Goodman v. Hillyer, Deutsch, Edwards, Inc.

• Decision Date: 03 November 1950
• Docket Number: No. 7546,7546
• Citation: 49 So.2d 60
• Parties: GOODMAN v. HILLYER, DEUTSCH, EDWARDS, Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 60

49 So.2d 60

GOODMAN v. HILLYER, DEUTSCH, EDWARDS, Inc.

No. 7546.

Court of Appeal of Louisiana, Second Circuit.

Nov. 3, 1950.

Rehearing Denied Dec. 14, 1950.

John P. Godfrey, Many, for appellant.

Thompson, Lawes, Cavanaugh & Hickman, Lake Charles, for appellee.

TALIAFERRO, Judge.

This is a workmen's compensation case in which there is tendered for decision a legal question only. All questions of fact have been put beyond controversy by agreement of counsel embodied in stipulations in Court. So far as our research has extended, and it has been extensive, we have found no case precisely on all fours with this one; and counsel of both sides concede this to be true. There are several cases that involve unearned wages by an injured employee, but there seems to be none wherein it was admitted that the wages paid for lighter work were earned.

Plaintiff was employed by the defendant as log loader and hauler, the duties of which required the exercise of considerable physical effort. On May 10, 1946, he suffered an accident that resulted in total disability to perform the duties of his employment. He immediately underwent an operation and performed no work until August 17, 1947, when he was placed by his employer on lighter duties, that of log scaler. The operation was not successful and he was forced to submit to another one on February 14, 1948, and was unable therefrom to perform any work until April 4, 1949, when, again, he was given the job of log scaler, and continued to work as such until December 31, 1949, when the light work became unavailable and he has not worked any since then. During these two periods of total disability, from the immediate effect of the operations, the employer paid to him compensation at the rate of $20 per week. While he was doing the duties of log scaler his remuneration was equal to or exceeded that which he was paid as log loader and hauler. It is admitted in the stipulations that as log scaler, plaintiff earned the amounts paid him for services 'well performed', although accompanied by some pain.

It is also admitted that as of the date of trial, March 6, 1950, he was totally disabled to perform work of the character he was performing when injured, and that such disability was the direct result of the original accident. No compensation or wages have been paid to him since December 31, 1949.

In this suit plaintiff seeks judgment against defendant for compensation during the period of total disability, not exceeding 400 weeks, from March 10, 1946, at the rate of $20 per week, less payments made, there being 125 of them. It follows that plaintiff's position is: that as he earned the wages paid him during the periods he was performing lighter work, no credit therefor should be allowed defendant against its liability to him for compensation, it being conceded that for these periods he was not physically able to do the work of his regular employment.

On the other hand, defendant contends that, whether the wages were earned or unearned, to the extent of $20 per week, for each week such wages exceeded that amount, while so performing the lighter duties, credit should be allowed it against its liability on compensation account.

The difference in positions of the parties reflects the legal question tendered.

The lower court agreed with the defendant and rendered judgment accordingly, from which plaintiff prosecutes appeal.

It is settled beyond question by the courts of this state that where the employer pays to an injured employee wages which are in the nature of a gratuity or beneficence, such payments will be construed to be a discharge of liability for compensation and to have produced the same legal effect as though they had been so denominated. But here, we have a case where, admittedly, the wages paid were earned by services well performed.

Many times have questions similar to that with which we are now confronted been considered by the Supreme Court and courts of appeal of this state, and we have to confess that, as best we can understand them, considerable confusion has resulted. These cases generally have to do with the question of prescription and the effect disguised payments made to the injured employee has upon this question; and with the question of prematurity of action while such payments are being made.

To begin with, plaintiff's position is wholly inequitable. If defendant's position is rejected, plaintiff will be in the fortunate position of being paid compensation for a period his employer was paying him an earned wage much larger than $20 per week. This does not impress us as being just.

In the case of Daigle v. Higgins Industries, Inc., et al., 29 So.2d 374, 379, decided by the Orleans Court of Appeal, relied upon by the district court, and now by the appellee, it was held that under facts similar to those existing in the present case, credit was due the employer for the period the injured employee was paid wages, whether earned or not. We quote paragraphs from that opinion with which we are in perfect accord, viz.:

'We do not believe that it was the intention of the framers of the workmen's compensation statute, that the act should be so construed as to permit a totally and permanently disabled workman to return to work for the employer in whose employ he was at the time his injuries occurred and to earn substantial wages, and at the same time collect compensation from his employer.

'We believe that it was the purpose of the act to assure an injured employee, who could no longer earn his living, that he would not become a public charge nor a burden upon his family, and that at least for 400 weeks, or nearly 8 years, he should be provided for by the employer for whom he was working at the time of sustaining his injuries. It seems to us that it would be absurd to say that if an employee should be injured he should have the right to obtain a judgment for compensation for 400 weeks, and if able to earn a substantial livelihood from the same employer, at the same time contend that he is disabled from doing any work of a reasonable character, meanwhile holding the compensation judgment over his employer's head.

'In short, we take the view that if, during that period for which compensation is due, the injured workman can earn a substantial living by working for the same employer at wages approximating those earned before the accident, the weeks for which he should earn such wages should be deducted from the 400 weeks during which compensation might otherwise be due to him.'

The...