Dickerson v. Barnard & Burk Industrial Corp.

253 So. 2d 574, 1971 La. App. LEXIS 5714
CourtLouisiana Court of Appeal
DecidedSeptember 2, 1971
DocketNo. 8530
StatusPublished
Cited by1 cases

This text of 253 So. 2d 574 (Dickerson v. Barnard & Burk Industrial Corp.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dickerson v. Barnard & Burk Industrial Corp., 253 So. 2d 574, 1971 La. App. LEXIS 5714 (La. Ct. App. 1971).

Opinion

TUCKER, Judge.

This is a workmen’s compensation suit by plaintiff, Mrs. Alma Dickerson, for the death of her husband, Herbert O. Dickerson, on December 4, 1964 due to a heart attack, allegedly work-induced, while on the work site of his immediate employer, Plant Services, a division of Barnard & Burk Industrial Corporation, which had a construction contract with Dow Chemical Co., Inc. The workmen’s compensation insurers of both corporations, Firemen’s Fund Insurance Company and Associated Indemnity Corporation, respectively, as well as Dow Chemical Co., Inc., are named as defendants. Exceptions of no cause of action were interposed by Dow Chemical Co., Inc., and Associated Indemnity Corporation, and these exceptions were maintained and judgment was signed on October 20, 1967, dismissing the suit as to these ex-ceptors. Plaintiff’s motion for a new trial on these exceptions was denied, and the case proceeded to trial on the sole factual issue of whether or not the decedent sustained an accident within the meaning of the Louisiana Workmen’s Compensation Law while acting in the course and scope of his employment as a laborer with Barnard & Burk Industrial Corporation.

Primarily on the basis of the testimony of the witnesses, Haywood Greenhouse, Audrey Bynum and Gordon Landry, the trial judge found that the plaintiff failed to discharge her burden of proving that the decedent’s heart attack was an accident sustained in the course and scope of his employment, and plaintiff has appealed from the judgment, alleging error by the lower court in analogizing the present case to that of Holman v. M. L. Bath Co., 226 So.2d 588 (La.App., 2d Cir. 1969), and in not finding a causal accident on the facts proved.

The facts surrounding the death of Herbert O. Dickerson are in dispute and the testimony is in conflict. These conflicting and disputed statements can best be summarized by an examination of testimony as follows:

The plaintiff, Mrs. Alma Dickerson, swore that the decedent was 57 years old, weighed 140 lbs. and was 5' 6" tall. He arose at 5 :00 o’clock a. m. the morning of his death as usual; fixed his own light breakfast, and left for work about 6:15 or 6:20 a. m. to drive his truck to the work site a few miles from his home in Brusly, La. He appeared to be normal and made [576]*576no complaints of any kind. He returned after 8:00 a. m., driving his, truck himself, came into the kitchen of the house with his hand over his chest, saying that he was sick as he could be, and for her to call the doctor. He proceeded into the bathroom where he removed his shoes and work clothes and put on pajamas. Meanwhile, Mrs. Dickerson ran four or five houses up the street to get her daughter-in-law to drive them to the doctor. The daughter-in-law gathered up her small child, locked the house and came immediately. Mrs. Dickerson helped the decedent into his robe and slippers, after he had previously drawn his trousers over his pajamas. Together Mrs. Dickerson and her daughter-in-law assisted Dickerson into the car, and rushed him to the doctor’s office in the Plaque-mine Hospital, arriving there about 8:45 a. m. He collapsed as soon as he entered the hospital, apparently due to another heart attack. The doctor and nurses worked on him immediately, but he died at 10:28 a. m. Mrs. Dickerson further stated that the decedent made no complaints about physical distress on the evening preceding his death. (Tr. 169)

When called as a witness, Clarence Bean, decedent’s foreman, 69 years of age at the time of trial, retired since 1966, could remember nothing, except that Dickerson had come to him, saying that he was sick, and that he, Bean, took him in a truck to get his check, and then ordered a teamster to drive him to his own truck. He offered to drive Dickerson home, but he refused. Initially the trial judge refused to permit plaintiff’s counsel to see the statement made by Bean to defendant’s agent on February IS, 1965, about two months after decedent’s death. This statement was later admitted presumably on the ground that it was given almost four years previous to the trial, shortly after decedent’s death, and illustrated a keener memory on the part of Bean for the particulars leading to the death of the decedent. (Tr. 137) In the un-sworn statement Bean recounted that Dickerson had worked some 30 or 40 minutes in backfilling a ditch before asking to be relieved because of his chest pains. This was borne out by the time sheet of the company employer, which gave Dickerson credit for one hour’s work prior to his being allowed to return home on account of illness. Winfred Coker, construction superintendent, explained the hour’s time credit by saying that an employee who had completed a portion of an hour was given credit for the full hour, when the foreman turned in one hour. (Tr. 200-203) Beap also testified that it was his policy to keep all of his crew working full time, and not let anyone sit down. Incidentally the witness Bean had refused to give plaintiff’s counsel a statement in advance of the trial, and said his reason for not giving same was so that he would not injure himself. (Tr. 104) Any error that might have resulted from the trial court’s initial failure to require the production of this statement was cured by the eventual admission of the document and its introduction into the record as Plaintiff’s Exhibit No. 4.

Audrey Bynum, a lifelong friend of the decedent, and a member of the same work crew, testified that Dickerson worked with a shovel, backfilling a ditch for about one-half hour- — -maybe an hour — the morning he died. (Tr. 113) He had on February 15, 1965 stated to an adjuster that the decedent was engaged in digging rather than back-filling a ditch on the morning in question. Bynum, in this statement, counted the work done as a light type of work. (Tr. 118-119) In this same statement Bynum also said that Dickerson complained to him about a hurting in his chest prior to the time that they actually began work at 7:00 a. m. (Tr. 119), and likewise the decedent had made mention of this hurting on the preceding day. (Tr. 122)

Haywood Greenhouse, on the same labor crew as Dickerson, did not see the decedent working on the morning he died. He only observed the decedent in the truck shortly after the crew started working, and did not observe Dickerson’s condition while he was [577]*577in the truck; the day in question was cool and rainy and the terrain was muddy. This witness had heard no complaints from Dickerson on the previous day about his hurting.

The testimony of Gordon Landry is to the effect that he saw Dickerson in the labor shack; that the decedent did not work on the morning in question; that it was shortly after 7:00 a. m. that the foreman, Bean, told him that Dickerson was sick and asked Landry to take him to his truck so Dickerson could return home. Only a few minutes later, after he had folded some papers, he says he took the decedent, who looked ill, to get his truck. Landry asked Dickerson to let him take him to the Dow First-Aid shack, but he refused, saying it was just something he had eaten for breakfast, and that he would go home, lie down, and take something for his indigestion or heart burn there. When Dickerson alighted from the Landry truck he vomited, but continued, and got into his truck to drive home. Landry urged the decedent to let him drive him home, and let one of decedent’s family come back for the truck, but Dickerson insisted he could make it.

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Related

Dickerson v. Barnard & Burk Industrial Corp.
255 So. 2d 352 (Supreme Court of Louisiana, 1971)

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Bluebook (online)
253 So. 2d 574, 1971 La. App. LEXIS 5714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickerson-v-barnard-burk-industrial-corp-lactapp-1971.