266 F2d 528 Employers Liability Assurance Corporation v. Textor

266 F.2d 528

EMPLOYERS LIABILITY ASSURANCE CORPORATION, Limited, and Williams McWilliams Industries, Inc., Appellants,
v.
Elmer TEXTOR, Appellee.

No. 17586.

United States Court of Appeals Fifth Circuit.

May 19, 1959.

A. Morgan Brian, Jr., Deutsch, Kerrigan & Stiles, New Orleans, La., for appellants.

Herman M. Schroeder, Maurice A. Lonergan, Jr., New Orleans, La., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and BROWN, Circuit Judges.

PER CURIAM.

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1

The record in the trial of this Louisiana Workmen's Compensation case is sufficient to show that while lifting a heavy half-track tread appellee suffered pain in his back sufficient to cause him to go the following day to a hospital for treatment. Although the testimony of some six or seven physicians made a strong case for the trial court as fact finder that he had no permanent injury resulting from this episode, the testimony of the single favorable witness, Dr. Kirgis, even though severely challenged, coupled with the lay testimony given by Textor and his wife, was sufficient to make a fact issue both as to the accidental origin of the condition and as to its continuance to the date of trial. For discussion of the law in a similar "borderline" case see W. Horace Williams Co., Inc. v. Serpas, 5 Cir., 261 F.2d 857.

2

The judgment is affirmed.