The plaintiff in this suit as the widow of Alvie Leonard, seeks to recover in her own behalf and for the use and benefit of her minor child, Alvie L. Leonard, Jr., workmen's compensation benefits at the rate of $30 per week for a period of 300 weeks together with medical expenses in the amount of $250 and burial and incidental expenses in the amount of $300. The petition recites that the decedent, who was employed by defendant as a pumper and dredge boat operator, died from a heart attack which was brought about by being compelled to work under conditions involving extreme heat and heavy physical condition. The answer sets up a general denial and the allegations that the decedent died as the result of an acute coronary thrombosis which was the result of natural causes and which was not in any manner connected with his employment.
The Lower Court ruled in favor of the defendant and the matter is before us on an appeal taken by the plaintiff.
The record shows that on Sunday May 27, 1956 the decedent was operating a floating dredge in the Amite river in the Parish of St. Helena. He arrived at the dredge about 9:30 or 10:00 o'clock in the morning and, with the assistance of one Basil Moore, started the engines and then commenced pumping operations by himself. While there is testimony in the record to the effect that it was very hot that day, there is also evidence to the effect that the sky was overcast and there were intermittent showers. A tarpaulin was suspended above the dredge operator. There is some dispute as to its then condition, some witnesses saying that it was in good condition and others saying that it was either burned or torn to the extent that it provided little, if any, protection from the sun's rays. Be that as it may, it seems clear that the dredge upon which the decedent was working measured approximately 20 × 30 feet, that it was open on all sides and that upon it were situated two engines.
One of the motors was a 30 horsepower gasoline engine situated on the left side of the dredge and located about 8 or 10 feet away from the operator. This motor was equipped with a fan which, according to some of the witnesses, blew outward and away from the operator. The other engine, a 160 horsepower Diesel was situated some four or five feet from the rear
The evidence indicates that the operator of this dredge could operate same from either a sitting or standing position by the manipulation of two levers. The gasoline engine described above provided the power for the levers and the Diesel motor provided the power for the pump. It appears that possibly two or three times a day the dredge boat itself may have had to be moved a little to change the position and this was done by slackening of the rope, anchoring the dredge on one side and tightening the rope fastened to the other side. However there is no evidence at all that on this particular morning the deceased found it necessary to move the dredge or to remove timber from the pump line. There were men within easy calling or hailing distance of the operator and would have been available had the deceased found it necessary to do any work beyond the ordinary operation of the dredge. He never called for help and there is no evidence in this record that it was necessary to move the dredge, or that same was moved, or to do anything else beyond the ordinary operation of the dredge, which in itself was not physically strenuous in character. It appears that after working some two hours or more the deceased stopped the operation, left the dredge, went to shore and asked to be taken to a doctor, complaining of indigestion from having eaten too many bananas. He was placed in a truck and taken to his home where he was examined by Dr. A. L. Lewis. According to the doctor, while he was in a state of shock that night, he found him to be reasonably comfortable the next day. His condition was satisfactory until the following Friday, June 1st, when he had a sudden attack, from which he died. The certificate of death signed by Dr. Lewis stated that the immediate cause of death was coronary thrombosis due to coronary heart disease with infarction.
Professor Malone in his work on Louisiana Workmen's Compensation Law and Practice, Sec. 214 at page 267 comments on cases such as this as follows:
Dr. Lewis gave the following pertinent testimony:
The trial judge rendered written reasons for judgment wherein, relying to a great extent on the testimony of Dr. Lewis, he concluded that the decedent's attack occurred in the truck on the way home and had no connection with any trauma or exertion which occurred at the dredge. We cannot say that he erred in so holding. Assuming that it was established as a fact that the decedent's duties were strenuous and performed under conditions of extreme heat (which we do not find here) we still do not believe that the burden of proving the causal connection between his work and the attack has been discharged. The plaintiff produced an expert who gave some interesting testimony regarding the effect of heat upon the heart, but his testimony falls far short of establishing the required proof.
The plaintiff in a workmen's compensation case, as in any other case, bears the burden of proof and is required to establish his or her claim to a legal certainty by a reasonable preponderance of the evidence, and that establishment of a claim to the extent only of possibility or even of probability is not sufficient.
This case is somewhat similar to the case of Kraemer v. Jahncke Services, Inc., La.App., 83 So.2d 916. Under the circumstances of this case, to hold that the heart attack was due to the aggravation of his work would in effect make the employer an insurer of the life of the deceased, which the Compensation Law never intended however liberally it is supposed to be construed in favor of the employee.
For the reasons assigned, the judgment appealed from is affirmed.