
    No. 2616
    Second Circuit
    MANES v. LOUISIANA CENTRAL LUMBER COMPANY
    (May 7, 1926, Opinion and Decree)
    
      (Syllabus lyy the Editor.)
    
    1. Louisiana Digest — Master and Servant Par. 160 (j).
    The proof in a Workmen’s Compensation case under Act No. 20 of 1914 clearly shows that although the plaintiff did actually lift a Ford automobile to swing it on the rails and felt a pain across his chest in the region of his heart his illness nevertheless was caused by a progressing disease of the heart from which plaintiff had suffered many years.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of Caldwell, Hon. F. E. Jones, Judge.
    Action by Sam J. Manes against Louisiana Central Lumber Company for compensation under the Workmen’s Compensation Act No. 20 of 1914. There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Long and McSween, of Shreveport, attorneys for plaintiff, appellee.
    Thornton, Gist and Richey, of Alexandria, attorneys for defendant, appellant.
   WEBB, J.

This quit is brought under the employers’ liability act. for. injuries, alleged to- have been received by the plaintiff while in' the employ of the defendant.'

He alleges:

“Your, petitioner, in the course of his-work and arising out of the same, under-took to lift and turn around a Ford car' in the course of supervising, looking after- and inspecting for the maintenance and repair of tram ■ roads which the said defendant used for their- logging and sawmill purposes, and by reason of the same petitioner was so strained and-exerted that he was caused serious injury to the area-in and about his heart, producing a dilated and non-compensative heart and a weakening of the muscles, linings and structures of the said heart and in and about the same, thereby lowering petitioner’s vitality and strength, causing various impairments, weaknesses and disorders to the nerves, ligaments, muscles and other vital functions and organs of petitioner’s body and system, and particularly in and about the area of the heart, lungs, chest and other vitals of petitioner’s body, so that as a result of the same, from the date of said injury, at this time and for all time hereafter, the petitioner cannot do or perform any work or labor of any reasonable kind or character, etc.”

The defendant excepted that the petition failed to state a cause of action, and at the same time answered denying the material allegations of the petition upon which plaintiff based his right of recovery.

On trial in the district court judgment was rendered in favor of the plaintiff and defendant appealed.

OPINION

The evidence establishes that plaintff had been afflicted with a progressive disease of the heart for many years, and that it had reached a critical stage prior to the date of the alleged accident.

The theory upon which plaintiff contends he should recover is that, prior to the alleged accident, his condition was not such as to prevent him from working; that nature had taken care of the diseased condition of his heart by some great change, which is referred to as “compensation”, whch had enabled him to perform the services incident to his employment, but that in lifting and turning the automobile this natural process of “compensation” had been disturbed and would no longer take place and that he was thus disabled.

The plaintiff’s case is dependent upon proof of the following facts:

First, that he lifted and turned the car, and,

Second, that he received a strain and that there was a rupture or ‘break in “compensation” as the proximate result of the strain.

The only one of these facts which was susceptible of direct contradiction relates to whether or not plaintiff lifted and turned the car, as the question as to whether he received a strain is dependent upon a subjective symptom and the effect of the strain; whether or not it caused a rupture is dependent upon circumstances or conditons following.

The plaintiff’s testimony in support of his claim is in part as follows:

“Q. What happened to you in the course of your work in September of this year, (1925)?
“A. On the 28th • day of September, I was turning, around a Ford and got a strain in turning that car around in my left breast which was caused by picking up that car* * * .”

He further said that after the car had been placed on the rails, which was about seven o’clock, in the morning, he and. a negro, George Starks, rode out over the line for a distance of about eighteen miles to Camp No. 24 where Curtis Black joined them, and from there to the end of the line; that he became hoarse at about ten o’clock and was feeling so ill when he returned to the camp he went to the home of his sister-in-law, Mrs. Williams, at about 2 o’clock, remaining there until four o’clock, when he returned home and called Doctors Gardon and Hines, and that he spit up blood and was confined to his room for about four days.

George Starks, who was present when plaintiff claims to have lifted the car, was called by plaintiff and corroborated plaintiff’s statement as to plaintiff having swung the car upon the rails; however Starks was impeached by proof of a prior contradictory signed statement, and he, Starks, on being called by the defendant, when the cause was reopened, said that he did not remember anything about the incident.

It appears that plaintiff at the time he called Starks to the witness stand, knew of the version which Starks had made in the signed statement, having had a prior conversation with him in relation thereto, in which conversation plaintiff made a veiled threat against Starks if he persisted in the narartive of circumstances contained in the signed statement.

The evidence further shows that the car which plaintiff claims to have lifted and turned, was a Ford automobile which had been equipped for use on the rails, and that when properly adjusted upon a level track it required very little physical effort to swing it on the rails, and it is admitted that the car had been brought to the track (which the evidence shows was level) and adjusted by Starks, but plaintiff says that it required considerable effort for him to swing it.

It further appears that Curtis Black, who met plaintiff at Camp No. 24 at about 8 o’clock and remained with him until noon, did not notice that plaintiff was ill, and was not informed of the alleged accident, although he inquired as to plaintiff’s health; and it also appears that plaintiff did not mention the alleged accident to the physicians who were called to attend him after he returned home.

It further appears that the manager of the defendant company had a conversation with plaintiff on the 26th of September in which he told plaintiff that he would be temporarily discharged on the 1st of October and that on the 1st of October or soon after the alleged accident plaintiff was notified he would be let out, and plaintiff, after being so notified, called upon defendant’s officers but did'not notify them of the alleged accident, although he says he called upon them with that object in view.

As to whether or not the collapse of the plaintiff was due to the alleged accident, the evidence establishes that the disease with which he was afflicted had for some months prior to September 28, 1925, reached a stage where he might suffer a collapse with or without physical exertion, and he had in fact suffered similar attacks prior to that of September 28th on at least two different occasions; and as to whether or not “compensation” was broken at the time of the trial, the evidence is conflicting, one of the physicians stating that there was no “compensation” and another that there was fairly good “compensation”.

Giving a liberal construction to the evidence, in favor of the plaintiff, ignoring the circumstances which might be considered as intention suppression of the testimony of Starks, and conceding that plaintiff did lift the car and swing it on the rails, and that he did feel a pain across his chest in the region of his heart, we do not think that the evidenc.e establishes that there was a strain or rupture, but, on the other hand, we are of the opinion that the evidence indicates, if it does not establish that the illness of the plaintiff was due to the disease with which he was afflicted.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and plaintiff’s demands be rejected at his cost.  