Ernest v. Martin Timber Co.

• Decision Date: 27 October 1960
• Docket Number: No. 9243,9243
• Citation: 124 So.2d 205
• Parties: R. E. ERNEST, Plaintiff-Appellant, v. MARTIN TIMBER COMPANY, Inc., Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 205

124 So.2d 205

R. E. ERNEST, Plaintiff-Appellant, v. MARTIN TIMBER COMPANY, Inc., Defendant-Appellee.

No. 9243.

Court of Appeal of Louisiana, Second Circuit.

Oct. 27, 1960.

Rehearing Denied Dec. 1, 1960.

Lee & Taylor, Shreveport, for appellant.

Gahagan & Gahagan, Natchitoches, for appellee.

AYRES, Judge.

This is an action for workmen's compensation wherein plaintiff seeks to recover of his former employer the maximum statutory benefits provided for total and permanent disability. The matter is before this court on plaintiff's devolutive appeal from a judgment awarding him compensation for the permanent, partial loss of the use of a hand.

The position taken by plaintiff is that he cannot perform all the duties of his former employment by virtue of the injuries sustained and that, therefore, within the intent and purpose of the compensation statute, he is totally and permanently disabled. Defendant does not contest the award as made by the trial court nor the basis upon which it was made.

Defendant, however, strenuously contests plaintiff's claim as to total disability. In this connection, the contention is made that the acts of which plaintiff proclaims his inability to perform constituted no part of his former employment, or, in the alternative, no substantial part of the duties of his employment. A further defense is made that plaintiff sustained neither temporary nor permanent disability by reason of his accidental injuries, and that he, therefore, is now, and has been, fully able to perform all the duties of his former employment.

The issues presented for resolution are purely factual in character. The trial court fixed and awarded compensation on a basis of a 20 percent loss of the use of a hand, as provided in the schedule of specific losses particularly by LSA-R.S. 23:1221(4)(e).

The facts as to the injuries sustained by plaintiff may be briefly stated. They consist of the loss of the fourth, or ring, finger, laceration on the side of the middle finger, and a fracture of the fifth, or little, finger of the left hand. Examinations disclosed, however, that the thumb and index finger were involved in an old accident which, according to history, dated back almost 50 years. There, however, was a full range of motion of the joints of the thumb as well as full range of motion at the metacarpophalangeal and the first interphalangeal joints of the index finger. The distal joint of that finger was stiff.

Deemed essential to a discussion of plaintiff's duties under his employment is an understanding of the nature of defendant's operations. Defendant owns and operates a sawmill and planing mill. In connection with this business, it also owns and operates a 'dimension' plant for the manufacture of furniture and novelty stock or parts as well as moldings. In this plant, materials from the sawmill are utilized which otherwise would probably constitute waste. The manufactured products are packaged, or bundled, in a 'knocked-down' condition and then shipped to defendant's customers. In the operation of this plant, various woodworking machines are used, such as planers, jointers, shapers, routers, tenoners, edgers, and saws, all power propelled.

During November, 1957, defendant employed plaintiff as superintendent of this 'dimension' plant to supervise its operations. Plaintiff is a highly-skilled craftsman with a wealth of knowledge and experience, not only with woodworking machinery but in drafting, evident essentials in the successful operation of plants of this character. After his employment, he maintained an office in the plant, where he supervised the plant's operations and instructed and directed the labor in operating the machinery and in the performance of the work, which included the assembly and installation of new machinery, if and when acquired, the making of adjustments in the machines, and the changing of knives, blades or other cutting devices as needed. Plaintiff designated the articles to be manufactured so as to fill orders on hand or anticipated, and acted as salesman for those products.

Salesmanship would appear to be a significant undertaking as a portion of the duties of plaintiff's employment in view of a showing of traveling expenses of $1,479.90, during the course of his eight months' employment. His itinerary as a salesman included Arkansas, Oklahoma, Texas, and Illinois.

On the occasion of plaintiff's injury June 4, 1958, which occurred while he was instructing an employee in the proper operation of a shaper, plaintiff inserted a piece of material in the machine for the purpose of manufacturing a Hollywood bedpost. The material was said to 'kick out' and, due thereto, plaintiff's hand to have been drawn into the cutters with the results as heretofore described.

Plaintiff continued in the performance of his duties notwithstanding the accident. The record establishes that plaintiff never lost a day from work, not even the day of the accident, but continued in his employment without complaints, at full wages, until July 15, 1958, when he voluntarily left defendant's employ. Before leaving, a discussion, however, was had with Ellis S. Martin, president of defendant corporation, relative to his compensation. Martin expressed the desire and readiness of defendant to pay plaintiff compensation for the injuries sustained. No differences or controversy over this matter arose between them. Nevertheless, during Martin's absence, plaintiff, without having given any previous notice, suddenly and abruptly, quit his employment and soon thereafter returned to Lubbock, Texas, his former residence, and secured employment, which he entered upon August 8, 1958, with the Western Woodwork & Manufacturing Company as head draftsman, supervising and checking the drawings of his department, making estimates, timates, and instructing the employees of the mill in the manufacture of the products undertaken. This position, he held at the time of trial. His salary exceeded that formerly paid by defendant.

In evaluating the merits of the legal controversy developed between the parties, reference must be made to the facts as established and disclosed by the record.

A conflict is noted in the testimony of the two principals involved relating to the first of the contentions advanced by defendant. Plaintiff testified his duties comprised not only supervision of the plant and its employees but the assembly and installation of the machinery, and the instruction of the employees in its use and operation, as well as his personal operation of the machinery. Just as positive and emphatic is the testimony of Martin that plaintiff was employed as superintendent of the plant and only in a supervisory capacity; that the other activities specified by plaintiff were no part of his employment; that the duties requiring manual labor were performed by others hired for the purpose; and, moreover, defendant did not employ plaintiff, and would not have employed anyone of plaintiff's age of 67 years, to do manual labor. This testimony, being diametrically opposed, it cannot be said that plaintiff has sustained his burden of proof on this point.

Obviously realizing the apparent stand-off in this testimony, plaintiff attacked Martin's credibility. We find no just or sound basis for this action. On the contrary, the record reflects Martin's continued high regard and respect for plaintiff's ability.

Next, for consideration, is defendant's alternative contention that if the aforesaid activities were held to be within plaintiff's employment, they constituted only a minor and insubstantial part of his duties. We are impressed, from our review of the record, as was the trial court, with the merits of the position taken by defendant. The record leaves no doubt that the purpose for which plaintiff was employed was to serve as superintendent of the 'dimension' plant, and that he was hired because of his wealth of knowledge and vast experience in the operation of woodworking plants. In this position, as heretofore observed, he supervised the operation of defendant's plant, instructed the workmen and directed their work, and also served as salesman for the plant's products. Others were employed to perform the necessary manual labor, whether in the assemblage or installation of the machinery or its adjustments under plaintiff's supervision.

Nor do we think the occasional operation of a machine for the purpose of instruction, constitutes a substantial part of plaintiff's employment in the absence of any showing that he ever performed the duties of a regular operator of any of the machines.

We, therefore, find no manifest error in the conclusions reached by the trial court, that the activities of which plaintiff asserts an inability to perform were, in the first instance, no part of his employment and, secondly, if so, they constituted no substantial part thereof. Applicable is the general and prevailing rule expressed by Prof. Malone as follows:

'Where the employee can perform some but not all the duties incident to his former occupation the prevalent attitude is that those tasks he cannot do must constitute a substantial part of his work before he can be regarded as totally disabled. * * *'

Malone's 'Louisiana Workmen's Compensation,' page 332, § 274. Supporting the above rule are noted the following cases: Hibbard v. Blane, La.App. 2 Cir., 1938, 183 So. 39; Anderson v. May, La.App. 1 Cir., 1940, 195 So. 783; Washington v. Holmes & Barnes, Ltd., La.App. 1 Cir., 1941, 4 So.2d 51; ...