Harris v. Primos

• Decision Date: 26 November 1957
• Docket Number: No. 8726,8726
• Citation: Harris v. Primos, 98 So.2d 683 (La. App. 1957)
• Parties: Pearlie HARRIS, Plaintiff-Appellant, v. Gus K. PRIMOS, Defendant-Appellee.
• Court: Court of Appeal of Louisiana

Page 683

98 So.2d 683

Pearlie HARRIS, Plaintiff-Appellant, v. Gus K. PRIMOS, Defendant-Appellee.

No. 8726.

Court of Appeal of Louisiana, Second Circuit.

Nov. 26, 1957.

Dhu & Lea S. Thompson, Monroe, for appellant.

George Fink, Monroe, for appellee.

AYRES, Judge.

Plaintiff instituted this action for compensation under the Workmen's Compensation Statute (LSA-R.S. 23:1021 et seq.) and, in the alternative, as a tort claim for damages predicated upon negligence. Defendant filed an exception of no cause of action, which, on trial, was sustained by the trial court as to plaintiff's principal demand asserted for workmen's compensation and, accordingly, her suit as to said demand was dismissed. From the judgment thus rendered and signed, plaintiff appealed. Defendant has moved for a dismissal of the appeal upon the ground that the judgment is interlocutory, and cites in support of this contention Reeves v. Barbe, 200 La. 1073, 9 So.2d 426, to the effect that no appeal lies or is authorized from such a judgment.

We do not think defendant's plea is well founded or that the Reeves case finds application in the situation as presented here. In contradistinction, the Reeves case presented an appeal from a judgment sustaining an exception of no cause of action to a part of plaintiffs' petition in an ordinary action wherein plaintiffs sought to recover from the defendant certain sums of money and to be decreed the owners of certain royalty interests standing in the defendant's name predicated on a verbal agreement of joint adventure respecting two separate tracts of land but only as to one of which it was alleged that the verbal agreement was acknowledged by the defendant in writing, whereas, in the instant action plaintiff's principal and primary demand is for workmen's compensation.

Equally distinguishable are the rules of evidence and procedure applicable to the nature of the cases. Under the Compensation Statute, 'The court shall not be bound by technical rules of evidence or procedure other than as herein provided, * * *. The court shall decide the merits of the controversy as equitably, summarily and simply as may be.' LSA-R.S. 23:1317. The first of these rules has been held to apply in appellate courts as well as in the courts of original jurisdiction. McClung v. Delta Shipbuilding Co., Inc., La.App., 33 So.2d 438, 443. The court of appeal is directed to give preference such as is given the State on appeal by LSA-R.S. 23:1351, wherein a special right of appeal is granted from any judgment rendered pursuant to the Workmen's Compensation Statute.

To deny an appeal from a judgment sustaining an exception of no cause of action to a claimant's principal demand for compensation because of the pendency of an alternative demand for damages would run counter to the rule prescribed against technical procedure in compensation cases. The denial of an appeal could only result from the application of a form of procedure obviously highly technical. Moreover, we think an appeal lies from the judgment under Code of Practice Art. 566, which provides that:

'One may likewise appeal from all interlocutory judgments, when such judgment may cause him an irreparable injury.'

Also, such an appeal lies under the test laid down in Fields v. Gagne , 33 La.Ann. 339; State ex rel. Pflug v. Judge, 35 La.Ann. 765, and Feitel v. Feitel, 169 La. 384, 125 So. 280, 281, wherein it was held:

"If the decree of the appellate court can restore the parties, without the loss of any right under the pleadings, to the identical position which they respectively occupied before the rendering of the interlocutory decree or order complained of, the injury to either party is clearly not irreparable, and therefore the right to appeal does not exist' * * *'.

In the absence of the maintenance of this appeal from the ruling and judgment complained of, the plaintiff is deprived of the summary and expeditious manner and procedure provided for the hearing and determination of workmen's compensation cases, both in the trial court and in the appellate court, as well as being deprived of the liberality in her favor in the rules of evidence and procedure afforded compensation claimants, together with the statutory presumptions in her favor and the limitations as to defenses. The delay in payment of compensation occasioned by the judgment appealed, if the appeal is not maintained, may well in itself constitute actual and irreparable injury to an incapacitated employee, particularly through the effect of the judgment relegating plaintiff's principal demand for compensation for trial and determination subsequently to the trial of her alternative demand for damages, which could and, no doubt, would be the outcome through the usual and ordinary course of proceedings and delays, including an appeal. Once this injury is suffered, the status quo cannot be restored.

The grounds urged for dismissal of the appeal, in our opinion, are without merit for the reasons (1) they have no application to workmen's compensation cases, and (2) the judgment appealed may well cause plaintiff irreparable injury. The motion to dismiss the appeal will, therefore, be overruled.

The exception of no cause of action was predicated on the assumption that plaintiff worked in a non-hazardous occupation. By reference to the statute, LSA-R.S....