Todd-Johnson Dry Docks v. City of New Orleans

• Decision Date: 10 December 1951
• Docket Number: TODD-JOHNSON,No. 19818,19818
• Parties: DRY DOCKS, Inc. v. CITY OF NEW ORLEANS.
• Court: Court of Appeal of Louisiana — District of US

Page 650

55 So.2d 650

TODD-JOHNSON DRY DOCKS, Inc. v. CITY OF NEW ORLEANS.

No. 19818.

Court of Appeal of Louisiana, Orleans.

Dec. 10, 1951.

Richard J. Meunier, New Orleans, for plaintiff-appellant.

Michel Provosty, Michel O. Provosty, New Orleans, for defendant-appellee.

JANVIER, Judge.

The question presented here is most interesting and complicated. There is involved an interpretation of section 7 of the Louisiana Workmen's Compensation Statute, Act 20 of 1914, as amended, and particularly as amended by Act 247 of 1920.

The question is: May an employer, who has compromised with or become liable to an employee on a claim for compensation as a result of injuries caused by a third party tort-feasor, bring an action against the tort-feasor for reimbursement of what he has paid or become liable for to the employee if the employee has already brought suit against the tort-feasor and has notified the employer that he has brought such suit and the employer has not seen fit to intervene therein?

The particular provisions of the statute with which we are concerned are to be found in section 7 of the statute as amended by Act 247 of 1920, and are sections 1101, 1102 and 1103 of Louisiana Revised Statutes, Title 23, LSA-RS. They read as follows:

' § 1101. When an injury for which compensation is payable under this Chapter has been sustained under circumstances creating in some person (in this Section referred to as third person) other than the employer a legal liability to pay damages in respect thereto, the injured employee or his dependent may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the injured employee or his dependent against such third person, nor be regarded as establishing a measure of damages for the injury; and such injured employee or his dependent may obtain damages from or proceed at law against such third person to recover damages for the injury.

'Any employer having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his dependent.

' § 1102. If either the employee or his dependent, or the employer, brings suit against a third person as provided in R .S. 23:1101, he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.

' § 1103. In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, with a reasonable attorney's fee and his costs, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent the liability of the employer for compensation shall cease for such part of the compensation due, computed at six per centum per annum, as shall be satisfied by such payment.

'No compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the other unless assented to by him.'

On March 22nd, 1950, John H. Ernst, an employee of Todd-Johnson Dry Docks, Inc., sustained physical injuries under circumstances which may have rendered the said employer liable in compensation. The injuries were sustained when the employee was thrown from a truck on which he was riding when the operator of the truck, believing that it was about to be struck by a freight car, which was under the control of employees of New Orleans Public Belt Railroad, suddenly accelerated the forward movement of the truck, causing the said employee to fall from it to the ground.

The employee, Ernst, contending that the accident had arisen out of his employment and had occurred in the course thereof and that he had been partially disabled, made claim for compensation for $44.40 per week for 175 weeks, and he and the employer, Todd-Johnson Dry Docks, Inc., filed in the Civil District Court for the Parish of Orleans a joint petition asking approval of a compromise agreement, under which the employer was to pay to him in a lump sum settlement $3100.00, in addition to $750.36, which had already been paid to him in compensation, and in which agreement it was also stipulated that the employer had furnished all necessary hospital and medical care. This compromise settlement was approved by the court and the 'lump sum' was paid to Ernst who signed an acknowledgment that he had received the amount in full settlement of his claim. This settlement was consummated on September 25th, 1950. In the meantime, on May 23rd, 1950, in the Civil District Court for the Parish of Orleans, Ernst had filed suit in tort against the Public Belt Railroad Commission and the City of New Orleans, praying for judgment in the sum of $54,237.60 for injuries sustained in the accident of March 22nd, 1950, alleging that the said accident had been caused by negligence of employees of said Public Belt Railroad Commission. Todd-Johnson Dry Docks, Inc., did not intervene in this suit of Ernst against Public Belt Railroad Commission. In that suit judgment was rendered in the Civil District Court for the Parish of Orleans in favor of Ernst for $5,348.00, and that matter is now pending in this court on appeal.

On March 21st, 1951, Todd-Johnson Dry Docks, Inc., filed this suit in the Civil District Court for the Parish of Orleans, praying for judgment against the City of New Orleans, acting through the Public Belt Railroad Commission, in the sum of $4,324.30, together with legal interest, costs, etc. It was alleged that this amount was made up of $3,100.00 paid in settlement of the compensation claim, $750.36, which had been previously paid and $453.94 in hospital and medical bills. (It will be noted that the correct total should be $4,304.30 and not $4,324.30.)

To this petition of Todd-Johnson Dry Docks, Inc., the defendant filed exceptions in which it alleged the facts which we have already set forth and in which it averred that this suit by plaintiff, Todd-Johnson Dry Docks, Inc., 'grows out of one and the same cause of action as does that of John H. Ernst, now pending before the Court of Appeal; that for the purposes of this plea, the plaintiff in that proceeding is legally one and the same as the plaintiff herein, in that, any rights the plaintiff herein may have had against the defendant were derived from, and were no greater than those of John H. Ernst; that the defendant in both proceedings is one and the same; and defendant specially pleads the pendency of that cause as precluding the prosecution of the present action.'

And defendant also averred that, because of the facts set forth, 'the plaintiff herein is totally without right of action against the defendant; and defendant specially pleads said lack of a right of action in bar of this action.'

On a trial of the plea of lis pendens and of the exception of no cause of action there were offered the two records,--one in settlement of the compensation of the claim of Ernst against Todd-Johnson Dry Docks, Inc., and the other in the tort action of Ernst against the Public Belt Railroad Commission. There was judgment sustaining both the plea of lis pendens and the exception of no cause of action and plaintiff's suit was dismissed. Plaintiff has appealed.

The claim of Ernst for compensation, the suit of Ernst for damages, and this suit of Todd-Johnson Dry Docks, Inc., against the Public Belt Railroad Commission were all filed by the same attorney, and it is conceded that when the suit for damages was filed by Ernst, Todd-Johnson Dry Docks, Inc., was duly notified of the filing of that suit in accordance with the provisions of the Louisiana Workmen's Compensation Statute and that Todd-Johnson Dry Docks, Inc., did not intervene therein.

It is the contention of counsel for defendant that, when an employee is injured under circumstances which give rise to a claim for damages against a third person, there is created by the compensation act one cause of action for damages, and that this cause of action accrues jointly to the injured employee and to the employer or the insurer who may have paid or may have become liable for compensation, and that the statute does not contemplate that this claim may be asserted in two separate actions, one by the injured employee and another by the employer, with the result that the employee may recover his damages and the employer may recover, in addition, such amount as he may have become liable for in compensation.

Counsel for plaintiff, however, directs our attention to the words 'such other may intervene', and asserts that obviously it was intended merely to give the right of intervention and not to require that the other party must intervene or lose his rights.

Counsel for defendant, on the other hand, say that the compensation statute creates a triangular or three-cornered relationship under which there is liability in the employer to the employee for...