cannot grip anything of ordinary size such as a broom, or hoe, spade or anything of that kind.” On cross-examination, Dr. Aycock states that he examined the plaintiff’s hand about a week before the day on which he was testifying, and which was about seven months after the accident at the moss gin, and then he says that he “picked his hand up and looked it over casually.” Plaintiff, it seems, was on his way to see Dr. Crawford about his hand, and Dr. Aycock saw him as he was coming out of the hospital where he thought he would find Dr. Crawford. Further in his testimony, Dr. Aycock makes it plain that it is his opinion that the condition of plaintiff’s hand might be caused 'from an old injury. It may be difficult to reconcile some of the features of Dr. Aycock’s testimony with that of Dr. O’Neil, but, with all due deference to Dr. Aycock, and entertaining a high regard for his opinion, we nevertheless believe in this, case .that it is fairer and safer to accept the testimony of the doctor who saw the patient immediately following the injury and treated him until it was entirely healed, rather than the opinion of the one who only casually examined him several months thereafter.

Dr. O’Neil describes the treatment he administered to the plaintiff, and says that he discharged him after four weeks. After that, we learn from plaintiff’s son that he cut stove wood with him, using an axe without much restraint, as he cut from three to four cords of wood in 6 or 7 days, cutting as much as three-quarters of a cord in one day. He was paid $1.75 per cord, and, according to his wife’s testimony, quit only because Mr. Clement, for whom he was cutting, did not need any more wood.

It is shown, moreover, that plaintiff had been offered his same job, or any other, by the defendant, at wages of $1.50. This he admits, and says that he declined to take the work, not because he felt that he could not feed the moss gin, as he himself says that “he guessed he could, if there was anything in it.” “But,” he adds, “they only offered me $1.50.” As the offer at $1.50 per day was a cut of only 25 cents', it strikes us that it was only the normal reduction that was being made in laborers’ wages generally, and did not justify plaintiff’s excuse not to go back to work.

These further considerations confirm our views, as already stated, that plaintiff has failed to show, by a preponderance of evidence, a disability arising out of the accident of November, 1930, except for the period of four weeks, during which he was treated for his injury by Dr. O’Neil. It is too well established to require the citation of authorities to the effect that a compensation suit presents no exception to the general rule that, in order to recover, a plaintiff must prove his case to a legal certainty. The Supreme Court, in the case of Haddad v. Commercial Motor Truck Co., 150 La. 327, 90 So. 666, 673, on rehearing, with Mr. Justice Provosty as organ, expressed its views very tersely, saying:

“A case must be made out to a legal certainty; this is elementary, and is as true in the case of a suit under the Workmen’s Compensation Act, like the present, as in any other. Piske v. Brooklyn Cooperage Co., 143 La. 455, 78 So. 734.”

To the extent that it allowed plaintiff to recover compensation for one hundred weeks, therefore, the judgment of the lower court was in error, and will have to be changed.

Plaintiff is no doubt entitled to compensation for the time that he is shown to have been under the doctor’s treatment and unable to do work. Defendant’s counsel concede in their brief that he is entitled to receive 3 weeks’ compensation. Dr. O’Neil discharged him, after 4 weeks’ treatment, as being able to go back to work. If his disability was for a shorter period than 6 weeks, it would seem that he is. limited to a recovery for 3 weeks, as, under paragraph 4 of section 8 of Act 242 of 1928, it is provided that, in cases where the disability is for a shorter period than 6 weeks, no compensation shall be paid for the first week after the injury.

Counsel for defendant contends, however, that the trial judge fixed the rate of compensation at more than it should have been, for, although plaintiff was paid a wage of $1.75 per day, it is shown that he was not employed every day of the week, working sometimes only 3 or 4 days. It is our opinion, however, that the nature of plaintiff’s employment contemplated regular work. He was not engaged in piece or task work as were some of the employees, in those cases where the courts made a distinction and applied a different rate of pay than was being claimed. The statute, Act 242 of 1928, p.. 361, paragraph 3, section 8, defines the term “wages” to mean “the daily rate of pay at which the service rendered by the injured employee is recompensed under the contract of hiring in force at the time of the injury. * * *”

As already intimated, we are of the opinion that the contract of hiring in this case contemplated regular work at the wage of $1.75 for a 6-day week, and therefore hold that the amount of average weekly compensation was correctly fixed by the lower court.

For the foregoing reasons, it is ordered, adjudged, and decreed that the judgment appealed from be now amended by reducing the period of compensation from the period of 100 weeks, beginning with November 14, 1930. to the period of 3 weeks, beginning with that date, and, as thus amended, that it be affirmed.


text:
    No. 937
    First Circuit
    McCULLOUGH v. BILLEAUD
    (March 8, 1932. Opinion and Decree.)
    Porteous R. Burke and Jacob S. Landry, of New Iberia, attorneys for plaintiff, appellee.
    J. C. Hollingsworth, of New Orleans, Mouton, DeBaillon & Davidson, of Lafayette, attorneys for defendant, appellant.
   ELLIOTT, J.

Earl McCullough, while driving his automobile on the highway going from Lafayette to New Iberia on the night of January 2, 1931, was struck by an automobilé driven by Charles. Billeaud, receiving in the collision serious and painful injuries, and his automobile was practically destroyed. He brought suit against Billeaud alleging his injuries and the loss of his automobile, as the result of the negligence of said Billeaud in driving on the highway, claiming of him $8,500 as damages on said account.

Billeaud, defendant, denies the negligence alleged against him; denies that he was negligent in any way; and avers that he was in no way responsible for the collision. He alleges alternatively, and in case the court holds that he was negligent, that the plaintiff was. also negligent, and that plaintiff’s negligence served to bring about the collision.

Denying, however, that he was at any fault, and averring that plaintiff was at fault for the collision, and that as the result of plaintiff’s negligence he sustained personal injuries, mental shock, and suffering to the extent of $1,000, and that his automobile was damaged to the extent of $94. He prays that plaintiff’s demand be rejected, and that he have judgment in re-convention against him for $1,094.

There was judgment in the lower court in favor of the plaintiff for $3,620.95. Defendant’s demand in reconvention was rejected. Defendant has appealed.

Plaintiff-appellee, answering the appeal,alleges that the amount allowed him in the lower court is not sufficient, and prays that it be increased to the amount claimed in his petition.

The evidence shows that Earl McCullough was. driving eastward in his automobile on the highway from Lafayette to' New Iberia on January 2, 1931. The hour is not definitely fixed by the testimony, but it was about 6 o’clock p. m. and dark. The plaintiff alleges that he was on the right-hand side of the highway going eastward, the direction in which he was going; that as he went forward his attention was attracted by four headlights showing ahead o£ him in the highway, which indicated two cars coming toward him, seemingly side by side, and distant about 100 or 150 yards ahead. As the on-coming automobiles appeared to take up most of the highway, the pavement of which was about 18 feet wide, he testifies that he reduced his speed to between 3 and 5 miles an hour, and swerved to his right so far that the right wheels of his automobile went out on the shoulder of the road, his left, remaining on the pavement; that he thus, went forward slowly until the automobile in his front, which was on the west side of the other on-coming car, passed the other one and swerved back to the right-hand side of the road in the direction it was going, which was west, and passed him in safety. But the other automobile following the one that passed him swerved as it came near him to the left side of the highway, which was the wrong side in the direction it was going, striking his automobile, inflicting on him serious personal injuries, causing him severe pain and suffering, and practically destroyed his automobile.

The defendant, corroborated by C. W. Byrd, testifies that he was driving at about 35 miles an hour on the right-hand side of the highway in the direction he was going; that an automobile passed him, and almost immediately thereafter he was struck by plaintiff’s car. According to defendant and Byrd, in order for the collision to have occurred, it was necessary for plaintiff to have been driving on the wrong side of the road in the direction he was going. So the determination of the case depends upon questions of fact and the credibility of witnesses.

The plaintiff is supported in his version as. to his speed and as to the side of the road on which he was driving at the time of the collision by Gaston Mestayer, deputy sheriff, and Prank David, a highway policeman.

Defendant, after the collision, proceeded on to Lafayette, but soon after getting there he returned to New Iberia and called on the sheriff, informing him that a collision had occurred, and requesting that some one be sent to the scene to look it over and determine how it had happened. The sheriff sent his. deputy Mestayer, with the defendant, and they together inspected the place where the collision had occurred. At the time of the inspection, the marks made by the wheels of the automobile and the debris resulting from the collision were fresh on the ground, and the position of the cars at the time of the collision could be definitely traced. These marks, according to Mr. Mestayer, showed that defendant’s car at the time of the collision was on the left-hand side of the center of the road in the direction he was going at the moment of the impact; that it had swerved to that side, as claimed by the plaintiff; that plaintiff’s car, at the moment of the impact, was on the right side of the center of the highway in the direction he was going, strongly corroborating the plaintiff.

Mr. David, highway policeman, driving closely behind Mr. Mestayei’, also examined the ground while the marks made by the wheels of the respective cars could be plainly seen on the ground, and he likewise co2’roborates the testimony of the plaintiff. According to him, the defendant swerved his car to the left-hand side in the direction he was going, and was on the left-hand side of the center of the highway at the moment of the impact, and that plaintiff’s car was at the same time on the right side of the center of the highway, in the direction he was going, and had been for about three car lengths.

The preponderance of the evidence and also the strongest showing is to the effect that the defendant was at fault for the collision in the way stated, and is therefore and for that reason responsible for the collision, for the injuries sustained and the suffering endured by plaintiff and the loss of his automobile. The force of the impact was terrific, and it indicates that defendant was driving recklessly and faster than he claims. The finding of the lower court that defendant was responsible for the collision and for the resulting consequences was- correct.

As for plaintiff’s answer to defendant’s appeal, praying that the amount of damage allowed by the'court be increased, the evidence does not justify increasing the amount. The prayer of the plaintiff in that respect will be refused.

Defendant contends that the amount allowed in the lower court is excessive, and should be reduced. It is. our conclusion from the evidence that defendant’s complaint in that respect is well founded. The amount allowed in the lower court on account of physical and mental suffering is, in our opinion, excessive, and should be reduced. The lower court allowed $2,000 on that account. It seems to us that $1,200 is the proper amount to allow under that item. The other items allowed, $1,000 on account of physical injuries, including the disfigurement of plaintiff’s ear, $170 on account of his medical expenses, $250 on account of his loss of time, and $200 on account of damage to his automobile, are correct, and will not be disturbed.

For the reasons stated, the judgment appealed from will be reduced from $3,620 to $2,820.95, and, as thus amended and corrected, the judgment appealed from is. affirmed; defendant and appellant to pay the cost in both courts.


author: STEPHENS, J.

text:
    No. 4003
    Second Circuit (Second Division)
    CHESTINE LAND CORP. v. SCHULER
    (March 16, 1932. Opinion and Decree.)
    See, also, 19 La. App. 123, 137 So. 793.
    Aubrey M. Pyburn, of Shreveport, attorney for plaintiff, appellee.
    James W. Jones, of Natchitoches, attorney for defendant, appellant.
   STEPHENS, J.

This is a petitory action, in which the plaintiff relies on a record title and prescription. of ten and thirty years. It alleges that the defendant is in the actual physical possession of the property, without title, or right to remain therein; and prays, that it he decreed the true and lawful owner of the property and entitled to the full and undisturbed possession thereof.

The. defendant answered, alleging ownership of the land by virtue of a homestead entry under the laws of the United States. He further averred that, after having entered the land and taken possession thereof, he made improvements thereon in good faith, with full knowledge of plaintiff, and without objection from it, at a cost of $845. He prayed that plaintiff’s demands be rejected, and, in the alternative, that if the plaintiff should be decreed the owner of the land in dispute, that there should be judgment in reconvention in his favor and against the plaintiff for said sum of $845, the alleged value of the improvements.

A trial of the case resulted in a judgment in favor of the plaintiff, recognizing it to be the owner of the land, and entitled to its possession; and further judgment in favor of the defendant on his re-conventional demand in the sum of $510.

The defendant appealed, both suspensively and devolutively, but on motion of plaintiff the suspensive appeal was dismissed by this, court on November 18, 1931. Chestine Land Corporation v. Schuler, 19 La. App. 123, 137 So. 793.

The record in this case contains the usual formal certificate of the clerk of the district court, as follows:

‘‘This is to certify that the within and foregoing pages contain a true, complete and full .transcript of all papers filed, all evidence adduced and all proceedings had.’’

The record, in fact, contains no evidence whatever which may be officially recognized as such. It contains no note of oral evidence adduced, nor does it indicate in any manner that the documents contained therein were ever offered or filed in evidence. The record contains no statement of facts, bill of exception, nor assignment of error.

It is presumed that the trial court acted upon proper and sufficient evidence.

It was stated in Boyd v. Bradley, 134 La. 223, 63 So. 883:

“It is the settled jurisprudence of the state that where a record does not contain a bill of exceptions, statement of facts, assignment of errors, or note of evidence, but a full and complete certificate of the clerk of court, the judgment appealed from will be affirmed, on presumption that the lower court acted on the proper evidence. Code of Practice, 896; Nugent v. Stark, 34 La. Ann. 628, 631; Hefner v. Hesse, 26 La. Ann. 148; State v. De Monasterio, 26 La. Ann. 734; Graham v. Rice, 23 La. Ann. 393; State v. Campbell, 23 La. Ann. 445; Simmons v. Howard, 23 La. Ann. 504; Parham v. Ogle, 22 La. Ann. 73; Citizens’ Bank v. Bringier, 22 La. Ann. 118; In re Fazende & Seixas, 35 La. Ann. 1145.”

The motion to dismiss the appeal above referred to was tried on October 1, 1931. Therein the appellant’s attention was directed to the absence from the transcript of the note of evidence. The defendant-appellant made no effort to complete the transcript, although the case was not heard on its merits here until January 11, 1932. In fact, the defendant-appellant has made no appearance in this court since the filing of the appeal.

The judgment appealed from should be affirmed, and it is so ordered.


text:
    No. 935
    First Circuit
    BROUSSARD v. POLICE JURY OF ST. MARTIN PARISH
    (March 8, 1932. Opinion and Decree.)
    Moise Thibodeaux, of Baton Rouge, attorney for plaintiff, appellant.
    L. O. Pecot, of Franklin, attorney for defendant, appellee.
   ELLIOTT, J.

Police jury of St. Martin parish, La., moves to dismiss the appeal taken by Joseph Broussard herein, assigning as grounds that the appeal has been abandoned and the right of appeal lost.

The record shows that the judgment was rendered on May 24,- 1930, but was not signed until June 23, 1930. The plaintiff was granted a devolutive appeal on June 23, 1930, and the same was made returnable to this court on August 18, 1930, but no appeal bond was filed under this order making the appeal effective.

The minutes of the lower court show that on October 24, 1930, plaintiff obtained from the lower court an order extending the return day which had expired in August, 1930, until December 8, 193,0. Bond was filed under this last order on October 29, 1930. . ■ ■

The appellee contends that the district court had no authority to extend a return day, the life of which had expired and ceased to have effect long before the extension was moved for.

If the plaintiff-appellant had obtained a new order on October 24, 1930, it would have been all right. Gresham v. Collier, Sheriff, 128 La. 143„ 54 So. 590. But that was not done. The order in question merely purports to extend a return day, already expired, and without effect at the time in question.

As it is, there is no order supporting the present appeal, and without an order there is no appeal. Not only that, but the order of October 24, 1930, was granted in open court at a term of court succeeding that during which the judgment was rendered, and there is no order by the court, nor prayer by plaintiff-appellant that defendant be cited to answer the appeal, and defendant was not cited to answer this appeal. The situation is imputable to the carelessness of the plaintiff-appellant.

For the reasons stated, the motion to dismiss must prevail. It is now ordered that the appeal herein be dismissed at the cost of appellant.


text:
    No. 936
    First Circuit
    HUVAL v. SEXTON CORP.
    (February 9, 1932. Opinion and Decree.)
    Burke & Smith, of New Iberia, attorneys for plaintiff, appellee.
    Porteous R. Burke, of New Iberia, attorney for defendant, appellant.
   MOUTON, J.

On the first trial of this case, a compensation suit, the court rendered judgment against defendant for partial disability and on the second, granted on a motion for a rehearing, plaintiff was allowed compensation for total disability which is claimed in his petition.

Plaintiff, at the time he was hurt, was employed in laying gas pipe lines for defendant company.

He says he had gotten down in a ditch where the pipes were being laid and when injured, was standing in water which covered his boots. He testifies that he was digging in the 'ditch with a shovel, that as he tried to get out of the mud, he pulled his shovel at the same time, thus causing a hernia. He says “the boss near told the time-keeper to make a report that I had been hurt and send me to the hospital,” where the record shows he was sent. It is not contradicted that he was sent to the hospital by his “boss.” His further statement is .that he had to pull his legs out with his hands, and that he felt a pain “in his side — it was burning,” he says.

Dr. Dauterive, testifying for plaintiff, said that a hernia was always the result of sudden effort or strain. He examined plaintiff on February 4, 1931, the day of the accident, and found that plaintiff was suffering with incipient hernia on the left side. After stating that a hernia was always caused by a sudden strain or effort, Dr. Dauterive said there was a possibility but not a probability that this incipient hernia could have resulted instantly.

Counsel for defendant, with the evident purpose of showing that plaintiff was suffering with hernia prior to the alleged accident asked Dr. Dauterive if it was not his conclusion that plaintiff had been previously so affected. His answer to that was: “I cannot say. Possibly he was.” Further, he said a very small proportion are probably affected as plaintiff was.

Plaintiff can neither read nor write, is very ignorant, as the testimony reveals, and says he did not know anything about the rights of an employee to recover compensation in such cases against his employer, and we have no hesitancy in believing that this statement on his part is true. His ignorance, in that respect, affords little reason to believe that he had premeditated an action in damages on the pretense that he had been injured as claimed by him.

The work in which he was engaged and the strain to which he was subjected, as described by him in his simple narration of the occasion, lend the color of truth to the cause he gives for the hernia.

The fact also appears that he immediately stated to his “boss” that he had been injured, upon which he was sent to the hospital for treatment, and was found by Dr. Dauterive to be suffering with a case of incipient hernia. This physician also said that when hernia is caused from sudden strain “it is usually accompanied by sharp pains.” In describing the way the accident occurred, plaintiff said that he felt a pain in his side and that “it was burning.” This statement is in keeping with the statement of Dr. Dauterive that when a sudden hernia occurs it is usually accompanied by “sharp pains.” This burning sensation which plaintiff says he suffered with immediately after the occurrence characterizes his trouble as a hernia. It is not believable that plaintiff knew that such hernias were followed with burning sensations or sharp pains, and could have feigned such a condition to fabricate a claim for compensation when he did not know he had a right to ask that from his employer.

Counsel for defendant, on this feature of the case wherein he contends that the proof is not sufficient to establish the alleged injury, refers us to the compensation statute where it says that proof of injuries must be shown by competent evidence “of which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee.” Act No. 85 of 1926, p. 120, sec. 18, subd. 4'.

In referring to his examination of plaintiff, Dr. Dauterive said: “I had to accept his statement on his mannerisms and also finding the opening larger than normal that helped me to conclude.” There the doctor says he found the “opening larger than normal.” This part of the physician’s testimony shows that there were present ‘■‘objective conditions or symptoms” to which the above quotation of the statute refers.

Dr. Sanders, called by defendant company as an expert on the second trial, in speaking of his examination of the plaintiff says, “I found that his left engino canal was enlarged sufficient to allow the introduction by the usual method from the end of my small finger.” Further, he says that “the ring qf the external canal was large enough to allow a small recurrent hernia.”

Here, again, according to the statement of Dr. Sanders, there appeared “objective conditions or symptoms” which were certainly “not within the physical or mental control of the injured employee,” spoken of in the compensation law.

In support of his contention that plaintiff has not established his alleged ailment by competent evidence, as required under the provisions of the above excerpt of the statute, counsel for defendant refers us to the case of Rutly v. Honor & Co., 7 La. App. 164.

In the course of the opinion, the court in the body of the opinion said that plaintiff had not made it “reasonably certain that the infirmity of his eye is due to the accident, or to creosote in his eye, but in the language of the trial judge in his reasons for judgment, ‘that the vast preponderance of evidence in this case negatives the fact that the condition of plaintiff’s eye is a result qf the accident.’ ”

In another case, Elix v. Glassell-Wilson Co., 9 La. App. 209, 119 So. 147, the court reached a similar conclusion where the testimony of skilled physicians . showed that the- employee was suffering from a chronic disease different from the trouble of which he was complaining.

Obviously, under the decisions above referred to a situation essentially different from the one here was presented, as we have not in the instant case the positive practically unanimous opinion of physicians negativing the idea that plaintiff was not suffering with a hernia, incipient or recurrent. We find that plaintiff has shown that he suffered the injury complained of and that we cannot say that the court has fallen into an error in so holding.

This brings us to the consideration of the question as to whether the injury caused total disability at the time of the trial, incapacitating plaintiff from doing work of any reasonable character, as was held by the district judge.

The record shows plaintiff was wearing a truss when he was examined by Dr. Sanders, ' and which he had been advised' to wear by Dr. Dauterive.

Dr. Sanders said that the wearing of a truss was a makeshift, and believed. in operations, which he said were now-a-days successful, and entailed no danger. In referring to recurrent hernias, this doctor explained that they brought about different results. In illustration of that statement, he said he saw a negro working in the field when so affected, and saw men miserable with a small one in the engino canal. Further, he says on this subject as follows: “Considerable pain is manifested at each pain. There is a small muscle that comes down and causes intense pain.” Asked if his expert testimony did not show that plaintiff was not suffering with a partial, but with total, disability, Dr. Sanders answered:. “No, only when it descends. And he can work fairly well until then.’’ It is not amiss to remark here that in all probabilities plaintiff’s hernia might take an occasional downward course, and descend, and at such times there would result total disability, if we correctly construe the testimony of Dr. ganders.

Dr. Sanders was again interrogated as follows: “What is the danger of a recurrent hernia?”

A. “Well not much. It is liable to open at any time. Just coughing or sneezing can bring it. Sometimes just walking on the street. Most, if not totally, disabled. And especially the amount this man had, which would allow the passage of my little finger. But the remedy for it is absolute.”

It occurs to us, if mere coughing, sneezing or walking in the streets could - bring about such dire results, particularly in a case like this where there would be ¡passage of the little finger, there existed total disability in the plaintiff or a condition so near to it that it would be almost impossible to say that plaintiff was not suffering as was averred in his petition.

Plaintiff testified he was physically sound before the accident, and never suffered with hernia at any time prior thereto.

Counsel for defendant company, in opposition to that statement of the plaintiff, refers to the fact that though plaintiff was offered a truss by defendant company, he did not accept this tender of assistance, and claims that he subsequently borrowed a truss from a friend and wore it. Such circumstances as these are offered by counsel as contradicting the testimony of plaintiff that he had never previous to the accident been afflicted with a hernia, and had never worn a truss before. The circumstances so pointed out by counsel, at the utmost, give rise to mere suspicion which are dissipated and disappear in the light of the evidence, showing the way the accident occurred, its immediate report, the examination of physicians soon thereafter, the stinging, burning sensations or pains which followed the strain, and other facts to which we have hereinabove referred.

It must therefore be accepted as proved that plaintiff had not, previous to the accident, been afflicted with any such trouble. Since the occurrence, plaintiff says he suffered pains almost continuously and for relief saw Drs. Dauterive, Landry, Sabatier, Sanders and Comeaux, his family physician at Youngsville in Lafayette parish, his domicile. It is hardly believable that he would have seen all these physicians to carry out a concocted scheme to fleece defendant company in damages. This is possible but not probable.

It appears, as we have before stated, that plaintiff is illiterate, and is fit only to common manual labor. The fact is that prior to his employment by defendant company he was working for a pipe line company in the state of Texas. He was accustomed to work of that character, plowing and hoeing, and to general field manual labor required by the occupation of the ordinary farmer.

It is shown that after the accident he tried to work in the field, that he could not stand it because of aches he suffered in his side. As he could not do field work it certainly appears that he could not have gone back to spading in trenches for the laying of pipe lines, his accustomed work. Plaintiff tried at various times to get work at butcher shops, filling stations, garages, etc., with the idea of obtaining some light work that he could perform, but without success. He thereafter moved to Abbeville, where his wife tried to get washing to support their family.

Plaintiff says he would drive a truck or an auto, as chauffeur, were he able to get that kind of employment, which he had no prospects of finding, as appears from the record.

Counsel for defendant company says, on this branch of the case, that the district judge seemed to have interpreted the compensation statute as meaning that the incapacity of plaintiff is to be determined solely by the character of labor he had performed in the past; and the fact that he “can perform other manual labor does not enter into the equation.”

Counsel refers us to no decision, and we are not aware of any, maintaining his position in that respect. The opinions rendered on the subject by the various courts rather 'incline to the view that the incapacity refers to the line of work to which the employee is accustomed, although not expressly so stating in their rulings on the subject.

Here, we have the case of an employee not able any longer to lay pipes, to which he was accustomed, and totally unable to do field work on a farm or manual labor of the character required in farming operations, and for which he is qualified to work above any employment which might be tendered him. The proof is that he has sought in vain for some light work that he could do, and failed to get any, and expressed his willingness to take the position of a truck or auto driver, which he had no prospect of having, and that finally he was driven to Abbeville, where his wife expected to get work as a washerwoman from which she might eke sustenance for her husband, herself and children.

Another contention of counsel urged against plaintiff’s claim is that the doctors had advised him that his ailment was not serious, and that an operation would effect an absolute cure, and that he refused to submit to an operation.

Plaintiff’s counsel recognizes the rule which says that the employee is not forced to submit to an operation to entitle him to compensation, except when his refusal is entirely unreasonable, citing the case of Bronson v. Harris Ice Cream Co., 150 La. 455, 90 So. 759, 760, in support of that contention.

In the course of the opinion, in that case, the court after referring to an operation which might be altogether simple and unattended by risks, continuing, said: “That plainly the real cause of the disability would be not so much the injury as the not making use of the easy remedy at hand.”

In this case, for the reasons we have heretofore given, it would be doing violence to the evidence to say that the real cause of the disability consisted in “not making use of the easy remedy at hand,” as is stated in that decision. We make this remark because the real cause of the injury is 'established by the record, and could not consist only in the refusal by plaintiff of the remedy proffered.

According to the testimony of Dr. Sanders, in the case of a recurrent hernia with which plaintiff was suffering, he said sometimes caused “intense pain.” No doubt plaintiff suffered with considerable pain which evidently led him to several physicians in his endeavors to get relief. This is evidenced also by the fact that he was unable to do field work on account of these pains. Plaintiff said he was afraid of an operation. The sufferings he experienced, his inability to work, must have impressed him with the seriousness of his ailment, and his refusal to submit to an operation under such circumstances should not, we think, operate as a forfeiture of his right to recover. It seems to us, such an impediment to recovery not being in the statute, as was pointed out in 150 La. 455, 90 So. 759, case above cited, that an interpretation carrying such a rule of forfeiture in the compensation law would not be in line with the uniform liberal construction which has been given by our courts to the Employers’ Liability Act in favor of the employee. In the requirement of the proof demanded to show the injury for which compensation is claimed, we have invariably held that the doctrine of liberal interpretation was out of place, but here, we think, this liberal construction should apply to the extent, as above indicated.

The lower court, in its final opinion on the rehearing, found that plaintiff suffered a permanent total disability at the time of the trial, and rendered judgment for plaintiff during the period of his disability, following the decisions in the cases of Thomas Hutchinson v. Louisiana Central Lumber Co., 3 La. App. 413; Laurence Connell v. Gilliland Oil Co., 2 La. App. 435.

The judgment is correct with the exception that it fails to give plaintiff legal interest upon all the unpaid installments of compensation allowed under the decree, which is demanded here in answer to the appeal.

It is therefore ordered, adjudged, and decreed that plaintiff have judgment against defendant for legal interest on these unpaid installments; and, as thus amended, the judgment be affirmed.