Foret v. Paul Zibilich Co., Inc.

• Citation: 137 So. 366,18 La. App. 363
• Decision Date: 03 November 1931
• Docket Number: 13,825
• Court: Court of Appeal of Louisiana (US)
• Parties: FORET v. PAUL ZIBILICH CO., INC

137 So. 366

18 La. App. 363

FORET v. PAUL ZIBILICH CO., INC

No. 13,825

Court of Appeals of Louisiana, Orleans

November 3, 1931

Rehearing Refused November 16, 1931.

Appeal from Civil District Court, Parish of Orleans, Division "B". Hon. Mark M. Boatner, Judge.

Action by Albert Foret against the Paul Zibilich Company, Inc.

There was judgment for defendant, and plaintiff appealed.

Judgment affirmed.

Titche Kiam & Titche, of New Orleans, attorneys for plaintiff appellant.

James J. Landry, of New Orleans, attorney for defendant, appellee.

OPINION

WESTERFIELD, J.

This is an appeal from a judgment dismissing a suit brought under the Compensation Law of the state (Act No. 20 of 1914, as amended). The facts, which are not in dispute, are as follows:

Plaintiff Albert Foret, was employed by the defendant, Paul Zibilich Company, Inc., as an oyster shucker. On the 22d day of December, 1930, while so employed, a piece of oyster shell struck him in his right eye, causing the loss of sight in that eye and an impairment of vision in the other eye. He was paid compensation by the Home Accident Insurance Company of Little Rock, Ark., defendant's insurer, for six weeks in the sum of $ 9.75 a week. The payments stopped because the Home Accident Insurance Company became insolvent and, at the time of the trial of the suit, was in the hands of a receiver, whereupon this suit was brought and judgment asked against defendant on the basis of permanent total disability, claiming $ 9.75 per week for 300 weeks and $ 250 medical expenses, subject to a credit of six weeks.

The suit is defended upon the ground that defendant's business does not come within the enumeration of businesses declared to be hazardous under the Compensation Law, Act 20 of 1914. To this contention plaintiff replies that defendant, having paid full compensation to plaintiff for a period of six weeks, it is estopped from questioning his right to further compensation, citing Summers v. Woodward, Wight & Co., 142 La. 241, 76 So. 674, and particularly the following text which appears in the syllabus of that case:

"Where an employer pays the wages of an injured employee in full for a number of weeks, and subsequently in part, and, holding a policy of insurance, taken out with express reference to the Burke-Roberts Employers' Liability Act (Act No. 20 of 1914), obtains receipts showing such payments as for wages to which the employee was entitled under the Louisiana Workmen's Compensation Act, upon which it obtains reimbursement from the insurance company, the question whether the injury of the employee entitles him to compensation under the act will be regarded as eliminated." See, also, Johnson v. Vernon Parish Lumber Co., 151 La. 664, 92 So. 219, and Norris v. La. Central Lumber Co., 7 La. App. 489.

Subsequent to the decisions in the cases relied on, however, we find the following amendment to have been incorporated in the Compensation Law by Act 85 of 1926, section 18, paragraph 5:

"Neither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability for compensation under this act."

The language quoted is very clear and entirely inconsistent with the estoppel based upon the previous payment of compensation, the fact relied on in this case in support of the plea.

The alternative position of counsel for plaintiff is that the occupation of defendant is comprehended by the express terms of the compensation statute. Reference is made to section 1, subsection 2, paragraph "a," which enumerates the various occupations to which the act shall apply as follows:

"The operation, construction, repair, removal, maintenance and demolition of railways, and railroads, vessels, boats * * * rendering works, slaughter houses, meat packing plants, ice plants. * * * Any occupation entailing the manufacture, transportation, care of, use of, or regular proximity to dangerous quantities of gun powder, dynamite, nitroglycerine and other like dangerous explosives. The installation, repair, erection, removal or operation of boilers, furnaces, engines and other forms of machinery."

The defendant company deals extensively in oysters, shrimp crabs, frogs, and turtles. In its literature it describes its business as a "banner oyster and fish depot" and as the largest and most reliable oyster and fish shippers in New Orleans. It employs, at times, as many as twelve men to open oysters, or, as it is called, to "shuck" them. The...