Calhoun v. Louisiana Delta Hardwood Lumber Co., Inc.

• Court: Court of Appeal of Louisiana
• Writing for the Court: HAMITER, Judge.
• Citation: Calhoun v. Louisiana Delta Hardwood Lumber Co., Inc., 182 So. 362 (La. App. 1938)
• Decision Date: 01 June 1938
• Docket Number: 5655
• Parties: CALHOUN v. LOUISIANA DELTA HARDWOOD LUMBER CO., Inc., et al

182 So. 362

CALHOUN v. LOUISIANA DELTA HARDWOOD LUMBER CO., Inc., et al

No. 5655

Court of Appeal of Louisiana, Second Circuit.

June 1, 1938

Wood &amp Wood, of Leesville, for appellant.

Hudson Potts, Bernstein & Snellings, of Monroe, and P. S. Gaharan Jr., of Jena, for appellees.

OPINION

HAMITER Judge.

The Louisiana Delta Hardwood Lumber Company, Inc., and its workmen's compensation insurer, the Maryland Casualty Company, are made defendants in this suit in which Joseph M. Calhoun seeks a compensation award under the Louisiana Employers' Liability Act, Act No. 20 of 1914, as amended, and the setting aside of a judicially approved compromise settlement previously consummated by the parties.

In substance, plaintiff alleges in his petition that on November 28, 1935, he sustained an umbilicus hernia while pulling a saw in the course and scope of his employment as a log scaler with the Louisiana Delta Hardwood Lumber Company, Inc., which injury has rendered him totally and permanently disabled; and that on June 2, 1936, he was induced to accept the sum of $ 500 cash in full acquittance of his claim for compensation and to sign and execute a purported compromise settlement agreement, all by reason of variously detailed acts of fraud and misrepresentation on the part of defendants' representatives. He prays that the compromise settlement be declared null and void and of no effect and that he be awarded compensation as for total and permanent disability, together with the penalty imposed by the compensation statute and legal interest from judicial demand, less the sum of $ 500 previously paid.

Tendered to the petition by defendants were pleas of prematurity, estoppel and res judicata, and exceptions of no cause and no right of action. All of these were overruled.

In their joint answer, defendants deny that plaintiff was injured while in the scope and course of his employment with the Louisiana Delta Hardwood Lumber Company, Inc., and also deny that they are or were ever liable to him for compensation. Further answering, they aver that they entered into the compromise settlement with plaintiff, pursuant to the provisions of section 17 of the Compensation Statute, as amended by Act No. 38 of 1918, in order to avoid the expense of a law suit in defending the asserted claim, and that no fraud or misrepresentation was perpetrated in the confection of said settlement.

The demands of plaintiff were rejected after a trial of the case on its merits, and he prosecuted this appeal.

The aforementioned pleas and exceptions are re-urged in this court. However, we shall not pass on them as we find from the merits that no liability exists on the part of the defendants.

The record discloses that plaintiff and certain representatives of defendants, including the latter's attorney, appeared before the judge of the Eighth District Court, Honorable F. E. Jones, on June 2, 1936, and presented for judicial approval a proposed compromise settlement of plaintiff's asserted compensation claim. The proposal was delineated in a joint petition of the interested parties to which plaintiff attested under oath that:

" (3)5C he is one of the petitioners in the foregoing petition; that he has read the same and that all of the allegations therein contained are true and correct and that the compromise settlement as set forth in said petition is made voluntarily and at his suggestion and that the terms of the settlement are in reasonable compliance with his claim for compensation and that he requests that the Court ratify same in accordance with law."

Included in such joint petition were the following allegations:

"Your petitioners show that the employee at this time is suffering with what has been diagnosed by physicians as "Post operative ventral herniation', which the employee contends has impaired his ability to do manual labor, and furthermore contends that the disability with which he is suffering was brought about as a result of an accidental injury sustained by him on the 28th day of November, 1935 while he was assisting in cutting a tree in the woods of the employer in the Parish of La Salle.

"Your petitioners further show that no notice of the supposed accidental injury was reported to the employer until March 14, 1936, at which time the employee reported to Dr. D. L. Trax, physician of employer for treatment.

"Your petitioners, the employer and insurer, especially deny that any such accidental injury ever occurred and contend that the disability with which the employee is suffering at this time dates back to his service in the United States Army in 1918, which has been recognized by the Government by the fact that the said employee was operated on for hernia in a United States Veterans' Hospital at Alexandria, Louisiana, during the early part of the year 1935, which fact the employee does not deny, but on the other hand contends that a complete recovery had been effected in the treatment he received from the Veterans' Hospital, and contends that the recurrence was brought about by accidental injury received by him on the 28th day of November, 1935, as hereinabove alleged. The said employee, however, admits that the accidental injury above alleged is the only accidental injury he has ever received while in the employ of the Louisiana Delta Hardwood Lumber Company, Inc., and that no injury has been sustained since said date which aggravated or altered his condition.

"Your petitioners now show that a serious dispute has arisen between the employee, the employer and insurer as to the extent and cause of the disability, the employer and insurer contending that no accidental injury was ever received by the employee which in any way caused or aggravated his present condition, and furthermore contending that if total disability exists that it exists wholly separate and apart from any connection with employee's services with employer, and is a direct result of a pre-existing condition, and for these reasons there is no liability for compensation whatsoever.

"Petitioners further show that they have agreed that the employer and its insurer shall pay to the employee the sum of Five Hundred and no/100 ($ 500.00) Dollars, cash, in lump sum settlement which said amount the employee has agreed to accept in full payment and...