Fontenot v. Traders & General Insurance

113 So. 2d 11, 1959 La. App. LEXIS 1182
CourtLouisiana Court of Appeal
DecidedMay 18, 1959
DocketNo. 4811
StatusPublished

This text of 113 So. 2d 11 (Fontenot v. Traders & General Insurance) 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
Fontenot v. Traders & General Insurance, 113 So. 2d 11, 1959 La. App. LEXIS 1182 (La. Ct. App. 1959).

Opinions

LOTTINGER, Judge.

This is a suit for workmen’s compensation for the total and permanent disability of petitioner, Gustave Fontenot. The suit was filed against his employer, the Town of Ville Platte, Louisiana, and its compensation insurer, Traders & General Insurance Company. Subsequent to the filing of the petition, petitioner died, and his surviving wife was substituted as petitioner herein. The Lower Court rendered a judgment in favor of petitioner and the defendants have filed this appeal.

The petition alleges that the then petitioner, Mr. Gustave Fontenot, had worked for the Town of Ville Platte for a period of approximately two years prior to September 7, 1956. While working as a manual laborer in the public park operated by the said town of Ville Platte, petitioner on September 7, 1956, slipped while cleaning the swimming pool and injured the left side of the head and face as well as his left shoulder. He continued working for a period of approximately ten days after which the pains became so severe that he saw his family physician, Dr. R. E. Dupre, who placed him in the hospital at Ville Platte.

The record discloses that Mr. Fontenot remained in the Ville Platte hospital for a period of approximately three months after which he was discharged and returned to his home where he remained for approximately five weeks. Mr. Fontenot was then hospitalized at Charity Hospital in New Orleans for an additional period of approximately five weeks, returned home, and later returned to Charity Hospital, where he died on April 10, 1957. Subsequent to the death, Mrs. Eula Brou Fontenot, the surviving spouse in community with the deceased, filed a petition wherein she claims to be substituted instead of her husband as petitioner and seeks her benefits under the compensation law as surviving dependent spouse, at well as any compensation which may have been due to the deceased.

After trial on the merits, the Lower Court rendered a judgment in favor of the petitioner, Mrs. Fontenot, and against the defendants. The defendants have appealed. Subsequent to the appeal, Mrs. Fontenot has filed a motion wherein she informs the Court of her remarriage on August 27, 1958, and asks that the judgment below be modified to limit the compensation awarded her as surviving widow accordingly-

The record, as a whole, discloses that prior to the date of the accident, during the year 1954, the deceased was operated on by Dr. Edgar Paul Breaux, a general surgeon practicing in Lafayette, Louisiana. At [13]*13that time, Dr. Breaux removed a hard mass from the left side of the neck of the decedent.

At that time, Dr. Breaux advised the patient that he should return for monthly-checkups, and that radical surgery should be performed to the area for the purpose of removing any malignant tissues. During the month of January, 1955 the decedent was sent to Charity Hospital in New Orleans where he received a prophylactic radical neck dissection, which is a more radical operation than the one performed by Dr. Breaux. Subsequent to this operation at Charity Hospital, the decedent returned home, where he resumed his employment in the city park at Ville Platte. The evidence discloses that periodically during that time he returned to Charity Hospital for checkups.

On or about September 7, 1956, the decedent was engaged in cleaning the swimming pool when the alleged accident occurred. There was algae on the bottom of the pool, and while decedent was using a two-inch hose pipe he slipped and fell on his left side. The evidence discloses that he received a brush burn on the left side of his face on or near the scar which had been caused by the radical surgery.

Although there were a number of people helping to clean the pool, the only eyewitness who testified was the decedent’s brother, Jules Fontenot, who was a member of the City Council of Ville Platte and who was just standing by examining the work which was being performed. Jules Fonte-not testified that upon seeing the deceased fall, a Mr. Wiggins started to go and help him up, but that deceased said that he could get up alone, which he did, and deceased continued working. The decedent continued to do his normal work for a period of ten days, when he was admitted to Dr. Dupre’s hospital on September 17, 1956.

The lay testimony submitted by petitioner was given by Mrs. Fontenot, the substituted petitioner, Mr. O’Neal Fontenot, who was a fellow worker of decedent, and Jules J. Fontenot, the brother of decedent. The sum and substance of this lay testimony is to the effect that deceased did his work well and never complained of pain prior to the accident. None of these parties knew that the decedent had a cancerous condition until after he had died; this includes his wife, who testified that she never did know that he had a cancer and from her testimony, it appears that she did not know that her husband had died from cancer until the time of the trial.

Mr. Burney Daigle, the lay witness who testified by deposition on behalf of plaintiff, stated that he was the superintendent of city park. He testified that the decedent did his work well, however, he did sometimes complain of pain in his stomach, chest or neck, however, Mr. Daigle stated that all the other workers complained of pain at one time or another, and he finally admitted that the other workers complained more than decedent.

Dr. R. E. Dupre, a general practitioner and surgeon, who practices in the town of Ville Platte, was the only medical expert who testified on behalf of petitioner. Dr. Dupre testified that decedent saw him on September 17, 1956, at which time decedent gave him a history of the accident occurring on September 7th. At the time, the only objective symptom which Dr. Dupre found was a brush burn on the left side of the face. He stated that decedent also complained of pains in the neck, left shoulder and left side. Dr. Dupre put decedent in the hospital, as he was running a low grade fever, where decedent remained for approximately eighty days, according to the testimony of Dr. Dupre. During this period of hospitalization, Dr. Dupre testified that X-rays were taken shortly after the admittance of decedent and disclosed that decedent had bronchial pneumonia involving both lungs; that he had “some fluid, a little fluid, suggestive fluid in the left lung, and a little spot of atelectasis in his left lung.” The X-rays were sent to Dr. Roma-[14]*14gosa for examination. Dr. Dupre stated that while the decedent was hospitalized his complaints were mainly of the chest and arm. He discovered a half-inch lump around the vocal box and while in the hospital the decedent complained of ankylo-sis, which is a fixation of the bone joint resulting in the inability of the patient to open his mouth. Dr. Dupre testified that there was no evidence of malignancy while decedent was a patient in his hospital. Dr. Dupre further testified that in his opinion trauma can aggravate a dormant cancer condition, and he believed that the trauma did shorten decedent’s life a great deal. Shortly after admittance to the hospital, decedent’s fever ran rather high, then subsided, and again went up. At the time of his discharge from the hospital, he had a little bit of fever.

Henry Guillory was the only lay witness who testified on behalf of defendants. Mr. Guillory testified to the effect that he was a coworker of the decedent, however, he was not present at the time of the accident. He further testified that the decedent generally did his work well, however, on occasions he did complain that his arm was hurting and that he was not feeling good.

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Bluebook (online)
113 So. 2d 11, 1959 La. App. LEXIS 1182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fontenot-v-traders-general-insurance-lactapp-1959.