Barnes v. Ed. Taussig, Inc.

• Decision Date: 28 January 1955
• Docket Number: No. 3947,3947
• Citation: 78 So.2d 418
• Parties: Ernest L. BARNES v. ED. TAUSSIG, Inc. and The Travelers Indemnity Company.
• Court: Court of Appeal of Louisiana — District of US

Page 418

78 So.2d 418

Ernest L. BARNES v. ED. TAUSSIG, Inc. and The Travelers Indemnity Company.

No. 3947.

Court of Appeal of Louisiana, First Circuit.

Jan. 28, 1955.

Rehearing Denied March 28, 1955.

Carmouche, Martin & Wilson, Lake Charles, for appellant.

Lawes, Hickman & Brame, Lake Charles, for appellee.

LOTTINGER, Judge.

This is a workmen's compensation proceeding which was dismissed in the Court below on a plea of one and two years prescription. The trial judge assigned written reasons for his judgment, which we herewith set out in full:

'This matter is before the Court on a plea of prescription of one and two years filed by defendants to a suit brought by plaintiff under the Workmen's Compensation Act of this State.

'For a cause of action, plaintiff alleges that on or about July 3, 1950, he was employed by defendant, Ed. Taussig, Inc., as an auto parts salesman and his job included the driving of a panel truck; that on or about July 3, 1950, while in the course of employment, plaintiff was driving said panel truck on an oily road and the condition of the road caused the said truck to skid and overturn, causing plaintiff permanent injuries. Plaintiff alleged further that he was retained on lighter work by his employer until January 1, 1954, and since that date he has never received wages or compensation. Plaintiff also asked for attorney fees and penalties. Travelers Indemnity Company, as the insurer of Ed. Taussig, Inc., was also made a party to the suit. On these issues the case was heard.

'The evidence adduced at the hearing on the plea of prescription shows that plaintiff had an accident on July 3, 1950, while in the course of employment for his employer, Ed. Taussig, Inc., hereinafter referred to as 'employer'; that at the time of the accident, plaintiff was an auto parts salesman traveling through certain portions of Southwest Louisiana and driving a panel truck while so employed; that after the accident plaintiff was engaged in lighter work, namely, parts salesman in the main establishment of his employer at Lake Charles, Louisiana; that plaintiff worked as a counter man; that his wages in that capacity for the years 1951, 1952, and 1953 were $4,090, $4,570, and $5,744, respectively. The record reveals further that plaintiff consulted a lawyer of the Lake Charles Bar as to his legal rights and also consulted about the matter with Mr. Garland Mahaffey, General Manager for the employer of plaintiff. During the year 1953, plaintiff was transferred from the parts department to the used car department where he sold used cars on a commission and received a base salary that in 1953, plaintiff made more money than in 1951 and 1952. That in December, 1953, plaintiff was taken off of his salary and placed on a strict commission basis. Plaintiff refused to accept the arrangement whereby he was to receive commission only and terminated his employment with defendant.'

In the case of Abshire v. Cities Service Refining Corporation, 50 So.2d 307, 308, the Court of Appeal, First Circuit, sustained pleas of prescription of one and two years and outlined the law applicable to a case as the Court now has under consideration, to-wit:

"The jurisprudence of this State has been established to the effect that if an injured employee continued to work for and to receive regular wages from the same employer after the injury is sustained, the prescription of one or two years, as provided by Section 31 of Act 20 of 1914, as amended, LSA-R.S. 23:1209, will begin to run from the date of the accident unless it is...