Strickland v. W. HORACE WILLIAMS COMPANY

• Decision Date: 19 April 1956
• Docket Number: No. 15561.,15561.
• Citation: 230 F.2d 793
• Parties: Oscar L. STRICKLAND, Appellant and Cross-Appellee, v. W. HORACE WILLIAMS COMPANY, Inc., and The Employers' Liability Assurance Corporation, Ltd., Appellees and Cross-Appellants. W. HORACE WILLIAMS COMPANY, Inc., and The Employers' Liability Assurance Corporation, Ltd., Appellees and Cross-Appellants, v. Oscar L. STRICKLAND, Appellant and Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

230 F.2d 793 (1956)

Oscar L. STRICKLAND, Appellant and Cross-Appellee, v. W. HORACE WILLIAMS COMPANY, Inc., and The Employers' Liability Assurance Corporation, Ltd., Appellees and Cross-Appellants.

W. HORACE WILLIAMS COMPANY, Inc., and The Employers' Liability Assurance Corporation, Ltd., Appellees and Cross-Appellants, v. Oscar L. STRICKLAND, Appellant and Cross-Appellee.

No. 15561.

United States Court of Appeals Fifth Circuit.

March 16, 1956.

Rehearing Denied April 19, 1956.

Thomas J. Meunier, New Orleans, La., for appellant.

Marian Mayer, Deutsch, Kerrigan & Stiles, New Orleans, La., for appellees and cross-appellants.

Before BORAH and JONES, Circuit Judges, and DAWKINS, District Judge.

JONES, Circuit Judge.

The appellant and cross-appellee, plaintiff below, was an employee of W. Horace Williams Company, Inc. The employer was doing a construction job in St. Bernard Parish, Louisiana. The appellant was fireman of a boiler at the construction site. He rated his job as being heavy and strenuous. The appellee and cross-appellant, his employer, put the job on about the level of that of watchman. On September 9, 1952, while on the job, the appellant accidently sustained a fracture of the patella of his left knee. His leg was in a cast for nine weeks and one day. From the middle of June, 1953, to early April, 1954, the appellant worked at a couple of jobs, one of which he lost because his experience did not qualify him for it, and he was discharged from the second because he did not turn out enough work. From April 4, 1954, or thereabouts, he has been operating a business on his own account selling and repairing electrical equipment. He was paid workmen's compensation benefits of $1,170.00 during his convalescence. Upon the termination of compensation payments the appellant sued the employer and its workmen's compensation insurer in the 25th Judicial District Court, St. Bernard Parish, Louisiana, claiming that total and permanent disability entitled him to compensation for 400 weeks at the rate of $30.00 per week, subject to a credit of $1,170.00 already paid. Removal to the United States District Court for the Eastern District of Louisiana, based on diversity of citizenship, followed.

The pertinent portions of the Louisiana Workmen's Compensation Act are as follows:

"Compensation shall be paid under this Chapter in accordance with the following schedule of payments:

"(1) For injury producing temporary total disability to do work of any reasonable character, sixty-five per centum of wages during the period of disability, not beyond three hundred weeks.

"(2) For injury producing permanent total disability to do work of any reasonable character, sixty-five per centum of wages during the period of disability, not beyond four hundred weeks.

"(3) For injury producing partial disability to do work of any reasonable character, sixty-five per centum of the difference between wages at the time of injury and wages which the injured employee is able to earn thereafter during the period of disability, not beyond three hundred weeks.

"(4) In the following cases the compensation shall be as follows:

* * * * * *

"(h) For the loss of a leg, sixty-five per centum of wages during one hundred seventy-five weeks.

* * * * * *

"(n) A permanent total loss of the use of a member is equivalent to the amputation of the member.

"(o) In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member."

Louisiana Revised Statutes of 1950, Title 23, § 1221, LSA.

"Where compensation has been paid under subdivisions (1), (2), or (3), of R.S. 23:1221, the amount of such payment shall be deducted from any compensation allowed under subdivision (4) thereof or under Subpart C of this Part."

Louisiana Revised Statutes of 1950, Title 23, § 1223, LSA.

"A judgment of compensation may be modified by subsequent agreement between the parties, with the approval of a judge of the court which rendered the same.

"At any time six months after the rendition of a judgment of compensation, a judge of the trial court that rendered the judgment shall review the same upon the application of either party for a modification thereof, on the grounds that the incapacity of the employee has been subsequently diminished or increased, or that the judgment was obtained through error, fraud, or misrepresentation."

Louisiana Revised Statutes of 1950, Title 23, § 1331, LSA.

The case was tried to the court without a jury. Much testimony was taken and there were many conflicts as to disability vel non, the nature of the injuries sustained, their duration, the treatment required, and the extent to which it was followed. The court found that the appellant was not disabled within the meaning of the Act, and hence not entitled to recover under LSA-R.S. 23:1221(1), (2), or (3). The court held, however, that appellant had a one-third partial loss of the use or function of his leg for which appellant was entitled to compensation under LSA-R.S. 23:1221 (4) (h) and (o). Judgment was entered for benefits of $30.00 per week for fifty-eight and one-third weeks, an aggregate of $1,750.00 upon which was to be credited the $1,170.00 previously paid. Thus the net award was $580.00.

Following the judgment for an amount which the appellant deemed inadequate, he moved to remand the case to the state court contending that the matter in controversy does not exceed $3,000.00. The motion was denied. The appellant brought this appeal asserting, in addition to the jurisdictional question, that he was entitled to compensation for either total permanent disability or total temporary disability. The employer and the insurer took a cross-appeal and urge that the loss of partial use by plaintiff of his leg was due to his failure to cooperate in the treatment prescribed, and also that in any event the loss of use was not over twenty, or, at the most, twenty-five per cent.

The argument against Federal jurisdiction is based upon the language of the Louisiana Act upon which the appellant based his claim. The statute permits recovery "during the * * * disability, not beyond four hundred weeks." LSA-R.S. 23:1221(2). And it is provided that at any time after six months after the rendition of judgment it may be reviewed on application of either party on the grounds that the employee's incapacity has been diminished or increased. So, it is said, the maximum amount involved is the accrual to the date of judgment and the amount of the award for six months thereafter. This is the rule adopted by the District Court for the Western District of Louisiana. The rule and the reason for it have been set forth in these words:

"Of course, if plaintiff should sustain his claim in full, and should remain permanently disabled, he would be entitled to receive a total of $5,408 over a period of 400 weeks or eight weeks less than four years. However, under the state statute (Sec. 20), the matter can be reopened at intervals of six months, and if the employee has fully recovered, payments can be stopped altogether. The parties may, also, with the approval of the court in which the action is brought, settle the entire liability in a lump sum, the amount of which might or might not be within the jurisdiction of this court. Citing cases. * * * Therefore, all that a judgment in a case of this kind can settle is that, at the time it is rendered, the plaintiff has suffered injuries through his employment, amounting to total disability, probably permanent, which entitle him to receive stated weekly wages for a period of six months or approximately 26 weeks. In this case at the rate claimed this would amount to about $350." Godfrey v. Brown Paper Mill Co., Inc., D.C., 52 F.Supp. 926.

The Godfrey decision was followed by the court rendering it in Guidry v. J. Ray McDermott Co., Inc., D.C., 89 F. Supp. 60. The contrary rule has prevailed in the Eastern District of Louisiana where jurisdiction has been taken and retained in workmen's compensation cases under the Louisiana Act. Butler v. Employers Mut. of Wausau, Wis., D. C., 105 F.Supp. 105; Boyd v. R. P. Farnsworth & Co., D.C., 105 F.Supp. 113. The District Court for the District of New Jersey had before it a question involving the Louisiana Act. There a plaintiff asserted that she, as widow and sole dependent of an employee who was fatally injured while employed, was entitled to weekly payments of $14.30 for 300 weeks. The statute provided that "`The marriage or death of any dependent shall terminate payments to such dependent, * * *.'" The court sustained jurisdiction, saying:

"In the State of Louisiana a judgment for weekly payments under the Liability Act until death or remarriage of the plaintiff is erroneous. Laurent v. Dendinger, 13 La.App. 234, 126 So. 600, 127 So. 755. A proper judgment is for the payment of these benefits for the full period of 300 weeks. Smith v. Samuel T. Gately Marble & Granite Works, La. App., 157 So. 802. And the fact that a condition subsequent — marriage or death — will operate as a forfeiture of future benefits, and, hence, lessen the amount ultimately to be paid, is immaterial. Brotherhood of Locomotive Firemen v. Pinkston, 293 U.S. 96, 55 S.Ct. 1, 79 L.Ed. 219." Franzen v. E. I. Du Pont De Nemours & Co., D.C., 36 F.Supp. 375, 377.

The Court of Appeals of the Third Circuit approved the opinion of the District Court from which we have quoted. Franzen v. E. I. Du Pont De Nemours & Co., 146 F.2d 837.

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