Childers v. Roy O. Martin Lumber Co., Inc.

• Decision Date: 05 January 1937
• Docket Number: 5336
• Court: Court of Appeal of Louisiana — District of US
• Parties: CHILDERS v. ROY O. MARTIN LUMBER CO., Inc

171 So. 484

CHILDERS v. ROY O. MARTIN LUMBER CO., Inc

No. 5336

Court of Appeal of Louisiana, Second Circuit.

January 5, 1937

Julius T. Long, of Shreveport, for appellant.

White Holloman & White, of Alexandria, for appellee.

TALIAFERRO Judge.

Our attention has been directed to an error made by us in calculating the amount of weekly compensation due plaintiff. The award was for 80 weeks at the rate of $ 5.7875 per week. The correct amount is $ 5.6875 per week.Our decree may be and is hereby amended to this extent, and to do so a rehearing is not necessary.Rehearing is denied.

OPINION

PER CURIAM.

In this action plaintiff seeks to recover workman's compensation in excess of that paid him in a lump-sum settlement, and prays to have said settlement and judgment based thereon annulled. It is not a suit to annul a settlement consummated through compromise. His left hand was seriously injured while laboring for his employer, Roy O Martin Lumber Company, on June 1, 1935, requiring amputation of the first two phalanges of the index finger and all of the middle and ring fingers. On July 20th, he and defendant, through its attorneys, signed and presented for approval to Judge L. L. Hooe a verified petition wherein it is averred that said three fingers were amputated because of the trauma; that his weekly wages were $ 8.75, and that they had agreed upon a lump-sum settlement on a basis of 65 per cent. of his weekly wages for a period of 70 weeks, arrived at as follows: Loss of index finger, 30 weeks; loss of middle and ring fingers, 20 weeks each. The settlement was approved and judgment rendered as prayed for. Plaintiff was paid in full the total of compensation due him thereunder, discounted at 8 per cent., less $ 66 previously advanced to him. In the present suit he avers that his thumb and little finger were also seriously injured, as were the palm and other parts of the left hand; and alleges, as an ultimate fact, that because of said injuries, amputation of the fingers, etc., he has suffered the loss of use of the entire left arm, and that he was due compensation on that basis, or for 200 weeks instead of 70 weeks for which he was paid. He also alleges that his weekly wage was more than that fixed in the settlement. He attacks the lump-sum settlement on nine different grounds, but, as we view the case, only one need be given serious consideration, as plaintiff's case must stand or fall upon that one. It is that he was paid compensation for loss of three fingers, whereas he was entitled to payment for loss of use of an arm. However, in this court, loss of use of the hand is the burden of his contention.

He does not expressly allege error on his part in assenting to the terms of the settlement, nor does he expressly charge defendant or its agents with practicing fraud upon him as a means of procuring his assent thereto; but we are convinced that both were in error: defendant, as to the extent of plaintiff's disability, and he as to the measure of compensation due him therefor.

Defendant affirms the correctness, legality, and validity of the lump-sum settlement attacked, and denies that plaintiff lost the use of his left arm as a result of his injuries. Exceptions of no cause and no right of action were filed by it. These were overruled. They are urged here. Plaintiff's suit was dismissed in the lower court and he appealed.

Lump-sum settlements are authorized by the Workmen's Compensation Law (Act No. 242 of 1928, p. 362, §8, subd. 9). Discount in such is limited to 8 per cent. The law is imperative in this respect. If less than the full amount due an injured employee is accepted by him, in error or otherwise, he is not bound by his acceptance. He may successfully assail his own action if timely begun. Taylor v. Lock, Moore & Co., 164 La. 577, 114 So. 163. In that case the court stated that an action attacking a lump-sum settlement and judgment pursuant thereto was not in reality one to annul a judgment, but one simply to recover compensation in addition to that paid under a judgment. It is in its nature supplementary to and, if successful, not destructive of the judgment based upon the settlement. And when, as in this case, an injured employee comes into court and by appropriate allegations, having earnest import, challenges the correctness of a lump-sum settlement, either as to term or rate of compensation, he is entitled to be heard, and his complaint discloses a cause of action. The ordinary and usual rules of evidence and procedure are not pertinent to such a case. We had occasion to discuss the unique character of the Workmen's Compensation Law in McHenry v. Wall et al., 157 So. 632. That case, however, involved a compromise between the widow of a deceased workman and his employer, which is not present in the case at bar. Here the plaintiff definitely alleges facts, which, if true, entitle him to recover more compensation than paid him; and the opportunity to adduce proof in support thereof is and should be allowed him.

The court's ruling on the exceptions was eminently correct.

Plaintiff resumed work for defendant in September following the accident at wages greater than he had been previously paid, and continued in its employment until discharged near the middle of December for neglect of duty. This latter employment required him to "tally" (check) bundles of oak flooring. The record does not definitely disclose the details of his duties, but we presume it required greater mental than physical effort. The present suit was filed some 60 days after his discharge.

None of the bones of plaintiff's hand were removed, though some were injured in the accident. The only physician who gave testimony in the case, when asked the extent of impairment of the use of the hand, replied: "Well, manual labor almost a loss." He stated that due to ankylosis condition at juncture of thumb with hand, the function of the thumb was impaired 60 per cent., but that the little finger was nearly normal. He...