Soileau v. Bituminous Cas. Corp.Soileau v. Bituminous Cas. Corp.
Ernest SOILEAU, Plaintiff-Appellant,
v.
BITUMINOUS CASUALTY CORPORATION, Defendant-Appellee.
Court of Appeal of Louisiana, Third Circuit.
Guillory, McGee & Mayeux by John C. Fontenot, Eunice, for plaintiff-appellant.
Plauche, Smith, Hebert & Nieset by Andrew L. Plauche, Jr., Lake Charles, for defendant-appellee.
Before HOOD, DOMENGEAUX, and WATSON, JJ.
*1314 DOMENGEAUX, Judge.
This is a workmen's compеnsation suit brought by plaintiff, Ernest Soileau, against his employer's insurer, Bituminous Casualty Corporation. Plaintiff's employer was Davidson-Louisiana, Inc. Trial was held and the district judge ruled in favor of defendant finding that plaintiff failed to prove a workmen's сompensation accident, and dismissed all of plaintiff's claims at his cost. Plaintiff has appealed.[1] We affirm the holding of the district judge.
On March 29, 1976, plaintiff and two coworkers were unloаding a railroad box car of lumber onto the bed of a trailer truck owned by Davidson-Louisiana in Jennings, Louisiana. Plaintiff claims that while he was attempting to bind down thе lumber on the right front side of the trailer, plaintiff slipped and fell onto the road, injuring his lower back. He reported his accident later that afternoon tо his employer.
The trial court in his reasons for judgment stated the following:
". . . The Court also has listened to the testimony, particularly of this plaintiff, as supported by thе numerous exhibits that have been filed here. The man has a long history of back ailments for which he has collected a number of settlements; Workman's Compensation, and otherwise. And there is hardly one iota of truth so far as this Court can dеtermine [in the accident claim] . . ."
It is well settled that a plaintiff in a workmen's cоmpensation case has the burden of proof and is required to establish his сlaim as in other civil cases.
The testimony of the plaintiff alone may be suffiсient to prove the occurrence of an accident if it is plausible, consistent, and is supported by other circumstances appearing frоm the record. Where plaintiff's testimony is the sole evidence, it must be clear and convincing. Alfred v. Travelers Insurance Company,
In the instant case it is apparent that the trial judge simply did not bеlieve the plaintiff's testimony, which contained numerous inconsistencies. Plaintiff had no other witnesses to the accident since his co-workers were on the other side of the truck from him. Neither did he present any corroborating evidеnce to support his story. The rule of appellate review in Canter v. Koehring Company,
As was stated in White v. Freeport Chemical Company,
"While the courts construe procedural rules liberally in favor of workmen's compensation claimants, they do not relax the burden of proof, placed equally on such clаimants and on claimants in other civil matters, that they must prove their cases by а preponderance of the evidence. Consequently, the testimony as a whole must show more probably than not that an employment accidеnt occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to сarry the burden of persuasion. Likewise, the plaintiff's case must fall if the evidenсe shows only the possibility of an accident or leaves it to speculation or conjecture."[2]
*1315 For the above and foregoing reasons the dеcision of the district judge is affirmed, and costs are assessed against plaintiff-аppellant.
AFFIRMED.
NOTES
Notes
[1] Appellee, Bituminous, filed a motion to remand to enable it to traverse the order of the district judge allowing appellant to proceed with this appeal in forma pauperis, however this motion has now been withdrawn by appellee.
[2] The trial judge also mentioned plaintiff's numerous workmen's compensation claims. Professor Wex Malone commented in his Louisiana Workmen's Compensation Law and Practice:
"A good wage earner with a family is not likely to trump up a compensatiоn claim. On the other hand, the `professional litigant' with several past compensation claims is likely to be treated accordingly."