Madison v. American Sugar Refining Co.

• Decision Date: 29 June 1962
• Docket Number: No. 45942,45942
• Citation: 144 So.2d 377,243 La. 408
• Parties: Harold Joseph MADISON v. The AMERICAN SUGAR REFINING COMPANY.
• Court: Louisiana Supreme Court

Page 377

144 So.2d 377

243 La. 408

Harold Joseph MADISON v. The AMERICAN SUGAR REFINING COMPANY.

No. 45942.

Supreme Court of Louisiana.

June 29, 1962.

Benjamin E. Smith, New Orleans, for plaintiff-applicant.

Chaffe, McCall, Phillips, Burke, Toler & Hopkins, Harry McCall, Jr., Peter A. Feringa, Jr., New Orleans, for respondent.

HAWTHORNE, Justice.

The only question presented for our consideration in this case is the correctness of judgments of the district court and the Court of Appeal allowing credit against a workmen's compensation award for wages paid the employee during the period of disability.

Harold Joseph Madison, a common laborer, instituted this suit against the American Sugar Refining Company, contending that due to an accident occurring in the course and scope of his employment by that company he suffered a ruptured intervertebral disc which rendered him totally and permanently disabled. He prayed for judgment for the maximum workmen's compensation benefits allowed by the compensation act. The defendant pleaded the prescription of one year, denied that plaintiff's injury was caused by an accident in the course and scope of his employment, and also denied that plaintiff was totally and permanently disabled.

The district court overruled the plea of prescription, found that the plaintiff had suffered an accident in the course and scope of his employment and was totally disabled as a result, and awarded him maximum compensation benefits beginning March 7, 1959. The court, however, allowed the defendant a credit for all wages paid to the plaintiff beginning September 16, 1959.

The district court allowed this credit for wages paid during the period of disability because commencing on that date he was assigned to work which required lighter duties and less strenuous physical effort than his previous work assignments had required, and he was paid at virtually the same hourly rate as he was paid before.

Both plaintiff and defendant appealed to the Court of Appeal, Fourth Circuit. That court amended the judgment so as to allow defendant credit for wages paid to the plaintiff between March 7 and September 15, 1959, against compensation due him. In all other respects the judgment was affirmed. See 134 So.2d 646.

After the accident plaintiff resumed his employment with the defendant at the same rate of pay as before the accident, and he continued to perform similar work until his new assignment on September 16. Under these circumstances the Court of Appeal concluded that since the plaintiff was performing work of a character similar to that which he had performed before his injury, the defendant was entitled to credit for all wages it paid him after disability. The Court of Appeal found, and we think correctly, that plaintiff was an unskilled worker or common laborer, and that all of his work assignments after disability were similar to those which he had performed before the accident.

From this judgment plaintiff applied to this court for a writ of review, urging that the judgments of the district court and the Court of Appeal be amended 'so as to eliminate the credit granted the employer, The American Sugar Refining Company,' for wages paid. ¹

Since the credit for wages allowed defendant by the Court of Appeal exceeded the maximum amount awarded plaintiff for compensation, plaintiff was, in effect, denied compensation. Defendant did not apply for a writ to this court, but filed an 'opposition and answer' to plaintiff's application in which it prayed in the alternative that in the event this court should grant the writ, the issues of disability and prescription be reviewed. Since defendant failed to apply to this court for writs, we cannot review the Court of Appeal's judgment on the plea of prescription and its finding that plaintiff was totally and permanently disabled. ² It is well settled in the jurisprudence that where a writ of certiorari is granted on the application of one party to a suit, the other party who has not applied for a writ of review cannot have the judgment amended or changed to his benefit, and that the review by the Supreme Court will be confined to the complaint of the party at whose instance the writ was granted. D. H. Holmes Co., Ltd. v. Morris, 188 La. 431, 177 So. 417, 114 A.L.R. 905; Washington v. Holmes & Barnes, Ltd., 200 La. 787, 9 So.2d 35; Osborne v. Mossler Acceptance Co., 214 La. 503, 38 So.2d 151; see Jones v. Hogue, 241 La. 407, 129 So.2d 194.

The sole issue before this court is, as stated above, whether credit should be allowed. The facts pertinent to the question of credit are these: When the back injury which ultimately caused plaintiff to be totally and permanently disabled ³ first manifested itself in March, 1958, he was working as a common laborer stacking sacks of sugar in boxcars, and was classified as a 'storer', a job that he had performed for defendant for 20 years alternately with other jobs classified as 'car bracer' and 'lift operator'. He continued to perform these jobs alternately as defendant's business required until February, 1959, when he...