Gary v. Marquette Cas. Co.
| Decision Date | 26 April 1954 |
| Docket Number | No. 3840,3840 |
| Parties | GARY v. MARQUETTE CAS. CO. et al. |
| Court | Court of Appeal of Louisiana — District of US |
J. Minos Simon, Lafayette, for appellant.
Dubuisson & Dubuisson, Opelousas, for appellees.
The petitioner filed this suit seeking a declaratory judgment against the defendants declaring that the defendants are liable, under the Workmen's Compensation Law, LSA-R.S. 23:1 et seq., for total and permanent disability, together with medical expenses not to exceed $500. The lower court maintained an exception of prematurity filed by defendants, and dismissed petitioner's action.
The petition alleges that on July 22, 1952, while acting within the scope and course of his employment with defendant, Dudley J. Mouton, petitioner sustained injuries to his left eye, which resulted in the loss of sight therein, and the ultimate removal of said eye. Petitioner further alleged that he was a skilled painter, and that the loss of sight in his eye totally and permanently disables him from engaging in his trade as a painter. In the alternative, petitioner claims that even if it should be found that he was able to return to his former occupation without disability, he could only perform his previous occupation with grave danger to himself, in that, the profession of painting is such that he is in daily contact with the various and sundry chemicals that are mixed with the paint and if the paint should fall into his remaining eye, he would become totally blind. He claims that the said injury renders the defendants jointly and severally liable to him for compensation at the rate of $30 per week for a period of 400 weeks. The petitioner admits that he is getting the sum of $30 per week from defendants, but claims that the defendants have indicated that the said payments will cease after 100 weeks; and that the defendants have only acknowledged liability for loss of an eye, and not for total and permanent disability.
The petitioner requested the court to render a Declaratory Judgment, under the provisions of LSA-R.S. 13:4231, declaring his rights for payments to be for total and permanent disability.
The defendants filed an exception of prematurity, based upon the provisions of LSA-R.S. 23:1314. The lower court maintained the said exception of prematurity, and dismissed petitioner's action. The petitioner has appealed.
In its well reasoned opinion, the lower court stated:
'The plaintiff's contention is a novel one and the court finds no case where a similar resort has been had to the Declaratory Judgments Acts. Except that it has been held:
And we find, too, that generally the courts have a wide discretion under Declaratory Judgments Acts and, although the determination of disputed questions of fact are provided for in the acts, courts often refuse a declaration which can only be made after a judicial investigation of disputed facts. 16 Am.Jur., Declaratory Judgments, § 20. And it has been said of the Declaratory Judgments Acts that:
That the Declaratory Judgments Act is a good, and needed, remedy under our system of laws is unquestioned. However, in the instant case, the petitioner is seeking to gain relief under the Declaratory Judgments Act which is expressly prohibited by the Workmen's Compensation Act. The prohibition is contained in LSA-R.S. 23:1314, which provides:
'Unless in the verified petition above referred to it is alleged (where the petition is filed by the employee or his dependents) that the employee or the dependents is not being or has not been paid, and that the employer has refused to pay, the maximum percent of wages to which petitioner is entitled under the provisions of this Chapter, or that the employee has not been furnished with proper medical attention, or that the employee has not been furnished with copies of the reports of examination or examinations made by employer's medical practitioners after written request therefor has been made under the provisions of this Chapter, the presentation or filing of such petition shall be premature and shall be dismissed * * *.' (Italics ours.)
In the petition, it is admitted that the petitioner is being paid, by the defendants, the sum of $30 per week, which is the maximum allowed under our compensation law. The petitioner seeks relief under the Declaratory Judgments Acts, when that very same relief is expressly prohibited under the Workmen's Compensation Law.
In support of the relief sought by petitioner, he cites Peoples Bank v. Eccles, D.C., 64 F.Supp. 811. This case was an action by Peoples Bank against Eccles, and others, as members of the Board of Governors of the Federal Reserve System, for a declaratory judgment that one of the conditions attached to plaintiff's admission to membership in the Federal Reserve System was void. The court held that a justiciable controversy was presented which could properly be adjudicated in the bank's action for a declaratory judgment regarding the legality of the said condition. The cited case had nothing at all to do with workmen's compensation, nor were the facts before the court of any remote similarity to the issues presently before us. In the cited case, the only remedy available to the plaintiff was by declaratory judgment, and there was no prohibition by the Legislature expressly declaring the relief sought to be premature.
Petitioner also cites Sheldon v. Powell, 99 Fla. 782, 128 So. 258, 260, wherein relief was sought and obtained under the Declaratory Judgments Act. However, in that case, the claim arose out of the provisions of a last will and testament, and the facts presented are again dissimilar to the present issues. In that case, the court held that the petitioner had two reliefs available to...
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Augustine v. Employers Mut. Cas. Co
...(citing 10A Charles A. Wright et al, Federal Practice and Procedure § 2751 (2d ed. 1983));. see also Gary v. Marquette Casualty Company, 72 So.2d 619, 621-22 (La.App. 1st Cir. 1954). The function of a declaratory judgment is simply to establish the rights of the parties or express the opini......
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Glover v. Schuylkill Products Co.
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