Gerstmayr v. Kolb

• Decision Date: 21 January 1935
• Docket Number: 14887
• Citation: 158 So. 647
• Court: Court of Appeal of Louisiana — District of US
• Parties: GERSTMAYR v. KOLB

158 So. 647

GERSTMAYR v. KOLB

No. 14887

Court of Appeal of Louisiana, Orleans.

January 21, 1935

Rehearing denied Feb. 18, 1935.

J. A Woodville, of New Orleans, for appellant.

Wm. H Talbot, of New Orleans, for appellee.

LECHE Judge. JANVIER, Judge (dissenting).

OPINION

LECHE, Judge.

This is a suit for damages under article 2315 of the Civil Code. Plaintiff alleges that he was employed by defendant to do certain painting and decorating at the latter's home on Gentilly road in the city of New Orleans. He alleges that, while engaged in painting the outside of defendant's house, a stepladder furnished him by defendant broke, causing him to fall to the ground, and resulting in serious personal injuries. He alleges that he was paid $ 7.70 per week for nine weeks, or a total of $ 69.30.

Defendant filed exceptions of no cause or right of action, which were overruled. He then filed a plea of estoppel, alleging payment by his insurer of compensation for a certain number of weeks and certain medical expenses. He alleges that plaintiff had signed receipts for the weekly compensation, and at the end of the period signed a final receipt for compensation. Defendant further alleges that this bars plaintiff from any further actions growing out of the accident.

The plea of estoppel was maintained, and from this judgment plaintiff appeals.

This case clearly does not come under the Workmen's Compensation Law (Act No. 20 of 1914, as amended). There is no allegation or proof that defendant was engaged in a hazardous occupation, or that plaintiff and defendant agreed to come under the provisions of the statute. Shipp v. Bordelon, 152 La. 795, 94 So. 399; White v. Equitable Real Estate Co., 18 La.App. 714, 139 So. 45; Blane v. Iglehart, 5 La.App. 17; Jarrell v. Ewing, 7 La.App. 502.

The question, therefore, to be decided is whether or not payment to or receipt by plaintiff of weekly compensation for a number of weeks bars an action by him under article 2315 of the Civil Code.

Plaintiff testified that he could read and write, but that he signed the receipts for compensation without reading them, believing them to be only receipts for the amount received and in no sense final or conclusive. It must be borne in mind that all of the receipts were for compensation only, and that the last receipt signed by plaintiff was not a receipt in full and complete settlement of any and all claims, etc., growing out of the accident, but only a receipt for final compensation.

In the case of Gray v. N. O. Dry Dock & Shipbuilding Co., 146 La. 826, 84 So. 109, 111, the plaintiff sued for damages under article 2315 of the Civil Code. He fell from a scaffold and was seriously injured while working in the employ of defendant. After the accident, the defendant, through an indemnity company (by whom defendant was insured against employer's liability for such accidents), made weekly payments of compensation at $ 10 a week for 24 weeks, assuming that plaintiff was entitled to compensation under the Employers' Liability Act. On rehearing Chief Justice O'Niell, as the organ of the court, in his statement of the facts of the case, said: "When plaintiff was well enough to get about, he called upon the president of the dry dock company, and asked what effect his receiving the payments of compensation would have upon his legal right in the premises; and, having called in the agent of the indemnity company, and in presence of the latter, the president of the dry dock company assured plaintiff that he was entitled to compensation at $ 10 a week during his disability to work, and that his acceptance of the payments would not be construed as a waiver or abandonment of any claim that he might have against the dry dock company. The president of the dry dock company and the agent of the indemnity company were then of the opinion that the case was governed by the Employers' Liability Act, and not by the general law of torts; and it appears that the only question in their mind was whether plaintiff was entitled to compensation for permanent total disability or only for temporary total disability." (Italics ours.)

It can be clearly seen from the above that there was no question as to whether that case came under the Employers' Liability Act or under the general law of torts, but that the only question in the minds of plaintiff and defendant was whether or not plaintiff was entitled to compensation for permanent total disability, or compensation for temporary total disability under the Employers' Liability Act. The statement of facts continues: "Thereafter, having indorsed and cashed 19 or 20 of the voucher checks of $ 10 each, plaintiff consulted an attorney, who at first was also of the opinion that the case was governed by the Employers' Liability Act, which, if applicable, would exclude any and all other rights or remedies."

This shows conclusively that not only was plaintiff in that case under the impression that his injury came under the Employers' Liability Act at the time he consulted his attorney, but that his attorney was also of the same opinion. The statement of facts continues: "Averring that the plaintiff had received and cashed the checks paid for compensation under the Employers' Liability Act, defendant pleaded that plaintiff was estopped and debarred from denying that the case was governed by the statute, and pleaded that plaintiff could not maintain an action for tort without having returned the amount which he had received for compensation under the Employers' Liability Act." (Italics ours.)

Although, as shown above, the court found that defendant told the plaintiff that receiving weekly compensation would not be construed as a waiver or abandonment of any claim that he might have against the dry dock company, both plaintiff and defendant had in mind only the question of amount of compensation and not the question as to whether or not the case came under the Compensation Law, or article 2315 of the Civil Code. However, in deciding the point, the court did not take this into consideration, or deem it of any importance, but said without qualification:

"There is no merit in defendant's contention that plaintiff was estopped by his conduct in accepting and retaining the payments of compensation for the several weeks of total disability. The defendant, or rather the indemnity company paid only what was then conceded to be due to plaintiff, and what is yet conceded to have been due him at that time, regardless of what might yet be due. The defendant or the indemnity company was in no worse position, and is yet in no worse position, for having made the payments, even though the defendant and the indemnity company believed then that each payment was all that was due at the time. A debtor cannot discharge his debt by paying a part which he concedes to be due, unless the creditor agrees to accept the part in satisfaction of the whole debt. Plaintiff's claiming all that he believes is due him now is not inconsistent with his having received the part which defendant conceded was then due. There is therefore no element of estoppel in this case. Nor can the plea be sustained as one of compromise or settlement. A transaction of compromise must be mutually accepted by the parties, for the purpose of preventing or putting an end to a lawsuit, in preference to the hope of either party of gaining and the risk of losing. To be effective, such agreement must be reduced to writing. R. C.C. art. 3071. And the Employers' Liability Act (section 17) requires the decree of a competent court, on the joint petition of the employer and employee, verified by both parties, to settle or compromise a claim for compensation. There was no settlement, nor agreement of settlement, between the plaintiff and defendant in this case, because, while the indemnity company was making payment of what defendant conceded was due at the time, there was a dispute as to the total sum that would have to be paid in the future; which dispute was not settled when this suit was filed. Defendant relies upon the decision in Summers v. Woodward, Wight & Co., 142 La. 241, 76 So. 674, in support of the argument that the plaintiff is estopped and bound to abide by the Employers' Liability Act. But the ruling in the case cited is not...