Scott v. Hillyer, Deutsch, Edwards, Inc.

• Decision Date: 24 April 1950
• Docket Number: No. 39388,39388
• Citation: 46 So.2d 914,217 La. 596
• Parties: SCOTT v. HILLYER, DEUTSCH, EDWARDS, Inc.
• Court: Louisiana Supreme Court

Page 914

46 So.2d 914

217 La. 596

SCOTT v. HILLYER, DEUTSCH, EDWARDS, Inc.

No. 39388.

Supreme Court of Louisiana.

April 24, 1950.

Rehearing Denied May 29, 1950.

Julius T. Long, Shreveport, for plaintiff and relator.

Thompson, Lawes, Cavanaugh & Hickman, Lake Charles, for defendant-appellee and respondent.

HAWTHORNE, Justice.

This case is before us for review of a judgment of the Court of Appeal affirming a decree of the district court which awarded to relator compensation at the rate of $20 a week for a period of 30 weeks, less the amount of compensation previously paid, under the provisions of Act 20 of 1914, Section 8, subsection 1, paragraphs (d)3 and (d)11, as amended by Act No. 242 of 1928, pp. 357, 358, for the loss of the little finger and two phalanges of the ring finger on the left hand.

Relator in his application for writs to this court urged, among other things, that the Court of Appeal erred in denying to him permanent total disability under the provisions of Section 8, Subsection 1, paragraph (b), of the act, and that the holding of that court was contrary to the holding of this court in Hughes v. Enloe, 214 La. 538, 38 So.2d 225, and Washington v. Independent Ice & Cold Storage Co., 211 La. 690, 30 So.2d 758. On the showing made by relator, a writ was granted, and pursuant thereto the entire record was lodged in this court. However, after reading all the testimony and considering the evidence adduced, we have come to the opinion that the judgment of the Court of Appeal is correct. See 38 So.2d 534.

The nature and cause of the accident are fully set out in the opinion of the Court of Appeal, and it is not necessary to reiterate them here, especially since there is no dispute as to these facts.

If the employee in the instant case due to the injury sustained is unable to perform work of the same or similiar character as that which he was accustomed to perform, he is entitled to payments for permanent total disability under the provisions of Section 8, Subsection 1, paragraph (b), of our compensation law, under the well established jurisprudence of this court. See Washington v. Independent Ice & Cold Storage Co., and Hughes v. Enloe, both cited supra, and authorities therein cited.

In the Washington case this court pointed out that the Legislature by the adoption of the Workmen's Compensation Act intended to provide that an employee should be paid compensation for an injury (whether temporary total, permanent total, or partial disability) suffered in the course of his employment during the period of disability under the provisions of Section 8, Subsection 1, paragraphs (a), (b), and (c); that under the provisions of paragraph (d) of the same section, which deals with the loss of a hand, arm, etc., compensation is to be paid irrespective of the duration of the disability; that it was the intention of the Legislature not to have paragraph (d) supersede and take precedence over the disability sections, but rather to supplement them; that the main object of the Legislature was to provide an employee whose wages are discontinued as a result of an injury sustained while serving his master with funds to subsist on until he can return to work; that, although this was the main object or purpose of the act, there was another object--that is, that there might arise specific injuries, such as severance or amputation of members or disfigurement, etc., without disability, and the employee, who has been deprived by the statute of the right to recover in tort, should have the right to compensation in such cases, and hence the provision of the act under paragraph (d), where disability is not mentioned. In the course of the opinion in that case this court quoted with approval from the case of Wilson v. Union Indemnity Co., La.App., 150 So. 309, 312, wherein it was said: 'It has been held many times that subsections (a), (b), and (c) cover all cases of injuries affecting earnings, while subsection (d) has been applied regardless of earnings. * * * In short, subsection (d) is not strictly compensatory, but is in the nature of a tort remedy for a personal injury not affecting earning capacity or ability to work.'

We shall now review the salient facts of the case at bar and apply to them these well settled principles of law.

At the time relator was injured, he was employed by the defendant corporation as a general utility man and swamper in its logging operations. In the course of his work he used an ax, worked on the loader, drove mules, and, as he himself expressed it, 'did first one job and another'. On the day he was injured, he was hooking tongs in a log being moved by a caterpillar tractor. Upon recovering from his injury, he returned to his job and worked there for a period of three days, and shortly thereafter he was discharged. During these three days he did the same kind of work as he had performed before the injury, except that he did not use tongs for the purpose of moving logs, and was not required to do so. His rate of pay at the time of his injury as well as at the time of his discharge was 55cents per hour for 10 hours, six days per week. He was paid time and one-half for all hours worked over 40 hours each week. Some time after his discharge he was employed by Mr. Melton Wright, who was also engaged in the logging business, and remained in his employ up to the time the case was tried in the lower court, a period of about seven and one-half months, except for a short interval in which his employer was not engaged in logging operations. In the course of this employment he also drove teams, was required to use an ax, assisted in the loading of logs by means of grabs, and did swamper's work, all as he had done prior to his injury. For this work he was paid $5.50 per day for eight or nine hours' work, four or five days per week, with the usual overtime pay.

The relator's rate of pay, that is, $5.50 per day, was the same after the injury as it had been before. However, he was required to work 10 hours per day before the injury and only eight or nine hours since that time. Although he worked only four or five days per week for Mr. Wright instead of six days as he had for defendant, that was because of the requirements of his new employer or weather conditions, etc., and not because of his injury.

Mr. Wright, relator's present employer, testified that he had seen and observed relator at work, and there...