Washington v. Holmes & Barnes
| Decision Date | 08 October 1941 |
| Docket Number | 2275. |
| Citation | 4 So.2d 51 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | WASHINGTON v. HOLMES & BARNES, LIMITED, ET AL. |
Fred S. LeBlanc, Fred G. Benton, and Carlos G. Spaht, all of Baton Rouge, for appellant.
Taylor Porter, Brooks & Fuller, of Baton Rouge, for appellee.
Plaintiff was injured on December 9, 1938, while driving a truck and making deliveries for the defendant wholesale company. The injury resulted when the truck which he was driving on one of his delivery trips turned over, pinning him under some part of the truck and causing a comminuted fracture of the humerus of his left arm, with detached fragments of the bone at the site of the fracture; also a comminuted fracture of the radius of the left arm which extended down into the wrist.
Plaintiff was paid compensation by the insurance carrier of the defendant on the basis of 65% of his weekly wage of $11 from the date of his injury for a period of 27 weeks, after which period he was discharged by defendants' physician and went back to work for the defendant company and received the same wages as he was receiving at the time of the injury. He was discharged by the defendant on September 16, 1939, and this suit was filed on November 14th following.
On July 6 1939, some two or three weeks after he had been discharged by defendants' physician as able to return to work. and after he had resumed his job with defendant company, he and his employer and its insurance carrier filed a joint petition for a lump sum settlement on the basis of the payment by the defendant through its insurance carrier, Great American Indemnity Company, of $248.82, representing compensation on the basis of a 20% permanent disability of his left arm for a period of 173 weeks. In this joint petition and the annexed agreement attached thereto between the parties it is stated that the disability to plaintiff's left arm is fixed at 20%; that his weekly wages were $11; that the insurer had paid 27 weeks of compensation; that on the basis of 200 weeks allowed by law for the loss of an arm, the defendants were due plaintiff 20% of 65% of his weekly wage for the remaining period of 173 weeks, and that plaintiff agreed to accept and defendants agreed to pay the sum of $248.82 in full settlement without discount of the balance due for compensation on the above basis. In addition defendants were to pay all hospital and medical expenses amounting to $497.91. This joint petition was presented to the court and the proposed settlement was approved by a judgment and the amounts paid plaintiff in line with the agreed settlement.
This suit is to set aside the said lump sum settlement and recover compensation for total permanent disability on the basis of $13.25 a week instead of $11 a week. Plaintiff asks for judgment against his employer and its insurer in the sum of $4,725.63, being the amount of compensation due him, plus a penalty of 50%, and less the amount already paid him.
The defendants set up the validity of the lump sum settlement deny that plaintiff was totally and permanently disabled and deny that they owe him any further compensation. The trial judge dismissed plaintiff's suit, from which judgment of dismissal he has taken this appeal.
It is alleged that the lump sum settlement is invalid for the reason that plaintiff's claim was discounted at a greater rate of interest than eight per cent per annum, contrary to subsection 9 of Section 8 of Act 20 of 1914, as amended by Act 242 of 1928, and for that reason the defendants have subjected themselves to the payment of one and one half times the compensation that would have been due had the settlement not been made as provided in said subsection. The reasons given for setting aside the settlement are: That his wages were $13.25 per week and not $11 per week; that he suffered total and permanent disability and not merely a 20% disability of the use of the left hand as set forth in the lump sum settlement; that the settlement was fraudulent in that he was informed by the defendants that he was getting the full amount allowed him by law, and they agreed to keep him employed at the same wages he was earning when injured that this was not done, but he was discharged on September 16, 1939, because of his inability to discharge his duties properly on account of the condition of his arm.
Both plaintiff and defendants take the position that the settlement was a lump sum settlement under the above mentioned subsection and not a compromise agreement under Section 17 of said Act 20 of 1914, as amended, for the reason that there was no dispute between the parties as to the nature and extent of the injury to plaintiff's arm. However, the fact that plaintiff is now claiming that the settlement was made on a wrong wage basis and on an incorrect fixing of the nature and duration of the disability indicates that there was room for dispute between the parties on these points. But as both parties now take the position that the settlement was made on a lump sum basis, it is not necessary for the settlement to be set aside in order for the plaintiff to recover further compensation if he has proved that the nature of his injury and resulting disability justify awarding additional compensation. Taylor v. Lock, Moore & Co., Ltd., 164 La. 577, 114 So. 163; Childers v. Roy O. Martin Lumber Co., La.App., 171 So. 484; Reid v. J. P. Florio & Co., Inc., et al., La.App., 172 So. 572.
It is proper to state here that there is no evidence of fraud on the part of any one in the confection of the settlement approved by the court. All that plaintiff himself claims on this point is that he was told by an official of the wholesale company before the settlement was made that his job was there for him as soon as he was able to take it back. It is conceivable that plaintiff did expect to go back to work on his old job and did go back and work at the same wages for some three months....
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Morgan v. American Bitumuls Co.
...which have awarded compensation for partial disability, as distinguished from total disability, such as Washington v. Holmes & Barnes, Limited, et al., La.App., 4 So.2d 51; Daniels v. Shreveport Producing & Refining Corporation, 151 La. 800, 92 So. 341; Hulo v. City of New Iberia, 153 La. 2......
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Blanchard v. Pittsburgh-Des Moines Steel Co.
...decisions which have awarded compensation for partial disability, as distinguished from total disability, such as Washington v. Holmes & Barnes, Limited, La.App. 4 So.2d 51; Daniels v. Shreveport Producing & Refining Corporation, 151 La. 800, 92 So. 341; Hulo v. City of New Iberia, 153 La. ......
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Jagneaux v. Marquette Cas. Co.
...was based on a previous decision of the Court of Appeal, First Circuit, in the case of Washington v. Holmes & Barnes (La.App., 1 Cir., 1941), 4 So.2d 51. In Morgan v. American Bitumuls Co. (1950), 217 La. 968, 47 So.2d 739, in the concurring opinion of Justice McCaleb, he criticized the hol......
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