Jaume v. Maison Blanche Co.

• Decision Date: 26 February 1940
• Docket Number: 17238.
• Citation: 193 So. 905
• Court: Court of Appeal of Louisiana — District of US
• Parties: JAUME v. MAISON BLANCHE CO. ET AL.

193 So. 905

JAUME v. MAISON BLANCHE CO. ET AL.

No. 17238.

Court of Appeal of Louisiana, Orleans.

February 26, 1940

Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage Judge.

Proceeding under the Workmen's Compensation Act by Clement L. Jaume opposed by the Maison Blanche Company and its insurance carrier. Judgment for defendants, and plaintiff appeals.

Affirmed.

John C. Hollingsworth, of New Orleans, for appellant.

Henriques & Mayo, of New Orleans, for appellees.

WESTERFIELD, Judge.

Clement L. Jaume was injured on March 9th, 1937, while employed as a painter by the Maison Blanche Company, a department store, in the City of New Orleans, when he fell from a ladder to the cement floor. He was sent by his employer to the Touro Infirmary, where he remained about four weeks in a more or less unconscious condition under the care of a physician engaged by his employer. After leaving the hospital he was confined to his home until May 21st, 1937, when he returned to his employment and continued working for about nine and one-half months or until March 4th, 1938, when he was sent home by his employer in the belief that he was physically unable to work. On June 13th, 1938, one year and three months after the accident, Jaume brought this suit claiming four hundred weeks compensation for total permanent disability at the rate of Twenty Dollars per week less the period between March 9th, 1937, and May 1st, 1937, when he was paid his full salary by his employer, during the period of his disability immediately following the accident. The insurance carrier of the defendant, Maison Blanche Company, was made co-defendant.

The suit is defended upon the following grounds:

First, a plea of prescription or peremption based upon Section 31 of Act No. 20 of 1914, as amended by Section 1 of Act No. 29 of 1934;

Second, an exception of no right or cause of action;

Third, the Maison Blanche Company, plaintiff's employer, was not engaged in a hazardous trade or occupation as defined by the Workmen's Compensation Act, and,

Fourth, " that whatever conditions plaintiff was suffering from was not the result of the accident of March 9th, 1937" .

The exceptions were overruled and the case proceeded to trial upon the merits resulting in a judgment in favor of the defendants dismissing plaintiff's suit, from which judgment the plaintiff has appealed.

On the merits defendants mainly relied upon their contention that the disability of the plaintiff, for which this suit was filed, did not result from the accident, but from some other cause and was, therefore, not compensable. However, in brief and in argument in this Court, much emphasis is given their exceptions of prescription and of no cause and of no right of action.

We shall first consider the plea of prescription.

Section 31 of the Workman's Compensation Act, No. 20 of 1914, as amended by Act No. 85 of 1926, and Section 1 of Act No. 29 of 1934, reads as follows:

" That in case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties shall have agreed upon the payments to be made under this act or unless within one year after the accident 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. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitations shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the said proceedings have been begun within two years from the date of the accident."

The plaintiff has attempted to show that this case falls within the exception described in that portion of the quoted section which reads " where the injury does not result at the time of, or develop immediately after the accident, the limitations shall not take effect until the expiration of one year from the time the injury develops" . Opposing counsel insist that this contention of the plaintiff was improperly made, since it was presented in the form of a supplemental petition, the effect of which was to enlarge the allegations of the original petition, so as to present a new cause of action. Whatever merit there may be in this proposition, as applied to ordinary litigation, in view of the fact that this is a compensation suit, we are of opinion that the judge, a quo, was correct in overruling it since the compensation statute expressly requires that ordinary rules of pleading be relaxed. In order to determine the question of prescription we must consider the evidence to ascertain whether the year mentioned in the statute begins to run from the date of the accident or from some later date when its latent effects, if indeed there were any latent effects, were first manifested.

There is no question but that the plaintiff was seriously injured on March 9th, 1937. According to the allegation of his petition " he suffered an extensive skull fracture accompanied by profuse nasal hemorrhage indicating a fracture across the floor of the anterior fossa of the skull accompanied by permanent loss of smell and causing or aggravating the growing of cataracts upon plaintiff's eyes and accompanied by general weakness, hypesthesia and hypalgesia of the left side of the body, diminished hearing, tender spine and chest and other injuries, all caused and/or aggravated by plaintiff's said fall and injury, as a result of which plaintiff is totally and permanently incapacitated to carry on his duties as a painter or any similar class of work, and, in fact, on account of the serious brain injury and its effect and the aggravation resulting and flowing from such injury plaintiff is totally and permanently incapacitated to perform any class of work" . However, plaintiff in his supplemental petition, which was filed on July 1st, 1938, three days after the exception of prescription had been filed by the defendants, alleged that the accident of March 9th, 1937, did not immediately produce permanent disability, which was the result of a slow and unrecognized process of development, which did not manifest itself until May 1938, when he was, for the first time, informed by attending physicians that his brain had been injured as a result of the fall and that this brain injury " did not evidence itself by paralysis immediately as above averred, but petitioner is now advised, informed and charges that scar tissue formed upon petitioner's brain and the damage to petitioner's brain has now developed, so that at the time of filing this suit, presently, and increasing in the future, he is affected mentally and emotionally, and additionally there had developed a loss of the sense of smell, the causing or aggravating of cataracts upon plaintiff's eye or eyes, and additionally had reduced the vision of plaintiff's left eye (even with corrective glasses) to 2/5ths of normal vision, and that the deposits have formed are caused by said injury or aggravated by said injury on the surface of both cornea indicating uveitis, together with many vitreous opacities in each eye" .

Jaume testified that after he returned to his employment with the Maison Blanche Company he did the same sort of work he was doing before, but that he was " full of pains" nevertheless, he says he carried on in spite of the pains because he needed the money to support himself and his family. His employer testified that Jaume's work, after the accident, was as efficient as the work done by him before the accident. His pains Jaume said, consisted of a continuous headache and dizziness from which he suffered when he attempted to mount his painter's ladder. He was, at the time of the trial,...