Summers v. Woodward, Wight & Co., Limited

• Decision Date: 30 June 1917
• Docket Number: 22441
• Parties: SUMMERS v. WOODWARD, WIGHT & CO., Limited
• Court: Louisiana Supreme Court

76 So. 674

142 La. 241

SUMMERS v. WOODWARD, WIGHT & CO., Limited

No. 22441

Supreme Court of Louisiana

June 30, 1917

Rehearing Denied October 29, 1917

SYLLABUS

(Syllabus by the Court.)

Where an employer pays the wages of an injured employe in full for a number of weeks, and subsequently in part, and, holding a policy of insurance, taken out with express reference to the Burke-Roberts Employers' Liability Act (Act No. 20 of 1914), obtains receipts showing such payments as for wages to which the employe was entitled under the Louisiana Workmen's Compensation Act, upon which it obtains reimbursement from the insurance company, the question whether the injury of the employe entitles him to compensation under the act will be regarded as eliminated.

Edward Rightor and Eugie v. Parham, both of New Orleans, for appellant.

Suthon & Suthon, of New Orleans, for appellee.

Statement of the Case.

OPINION

MONROE, C. J.

Plaintiff 32 years of age, was employed by defendant, in June, 1915, under a written contract which was silent in regard to the 'Burke-Roberts Employers' Liability Act,' and in November, following, whilst engaged in the duties of her position, she had occasion to go to the ladies' dressing room, where she accidentally fell upon the floor and sustained a Colle's fracture of her left wrist, which fracture, after some temporary attention, was 'reduced' (or thought to have been reduced) at one of the infirmaries, and the wrist incased in a plaster cast, where it remained for some three weeks. After the removal of the cast, and up to the trial of the case, in December, 1916, plaintiff found herself disabled by reason of her injury to such an extent that she was unable to go on with her work or to find other work of a reasonable character; it having been discovered, in the meanwhile, that the fracture had been imperfectly reduced, leaving a visible deformity, resulting from displacement of one end of the fractured bone. She was advised that there were two courses open to her, to wit: A surgical operation, consisting of a cutting in to the fracture, chiseling the fragments of the bone apart, and replacing them, so as to obtain a more accurate reduction -- a course which would require several months, and the result of which could not be guaranteed; or, as a temporary measure, hot air bathing, or baking, friction, rest, and time, which might at least diminish the disability, and, if not too long persisted in, would not interfere with the surgical operation as the last resort. She was advised to try the last-mentioned measure before resorting to the other. She was also advised, by another surgeon, to be treated by electricity, and she took that advice, with no resulting benefit. She brought this suit under the Burke-Roberts Employers' Liability Act, claiming, as for temporary total disability, her average weekly wage for 300 weeks, less a credit for certain payments received prior to the institution of the suit. In regard to those payments, it appears that defendant, for a while, paid her full salary and took receipts 'on account of salary'; that it then took up with the Employers' Liability Insurance Company, whose policy it held, the question of its reimbursement, and was requested to obtain vouchers showing that plaintiff's injuries were within the terms of the Burke-Roberts Act; and that it thereupon obtained other receipts from plaintiff, covering amounts for which she had already receipted, and also, perhaps, some subsequent payments, and which read:

'Received * * * for that portion of my weekly wages * * * to which I am entitled under the Louisiana Workmen's Compensation Act.'

Defendant's secretary testifies that he told plaintiff that she was waiving no rights in signing the receipts, and further as follows:

'Now my recollection is that we took the matter up with the insurance company, at that time, to see what position they were going to take with respect to protecting us, and, as a result of taking it up with them --...