author: TATE, Judge.

text:
    Charles SCALISE, Plaintiff and Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY and Poplar Grove Planting & Refining Co., Inc., Defendants and Appellees.
    No. 4086.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 22, 1955.
    Rehearing Denied Dec. 30, 1955.

      Sanders, Miller, Downing, Rubin & Kean, Baton Rouge, for appellant.
    Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellee.
   TATE, Judge.

The District Court sustained a plea of prescription to plaintiff’s claim for workmen’s compensation. Defendants answered this appeal praying, alternatively (if the District Court is not affirmed as to the plea of prescription) that an exception of prematurity be sustained.

The present proceedings concern the effect of payment during admitted disability of full wages for lighter work, both as to prescription of the employee’s claim for workmen’s compensation and, also as to satisfaction of the employer’s liability for workmen’s compensation.

Evidence was taken on the plea of prescription. The facts are relatively undisputed. Plaintiff Scalise had been employed as a welder and general mechanic by defendant Poplar Grove Planting and Refining Company, Inc., for approximately 20 years. He sustained severe injuries to his left leg on June 30, 1949, and was hospitalized or at home and paid compensation for almost a year. ■ He returned to work on March 23, 1950, confined to light duties but drawing the same pay as his two brothers who were likewise employed as machinists and welders. At the time of the original injury their rate of pay was 95^ an hour; Scalise, like his co-employees, was given a raise to $1.20 per hour, subsequent to the injury. On March 18, 1951, his injury required further surgical treatment and medical attention until April 16, 1951, when he again returned to work for his employer at light duties. During this interval ending April 16, 1951, he was paid regular weekly compensation by the insurer.'

It ■ was understood at this time that a further operative procedure would be needed, but both the plaintiff-employee, his employer, and its compensation insurer- and the orthopedic specialist wished for a trial period of undeterminate length at work, on the possibility that such further operative procedure might be unnecessary. Scalise continued in' the employ of his employer until-April 20, .1953, at which time he was taken to the .Ochsner Clinic where he received the recommended second surgical procedure, since his condition failed to improve. ’

At this time, the compensation insurer informed Scalise and his employer that any claim either -for compensation or for this additional medical treatment had per-empted, since over one year (in fact, over two years) had elapsed since the last compensation payment, LSA-R.S. 23:1209. Plaintiff discontinued work due to disability between April 20, 1953, and August 24, 1953; during which time he received no Compensation, but existed on money loaned to him by his employer. Between the time Scalise ceased working to report for the second surgical operation and August 31, 1953, his employer negotiated on his behalf with its own compensation insurer attempting to secure agreement of the insurer to assume liability for the medical expenses of the second operation and for payment of compensation to Scalise during his disability. On this latter date the defendant insurer made a final, denial of liability on the ground of peremption.

It was not until this time that ■ plaintiff Scalise secured the' assistance of an attorney, following which a claim was filed for weekly compensation “beginning at such time as this Court may fix, and continuing for the duration-of disability, not to exceed 400' ’weeks” less credit for compensation paid, as well as for medical payments and for penalties arid attorneys fees.

In an excellent and exhaustive review of the jurisprudence, the District Court concluded that no longer in effect is the rule originally announced by this Court in Carpenter v. E. I. Dupont de Nemours & Co., La.App. 1 Cir., 194 So. 99, that payment of full wages for the performance of lighter duties were to be considered payment in lieu of compensation which would suspend the accrual of prescription.

We quote from this opinion as follows:

“That the payment of wages as distinguished from' compensation or payments in lieu of compensation will not interrupt the running of prescription in compensation cases now appears to' be well settled as appears from the following language taken from Thornton v. E. I. Dupont de Nemours & Co., (Supreme Court) 207 La. 239, 21 So.2d 46, [52]:
“ ‘There is no reason why the payment of wages should prevent the running or prescription against a claim for- workmen’s compensation * * * it is only the payment of workmen’s compensation that suspends the right of an injured employee to. bring suit to fix the amount of compensation to which he is entitled, and to limit the numbér of weeks in which- it is to be paid. Of course if it is shown in any case that the payment of wages to the injured employee after the accident happened was a mere subterfuge or pretense on the part of the: employer, intending thereby to lull the injured employee into a sense of security until the expiration of the year has elapsed, so that the employer might then plead prescription in bar of a suit for compensation, the payments made after the injury -might well have the effect of preventing the running of prescription; otherwise an injustice would be sanctioned, * * ' * . as explained by the court of appeal in the Carpenter case.'
“Cases involving the alleged suspen- •' siori of the- oné year prescriptive pe- - riod provided for in compensation cas- '• es because of the resumption of em- ' ployment by and payment of wages to the injured employee subsequent to an accident have resulted in considerable litigation as a result of which the jurisprudence of this state appears to be--' well settled to the effect that if an in- > jured employee continues to work for and receive regular wages from the same • employer after injury, the prescription of one year provided • for by Section 31 of Act No. 20 of 1914 as amended, LSA-R.S. 23:1209, will begin to run from the date of the accident unless it is established that the wages paid after, the accident are in lieu of or in the nature of compensation,, and therefore, have the legal effect of interrupting prescription. (Emphasis supplied.) Carlino v. United States Fidelity & Guaranty Co., 1940, 196 La. 400, 199 So. 228; Arnold v. Solvay Process Co., 1944, 207 La. 8, 20 So.2d 407; Thornton v. E. I. Dupont de Nemours & Company, 1944, 207 La. 239, 21 So.2d 46; Michel v. Maryland Casualty Co., La.App., 1947-1948, 33 So.2d 144; D’Antoni v. Employers Liability Assurance Corporation, Ltd., 1948, 213 La. 67, 34 So.2d 378; Walker v. Mansfield Hardwood Lumber Co., La.App.1948, 35 So.2d 610; Abshire v. Cities Service Refining Corp., La.App.1951, 50 So.2d 307; Cradeur v. Louisiana Highway Comm., La.App. 1951, 52 So.2d 601; Chauvin v. St. Mary Iron Works, La.App., 55 So.2d 617; Wallace v. Remington Rand, Inc. [La.App.], 76 So.2d 87.
“It is also well settled law that where wages paid ■ are commensurate with services rendered there is no interruption in the prescriptive period. The: following language taken from the recent case of Wallace v. Remington Rand, Inc., 76 So.2d 87, [90] is cited as authority for the foregoing principle.
“ ‘The weight of authority in our courts is to the effect that where the employer is .aware his employee is suffering from a compensable injury and retains the' employee on the same job with regular wages but assigns to-him the performance of lighter duties, ^uch knowledge and action considered alone, do not bring about an interruption or suspension of the statutory bar to filing a suit within the prescribed' year. This is so because there is no agreement, understanding or relationship from which it can be implied that the payments so made shall'take the, place of compensation. The statute, LSA-R.S. 23:1209, liberally construed requires that in order to constitute an interruption of the prescription 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. Brister v. Wray-Dickinson Co., Inc., La.App., 1935, 159 So. 430 [;Id.], 183 La. 562, 164 So. 415; Irwin v. Oakes, La.App., 1942, 6 So.2d 49.
“ ‘Where wages paid - are " commensúrate with the services rendered there is. no interruption in the prescriptive period. Abshire v. Cities Service Refining Corp., La.App., 1951, 50 So.2d 307; Mottet v. Libbey-Owens-Ford Glass Co., La.App., 1950, 49 So.2d 38; Chauvin v. St. Mary Iron Work, La.App., 1951, 55 So.2d 617; Gradeur v. Louisiana Highway Comm.,La.App., 1951, 52 So.2d 601.
“Plaintiff forcefully argues that since the evidence shows he cannot perform all and every duty formerly performed by him and since his employer admits that he is being paid $1.20 per hour for services worth only 85^ to 90¡é per hour, the wages paid him since his injury are necessarily in lieu of compensation, and therefore, the present case comes under the rule laid down in Carpenter v. E. I. Dupont de Nemours [& Co.,La.App.], 194 So. 99, and Stiles v. International Paper Co. [La.App.], 39 So.2d 635. We do not subscribe to the theory that in every case in which the employee is assigned to lighter duties after an accident wages paid him for performing such light duties must necessarily he construed as being paid in lieu of compensation.
“Heretofore, plaintiff may have successfully contended that payment of wages subsequent to injury ipso facto interrupted running of prescription but this line of jurisprudence has been abandoned as appears from the follow-ng language taken from the recent case of Cradeur v. Louisiana Highway Comm., La.App., 52 So.2d 601 [,603]:
■- “ -‘There was a period in our jurisprudence when plaintiff might have successfully argued that -his continued employment under the present facts would have had' the effect of interrupting prescription on his claim. In Carpenter v. E. I. Dupont de Nemours & Co., La.App. 1940, 194 So. 99, 101, this court said: “ * * * it is our confirmed opinion that when, with knowledge of the employee’s disabling injury,- the employer continues to pay him - his usual wages, which is 35% more than the amount of compensation he would have to pay, for performing lighter services than he was doing before, there results a situation in which the provision of the statute regarding the bar of peremption have been fully satisfied and as long as those payments continue prescription does not run. Otherwise, it is obvious that the employer could defeat every just claim for compensation for a period of more than fifty-two weeks by simply keeping the injured employee on the pay roll at a wage which is the equivalent of the amount of compensation he would be entitled to, or more, for a' year and a day.”
“ ‘And on that same point this court said, by way of dictum, in Thornton v. E. I. Dupont De Nemours & Co., La.App.1943, 15 So.2d 543, 545: “ * * •* As long as plaintiff continued after his injury, to receive from his employer the same salary which he was paid before, as he alleges, there was no danger of his suit becoming prescribed.”
“ ‘Those two quotations constitute the most liberal parts of the decision from which they were taken and do not fully reflect what the cases actually held; they reflect, on the other hand, the equitable reasoning the court was indulging in and what the court then strongly felt was a reasonable and proper interpretation of Section 31 of the compensation act. The trend reflected there was stopped, however, when the Supreme Court reversed the Thornton case (on the plea of prematurity, which was the only question involved there) 1944, 207 La. 239, 21 So.2d 46, 52, at which time Chief Justice O’Neill commented on the Carpenter case and, after quoting, with other-material, the same paragraph quoted above, said: “An employer could not defeat a just claim of an injured employee * * * by keeping his name on the payroll at regular wages for .a period exceeding a year, because the employee could interrupt the. running of prescription by bringing suit on his claim for workmen’s compensaton at any time.”
“ ‘Since then our jurisprudence on prescription has generally been to the effect that if an injured employee continues to work for the same employer, whether he does light duty or otherwise,' if his pay is commensurate with his services the payment of wages does not interrupt the running of prescription.. See Arnold v. Solvay Process Co., 207 La. 8, 20 So.2d 407; Michel v. Maryland Casualty Co., La.App., 33 So.2d 144; D’Antoni v. Employers Liability Assurance Corp., 213 La. 67, 34 So.2d 378; Walker v. Mansfield Hardwood Lumber Co., La.App., 35 So.2d 610; Mottet v. Libbey-Owens-Ford Glass Co., La.App., 49 So.2d 38; Abshire v. Cities Service Refining Corp., La.App., 50 So.2d 307.'
“We believe that a review of the pertinent decisions establishes the principle that payment of wages subsequent to injury will be construed as gratuities or payments in lieu of or in the nature of compensation, and therefore, have the effect of interrupting prescription under one of the following circumstances-:
“1. Where it is shown or admitted that the wages are in lieu of or in the nature of compensation.
“2. Where wages are- paid by the, employer to lull the employee into a sense of security with a fraudulent intention of dismissing the employee after prescription has accrued.
“3. Where it can be reasonably inferred from all the facts and circumstances of the- case that the parties intended the wages paid to be in lieu of or in the nature of compensation.
“Whether wages paid are actually-earned or amount to gratuities in lieu of or in- the nature of compensation must be determined in the light of the facts and circumstances of each particular case.
“Applying the foregoing principles to the instant case, it appears that the wages paid plaintiff since his injury are not in the form of gratuities and cannot be considered in lieu of or in the nature of compensation. Plaintiff’s own testimony is to the effect that he feels that he is earning part of his wages and that he is performing all of his former duties except those that require climbing and stooping. The evidence of Mr. Wilkinson, plaintiff’s immediate superior, shows that plaintiff is earning 85$ to 90¡f of his present $1.-20 per hour wage and that raises given plaintiff subsequent to his injury were motivated solely by plaintiff’s long and faithful services to the corporation and to maintain plaintiff on an income scale equal to his brothers.
“Considering the facts and circumstances of this case, we can find no justification for holding that the wages received by plaintiff subsequent to his-injury had the effect of interrupting prescription on plaintiff’s claim. The record convinces us that the wages paid by plaintiff’s employer are not in the" form of gratuities but rather are commensurate with services rendered, and therefore, cannot be considered payments in lieu of or in the nature of compensation. The general trend of Mr. Wilkinson’s testimony was obviously favorable to plaintiff, but not even Mr. Wilkinson would state that plaintiff’s wages were gratuities, or payments in lieu of or in the nature of compensation.
“From the evidence we cannot reasonably infer that the parties intended ' the wages paid plaintiff tó be in lieu of or in the nature of compensation.” * * *

We do not question the factual findings of our learned brother below, although we differ in the legal conclusions to be drawn from them. The District Court relied to great extent upon the conclusions reached by our brethren of the Second Circuit in Wallace v. Remington Rand, Inc., 76 So. 2d 87, with which conclusions we respectfully . differ.

In the present case, we find that the employee was admittedly disabled due to industrial injury from performing his climbing or heavier duties. When he returned to his employment, due to this fact mutually known to him and to his employer, he was assigned only the non-climbing or lighter duties; nevertheless, he.was paid the full wages of a fullyrphysically-qualified welder and machinist,, although able to perform and performing only partially the duties thereof. (At times when there was available .no welding work he was capable to perform, he was assigned to the much less skilled and less remunerative duties of a water tender, although still drawing the higher full wages of a fully qualified welder and machinist.)

Under these circumstances,’ we do not believe ás a matter of law that the employee, Scalise, was fully earning his wages. Both he and his employer state the wages paid were not commensurate with services rendered. Further, it is not what they contend the man is worth that is determinative herein, but it is a comparison of the nature of the duties and the pay prior to and subsequent to the accident that determines whether the employee is receiving wages or payments in lieu of compensation. When the wages paid a disabled employee are moré than commensurate with the services rendered and the employee is not actually earning all of his pay, then there is a reasonable inference that the wages paid were intended as payments in lieu of or in the nature of compensation. Under the facts herein,, we find that there was a relationship from which it can be implied that the wage payments made were in lieu of compensation, so as to interrupt the accrual of prescription. It constituted a recognition by the employer of the employee’s industrial disability, and an implied agreement to pay and to receive these wage payments in lieu of compensation.

We have reached this result after a thorough review of the jurisprudence, which jurisprudence we admit is not clear.

Originally, in Ulmer v. E. I. DuPont de Nemours & Co., La.App., 1 Cir., 190 So. 175, this court sustained a plea of prematurity and held that payment of full wages for performance of lighter duties constitutes a' payment in lieu or satisfaction of conipen-’ sation for purposes of the compensation act; therefore a suit filed while .such wages' were still being paid was premature. We likewise held in Carpenter, v. E. I. DuPont de Nemours & Co., La.App. 1 Cir., 194 So. 99, that a plea of prescription should be overruled where the petitioner alleged the payment (until two months before suit, filed almost two' years after the accident) of full wages for the performance of lighter duties following a disabling accident by a disabled employee, since such wages constituted payments in lieu of compensation interrupting prescription.

Most of the confusion arises from the case of Thornton v. E. I. DuPont de Nemours & Co., 207 La. 239, 21 So.2d 47, wherein as quoted above by the District Court herein, our Supreme Court held that-the payment of wages did not constitute the payment of compensation. The opinion specifically approved the Carpenter and the Ulmer cases, and also Carlino v. United States Fidelity & Guaranty Co., 196 La. 400, 199 So. 228, discussed below. But the. Thornton decision seems contrary to the principles announced in those cases since in all those cases the payment of full wages for lighter duties was held to be payment of compensation for purposes of the compensation.act; while the Thornton case reversed the District Court and Court of Appeals, which had sustained a plea of prematurity on the allegation of the petition that the employee was drawing full wages but performing only light duties.

However, viewed in its narrowest sense, the Thornton case simply held that an employee is entitled to file suit to have the employer’s future compensation . liability determined, when the employee has continued drawing wages which may (or may not) be considered as compensation. It is to be noted that the- opinion specifically approved of the Carlino case where- the employer continued “as a matter of generosity and consideration for Carlino’s long term of service” to pay Carlino full wages for lighter duties, and further noted that plaintiff therein.“was entitled to a judgment determining and fixing a rate of compensation to which he was entitled for the loss of his wage earning-capacty * * * but * * - * - the compensation should not be collectible for the period during which the plaintiff had received or would continue to receive his wages from the employer”, 21 So.2d 50.

When the Supreme Court stated the payment of full wages by the employer is “virtually a denial that the employee is entitled to compensation for the loss of wage-earning capacity; and the employee’s continuing to receive the wages after the accident has happened might be construed as an admission that he has not suffered any loss of wage-earning capacity”, 21 So.2d 49 (Italics ours) ; it did not intend a statement of law, but a statement of what might be held.if Thornton waited to file suit until some later date. Thus, the Thornton case simply held that an exception of prematurity will not be sustained on a simple allegation that a plaintiff is being paid full wages for the performance of lighter duties; for the payment of wages generally indicates that compensation is not being paid — although under the facts of each case, it may be determined that the wages in question are intended or have the legal effect of constituting payments in lieu of compensation. When the employer does not admit that such wage payments are in lieu of compensation, the employee is entitled to seek a judgment fixing the employer’s compensation liability. Interpreted in this matter, the Thornton case can be reconciled with the Carpenter, Ulmer, and Carlino cases, all specifically approved by it.

Similarly, in D’Antoni v. Employers’ Liability Assurance Corporation, 213 La. 67, 34 So.2d 378, our Supreme Court reversed an exception of prematurity which had been sustained by the lower courts, with the following definite statement, 34 So.2d 380:

“The jurisprudence' relative to the prosecution by injured employees of claims for further compensation, where they have returned to the service of their former employer in the same or a different capacity, has been settled by this Court in Carlino v. United States Fidelity and Guaranty Co., 196 La. 400, 199 So. 228, and Thornton v. E. I. DuPont De Nemours & Co., 207 La. 239, 21 So.2d 46. If the employee is actually earning the wages paid him, his suit cannot be dismissed on a plea of prematurity forasmuch as he is not receiving compensation. ■ Such is the case here according to Atkins’ testimony. Conversely, if it is shown on the trial of the plea that the wages being paid the employee are in reality a gratuity and not for the performance of work, then the action will be dismissed as premature — for, in such instance, the payment of the wage is the equivalent to the payment of compensation.” (Italics ours.)

This broad language is somewhat limited by the context. The employee’s claim .for compensation was met by a plea of prer maturity, but the employer testified the employee was actually earning the wages and had refused to stipulate that such wages constituted payments in lieu of compensation for purposes of interrupting prescription. The employee then filed suit just before the year expired. The actual holding of the case was that an exception of prematurity did not lie, even though .the employee was receiving full wages for the performance of lighter duties, when the employer refused to make any commitment as to whether the wages paid were compensation or wages. It can readily be seen that had the employee continued to accept wage payments after the employer specifically refused to agree that such wage payments were in lieu of compensation, his continued acceptance of such wages would tend to support the presumption that wages paid are for services rendered, and not for compensation benefits.

The opinion and the language quoted above hold that for purposes of deciding a plea of prematurity, the payment of full wages for lighter work will not be treated as payment in lieu of compensation if the employer contends such wages are actually earned and does not admit them to be payments interrupting prescription; for up; on the employer’s in effect denial of liability, the employee is entitled “ ‘to have determined immediately * * * the extent of his disability and his right to further compensation’ ”, 34 So.2d 381. It is to be noted that the opinion cites Carlino v. United States Fidelity & Guaranty Co., 196 La. 400, 199 So. 228, with approval, and does not negate the proposition that full wages paid for performance of lighter duties may be treated as “in reality a gratuity and not for the performance of work”, that is, as compensation.

These two cases approached the legal problems created by the receipt of wages by the retained employee solely from the point of view' of an exception of prematurity. Some of the confusion in the jurisprudence has arisen because observations valid in the context of the particular problem posed in these cases, have been applied out of context to the other broad problems which arise when a manifestly disabled employee is retained by his employer at full wages for the performance of some or all of the previous duties of his .employment.

As noted in Professor Wex Malone’s authoritative treatise, Louisiana Workmen’s Compensation Law and Practice, Chapter 19 “The Retained Employee”, these three general groups of problems relate to;

I. Prematurity: — is the suit of a disabled employee, retained and paid wages by his employer, premature because the employer is satisfying his compensation liability by the payment of wages?

II. Compensation Credit: — What credit shall the employer receive against his compensation liability for the wages paid by him to a disabled employee?

III. Prescription: — is the suit of a disabled employee prescribed when filed more than one year past the accident or last payment'denoted by name as “compensation”, or will the payment of wages to this disabled employee interrupt prescription?

I. Prematurity.

As noted above in the Thornton and D’Antoni cases our Supreme Court held 'that an employee’s suit is not premature when he is drawing full wages for the performance of lighter work, even though our Supreme Court approved other jurisprudence that such wages could constitute payments in lieu of compensation.

II. Compensation Credit:

Initially, in Hulo v. City of New Iberia, 153 La. 284, 95 So. 719, the Court attempt•ed to divide the wages paid into “earned” and “unearned” portions, and to allow the employer credit as advance compensation of the total amount of “unearned” wages paid. But in Carlino v. United States Fidelity & Guaranty Co., 196 La. 400, 199 So. 228, our Supreme Court held that for each week of wages paid which were equal to or greater than the amount of weekly workmen’s compensation due, the employer extinguished by one week his liability for compensation, no matter what the amount of wages paid. No effort was made to distinguish between the earned and unearned portion of the wages. Finding that the full wages paid for light work were paid .as a gratuity and in lieu of compensation, •the Supreme Court nevertheless held that .-an employee was entitled to judgment recognizing his disability and the compensation liability of the employer, but also recognizing that the employer was entitled ■to credit for on’e week of compensation due for each week that wages were paid equal •to or greater than the compensation rate.

As Professor Malone states, in considering the Thornton case in connection with •the Carlino case, “the implications of the above line of reasoning are puzzling”, Malone, above cited, page 521; but he continues :

“The explanation of the Court’s position in the Carlino case and the Thornton case probably rests on expediency. The court is determined that the employer shall not be obliged to pay simultaneously both compensation and wages. At the same time the court is unwilling to extend the strict provisions on prematurity so as to deprive the injured worker of his privilege to litigate the extent of his injury even though he is being retained by his employer at a satisfactory wage. The Act is so framed that both these two desirable objectives cannot be consistently achieved.”

In everyone of the credit-for-compensation cases which subsequently arose (with one very recent exception, discussed below), the courts ruled so as to allow an employer compensation credit in this manner for full wages paid a disabled employee able to perform only a part of his duties, and so as not to require an employer to pay simultaneously both wages and compensation; Goodman v. Hillyer, Deutsch, Edwards, Inc., La.App., 49 So.2d 60; Perkins v. Brown Paper Mill Co., La.App., 43 So.2d 501; Daigle v. Higgins Industries, La.App. Orleans, 29 So.2d 374; Gautreau v. Maryland Casualty Co., La.App. 1 Cir., 28 So.2d 96; Fisher v. Standard Accident Insurance Co., La.App. 1 Cir., 28 So.2d 59; Annen v. Standard Oil of New Jersey, La.App. 1 Cir., 28 So.2d 46; Matin v. State, La.App. 1 Cir., 25 So.2d 251; Vega v. Higgins Industries, Inc., La.App., 23 So.2d 661; Lee v. International Paper Co., La.App., 16 So.2d 679.

It can be noted in these cases, and is specifically discussed in the Goodman and Daigle cases, that the employer receives this compensation credit whether the services rendered are worth the wages paid or not.

III.Prescription.

The Carpenter case decided by this Court that the payment of full wages for lighter work were payments in lieu of compensation and interrupted 'prescription. While dicta in the Thornton case seemed to limit it to the- situation where the payment of wages was intended to lull the injured employee into a sense of security, careful reading of the comments therein also leads to the conclusion that the Supreme Court approved of this Court’s determining in Carpenter “as a matter of fact that the employer’s continuing to pay the employee his .wages, for doing lighter work after the accident had happened, should be treated as the payment of compensation”, and that such wage payments were “regarded as the payment of compensation in a disguised form”, 21 So.2d 52.

In any case, in every single one of the credit-for-compensation cases above cited, it is either implicitly assumed or explicitly stated that the wage payments for which the employer received compensation credit, also interrupted prescription insofar as the employee is concerned.

Similarly, in the few prescription cases that arose, the same assumption is made that the payment of full wages for lighter work interrupts prescription, and this was specifically held by the Second Circuit in overruling a plea of prescription based against allegations to this effect in a petition, Stiles v. International Paper Co., La.App., 39 So.2d 635.

For instance, in Chauvin v. St. Mary Iron Works, La.App. 1 Cir., 55 So.2d 617, this court sustained a plea of prescription, but specifically stated that the employee performed the same hard work after the accident as before. But in referring to the doctrine of the Carpenter case, we stated at 55 So.2d 619:

“Under the jurisprudence, had he followed their instructions and notified the employer and performed light work, the wages which he received would have been considered as in lieu of or in the nature of workmen’s compensation and prescription would have been interrupted.”

The basic reason for the rule enunciated is that the payment of full wages for the performance of lighter work constitutes a recognition by the parties that the employee has a just claim for compensation, see Stiles v. International Paper Co., La.App., 39 So.2d 635, at page 637. An implicit reason for the rule is the social wisdom of encouraging the employer to retain and to rehabilitate his injured employees, thus furthering the ends of the Act to compensate for loss of earning power due to industrial accident. If the employee is arbitrarily required to file suit before the year is out, his continued employment and rehabilitation is jeopardized. On the other hand, the humanitarian employer is rewarded by receiving credit against his compensation liability, even if the wages are also partially earned.

In Perkins v. American Employers Insurance Co., La.App. 1 Cir., 53 So.2d 462, Cradeur v. Louisiana Highway Commission, La.App. 1 Cir., 52 So.2d 601, and Abshire v. Cities Service Refining Corporation, La.App. 1 Cir., 50 So.2d 307, this Court sustained pleas of prescription to suits for compensation filed by retained employees more than a year after the accident or last compensation payment. In each case, this Court found that the plaintiff received his regular wages but performed his usual pre-accident duties— that is, that there was not such a transfer to lighter duties at full pay as to constitute a mutual recognition of the employee’s industrial disability and an implied agreement that wages were payments in lieu of compensation. These cases also contained dicta indicating that the Carpenter case holding had possibly been overruled by later pronouncements of the Supreme Court, and upon which the District Court herein relied to some extent in reaching its decision. As indicated above, however, we have reached a contrary conclusion on thorough reexamination of the entire jurisprudence when faced with the actual necessity of deciding the question before us.

The able District Court also properly relied to great extent upon the decision of our brethren of the Second Circuit, Wallace v. Remington Rand, Inc., La.App., 76 So.2d 87 (Writ. Cert. granted Feb. 14, 195S, now pending in Supreme Court), where it was held that there must be a specific or implied agreement that full wages paid for lighter work constitute payments in lieu of compensation, in order to interrupt prescription. The mere fact that the employer transfers the employee to lighter duties because of disability resulting from industrial accident, was held not to constitute such an implied agreement. With great respect for our brethren of the Second Circuit, for the reasons more fully set forth above, we do not agree with the conclusions reached.

It should be noted that in the recent Myers v. Jahncke Service, Inc., La.App., 76 So.2d 436, our brothers of the Orleans Court reached the conclusion that no credit should be given an employer for weekly wages earned by an employee at lighter but different duties (as pusher, instead of as ship-fitter), based on Mottet v. Libbey-Owens-Ford Co., 220 La. 653, 57 So.2d 218, 220, where it was held that “wages paid the plaintiff as night watchman were earned in a different kind of work * * * and cannot be considered in the nature of compensation” (Italics ours). Similarly, in Barnes v. Ed. Taussig, Inc., La.App. 1 Cir., 78 So.2d 418, we held an employee’s claim was prescribed where he is transferred to a different type of employment, and the wages were actually earned and commensurate with the services rendered by him; and where he was not misled or lulled into a false sense of security, because he had consulted his own lawyer before the year expired.

In the present case, we find it unquestioned and admitted that the employee received full wages for performing lighter or non-climbing duties, to which duties he was restricted by disability incurred in his employment. The payment of these full wages for partial performance of former duties constituted a recognition by the employer of his employee’s disability due to accidental injury sustained in the course of his employment. As such, the payment of these wages interrupted the accrual of prescription. Likewise, the employer and his insurer are entitled to receive credit to the extent that, for every week in which the wages paid the employee were or are equal to or greater than the amount of weekly compensation due, then each such week’s wages shall satisfy one weekly compensation payment.

Able counsel for defendant has filed an answer to the appeal, urging, first, that the plea of prescription be sustained; and in the alternative, that if the plea of prescription is overruled, then that a plea of prematurity be sustained.

This alternative plea must also be overruled. The allegations show that no compensation was paid from April 20, 1953, through August 21, 1953. Further, in view of the defendant insurer’s denial of any liability at all in the premises, the plaintiff is entitled to have the defendant’s liability and compensation fixed; D’Antoni v. Employers’ Liability Assurance Corp., 213 La. 67, 34 So.2d 378; Thornton v. E. I. DuPont De Nemours & Co., 207 La. 239, 21 So.2d 47, see also Washington v. Independent Ice & Cold Storage Co., 211 La. 690, 30 So.2d 758; although in these proceedings defendants will receive credit for wages paid by the employer which equal or exceed the statutory compensation rate; Carlino v. United States Fidelity & Guaranty Co., 196 La. 400, 199 So. 228.

For the above and foregoing reasons, the judgment of the District Court sustaining the plea of prescription herein is reversed; said plea of prescription is overruled, and the alternative plea of prematurity is likewise overruled; and this case is remanded for further proceedings and determination not inconsistent with the views expressed herein.

Reversed and remanded.

      . Of. for somewhat related problems arising when an employee is retained in the employment when the disability is not manifest; Johnson v. Cabot Carbon Co., Inc., 227 La. 941, 81 So.2d 2; Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218.

      . Walker v. Mansfield Hardwood Lumber Co., La.App., 35 So.2d 610, was technically a prescription case, but it specifically distinguished itself from the Carpenter case in that the plaintiff was discharged 5 months before the year was up, and could have filed suit during that interval. Although this may not be a valid distinction, this case also accepted the general premise that if the employee filed suit after the year when paid consistently to that time full wages for light work, then the suit would not be prescribed.


source: Caselaw Access Project

author: REGAN, Judge.

license: Public Domain

text:
    Percy J. SAUL v. AUDUBON INSURANCE CO. et al.
    No. 20600.
    Court of Appeal of Louisiana. Orleans.
    Dec. 5, 1955.
    Rehearing Denied Jan. 3, 1956.
    Bienvenu & Culver, New Orleans, for defendants-appellants.
    Gamble & Gamble, New Orleans, for plaintiff-appellee.
   REGAN, Judge.

The plaintiff, Percy J. Saul, owner and operator of an Oldsmobile Sedan, instituted this suit against Elliot Marx, operator of a Ford automobile, the Audubon Insurance Company, liability insurer of the Marx vehicle, and Herbert Jackson, owner and operator of a Chevrolet automobile, endeavoring to recover the sum of $174.61, representing property damage incurred by his car on July 5, 1954, at about 7:00 p. m., as a result of a collision in the intersection of Gentilly Boulevard and Marigny Street, this City.

Jackson pleaded the exceptions of no right or cause of action and then answered denying liability for the accident. He averred that the accident was due solely to the negligence of Marx and, in the alternative, pleaded the contributory negligence of Saul.

Defendants, Marx and the Audubon Insurance Company, answered and denied that Marx was guilty of any negligence whatsoever and asserted that the accident was caused by the joint negligence of Jackson and Saul and, in the alternative, pleaded the contributory negligence of Saul.

There was judgment below in favor of the plaintiff and against the defendants, Marx and Audubon Insurance Company, in the full amount prayed for. There was further judgment in favor of Jackson dismissing plaintiff’s suit as to him. From that judgment Marx and Audubon Insurance Company have appealed. The plaintiff did not appeal from that part of the judgment dismissing his suit against Jackson.

There were three vehicles involved in this collision and the record, as usual, reveals several versions thereof. However, we understand the facts to be as follows:

Marx was driving in the outbound roadway of Gentilly Boulevard or away from the City of New Orleans and upon reaching the intersection of Marigny Street executed a left turn and brought his vehicle to a stop with the front end thereof protruding at an angle into the inbound roadway of Gen-tilly Boulevard; that instead of remaining stationary he permitted his vehicle to roll forward at which moment Jackson’s automobile, which was moving in that roadway and in the direction of the City of' New Orleans, struck the Marx vehicle causing it to roll back into the path of Saul’s automobile, which was moving in the outbound roadway of Gentilly Boulevard, causing the damage which is the subject matter of this litigation.

The record is replete with evidence to the effect that the area colloquially designated as the neutral ground in Gentilly Boulevard is too narrow to accommodate an automobile within its width and, in consequence thereof, either the front, rear or both ends of an automobile may protrude into the respective roadways of Gentilly Boulevard.

Counsel for Marx insists both in brief and oral argument that the existing jurisprudence, by analogy, permitted him to stop his vehicle exactly where he did and that the proximate cause of the collision was the negligence of Jackson in failing to maintain a proper lookout and thus avoid running into his vehicle and cites in support thereof the relative recent cases decided by this Court of Garrett v. Toye Bros. Yellow Cab Co., La.App.1952, 58 So.2d 418, and Paternostro v. Hartmann, La.App.1953, 67 So.2d 497, 498, wherein we said:—

“ ‘The situation in which plaintiff found himself is an interesting one, and such accidents as this will undoubtedly occur more and more frequently in the future. Of course, it ■ has been deemed advisable that neutral grounds on such streets be narrowed as much as possible so that the driveways for automobiles may be widened in order to accommodate the ever increasing traffic. But, with the narrowing of the neutral grounds there has come about the practical elimination of the safety zones which the wider neutral grounds formerly afforded. As a result, it has become extremely difficult for a car driver, intending to cross such a thoroughfare as Bienville Street, to do so in absolute safety. Had plaintiff waited before attempting to cross the upper driveway' until it was absolutely certain that he could cross both, it is possible that he might have had to wait for hours. He chose what seems to have been the proper course. He saw that he could cross the first roadway in safety and that, on reaching the neutral ground, he could assume a position which would afford comparative safety, provided drivers on the two roadways operated their cars with reasonable caution and did not attempt to completely monopolize the roadways.’ ”

However, we especially emphasized in both of these cases that “had the plaintiff driven his car even a foot or two into the second roadway when the taxicab (other vehicle) was so dose that the driver could not have avoided striking his car, he would certainly have been held to have been at fault. * *

The trial court in reaching its conclusion obviously relied upon Marx’ admission that after he had come to a stop, he permitted his car to roll forward into the inbound roadway of Gentilly Boulevard and it was either at this moment or a split second later that the collision occurred between the two vehicles which, of course, ultimately resulted in damaging plaintiff’s car. We are, therefore, of the opinion, as was the trial judge, that the accident was caused by the negligence of Marx.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


text:
    Mrs. Etta JACKSON, et al. v. John LINDLOM.
    No. 20522.
    Court of Appeal of Louisiana. Orleans.
    Dec. 5, 1955.
    Rehearing Denied Jan. 3, 1956.
    Writ of Certiorari Denied Feb. 23, 1956.
    Arthur J. O’Keefe, Jr., and Leo L. Du-bourg, New Orleans, for plaintiff-appellant.
    Defendant-appellee unrepresented.
   REGAN, Judge.

Plaintiff, Mrs. Etta Jackson, widow of Walt.er Jackson, instituted this suit on behalf of herself and her three minor children, against the defendant, Jóhn Lind-lom, endeavoring to recover $25,000, for the wrongful death of her husband on April 23, 1953, at 12:35 a. m., which she asserted was caused by the negligent operation of defendant’s motor vehicle.

The defendant pleaded the exceptions of no right or cause of action which were overruled and then answered denying that he was guilty of any negligence in the premises and, in the alternative, pleaded the contributory negligence of the deceased Jackson.

From a judgment dismissing plaintiff’s suit, she has prosecuted this appeal.

When the case was called for trial in this court the defendant was both absent and unrepresented by counsel, however, •the record and the findings of fact by the trial judge conclusively established that the defendant’s negligent operation of his motor vehicle caused the death of Jackson. The record also disclosed that plaintiff is a putative wife and she, despite this fact, asserts that by virtue of the rationale appearing in LSA-Civil Code Articles 117 and 118, she is éntitled to successfully maintain an action for the wrongful death of her husband in conformity with the provisions of LSA-Civil Code Article 2315.

These articles read:

Art. 117. “The marriage, which has been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith.
Art. 118. “If only one of the parties acted in good faith, the marriage produces it civil effects only in his or her favor, and in favor of the children born of the marriage.”
Art. 2315. “Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children, including adopted children and children given in adoption, or spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving blood brothers and sisters, or either of them, for the space of one year from the death. However, should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and the minor children. * * ”

Historically, the courts of this State have literally construed the provisions of Article 2315 and, as a result thereof, the Legislature has amended the statute on several occasions. However, it has never been amended so as to permit a putative wife to assert an action for the wrongful death of her husband, and the Supreme Court, accordingly, decided in 1907 that a putative wife is not the widow or wife of a deceased husband so as to be encompassed by the beneficent effects of Article 2315. Vaughan v. Dalton-Lard Lumber Co., 119 La. 61, 43 So. 926.

In the above case the organ of the Court expressed the opinion that:

“Under article 2315 of the Civil Code * * * the right to sue for damages for the death of the husband, or for personal injuries suffered by him, is restricted to his lawful wife or widow, and cannot be extended by construction so as to include his putative wife by a bigamous marriage. * * *
“Such statutory right of action, arising after the death of the husband, is not one of the civil effects of marriage which inures to the benefit of the putative wife under articles 117 and 118 of the Civil Code.
“Article 2315 of the Civil Code, as amended, should be strictly construed, and the exceptional right of action granted therein should be restricted to the classes of persons specially designated as beneficiaries. All classes not expressly included are excluded.”

Obviously the plaintiff possesses no right as a putative wife to maintain this action against the defendant.

Plaintiff asserts that if she may not maintain this action on behalf of herself, that she should be permitted to assert it on behalf of her minor children.

The appellate Courts of this State have, as we indicated above, been reluctant to apply Article 2315 to any but those persons specially named therein and have strictly adhered to its literal terms, which is clearly revealed by a consideration of their decisions interpreting the word “children” as it appears in the article.

The word “child” or “children” has been interpreted to refer exclusively to legitimate children or to those that have been duly legitimated. Green v. New Orleans S. & G. I. R. Co., 141 La. 120, 74 So. 717; Youchican v. Texas & P. Ry. Co., 147 La. 1080, 86 So, 551. The Courts have held, without any exception that we know of, that the article applies only to actual and legitimate relatives and that its provisions may not be extended by analogy or construction, to encompass persons to whom they do not literally apply.

We are not aware of nor has any decision of the Supreme Court been cited to us indicating what rights, if any, are possessed by children bom of a putative marriage. The Civil Code provides that where a putative marriage exists, that is a marriage which is null for some reason, hut which was contracted in good faith, it shall produce civil effects in favor of the children born of the union. Although it would appear that such children would he considered legitimate and entitled to sue by virtue of the provisions of Article 2315 for the wrongful death of their parents, the literal interpretation placed upon this article by the Supreme Court in Vaughan v. Dalton Lard Lumber Co., supra, militates against its application to children born of a putative marriage, because the court therein said with reference to this Article that “the exceptional right of action granted therein should be restricted to the classes of persons specially designated as beneficiaries. All classes not expressly included are excluded.” See 14 Tulane Law Review 614.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: HENRY B. CURTIS, Judge ad hoc. REGAN, Judge JANVIER, Judge. REGAN, Judge.

text:
    Ellen JACKSON v. Joseph RATLIFF et al.
    No. 20431.
    Court of Appeal of Louisiana. Orleans.
    May 23, 1955.
    On Rehearing Jan. 3, 1956.
    Girard J. Fernandez, New Orleans, for defendants-appellants.
    McGiehan, Bagot & Phillips, New Orleans, for plaintiff-appellee.
   HENRY B. CURTIS, Judge ad hoc.

The main question in this case is the responsibility of the father for the wrongful act of a minor unemancipated child who was not living with the parent at the time of the commission of the tort.

In the alternative, we are called upon to decide if there is any liability on the part of the maternal grandmother in whose custody and control the minor child had been placed.

The facts are not disputed. Plaintiff is Ellen Jackson, a colored woman, aged 54, who was attacked with intent to rape by an eighteen year old Negro boy, Joseph Ratliff, Jr. Defendants are Joseph Ratliff, Sr., the father, and Alice Harrison, the maternal grandmother, with whom the boy was living at the time of the assault.

There was judgment in favor of plaintiff for $500 against Joseph Ratliff, Sr., and a further judgment dismissing her suit against Alice Harrison.

Defendant Ratliff appealed from the judgment - against him, and plaintiff appealed from the judgment dismissing her suit against Alice Harrison. In her brief in this Court plaintiff by way of answer to the appeal of Joseph Ratliff, Sr., prayed for an increase in the award.

In the view which we take of this case, it is not necessary for us to consider whether this was a valid answer to the appeal or even to consider the question of quantum at all because in our opinion neither the father nor the maternal grandmother is liable for the wrongful action of Joseph Ratliff, Jr-

The question of the liability of the grandmother can be easily decided. There is nothing in our Civil Code or statutory law which imposes such liability on the grandmother unless she were the tutrix of the minor which was not here the case.

On the question of the father’s liability, Article 2318 of the LSA-Civil Code reads:

“The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemanci-pated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.
“The same responsibility attaches to the tutors of minors.”

In the case of Toca v. Rojas, 152 La. 317, 93 So. 108, 111, the Supreme Court said:

“Of course the parental authority may be suspended and interrupted, and even taken away altogether by the force and effect of the law. As, for instance, when the state, in the exercise of its sovereign right and power, takes the child away from the parents for the betterment of its condition; when by judgment of court the child is given over into the custody and care of another; where the minor is called into the service of his state or his country, or is summoned into a posse comitatus. In all such instances, the paternal authority is interrupted or terminated, and likewise the paternal responsibility.
“ ‘When the law, ex propria vigore, destroys or suspends the paternal authority over the minor, it, at the same time, destroys or suspends the paternal responsibility.’ Coats v. Roberts, 35 La.Ann. 891.”

The facts in this case áre that shortly after the birth of Joseph Ratliff, Jr., the parents separated and the mother went to stay with the grandmother taking the child with her. The child remained with his grandmother and was living with her at the time of the offense. In 1942, the father, Joseph Ratliff, Sr., sued' for divorce alleging two years separation from his wife. In his petition he made the following allegation concerning the child:

“That there is one child issue of the marriage named Joseph Ratliff, Jr., now aged 8 years, the child is now and has been in the custody and control of Alice Jackson, its grandmother; that he asks the Court to give the custody and control to the ■ grandmother, who has had the child for many years.”

It thus appears that the minor was neither living with his father at the time of the offense nor had he been placed by him under the care of another person, since the evidence shows that the child’s mother took him to live with the grandmother. The decree in the divorce suit provided that the minor child should be placed in the custody and control of his grandmother.

The father’s petition in the divorce suit merely recognized that fact and asked the Court to confirm same in its judgment. Once the Court so decreed, the father lost whatever right of custody or control he might have had over the child, at least unless and until the decree awarding the custody to the grandmother was set aside.

In our opinion the father’s.parental authority was taken away by the judgment of court which gave the custody and control of the minor to the grandmother. Toca v. Rojas, supra.

The case of La Rue v. Adam, La.App., 59 So.2d 839 is not in conflict with this holding because there the father had voluntarily placed his minor children in the care of his oldest daughter and this Court held that the parental authority was not thereby interrupted or lost, the person in whose hands the children were placed being merely the father’s agent. In this case it cannot he said that the father placed the child under the care of the grandmother. At the most he merely recognized that she did have such custody and asked the Court to confirm same. Certainly after the Court had rendered such an order, the father could not have exercised any control whatsoever unless and until the Court’s order was set aside.

The plight of the innocent plaintiff of this attack is distressing, but, as was said by this Court in Maloney v. Goelz, 12 La.App. 31, 124 So. 606, 607:

“The question of the liability of the father who is not present has been many times discussed by our courts, which have always held that the codal provision, making the parent liable for the torts of the minor, is in derogation of common right, and therefore should be strictly construed. * * * ”

We therefore conclude that the judgment against Joseph Ratliff, Sr., should be reversed. j

It is therefore ordered, adjudged and decreed that the judgment appealed from in favor of plaintiff and against defendant, Joseph Ratliff, Sr., be and the same is reversed and set aside and plaintiff’s suit is dismissed at her cost.

It is further ordered, adjudged and decreed that the judgment in favor of Alice Harrison be -affirmed.

Affirmed in part and'reversed in part.

REGAN, J., dissents with written opinion.

REGAN, Judge

(dissenting).

I respectfully dissent from that part of the judgment dismissing the plaintiff’s suit against the father of the minor, Joseph Ratliff, Sr.

The facts are simple and are conceded in the majority opinion to be as hereinafter related.

Plaintiff, Ellen Jackson, a colored woman, fifty-four years of age, was viciously and without provocation attacked by Joseph Ratliff, Jr., an eighteen year old negro youth, who endeavored to, rape her. • It would serve no useful purpose to reiterate the gruesome details thereof. The defendants are the father, Joseph Ratliff, Sr., and the maternal grandmother, Alice Jackson Harrison, with whom the minor was residing, at the request of and for the convenience of the father, when the assault upon the plaintiff occurred. The lower court was of the opinion that the father was responsible for the damage inflicted upon the plaintiff by his minor child and dismissed her suit against the grandmother. This Court has reversed the judgment which plaintiff obtained against the father of the minor.

Initially at “commón law” the parent was not responsible for the tort of the child merely because of the relationship — however, by virtue of circuitous reasoning the modern trend of even the common law is to hold the parent responsible. Bassett v. Riley, 1908, 131 Mo.App. 676, 111 S.W. 596; Smith v. Davenport, 1891, 45 Kan. 423, 25 P. 851, 11 L.R.A. 429; Souza v. Irome, 1914, 219 Mass. 273, 106 N.E. 998; Johnson v. Glidden, 1898, 11 S.D. 237, 76 N.W. 933. Moon v. Towers, 8 C.B.(n.s.) 611, 141 Eng. Rep.R. 1306 (1860); Davis v. Gavalas, 1927, 37 Ga.App. 242, 139 S.E. 577.

The civil law, the social philosophy of which, so saith the legal sages is at least one hundred years more advanced than the common law, has .always held the father responsible for the damage occasioned by his minor children residing with him. Art. 1384 French Civil Code; Article 1903 Spanish Civil Code. Also see 20 Laurent, Prin-cipes De Droit Civil Francias, de la Respon-sabilite (5th Ed.1893) n° 550 p. 588, n° 553 p. 591; 15 Baudry-Lacantincrie et Barde, Traite De Droit Civil, Des Obligations (3rd Ed. 1908) n° 2898 p. 595, 5 T.L.R. 644.

In Louisiana the liability of the father for the tortious acts of his minor child is specifically imposed by virtue of LSA-C.C. art. 2318 which reads:—

“The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemanci-pated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons. * * * ”

It is, I believe, conceded that ordinarily this article of the code would encompass the facts herein and, in consequence thereof, the judgment to be reached by this court — however, the majority opinion, in effect, states that an exception to the general civil law rule enunciated in Art. 2318 is posed for our consideration in view of the fact that “the father’s parental authority was taken away by the judgment of court which gave the custody and control of the minor to the grandmother” and dictum extracted from the case of Toca v. Rojas, 152 La. 317, 93 So. 108, 111, is cited in support thereof. It reads:—

“Of course the parental authority may be suspended and interrupted, and even taken away altogether by the force and effect of the law. As, for instance, when the state, in the exercise of its sovereign right and power, takes the child away from the parents for the betterment of its condition; when by judgment of court the child is given over into the custody and care of another; where the minor is called into service of his state or his country, or is summoned into a posse comitatus. In all such instances, the paternal authority is interrupted or terminated, and likewise the paternal responsibility.
“ ‘When the law, ex proprio vigore, destroys or suspends the paternal authority over the minor, it, at the same time, destroys or suspends the paternal responsibility.’ Coats v. Roberts, 35 La.Ann. 891.”

I do not dispute the validity of the rationale of the foregoing pronouncement by the Supreme Court, I am simply of the opinion that the exceptions to the general rule enumerated therein may not be applied to that kind of judgment which the majority opinion insists annihilated the parental authority of Joseph Ratliff, Sr.

The record of the divorce, which was introduced in evidence, discloses that Joseph Ratliff, Sr. and Alice Jackson were married in 1934 and shortly thereafter a child, Joseph Ratliff, Jr., was born of this marriage. When the child was very young the couple separated and the mother took the child with her to the home of his grandmother, Alice Jackson Harrison. In 1942 Joseph Ratliff, Sr., instituted a suit against his wife, alleging that they had been living apart for more than two years; that one child was born of the marriage, who was then eight years of age and who resided with its grandmother; he then requested the court “to give the custody and control to the grandmother, who has had the child for many years.” The petition for divorce was served in person on Alice Jackson, who failed to respond thereto and a judgment by default was obtained by Ratliff, which, incidentally and perfunctorily, as per his request, awarded the custory of the minor child to its grandmother.

In my opinion there exists a vast distinction between the foregoing pro forma judgment, wherein the court, having no cause or reason at the time to evaluate the welfare or status of the child — and which was used by Ratliff, in contemplation of remarriage— for his convenience and expediency — to voluntarily place the child in the custody of its grandmother, obviously in order to avoid the obligations incident to and imposed by law upon parenthood, * * * and that type of judgment wherein the welfare of the child is seriously evaluated by the court and the parental authority is then suspended, interrupted or even taken away altogether by the force and effect of the law— or, as was more succinctly stated in Toca v. Rojas, supra, “when the state, in the exercise of its sovereign right and power, takes the child away from the parents for the betterment of its condition.” If that was the nature of the judgment relied upon by the majority to create an exception to the general civil rule of law enunciated in Article 2318,1 may be persuaded to alter my conclusions, however, as related herein-above, in my opinion a vast distinction exists between the effect of these judgments upon the facts of this case and, therefore, I am motivated to file this dissent.

I have observed heretofore that the majority opinion relies upon dictum extracted from the Toca case to support its conclusions — as paradoxical as it may appear, I too, find dicta therein which, in my opinion, is in accord with the views herein expressed, for example: — •

“Birth gives rise to paternal control and authority over the child, and, as was tersely stated in Coats v. Roberts, 35 La.Ann. 891:
“ ‘Paternal responsibility is the consequence and offspring of the paternal authority.’
“The , father may delegate a part of his authority over his minor children to teachers, schoolmasters and others to whom he may intrust them for their education — such as the power of restraint and correction — but he cannot permanently divest himself of any portion of the paternal authority, by contract or otherwise. C.C. 220; Gates v. Renfroe, 7 La.Ann. 569. He cannot send his minor children away from the paternal home unless he places them in the care of others, in which event he remains responsible for their acts. Nor can he refuse to support and maintain them without subjecting himself to a criminal prosecution.”

The ratio decidendi or the precise holding of the Toca case turned upon a point of pleading and the Court, in this connection, expressed the opinion that plaintiff’s petition set forth a cause of action since it was not necessary for him to allege that the defendant’s minor son was “residing with him” and, accordingly, overruled the exception of no cause or right of action. The Toca case is authority for nothing more.

It is my opinion that this case poses an analogous or essentially the same problem which we considered in La Rue v. Adam, La.App.1952, 59 So.2d 839, 841, wherein we said:—

“In view of the fact that the father upon his remarriage, for reasons of his own, wished to live alone with his second wife, and established a separate home for his children with his eldest daughter in the role of mother to the other children, brings them within the purview of Article 2318, LSA-C.C., which imposes upon a father responsibility for his minor children placed by him under the care of another.”

Joseph Ratliff, Sr., in contemplation of remarriage did exactly what Adam did in the foregoing case, except that Ratliff for his benefit and convenience interposed the arm of the court to accomplish this objective of placing the minor in the care of its grandmother.

How is the concept of “justice” reconciled with the divergent results reached in each of these cases? Is it predicated on the fallacious premise that Ratliff was more clever than Adams in relieving himself of parental responsibility a fortiori judgment for Ratliff? Or is it predicated upon the hypothesis that even in the interest of justice, it is not permissible for an appellate court to evaluate the meaning, intent, implication or “reason why” a lower court rendered a particular judgment and the over all effect thereof under exceptional circumstances ?

Lord Bowen, one of the ablest and most enlightened of English Judges, 68 years ago remarked:

“It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in Her Majesty’s Supreme Court to be defeated by any mere technicality * * *. The law has ceased to be a scientific game that may be won or lost by playing some particular move.”

Law is justice and this conclusion is founded upon the indisputable fact that the final cause of law is the welfare of society. The decision which misses this aim cannot permanently justify its existence. I am convinced that the court’s opinion actually recognized its failure to give this fundamental concept of the law its full weight when the author thereof apologetically asserted "The plight of the innocent plaintiff of this attack is distressing, but * * Nonetheless the majority still felt compelled to relieve Joseph Ratliff, Sr., from the liability which the lower court had imposed upon him for the vicious rape attempted by his minor son. In this connection, Justice Cardozo once very poignantly observed:

. “Judges march at times to pitiless conclusions under the prod of a remorseless logic which is supposed to leave them no alternative. They deplore the sacrificial rite. . They perform it, none the less, with averted gaze, convinced as they plunge the knife that they obey' the bidding of their ■office. The victim is offered'up to the gods of jurisprudence on the alter of regularity.”

I am of the opinion that the judgment of the lower court was correct and should have been affirmed.

On Rehearing

JANVIER, Judge.

In argument on rehearing counsel for plaintiff, in contending that there is liability in the father, characterized as obiter dicta certain statements made by the Supreme Court in Toca v. Rojas, 152 La. 317, 93 So. 108, 111, and referred particularly to the statement to the effect that parental authority may be taken away by judgment of court when, for the betterment of the child’s condition, it is given over into the care and custody of another.

Counsel say that that statement was not necessary to the decision, since all that was involved there was the question of whether a plaintiff, who had been damaged by the tort of a minor and who brought suit against the father of the minor, should have alleged that the minor was residing with the defendant parent.

It is true that, since the matter was before the Court on an exception of no cause of action based on the contention that it should have been alleged that the minor child was living with the defendant parent, all that was necessary to the decision was a statement that such an allegation was not necessary.

Whether the statement was necessary to that decision or not it seems to us that what was said is properly based on the wording of Article 2318 of our LSA-Civil Code.

As a necessary prerequisite to the liability of a parent in such case the child at the time of the commission of the offense must reside with the parent.

All that was held in that case was that it must be presumed that a minor child is residing with the parent and that this pre•sumption continues until the status of the -child is “changed in some manner provided hy law.” The Court said that among the ■methods by which that status might be changed is the one relied on here — “when the state, in the exercise of its sovereign right and power, takes the child away from the parents for the betterment of its condition”.

Counsel for plaintiff in oral argument ■conceded that the effect contended for by •defendant would result in any case in which there was an actual contest over the •custody of the minor and the Court, after hearing the controversy, should take the custody away from the parent and give it to someone else. But they say that here there was no controversy and that the custody of the child was taken away from the father .at his own request and that therefore the father was merely using the Court to relieve himself of responsibility and was thus attempting to do indirectly what he could not have done without the assistance of the Court.

This argument overlooks the fact that it must be assumed that the District Judge, in taking the custody away from the father, did his full duty and did not do so until he had investigated and had concluded that it was for the betterment of the condition of the child that its custody be taken from the father and given to someone else. To quote again from the Toca decision, we think that the State, “in the exercise of its ■sovereign right and power,” took the child away from the father “for the betterment of its condition”. After that, the father could no longer exercise any control over the child and it no longer resided with him.

Our original opinion and decree are reinstated and made final.

Original Opinion and Decree Reinstated.

REGAN, Judge.

I respectfully reiterate my dissent attached to the original opinion of this Court.