Saltalamacchia v. Strachan Shipping Corp.

• Decision Date: 01 July 1963
• Docket Number: No. 1106,1106
• Citation: 156 So.2d 291
• Parties: Frank SALTALAMACCHIA v. STRACHAN SHIPPING CORP.
• Court: Court of Appeal of Louisiana — District of US

Page 291

156 So.2d 291

Frank SALTALAMACCHIA v. STRACHAN SHIPPING CORP.

No. 1106.

Court of Appeal of Louisiana, Fourth Circuit.

July 1, 1963.

Rehearing Denied Oct. 2, 1963.

Certiorari Granted Nov. 12, 1963.

Reginald T. Badeaux, Jr., and Robert R. Gisevius, New Orleans, for plaintiff-appellee.

McClendon & McClendon, William H. McClendon, Jr., and Stuart A. McClendon, for defendant-appellant.

Before REGAN, SAMUEL and HALL, JJ.

SAMUEL, Judge.

This is a suit for workmen's compensation benefits for total and permanent disability resulting from a heart attack. Defendant filed a plea of prescription and answered, alternatively denying liability. There was judgment in the district court awarding plaintiff $35.00 per week beginning June 29, 1959, for the duration of his disability not to exceed 400 weeks (total and permanent disability benefits), with interest at 5% Per annum on each past due installment from its due date until paid, 12% Penalties on the amount of the award plus penalty attorney fees in the amount of $2,000.00, an expert's fee and costs. Defendant has appealed re-urging its plea of prescription before this court and alternatively seeking a reversal on the merits. Further in the alternative, defendant seeks allowance of a credit for payments made over a period of 14 weeks and a reversal of that portion of the trial judgment which assesses penalties.

THE PLEA OF PRESCRIPTION

Plaintiff suffered the heart attack on June 29, 1959. At that time his wages were $78.00 per week and during the 14 weeks immediately following the attack defendant paid him the total amount of $476.52 in twelve unequal payments. The last of these payments was made on October 5, 1959 and this suit was filed on September 8, 1960. Plaintiff contends the payments were wages in lieu of compensation and therefore interrupt the running of the prescriptive period of one year after the accident during which, in the absence of an agreement between the parties upon the payments to be made, a suit in workmen's compensation must be filed (LSA-R.S. 23:1209). Defendant contends they were made simply as a gift or benevolence and do not interrupt prescription.

All of the payments under discussion were made by check and no explanation of their purpose was ever given to plaintiff. Dr. Nadler, the treating physician, did tell him that his injury was not compensable. But plaintiff did not work at all while he was receiving the payments; he was completely incapacitated either in a hospital or at home during most of that time. When Dr. Nadler informed him that he could return to light work defendant refused to give him such work and discontinued the payments.

Since plaintiff performed no work at all in return therefor, there can be no question but that the payments made after his heart attack were not wages earned by him either in whole or in part. Under these circumstances the payments must be considered as wages in lieu, or the equivalent, of compensation. As such, they interrupt prescription.

It is self evident that prescription cannot run against a cause of action which has not accrued or while that cause of action cannot be exercised. Guderian v. Sterling Sugar & Ry. Co., 151 La. 59, 91 So. 546; South Arkansas Lumber Co. v. Tremont Lumber Co., 146 La. 61, 83 So. 378; Jones v. Texas & P. Ry. Co., 125 La. 542, 51 So. 582. Here plaintiff could not bring his action for compensation while he was receiving those payments which were above $35.00 each and there were only two of the twelve payments made which were below that figure; during that time the action would have been premature; and prescription of the right to sue for compensation therefore is interrupted as long as compensation eo nomine or by disguise is being paid. Scalise v. Liberty Mutual Insurance Company, La.App., 84 So.2d 88; Barnes v. Ed. Taussig, Inc., La.App., 78 So.2d 418; Abshire v. Cities Service Refining Corp., La.App., 50 So.2d 307; Goodman v. Hillyer, Deutsch, Edwards, Inc., La.App., 49 So.2d 60.

The rule was expressed by the Supreme Court in D'Antoni v. Employers' Liability Assur. Corporation, 213 La. 67, 76, 34 So.2d 378, 381, as follows:

'If the employee is actually earning the wages paid him, his suit cannot be dismissed on a plea of prematurity forasmuch as he is not receiving compensation. * * * Conversely, if it is shown on the trial of the plea that the wages being paid the employee are in reality a gratuity and not for the performance of work, then the action will be dismissed as premature--for, in such instance, the payment of the wage is the equivalent to the payment of compensation.'

The pertinent statute (LSA-R.S. 23:1209) provides that the one year prescription shall not take effect until the expiration of one year from the time of making the last payment. In the instant case the second to last payment and those two immediately preceeding it, all three of which were in the amount of $39.00 each, were made on September 28, 21 and 14, 1959, respectively, and the last payment, made on October 5, 1959, was less than $35.00. It is not necessary for us to consider the effect on prescription of the last payment less than the compensation to which plaintiff was entitled. For it is quite clear that, this suit having been filed on September 8, 1960 and all of the three $39.00 payments having been made subsequent to September 8, 1959, each one of those three payments interrupted the running of prescription and plaintiff's action could not prescribe until the expiration of one year from the time of making the last such payment. The plea of prescription is not well founded and the same is rejected and dismissed.

THE MERITS

Plaintiff spoke only broken English, appears to have been uninformed and largely uneducated, and had considerable difficulty in understanding and answering questions asked of him at the trial. Sixty-two years of age at the time the heart attack occurred, he had worked for the defendant steadily since 1942. While so working as a longshoreman he was severely injured in 1950 when he sustained a fractured skull, a broken collar bone and nine broken ribs. He never again worked as a longshoreman but after five months disability the defendant gave him what he termed was a 'lifetime job' doing lighter work entirely on shore and principally in the gear yard. He received no compensation settlement or damages for the 1951 accident, one of the residuals of which was an impairment in his speech.

Defendant contends that there was no causal connection between the heart attack suffered by the plaintiff and the work being performed by him at the time the attack occurred, 'light work' as referred to by the witnesses, and therefore there was no compensable accident under the provisions of the Workmen's Compensation Act.

Although there is some conflict in the testimony relative to the work performed by plaintiff on the day of the attack, the record clearly preponderates to the following effect: He reported for work at 7 a.m. At 8 a.m., with August Rodriguez, a fellow workman, he started loading gear on a trailer truck for the purpose of transporting the same across the river. The gear consisted of eight small flat wagons, two small tractors and a lift machine. In order to get this heavy equipment on the trailer it was necessary to place two metal skids, weighing 330 pounds each, at the rear of the vehicle so as to form a ramp. The skids were physically handled by the two men in order to get them into place and then to put them back aboard the trailer. The load was lashed down with heavy chain and small cross ties or blocks were placed between the wagons. After the load had been lashed down the two men, with Rodriguez driving, rode across the Mississippi River Bridge and assisted in unloading the equipment. The plaintiff helped to remove the heavy metal skids from the trailer bed and again fastened them to the rear of the vehicle to form a ramp. He pulled off the lashing chains and stacked them in front of the trailer and picked up the cross ties separating the wagons and stacked them. While returning from the unloading operation plaintiff experienced a pain in his chest and arm. He said nothing to Rodriguez and was so unusually quiet that the latter asked him if anything was the matter. Rodriguez testified that plaintiff's answer was 'Nothing' but at the time he placed his hand to his chest. The two men returned to the gear yard shortly before 12 o'clock. After lunch and shortly before 1 p.m. plaintiff was ordered to deliver 900 pounds of ice to three of defendant's vessels. He obtained a tractor and a...