159 So. 2d 565 | La. Ct. App. | 1963
This is a workmen’s compensation suit instituted by plaintiff, Jack H. Scardina, against his employer, Seth W. Ward doing business as Seth W. Ward Construction Company and its workmen’s compensation insurer, The Travelers Insurance Company.
Defendants appealed from a judgment of the Trial Court, in which written reasons were assigned therefor, in favor of Plaintiff against Defendants, jointly and in solido, in the sum of $14,000, payable at the rate of $35 per week commencing May 9, 1962, together with legal interest from date of judicial demand on all past due installments and for costs; and, in addition, judgment in favor of Plaintiff against the Defendants for $2,500 medical fees and fixing the expert witness fees of Doctors James
The defense was predicated on two grounds: (1) Plaintiff failed to show by a preponderance of the evidence that he sustained an accident while employed by Ward Construction Company, defendant, insured by The Travelers, and (2) alternatively, conceding the occurrence of an accident, the injuries allegedly sustained by Plaintiff were, by the evidence, not proved to have been caused by the accident for which he seeks redress.
Defendants’ counsel readily concede that the courts in workmen’s compensation cases have accepted the testimony of injured employees as to the happening of accidents and the injuries sustained by them, where no witnesses were present, and the testimony given by said employees and the corroborating circumstances surrounding the accidents were reasonable and supported the truthfulness of their statements, warranting the courts in awarding them judgments. The courts do this with recognition of their obligation to give full protection to claimants asserting claims for disabling injuries, fully cognizant of the responsibility resting on their shoulders. Nevertheless, it is well recognized as a jurisprudential rule, to which no exception is made even in compensation cases, the burden of proof rests on plaintiff to establish his claim with reasonable certaint}^ and by a preponderance of the evidence.
Plaintiff herein, an ironworker, admittedly sustained an injury to his back while employed on another job in 1957 and was then seen by the same orthopedist who testified in this case, Doctor James F. Halley. Doctor Halley testified concerning the injury allegedly sustained in 1957. He found that Plaintiff was suffering from a congenital condition in his back, spondylolisthesis at H-5, and had sustained a muscle strain which was superimposed on that congenital condition. He conceded his findings and observation of Plaintiff resulting from the alleged accident sustained by him on May 8, 1962 were essentially the same found by him following the alleged accident in 1957 for which Plaintiff received workmen’s compensation. The finding of Doctor James Lorio, who saw Plaintiff subsequent to the alleged accident for which recovery is sought here, was essentially the same as that of Doctor Halley. This remarkable circumstance only becomes of moment when we consider the question of whether Plaintiff has proved with reasonable certainty an accident occurred on May 8, 1962 while employed by defendant, Seth W. Ward.
According to Plaintiff he was employed as an ironworker by Defendant on construction work for the Holsum Bakery in Baton Rouge. On the date of his alleged injury, according to his testimony, he was engaged in what has been described as “shaking out iron” which operation consists in re-arranging stacked, previously placed, stock materials to be incorporated in the proposed building. In “shaking out iron” the operation sometimes requires the ground man to attach to one end of the material the hook of a crane and same is then skidded to its proposed location. However, specifically, in the accident in which Plaintiff was allegedly injured the operation consisted of applying a choke in the center of the material to be moved, thereby enabling the operator of the crane to lift the object, which would then be balanced, and transporting it to its designated location. According to what we believe to be the incredible testimony of Plaintiff, his injury resulted when the crane operated by a Mr. Douglas Smith lifted a steel I-beam estimated by Plaintiff to be “40 or 50 or 60 foot long,” which was not “quite choked on the center” and Mr. Smith, the crane operator, without waiting for the 'flag call’ (a signal by which Plaintiff would inform the operator of Plaintiff’s readiness for the operator to commence operation of the crane) “all of a sudden, he pulled the lever and jerked the iron, or
Though the courts have invariably awarded compensation where convinced of the reasonableness of the statement of the employee as to the happening of the accident and where corroborating circumstances lend credence thereto, nowhere have we found, even m workmen s compensation cases, a judgment predicated solely upon speculation, conjecture, possibility and unsupported probability.
Without quoting the opinion but citing same with full approval, the Court of Appeal, Third Circuit, with Judge Frugé as the organ of the Court, in Guilbeaux v. Trinity Universal Insurance Company, La.App., 134 So.2d 717, made an exhaustive and complete review of the Louisiana Courts’ holdings and therein delineated the basis on which the uncorroborated testimony of an employee is insufficient to warrant judgment in his favor in a workmen’s compensation case.
For these reasons the judgment of the Trial Court is reversed, and judgment is rendered in favor of Defendants and against Plaintiff at Plaintiff’s costs.
Reversed and rendered.