Guilbeaux v. Trinity Universal Insurance Company

134 So. 2d 717, 1961 La. App. LEXIS 1467
CourtLouisiana Court of Appeal
DecidedNovember 6, 1961
Docket395
StatusPublished
Cited by16 cases

This text of 134 So. 2d 717 (Guilbeaux v. Trinity Universal Insurance Company) 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
Guilbeaux v. Trinity Universal Insurance Company, 134 So. 2d 717, 1961 La. App. LEXIS 1467 (La. Ct. App. 1961).

Opinion

134 So.2d 717 (1961)

Fabien GUILBEAUX, Plaintiff-Appellant,
v.
TRINITY UNIVERSAL INSURANCE COMPANY, Defendant-Appellee.

No. 395.

Court of Appeal of Louisiana, Third Circuit.

November 6, 1961.

Babineaux & Huval, by Allen Babineaux, Lafayette, for plaintiff-appellant.

Davidson, Meaux, Onebane & Donohoe, by Richard C. Meaux, Lafayette, for defendant-appellee.

Before TATE, FRUGÉ, and SAVOY, JJ.

FRUGÉ, Judge.

This is a Workmen's Compensation suit brought by plaintiff-appellant, Fabien Guilbeaux, for total and permanent disability as a result of an accident which allegedly occurred in the course and scope of his employment with Jack Guilbeaux, plaintiff's brother. The defendant is Trinity Universal Insurance Company, the Workmen's Compensation insurer of the said employer. From a judgment denying total and permanent disability plaintiff appeals.

The plaintiff claims that he met with an accident on or about October 23, 1956, while performing his occupational duties as a carpenter during the course and scope of his employment with Jack Guilbeaux, when he fell from a scaffold; and that this accident resulted in a ruptured intervertebral disc which has rendered him totally and permanently disabled from performing his work as a carpenter.

The only question presented is whether plaintiff has proven the occurrence of an accident arising out of and within the scope of his employment as provided in the workmen's compensation law, LSA-R.S. 23:1021 et seq. There is no question but that the employment of the petitioner was a hazardous one under the act, and there is also no question that plaintiff did suffer from a back injury.

From the record, it appears that plaintiff himself was the only person who testified *718 as a witness to the alleged occurrence of the "accident". According to plaintiff, on the day of the accident, some time between 9:00 and 12:00 a. m., he was standing on one end of a scaffold board boxing rafters, when plaintiff's cousin Raoul Guilbeaux, who was standing on the other end of the board, stepped off, causing plaintiff's end of the board to tilt, throwing plaintiff four feet to the ground. Plaintiff testified that he immediately felt pain in his back, and therefore sat on the ground and relaxed. After a while, however, plaintiff returned to work, although, plaintiff states, with very much pain; at that time the plaintiff did not inform his co-worker of his injury and pain. Plaintiff further testified that he continued to work until November 8, 1956, never missing any time.

The court has noted that no one, other than plaintiff, testified as witness to the occurrence of the alleged accident. Under the jurisprudence of this State, a workmen's compensation claimant can prove the occurrence of an accident by his own testimony, however, there also can be no dispute that such evidence is sufficient to establish an accident only if there is nothing to discredit plaintiff's testimony and only if his testimony is corroborated by the surrounding circumstances. The rule was stated by the First Circuit Court of Appeal in Garrett v. Gaylord Container Corp., 71 So.2d 373, 376:

"`In view of the testimony in this record, which I have heretofore sought to fairly analyze, it is impossible for me to reach the conclusion, even if plaintiff is suffering from acute epididymitis, that it was brought about by accidental injury suffered by him in the course and scope of his employment.
"`I recognize the proposition that there is precedent in our jurisprudence for the application of the general principle that the testimony of a plaintiff alone is sufficient to make out his case, but this is subject to the further condition that there is nothing to discredit the plaintiff's account of the accident and the resulting disability and his statements are supported by the surrounding circumstances. As heretofore pointed out, there is much to discredit plaintiff's account of this accident and resulting disability, and as further pointed out, his statements as to the accident and resulting disability are not supported by the surrounding circumstances. See Franks v. Department of Highways for Louisiana, La. App., 43 So.2d 491; O'Connor v. American Automobile Insurance Co., La.App., 32 So.2d 624.'"

And, in Franks v. Department of Highways, 43 So.2d 491, the Court states at page 492:

"We concede the proposition urged by learned counsel for plaintiff to the effect that there is precedent in our jurisprudence for the application of the general principle that the testimony of a plaintiff alone is sufficient to make out his case, but only, as was well stated in Dolhonde v. Gullett Gin Co., La.App., 25 So.2d 104, 106: `* * * if there is nothing to discredit his (plaintiff's) account of the accident and resulting disability, and his statements are supported by the surrounding circumstances.'"

In determining whether the evidence as to the surrounding circumstances corroborate plaintiff's testimony in cases such as the one at bar, the Court regards as determinative whether or not the testimony of the plaintiff's fellow employees and his employer, and also the doctors who treated him after the alleged accident substantiates or contradicts plaintiff's testimony as to the surrounding circumstances.

From the testimony of plaintiff's co-workers Delise Babineaux and Raoul Guilbeaux, it is clear that they knew nothing of plaintiff's back trouble until the day plaintiff left work, two weeks after the *719 date of the alleged accident, when plaintiff came to work complaining that his back was hurting; and even then plaintiff did not tell them of any accident on the job. Further it is also clear from the testimony that the two co-workers noticed nothing wrong with the plaintiff during the two weeks, despite the fact that he was allegedly in great pain. Plaintiff's testimony is not corroborated by his brother and employer, whom plaintiff called as a witness in his behalf, and who testified that plaintiff did not tell him about hurting his back until after plaintiff had been operated on, which was about a month after the alleged accident.

Although plaintiff had numerous medical consultations with various doctors between November 1956 and November 1957, he did not relate to any of the doctors who saw him any history of injuries to his back while working for his brother, Jack Guilbeaux. If plaintiff did have an accident on the job which caused his ruptured disc and produced his back symptomatology, it is probable that he would have told the doctors whom he consulted for treatment about it.

In Page v. Tremont Lumber Co., 108 So.2d 1, the plaintiff claimed to have injured his back while reaching across a conveyor to reach a large piece of lumber two inches thick and 20 feet in length. Plaintiff testified that he continued to work the remainder of the day, and that he returned to his employment Monday and worked the entire day, but was admitted to a Winnfield hospital on Tuesday, where he was hospitalized for a period of eight days, his ailment being diagnosed as an acute lumbo-sacral myositis. However, plaintiff did not tell his employer or his foreman or his fellow employees or either of the two doctors who treated him in the hospital of any accidental injury. The Court in holding for the defendant, stated at Page 3:

"From the above and foregoing review of the evidence,

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Bluebook (online)
134 So. 2d 717, 1961 La. App. LEXIS 1467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guilbeaux-v-trinity-universal-insurance-company-lactapp-1961.