Myers v. Jahncke Service

• Citation: 76 So.2d 436
• Decision Date: 08 November 1954
• Docket Number: No. 20479,20479
• Parties: Rody MYERS, Plaintiff and Appellant. v. JAHNCKE SERVICE, Inc. and The Employers' Liability Assurance Corporation, Limited, Defendants and Appellees.
• Court: Court of Appeal of Louisiana (US)

Page 436

76 So.2d 436

Rody MYERS, Plaintiff and Appellant. v. JAHNCKE SERVICE, Inc. and The Employers' Liability Assurance Corporation, Limited, Defendants and Appellees.

No. 20479.

Court of Appeal of Louisiana, Orleans.

Nov. 8, 1954.

Rehearing Denied Jan. 3, 1955.

Writ of Certiorari Denied Feb. 14, 1955.

Dodd, Hirsch & Barker, and Thomas J. Meunier, New Orleans, for plaintiff and appellant.

Deutsch, Kerrigan & Stiles, and Marian Mayer, New Orleans, for defendants and appellees.

McBRIDE, Judge.

Plaintiff, Rody Myers, had been employed as a shipfitter by Jahncke Service, Inc., at its yard in Madisonville, Louisiana, since April 1949, and on October 4, 1950, during the course and scope of his employment he met with an accident wherein his right hand was so badly mangled that the physicians amputated the member two inches above the wrist. After the accident plaintiff did no work whatever until October 14, 1951, when he was re-employed by Jahncke Service, Inc., in the capacity of 'pusher' (which we conceive to be a sort of subforeman) at the Madisonville Yard. Plaintiff was carried on the payroll at an hourly rate of pay approximating that which he earned prior to the accident and his earnings each week amounted to more than $30 during the period he worked as a pusher, with the exception of one week when he made but $9.60. Except for the period commencing August 12, 1952, and terminating January 11, 1953, during which he was absent on leave without pay, Myers continued on as a pusher until January 22, 1954, when of his own volition he left defendant's employ and has remained unemployed ever since.

The compensation insurance carrier for Jahncke Service, Inc., paid Myers compensation at the rate of $30 per week from the date of the accident, October 4, 1950, up until August 18, 1953, or for a period of 150 weeks. When Myers quit his job as pusher on January 22, 1954, the compensation insurer resumed making the weekly compensation payments and continued making such payments to June 4, 1954; thus, the aggregate number of weeks for which compensation was paid to plaintiff is 169. The total number of weeks which plaintiff worked as pusher and earned more than $30 each week is 76. So here we have the novel situation where an injured workman has received both compensation and wages from his employer at one and the same time over a considerable period.

Chronologically, the pertinent periods since plaintiff's accident can be tabulated as follows:

1. From October 4, 1950, to October 14, 1951 (53 weeks) plaintiff received $30 a week compensation from the appellees herein.

2. From October 14, 1951, through August 17, 1952 (a period of 44 weeks) appellant continued to receive $30 a week compensation and in addition approximately $50 to $60 a week as wages.

3. From August 17, 1952, to January 12, 1953 (21 weeks) appellant took voluntary leave from work to be with his wife who was sick. He continued to receive $30 a week in this interval but no wages.

4. From January 12, 1953, to August 17, 1953 (a period of 32 weeks) appellant again received by compensation of $30 and a wage of $50 to $60.

5. After August 17, 1953 the compensation payments ceased and from August 17, 1953 through January 22, 1954 (a period of 23 weeks) appellant received only his wage.

6. On January 22, 1954, he resigned his job and from that date up to June 4, 1954, (19 weeks) he received $30 a week in compensation.

Myers instituted this suit against Jahncke Service, Inc., and the compensation insurer on September 10, 1953, alleging that the loss of the hand in the accident of October 4, 1950, rendered him totally and permanently disabled from performing work of any reasonable character. He prayed for a judgment against both defendants for workmen's compensation at the rate of $30 per week for a period of 400 weeks less whatever compensation may have been paid to him.

The chief defense is that in addition to a credit for the weekly compensation paid, defendants are entitled to an additional credit of $30 each week since plaintiff's accident during which he worked for Jahncke Service, Inc., and received a weekly wage of more than $30, this on the theory that the wages paid Myers were not earned, but, on the contrary, were in the nature of gratuities. Alternatively, defendants contend that the credit is due even if it be held that the wages were actually earned by Myers. In other words, defendants' argument is that whether the wages were earned or unearned, the fact remains Myers worked for the same employer and he cannot receive both salary and compensation at the same time.

The case was duly tried and culminated in a judgment in plaintiff's favor and against both defendants in solido for workmen's compensation at the rate of $30 per week for 400 weeks. The trial judge concluded that the wages paid Myers were actually earned by him but that defendants were nevertheless entitled to the credit they sought. The judgment, with respect to the credits, provides:

'It is further ordered, adjudged and decreed that defendants herein be declared currently paid up in all compensation payments that may have been due Rody Myers through June 4, 1954, and that in addition it be further recognized that defendants have paid Rody Myers, in advance, eighty-seven (87) weeks of compensation benefits which are not yet due; and

'It is further ordered, adjudged and decreed that credit for the advanced payment of 87 weeks compensation already paid by the defendants to the plaintiff be given, in accordance with [LSA] R.S. 23:1206, by shortening the period during which compensation shall be paid.'

Plaintiff has perfected this appeal from the judgment; defendants have answered alleging that the judgment is correct and praying that it be affirmed. Alternatively, defendants pray the judgment be amended (1) to decree that the wages paid Myers for his services as pusher were in reality gratuitous and were not paid for the performance of any actual work, and that the payment of such wages, or gratuities, is equivalent to the payment of compensation, or (2) that it be decreed that the wages were earned and that Myers no longer can be said to labor under a disability and he is entitled to no further compensation.

At the outset let it be said that we are of the opinion that whatever wages plaintiff received from Jahncke Service, Inc., during the two periods he worked after the accident were not and cannot be considered mere gratuities or benevolences, as the record convinces us that Myers performed all of the duties required of a pusher and that the wages were paid on a quid pro quo basis. It is perfectly true that Jahncke Service Inc., created the job for Myers to assist in his rehabilitation, but the record leaves no room for doubt that the duties required of Myers cannot be characterized as 'light work' in the sense that the term was ordinarily used in similar cases where courts have been confronted with the defense raised here. Jahncke Service, Inc., first offered to re-employ Myers as a night watchman, but Myers refused the offer. He was later offered and accepted the job of pusher. The foreman at the Madisonville Yard testified that in the morning he would send out the several groups of men to the various places at which they were to perform their labor and that one gang would be placed under the charge of Myers who would go out with the men. The foreman, on his direct examination, when interrogated as to what were Myers' duties, answered:

'He was supposed to see that those men worked. * * * He was supposed to see that this work and the job was carried out. * * * I took Mr. Rody Myers out there and showed him what I wanted on the job and he was supposed to carry it out like I told him to.'

The manager of the Marine Department of Jahncke Service, Inc., testified: 'Well, he (Myers) moved in the group. * * * He was with them showing them what to do.' Myers testified that in addition to the duties mentioned above, he was required to check and keep a record of all materials used on the job and to make report to the Supply Room.

This is not a case where an injured workman is re-employed and assigned only the lighter portion of the duties of his previous occupation, but we are dealing with a workman who is incapacitated from carrying on his former job and who has been re-employed to perform the duties of another and entirely different occupation. Myers, although in a crippled condition, was able to carry out and undoubtedly did carry out to the satisfaction of Jahncke Service, Inc., all duties required of him as a pusher, chiefly in supervising the men placed under his charge and in instructing them as to how they should perform their work, and in pointing out to them what work they should do. It must not be overlooked that Myers was experienced and qualified as a shipfitter as he had not only worked for Jahncke Service, Inc., for some time in that capacity but had also worked for others, and his knowledge of the trade undoubtedly equipped him to render substantial and valuable services to Jahncke Service, Inc.

It is said that before Myers was reemployed, Jahncke Service, Inc., had never had a pusher on its payroll and had never found such services as were rendered by Myers to have been necessary in its business. Testimony emanating from the defense witnesses is to the effect that when Myers took the leave of absence without pay between August 1952 and January 1953 no one was employed to take his place and there was no other pusher in the Madisonville Yard. The argument is made to us that the job of pusher was nonessential and it is contended that the wages paid Myers for his services as pusher amounted to mere gratuities. This is not so. Myers performed all of the duties required of him in the new and different occupation of pusher, which entailed activities of an entirely different nature and class from those of his former occupation, in which he was called upon to use...