Gray v. New Orleans Dry Dock & Shipbuilding Co

• Citation: 84 So. 109,146 La. 826
• Decision Date: 30 June 1919
• Docket Number: 23150
• Parties: GRAY v. NEW ORLEANS DRY DOCK & SHIPBUILDING CO
• Court: Louisiana Supreme Court

84 So. 109

146 La. 826

GRAY v. NEW ORLEANS DRY DOCK & SHIPBUILDING CO

No. 23150

Supreme Court of Louisiana

June 30, 1919

On Rehearing, February 2, 1920; Rehearing Denied March 1, 1920

Appeal from Civil District Court, Parish of Orleans; Fred D. King Judge.

Action by John A. S. Gray against the New Orleans Dry Dock &amp Shipbuilding Company. From a judgment for plaintiff defendant appeals.

Affirmed.

Edward Rightor, of New Orleans, for appellant.

McCloskey & Benedict and H. B. Curtis, all of New Orleans, for appellee.

PROVOSTY, J. MONROE, C. J., MONROE, C. J., takes no part, not having heard the argument. O'NIELL, J., dissents.

OPINION

PROVOSTY, J.

Plaintiff sues in damages for injuries received while in the employ of the defendant company, and in the alternative sues under the Workmen's Compensation Act.

Defendant recognized its liability to plaintiff under said act, and had been paying plaintiff $ 10 a week for 25 weeks when this suit was filed.

Defendant pleads that plaintiff, having thus agreed to receive payment under said act, and actually received many payments, is estopped from contending that defendant's liability is not under said act, but for damages as for ordinary tort.

In Summers v. Woodward, Wight & Co., 142 La. 241, 76 So. 674, this court said:

"Where an employer pays the wages of an injured employe 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 employe 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 employe entitles him to compensation under the act will be regarded as eliminated."

We think the estoppel well pleaded. Counsel for plaintiff seek to avoid it by contending that plaintiff was assured by defendant that he would be waiving none of his rights by receiving these payments. If any such assurance was given, it was after plaintiff had already been receiving the payments, and the meaning of it was simply that by receiving the payments the plaintiff would not be waiving his right to claim compensation as for total liability. There was no question between the parties at that time of plaintiff having, or pretending to, any other...