Clark v. Forest Lumber Co

• Decision Date: 04 December 1928
• Docket Number: 370
• Citation: 9 La.App. 639,120 So. 88
• Court: Court of Appeal of Louisiana — District of US
• Parties: CLARK v. FOREST LUMBER CO

120 So. 88

9 La.App. 639

CLARK v. FOREST LUMBER CO

No. 370

Court of Appeals of Louisiana, First Circuit

December 4, 1928

Rehearing Refused January 9, 1929.

Writ of Certiorari and Review Denied by Supreme Court February 11 1929.

Appeal from the Parish of Allen. Hon. Thomas F. Porter, Judge.

Action by Jesse Clark against Forest Lumber Company.

There was judgment for plaintiff and defendant appealed.

Judgment amended and affirmed.

Mark C Pickrel and Williams and Blackshear, of Oakdale, attorneys for plaintiff, appellee.

Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.

OPINION

MOUTON, J.

Plaintiff was injured while in the service of defendant company and brings this suit against it under the Employers' Liability Act (Act 20 of 1914 as amended).

He alleges that he fell from a skidder boom which resulted in his injuries, causing permanent total disability to do work of any reasonable character.

Plaintiff avers that he was injured April 11, 1927, and that he has been paid by defendant company eleven 37/100 dollars ($ 11.37) per week from April 18, 1927, up to the 5th of April, 1928, the date this suit was filed. He claims that he was getting in wages at the time of the accident, six 25/100 dollars ($ 6.25) per day, totaling a weekly wage of forty-three 75/100 dollars ($ 43.75), entitling him to sixty-five (65%) per cent thereof as his average weekly wages amounting to twenty dollars ($ 20.00) per week during four hundred (400) weeks, the maximum allowance under the compensation statute.

Alleging that he had received only eleven 37/100 dollars ($ 11.37) weekly, from defendant, since April 18, 1927, to April 5, 1928, as aforesaid, plaintiff claims that he is entitled during that period of time to eight 53/100 dollars ($ 8.53) more per week, being the difference between eleven 37/100 dollars ($ 11.37) which he received, and twenty dollars ($ 20.00) per week which should have been paid him by defendant company, or a total of four hundred and seventy-four 65/100 dollars ($ 474.65), the equivalent thereof. He asks that the Court recognize his claim for this alleged difference from April 18, 1927, to April 5, 1928, and that thereafter his compensation be at the total of twenty dollars ($ 20.00) per week.

The lower court found that plaintiff had suffered a total permanent disability, gave him judgment at the rate of twenty dollars ($ 20.00) per week, not to exceed a period of four hundred (400) weeks, decreed that the compensation due on the date of the judgment be paid in a lump sum, and thereafter, that compensation be paid in weekly installments of twenty dollars ($ 20.00), the judgment to be subject to a credit of five hundred and sixty-eight and 50/100 ($ 568.50) dollars, as though paid April 2, 1928. Defendant has appealed.

An exception of prematurity was filed by defendant, grounded on paragraph B of Section 18, Act 85 of 1926.

Plaintiff, in his petition, alleged that he had not been paid the maximum compensation to which he was entitled under the law, and that defendant had refused to pay it.

The foregoing allegations were denied by defendant prior to the time fixed for the trial of the case.

Paragraph (B) of Section 18 of Act 85 of 1926 provides that when the allegations above referred to are contained in the complaint of the plaintiff and are denied by the defendant at the time fixed for the hearing, as they were in this case, if it be shown that such allegations are without reasonable cause or reasonable foundation in fact, the complaint shall be dismissed, and that this question shall be determined by the Court before proceeding with the hearing of the other issues involved.

The sole issue presented under the exception of prematurity, is therefore, as to whether or not it appears from the evidence that the allegation of plaintiff, that plaintiff had refused to pay him the maximum percentage to which he was entitled, was founded on a reasonable cause, or had a reasonable foundation in fact.

The language of the statute which refers to these essential allegations required in the complaint, says: "If it be shown that such allegations are without reasonable cause or reasonable foundation in fact," the complaint shall be dismissed. The burden of proof that there is no reasonable foundation for the required allegations rests upon the employer, as it could scarcely be expected that plaintiff would proffer evidence to destroy the averments which are indispensable to sustain his demand for recovery.

In passing on this question, we think it is proper to take into consideration where the statute places the burden of proof, and also the language used in reference to the alleged refusal of the employer to pay, which entails a dismissal of the complaint only when it is shown that it does not rest on a reasonable cause, or reasonable foundation in fact.

Even if we be in error as to which of the parties litigant carries the burden of proof, the verbiage of the statute above referred to indicates quite clearly that an exception of prematurity is one of these technical defenses not favored in compensation suits, and which have been practically brushed aside by the liberal construction given by our Courts to compensation statutes, and always in favor of the employee.

The proof shows that plaintiff was paid eleven 37/100 dollars ($ 11.37) weekly, during a period of almost twelve (12) months by the Southern Casualty Company in which defendant lumber company carried insurance policies for its employees. It is claimed by defendant company that plaintiff appeared satisfied with these payments he was receiving, never complained during that period of time, did not ask for a larger amount until demand for his maximum weekly average was made by his attorney, which was too late to permit an investigation by defendant for this increased allowance thus demanded by the attorney, and that, as a matter of fact, defendant never refused to pay the maximum amount urged in plaintiff's complaint.

On March 29, 1928, attorney for plaintiff addressed a letter to the Forest Lumber Company, defendant, saying that plaintiff had been receiving eleven 37/100 dollars ($ 11.37) during the period hereinabove stated, and claiming the difference between that amount and twenty dollars ($ 20.00) per week, the maximum allowed by law, from April 11, 1927, and for the continuing of payments on the twenty-dollar ($ 20.00) basis during four hundred (400) weeks.

The Southern Casualty answered this letter the day following, stating that plaintiff had been receiving eleven 37/100 dollars ($ 11.37) per week, which was the full compensation to which he was entitled, but saying, if the attorney for plaintiff arrived at a different computation, the insurance company would be willing to take up the matter further.

In reply to this letter, plaintiff's attorney, on April 3, 1928, stated to the insurance company that plaintiff's earning with the Forest Lumber Company, defendant, was forty-three 40/100 dollars ($ 43.40) per week, and which therefore entitled him to the maximum weekly compensation of twenty dollars ($ 20.00).

On April 4, 1928, the insurance company answered this last letter by saying that according to its record, plaintiff was doing watchman's duties for which he was receiving two 50/100 dollars ($ 2.50) per day, and that he was being paid compensation based in accordance therewith, and concluded by asking that plaintiff make affidavit showing the days and nights he had worked, etc., and that upon receipt of that information, "we can go into the matter further." The concluding part of these two letters shows that the insurance company desired more time to consider the demand of the plaintiff.

It will be observed that the first letter by plaintiff's attorney was written to the defendant company, and on the next day, the reply came to him from the insurance company, which shows that communication between the two companies was immediate, and that the insurance company had practically taken charge of matters connected with plaintiff's claim. It seems, therefore, that the insurance company could have, without any delay, obtained the required information from the defendant company to answer as to whether it would or would not pay the increased amount asked. The further delay asked for in the two letters before mentioned, was not justified under the circumstances as we read the record. The position of defendant on this feature of the case, in which it claims it should have had further delay, is based on the fact, as claimed by it, that its sawmill at Oakdale had been closed for some time, that all its records, pay rolls, etc., had been destroyed because of no further need for them, and that its employees at the sawmill had since been dispersed in various places, creating a condition of affairs which demanded further time for investigation so that it might be in a position to find out, if, in reality, the maximum claim of plaintiff was well founded. The result of an investigation under a condition of affairs thus depicted, would in all probabilities have proved fruitless or so lengthy, that a delay beyond all reasonable measures would have been required before it would have been possible to ascertain whether or not defendant would refuse to comply with the demand of the plaintiff who could not be expected to patiently await the result of such an investigation.

R. C Bolton, the record shows, is the adjuster of the insurance company which has its home office at Alexandria, La. Plaintiff was asked as a witness, if he had said to Bolton whether he was entitled to more money. He said Bolton asked him if he worked day and night when he was injured; he answered that he was on duty twenty-four (24) hours' time when h...