Opinion
No. 7345.
February 10, 1976. Rehearing Denied March 16, 1976.
APPEAL FROM TWENTY-FIFTH JUDICIAL DISTRICT COURT, PARISH OF ST. BERNARD, SECTION C, STATE OF LOUISIANA, HONORABLE RICHARD H. GAUTHIER, J.
J. Terrell Health, New Orleans, for plaintiff-appellant.
Lemle, Kelleher, Kohlmeyer Matthews, William S. Penick, New Orleans, for defendant-appellee.
Before REDMANN, MORIAL and BEER, JJ.
Plaintiff-appellant, Rivers Hall (hereafter, Hall) filed this workmen's compensation suit in the Twenty-Fifth Judicial District Court for the Parish of St. Bernard on October 4, 1974. Defendant-appellee, Kaiser Aluminium Chemical Company (hereafter, Kaiser) peremptorily excepted to Hall's petition, contending that Hall's claim had prescribed on October 1, 1974, one year subsequent to his alleged injury. After a full hearing on the exception, the trial court dismissed Hall's suit. The sole issue before us is the correctness of the trial court's determination that there was no merit to Hall's contention that he received wages in lieu of compensation, thus interrupting prescription. We find that the records supports the trial court's determination and affirm.
Since the suit was filed more than a year after the accident, Hall had the burden of showing that prescription had been interrupted. Gulling v. E. I. Dupont de Nemours Co., 228 So.2d 750 (La.App. 4th Cir. 1969.) The only evidence which he offered in support of this contention was his uncorroborated testimony that while he reported to work and received his pay until his discharge is December, 1973, he had not performed any services whatsoever following his alleged injury on October 1, 1973.
The only period of time that is really important to this decision is the period between October 1, 1973 and October 4, 1973. If Hall was, as he alleged, receiving what would constitute wages in lieu of compensation during that brief period, his suit filed on October 4, 1974 would be timely. However, the record supports a finding that this was not the case. We believe that the trial court was correct in making a credibility determination adverse to plaintiff. There was a direct contradiction between witnesses in connection with the question of whether Hall Worked or just sat around during this crucial period and we will not disturb the trial court's credibility call. Canter v. Koehring Co., 283 So.2d 716 (La., 1973).
The judgment is affirmed at appellant's cost.
Affirmed.
ON REHEARING
Able counsel for appellant has made timely application for a rehearing based upon the contention that the uncontroverted testimony of the plaintiff must be accepted as true citing, as authority, Excel Finance Mid City, Inc. v. Williams, 205 So.2d 846 (La.App. 4th Cir. 1968). While the record supports a conclusions that plaintiff's testimony is, in fact, controverted, we have, nevertheless, given consideration to this contention particularly because of the dissenting opinion of our colleague.
We are more persuaded by Polit v. Babcock, 232 So.2d 916 (La.App. 4th Cir. 1970) in which this court reiterated the rationale expressed in Franklin v. Texas Pacific Railroad Co., 35 So.2d 251 and 35 So.2d 867 (Orl.La.App. 1948). In Polit, supra, this court stated that:
"While it is true that the testimony of a plaintiff alone may be sufficient to support a claim, it is equally true that these circumstances require testimony that is consistent and in keeping with those points of reference which are known to the court . . . Here, the trial judge, noting that the plaintiff's testimony concerning flooding was at odds with the official weather data and certain alterations made by the defendant, concluded that the plaintiff's evidence concerning these damages did not meet this test. We see no manifest error in this ruling."
In Hollier v. Broussard, 220 So.2d 175 (La.App. 3rd Cir. 1969), the court affirmed a trial court's judgment denying plaintiff-appellant the right to proceed in forma pauperis. The only evidence at the hearing was the testimony of the plaintiff. The court stated:
"However, the trial court did not accept as credible the plaintiff's testimony as to his lack of income . . .
"We are unable to hold that the trial court committed manifest error in construing the testimony of the plaintiff, and the context of the entire circumstances reflected by it, a showing that the community earnings were substantially in excess of that which the plaintiff testified. The uncontradicted testimony of a witness should normally be accepted as truthful. Nevertheless, this principle does not apply when the record reflects circumstances reasonably casting doubt upon the credibility of the witness." (citations omitted).
In Ramos v. Matson Nav. Co., 316 F.2d 128 (Ct. of App. 9th Cir. 1963), the court stated:
"We have long since abjured the notion that a court cannot reject uncontradicted' testimony that it find not worthy of belief."
In Wood v. C.I.R., 338 F.2d 602 (Ct. of App. 9th Cir. 1964) the same court observed that:
"We know of no rule that uncontradicted testimony must be accepted by a court finding the facts, particularly where, as here, the testimony is given by interested parties. These parties appeared in person before the Tax Court and the court had the opportunity to note the demeanor and manner of testifying of the witnesses, the mode in which they responded to questions on cross-examination, their readiness to answer or hesitation as the case may be, and all these are matters as to which we have no equal opportunity of judging. We were confronted with a similar situation in National Labor Relations Bd. v. Howell Chevrolet Co., 9 Cir., 204 F.2d 79, 86, where we stated: `Respondent maintains that the trial examiner was obliged to accept as true statements made by its own witnesses when those statements were not contradicted. It says: "It is well settled law that where a witness' testimony is not contradicted, a trier has no right to refuse to accept it." This is an ancient fallacy which somehow persists despite the courts' numerous rulings to the contrary. It overlooks the significance of the carriage, behavior, bearing, manner and appearance of a witness, — his demeanor, — when his testimony is given orally in the presence of the trier of facts. As stated by the Court of Appeals for the Second Circuit in a recent case, Dyer v. MacDougall, 201 F.2d 265, 269: "Moreover, such evidence may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies."'"
Wigmore, in his work on Evidence, Third edition, Volume 7 Second 2034, page 260 states:
"Conversely, the mere assertion of any witness does not of itself need to be believed, even though he is unimpeached in any manner; because to require such belief would be to give a quantative and impersonal measure to his testimony."
We believe that the expression of the court in Wood, supra and the observation by Wigmore states the correct position and we adopt it here. The application is denied.
REHEARING DENIED.
Defendant's foreman's testimony is that plaintiff was on light duty from other causes prior to this accident, cleaning and sweeping instead of doing his regular heavy work. The foreman was on vacation one to three weeks after the accident. Upon his return, he found plaintiff continuing to do light work, he testified, eight hours a day, "except the days that the medical department sent him to [sic], which I suppose was for sitting [doing nothing] it was without my knowledge and without my permission." The testimony supports the conclusion that part of plaintiff's wages was in lieu of compensation. The exception of prescription should be overruled.