Stanley v. Lutcher-Moore Lumber Co.

126 So. 579, 15 La. App. 628, 1930 La. App. LEXIS 125

• Court: Louisiana Court of Appeal
• Decided: March 5, 1930
• Docket: Nos. 560 and 722
• Status: Published

Opinions

ELLIOTT, J.

Daniel Stanley, an employee of Lutcher-Moo're Lumber Company, alleges that he was a member of the team gang, and, while assisting in loading logs in the woods for transportation to its sawmill, and in the act of rolling a log with a cant hook for the purpose of loading it, the hook tore loose, letting it roll hack against his leg, bending his leg sideways at the knee, badly spraining the knee joint, tearing the ligaments and muscles in same, and pushing the kneecap up; that the accident occurred on July 14, 1928; that said injury has rendered him a permanent total disability, unable to perform labor or work of any reasonable character. He sues for compensation under the Workmen’s Liability Act, claiming 65 per cent of his weekly wage of $13.50, for a period of 300 weeks, and $250 for doctor’s services, medicine, and X-ray photographs.

Defendant denies that plaintiff received an injury, as alleged, and urges that, if plaintiff suffers any disability, it is not due to any accident or injury occurring while performing services arising out of and incidental to his employment by defendant; that at the date of the alleged injury plaintiff was suffering from chronic rheumatism, which condition was in no wise affected by any occurrence for which defendant is responsible.

The plaintiff recovered a compensatory judgment in the lower court for $8.78 per week, for a period of 175 weeks, and $15 for medical services, expenses, and doctor bills; the judge giving written reasons for his judgment.

Defendant has appealed.

Plaintiff, testifying as a witness in his own behalf, stated that he was hurt while rolling a log on the ground with a cant hook for the purpose of loading it on a wagon; that the log was crooked and the hook tore out, letting it roll back and strike him on the leg, hurting his knee; that it occurred on Saturday evening between 4 and 5 o’clock just at quitting time; that the log which hurt him was the last one loaded out that evening. But in another place he stated that the log which hit him was next to the last one to be loaded, that he had to handle; and in response to further questions said:

“If I don’t make any mistake thereabouts Mr. Nelson helped me with the last log.”

Pressed closer, he answered: “I do not remember whether I handled any other one, to be sure, or not”; that Mr. Nelson was present, saw it, heard him groan, came to him, and asked him how bad he was hurt.

Further questioned:

“Q. Tell how that log, if it was only 12 or 16 inches in diameter, could hit your knee?

“A. It hit my leg (showing) and wrenched my knee.

“Q. What part of your leg?

“A. It was on this side, here.

“Q. How far from your ankle?

“A. Something between half way from my ankle, maybe up to 4 inches on my leg, there.

“Q. Where it hit you on the leg, did it skin it, make a bloody spot, anything?

“A. I suffered too much to pay any attention to it.

“Q. You didn’t see any bruised part' on you leg?

“A. No, sir.

“Q. You had your pants on?

“A. Yes, sir.”

Lee Nelson and William Kingrey claim to have seen the accident. The former, asked if he was present when Daniel Stanley suffered an injury in the woods, said:

“Well, I suppose I was right there. I understand he says he was on a wagon, and I know I was on a cart.”

He further stated:

“We pulled in on the skidway as I backed up the cart and the log slipped or rolled, and I heard him groan. I said, ‘Look out Uncle Buddy.’ I get down and goes around and the old man was holding to his leg. That was about all there was to it. I asked him, are you hurt, and he said, a little bit, and that was all to it.”

He testified that he knew that the log rolled, and that they were supposed to have a cant hook, that, after hearing plaintiff groan, he went around to him and asked him if he was hurt, and he said, “Yes,” and was pressing his hand to his knee like he was hurt.

“Q. What did he do after that?

“A. I declare, I don’t know. He worked right on so far as I was concerned the balance of the day.”

Asked when it happened, he replied that, he could not tell whether it was beforé noon or after noon; that his back was to the plaintiff, and he did not see the accident; that it seemed to him that he was on a cart, and as he backed up the log fell; that a cant hook is used in rolling logs on wagons, but not for the purpose of loading carts. It also seemed tt, him that they did some work after plaintiff said he had been hit by a log. The witness was very firm in his belief that he was driving a cart. It was Nelson’s team that was being loaded, and, if he was driving a cart, the plaintiff and William Kingrey, who both say that plaintiff was injured while loading a wagon and using a cant hook, are discredited concerning a matter which is the foundation of plaintiff’s case.

William Kingrey testifies that he was driving a wagon for defendant at the time, and saw the plaintiff get hurt; that plaintiff had a cant hook and was rolling a crooked log; that it rolled nearly over, the cant hook tore out, and let it roll back and hit his left leg. Plaintiff hollered when the log hit him, and Lee Nelson asked him: “Are you hurt?” Plaintiff replied, “Yes, I believe I am hurt pretty bad,” and that plaintiff has been complaining with it ever since. He also testified that it was between 4 and 5 o’clock in the evening; they were getting their last load. Plaintiff did not work after he got hit, but got on a wagon and went to the lot, there caught the train, and went into camp with them.

The witness Kingrey testified in open court on February 16, 1929. On February 19, 1929, he signed a statement prepared by the agent of an insurance company, which contains important facts inconsistent with his testimony given previously on the stand. Defendant urges this against the credibility of his testimony in open court. At the time of the' trial Kingrey was only 21 years old, and testified that he could neither read nor write; that the statement was not read to him, and in signing it he thought he was signing the testimony he had given in open court.

F. J. Kent, witness for defendant, testified very straightforwardly that he himself read the statement to Mr. Kingrey before Kingrey signed it. But, in view of Kingrey’s denial that the statement was not read to him, his declaration that he could not himself read it, and that he thought he was signing the statement he had given in open court, we have not given the statement any weight against his testimony.

Various facts and circumstances elicited during the examination of this witness in open court indicate, however, that he was very friendly to the plaintiff. He testified that he came in on the caboose with the plaintiff, occupied a seat two or three men from him, and that plaintiff complained within his hearing that his leg hurt pretty bad; that Mr. Berry, the woods foreman, and Mr. Nelson were both near plaintiff in the caboose, and also heard what he said.

Mr. Berry testified that he saw plaintiff in the caboose, but that he did not hear him complain of having been injured.

Mr. Nelson also declared that plaintiff did not complain to him while on the caboose.

Plaintiff testified that he came in on the caboose from where he had been injured, a distance estimated by him at about 10 or 12 miles; that he knew nearly all of the men in the caboose. Asked if he was not in considerable pain when he was coming in, he replied, “Right smart, not till about the sun went down, my leg was perfectly numb,” but that he did not remember complaining of his injury to anybody in the caboose.

If plaintiff had been suffering from a serious injury received as alleged, it would have been a natural impulse to speak of it to his friends and co-laborers. He testified that, after he got off the caboose, he was almost past going at all.- But at the same time, so he claims, he got off the caboose, without help, on one foot, and hobbled along until he was picked up and carried home. After making this statement that he “hobbled along” until he was picked up and carried home, he was asked if he was not in great pain at the time he got off the caboose, and he replied, “In this knee when I was hurt, it was beginning to come to more feeling and was hurting me awful.”

The evidence shows that Dr. Price, a physician in the employ of defendant, had an office within about 100 yards of the place where plaintiff left the caboose, and that this doctor had treated plaintiff for a knee trouble 3 or 4 years previously. But the plaintiff made no effort to see Dr. Price, and did not ask about him. If a log had rolled back against plaintiff’s leg, say an hour or two before, bending it sideways at the knee, badly spraining the knee joint, tearing the ligaments and muscles in same, and pushing up the kneecap, as he alleged, and causing him severe pain, he would have felt moved to call on this physician, so close by, and solicit his help before going home. This voluntarily going away from an available physician without explanations, within, say, a couple of hours or sooner, after the alleged injury, is not what a man ordinarily would have done. The evidence shows that he got into an automobile with his brother, Dock Stanley, at the place where he left the caboose, and rode to Dock Stanley’s, between a quarter and a half mile distant. The plaintiff lived about 360 yards beyond Dock Stanley’s, but, when he got to Dock Stanley’s house, he got out of the automobile and walked the 300 yards to his own home, unassisted.

John Stanley, a brother of the plaintiff, was at Luneta, the place where the caboose stopped. He says that he saw plaintiff when he came in and went out to where he was, and plaintiff told him that he got bumped with a log. The same evening, John Stanley says, he went to plaintiff’s house; that plaintiff was sitting on the back porch holding his knee; that witness saw his knee; it looked to him a little swollen; he rubbed it in an effort to get it in place; that plaintiff was in misery at the time.

Dock Stanley, the other brother, was also at Luneta when plaintiff got off the caboose. He testified that he saw him standing with his hand like that on his left knee, and it called his attention. He went up to him and asked him what was the matter, and Daniel Stanley said, “ ‘I hit my knee today on a log.’ So I told him to get in my automobile and I took him to my house.’’ He further testified that, after getting to his house, plaintiff voluntarily got out of the automobile and walked home unassisted, a distance of about 300 yards. He was then asked:

“Q. Why did you not take him home that day if he was crippled?

“A. I asked him if he wanted me to, and he said he thought he could make it. He went on hobbling home. I was. willing to take him home.’’

That the next morning (Sunday) plaintiff’s wife and boy came to his house to get his son to take plaintiff in Dock Stanley’s automobile to see Dr. Price because he was suffering so bad. Dr. Price was not at home. The next day (Monday) he sent his son with his automobile to carry plaintiff to see Dr. Price again on account of his suffering with his knee.

Mrs. Stanley, plaintiff’s wife, says that, when plaintiff left home that morning, he was as well as he ever was, and when he got home he told her he had been hit with a log, and his knee was hurting him very bad. He was holding it when he came in, showed her where it was swelling and where it had been mashed with a log. There was no blood nor bruises, just swelling where it was mashed; that his kneecap slipped up where the log mashed it.

Dr. Price testifies that plaintiff came to see him Monday morning and told him that he had received a blow on the leg, something half way from his ankle, but that he was suffering with his knee. He found that an infusion had taken place in his kneecap, raising it up. Dr. Price was examined at length concerning plaintiff and his alleged injury, and also plaintiff’s previous trouble with his right knee. He diagnosed his trouble on the present | occasion as an infusion of a joint, a kind of infusion around the left knee joint, and gave it as his opinion that it was a rheumatic condition; that the condition of the joint did not, however, necessarily mean rheumatism.

This doctor testified that he saw no evidence of an injury, and did not think plaintiff could have received an injury that produced the infusion of the joint that existed in plaintiff’s knee without leaving some sign on the leg. He thought the blow, where plaintiff said the log hit him on the ankle, if severe enough to produce infusion in the knee joint, would have left some external sign on the ankle.

The doctor testifies that he treated plaintiff for rheumatism a few years before, when plaintiff had a similar trouble involving his right ankle and right knee; that the trouble was caused by the condition of his system; that it was common for a man to recover from rheumatism and have it again in the same form; that infusion of the joint could have been caused by an injury, but that rheumatism was what usually caused infusion of the kind existing in plaintiff’s’ leg. Required by the court to answer, he testified that about 4 years before he had treated plaintiff for a condition that usually caused infusion around the joint, and believed that condition, working in plaintiff’s blood at the present time, was part of his trouble. The doctor was firm in his opinion that the infusion in plaintiff’s knee was not the resúlt of an injury, as claimed by plaintiff, and therefore refused plaintiff’s request to put him on insurance.

Plaintiff admitted in his evidence that he had suffered with rheumatism in his right knee and hip some 3 or 4 years before, and had been treated for it by Dr. Price.

After plaintiff had been treated by Dr. Price, he consulted Dr. Martin, who had an X-ray picture made of his knee. Dr. Martin testifies that there was no fracture, but that he had an infusion in the joint, a fluid in the joint; that the kneecap was raised up, which, he stated, always existed in an infusion. Dr. Martin, basing his opinion on the history of the case as given him by plaintiff, says that the condition in plaintiff’s knee was not due to rheumatism, but to an injury received as claimed by plaintiff. He said, however, that without plaintiff’s history he would only say that plaintiff had an infusion in the joint, which might be due to injury, might be due to tuberculosis, to rheumatism, or to any infection.

Dr. Holcomb was. asked:

“Q. Do you think, doctor, that if he (meaning the plaintiff) had such a lick there that would cause this infusion, that he would be able to walk?

“A. Well, there would have to be a good deal of injury and trauma of a knee joint to produce an infusion.

“Q. You think if enough to produce an infusion there would be likely some mark on the leg?

“A. Liable to be. The pain would in all probability be so intense a man could not get around, if there was enough to produce an infusion.

“Q.' If there was enough trauma to produce infusion it would incapacitate a man in that knee?

“A. It would.

“Q. You do not think he could walk 2 or 3 hundred yards?

“A. Depends entirely on the amount of the trauma.’’

Subsequently asked if he thought it reasonable that a man could walk 300 yards after he got an injury sufficient to cause an infusion to his knee joint, he answered:

“No sir, it is not common.”

Further questioned if he thought it reasonable and consistent with an injury to the knee sufficient to cause infusion, and he answered, “No, sir”; and gave similar answers to further questions along the same line.

Act 20 of 1914, sec. 38 (amended Act 38 of 1918), reads as follows:

“The word ‘accident,’ as used in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening, suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.

“The terms ‘Injury’ and ‘Personal Injuries’ shall include only injuries * * * or infections as naturally result therefrom. The said terms shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted.”

The burden of proof is upon the plaintiff to show that the infusion in his knee was the natural result of the striking of his ankle by the log, as alleged in his petition, or that it so activated and aroused into virulence a dormant condition in his system, and that his present incapacity is a natural result of this activation.

The plaintiff testifies that he left the scene of his alleged injury almost immediately, boarded a caboose used to take the men home from their work at the end of the day. The distance was 10 or 12 miles. The caboose was full of workmen nearly all of whom he knew, one of them being his foreman. If he had suffered a hurt of any consequence, it would have been natural for him to have complained of it to his fellow workmen. Only one of them, Mr. Kingrey, heard plaintiff complain. The plaintiff, in fact, could not remember complaining to anybody on the train. When the caboose reached Luneta, if plaintiff had been seriously hurt, he would ordinarily, upon getting out, have sought Dr. Price, an available physician. He was within 100 yards of Dr. Price’s office. Dr. Price had 3 or 4 years before treated him for a similar trouble in his right knee; he was acquainted with Dr. Price; it would have been a natural wish to see him before going home. But he made no effort at all to see him. He got into an automobile with Dock Stanley, and rode in if to Dock Stanley’s home; his own house being about 300 yards distant. Dock Stanley would have taken him home, and he testifies that he was willing to do so, but plaintiff voluntarily got out when he reached Dock Stanley’s, declined his offer to take him home, and walked home, a distance of about 300 yards, unassisted.

Disease must be traceable as the natural result of an accident before it is compensable.

Plaintiff’s actions speak louder than his words. They satisfy us that he had not received an accidental injury to his kneecap causing the infusion which was subsequently found to exist.

The opinion of the physician who had formerly treated him that the infusion was not the result of an injury, nor trauma, nor activated by a blow received on the ankle, but was the result of a dormant disease already existing in plaintiff’s system, which had at the time developed to the point when infusion set in, is felt to be convincing.

The judgment appealed from is erroneous, contrary to the law and the evidence.

For these reasons, the judgment appealed from herein is now annulled, avoided, and' s.et aside, and the judgment of the plaintiff is refused and rejected at his cost in both courts.

LECHE, J., not participating.