Geter v. Travelers Ins. Co. of Hartford, Conn.
| Decision Date | 25 March 1955 |
| Docket Number | No. 3954,3954 |
| Citation | 79 So.2d 120 |
| Parties | Whitney L. GETER v. The TRAVELERS INSURANCE COMPANY OF HARTFORD, CONNECTICUT. |
| Court | Court of Appeal of Louisiana — District of US |
White & May, Baton Rouge, for appellant.
Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellee.
This is a workmen's compensation proceeding wherein the plaintiff seeks to recover benefits for total permanent disability. He alleged in his petition which was filed May 2, 1953, that while employed as a truck driver by the W. M. Chambers Truck Line on November 21, 1952, he suffered a serious accident with another automobile in the City of Baton Rouge, Louisiana, as a result of which he has been totally incapacitated to do work of any reasonable character. He prayed for compensation at the rate of $30 per week beginning November 28, 1952, not to exceed 400 weeks, with interest at 5% per annum on each past due payment, together with medical expenses and attorney fees not to exceed $1,000 each.
The defendant, workmen's compensation insurer of plaintiff's employer, first filed an exception of vagueness which was sustained by the trial judge. The plaintiff then amended his petition curing the deficiencies complained of. The defendant then answered, generally denying the allegations of both the original and amended petition. Subsequently, on April 22, 1954, the defendant filed a motion to dismiss the plaintiff's suit on the ground that the issues had become moot. This motion was heard and overruled. The matter was then tried on its merits and is now before us on an appeal taken by the plaintiff from a judgment dismissing his suit. The defendant has answered the appeal, urging that the motion to dismiss filed by it should have been sustained in the court below.
The facts pertinent to the motion to dismiss are undisputed, they having been stipulated to by the attorney for the plaintiff. Briefly stated, they are as follows:
The plaintiff, Whitney L. Geter, was admittedly injured in an automobile accident in the City of Baton Rouge on November 21, 1952. Subsequently, a claim for compensation benefits was made against the present defendant, which claim was denied. In due course this suit followed. On June 16, 1953, Geter filed a suit entitled 'Whitney L. Geter v. Employers Mutual Liability Insurance Co. et al.,' No. 45,890 of the Civil Docket of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, which was a tort action against the driver and liability insurer of the automobile which had collided with him. Geter was successful in the prosecution of this suit and obtained a judgment of $12,838.15, which was satisfied on January 2, 1954.
The basis of the motion to dismiss is that the issues in the suit have become moot because the defendant in this compensation suit is entitled to credit for the sums received by Geter from the defendants in the tort suit. It is admitted that the Travelers Insurance Company did not intervene in the tort action.
The applicable provisions of our compensation law are to be found in LSA-R.S. 23:1101 et seq., which reads as follows:
'When an injury for which compensation is payable under this Chapter has been sustained under circumstances creating in some person (in this Section referred to as third person) other than the employer a legal liability to pay damages in respect thereto, the injured employee or his dependent may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the injured employee or his dependent against such third person, nor be regarded as establishing a measure of damages for the injury; and such injured employee or his dependent may obtain damages from or proceed at law against such third person to recover damages for the injury.
'Any employer having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his dependent.'
'If either the employee or his dependent, or the employer, brings suit against a third person as provided in R.S. 23:1101, he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.'
'In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, with a reasonable attorney's fee and his costs, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent the liability of the employer for compensation shall cease for such part of the compensation due, computed at six per centum per annum, as shall be satisfied by such payment.
'No compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the other unless assented to by him.'
The above quoted provisions of the compensation statute were considered by our brethren of the Orleans Circuit in the case of Smith v. McDonough, La.App., 29 So.2d 818, 822. In that case the employee had made a compromise settlement of his claim against the tort feasor for the sum of $1,234.16. In a subsequent compensation proceeding against his employer, credit was given the latter for the amount received by the employee in the compromise settlement. The court held:
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...received $37,500.00 in the tort suit; she prayed for Workmen's Compensation in the sum of $14,000.00) See Geter v. Travelers Insurance Company of Hartford, La.App., 79 So.2d 120. Under the above jurisprudence and statutory law, we conclude that the defendant employer Bethlehem Steel Corpora......
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