Bernard v. City of Lafayette

ELLIOTT, J.

Antheole Bernard alleges that while in the pursuit of his regular business as an employee of the city of Lafayette as water line helper, a pipe which he was carrying fell on his left leg causing injury to the shin bone. That the accident occurred on or about January 20, 1927.

That he was receiving at the time a weekly wage of $15 per week, and was by said injury totally disabled. He claims of the city of Lafayette, as compensation on account of his’ injury and disability, 65 (per cent of his weekly wages, not to exceed 300 weeks.

That he has since the accident been under constant care of a doctor, and is therefore entitled, in addition, to $250 for hospital service and medicine.

An exception was filed by defendant that plaintiff’s petition did not disclose a right or cause of action. The minutes of the court do not show that it was acted on in the lower court. It is not urged in this court; we therefore look on it as having been abandoned.

The principal defense is that any injury or disability which the plaintiff presently suffers from is due to a long-standing form of eczema, and not to injury received in its employ.'

Due to the conclusion at which we have arrived concerning the defense mentioned, which involves the merits of the case, it is not necessary to consider or act on the further defenses urged in the answer.

The lower court rendered judgment in favor of the plaintiff, awarding him compensation at the rate of 65 per cent on his weekly wages during the term of his disability; not to exceed 284 weeks, and $250 for medical fees.

Defendant has appealed.

Plaintiff states that his work consisted in (putting in pipe lines, digging ditches, laying water pipes and mains. Asked to explain what he was doing and how the accident happened, when he scratched or cut his left leg, he answered in effect as follows: “I was working on pipes weighing about 3 or 4 hundred pounds and one of them slipped and the iron part struck my left leg below the knee about 6 inches. I did not think it was very much. On Sunday night at 12 o’clock it woke me up and when I wanted to get up Monday morning I could not stand on my leg.” He further testified that he was told to move the pipe by Joe Mouton, foreman, in the employ of the city, and under whom he was engaged in the work. That he was hurt on Saturday evening about 20 minutes of 4, near quitting time. That he returned to work Monday morning, but that about 8 o’clock, Joe and Ulysse Mouton, who had gone to run a line, got back and he was sitting on a box. When he got up he could not stand very well. Ulysse Mouton asked what was the matter, and he answered, Saturday where that pipe struck him his leg was stiff.

“Q. Did you return to work for the City after that time?

“A. I returned in 3 or 4 days, I do not remember exactly. I had treated my leg and I was still limping, but I returned to work.

“Q. Tell the court just how that sore grew for the first two or three months after the accident.

“A. After the accident eruptions began growing out around the sore, and then it went up.

“Q. How long after the accident you first noticed these lictle boils around this sore?

“A. About 8 or 10 days after they began to come out, pimples and little heat eruptions.”

Plaintiff’s statement as to how he received his alleged injury leaves uncertain what he was really doing. He says he was working on the pipe; hut if in lifting it, it slipped and fell, and his ankle was pressed against it so hard as to get scratched in the fall, the falling pipe would almost necessarily have mashed his foot. But there is no claim that his foot was injured. Then again, his ankle, being likely shielded by his clothing, did not come in contact with the iron, unless he had his pantaloons rolled up, and there is no contention that the naked skin was exposed to the iron. And if his naked skin did not come in contact with the iron, there could not have resulted an infection from it, as he claims. His testimony doe's not support the averment in his petition that his shin bone was injured. He claims nothing further than a scratch on his ankle.

Joe Mouton was not present at the time of the alleged injury, but remembered that plaintiff told him about it, he thought, on the next day after the alleged accident; but the next day was Sunday and he did not see plaintiff until plaintiff returned on Monday morning. It was therefore on Monday morning that (plaintiff told him about it. He says that he looked at the alleged injury received on the previous Saturday and that it consisted of a scratch on his leg, which was kind of swollen and red, not in very bad condition.

Ulysse Mouton testifies that plaintiff told him about receiving an injury to his leg. This witness thought it was the next day after the alleged injury that plaintiff told him about it, but the next day was Sunday. It was on Monday when plaintiff returned to work, he told him about it and showed him the place. Witness states that it was just a little scratch.

An insurance agent called to see plaintiff to pay him some insurance. The exact day does not appear, but evidently about a week after the alleged injury. The witness, speaking of plaintiff’s leg at th'e time he first saw it, .says that it had a scratch on it about six inches long, with redness around it.

Mrs. Bernard, wife of plaintiff, speaking of the injury when plaintiff reached home the evening it was received, says he had gotten hurt and had a bruise on his leg. She treated it and he returned to work.

Dr. J. O. Duhon examined (plaintiff abcut three months after the alleged injury. At that time plaintiff’s whole body was covered with eczema. This physician says that the form of eczema with which plaintiff is afflicted commences over a long period of time in the system and gradually develops until in its natural course it manifests itself. That it is caused by a microbe and, with reference to plaintiff’s case, he did not know what brought it about. That a person with an abrasion on his leg, working in mud and water, would be subject to infection, but might just as likely have gotten it shaving himself. That it is not necessary that there be an abrasion of the skin in order to bring on eczema; that it could be caused by nervous trouble, and in other ways.

Dr. Clark, appointed by the court to examine plaintiff at the time of the trial, returned that he found his leg and ankle dry and scaly, with isolated spots of eruption and scratch marks over the surface. That papules and scratch marks were (present over his whole body, especially his extremities. He was unable to say whether the condition of the plaintiff was caused by any previous injury or not.

Dr. Oliver had also examined plaintiff, and he said, basing his opinion on the history of plaintiff’s case, that infection had existed a year or less. But without the history, he could not tell how long it had existed. That observation of plaintiff’s disease indicated that it had existed about a year at the time of his examination, which was in November, 1927.

Returning to plaintiff’s testimony that he returned and worked three or four days, but was at the time still limping. The evidence shows that on his return he worked at least one day repairing a broken pipe line. The pipe line was laid in a ditch under the ground; this ditch contained water from the broken pipe. The evidence shows that the water in the ditch in which plaintiff worked was the same that the citizens of the city of Lafayette used for household purposes. It will be assumed to have been, and undoubtedly was, pure water. But it may be, we think, also safely assumed that there was some soil in the ditch which the water transformed into mud, and there is evidence that working in mud and water may result in an infection, or aggravate an existing condition.

But it was three weeks or a month after plaintiff’s alleged injury before he returned and worked in the ditch. He was questioned about the result, and replied:

“Q. Tell the court what happened to that left leg after this day’s labor that you performed for the city of Lafayette, that you just described?

“A. The next day I could not return to work, my leg was hurting me too badly.

“Q. Did your leg get better or worse after that?

“A. Worse.”

Under the law disease must be traceable to an accident before it is compensable.

The burden of proof is upon the plaintiff to show that the scratch exhibited to Joe and Ulysse Mouton Monday morning was received in the way alleged, that the disease with which he is suffering grew out of this scratch, or that same was thereby activated into the form in which it incapacitated him.

The fact is eczema is an itching disease producing in the sufferer an uncontrollable desire to scratch himself. Plaintiff had scratches all over his body.

The evidence leads to the conclusion that, while the incapacity which plaintiff suffered may possibly have resulted as claimed by the plaintiff, or a dormant eczema already existing in his system may have been in that way activated and aroused to virulence, yet it is indicated, with equal or greater force, that it existed in his system previous to the time of his alleged injury, and became virulent as the result of its own natural development.

He does not claim in his testimony that working in a ditch containing water from a broken main, after he returned to work about three weeks or a month after his alleged injury, did more than make an existing condition worse.

It cannot be insisted that plaintiff left home well in the morning and returned injured in the evening, because the disease with which he suffers may have- been in his system, unknown to him, for months before the time of the alleged injury.

The word “acciddnt” is defined in the Employers’ Liability Act, Act No. 20, of 1914, sec. 38 (amended Act 38 of 1918) as follows:

“ ‘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 by violence to the physical structure of the body and such diseases or infections as naturally result therefrom. The said terms shall in no case be construed to include any other form of disekse or derangement, howsoever caused or contracted.”

It is not shown that the eczema with which the plaintiff is infected is the natural result of an accident received as alleged, nor that an existing condition in plaintiff’s system was thereby activated into virulence.

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

The judgment is therefore annulled, avoided, and set aside, and plaintiff’s demand is refused and set aside.

LECHE, J., not participating.