author: TATE, Judge.

text:
    Jesse J. VERRET, Plaintiff-Appellant, v. CALCASIEU PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 4145.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Rehearing Denied March 20, 1956.
    Nathan A. Cormie, Lake Charles, for appellant.
    ' Fred C. Selby, Asst. Dist. Atty., Lake Charles, for appellee.
   TATE, Judge.

in this action against the Calcasieu Parish School Board plaintiff Verret seeks judgment (1) decreeing null and void a School Board resolution which changed his status from principal of LaGrange High School to principal of LaGrange Junior High School; (2) recognizing his rights as a permanent teacher under the Louisiana Teachers’ Tenure Act; and (3) ordering defendant School Board to reinstate Ver-ret as principal of a high school, and particularly as principal of LaGrange Senior High School. Verret appeals from District Court judgment sustaining the School Board’s exception of no cause of action.

The controversy’s factual basis arises from the School Board’s action in separating the former LaGrange High School, of which Verret was principal, into two schools, the LaGrange Senior High School, and the LaGrange Junior High School and naming Verret principal of the latter instead of the former.

The District Court’s scholarly opinion contains cogent reasons in support of the judgment rendered by it; but we are unable to consider either them, or the forceful reasons urged by plaintiff-appellant in support of his argument that the aforesaid change of status constituted a removal within the meaning of the Teachers’ Tenure Act, LSA-R.S. 17:441-17:500.

Both lines of reasoning involved certain factual assumptions as to rates of pay, location of the respective schools, composition thereof, resulting benefits and advantages as between the principal of a high school and of a junior high school (now and in the future), etc., which are not contained in the record, which consists simply of the petition filed by plaintiff together with certain supporting exhibits, and the exception of no right and cause of action filed by defendant. It is of course too well settled to require citation that all well-pleaded facts in plaintiff’s petition are assumed to be true for the purpose of deciding an exception of no cause of action.

Plaintiff’s petition contains the following allegations: ’

“6.
“On April 6, 1954, at a regular, meeting of the Calcasieu Parish School Board, that body officially removed your petitioner from his office as Principal of LaGrange High School, the largest Senior High School in Cal-casieu Parish, and demoted petitioner to the lower position of that of Principal of a Junior High School; that being, LaGrange Junior High School.
“7.
“Petitioner’s demotion and removal from office as mentioned above, was done * * * without prior hearing before said Board or being first found guilty of any neglect, incompetency, or dishonesty. (Italics ours.)
*****.*
“13.
“In truth and in fact, the Calcasieu Parish School Board, through the subterfuge of abolishment of the office of. Principal of LaGrange High School, removed petitidner from office in violation of Louisiana Revised Statutes of '1950, Title 17, Sections 441-444, all of which act of demoting petitioner to the position of Principal of a Junior High School has reduced his rank, position> status, and prestige, in violation of his rights as a permanent teacher under the Teacher’s Tenure Act of this Státe, and all without due proceedings and justifiable cause under said act.
“14."'
“ * * * petitioner has been wrongfully demoted and removed from his office, position and status, * *
(Italics ours.)

While defendant urges that these amount to legal conclusions, we feel .that under these allegations testimony would be admissible to show that the transfer to a “lower position” constituted a transfer, for example, to a lower-paid position; or to a virtually inaccessible school with relation to Verret’s former'duties; or from a particular type of attained teaching position or status, for instance, despite the title consisting of an assignment to teach -the first nine grades in a one-rootn country school —transfers which might- constitute a “removal” under LSA-R.S. 17:443, prohibiting such removals of permanent teachers except upon written and signed charges, notice, and hearing. See Dugas v. Ascension Parish School Board, 228 La.80, 81 So.2d 817, and, in reversing earlier District Court judgment sustaining exception of no cause of: action, 221 La. 618, 60 So.2d 12; State ex rel. Parker v. Vernon Parish School Board, 222 La. 91, 62 So.2d 111; Gassen v. St. Charles Parish School Board, 199 La. 954, 7 So.2d 217; State ex rel. McNeal v. Avoyelles Parish School Board, 199 La. 859, 7 So.2d 165; State ex rel. Nobles v. Bienville Parish School Board, 198 La. 688, 4 So.2d 649; Watts v. Winn Parish School Board, La.App., 66 So.2d 350, certiorari denied.

, As our ■ distinguished predecessor, Judge Hugo Dore, pointed out in a scholarly and forceful opinion in State ex rel. Bass v. Vernon Parish School Board, La.App., 1 Cir., 194 So. 74, certiorari denied, the tenured teacher is protected from disturbance not only by change in salary, but also by transfer to unpleasant duties, or duties not of the “particular type of teaching position or status which the teacher has' attained,” 194 So. 76. For a school board could thus indirectly accomplish the removal of a tenured teacher from .the school system, although unable to do so directly by proven charges.

As to this particular instance before us, we specifically do not hold whether or not the assumed facts argued before us constitute merely a change in duties within the discretion of the School Board, or on the other hand a demotion so as to constitute a removal prohibited under the Teachers’ Tenure Act.

,. In fairness to the District. Judge, it should-be observed that the primary argument of both parties both in the lower court, and before us was directed to the merits and involved certain factual assumptions not before • us. , Appellant, however, has urged on appeal that in view of the well-pleaded facts of the petition, the exception of no cause of action should not have been sustained, which argument we are unable to disregard. .

'" We are therefore inclined to believe he has alleged a cause of action as principal of a high school, although not necessarily of a “Senior” high school.

For the above and foregoing reasons, the judgment of the District Courts sustaining exception of no cause of action is reversed, and these proceedings are re-; manded to the District Court for further proceedings according to, law. Since defendant-appellee is a public body, costs of this appeal will not be assessed against it ; LSA-R.S. 13:4521. All other costs will await final determination of these proceedings.

Reversed and remanded.


source: Caselaw Access Project

author: REGAN, Judge.

license: Public Domain

text:
    MOORE STEEL, Incorporated, v. Charles SNOW and Maryland Casualty Company.
    No. 20656.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.
    Rehearing Denied March 19, 1956.
    Writ of Certiorari Denied May 7, 1956.

      Sydney J. Parlongue; Deutsch, Kerrigan & Stiles, Gerald J. Gallinghouse, New Orleans, for defendant appellant.
    Cahn, Provensal & Faris, Leon S. Cahn, New Orleans, for plaintiff appellee.
   REGAN, Judge.

Plaintiff, Moore Steel, Incorporated, as a materialman, instituted this suit against the defendants, Charles Snow, as contractor, and the Maryland Casualty Company, as surety, endeavoring to recover the sum of $887.63 for materials sold, delivered, received and used by the contractor in the erection of a residence in 6748 Argonne Street, in the City of New Orleans, with legal interest thereon from judicial demand until paid, together with 10% attorney’s fees.

Defendant, Charles Snow, answered and generally denied the allegations of plaintiff’s petition and requested that it be dismissed.

Defendant, Maryland Casualty Company, pleaded the exceptions of no right of cause of action, with reservation thereof in conformity with the practice .of pleading in the First City Court, .and then answered denying that it was indebted unto plaintiff in any sum whatsoever and likewise requested that the suit be dismissed.

It further asserted that as an inducement to act as surety on the bond of the defendant, Charles Snow, contractor, he agreed to indemnify it against any suit or claim incurred ás a result of the execution of the bond; that Paul D. Snow,' Jr., the owner of the property, joined in the indemnity agreement, whereby he became solidarily liable thereunder with Charles Snow; therefore, it is entitled to call defendant Charles Snow, the contractor, and Paul D. Snow, Jr., the owner, in warranty both to defend this suit and to indemnify it against any costs or loss which may be incurred as an ultimate result hereof.

The exceptions were apparently overruled and judgment was rendered in favor of plaintiff as prayed for ■ against Charles Snow and Maryland Casualty Company, in solido. There was also judgment in favor of Maryland Casualty Company and against “Paul D. Snow, Jr. and Charles Snow, in solido, under its call in warranty for the amount of the judgment against Maryland Casualty Company, in. favor of Moore Steel, Inc., including costs and attorney’s fees.”

This is the master case and it was consolidated with six similar suits emanating from the same contract in order to facilitate and expedite the trial thereof. The suits referred to are entitled: Jahncke Service, Inc., v. Snow, La.App., 85 So.2d 653; Stone Lumber Co. v. Snow, La.App., 85 So.2d 654; Tulane Hardwood Lumber Co., Inc., v. Snow, La.App., 85 So.2d 655; Schwartz Supply Co., Inc., v. Snow, La.App., 85 So.2d 656; Grather v. Snow, La.App., 85 So.2d 657; Southern States Iron Roofing Co. v. Snow, La.App., 85 So.2d 658.

The trial judge thoroughly analyzed both the facts and law applicable to this case in her written reasons, for judgment which, in o.ur opinion, encompass the issues so fully that we adopt them as our own; .

“By agreement' of counsel for all parties and with the permission of the Court, the ábove cases were consolidated for trial.
“Each of the suits was filed by a different plaintiff but all of the suits are for materials furnished and used, in the construction of the residence, 6748 Argonne Street. Charles Snow, the contractor, and the Maryland Casualty Company, the surety on the building contract bond, are co-defendants in all of the suits,, and the plaintiffs'ask for judgments against both of .these defendants in solido'.
“In the answer in each case the Maryland Casualty Company asked to have’ the suit dismissed, and in the alternative it prayed that it have judgment under its call in warranty against the contractor, Charles Snow, and Paul D. Snow, the owner of the property.
“It was stipulated between .counsel for Charles Snow and Paul D. Snow and counsel for Maryland Casualty Company that, under the indemnity agreement in the building contract bond, the Maryland Casualty Company is entitled to judgment over against Charles Snow and Paul D. Snow for any amounts in which the Maryland Casualty Company may be cast in these suits.
“By stipulation of counsel for all parties in all of .the suits, the building contract between Paul Snow, as owner, and Charles Snow, as contractor, and Maryland Casualty Company, as surety •on the bond, and the acceptance of the contract by Paul D. Snow, as owner, as well as the timely recordation of these instruments in the mortgage office, were admitted.
“It was also stipulated by all parties that the materials furnished by each of the plaintiffs were delivered to and incorporated in the .improvements on the property 6748 Argonné Street and that the amounts of the claims for said materials are true and correct.
“According to the terms of the building contract, the Maryland Casualty Company took full cognizance of the contract between Paul D. Snow as owner and Charles Snow as contractor and it bound itself as surety in favor of:
“ ‘Said owner and all subcontractors, journeymen, cartmen, truckmen, workmen, laborers, mechanics and furnish-ers of materials^ jointly as their interest may appear, for the true and faithful performance of said contract, and the payment of all subcontractors, journeymen, cartmen, truckmen, workmen, laborers, mechanics and furnish-ers of materials.’
“It was also stipulated in the building contract that the failure of the contractor to furnish labor and materials, or to comply with any part of the contract, gave the owner the right to take over the work and complete it at the expense of the contractor and the surety.
“The bonding company also agreed to be liable for:
“ ‘All costs, charges, expenses and attorney’s fees, incurred in any con-cursus or other legal proceeding, made necessary by the failure of the contractor to faithfully comply with the foregoing contract.’
“The Maryland Casualty Company denies liability for the materials which went into the building at 6748 Argonne Street on the grounds that Charles Snow did not comply with any of the obligations under the contract, but on the contrary, stood by and let his brother, Paul D. Snow, who was the owner of the property, take over the functions of contractor.
“On the trial of the case, Charles Snow testified that he signed the contract to build a house for his brother, Paul D. Snow, and that he worked for his brother as a laborer and visited the job, ‘maybe 10 or 12 visits’ to see how things were going and sometimes to haul away trash. He admitted that he received and signed for some of the materials, that he knew the house was being constructed and that the materials were being used in the construction. He also testified that he made no objection to his brother’s ordering the materials and using them in the construction of the house.
“Paul D. Snow testified that he had signed the contract as owner with his brother Charles as contractor, and that he also signed the acceptance of the contract as owner. He said that his brother Charles worked for him as a laborer, and that ‘he was just used as a figurehead’. He said that he had ordered all of the materials for which the plaintiffs sued, either directly, or through the Reliable Lumber Company, or through the supervisor on the job.
“The plaintiffs do not allege fraud or conspiracy on the part of the Maryland Casualty Company or the Snow brothers, but they do point to the fact that the Maryland Casualty Company required Paul D. Snow, the owner and one of the obligees under the contract and the bond, to sign an indemnity agreement binding the owner to hold the Maryland Casualty Company harmless from any loss the bonding company might suffer under this contract of surety; and the fact that the Maryland Casualty Company did not require Charles Snow, the contractor, to furnish any of the information called for on the application form of the Maryland Casualty Company as to his qualifications and experience, the jobs he had under construction, his financial obligations, etc. The plaintiffs point to these facts as indicating that the Maryland Casualty Company was at least aware of the deception that was being perpetrated by the Snow brothers to the detriment of the materialmen and all of those who furnished either labor or material on the faith of the duly executed and recorded contract and bond. And the plaintiffs contend that since neither Charles Snow nor the Maryland Casualty Company made any objection to Paul Snow’s taking over the functions of the contractor,'or any attempt to notify the public or the ma-terialmen that the contractor and the surety did not consider themselves bound by the contract, they are now estopped from denying that Paul D. Snow, in taking over the functions of the contractor with their full knowledge, was acting as the agent of his brother.
“The contract and the bond remained of record and uncancelled and Paul D. Snow continued in his original role of owner when he accepted the contract and recorded his acceptance. The bonding company likewise continued to act as though it still considered Charles-Snow the contractor, and still considered itself bound as his surety, by writing each of the materialmen under the date of February 1, 1954 (which was some three months after the acceptance of the contract), advising them that the records of ‘Charles Snow, Contractor’, showed a current balance due them on the contract between Charles Snow and Paul D. Snow; and asking the materialmen to fill out affidavits and annex invoices manifesting delivery of the materials to the ‘captioned1 job site’, i. e. 6748 Argonne Street. -
“It was stipulated that all of the plaintiffs had supplied the Maryland! Casualty Company with the required affidavits and invoices, in amounts corresponding to the claims alleged by the respective plaintiffs.
“But the Maryland Casualty Company contends that neither it nor its principal under the building contract performance bond is liable for the materials which went into the building because, according to the testimony of Charles Snow, the contractor, he did not order any of the materials, and according to the testimony of Paul D. Snow, the owner, it was he who ordered the materials, either directly or through the Reliable Lumber Company or through the supervisor on the job.
“The plaintiffs, on the other hand, contend that the contractor and his surety are liable in solido for the materials which went into the building because under the statute, LSA-R.S. 9:4801 et seq., there is no requirement that the materials should have been ordered or purchased by the contractor. A careful examination of the statute would seem to bear out this contention, for we can find nothing in the statute restricting its protection of material-men to those who sell materials directly to the general contractor. On the contrary, the statute protects all those who furnish labor and material used in the work:
“ ‘Whére the- owner has required the bond herein provided, the surety thereon shall be liable in solido with the contractor for all labor and materials used in the said work of improvements.’
“The. Maryland Casualty Company contends very vigorously that its liability, is measured by that of its principal; but under the statute, the contractor, as well as the surety, is liable for all labor and materials used in the work which he contracted to construct.
“The Maryland Casualty Company cites, three decisions by the First and Second Circuit Courts of Appeals to the effect that knowledge and consent given, to improvements made by a lessee are not sufficient to bind a lessor personally or to make his property subject to the lien arising from the improvement. Insofar as these decisions have any application to the facts in the instant cases,- they have apparently been overruled by the recent case of Sirone v. Distefano, 67 So.2d 150 (CA1-1953), (we note that a writ of certiorari was denied October 9, 1953), wherein it was held that if a lessor remains silent when, work is going on of which he has knowledge, his silence amounts to consent; and that, in establishing the liability of a lessor for materials and labor, the facts that the lessee purchased the materials and had them billed to himself, and that he hired the carpenters who performed the labor, were immaterial.
“It is our opinion that the language of the Supreme Court in United States Fidelity & Guaranty Co. v. D’Angelo et al., 150 La. 188 [90 So. 564, 566], even though used in connection with an earlier statute, is equally applicable here.
“ ‘The act of the Legislature requiring the bond to be made in favor of the workmen and furnishers of materials, as well as in favor of the owner, as their interests may occur, gave to the workmen and materialmen distinct individual rights of which they cannot be deprived by any unauthorized acts of the owner or the contractor, or by any one other than themselves. Ma-terialmen and laborers, therefore, are not concerned as to the alterations made' in the work, and any alleged breach of the building contract in this case by the owner or .the contractor did not affect the rights of action of the workmen and furnishers of materials against the surety on the bond. Under the law and present conditions, which give the materialmen and laborers, on buildings' security for their goods and wages, with bonds by compensated sureties, or insurers, to protect them, it is obviously unjust and unlawful to apply the rules of law concerning voluntary suretyships. Victoria Lumber Co. v. Wells, 139 La. [500] 503, 504, 505, 506, 71 So. 781, L.R.A.1916E, 1110, Ann.Cas.1917E, 1083.’
“After á careful review of the .authorities cited in all of the briefs, and after considering the facts in the -instant cases and the law and the jurisprudence applicable thereto, we have concluded that the contractor, Charles Snow, and his surety, Maryland Casualty .Company, are liable in solido to the plaintiffs for the amounts of their respective claims, plus costs and ten percent attorney’s fees.
“Under 'the stipulation between the Maryland Casualty Company and counsel for Charles Snow and Paul D. Snow, the Maryland Casualty Company is entitled to judgment against Charles Snow and Paul D. Snow in solido for the judgments rendered against it in the above entitled suits.”

For the reasons assigned the judgment appealed from is affirmed.

Affirmed. '


text:
    JAHNCKE SERVICE, Inc. v. Paul D. SNOW, Charles Snow and Maryland Casualty Company.
    No. 20657.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.
    Rehearing Denied March 19, 1956.
    Writ of Certiorari Denied May 7, 1956.
    Sydney J. Parlongue, Deutsch, Kerrigan & Stiles, Gerald J. Gallinghouse, New Orleans, for defendants appellants.
    James J. Morrison, New Orleans, for plaintiff appellee.
   REGAN, Judge.

This litigation emanates from the same building contract, the facts and pertinent issues of which are the same as those found in the-case of Moore Steel, Inc., v. Snow, La.App., 85 So.2d 648, with: the exception of the amount thereof and the judgment therefor which is $626.52, and the fact that the plaintiff instituted suit against Paul D. Snow, Jr., the owner, in addition to Charles Snow, the contractor, and Maryland Casualty Company, his surety. The suit against Paul D. Snow, Jr., was dismissed.

In the case of Moore Steel, Inc., v. Snow, we were of the opinion, for the reasons assigned therein, that the contractor, Charles Snow, and his surety, Maryland Casualty Company, were liable in solido, to the plaintiff for the amount of its claim, plus costs and ten percent attorney’s fees and, by virtue of the stipulation entered into 'between counsel for the Maryland Casualty Company and counsel for ’Charles Snow and Paul D. Snow, Jr., the Maryland Casualty Company is entitled to judgment against Paul D. Snow, Jr., and Charles Snow for the judgment rendered against it in the above entitled suit.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed,


text:
    STONE LUMBER COMPANY v. Charles SNOW and Maryland Casualty Company.
    No. 20658.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.
    Rehearing Denied March 19, 1956.
    Writ of Certiorari Denied May 7, 1956.
    Sydney J. Parlongue, Deutsch, Kerriga-n & Stiles, Gerald J. Gallinghouse, New Orleans, for defendant appellant.
    Wisdom & Stone, Walter J. Wadlington, III, New Orleans, for plaintiff appellee.
   REGAN, Judge.

This litigation emanates from the same building contract, the facts and pertinent issues of which are the same as those found in the case of Moore Steel, Inc., v. Snow, La.App., 85 So.2d 648, with the exception of the amount thereof and the judgment therefor which is $815.09.

In the case of Moore Steel, Inc., v. Snow, we were of the opinion, for the reasons assigned therein, that the contractor, Charles Snow, and his surety, Maryland Casualty Company, were liable in solido to the plaintiff for the amount of its claim, plus costs and ten percent attorney’s fees and, by virtue of the stipulation entered into between counsel for the Maryland Casualty Company and counsel for Charles Snow and Paul D. Snow, Jr., the Maryland Casualty Company is entitled ,to judgment against Paul D. Snow, Jr. and Charles Snow for the judgment rendered against it in the above entitled suit.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


text:
    TULANE HARDWOOD LUMBER CO., Inc. v. Charles SNOW and Maryland Casualty Company.
    No. 20659.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.
    Rehearing Denied March 19, 1956.
    Writ of Certiorari Denied May 7, 1956.
    Sydney J. Parlongue, Deutsch, Kerrigan & Stiles and Gerald J. Gallinghouse, New Orleans, for defendants appellants.
    Cobb & Wright, Herman M. Baginsky, New Orleans, for plaintiff appellee.
   REGAN, Judge.

This litigation emanates from the same building contract, the facts and pertinent issues of which are the same as those found in the case of Moore Steel, Inc., v. Snow, La.App., 85 So.2d 648, with the exception of the amount thereof and the judgment therefor which is $910.86.

In the case of Moore Steel, Inc., v. Snow, we were of the opinion, for the reasons assigned therein, that the contractor, Charles Snow, and his surety, Maryland Casualty Company, were liable in solido to the plaintiff for the amount of its claim, plus costs and ten percent attorney’s fees and, by virtue of the stipulation entered into between counsel for the Maryland Casualty Company and counsel for Charles Snow and Paul D. Snow, Jr., the Maryland Casualty Company is entitled to judgment against Paul D. Snow, Jr., and Charles Snow for the judgment rendered against it in the above entitled suit.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


text:
    SCHWARTZ SUPPLY COMPANY, Inc. v. Charles SNOW and Maryland Casualty Company.
    No. 20660.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.
    Rehearing Denied March 19, 1956.
    Writ of Certiorari Denied May 7, 1956.
    Sydney J. Parlongue, Deutsch, Kerrigan & Stiles and Gerald J. Gallinghouse, New Orleans, for defendants appellants.
    Wisdom & Stone, Walter J. Wadlington, III, New Orleans, for plaintiff appellee.
   REGAN, Judge.

This litigation emanates from the same building contract, the facts and pertinent issues of which are the same as those found in the case of Moore Steel, Inc., v. Snow, La.App., 85 So.2d 648, with the exception of the amount thereof and the judgment therefor which is $172.89.

In the case of Moore Steel, Inc., v. Snow, we were of the opinion, for the reasons assigned therein, that the contractor, Charles Snow, and his surety, Maryland Casualty Company, were liable in solido to the plaintiff for the amount of its claim, plus costs and ten percent attorney’s fees and, by virtue of the stipulation entered into between counsel for the Maryland 'Casualty Company and counsel for Charles Snow and Paul D. Snow, Jr., the Maryland Casualty Company is entitled to judgment against Paul D. Snow, Jr., and Charles ■Snow for the judgment rendered against it in the above entitled suit.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


text:
    Walter J. GRATHER, doing business as A. & G. Sheet Metal Works, v. Charles SNOW and Maryland Casualty Company.
    No. 20661.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.
    Rehearing Denied March 19, 1956.
    Writ of Certiorari Denied May 7, 1956.
    Sydney J. Parlongue, Deutsch, Kerrigan & Stiles, Gerald J. Gallinghouse, New Orleans, for defendants'appellants.
    Weiss & Weiss, S. Paul Weiss, Jr., New Orleans, for plaintiff appellee.
   REGAN, Judge.

This litigation emanates from the same building contract, the facts and pertinent issues of which are the same as those found in the case of Moore Steel, Inc., v. Snow, La.App., 85 So.2d 648, with the exception of the amount' thereof and the judgment therefor which is $108 and is a claim for material and labor furnished.

In the case of Moore Steel, Inc., v. Snow, we were of the opinion, for the reasons assigned therein, that the contractor, Charles Snow, and his surety, Maryland Casualty Company, were liable in solido to the plaintiff for the amount of its claim, plus costs and ten percent attorney’s fees and, by virtue of the stipulation entered into between counsel for the Maryland Casualty Company and counsel for Charles Snow and Paul D. Snow, Jr., the Maryland Casualty Company is entitled to judgment against ■Paul D. Snow, Jr., and Charles Snow for the .judgment rendered against it in the above entitled suit.

For the reasons assigned the judgment-appealed from is affirmed.

Affirmed.


text:
    SOUTHERN STATES IRON ROOFING CO. v. Charles SNOW and Maryland Casualty Company.
    No. 20662.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.
    Rehearing Denied March 19, 1956.
    Writ of Certiorari Denied May 7, 1956.
    Sydney J. Parlongue, Deutsch, Kerrigan & Stiles, Gerald J. Gallinghouse, New Orleans, for defendants appellants.
    Weiss & Weiss, S. Paul Weiss, Jr., New Orleans, for plaintiff appellee.
   REGAN, Judge.

This litigation emanates from the same building contract, the facts and pertinent issues of which are the same as those found in the case of Moore Steel, Inc., v. Snow, La.App., 85 So.2d 648, with the exception of the amount thereof and the judgment therefor which is $694.25.

In the case of Moore Steel, Inc., v. Snow, we were of the opinion, for the reasons assigned therein, that the contractor, Charles Snow, and his surety, Maryland Casualty Company, were liable in solido to the plaintiff for the amount of its claim, plus costs and ten percent attorney’s fees and, by virtue of the stipulation entered into between counsel for the Maryland Casualty Company and counsel for Charles Snow and Paul D. Snow, Jr., the Maryland Casualty Company is entitled to judgment against Paul D. Snow, Jr. and Charles Snow for the judgment rendered against it in the above entitled suit.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: LOTTINGER, Judge.

text:
    Mavis Johnson DARCE et al. v. CALCASIEU PAPER COMPANY, Inc.
    No. 4126.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Rehearing Denied March 20, 1956.

      Gist, Murchison & Gist, Alexandria, for appellant.
    Carmouche, Martin & Wilson, Ernest G. LaFleur Jr., Lake Charles, for appellees.
   LOTTINGER, Judge.

This is a suit for .workmen’s compensa-tion for benefits for two alleged minor grandchildren of a deceased employee. Suit was instituted by the natural tutrix of ■said minors. The lower court gave judgment for petitioner, and the defendant has appealed.

It is admitted that Ezra Johnson was accidentally killed on April 3, 1951, in the course and scope of his employment with Calcasieu Paper Company, Inc., and that his employment was a .hazardous one. For some time prior to his death, deceased employee’ lived in the same house with his wife, his youngest daughter, Mavis, and his said daughter’s two minor children, Mary Louise Wyeth and Royce Wyeth. Subsequent to the death of Ezra Johnson, compensation benefits were paid his surviving widow until her death on December 29, 1953. No be'nefits have been paid to the minor grandchildren. The mother of said children, as their natural tutrix, filed this suit for benefits for her said minor children. The lower court awarded compensation, on their behalf, in the sum of $13.09 per week from April 3, 1951, until December 29, 1953, and in the sum of $24.06 per week from December 29, 1953, until a total of 300 weeks have elapsed from April 3, 1951, or until either of. the children, Mary Louise Wyeth or Royce Wyeth, or -both of them, reach the age of 18 years, or until either or both of the said children .die, whichever comes first, and for legal interest on each past-due installment from date of judicial .demand until paid, and for all costs. The defendant has filed this appeal.

The facts show that, at the time of death, decedent was earning a weekly wage of $52.03. As stated above, it is admitted that his death resulted from the injuries sustained while working for the defendant company. At the time of his death, the petitioner and her two minor children were living in the same house with the decedent. Two weeks after her father’s death, the petitioner married a Mr. Darce and shortly thereafter she moved out of the Johnson residence to live with her husband. About six months later, petitioner took her children from her mother’s home and since that time the children have been living with Mr. and Mrs. Darce and entirely supported by them. At the time of Johnson’s death, and for many months prior thereto, the petitioner had been working as a clerk for the Finke Stores and earned approximately $24 a week.

The issues submitted to the Court for decision are:

(1) Were these minor children either totally or partially dependent upon their deceased grandfather at the time .of his death under the intent and expressed .pro-i visions of the Workmen’s Compensation Act?

(2) If the said minors are held to have been either totally or partially dependent upon the deceased grandfather, what would he the weekly rate of compensation, if any, to which they would be entitled?

(.3) Does LSA-R.S. 23:1233, which provides “Compensation payments to dependents shall also terminate when the condition of dependency ceases, except in the case of a widow or child” apply under the facts of this case?

Several witnesses testified as to the total dependency of the said grandchildren on their grandfather for support. The only evidence to the contrary was to the effect that the children’s mother was gainfully employed at a salary of about $24 per week, and the fact that the mother had claimed the children 'as her dependents for the purposes of income taxes. The record shows that the deceased also claimed the children as dependents for income tax purposes. We feel that, as did the lower court, the petitioner has proved the total dependency of the said children on their grandfather. The evidence shows that they lived' in his home and received their sole support from him for several years prior to his death. Malone, in his work entitled Louisiana Workmen’s Compensation Law and Practice, Chapter 14, Section 306, at page 411, says:

“Second, in all cases (except where the .dependency of the wife and child is conclusively presumed) the claimant must prove dependency by establishing both a ■ need for support and also the fact that contributions to his support were actually made by the deceased during the latter’s lifetime. Thus, under the present law, neither need for support nor the existence of a moral or legal obligation to support is sufficient proof of dependency if there is no, showing that the deceased in fact contributed to the claimant’s support. This requirement is not restricted merely to the claims of .parents, brothers and. sisters, and ‘other dependents.’ It applies also to the widow and children where they have failed to qualify for the conclusive presumption of dependency, because they were not ‘living with’ the deceased.”

The mere fact ■ that the mother of the children, who was under a moral and legal obligation to support the children, was gainfully employed would not change the children’s status as dependents of the deceased at the time of his death. Although the mother could have helped support her offspring, the evidence shows that she spent her' earnings on herself, and only gave her children presents at Christmas time. The evidence shows that the grandfather desired to support the minors, and we feel that, under the provisions of the Workmen’s Compensation Act, they were totally dependent • upon their grandfather for support.

We feel further, as did the lower court, that the “condition of dependency” of the minors has not changed since the' death of their grandfather. LSA-R.S. 23:1233 provides as follows:

“The marriage or death of a dependent shall terminate payments to him, but shall not affect payments allowed other dependents. ' If the widower becomes capable of self-support, compensation shall cease as to him. Compensation payments to dependents shall also terminate when the condition of dependency ceases, except in the case of a widow or child. When any minor dependent who is not mentally or physically 'incapable' of wage earning, shall becopie .eighteen years of age, payment of the proportion of compensation due him shall cease.”

.Defendant claims that1 the “condition of dependency” of said minors. has ceased because their mother has remarried and they are now living with; their stepfather, and, secondly, because they are no longer living in their grandfather’s home. As to defendant’s first contention, we do not feel that the remarriage of their mother would have any effect on the condition of dependency. Certainly the stepfather is not legally bound to provide for the children. Furthermore, during the pendency of this suit, someone had to care for the children. As to the second contention of defendant, we feel that it has no merit. Both the grandfather and grandmother of the children are now dead, and it cannot be expected that the children remain in the house. It is our opinion, that the factual situation in this case is not such as to effect a change in the condition of dependency within the intention of the Compensation Law.

Probably the most disputed point brought before this Court is as to the relationship of the children to the deceased. The lower court erroneously held the minors to be regarded as children of the deceased for the purposes of the Act. On this score, the lower court said: “ * * * the legislature intended that the word ‘child’ in [LSAjR.S. 23:1232 would also include the dependent ‘grandchild.’ ” Now LSA-R.S. 23:1021(3), which gives the definitions of terms used in the Compensation Act, provides :

“(3) ‘Child’ or ‘Children’ covers only legitimate children, stepchildren, posthumous children, adopted children, and illegitimate children acknowledged under the provisions of Civil Code Articles 203, 204, and 205.” (Italics ours.)

Certainly had the Legislature meant to include a grandchild they would have done so, otherwise they would not have included adopted children in the definition as the law of this state has long considered an adopted child as a legitimate child. By omitting the term “grandchild” from the provisions of subsection (3), it was certainly the intention of the Legislature to draw a distinction between a child and a grandchild for the purposes of the act. We, therefore, feel that the minors involved must be considered as “other dependents” in accordance with the terms-of LSA-R.S. 23 :- 1232, which provides:

“Payment to dependents shall be computed and divided among them on the following basis:
“(1) If the widow or widower alone, thirty-two and one-half per centum of wages.
“(2) If the widow or widower and one child, forty-six and one-quarter per centum of wages.
“(3) If the widow or widower and two or more children, sixty-five per-centum of wages.
“(4) If one child alone, thirty-two and one-half per centum of wages of deceased.-
“(5) If two children, forty-six and one-quarter per centum of wages.
“(6) If three or more children, sixty-five per centum of wages.
“(7) If there are neither widow, widower, nor child, then to the father or mother, thirty-two and one-half per centum of wages of the deceased. If there are both father and mother, sixty-five per centum of wages.
“(8) If there are neither widow, widower, nor child, nor dependent parent entitled to compensation, then to one brother or sister, thirty-two and one-half per centum of wages with eleven per centum additional for each brother or sister in excess of one. If other dependents than those enumerated, thirty-two and one-half per cen-tum of wages for one, and eleven per centum additional for each such dependent in excess of one, subject to a maximum of sixty-five per centum of wages for all, regardless of the number of dependents.” (Italics ours.)

Now it is clear that the grandchildren would be entitled to compensation solely as “other dependents” as provided in Subsection (8) quoted above. Under the said section they would be entitled to thirty-two and one-half percentum plus eleven percent of decedent’s wages, as there were two dependent grandchildren. However, the defendant claims that, as the widow of deceased survived him, she being a privileged dependent would cut off any benefits which would be coming to the grandchildren. Prior to 1953, the jurisprudence interpreting priorities as among claimants of different priority was confused. However in Caddo Contracting Co. v. Johnson, 222 La. 796, 64 So.2d 177, 180, the Supreme Court held that, where there were total dependents of varying priority, they were all entitled to compensation so long as the total compensation did not exceed 65% of deceased’s wages, or the maximum of $30 per week. If, however, the amount available for. compensation benefits is not sufficient to satisfy in full the claims of all wholly dependent persons whose claims are subordinated by the Act, then the subordinate dependents must suffer.

In the Caddo case-, the Court said:

“True, as plaintiff points out, subdivisions (7) and (8). of the schedule commence with the language ‘If there are neither widow, widower, nor child’. But such language, obviously, is not used in the sense of making the awards to subordinates contingent on the nonexistence of all listed preferred dependents. The awards stipulated for the inferior, classes range as high as 65% of the wages, and the mentioned language undoubtedly is employed with the view of permitting that entire maximum to be paid where or when or in the event there is no superior beneficiary to take a part of it. An inferior class, in other words, may recover the full allotment if or when to do so would not infringe on benefits stipulated for preferred claimants.
******
“By Act No. 85 of 1926 the Legislature set up the statute substantially as it presently exists. While continuing the establishment of classes by preference, it returned to and adopted those provisions of the initial legislation to the effect that the benefits should be ‘divided’, among the .dependents. This, as before shown, indicates that the entire maximum should be paid whenever, .there are sufficient total dependents in the several classes- entitled to it. If such were not the intention of the Legislature it, at that time, could have so stated easily, simply, .and clearly.”

Upon the death of Johnson his widow became entitled to compensation benefits at the rate of 32%% of his wages, or the maximum 'of $30. As his wages, at the time of death, were $52.03 per week, his widow was entitled to $16.91 per week for a period of 300 weeks. The two dependent grandchildren were entitled to the residue up to 43%% of the weekly wages. 43%% of the -weekly wages amounts to $22.63. As same would bring the total above the $30 maximum allowed by law, the grandchildren would be entitled to the difference between $16.91 and $30, or the sum of $13.09 per week for the period between the death of Johnson until the death of his widow. For the period subsequent to the widow’s death, the grandchildren would divide, their full allotment of $22.63 per week.

As to interest allowed in the judgment, we feel that same should run from date of judicial demand. Grandchildren are not conclusively presumed to be dependents under the Act. Their dependency must be proved. Furthermore, the record shows that the petitioner did not qualify as natural tutrix of her children until a few days prior to the filing of this suit. ■

For the reasons assigned, the judgment of the lower court is amended so as to allow the grandchildren compensation benefits at the rate of $13.09 per week from April 3, 1951, until December 29, 1953, and in the sum of $22.63 per week from December 29, 1953, until a total of 300 weeks have elapsed from April 3, 1951, or until either of the children, Mary Louise Wyeth or Royce Wyeth, or both of them, reach the age of 18 years, or until either or both of the said children die, whichever comes first, or until the condition of dependency of either or both of said children' shall cease, whichever shall come first, and for legal interest on each past-due payment from date of judicial demand until paid, and for all costs, and, as amended, the judgment of the lower court is affirmed.

Judgment amended and as amended affirmed.


author: ' LOTTINGER, Judge.

text:
    Maxie GIROUARD v. HOUSTON FIRE & CASUALTY INS. CO.
    No. 4114.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 23, 1956.
    Rehearing Denied March 20, 1956.
    Bienvenu & Culver, New Orleans, Davidson, Meaux, Onebane & Nehrbass, Lafayette, for appellant.
    McBride & Brewster, Lafayette, for ap-pellee.
   ' LOTTINGER, Judge.

This is a suit for damages for persona! and property damages resulting from a motor vehicle accident. Suit is against the liability insurer of Dewey Miller, d/b/a Dewey Miller Contracting Company. Trial was before a jury, and judgment was awarded petitioner in the sum of $19,390. Defendant has appealed.

The injuries and damages resulted when a vehicle insured by. defendant ran into the rear- of petitioner’s tractor and trailer. The facts, which are admitted, show that on the morning of August. 17, 1953, petitioner was driving his tractor on U. S. Highway 90 just east of Broussard, Louisiana. The tractor was towing a trailer with a cow in it. As petitioner was rounding a curve in the highway, a truck, operated by defendant’s assured, ran into the rear of the tractor and trailer, breaking the tractor in two, knocking petitioner to the floor, and twisting the steering wheel into his stomach so that he was pinned to the large back wheel of the tractor. As the tractor rolled to a stop, the knobs on the wheel ground into petitioner’s back. Petitioner was pinned between the rear wheel of the tractor and the steering wheel and was groaning and hollering with pain. It took some time for witnesses to release petitioner. A priest came by and administered the last rites of the Church to petitioner.

Petitioner was taken, by ambulance, to Our Lady of Lourdes Hospital. His back was cleaned, and he was bandaged from his left shoulder to his right hip. He was then taken to a room and laid in bed. Every two hours, for five or six days, he was •given sedatives that helped, but did not wholly relieve the pain. For four or five ■days he lay flat on his back, motionless except for his head. He was fed intravenously, tubes were inserted to relieve his bladder, and tubes were inserted to relieve gas pains.

After leaving the hospital, petitioner went home and remained in bed for a couple of days. He was then able to get about with the aid of a cane or a member of his family. His first trip out was to attend a meeting of the School Board, but it was necessary for his daughter to help him up •the steps. He was driven to see the doctor •every three or four days to have his band•ages changed because “they stank so much.” After about three months petitioner was able to drive his car and get about without •a cane. Petitioner still complains of constant pain in the lower part of his back and claims that he cannot stoop like he used to do. If he tries to lift anything, he complains of great pain in his back. Changes •in the weather affect and pain him.

The facts show that petitioner was a •very active man prior to the accident. He ran a farm and dairy, as well as a grocery ■store. He liked to hunt. He was a member of several civic organizations, and was .a leading civic activity resident of Brous-sard. He was a Captain in the Volunteer .Fire Department, was head of the Church Fair, and was a member of the Lafayette Parish School Board. Since the accident 'he has been forced to practically retire from his community activities.

The defendant admitted liability for the ■damages'and injuries caused petitioner as a result of the accident. The liability limits under the insurance policy was $50,000-$100,000 for bodily injury aifd $25,000 for property damage.

The jury awarded a verdict in favor of petitioner and awarded damages in the sum of $19,390. The defendant has taken an ■appeal.

The first doctor to treat petitioner after the accident was Dr. Donald B. Williams, a surgeon of Lafayette, Louisiana. He testified that on August 17, 1953, the petitioner was in mild shock, and showed considerable tenderness over the left chest and lower abdomen, with severe contusions and abrasions of the entire posterior chest. The skin had been torn from a large area, and petitioner had a fracture of the ninth left rib. For a period of 72 hours the patient had a considerable ileus, which was explained as being “a condition in which the intestines are not doing or carrying on their normal functions, in which gas fluids collect in the intestines.” For three or four days tubes were inserted to relieve this condition, and petitioner was fed by infusion and given sedation for pain. Dr. Wil.liams further testified that the petitioner developed a mass in the anterior abdominal wall which he could diagnose only as hemorrhage, probably caused by pressure that caved in the forward part of the abdomen to the pelvis. The mass was about half the size of a fist. Later in his testimony, Dr. Williams testified that X-rays showed fracture of the eighth and ninth, left rib.

Dr. Williams stated that petitioner further complained of “pain in the low back, especially on the right side” and he was “placed on a rigid bed which is one of the methods we. use for treating acute back pain when he was still in the hospital.”

After his discharge from the hospital, Dr. Williams saw the petitioner nine times through January 18, 1954. Dr. Williams’ final diagnosis was as follows:

“Anteriorly, the compressing force struck the right lower quadrant of his abdomen causing hemorrhage into the anterior abdominal wall and probably retroperitoneal and intraperitoneal hemorrhage. Posteriorly, the compressing force at the upper margin of the right sacro ilial joint where the patient now complains of pain. It is probable that there was tearing and hemorrhage around the many ligaments and fascial attachments in this area. The patient complained of pain in this area from the start, even though he had very painful injuries to the abdomen and posterior chest which seemed more severe at the time.
“The pain and disability the patient complains of is a compatible residual of the type of injury he sustained. This-may or may not improve with the . passage of time.”

At the suggestion of Dr. Williams, the petitioner consulted Dr. Meuleman, an orthopedic surgeon of Lafayette, on September 28, 1953, and subsequently in October, 1953, January, 1954, and March, 1955. From his examinations and X-rays, Dr. Meuleman could find no objective evidence to substantiate the patient’s complaints. He admitted, however, that “torn ligaments or muscles or things like that wouldn’t be viewed on X-rays.” Dr. Meuleman felt that petitioner had received “a pretty good beating up” and that there had been hemorrhage of the muscles from which scar tissues might result. He stated that there remained no objective symptoms, but that petitioner’s complaints had been' consistent and that pain was subjective. Dr. Meule-man testified that petitioner’s chief complaint was pain in the lower back, and that he did have a limp on the right leg.

The patient was also examined, by Dr. Wickstrom, the orthopedist in charge of Charity Hospital in New Orleans, and Chairman of the Department of Orthopedic Surgery of Tulane University. Dr. Wick-strom examined petitioner twice, first on October 17, 1953, and later in May, 1955.

Dr. Wickstrom’s opinion of the first examination was as follows:

“I felt, after the first examination, I felt that this man, of course it was very recent, about six or eight weeks after the injury, I gave a guarded prognosis. I stated that the patient had received abrasions of the back, contusions of the abdomen and chest with a fracture of the rib cage on the left and a fracture of transverse process of the fifth lumbar vertebra on the right. At that time the patient — I felt that the patient should abstain from lifting and was unable to perform any type of heavy work. I felt that he would be greatly benefited by the use of a wide lumbo sacral support to protect motion in the lumbar area. Eventual prognosis was quite good and I could not feel that this patient would have residual damage as a result of this accident. That was in October of 1953.”

After his examination of May, 1955, Dr. Wickstrom was of the opinion as follows:

“I was of the opinion, that he had some residual disability which I didn’t expect at the time of the first examination. I felt at the time of the second examination that he had a marked decline or deterioration of the body mechanism, whatever you want to. call it, the general body mechanics, slouching, stated that the slouch was because he hurt; he felt better bent forward a little bit.' I felt that he had certain findings which explained his complaints of pain; one was consistent poor posture; second, he constantly localized the pain over the area that he had before and had some persistent muscle spasm.
“Now taking the muscle spasm you could feel a tension in the muscles when the patient would shift his weight on the feet. That was not constant; it would occur and then re-occur. I felt that the history that he was in pain when it was aggravated by forward bending was legitimate, as I had found that at the time of our first ex-animation. I felt that he should definitely have a lumbo sacral support. I would like to take him and put him on a series of postural exercises. I would say that his disability would amount to about 20 percent of the body as a whole, based on the fact that I felt that he was not able to do lifting; although he was able to bend, he had some motion not quite up to normal, about 75 percent of normal, I would say, of limitation of motion on bending to the left and a pretty good history, made good sense. He said that when- he had this back pain, if he would lay down and lift his legs up on a pillow, it felt better and so forth; the pain was aggravated when he stood all day in the store; that night it would hurt. If he’d take a break during the day, get off his feet, it didn’t hurt as much. I estimated that it was worth about — I mean for the fatigue and disability and lifting —I estimated that at about 20 percent disability of the back.”

Dr. Wickstrom testified that the 20 percent disability would be of the body as a whole. He also felt a large mass which “felt like a big blood clot deep in the tissues,” on his second examination which was two months and two days after the accident. Dr. Wickstrom further testified that he “felt definitely that he had damage to his right erector spina group of muscles; that is the group of muscles that runs up the side of the spine that holds you erect.” He further testified that damage to the nerve or muscle ligaments would not show on X-ray unless there was calcium formation in the scar. He concluded that petitioner could expect discomfort on heavy lifting or prolonged forward bending.

Dr. Goodall, a neurosurgeon of Houston, Texas, examined petition on August 14, 1954, and May 28, 1955. The only objective symptoms he found was “an area of numbness along the right, or outer aspect of the right leg or foot.” He testified as follows:

“He was hit, and the same thing occurs as when you shake a buggy whip, you get a whip-lash type of injury. Whenever you get an injury of that type and you find that the neurological examination does not show gross paral-1 ysis, you know that changes must have taken place in the nervous system because of the hemorrhage into the nerves or into the brain which causes unconsciousness. The body lays down scar tissues in the nervous system.”

He stated that scar tissue would cause pain, and that from the history and his examination, the patient had sustained injuries to the ligaments in the area of the right sacro-iliac joint. He concluded that the “pain was of a permanent nature due to the instrinsic changes in the nerves, muscles and ligaments rather than to a disc involvement that would involve surgery.” Dr. Goodall felt that petitioner’s conditions would gradually increase as time goes on because “as we get older and have scar tissues forming in the nervous system, we also have constant changes due to age. You begin to get a little hardening of the blood vessels. The blood supply to the nerves is not as great at the age of 50 as it is at 25, and, of course, as years go on the changes will progress more. You may get calcium deposits, arthritic changes.”

The above medical evidence is overwhelmingly to the effect that petitioner did receive serious and painful injuries to his lower back, as well as other injuries. His present pain and' disability is due either to a permanent injury to the muscles and ligaments or to an irritation of the nerves by an internal scar resulting from the accident, and that there is some permanent disability. The medical evidence shows that the pain and disability will probably increase with the passage of time, and the lay testimony shows that petitioner was not a malingerer, but a hard working and civic minded man. In the face of such testimony we are certainly unable to find any obvious error on the part of the jury.

While we are unable to determine exactly how the jury reached an award of damages in the amount of $19,390, the record shows that there were damages to petitioner’s tractor and trailer in the amount of $1,182.00 and medical expenses of $595.50. It further shows that he was required to employ additional employees at a cost of $306, and that there was some loss of business income, and minor damages to clothing which petitioner was wearing at the time of the accident.

In Burnett v. Yellow Cab Co. of Shreveport, La.App., 50 So.2d 670, 676, decided in 1951, a 55 year old mail carrier and part-time carpenter was injured through negligence of the driver of a cab. The court said:

“The medical testimony as a whole established that plaintiff received a serious injury, including the compression fracture of the twelfth dorsal vertebra, together with an undetermined amount of damage to the nerves and other tissues in the immediate area. The preponderance of the testimony is that his condition will improve, although it is not established that his recovery will ever be complete. * * *
“The jury was justified under the evidence in concluding that plaintiff was, at the time of the trial, disabled from carrying on his occupation as a mail carrier or from dping heavy carpentry work, either as a result of the injury itself or as an outgrowth of the treatment, that followed. The testimony does not establish the duration of this condition and the completeness and extent of the potential recovery.”

In the Burnett case the Court reduced the verdict from $25,000 to $20,000 plus $310 as medical expenses. It was found that the petitioner was, at the time of the trial, disabled from carrying on his occupation as a mail carrier or from doing heavy carpentry work.

In Reeves v. State, La.App., 80 So.2d 206, 214, the appellate court increased the judgment from $15,457 to $20,457 for a severe compression or crushing of the eleventh dorsal vertebra, commonly referred to as a “broken back.” In that case it was shown that, one year after the injury, petitioner was unable to do hard physical labor and activities such as lifting, stooping, repeated bending over to pick up objects, etc. The Court concluded:

“No other conclusion could be reached other than that plaintiff is disabled for life and that he will experience and suffer pain and discomfort hereafter, with the possibility of an increase in the difficulty and suffering; and that he will never be able to do any work or engage in any undertaking or recreation which requires strenuous exercise, such as stooping, bending or lifting.”

Although we are unable to determine whether the injuries in the present case are as serious as the injuries .sustained by petitioner in the Reeves case, certainly the result of the injuries to petitioner in each of the cases are strikingly similar.

Defendant cites the cases of Hogg v. Department of Highways, La.App., 80 So.2d 182, wherein the award of $4,233.90 was-made, and Miller v. Derusa, La.App., 77 So.2d 748, wherein the award was $8,000. In the Hogg case, the petitioner’s injuries consisted of a fractured cervical vertebra, concussion, injuries to the knee, and slight impairment of motion in the neck with some-discomfort. In the Miller case, the petitioner suffered a skull fracture, a speech impediment, and was unable to work. In the-Miller case, the record discloses that the-evidence was in hopeless conflict, and there is no indication as to the intensity of the pain and suffering of petitioner, nor of any permanent disability. There is also no-indication of the pain and suffering, or disability, in the Hogg case.

Under the circumstances of the present: case, we are unable to determine that the-award, by the jury was either insufficient, or excessive, and the judgment below will be affirmed. '

For the reasons hereinabove assigned, the judgment of the Lower Court is affirmed, all costs to be paid by defendant-

judgment affirmed.


text:
    L. B. EVANS v. LOUISIANA STATE BOARD OF EDUCATION.
    No. 4132.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Rehearing Denied March 20, 1956.

      Fred S. LeBlanc, Atty. Gen., W. D. Atkins, Asst. Atty. Gen., for appellant.
    Lecompe, Hall & Coltharp, DeRidder, for appellee.
   LOTTINGER, Judge.

This is a suit in workmen’s compensation by L. B. Evans against the Louisiana State Board of Education. The Lower Court awarded judgment in favor of petitioner, and against defendant, at the rate of $9.75 per week, beginning March 4, 1954, for a period of 150 weeks, and for the sum of $315 as medical expenses. The defendant has filed this appeal.

The petition alleges that petitioner received injuries while employed as a teacher for the Louisiana State Board of Education and, as a result of said injuries lost portions of the third, fourth and fifth fingers of his left hand; that, at the time of the accident, he was teaching at the Sowela Vocational-Technical Training School at Lake Charles, Louisiana, at a rate of $3 per hour, or a daily average of $9; and, furthermore that he has incurred medical expenses in an amount not exceeding $1,-000; and further asks for attorney fees of 20% of the award. Petitioner claims total permanent loss of his left hand, in the alternative, permanent partial loss of his left hand, and, in the further alternative for judgment in the sum of $30 per week for 60 weeks.

Defendant filed exceptions of jurisdiction and of no cause of action, which were bot-h overruled. Defendant then filed answer and call in warranty, wherein Maryland Casualty Company was called in warranty. The call in warranty was dismissed on exceptions of the insurance company, and this question has not been raised on appeal. The Lower Court awarded judgment as mentioned above, and the defendant has filed this appeal.

The evidence shows that petitioner was an employee of defendant, and that he ac-cidently injured his left hand on March 4, 1954, while working, as a teacher, at the Sowela Vocational Technical School. He taught from 6:00 o'clock p. m. until 9:00 o’clock p. m. two nights a week, at a wage of $3 per hour, or a rate of $9 per day.

The facts show that on March 4, 1954, the regular class met at 6:00 o’clock p. m. As there was a school play at Ragley High School, the students were released to attend the play, and it appears that they were to return to class after the play was over. One student, Kenneth Earl Cole, elected to remain in the shop and work on his class project which was a table. When the accident occurred, petitioner was assisting Cole in making the table, when his hand slipped and engaged the blade of a power saw. The accident resulted in the amputation of less than two phalanges of the middle finger, two phalanges of the ring finger, and less than two phalanges of the little finger of the left hand. The evidence discloses that, after the accident, petitioner continued in the course of his employment as a full time, vocational educational instructor for the Beauregard Parish School Board, without any loss of time or compensation, and, in addition, that he continued as part-time vocational instructor for the Louisiana State Board of Education without any loss of time or compensation until his contract terminated in April, 1954.

Petitioner’s petition was excepted to by defendant on the grounds that the Lower Court lacked jurisdiction ratione personae, and, alternatively, ratione materiae, and again alternatively that the petition set forth no cause or right of action. The grounds of said exceptions are as follows:

(1) That the State (and any of its boards which go to make up its component parts) is inherently immune to liability for tort, and
■ (2) The Legislature is without power to waive that immunity, and
(3) The Legislature has not attempted to waive that immunity in this particular case, and
(4) That, even if it has, any such attempt is unconstitutional, because of the limitations placed upon the Legislature by the Constitution.

The first contention of defendant, in effect, is that a suit against the State Board of Education is a suit against the State, and that a suit against the state can be brought only in the District Court of East Baton Rouge Parish. The trial Court held that a suit against the State Board of Education is not a suit against the State of Louisiana. In LSA-R.S. 17:2, the Louisiana Legislature has provided:

“The board shall be a body politic and corporate by the name and style of Louisiana State Board of Education and shall be domiciled in the City of Baton Rouge, Parish of East Baton Rouge. 'The board may sue and defend ’suits in all matters relating to the public schools except cases within the jurisdiction of the parish school boards.”

The Louisiana Supreme Court has recognized and upheld the corporate status of the State Board of Education. In State ex rel. Porterie v. State Board of Education, 190 La. 565, 182 So. 676, the State of Louisiana filed suit against the Board of Education seeking to injoin it from issuing and selling certain bonds authorized by the Legislature, under the theory that the said bonds would be obligations of the State and would be contrary to the constitutional provision prohibiting the Legislature from authorizing the contracting of any debt on behalf of the State. The Act authorized the issuance of the bonds as obligations of the’Board of Education, and not of the State. The Court held, in effect, that the State Board of Education was separate from the State, and obligations of the State Board of Education were obligations of that Board, and not of the State. Certainly, from the above decision of the Supreme Court, the State Board of Education must be a separate entity from the State if it can be sued by the State, and, furthermore, it must be separate if its obligations are not obligations of the State.

As the Board is separate and distinct from the State, the constitutional provision, Section 35 of Article 3 of the Constitution of 1921, LSA, requiring all suits against the State to be filed in the District Court of East Baton Rouge Parish, would not apply to suits against the State Board of Education. Section 1312 of Title 23 of the LSA-Revised Statutes of 1950 provides, in part, as follows:

“Suits against the State shall be instituted in the District Court for the Parish of East Baton Rouge, and any suit against a public board, commission, or agency of the State by an employee entitled to bring suit under the provisions' of this Chapter may be instituted in the district court either of the domicile of such public board, commission, or agency, or of the domicile of the employee as it existed at the time of the accident or injury on which the suit is based.”

Now, certainly, the petition alleges and the evidence shows that petitioner was an employee of the Board of Education and was a resident of the Parish of Beauregard at the time of the accident. The constitutionality of the above quoted statute was upheld by the Court of Appeal, Second Circuit, in Stepan v. Louisiana State Board of Education, 78 So.2d 18, wherein the same questions as to jurisdiction were raised as in the instant suit. The Court of Appeal denied a rehearing, and the Supreme Court denied a writ of certiorari in the Stepan case.

As to the exceptions filed by defendant, our conclusions are that the State Board of Education is a distinct body corporate from the State, as is provided in LSA-R.S. 17:2, that employees of the State Board of Education come within the provisions of the Workmen’s Compensation Act, as is provided in LSA-R.S. 23.T034, and that said employees may sue the State Board of Education in the District Court of the domicile of the employee at the time of the accident, as is provided in LSA-R.S. 23:1312, and that, under the jurisprudence as set forth in Stepan v. Louisiana State Board of Education, the exceptions filed by defendant were properly dismissed.

As to the merits of the case, we do not believe that there is any question that petitioner’s employment came within the provisions of the Compensation Act. A question was raised by defendant as to whether petitioner was acting within his course of employment with the Board at the time of the accident. True, certain of his students were allowed to go to a school play and they were absent at the time' of the accident. However, student Cole was present at the time of the accident and was working on his class project. The petitioner was assisting and instructing this student at the time of the accident, and we feel that the petitioner was acting within his course of employment at the time of the accident.

The paramount question to be decided is what amount, if any, of compensation is to be allowed the petitioner. Dr. Beck-om, who treated petitioner, stated that he found petitioner had lost one phalange and a portion of another of the little finger, two complete phalanges of the ring finger, and one and a portion of another of the middle finger, all on the left hand. He testified that petitioner had suffered a 30 to 35% disability of the left hand, and, of course, said disability is permanent. The Lower Court examined petitioner’s left hand and found him unable to grasp a pencil and a pencil cardboard box, 4% inches long, 2 inches wide, and %ths of an inch thick. Petitioner was unable to grip either of those objects, except with his forefinger and thumb, the stumps of the middle finger, ring finger and little finger having insufficient flexation to permit their use in holding or gripping the objects. The Lower Court held petitioner’s disability of the left hand at 32^%, based upon Dr. Beckom’s estimate.

The applicable portions of the Workmen’s Compensation Act are as follows:

LSA-R.S. 23:1221:
“(4) In the following cases the compensation shall be as follows:
* * * * * *
“(c) For the loss of any other finger, or a great toe, sixty-five per cen-tum of wages during twenty weeks.
♦ * * * . * *
“(k) The loss of the first phalanx of the thumb or big toe, or two phalanges of any finger or toe, shall be considered to be equal to the loss of one-half of such member, and the compensation shall be one-half of the amount above specified.
******
“(o) In all cases involving a permanent partial loss of the use or function of the members mentioned here-inabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.
“(p) In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and as in proportion to the compensation here-inabove specifically provided in the cases of specific disability, not to exceed sixty-five per centum of wages during one hundred weeks.”

It is admitted that, insofar as subpara-graphs (c) and (k) are concerned, petitioner is not entitled to compensation for the loss of one and one-half phalanges on the middle and little fingers of the left hand. Defendant argues that petitioner is only entitled to compensation fpr the two phalanges which were removed from the ring finger. The defendant’s position is predicated primarily upon the case of Odom v. Atlantic Oil Producing Co., 162 La. 556, 110 So. 754, wherein the petitioner had lost one phalanx of the index finger, the first phalanx and part of the second phalanx of the second finger, and part of the first phalanx of the third finger. The court held that he could not recover. However, although the Odom case has not been specifically overruled, in Spillers v. Jonesboro Gin Co., La.App., 193 So. 509, 511, the Court said:

“The Odom case was decided in the year 1926, however, and since that time our highest tribunal, as well as the other appellate courts, has been more liberal in the interpretation of the provisions of the Louisiana Employer’s Liability Act; and it is because of this greater liberality that has been lately shown that we dare to disagree with and disregard such decision.”

In the Spillers case, the Court awarded for one-third loss of the hand under the provisions of subsection 1(d) 16 of section 8 of the old act, now subsection (4) (p) quoted above. It is clear that subsections (o) and (p) were inserted into the act by the Legislature to permit the courts to arrive at a reasonable and just compensation when the loss does not fall into the strict categories of the other provisions.

In Breland v. Rainold-Van Denburgh, La.App., 24 So.2d 882, the petitioner lost one and one-fourth phalanx of the index finger and one and one-half phalanx of the long finger. The medical testimony showed that the petitioner suffered a disability of 25% to his hand, and the Court awarded compensation at the rate of 25% of 65% of petitioner’s weekly wages for a period of 150 weeks.

The uncontradicted medical' testimony in the present case shows that petitioner suffered 32^ percent permanent disability to his left hand. Subsection (e) of Section (4) of LSA-R.S. 23:1221 .allows sixty-five per centum of wages during 150 weeks for the loss of a hand. .Under the provisions of said subsection (e) and subsection (o), which is quoted above, we feel that the Lower Court was correct in awarding petitioner compensation at the rate of 32J4 percent of his weekly wages for a period of 150 weeks.

The evidence shows that petitioner worked two nights a week, and that his pay was $9 for each night he worked. Defendant contends that, as- he was only a part time worker, his weekly wage under the act should be computed at $18. Petitioner, on the other hand, contends that his wage must be based upon a six day week, which would make his weekly pay, for purposes of compensation, at $54.

In Jarrell v. Travelers Insurance Co., 218 La. 531, 50 So.2d 22, the injured employee worked only one day a week, at a wage of $3 for the day worked. Despite the fact that he worked only one day a week, the Supreme Court computed his compensation on the basis of a six day week, and allowed compensation on the basis of an $1'8 weekly wage. The Jarrell decision was followed with approval in Moore v. Aysen, La.App., 69 So.2d 551 and Martin v. Great American Indemnity Company, La.App., 75 So.2d 415, 420. In the Martin case, this Court said:

“The regular work week of the plaintiff, according to the contract of hire, was 5 days per week, or 40 hours per week, and time and a half for all time worked in excess of that number of hours, but there was no specific agreement to this effect between the plaintiff and his employer. It is our opinion that it did not make any difference; the compensation law provides that an injured employee’s compensation shall be 65% of his average weekly wages. The jurisprudence is that an injured employee’s compensation is computed on a six day per week basis even though the contract of hiring is for a less number of days. * * *
“Since the case of Jarrell v. Travelers Insurance Company, supra, the courts have held that an employee’s compensation for disability benefits has to be computed on six days per week irrespective of a specific contract of hiring for a less number of days in a work week, and it makes no difference whether he works one day, five days or less.”

Considering the jurisprudence we, therefore, feel that the Lower Court was correct in awarding compensation based upon a six day work week. As petitioner earned the sum of $9 every day he worked, his weekly wage, for the purposes of compensation was $54. The Lower Court held the disability to petitioner’s hand at 32[4%, and awarded compensation at the rate of 321/£% of $30, as $30 is the maximum amount of compensation allowed under the Act. We feel that the Lower Court misconstrued the law in computing the percentage of compensation.

The act provides for weekly compensation at the rate of 65% of the weekly wage of the injured employee, with a maximum payment of $30 per week. Subsection (o) of the Act, as quoted above, says that for “ * * * permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, * * We feel that the Lower Court should have awarded compensation at the rate of 32[4% of 65% of $54, or the sum of $11.40. Falgoust v. Maryland Casualty Company, La.App., 22 So.2d 312, Storm v. Johnson, La.App., 23 So.2d 639, Breland v. Rainold Van Denburgh, La.App., 24 So.2d 882, and Hebert v. Gates, La.App., 50 So.2d 859. However, the petitioner has failed to file an appeal or answer the appeal filed by defendant, and, therefore, we are powerless to increase the amount of award allowed below.

As petitioner has shown medical expenses in the sum of $315, we feel that the Lower Court was correct in awarding his said medical expenses.

Defendant claims that the Lower Court was wrong in allowing interest at the rate of 5% per annum on each past due installment from its due date until paid. In Reeves v. State, La.App., 80 So.2d 206, the Court held that the judgment against the state should include interest. It has, furthermore, been repeatedly held that interest on compensation claims should be computed from the due date of each payment until paid. Deshotels v. Highway Ins. Underwriters, La.App., 40 So.2d 750.

For the reasons hereinabove assigned, the judgment of the Lower Court will be affirmed.

Affirmed.


text:
    Jewel CLEMENTS v. LIBERTY MUTUAL INSURANCE COMPANY.
    No. 4129.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Rehearing Denied March 20, 1956.
    Bass & Nichols, Lake Charles, for appellant.
    King Anderson & Swift, Lake Charles, for appellee.
   LOTTINGER, Judge.

This is a workmen’s compensation suit arising out of accidental injuries received by the plaintiff on October 22, 1951, at which time the plaintiff was working for the defendant’s assured, J. A. Myers, in a stump wood operation. The petition alleges that on said day while performing duties arising out of and within the course and scope of his employment, i. e., while loading stump wood onto a truck, a piece of wood fell upon petitioner’s right hand and thumb which resulted in the amputation of the thumb. It is alleged that in addition to the amputation of the thumb, the plaintiff suffered neuroma and hone spur at the site of the amputation as well as injury to the radial nerve. It is further alleged that in addition to being entitled to benefits for total permanent disability, that the defendant, notwithstanding proper notice and demand, had arbitrarily and without probable cause, failed to pay the compensation benefits due, and is, therefore, liable to a 12% penalty as well as for attorney fees in the amount of $750 under the provisions of LSA-R.S. 22:658.

The answer of the defendant denies that plaintiff sustained injuries to his hand and thumb on the day alleged but avers that compensation benefits' in the amount of $30 per week were paid from October 22, 1951, to about January 15, 1955. It is averred that the plaintiff has, since long before January, 1955, been able to return to work and perform all the duties of his previous employment. Alternatively, it is pleaded that should the court find that plaintiff did sustain injuries on October 22, 1951, and that he was disabled as a result of same, that defendant is entitled to a credit for compensation and medical expenses heretofore paid, the latter amounting to the sum of $474.38. A supplemental and amending answer was subsequently filed which alternatively set forth that if the plaintiff is disabled as the result of the alleged accident, and if the disability is due to the presence of bone spur and/or neuroma at the amputation site, that then and in that event such bone spur and/or neuroma can be removed by a relatively simple operation which would not endanger plaintiff’s life or cause any undue suffering. The amended answer then goes on to specifically tender such operation, to be performed by a doctor of plaintiff’s choosing at defendant’s expense, and alleges that compensation benefits in the amount of $30 per week from January 8, 1955, through the period of plaintiff’s recuperation from the operation, will be paid.

Following trial on the merits in the court below, judgment was rendered in favor of the plaintiff awarding him benefits at the rate of $30 per week beginning October 22, 1951, for and during the period of his permanent partial disability, not to exceed 300 weeks, less the compensation previously paid by defendant at the rate of $30 per week from October 22, 1951, through January 8, 1955. The judgment also ordered the plaintiff, within 60 days after entry of the judgment, to submit to an operation by a doctor of his own choosing, said operation to consist of the removal of bone spur and/or neuroma at the site of the amputation of his right thumb, said operation to be at defendant’s expense and upon plaintiff’s failure to submit to said operation within 60 days from the entry of the judgment, his right to compensation benefits.to cease. Plaintiff’s demand for penalties and attorney fees was denied.

Although we cannot find in the transcript, either in the minutes or otherwise, a motion and order for appeal, we do find at page 146 of the transcript a motion suggesting to the court that a motion for a devolutive appeal had theretofore been granted in behalf of the plaintiff and the devolutive appeal bond fixed at $350. This motion goes on to suggest that the plaintiff had theretofore been granted leave to prosecute the suit in forma pauperis and therefore the order fixing the devolutive appeal bond at $350 is set aside and plaintiff granted leave to prosecute his appeal in forma pauperis. On appeal, the plaintiff assigns as specification of errors on the ■part of the court below, the failure to award him benefits for total permanent disability and the failure to award him penalties and attorney fees. The appeal has been answered by the defendant who alleges that the judgment appealed from is correct except insofar as compensation benefits were allowed. Alternatively, it is set forth that should this court conclude that plaintiff ia entitled to compensation benefits, the judg« ment appealed from should be affirmed.

In their brief filed with this court, the attorneys for the plaintiff vigorously contend that the record shows the latter to be totally and permanently disabled rather than permanently and partially disabled as found by the trial court. The record discloses without question that the plaintiff is presently totally and permanently disabled and entitled to the sum of $30 per week. This fact is made obvious by the testimony of Dr. George B. Briel, an orthopedic specialist who examined the plaintiff in both 1952 and 1955. At the time of his first examination, on June 19, 1952, Dr. Briel found the following:

“This man had an amputation of the right thumb at about the level of the metacarpal phalangeal joint. He had an area of hypoesthesia and anesthesia which suggests destruction of the lateral branch of the radial nerve in the hand. The area of tenderness and the pain up the arm were due to pressure on the end of the branch of the median nerve to the thumb, probably due to a neuroma at the cut end of the nerve.
“Q. Well, assuming that at the time of the accident he was engaged in shooting and loading stumps, which work included drilling holes in the •stumps with a large auger and chopping of stumps with a large axe, a six pound axe, loading heavy pieces of stump wood into a truck and other work of similar nature in the stump wood business, as of the date of your examination on June 19, 1952, what was your opinion as to his ability to do that type of work?
“A. I do not believe he could handle that type of work with only the four fingers because he had no grasp in his hand.”

Testifying with respect to his examination of May 27, 1955, this doctor reached the following conclusion:

“Q. What was your conclusion as of the date of this examination?
“A. I was of the opinion as I had been on the previous examination, that this man still had evidence there of tenderness over the stump and still showed evidence of irritation probably of that spur and of a possible neuroma of the median nerve.
“Q. Was your opinion the same as to his ability to perform his usual type of work?
“A. Yes. I didn’t feel that the man could do any type of work' ivith that hand because in my examination when I tried to force things into his hand at that point, as •soon as you touched the points which I have described as being tender his hand would back off from the object and I do not believe, that he could grasp anything because of the tenderness'-.which was present at that point.” (Italics ours.) •

While it appears that the plaintiff was either examined by or treated, at the defendant’s' requést, by three other doctors, none of these gentlemen were called upon to testify. A review of the lay ■ testimony with regard to plaintiff’s disability would not only be lengthy but .would' add nothing to the case in view of Dr. Briel’s testimony as set out above. ‘ Suffice it to say that we are convinced from both the medical and lay testimony that the plaintiff is presently totally and permanently disabled.

We are likewise convinced, from the medical testimony of Dr. Briel, that the plaintiff should be required to undergo an operation. This doctor stated that he did not think the plaintiff could do any type of work because of the tenderness in his hand and he was of the .opinion that such .tenderness was caused either by the presence of a bone spur or a possible neuroma. He recommended an operation for the removal of the bone spur, as well a-s the neuroma, if the latter existed, and was of the opinion that this would do away with the pain at the site of the amputation. It was his opinion that such an .operation would be a minor one, neither endangering life nor causing serious complications and one which would not subject the plaintiff to extensive pain. In view of this uncontradicted testimony, we have no alternative but to affirm the ordering of the operation. See Leday v. Lake Charles Pipe & Supply Co., La.App., 185 So. 655.

While it is true that Dr. B-riel did state that even if the operation were successful, the plaintiff would experience difficulty in lifting heavy stumps without a thumb, he admitted that there were a number of other common labor jobs that the plaintiff could do if the operation were successful.

There only remains for consideration the question of penalties and attorneys’ fees. Plaintiff attempted to introduce medical reports in connection with his claim for penalties and attorneys’ fees for the limited purpose of showing that defendant had full knowledge of plaintiff’s condition at the time compensation was discontinued, but the Lower Court did not permit the introduction of same. Plaintiff nevertheless attached said reports to a bill of exception and same are now found in the record. We are of the opinion that the Lower Court was in error as said reports were admissible for that limited purpose.

Mr. Howard T. DeVane, Claims Supervisor of the defendant Insurance Company, gave the following testimony with regard to the termination of compensation:

“On December 9, 1954, I received an interoffice memorandum from our field representative in that particular area who had performed what we term activity check on this man.
The Court: What kind of check?
The Witness: Activity check.
—on the man and he reported to me that he had 5ound the man working and that he had statements from fellow employees of this man to the effect that the man was performing his work satisfactorily without complaint. And also from his employer that he was performing his work as a laborer satisfactorily without complaint. That his duties on that particular job consisted of the removing of stumps from a road right of way, using an ax to shop trees on the right of way, and to cut fence staples. Using a shovel to mix concrete and using a post-hole digger and driving a truck. It was my opinion at that time that the duties described by his fellow workers and his employer, along with the fact that they had advised us that he was doing the work without complaint of his hand, constituted similar duties to the work that he was performing when he was injured and he was therefore no longer disabled, so I terminated his compensation.”

While it is true that the company was in error in so doing, we do not think that the company acted arbitrarily or without justification in terminating compensation when it had this information in its possession. The record reflects that the information in the company’s hands was gathered by its co-employees from fellow employees of the plaintiff. The men who gave these statements testified in a very contradictory and unsatisfactory manner during the trial of the case. However, their statements, which were given to the company prior to the termination of the benefits, appeared to substantiate the company’s conclusion that the plaintiff was no longer disabled and we think that it was justified in doing what it did, and should not therefore, be subjected to the payment of penalties and attorney fees.

We find it necessary therefore to revise and amend the judgment appealed from, and for these reasons, it is ordered that the judgment appealed from be amended by allowing plaintiff compensation at the rate of $30 per week during his disability for a period not exceeding 400 weeks, beginning October 22, 1951, with legal interest on all payments past due and unpaid until paid, less the compensation previously paid by defendant at the rate of $30 per week from October 22, 1951 through January 8, 1955; the defendant to pay all costs.

It is further ordered, adjudged and decreed that within a period of 60 days from the date on which this judgment becomes final, the plaintiff is required to submit to an operation on his right thumb, as described herein, by a competent orthopedic surgeon of his own selection. and at the exclusive costs of the defendant, and on his refusal to submit to such an operation within that time and without reasonable, grounds, the compensation awarded hereunder is to cease after the expiration of the said 60 days; provided further that at any time, after the said operation herein ordered, the defendant is given the right to show that by reason thereof, or otherwise, plaintiff’s disability no longer exists and his compensation should cease.

Judgment amended and as amended affirmed.


author: ELLIS, Judge.

text:
    LOUISIANA STATE BOARD OF MEDICAL EXAMINERS v. Marshall N. WIMBERLY.
    No. 4127.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Rehearing Denied March 20, 1956.
    C. W. Berry, Jr., Oakdale,' Irving Ward-Steinman, Alexandria, Jack Crenshaw, Davenport, Iowa, for appellant.
    Bernard N. Marcantel, Jennings, Adams & Reese, New Orleans, Robt. E. LeCorgne, Jr., New Orleans, for appellee, ■
   ELLIS, Judge.

The Louisiana State Board of Medical Examiners sought a preliminary injunction and, after due proceedings had, a permanent injunction, penalties and attorneys fees as provided in LSA-R.S. 37:1286 against Marshall N. Wimberly. The petition seeks to restrain and prohibit him from the practice of medicine in the State of Louisiana until he shall have obtained the necessary certificates.

A rule to show cause why a preliminary injunction should not issue was set for Feb. 28, 1955. On that day the defendant filed answer together with exceptions of vagueness and of no right or cause of action and a plea of unconstitutionality. These pleas were overruled and the matter fixed for trial on April 14, 1955. On the latter date-the case was thoroughly tried and the District Court rendered judgment upon the merits granting a permanent injunction together with penalties and -attorneys fees.

From this judgment the defendant has appealed.

******

The exceptions as well as the attack upon the unconstitutionally of the act upon which the suit was brought have apparently been abandoned, and the appellant has raised here only two issues. The first is leveled at the proposition that the lower court could not legally grant a permanent injunction as the rule was for a preliminary .injunction. He contends that there.must first be a hearing upon the preliminary injunction before a permanent one could be .granted. , .

The second issue is that the evidence is not sufficient to find that the defendant was practicing medicine. .

The pertinent statues are- LSA-R.S. 13:4062 et seq., and their source is Act No. 29 of 1924. ■ Under this Act a similar contention -was made as 'is made here in Lambert v. Lass, La.App., 25 So.2d 913, 916, in which a rehearing as well as writs were denied, and the following is-found:

“His counsel, however, proclaims that the judgment appealed from, * * * is invalid for the reason 'that, where a preliminary injunction has not been formally issued, the court is powerless to grant a permanent injunction. * * *

“We find little substance in this postulation. Act No. 29 of 1924 applies exclusively to the issuance of temporary restraining orders and preliminary writs of injunction. It does not pertain to permanent injunctions which are -final judgments issued after a trial on the merits of the controversy. * * * And, of course, it is not essential for a plaintiff to apply for or obtain either a temporary restraining order or a preliminary injunction in order to be granted a permanent injunction after a full hearing.”

To the same effect, see Borgnemouth Realty Co. v. Gulf Soap Corporation, 211 La. 255, 29 So.2d 841.

In the case at bar, an answer was filed and issue was joined upon the merits, consequently, no judgment could be then rendered until a full hearing was had upon the merits, and the minutes of the court show that the case was fixed for hearing on the merits on April 14, 1955. At this trial the defendant did not introduce any evidence, although he was present, and through his attorneys cross-examined all of plaintiff’s witnesses, therefore, it was correct and the Lower Court was competent to render a definitive judgment upon the merits as prayed for in the petition.

As was said by the Supreme Court in Hankins v. Police Jury, Natchitoches Parish, 152 La. 1000, 95 So. 102, 104:

“ * * * It would not serve any useful purpose to remand the case in order that the preliminary writ should be granted, followed by another trial in which the same witnesses would be heard and the same judgment rendered. * * * ”

Based upon the cited authorities, we are of the opinion that the first contention of the defendant is without merit.

As to the second contention of the defendant that the plaintiff had not proven its case, we likewise find no merit.

The defendant admitted under cross-examination that he was the same person convicted by the lower court in December of 1954 on the criminal charge for the illegal practice of medicine. He described in detail the method of diagnosis and the manner of administering the chiropractic treatment to a certain Mr. Day. His testimony was corroborated by other witnesses for the plaintiff.

The practice of chiropractic has been held to be that of medicine as defined by LSA-R.S. 37:1261-37:1313. See Louisiana State Board of Medical Examiners v. Booth, La.App., 76 So.2d 15, and Louisiana State Board of Medical Examiners v. Fisher, La.App., 76 So.2d 56.

At the time of the trial the defendant was still maintaining his chiropractic office where he had given Day his treatments, and there was a sign in front of his office showing it to be a “Chiropractic Clinic.” He was still visiting his office and was open for business. Upon this testimony, the trial court held a permanent injunction should issue.

Believing a remand of this case to allow a prelimininary injunction to first issue would, as was said in the Hankins case, supra, be a vain and useless thing, and finding no manifest error, the judgment of the District Court is affirmed.