Brannon v. Zurich General Acc. & Liability Ins. Co.

• Decision Date: 09 November 1953
• Docket Number: No. 41098,41098
• Citation: 224 La. 161,69 So.2d 1
• Court: Louisiana Supreme Court
• Parties: BRANNON v. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO. et al. In re BRANNON.

Page 1

69 So.2d 1

224 La. 161

BRANNON v. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO. et al. In re BRANNON.

No. 41098.

Supreme Court of Louisiana.

Nov. 9, 1953.

Rehearing Denied Dec. 14, 1953.

Normann & Normann, New Orleans, for defendants-appellants.

D. A. McGovern, III, New Orleans, for plaintiff-appellee and applicant.

FOURNET, Chief Justice.

This case is before us on certiorari on the application of the plaintiff to review the judgment of the Court of Appeal for the Parish of Orleans wherein the judgment of the district court awarding him compensation, with legal interest, on the basis of permanent total disability, or $30 a week for a period not to exceed 400 weeks (subject to a credit of $1,080, and taxing as costs expert fees of $100), was amended by reducing the award to $14.62 1/2 a week for 300 weeks. See 61 So.2d 257. It presents for our consideration the extent of the plaintiff's disability.

Paragraph (2) of R.S. 23:1221 (which is a reproduction in the 1950 Revised Statutes of Paragraph (b) of Subsection 1 of Section 8 of the Employer's Liability Act, Act No. 20 of 1914, as amended) provides that 'For injury producing permanent total disability to do work of any reasonable character,' compensation of 65% of wages during the period of disability, not to exceed 400 weeks, shall be paid, and in Paragraph (3) of LSA-R.S. 23:1221 (which is based on Paragraph (c) of Subsection 1 of Section 8, as amended), it is provided that 'For injury producing partial disability to do work of any reasonable character,' compensation of 65% 'of the difference between wages at the time of injury and wages which the injured employee is able to earn thereafter during the period of disability,' not beyond 300 weeks, shall be paid.

For the purpose of this decision, the facts as found by the Court of Appeal are substantially correct and may be adopted. These show that 'The accident occurred when plaintiff fell from a ladder to a concrete floor and was then struck by a 6 X 6 timber which fell upon his left kneecap. It was at first thought that the injury was not serious and plaintiff for several days, or possibly for almost two weeks, attempted to work, but found that the pain in his left knee was so severe that he returned to the doctors designated by the defendants, which doctors then found that the patella (which is the protecting cover over the joint of the knee) had been so badly injured that it was deemed advisable that it be removed by surgery. Plaintiff consented to this and an operation known as a patellectomy was performed.'

From these facts the Court of Appeal, as did the trial judge, concluded that 'such disability as Brannon has sustained, or has resulted from the removal of the patella, is permanent. ' But in resolving the question of the extent of his disability to do work 'of any reasonable character' the appellate court concluded, despite its finding as a fact that 'there are certain functions (of his trade as a carpenter) which the plaintiff cannot perform or can perform only with pain or with an increase in the normal hazards of his occupation,' that under the holding of this court in the recent case of Morgan v. American Bitumuls Company, 217 La. 968, 47 So.2d 739, the defendant was only partially disabled. It fixed such disability at 30%. (Brackets ours.)

Obviously the court in concluding, as contended by defense counsel, that the Morgan case reflects a reversal of our jurisprudence that an employee who is by training, experience, status, and education, engaged in a specialized trade and his injury prevents him continuing in that trade, is totally and permanently disabled within the meaning and contemplation of the compensation statute of this state, failed to take into consideration our subsequent decision in Wright v. National Surety Corporation, 221 La. 486, 59 So.2d 695, where this identical contention was urged and decided to the contrary, this court reiterating what has been, since Knispel v. Gulf States Utilities Company, 174 La. 401, 141 So. 9, our well settled jurisprudence, by quoting with approval from the Morgan case [217 La. 968, 47 So.2d 741] the statement that disability 'to do work of any reasonable character' within the intendment of the statute means 'disability to perform work of the same or similar description, kind or character (not necessarily the identical position) to that which the claimant was accustomed to perform or was undertaking when the injury occurred.'

There is, of course, no hard and fast rule that can be laid down for guidance in the application of this rule to the limitless variations of fact presented to the courts. Each case must stand on its own peculiar facts. As was pointed out in the Wright case [221 La. 486, 59 So.2d 697], 'The question here, as in all these cases, is whether plaintiff is 'disabled to do work of any reasonable character' within the intendment of the compensation statute'.

In the light of the facts in the instant case the plaintiff is, in our opinion, permanently and totally disabled within the meaning and contemplation of this law. The law does not expect, and it does not contemplate, that a worker, in order to make a living, must work in pain, or that he do so when it will materially increase not only the hazards to his own health and safety, but also to those of his fellow employees. This is the settled jurisprudence of all of the appellate courts of this state. See, Knispel v. Gulf States Utilities Co., Inc., 174 La. 401, 141 So. 9; Stieffel v. Valentine Sugars, Inc., 188 La. 1091, 179 So. 6; Carlino v. U. S. Fidelity & Guaranty Co., 196 La. 400, 199 So. 228; Lee v. International Paper Co., La.App., 16 So.2d 679; Brown v. Furr, La.App., 19 So.2d 283; Schneider v. Travelers Insurance Co., La.App., 172 So. 580; Hibbard v. Blane, La.App., 183 So. 39; Rigsby v. John W. Clark Lumber Co., La.App., 28 So.2d 346; Murphy v. B. Mutti, Inc., La.App., 166 So. 493; Godeaux v. Travelers Ins. Co., La.App., 58 So.2d 427; Anders v. Employers Liability Assur. Corp., La.App., 50 So.2d 87; Stansbury v. National Auto & Cas. Ins. Co., La.App., 52 So.2d 300; and Newsom v. Caldwell & McCann, La.App., 51 So.2d 393. See, also, the additional authorities cited and discussed by Malone in his work on the Louisiana Workmen's Compensation Law and Practice, Sections 272-275.

We think the statement found in the concurring opinion in the Morgan case--'The language of the provision (Paragraph (3), R.S. 23:1221) cannot be transposed to cover disability percentages in lieu of wages--for an employee may suffer a 20% disability which has the effect of reducing his earning power 75%, or vice versa.'--is...