Hardin v. Higgins Oil & Fuel Co

• Decision Date: 31 May 1920
• Docket Number: 22682
• Citation: 147 La. 453,85 So. 202
• Parties: HARDIN v. HIGGINS OIL & FUEL CO
• Court: Louisiana Supreme Court

85 So. 202

147 La. 453

HARDIN v. HIGGINS OIL & FUEL CO

No. 22682

Supreme Court of Louisiana

May 31, 1920

Appeal from First Judicial District Court, Parish of Caddo; J. R Land, Judge.

Action by Van D. Hardin against the Higgins Oil & Fuel Company. Judgment for plaintiff, and defendant appeals.

Reversed, and action dismissed.

J. S Atkinson, of Shreveport, for appellant.

Barret & Files, of Shreveport, for appellee.

OPINION

SOMMERVILLE, J.

Plaintiff alleged that while in the employ of the defendant company he received injuries to his hand, necessitating the amputation of his middle finger, and permanently injuring and crippling two other fingers, which rendered his hand permanently useless; that during the course of his employment, through the negligence and carelessness of the defendant company, he was totally disabled for 23 weeks, and permanently partially disabled thereafter, and he asks for judgment in the sum of $ 230 for total disability, with a credit of $ 200 paid thereon by defendant, and for the further sum of $ 2,770 for permanent partial disability. (The last claim for injuring and crippling two fingers is more than the compensation allowed in the act for the loss of a hand, say $ 10 per week for 150 weeks.)

Defendant answered, and admitted that plaintiff, while in its employ, received injuries to the middle finger of his hand, which finger was amputated, but specially denied that he received any other injuries to his hand, or any injuries permanently injuring and crippling two other fingers; further, it denied that his hand had been rendered useless by reason of the injury sustained, and alleged that it had paid plaintiff the sum of $ 200, being $ 10 for 20 weeks, for injury to his middle finger and the loss of same. It denied that plaintiff had sustained other injuries to his hand or fingers.

There was judgment in favor of plaintiff for $ 230, being $ 10 per week for 23 weeks during total disability of the plaintiff to do any work, less $ 200 paid on account, and in the further sum of $ 1,050, being $ 3.50 per week for 300 weeks for "total disability." Defendant has appealed.

That portion of plaintiff's claim "for total disability," $ 230, was apparently made under section 8, subsec. (a), of the Compensation Act No. 20 of 1914, p. 44, as amended by Act No. 243 of 1916, p. 512. It provides:

"(a) For injury producing temporary total disability to do work of any reasonable character fifty per centum of wages, subject to a maximum compensation of ten dollars per week and a minimum compensation of three dollars per week," etc.

But we find in subsection (d) it is provided:

"In cases included by the following schedule the compensation shall be as follows: * * * For the loss of a first finger, commonly called the index finger, fifty per centum of wages during thirty weeks.

"For the loss of any other finger, or a great toe, fifty per centum of wages during twenty weeks," etc.

And, as plaintiff's suit is brought under this act, and he has lost one of his fingers, other than the first finger, he is only entitled to half wages for 20 weeks; and this amount he admits he has received from defendant company. He has no claim under subsection (a), which provides for temporary total disability.

Plaintiff's claim for $ 2,770 "for permanent partial disability" is made under subsection (c) of section 8, and it reads as follows:

"For injury producing permanent partial disability, the compensation shall be one-half of the difference between the wages of the injured employ before the injury and the wages which he is able to earn thereafter subject to a maximum of ten dollars per week to be paid for the period of disability not exceeding 300 weeks."

A claim under this section was allowed by the court in Mack v. Legeai, 144 La. 1017, 81 So. 694, for injury to a servant's knee which caused a permanent partial disability.

The district judge found that the first and third fingers on plaintiff's right hand were stiff because of the injury to the middle finger and the amputation thereof, and that the injury produced permanent partial disability, and gave judgment under the above subsection (c).

Plaintiff was the only witness on his behalf. After testifying to the manner in which he received the accident to his middle finger and the amputation thereof, he was asked about the condition in which his hand had been left after the amputation, and he replied: "Well, about the best I can do is to show you my hand." And he testified that he could not do the work of derrick man, which position ...