Kinder v. Lake Charles Harbor and Terminal Dist.

• Decision Date: 30 June 1947
• Docket Number: 2913.
• Citation: 31 So.2d 498
• Court: Court of Appeal of Louisiana — District of US
• Parties: KINDER v. LAKE CHARLES HARBOR AND TERMINAL DIST. et al.

31 So.2d 498

KINDER v. LAKE CHARLES HARBOR AND TERMINAL DIST. et al.

No. 2913.

Court of Appeals of Louisiana, First Circuit

June 30, 1947

Rehearing Denied Aug. 27, 1947.

Writ of Certiorari Denied Oct. 7, 1947.

Hawkins Tritico & Savoy, of Lake Charles, for appellant.

Jones Kimball & Owen, of Lake Charles, for appellees.

DORE, Judge.

This is an appeal from a judgment sustaining a plea of prescription and peremption to a petition for workman's compensation. The petition states that the plaintiff was employed on and prior to August 27, 1942, by the Lake Charles Harbor and Terminal District as guard and shed foreman, and that on August 27 1942, while in the course and scope of his employment attempting to close a heavy door that was jammed, the said door, upon being loosened, struck plaintiff's right foot near the ankle 'inflicting a severe injury upon it.'

The petition alleges further that the injury was not believed to be serious or permanent at the time of the accident, and petitioner continued to work, but that gradually, after the passage of considerable time, this traumatic lesion on plaintiff's ankle developed into a sarcoma; that on February 13, 1945, Dr. T. H. Watkins operated on plaintiff with a view of relieving the condition of his ankle and leg, after which plaintiff was given x-ray treatments, and that since this first operation and x-ray treatments did not cure the condition, it became necessary to amputate plaintiff's right leg near the knee, which amputation was done on April 15, 1946. The petition states further that no workmen's compensation whatsoever has been paid to plaintiff, but that the medical services given him by Dr. Watkins, by whom he was treated from the date of injury to date, were paid for by the defendant, Lake Charles Harbor & Terminal District and/or its insurer, U. S. Fidelity Guaranty Company, who is also made defendant herein.

The plaintiff prays for workman's compensation at the rate of $15.44 (65% of his weekly wage) from September 19, 1945, for a period of 400 weeks, together with legal interest from maturity on past due instalments, and for all costs.

The petition was filed on August 10, 1946, and the defendants thereupon each filed an exception of prescription and peremption and an exception of no cause and no right of action.

The trial judge based his judgment entirely on the exception of prescription and peremption, and in his written opinion, he brings out the fact that this case is similar to the case of Carroll v. International Paper Co., 175 La. 315, 143 So. 275, wherein the Supreme Court sustained a plea of prescription and peremption on facts similar to those involved herein, and he states that whereas the plaintiff is permanently disabled as a result of the blow received by him on August 27, 1942, that since no action of any kind was filed until October 10, 1946, he is forced to uphold the plea of prescription and peremption in accordance with the decision of the Supreme Court, supra.

Both the plaintiff and defendants have submitted clear, well written briefs. The main contention of plaintiff is that even though no compensation was ever paid to plaintiff and no suit was filed prior to August 10, 1946, that the injury developed gradually from a minor injury as of August 27, 1942, into a more serious injury as of February 13, 1945, when he was subjected to a minor operation, and an even more serious injury by April 15, 1946, when his leg had to be amputated; and that during this whole period plaintiff was under the care of Dr. Watkins, at the direction or with the consent of defendant employer and that the defendant employer, or its insurer, made payment for medical services to Dr. Watkins on August 23, 1945; that, in effect, the payment of these medical benefits for services given during this whole period resulted in the interruption of prescription. Counsel for plaintiff argues, in other words, that the prescription and peremption set forth in Section 31 of the Compensation Act, Act No. 20 of 1914, as amended by Act No. 29 of 1934, is interrupted by the payment of medical benefits in the same manner as by the payment of regular compensation. Counsel fails to quote any authority on that contention, claiming it is his belief that this is the first time the point has been urged before the courts.

Counsel for defendants contends that the reason this point has never been presented before is because the Act on this point is clear to the effect that medical expenses paid are not to be considered as payments interrupting prescription. He further says that even if the contention of plaintiff that treatment by Dr. Watkins at defendants' expense interrupted prescription, then and in that case the first specific allegation of treatment was as of February 13, 1945, (although the petition does contain the general allegation that Dr. Watkins treated plaintiff continuously from the date of injury to date).

It is clear from the allegations of the petition that the accident from which plaintiff's...