
    No. 3972
    Second Circuit
    HORN v. LOUISIANA HIGHWAY COMMISSION ET AL.
    (July 14, 1931. Opinion and Decree.)
    Cas Moss, of Winnfield, attorney for plaintiff, appellee.
    R. W. Oglesby, of Winnfield, attorney for defendants, appellants.
   DREW, J.

Plaintiff sued for compensation in the amount of $15.60 per week for a period not to exceed four hundred weeks, alleging that he was in the employ qf the Louisiana Highway Commission, and while doing the work he was employed to do, that is digging, a ditch, that the ditch caved in on him and permanently injured him. The ditch was nine feet, six inches deep and about three feet wide when it caved in, burying the plaintiff all but his face. He was confined to his bed for about one month and continued under the care of his doctor up to time of trial. He claims to be totally permanently injured and unable to perform any labor of a reasonable character. The defendant admits the accident and the injury at the time and the' only contest in this suit is over the extent of the injury received by plaintiff. The injury was received by plaintiff on December 2', 1928. The case was tried in the lower court and judgment rendered October 28, 1930, awarding the plaintiff compensation for total disability for a period of fifty-two weeks. Defendant has appealed and plaintiff has answered the appeal, praying that the judgment be amended by increasing the number of weeks not to exceed four hundred.

The principal defense made is that plaintiff is a malingerer and was fully recovered long before the trial in the lower court. The lower court found to the contrary, holding that plaintiff was totally disabled at the time of trial and for reasons not disclosed by the record as made up awarded him compensation for a period of fifty-two weeks, beginning on the date of accident.

The lower court undoubtedly must have had some testimony on which to base the period of compensation allowed by it. If the plaintiff was totally disabled at the time of trial as found by the lower court, without any evidence to show -with some degree of certainty that he would fully recover at some definite future period, the judgment should have been for a period not to exceed four hundred weeks. We say this for the reason that the record of the testimony is in very bad shape. As an example of the kind of record made of the testimony we quote the following taken from it: “Upper part of________________”; “in the ligament or cap___________________________”; “(Witness explains to Court)”; “(Doctor explains to Court)”. Such a transcript of the testimony means nothing to this court.

It is the rule of the court when the record is incomplete to assume that the lower court based its judgment on sufficient evidence and affirm the judgment. However, in compensation cases all rules of procedure and of trial are not strictly followed, and in this case where both appellant and appellee are asking that the judgment be changed, we feel that in fairness the case should be remanded for a new trial in order that the record of testimony may be complete and for the further reason of hearing testimony more definite as to the extent of the injury and the earning power of plaintiff, if any.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be set aside and the case remanded for a new trial in accordance with' the views expressed herein; costs to abide the final determination of the case.  