Sparks v. Employers Mutual Liability Insurance

83 So. 2d 453, 1955 La. App. LEXIS 982
CourtLouisiana Court of Appeal
DecidedNovember 2, 1955
DocketNo. 8382
StatusPublished
Cited by5 cases

This text of 83 So. 2d 453 (Sparks v. Employers Mutual Liability 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
Sparks v. Employers Mutual Liability Insurance, 83 So. 2d 453, 1955 La. App. LEXIS 982 (La. Ct. App. 1955).

Opinion

HARDY, Justice.

This is a compensation case in which plaintiff employee seeks recovery against his employers and their insurer for total permanent disability. After trial there was judgment in favor of plaintiff awarding weekly payments at the rate of $28.73 for the period of disability, not to exceed 400 weeks, from which judgment defendants have appealed.

As the basis of his action plaintiff alleged that in or about the middle of the month of March, 1954, he became affected with what appeared to be a drawing sensation of the right side of the neck, which subsequently developed into uncontrollable jerking movements of the head; that his affection was first diagnosed by his consulting physician as myositis and possible traumatic arthritis of the cervical muscles and spine; that subsequently the condition was diagnosed by a number of neurosurgeons as spasmodic torticollis, and that his resulting disability, which he claimed to be permanent and total, was “caused, precipitated, aggravated, triggered and invited by the work which he was performing * *

From some time in August, 1953, until the discontinuance of his employment on or about April 15, 1954, plaintiff was employed as a ripsaw operator by Richland Furniture Dimension Plant. As a possible explanation of causal connection between his employment and the development of the spasmodic torticollis, plaintiff’s petition alleged :

“That in operating the saw in order to observe and operate the regulating lever or guide which regulated the size of the finished pieces of the material which he fed into the saw, petitioner of necessity held his head continuously and rigidly turned to the right, which resulted in a constant strain and tension on the muscles, nerves, bones, tissues and tendons of his neck.”

This case does not concern the occurrence of any “accident” as the term is customarily understood. There is no contention of any sort of traumatic injury and it is clear that plaintiff’s claim to recovery of necessity must and does depend exclusively upon a connection between his occupational employment and the aggravation or exaggeration of his disability as the result thereof which has been so comprehensively enunciated by the wording of his petition as first above quoted.

It is further to be observed that the conclusion of this case must ultimately be resolved upon the basis of the medical testimony incorporated in the record before us since, as above noted, there is no contention of any traumatic injury or any other nature of accident in the customary and accepted understanding of the term. The relevancy of the lay evidence therefore is concerned only with the facts surrounding [455]*455plaintiff’s employment and the development of the physical affection, about neither of which, fortunately, is there any material conflict.

In the performance of the duties of his employment plaintiff was engaged in the dimensional cutting of small boards of varying widths. The physical and mechanical features in connection with plaintiff’s operations have been impressively illustrated in the instant case by the introduction of motion pictures, as well as still photographs demonstrating the operation of the mechanical appliance in the sawing of boards designed for use in the employer’s furniture manufacturing business. Admission in evidence of the pictures tendered by defendant met strenuous objection on the part of counsel for plaintiff in the trial court, which has here been re-urged. We think it proper to dispose of this objection before proceeding further with this opinion.

The learned judge of the trial court correctly overruled the objection. It is true, as urged by plaintiff’s counsel, that the pictures offered in evidence demonstrate the operation of the saw under somewhat different circumstances and by a person other than the plaintiff. However, the purpose of the exhibits was not intended to simulate the operation as performed by plaintiff but was designed to reflect the nature of the machinery and the ordinary method of operation.

We think counsel’s objection goes to the weight rather than the admissibility.

As was said by Mr. Justice Simon in the opinion of the Supreme Court in State v. Palmer, 227 La. 691, 80 So.2d 374, 382:

“In this modern era it has been universally recognized that courts must take judicial cognizance that all civilized communities must perforce rely on photographic pictures in presenting inanimate, natural and physical objects and resemblances of persons. * * * In determining their admissibility, proper inquiry should be made to ascertain whether such evidence would clarify some material issue and would afford the court and the jury a clearer comprehension of existing physical facts and throw greater light and more accurate appreciation of the weight, if any, to be given the oral testimony.”

In our opinion this use of the medium of visual impression in this case has been a source of greater enlightenment to the court than any number of printed pages of descriptive matter, and there has been not the slightest prejudice to plaintiff.

The pictures to which reference has been made indicate that an employee engaged in the work required of plaintiff generally took a position facing the metal table supporting the mechanically operated ripsaw; that quantities of small boards were stacked by a fellow employee on the table to the left of the operator’s position; that the operator reached to his left, procured a board, placed it on the guide, adjusted a dimensional gauge which was located slightly to his right on the surface of the almost waist high table, and after adjusting the gauge to the required measurement then forced the board through the saw, following which it was carried to the opposite end of the table where it was received by the employee charged with the duty of “tailing” the saw, who, if necessary, returned the board to the sawer by sliding it down the table to the sawer’s left-hand side. This operation was constantly repetitious and it is established that for the greater part of the time plaintiff was employed in this operation, between August, 1953 and March, 1954, the nature of the operation of the employer’s business required the frequent changing of the dimensional gauge which would, in fact, require plaintiff to keep his head for considerable periods of time in a fixed position, turned down and to the right from the normal level. However, it is also established that this operation did not require, as was alleged by plaintiff in his petition, a persistently rigid position of the head and neck, but was frequently relieved by the necessity for turning to the left. It is noted that the contentions of plaintiff’s counsel have been somewhat adapted to the establishment of this fact in that now it is contended that both the rigid position of plaintiff’s [456]*456head and neck for considerable periods of time and the repetitive turning to the left and back to the right are connected with and contributed to the development of his affliction.

As above stated, plaintiff first noticed a feeling of tautness of the neck, accompanied by a drawing to the right, sometime during the month of March, 1954. At first plaintiff dismissed his feeling of discomfort on the assumption that he was suffering from a “crick” in the neck, but the condition grew worse and plaintiff reported the matter to his foreman and requested that he be temporarily shifted from his work as sawyer.

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Bluebook (online)
83 So. 2d 453, 1955 La. App. LEXIS 982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sparks-v-employers-mutual-liability-insurance-lactapp-1955.