Wallace v. Remington Rand, Inc.

• Decision Date: 20 February 1956
• Docket Number: No. 42210,42210
• Citation: 86 So.2d 522,229 La. 651
• Parties: Howard F. WALLACE v. REMINGTON RAND, Inc., et al.
• Court: Louisiana Supreme Court

Page 522

86 So.2d 522

229 La. 651

Howard F. WALLACE v. REMINGTON RAND, Inc., et al.

No. 42210.

Supreme Court of Louisiana.

Feb. 20, 1956.

Rehearing Denied March 26, 1956.

McClendon & Benton, J. F. McInnis, Minden, for plaintiff-relator.

Theus, Grisham, Davis & Leigh, by J. C. Theus, Monroe, for defendants-respondents.

McCALEB, Justice.

This is a suit by an employee, who was totally and permanently disabled in an industrial accident while engaged in the performance of his duties, to recover from his former employer and its compensation insurance carrier the maximum compensation benefits payable under the Employers' Liability Act, Chapter 10 of Title 23 of the Revised Statutes, Sections 1021-1351.

The defendants do not contest the fact of plaintiff's employment in a hazardous occupation, the accident arising out of and in the course thereof, the ensuing disabiling injury and its permanency within the meaning of the law; their sole defense is that his claim is barred by the prescription of one year, the accident having occurred on June 4, 1952 and the suit not having been brought until January 22, 1954.

Plaintiff contends that prescription has not run as its course was interrupted by the payment to him of weekly wages, for labor not commensurate therewith, from the date of the accident until October 28, 1953, and that, in these circumstances, the payments are to be considered as at least partial gratuities given by his employer in lieu of compensation.

The district court upheld plaintiff's position and awarded him compensation, giving defendants credit for the wages paid in lieu of compensation. But, on appeal, the Court of Appeal for the Second Circuit resolved that, notwithstanding that plaintiff was paid his regular wages for the performance of lighter work, such payments did not interrupt the running of prescription because the prescriptive provision of the statute, R.S. 23:1209, envisioned that '* * * there must at least be an implied understanding between the interested parties that the payments made to the employee shall be in lieu of compensation' in order to produce such effect. See 76 So.2d 87, 90. We granted certiorari at plaintiff's behest and the matter has been argued and submitted for our determination.

Plaintiff is 36 years old and has been engaged in millwright and automotive mechanical work since his youth. From 1942 until the end of the War, he worked as a millwright for the Louisiana Ordnance Plant, following which he was engaged in other mechanical work until September of 1951, when he rejoined Remington Rand, Inc. as a millwright. ¹ At about 2:00 p. m. on June 4, 1952, during the course of his duties, plaintiff lifted a small motor, while standing in an awkward position, and felt a snap in his back followed by a severe pain. He did not report the accident or go to the infirmary provided by his employer at that time but, on advice of a fellow workman, lay flat on his back for a short interval and, when the pain had subsided somewhat, resumed work during the rest of the day. Plaintiff says that he did not regard the injury as serious; that, when he went home, he took aspirin and applied heat to his back with an infra-ray light; that he thereafter continued on the job and that, about a week later, he reported to the Company's infirmary where a doctor strapped his back and heat was applied under a diathermic machine. However, the doctor in charge of defendant's infirmary (who did not testify) evidently did not believe that plaintiff suffered a disabling injury because he was immediately returned to the job after his back had been strapped. ^{2 2} Thereafter, plaintiff continued to perform the duties of a millwright in the defendant's employ until October 26, 1953, or for a period of over 70 weeks. During this time, he received regular wages (he worked on an hourly basis) ranging from $72 to $247.50 weekly. Shortly after the accident, Mr. Raleigh T. Grounds, the foreman in charge of the section in which plaintiff worked, learned of the injury and gave instructions to plaintiff's immediate superior to have him perform only the lighter duties required of a millwright, that is, that he be relieved of lifting and carrying heavy machinery. ³

Plaintiff testifies that, although he was in constant pain, he did all the work required of him and, at times when no other fellow employee was present to give him a hand, he would lift the motors and other equipment. During the latter part of 1952, plaintiff consulted a doctor in Minden, Louisiana, who gave him temporary relief, but, in the early part of 1953, while engaged in night work at the plant, plaintiff wrenched his back when he stepped in a hole and, from then on, the pain in his back, radiating down his leg, was more or less incessant. Still he worked on until October 26, 1953. At one o'clock on that day, plaintiff says that the pain was so unbearable that he asked his foreman to take him to the hospital. When he arrived there, infraray heat treatments were again applied for about 30 minutes and then plaintiff was taken back to the shop where he worked for the rest of the day with an electric heater placed on a stool beside him. That evening plaintiff returned to the hospital and consulted Dr. Potts, who X-rayed his back (apparently for the first time), strapped it and told him to come again on Wednesday, October 28, 1953. Upon plaintiff's return, Dr. Potts reported that he had not 'found a thing about the X-ray' and sent him to Shreveport to consult Dr. Carson Reed, an orthopedic surgeon, who diagnosed plaintiff's ailment as a ruptured or herniated disc in the area of the fifth lumbar vertebrae. On December 2, 1953, a mileogram was made on plaintiff which conclusively confirmed Dr. Reed's prognosis. An operation was performed on December 4, 1953, which until now has not proved successful, and plaintiff has been fitted with a back brace which he has been instructed to wear for an indefinite period of time. At the last examination, made on February 5, 1954, Dr. Reed thought that it would require from nine to twelve months for plaintiff to reach a maximum improvement and said that it was then impossible to state definitely the ultimate extent of his recovery.

It is clear from the foregoing facts that, whereas plaintiff's present total disability stems from the accident of June 4, 1952 and whereas the injury sustained in that accident may have been of such severity as to incapacitate many men, it did not disable plaintiff at inception for he continued to perform all labor required of him until October 26, 1953, when the resultant pain from the injury became so pronounced that he had to stop work. Obviously, insofar as its effect on plaintiff was concerned, the accident of June 4, 1952 did not produce immediate disability as neither he ⁴ nor his employer believed him to be disabled.

Therefore, we agree with defendants and the Court of Appeal that the money paid plaintiff from the date of the accident until October 26, 1953, when he could no longer work, was fully earned--indeed earned under great stress--for, while plaintiff's foreman instructed his immediate superior to put him on lighter duties, the fact remains that he performed practically all the work required of a millwright with his employer's approval as its own physician did not consider that the injury was serious enough to take him off the job.

But our conclusion that plaintiff earned the wages paid him and that no part of the payments can be regarded as compensation or in lieu thereof, contrary to the mistaken theory under which plaintiff's counsel instituted the suit, does not necessarily warrant a holding that the plea of prescription of one year...