
    Dewey PENTON v. KAISER ALUMINUM & CHEMICAL CORPORATION and Firemen’s Fund Indemnity Company.
    No. 320.
    Court of Appeal of Louisiana. Fourth Circuit.
    Dec. 4, 1961.
    Rehearing Denied Jan. 2, 1962.
    Certiorari Denied Feb. 6, 1962.
    Dodd, Hirsch, Barker & Meunier, Wilfred H. Boudreaux, Jr., New Orleans, for plaintiff-appellant.
    Lemle & Kelleher, Thomas F. Jordan, New Orleans, for defendants-appellees.
    Before REGAN, YARRUT and SAMUEL, JJ.
   YARRUT, Judge.

Plaintiff appeals from a judgment of the District Court dismissing his claim for workmen’s compensation on an exception of no cause of action, without any pleading amendment or formal trial on the merits. In his petition Plaintiff alleged, inter alia, that on or about June 7, 1957, he was employed by Kaiser Aluminum & Chemical Corp. as an aluminum worker; that his employment necessitated his working in close proximity to dangerous electrical and mechanical equipment and that the aforesaid duties were part of the regular trade, business, or occupation of Employer; that for several months prior to June 7, 1957, he complained of headaches which resulted from working in close proximity to intense heat and, when his employer refused to transfer him from the immediate vicinity of the intense heat, he sustained painful injuries which forced him to terminate his employment on or about June 7, 1957; that his injuries have been diagnosed as a swelling and engorgement of the nasal mucosa from exposure to heat which, in which, in turn, blocked the sinuses and prevented adequate aeration, producing vacuum type of headaches.

The same defenses are urged here as were urged in Case No. 321 Whitworth v. Kaiser Aluminum & Chemical Corporation and Firemen’s Fund Indemnity Company, La.App., 135 So.2d 584, decided this day.

Since the allegations of the petition must be taken as proved on an exception of no cause of action, we cannot determine without competent expert testimony whether or not the first inhalation of intense heat was of sufficient degree to have caused the injury alleged, and the recurring inhalations merely aggravated the first injury.

We would like to be enlightened by experts as to the origin, effect and diagnosis of the ailment Plaintiff complains of.

For the reasons assigned in Case No. 321, referred to supra, the judgment of the District Court is annulled and the case remanded for further proceeding and trial according to law; costs, penalties and fees to await the final judgment on the merits.

Judgment annulled — case remanded.  