ON THE MERITS.
The reason, apparently, why the District Judge did not render judgment for plaintiff on first hearing, and the reason why this court affirmed said judgment, was as said by the District Judge, because “we did this on the ground that there was not sufficient evidence in the record to connect the injury of plaintiff with his condition at the time of the trial; “or, in other words, that the accident of which plaintiff complains, was not shown to be the cause of plaintiff’s condition.
On a reconsideration of the case and a careful and painstaking study of all the facts and circumstances as disclosed by the record, we are of the opinion that the evidence does preponderate in favor of plaintiff’s condition and does warrant a judgment in his favor. It is patent from a mere cursory reading of the written opinion of the District Judge on last hearing that he, too, believes that, under' the present jurisprudence of the Supreme Court of this State, plaintiff is entitled to recover judgment. However, he says he prefers that his former judgment stand and that the case be again sent to this court, in order that, as he says, this “Court formulate its own policy for the future guidance of . this (District) Court.” Of course, this Court will follow and be guided by' the decisions of the Supreme Court, in so far as those decisions are applicable to the cases under consideration by this Court.
The evidence discloses that plaintiff was a well and healthy man of approximately twenty three or four years of age, when while engaged in work as a “roustabout” for the defendent company in its operations for gas and oil, a rod hook of steel or iron weighing several pounds fell a distance *77of from fifteen to thirty feet and struck him on the head; that he was hurt thereby and became sick and lost two or three days from his work immediately; that, within a few weeks or months, he developed epileptic fits, so he swears, and in that he is not contradicted but corroborated by certain facts and circumstances hereinafter adverted to; that he was sent or directed to the sanitarium in Shreveport by defendants’s officers or agents, where he related his condition to Dr. Hendricks, who told him to wait a few weeks and if the fits recurred to return to him and he would operate on his head; that within a few weeks thereafter, plaintiff did return to Dr. Hendricks, at the sanitarium, and told him the fits had recurred and that he was willing to have the operation performed as previously suggested by Dr. Hendricks; that Dr. Hendricks performed an operation on plaintiff’s skull by removing a portion thereof in the exact place of the wound caused by the falling of said rod hook; that, although, Dr. Hendricks said he found no adhesions in the brain or the linings or membrances thereof, he trephined the skull and the fits ceased; that, since that time plaintiff has suffered almost constantly from hyperthesia (oversensitiveness) of the scalp and head and from high blood pressure; that the slighest physical exercise causes exhaustion and severe pains in the head and possibly other parts of the body, with a rapid and high rate of increase of the pulse and heart action; that even combing his hair causes great pain and irritation; that purgatives and aspirin have little effect on him; that he is able to sleep but little;., and, finally that he had lost in weight at least twenty-two pounds since the first trial in the District Court and up to the time of the second trial on April 1, 1924.
Plaintiff testified, and in that testimony was not contradicted, that he had never had any trouble in his life before the accident. There is nothing shown of his family history that might suggest a cause for the attacks of epilepsy which he suffered following the accident. Plaintiff’s counsel during the first trial had the following statement placed in the record.
“The plaintiff in this case is willing at any time that the defendant be permitted to show the family history of this plaintiff and to contradict the testimony which they submitted as to there being any prior epilepsy in any ancestor of the plaintiff.”
No effort or attempt was made by defendant to offer any testimony to show that there was anything in the family history of plaintiff that might- account for the epileptic fits which he said he suffered from after the accident.
It has been contended that plaintiff’s testimony to the effect that he had the fits and would become unconscious and foam at the mouth was and is uncorroborated by other witnesses. It is true no witnesses came into court who swore that they had seen him have such fits; but his testimony on that score is not only reasonable but uncontradicted by any one. Counsel for defendant did not see fit to ever cross-examine plaintiff on that part of his testimony. By their failure to exercise their right to cross-examine the plaintiff on so vital a point is almost, if not fully, tantamount to an admission that that portion of his testimony is true, particularly in view of the further evidence that it offered no other evidence to contradict that part of plaintiff’s damaging testimony.
Pretermitting, however, the foregoing reasons for accepting plaintiff’s testimony in reference to his physical condition, this significant fact stands out, as it were, in bold relief. Plaintiff said he suffered from the epileptic fits and the defendant accepted his statement to the extent that *78it sent him to the sanitarium and Dr. Hendricks, for treatment or an operation. Dr. Hendricks, after listening to plaintiff’s history of his alleged condition, examined him and, not being fully satisfied as to plaintiff’s condition, told him to go away and if the fits recurred to return and he would operate on his head. Plaintiff obeyed the doctor’s instructions and in a few weeks returned and told Dr. Hendricks the fits had recurred. That able and eminent surgeon found that it was necessary to operate on plaintiff’s he'ad in order to endeavor to relieve the’ possible pressure on the brain or reduce any adhesions that may have formed on the linings of the brain. He did ¡perform the operation and said he found no adhesions and that the operation was a success. Now, it is absurd to think that plaintiff, if he was feinging his condition or practicing a fraud on defendant, would, for the sake of a small compensation or the mere hope thereof, willingly submit to as serious an operation as removing a portion of his skull, and permit the delving into as delicate and vital part of his anatomy as the brain. The most compensation he would hope to get would amount to much less than one-half the amount he was earning before the accident occurred.
Again, as able a surgeon and expert as Dr. Hendricks, it occurs to us, would not have subjected the plaintiff to as serious an operation as he did and thus have jeopardized plaintiff’s health,'if not his life, unless he had found reasonable cause for such operation. We assume the doctor used the best known and latest methods of ascertaining plaintiff’s condition before he performed the operation; and we also assume that, after making use of the best known and most modernly accepted meth_ ods of dianosing plaintiff’s trouble, Dr. Hendricks, exercised his best judgment and employed his scientific knowledge in determining that an operation on plaintiff’s head was necessary to relieve the diseased condition or to remove the apparent cause of plaintiff’s trouble. Certainly, plaintiff, who was doubtless suffering, at intervals, from the fits, relied on the superior knowledge and skill of Dr. Hendricks, and submitted willingly to the operation. No one hut an insane person or an imbecile would submit willingly to such a serious operation as did plaintiff unless he were suffering some serious ailment.
Furthermore, plaintiff’s statement of his condition is strengthened by the fact that Dr. Hendricks testified that his operation was a success, and by the further fact that plaintiff says the fits ceased after the operation.
The testimony of Dr. Willis, who was appointed as a disinterested expert to examine plaintiff and report on his condition during the first trial in the District Court, as well as that of Dr. Cassity, fully accounts for the fact that plaintiff’s condition was the result of the said accident. Of course, there are perhaps other causes of for instance, the high blood pressure of plaintiff; but no such other causes are shown to exist in plaintiff’s case. Certainly it would seem that some of the expert physicians who examined plaintiff at different times could have found present some other conditions or cause of the high blood pressure of plaintiff than the injury he sustained and the consequent operation performed by Dr. Hendricks on plaintiff’s skull if such other condition or cause existed. As said by the judge of the .District Court, we can find no other reasonable cause of the high blood pressure and other trouble from which plaintiff suffers except the accident which befell him. That is such satisfaction of the judicial mind by a pre*79ponderance of the evidence that plaintiff’s condition was and is the result of the accident as to warrant judgment in his behalf.
Dr. Herold, who was also appointed by the court during the last trial to examine plaintiff and report his findings to the District Judge, in his report to the judge, among other things said:
“Examination reveals a man of fairly healthy appearance, with a scar on right .side of certex of skull; he complains of tenderness there, as well as general soreness over scalp. While the scar can be recognized, there is no pulsation in it, such as we find when part of the bone is absent. I find him generally, in good physical condition, except for slight enlargement of heart with increased blood pressure — 156/100 at my examination; his urine was normal. The reflexes on the two sides are symmetrical, indicating lack of pressure on the brain over motor areas. I talked with Dr. Hendrick, relative to the case and Dr. Hendrick confirms the history about as above. He informed me that he did a ‘bone-graft’ in the skull in this case, so as to obviate the danger of the brain covering becoming adherent to the skin tissues, with a recurrence of the epilepsy.”
The normal blood pressure of one of the age of plaintiff is shown to be 120 systolic and 90 diastolic. Dr. Herold says also in his report that: “On the other hand, I find no specific cause, otherwise (than the accident and operation, we take it) for the increase in blood pressure (which, altho not alarming, is considerably above the average normal for one of his age) unless it be due to the slight hypertrophy of the heart, which is fairly common in one who has done a large amount of manual .labor.” Now when plaintiff was examined by Dr. Cassity, nearly two years before the examination by Dr. Herold, the former found, so he• testified,, that:
Q. Have you had an opportunity to examine the plaintiff in this case, Mr. Male-by?
A. I did yesterday.
Q. Please state the result of your examination.
A. This man gave me a history of having been injured on June 10th, 1921, by being struck on the top of the head by a fourteen-pound rod hook. Among other things he. says that it knocked two of his front teeth out, the impact of the upper against the lower teeth; knocked unconscious for a short time, and that some few months, afterwards, did not know just how many after the injury, he began having epileptic fits, that he had about eleven fits, up to the time that he applied to Dr. Hendricks of the Highland Sanitarium for treatment, which he said was March 16th, 1922, when they operated on his skull, with the object in view of trying to relieve the epileptic fits, and he says this operation, in so far as the fits were concerned, has apparently been successful, as he has not had any fits since that time.
On examination, I find that there is a small area, about an inch in diameter, on the apex of the skull.
Q. Center of the head?
A. Yes, sir, where there is absence of bone, I judge due to trephining operation, removing the bottom of bone with the purpose in view of relieving intra tranial pressure. There is considerable tenderness all over the flat that was turned down during the operation, which extends to the center of the head, then runs downward, making a flap.
Q. From the center of the head down towards the ear?
A. Yes, sir. I find a tenderness over the area. With gentle exercise of the young man, I find his pulse rate, sitting down, 108, and after exercising him, by having him to hop across the floor five or six times, his pulse rate went to 168 per minute.
Q. One minute?
A. Yes, sir. His blood pressure systolic 158, diastolic 80. Examination of the *80urine showed ■ normal urine. I find that his wind is rather bad, that is to say, gives out readily on exercise. Now there are two striking features about his condition, which I tried to explain on grounds other than his injury. That is to say, tried to rule out everything else but the injury as the cause of this abnormally rapid heart, and the resultant high blood pressure. The heart rate, of a man of his age, should be along about 72 per minute.
Q. Seventy-two per minute?
A. Yes, sir, while his was 108 sitting down, and on exercise it jumped up to 168, that was not only relatively fast in relation to the sitting down pulse, but absolutely fast, for his age. In other words, showed that the heart was evidently very much disturbed, and the exercise disturbed it and made it more rapid in proportion than when sitting, looked as if the heart center of the brain is involved and disturbed. Now, as to the high blood pressure, it is necessary to take into consideration quite a number of causes for high blood pressure. So I proceeded to look for all of the other causes that I could find, for instance, I went over his body thoroughly, and tried to find evidence of syphillis, one of the causes of high blood pressure. I included in the general history he had no history of syphilis and I found no evidence of syphilis, no evidence of chanker, or scar anywhere, so I concluded that the evidence of syphilis was negative. I found no cause other than the head injury that could causes or seemed to be the cause, for the high blood pressure. We know that head injuries often times do cause extremely high blood pressure and a rapid heart.
It will be noted that Dr. Cassity said it “looked as if the heart center of the brain is involved and disturbed.” The fact that almost two years after Dr. Cassity made his examination of plaintiff and said it “looked as if the heart center of the brain is involved and disturbed,” Dr. Herold’s examination of plaintiff disclosed a hypertrophied condition of the heart, which was not disclosed in any of the previous examinations made of plaintiff before and during the first trial in the District Court. All tlié exp'éi'is 'agree ' that a blow or lick on the head may result in epilepsy, and also will cause high blood pressure, particularly if the heart center of the brain is injured, except Dr. Hendricks, who says it will cause slow pulse and low blood pressure. Dr. Willis, however, says it will cause either low or high blood pressure, depending on the portion of the brain that is injured.
Dr. Willis was again asked by the court during the last trial to examine plaintiff and report his condition to the court, which he did. He said in full:
Q. Dr. Willis, you are Dr. J. S. Willis, Sr.?
A. Yes, sir.
Q. You are the same Dr. Willis that examined Mr. Maleby the last time?
A. Yes, sir.
Q. Doctor, have you examined Mr. Male-by in the last few days?
A. Yes, sir; saw him yesterday.
Q. I will ask you what you find his condition now?
A. Practically about the same as the last examination; we made a written report and sent it to you.
Q. Do you remember the contents of the report?
A. Dr. Kerlin said that it had been sent, and if not he will bring it here.
Q. You found the blood pressure what?
A. The blood pressure, systolic, one hundred and eighty.
Q. What ought it to be in a man of his age?
A. What is his age?
Q., Twenty-six.
A. Ought to be one hundred and twenty.
Q. One hundred and twenty?
• A. Yes, sir. As I recollect it, diastolic one hundred and fifteen,"and it ought to be about ninety.
*81Q. Now doctor, the last time that you examined this man, it was one hundred and fifty-five systolic and one hundred to one hundred and five diastolic, does that indicate an improved condition, or worse?
A.. According to our examination yesterday, it is worse.
Q. Assuming that this man has been trying to work, and has lost twenty to twenty-five pounds, worked off and on, something as a light job, and sometimes a job that required more or less exertion, what would you say would be the future result of a continuation of the work?
A. He is not in any condition to do hard work now.
Dr. Willis found plaintiff’s blood pressure, systolic, 180, when it should be 120, and diastolic pressure 120 when .it should be about 90. That disclosure shows a rather alarming condition, which causes Dr. Willis to say: “He (plaintiff) is not in any condition to do hard work now.” That is about the only sort of work plaintiff is fitted to do, having little or no education, only having gone through about the third grade in school.
Truly, therefore, we can ascribe plaintiff’s condition to no other cause than the accident “and the consequent operation on his head. His condition is evidently the proximate result of the accident, while in the employ of the defendant. We should construe the law as liberally as we reasonably can so as to effectual its beneficient purposes. Dyer vs. Rapides Lbr. Co., 154 La. 1091, 98 South. 677; Delaney vs. Pred Brenner Lbr. Co., 154 La. 156, 97 South 349; Ferguson vs. Cady-McFarland Gravel Co., 156 La. 871; 101 So. Rep. 248, advance sheet of Sept. 27, 1924.
As said by the able and learned Judge of the District Court, and as we say now, plaintiff’s condition since he developed epilepsy on or shortly before January 1, 1922, has been such as to render him unable to perform work of a reasonable character. True, he has performed services at intervals since he developed the epileptic fits; but we think, as does the District Judge, that every day he works it shortens his life beyond proportion. Considering the humane and beneficient purposes of the Workmen’s Compensation statutes, we do not think that it was the intention of the act to compel injured employees to work out of dire necessity and in order merely to maintain a subsistence for himself and those dependent upon him for support, when to work greatly accelerates and augments his-debility and hastens his inevitable demise. Prom the testimony it is apparent that plaintiff should not work unless and until his condition shall have greatly improved. Plaintiff, therefore, is entitled to receive compensation as a total disability dating from the time he developed epilepsy at the latest on January 1, 1922, and continuing for and during a period of such total disability not longer, however, than four hundred weeks. Under the law, either party may come into court and' ask for a modification of the judgment after one year from the date it becomes operative. Before and after January 1, 1922, defendant paid plaintiff compensation as for temporary total disability for a period of twelve weeks at the rate of $18.00 a week, for these amounts, credit should be given defendant. While a portion of that compensation was paid before January 1, 1922, it does not appear how much, and we shall allow defendant credit for the full amount thus paid by it.
Por the reasons assigned, it is ordered, adjudged and decreed that our former judgment and decree herein be avoided, reversed and set aside, and that there now be judgment in favor of plaintiff and against defendant, condemning said defendant to pay compensation to plaintiff at the rate *82of $18.00 per week, for and during a period of his disability not to exceed 400 weeks, dating from Janúary 1, 1922, and bearing interest at the rate of five per cent per annum on each weekly payment from the date of its maturity less a credit of $216.00, paid by defendant to plaintiff say, January 1, 1922, and condemning defendant further to pay all costs of both courts.
(P.orter, Judge, concurs in the decree.) (Odom, Judge, takes no part, not having been a member of the Circuit when this case was submitted.)