Guderian v. Sterling Sugar & Ry. Co., Limited

• Decision Date: 27 March 1922
• Docket Number: 24544
• Citation: 91 So. 546,151 La. 59
• Parties: GUDERIAN v. STERLING SUGAR & RY. CO., Limited
• Court: Louisiana Supreme Court

91 So. 546

151 La. 59

GUDERIAN v. STERLING SUGAR & RY. CO., Limited

No. 24544

Supreme Court of Louisiana

March 27, 1922

Rehearing Denied April 17, 1922

Appeal from Twenty-Third Judicial District Court, Parish of St Mary; Percy Saint, Judge.

Suit under the Employers' Liability Act by August Guderian against the Sterling Sugar & Railway Company, Limited, for compensation for injuries. Compensation was awarded, and the employer appeals.

Affirmed.

P. M Milner and Milling, Godchaux, Saal & Milling, all of New Orleans, for appellant.

Foster & Boatner, of Franklin, for appellee.

OPINION

OVERTON, J.

Plaintiff instituted this suit under the Employers' Liability Act (Act No. 20 of 1914) to recover judgment against defendant for $ 16.75 a week, beginning April 23, 1919, for a period of 400 weeks, for injury which he alleges he received from an accident, which he contends occurred in the course of his employment and arose out of it.

The injury consists in the loss of an eye. This loss has rendered him totally blind, for the reason that some years before he was so unfortunate as to have lost the other. He therefore alleges that he is totally and permanently incapacitated to work, and sues for compensation accordingly.

The defense is the prescription of one year, the plea that the accident did not arise out of and in the course of the employment, and, in the event it did, then that the incapacity is not total, but only partial.

The plea of prescription of one year is the first question that calls for attention, for if it should be well founded it would be needless to determine the remaining questions.

The facts pertinent to that plea are as follows: Plaintiff, who was the foreman of a number of laborers in defendant's employ, was struck by one of them, named Porter, over the eye, in a difficulty immediately following the latter's discharge. The blow caused a gash over the eye, which, while it required slight medical attention, gave plaintiff no concern, and did not occasion him any loss of time from his work. This was on January 9, 1919. In the early part of April, following, plaintiff observed dark spots before his eye. This at once alarmed him, and he immediately consulted a local physician, who informed him that the condition mentioned was due to a probable derangement of the kidneys or indigestion. He then returned to his work, but about April 23d he noticed that his eyesight was failing, and immediately consulted the same physician, who advised him to consult at once a specialist in New Orleans. He acted on this advice, for on April 29th he was under treatment in the Touro Infirmary.

The evidence discloses that the blow over the left eye caused the detachment of the retina on the temporal side, and that at some time after April 23d, perhaps in the early part of May, 1919, plaintiff as a result lost his left eye completely, and, for the reason above stated, became totally blind.

This suit was instituted on April 22, 1920. Hence over a year elapsed between the blow and the institution of this suit, whereas less than a year intervened between the loss of the eye and the filing of the suit.

Defendant contends that prescription began to run from the time the blow was struck, whereas plaintiff's contention is that it commenced at the time of the loss of the eye. The Employers' Liability Act contains the following provision relative to prescription:

"That in case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the injury or death the parties shall have agreed upon the payments to be made under this act, or unless within one year after the injury proceedings have been begun as provided in sections 17 and 18 of this act. Where, however, such payments have been made in any case, said limitations shall not take effect until the expiration of one year from the time [of] making the last payment." Section 31 of Act No. 20 of 1914.

Undoubtedly, the blow injured the optic nerve at the time it was given, but plaintiff did not know that, and had no means of ascertaining it. His eyesight was not perceptibly affected. He continued his work, stopping only long enough to have the wound on the forehead dressed. He had no cause of action at that time under the Employers' Liability Act. His cause of action was in process of development, but without knowledge of this fact on his part, or means of knowledge. The first symptom that arose suggesting the possibility that his eye was injured was not sufficient to excite the slightest alarm in his physician, whose opinion dissipated plaintiff's fears. He had no knowledge of even what might happen until April 23, 1919, which was within one year prior to this suit, unless the symptom, above mentioned be deemed knowledge, but we think it should not.

Plaintiff's cause of action did not arise until he losthis eye. It is self-evident that one cannot sue until his cause of action arises. Concerning the prescription of one year applicable to offenses and quasi offenses, prescribed by article 3536 of the Civil Code, this court, in South Arkansas Lumber Co. v. Tremont Lumber Co., 146 La. 61, 83 So. 378, said:

"A person cannot bring suit until his cause of action has accrued, and until a cause of action has accrued, prescription cannot run against it. Jones v. T. & P. R. R. Co., 125 La. 542, 51 So. 582, 136 Am. St. Rep. 339."

While the above was said in relation to another, though a kindred prescription, yet the fundamental principle involved is equally as applicable here as it was there. To the same effect as the South Arkansas Lumber Co. Case is the case of Rady v. Fire Insurance Patrol, 126 La. 273, 52 So. 491, 139 Am. St. Rep. 511. The cases of Griffin v. Drainage Commission, 110 La. 840, 34 So. 799, and Egan v. Hotel Grunewald, 134 La. 740, 64 So. 698, cited by defendant, do not lead to a different conclusion. They state the rule where a single act causes continuing and progressive damage. Even those cases recognize an exception to the rule they announce, for it is there stated, in effect, that prescription is suspended if it be made to appear that there was good legal reason for not bringing the action earlier, and therefore, if anything, they support the view taken in this opinion. We therefore overrule the plea of prescription.

In determining the case on its merits, it will be necessary to state how the difficulty occurred in order to determine whether the accident arose out of and in the course of the employment.

Porter the laborer mentioned in the beginning of this opinion as the one who struck the blow, found it necessary to leave his work for a while. Plaintiff thought that Porter had absented himself for too long a period, and upon his return so informed him. Porter replied, ...