Newsom v. Caldwell & McCann

• Decision Date: 15 March 1951
• Docket Number: No. 3359,3359
• Citation: 51 So.2d 393
• Parties: NEWSOM v. CALDWELL & McCANN.
• Court: Court of Appeal of Louisiana — District of US

Page 393

51 So.2d 393

NEWSOM v. CALDWELL & McCANN.

No. 3359.

Court of Appeal of Louisiana, First Circuit.

March 15, 1951.

Hirsch, Greene & Barker, Baton Rouge, for appellant.

Watson, Blanche, Fridge, Wilson & Posner, Baton Rouge, for appellee.

DORE, Judge.

After a rehearing had been granted to plaintiff, counsel for defendants filed a motion to recall and set aside the rehearing on the ground that the application had not been timely filed. The pertinent dates are as follows: On November 22, 1950 judgment was rendered by this Court affirming the decision of the lower court and denying plaintiff's claim; notice of this decision was mailed by registered mail, in accordance with the rules of this court, on the 23rd of November, and was delivered to and received by counsel for plaintiff on November 24th; on December 8th the application for rehearing was filed, and the rehearing was granted on December 22nd.

Prior to adoption of the Revised Statutes of 1950 the manner of computing the delays within which an application for rehearing by this Court could be filed had been established. Act No. 16 of 1910, Darts', Sec. 1450, provided that: 'Judgments rendered in the courts of appeal * * * shall become final and executory on the fifteenth calendar day after the rendition * * *; provided that in the interval parties in interest shall have the right to apply for rehearing; * * *.'

The State Constitution, Article 7, Section 24, provided that: 'Notice of all judgments shall be given to the counsel of record; and the court shall provide by rule for the giving of such notices. No delays shall run until such notice shall have been given.' (Emphasis supplied.)

In Lacaze v. Hardee, 199 La. 566, 6 So.2d 663, 665, the Supreme Court, correcting an erroneous decision by the Court of Appeal, Second Circuit, in the same case but reported in 7 So.2d 719, said that the above provision of the Constitution as interpreted by the Supreme Court meant 'that the day on which counsel of record receives the notice of the judgment is excluded in computing the fourteen days that the litigant has in which to apply for a rehearing.' To the same effect see Dambly v. Duconge, La.App., 5 So.2d 152, and Tyson v. Baker, La.App., 12 So.2d 468.

Under those authorities the application herein was filed timely since it was filed on the fourteenth day after notice of the judgment was received by counsel. But defendants argue that adoption of the Revised Statutes of 1950 repealed Act No. 16 of 1910 and overruled existing decisions of the courts. LSA-RS 13:4446 reads as follows:

'Applications for a rehearing in all of the courts of appeal * * * must be filed:

'On or before the fifth calendar day after the rendition of judgment by the court of appeal for the parish of Orleans in all cases appealed from the city courts of New Orleans; or,

'On or before the fourteenth calendar day after the rendition of judgment by any of the courts of appeal in all other cases.'

Defendants' argument has no merit for several reasons. First, the Louisiana State Law Institute, compiler of the Revised Statutes, had no authority to write any new law. Act No. 43 of 1942, LSA-RS 14:1 et seq., instructed the Institute to prepare a comprehensive revision of the statutes, simplify their language, and reduce them to one connected text. When the report of the Institute was adopted by the Legislature in 1950 it was expressly stated in Chapter 1, Section 16, that 'The Louisiana Revised Statutes of 1950 shall be construed as continuations of and as substitutes for the laws or parts of laws which are revised and consolidated herein.' Thus it is evident that there was no intent on the part of the Legislature to change the existing law fixing the time for asking for rehearings. And in the second place, the Legislature even if it so desired could not have changed the law as defendants claim, since such a change would have violated Article 7, Section 24 of the Constitution as interpreted by the Supreme Court.

In addition to these reasons, we feel that when defendants filed an answer to the application for rehearing, on December 13, 1950, they waived all right to later object to the timely filing of the application. C.P. art. 327. Motion denied.

On the Merits

At our first hearing of this claim we upheld the judgment of the trial court dismissing plaintiff's suit for the reason, primarily, that we had concluded that plaintiff did not prove to a sufficient degree of certainty that his injury had rendered him incapable of doing the same work that he had done prior to his injury or work comparable thereto.

In defendants' brief on rehearing counsel has discussed each of the cases cited by plaintiff on rehearing and, by showing the different factual situations in those cases from the present case, has shown that those cases are of doubtful value in supporting plaintiff's claim. There is no need now to elaborate on those cases.

There are two well fixed rules to be followed in deciding such cases as this. First, each case must stand or fall on its own merits. Second, if plaintiff received an accidental injury on the job and it rendered him incapable of continuing in the same or similar work then he is, under our jurisprudence, entitled to total disability benefits. See Barr v. Davis Bros. Lumber Co., 183 La. 1013, 165 So. 185; Stieffel v. Valentine Sugars, Inc., 188 La. 1091, 179 So. 6; Lee v. International Paper Co., La.App., 16 So.2d 679; Brown v. Furr, La.App., 19 So.2d 283; Lala v. American Sugar Refining Co., La.App., 38 So.2d 415. With those basic rules in mind the evidence in this case has been re-examined.

Plaintiff put on four witnesses besides himself; defendant put on one witness. Two of plaintiff's witnesses were physicians, and two were fellow employees who had worked on a job with plaintiff for eight months beginning three weeks after his injury. Dr. McVea, one of plaintiff's witnesses, examined plaintiff first on September 26, 1949, or about eight months after the injury, and again on January 27, 1950. At the first examination he found a ten percent loss of function of the left leg which he thought would be permanent. He also found the left leg to be a half inch smaller than the right leg, although plaintiff is left-handed and the left leg would normally be slightly larger, and found an area of loss of sensation or partial loss of sensation in the left leg. On his second examination he found the same difference in size of the legs and also found the left leg to be more unstable than the right leg; again he felt that the ten percent loss of function would be permanent. He stated he did not think the ten percent disability would prevent plaintiff from climbing, then added, 'but I don't think his leg is as strong as it was before his injury * * *.' And again he said, 'I don't believe he can climb quite as well as he could before he was injured.' He explained further that the ten percent loss of flexion was not solely responsible for the ten percent disability, but that the difference in lateral motion in the knees makes a difference to the man, as does the difference in stability in the knees also.

Dr. Sabatier, another of plaintiff's witnesses, examined plaintiff on March 29, 1949 and again on the day of the trial. At the first examination he found several superficial abscesses, a swollen knee joint an acute inguinal lymphadenitis, threefourths atrophy of the left thigh, and fifty percent limitation of motion at the knee. He found on both occasions an area of diminished sensation or loss of nerve function in the left leg, the return of which he felt was doubtful. He estimated the lower extremity to be about ten percent disabled. He stated that the muscle function should return to normal with use and expressed the opinion that Newsom could safely climb and could resume his occupation as...