Henry v. Higgins Industries
| Citation | 24 So.2d 402 |
| Decision Date | 14 January 1946 |
| Docket Number | 18374. |
| Court | Court of Appeal of Louisiana (US) |
| Parties | HENRY v. HIGGINS INDUSTRIES, Inc. |
Lewis R. Graham, of New Orleans, for plaintiff-appellee.
Rosen Kammer, Wolff, Hopkins & Burke, of New Orleans, for defendants-appellants.
Harold J Henry, while engaged in his work for Higgins Industries Inc., on March 2, 1944, was struck on the right foot by a falling beam and certain bones of that foot were broken. He brought this suit for compensation against the said employer Higgins Industries, Inc., and its insurer, Maryland Casualty Company, and alleging that he had been permanently and totally disabied and that his daily rate of pay was such as to entitle him to compensation at the maximum rate, $20 per week, prayed for solidary judgment against the two named corporations for $20 per week for 400 weeks, together with interest on all overdue payments, subject to a credit for such amounts as had already been paid to him.
Defendants admitted the employment and the occurrence of the accident, and admitted also that for a certain period plaintiff had been totally disabled, but they averred that for that period they had paid him compensation and that they had also paid all hospital and medical bills. For lack of sufficient information, they denied that plaintiff's disability had continued beyond the period during which they had paid him compensation but they now concede that he is partially, permanently disabled and assert that he is entitled to be paid compensation for the balance of 300 weeks, based on a one-third disability of one foot. In other words, their contention is that plaintiff's disability is limited to one foot and that that disability amounts to only one-third of the total use of the foot, and that since, for the total loss of the foot he would have been entitled to compensation for only 125 weeks, he is entitled to be paid one-third of $20 per week for 125 weeks.
In the District Court there was judgment for plaintiff against both defendants for $20 per week for 400 weeks together with 5% interest on all overdue payments, subject to a credit of $246.67, the amount already paid. Defendants have appealed and plaintiff has answered the appeal praying that he be awarded an additional 10% as damages for the taking of a frivolous appeal.
The record shows that the accident occurred on March 2, 1944 and that he was admittedly totally disabled until May 24, 1944. On that day he was discharged by a physician of Higgins Industries as able to return to work. He was offered a position by his former employer which consisted of lighter work but because he was unwilling or unable to pay the necessary union dues, he did not accept that employment. He secured work at Dixie Machine Shops but says that within the three weeks he was employed there he was able to work only about half the time because of the condition of his foot. He then attempted to drive a truck for several weeks but says that he could not do so. His family lived in Thibodaux, so he went to live there, and secured a position driving for a funeral home, but states that he could not do that work for more than about two weeks as his foot continued to give him trouble.
At the time of the injury, he was employed as a ship-fitter's helper but defendants maintain that since he had been employed only from February 14th to March 2nd he had not become an expert in any particular work, and that it could not be said that he had developed a trade or had become a specialist in any particular kind of work. In other words, defendants maintain that he was an ordinary common laborer and that, therefore the injury to his foot did not deprive him of his ability to exercise any particular trade or specialty, and they assert therefore that he is not entitled to compensation for total permanent disability but only for partial disability since he is able to do work of a reasonable character, and that he should be paid compensation under subparagraph (c) of subsection 1 of Section 8 of Act 20 of 1914, as amended by Act No. 242 of 1928, which subparagraph reads as follows: ...
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...Paper Company, La.App., 16 So.2d 679; Butzman v. Delta Shipbuilding Company, Inc., et al., La.App., 21 So.2d 80; Henry v. Higgins Industries, Inc., La.App., 24 So.2d 402; Richardson v. American Employers' Insurance Company et al., La.App., 31 So.2d 527; Gilmore v. George W. Garig Transfer, ......
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