author: HAWTHORNE, Justice.

text:
    232 La. 468
    STATE of Louisiana v. Robert PALMER.
    No. 43227.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rehearing Denied April 1, 1957.

      Milo B. Williams, New Orleans, for appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Malcolm V. O’Hara, First Asst. Dist. Atty., Louis Fenner Claiborne, Asst. Dist. Atty., Adrian G. Duplantier, New Orleans, for appellee.
   HAWTHORNE, Justice.

This is an appeal by Robert Palmer, a Negro, who was charged with the murder of his wife, tried, convicted, and sentenced to death.

Appellant first claims that the trial judge erred in overruling his various motions to quash the indictment. These motions are predicated upon the contentions, first, that there has existed in Orleans Parish since time immemorial a systematic exclusion of Negroes from grand juries, in contravention of constitutional guarantees; and, second, that there were no Negroes on the grand jury which indicted appellant, but that if there were, they were placed on the jury in a systematic or purposeful inclusion of a token number, which is as constitutionally objectionable as exclusion.

In this case there is no dispute as to the law as announced by the Supreme Court of the United States and this court, to the effect that it is a denial of the equal protection of the laws to try a defendant of a particular race or color under an indictment found by a grand jury from which all persons of his race or color have, solely because of that race or color, been systematically excluded; likewise, that a systematic or purposeful inclusion of a token number of persons of a particular race is as constitutionally objectionable as exclusion.

The manner of selecting juries, both grand and petit, in the Parish of Orleans is prescribed by the Code of Criminal Procedure, Articles 191 et seq. Under this law a jury commission composed of four persons shall select at large and impartially from the citizens of the parish having the qualifications requisite to register as voters 750 persons possessing the qualifications of jurors. The names of the persons so selected shall be placed in a jury wheel from which at six-month intervals the commissioners shall draw not less than 75 names which shall constitute the grand jury list or venire.

This grand jury list is submitted to the judge of the Criminal District Court for the Parish of Orleans whose turn it shall happen then to be to empanel the incoming grand jury, and from the names thus submitted the judge shall select 12 persons who shall constitute the grand jury for the Parish of Orleans for the ensuing grand jury term.

The jury commission in selecting the general venire of 750 persons must select persons possessing the qualifications to serve as grand jurors, as prescribed in Article 172 of the Code of Criminal Procedure, that is: They must be citizens of this state, not less than 21 years of age, bona fide residents of the parish in which the court is being held for one year preceding such service, able to read and write the English language, not under interdiction or charged with any offense, or convicted at any time of any felony, and in addition must be persons of well known good character and standing in the community.

It is conceded in the instant case, and the record so shows, that members of the Negro race constitute a large segment of the population of the City of New Orleans, and that a number of them possess the necessary qualifications for jury service. The jury commission for a number of years has made a sincere effort to secure the names of qualified Negroes to place in the jury wheel for service both as grand and as petit jurors. In its efforts to find qualified Negroes for jury duty the jury commission has consulted Negro leaders and had them submit names, and has consulted the city directory, the registration rolls, lists from Negro housing projects, and other means at its disposal. In fact, the record shows that the jury commission has made a special effort to see that Negroes were included in the jury list. As a result of these conscientious efforts on the part of the members of the jury commission, the names of varying numbers of Negroes have for several years been included in the jury wheel.

The record does not give any support to appellant’s contention that the jury commission in selecting the general venire has systematically excluded Negroes because of race or color, or that it has as a. subterfuge systematically limited the number of Negroes whose names are contained), in the general venire list.

In the instant case, in the grand jury list of 100 names submitted to the district judge there were the names of 10 Negroes, and' on the jury of 12 selected by the judge to-compose the grand jury which returned the-indictment in the instant case two Negroes-were selected and served on the grand jury..

Under our law, in the Parish of Orleans the judge selects the entire jury and is charged with the duty of choosing-those who in his judgment are the best qualified to serve as grand jurors, and there-is no showing or proof that the judge deliberately and intentionally limited to two-the number of Negroes so chosen. In fact, the judge in the instant case interviewed a number of Negroes on the grand jury list,, and there is nothing in the record to show that he would not have selected all the Negroes on the list had they possessed' superior qualifications or qualifications on a. par with those of the other 10 persons whom he chose. There is a presumption that the-judge in choosing the instant jury did his. duty according to law. It is well established that in cases such as this the burden-is upon the defendant to establish the discrimination, and there is no evidence which) would even tend to show that the jury commission and the judge practiced either systematic discrimination against Negroes or systematic token inclusion of them.

Appellant also argues that there were no. Negroes on the grand jury which found, the indictment in this case within the definition of the word “Negro”. In other-words, he is attempting to draw a distinction between a person of color and a Negro, The two grand jurors to whom we have-referred as Negroes gave us the benefit of their testimony on the trial of this motion to. quash. Both testified that they had always. considered themselves Negroes, and that others always had so regarded them. Their birth certificates showed their race as colored, and so far as they knew, all of their ancestors considered themselves Negroes.

Appellant would have us say that discrimination exists because appellant is a Negro but these two jurors are members •of the colored race and therefore are not of the same race and class as the accused. This novel effort to show discrimination is completely unrealistic. Appellant in effect is arguing that there exist two or .more classes of Negroes, and that a Negro •of any one of the so-called classes may ■allege that his class has been discriminated ■against in the matter of drawing juries if members of his particular class are excluded from the venire by reason of being members of that particular class of Negroes, even though members of other classes of Negroes have been included in the venire.

The proof here is sufficient that the two jurors whom appellant classes as persons of color were in fact members of the Negro race, the same race and class as the accused.

Appellant next says that the trial judge erred in his refusal to • appoint a lunacy commission for the purpose of inquiring into his sanity. The trial judge correctly answered this contention thus:

“This Bill of Exception was reserved when the Court, after a hearing, denied defendant’s application for a lunacy commission. The application itself states no facts to support the appointment of a commission. As a matter of fact, the only allegation of fact in the application is that ■defendant is an alcoholic and does suffer from ‘alcoholic amnesia’.
“On the hearing, the only evidence offered by defendant was his own testimony. 'This testimony indicates only that defendant •once consulted a psychiatrist while in the Service and was told that ‘he might be an alcoholic’. Also, defendant testified that on occasion when he drank too much he had no recollection of his behavior while under the influence of alcohol.
“As was pointed out by me during the course of the hearing, there is nothing in the record to indicate even the remotest possibility of insanity. Moreover, defendant’s actions and behavior on the stand during the hearing indicated complete sanity rather than insanity. Under these circumstances, I exercised the discretion granted me under the law and refused to appoint a lunacy commission. See State v. Messer, 1940, 194 La. 238, 193 So. 633; State v. McManus, 1937, 187 La. 9, 174 So. 91; State v. Bentl[e]y, 1951, 219 La. 893, 54 So.2d 137.
“Therefore this Bill of Exception is without merit.”

One of the many errors of which appellant also complains occurred during the course of the trial under the following circumstances : After the State had rested its case and the case was with the defense, the accused was called as a witness to testify in his own behalf. During his cross-examination the State proceeded to question him about certain statements he had made to a newspaper man, all over the objection of the attorney for the accused. The accused was asked at this time whether he remembered talking to the newspaper man, which he admitted, and also was asked whether he remembered telling this newspaper man about the killing and whether he remembered telling him what happened the night of the homicide. The objections were overruled, and the accused answered that he remembered the interview with the newspaper man but did not remember making any of the other statements. After the defense had rested its case, the newspaper man was placed on the stand for the purpose of impeachment and to rebut the accused’s testimony that he did not now remember and never had had any recollection of the crime. This witness was permitted to testify, over defense counsel’s objection, as to the statements of which the accused himself had denied any memory. This witness testified that the accused stated to him that he arrived at home in the early hours of the morning- on which the homicide occurred, that he had been drinking a great deal, that he became involved in an argument with his wife and ordered her to leave the apartment, and that she refused to do so; that he did not remember what happened after-wards except that when he came to his senses, he heard some one calling him; that he ran out of the house, appro-ached a taxi driver, gave him the gun, and then fled on foot to Louisiana Avenue and hid under a house.

Although this statement may not be a confession in the strict meaning of that term as used in our Code of Criminal Procedure, it is undoubtedly a statement containing inculpatory facts, as it placed the defendant at the scene of the homicide and showed that he had been drinking, that he had a quarrel with his wife, that he fled from the house with a gun in his hand, and that he ran and hid.

The statement made by this accused which the newspaper man related was objected to by defense counsel, as admitted in the State’s brief filed here, on the principal grounds that it was not covered in the State’s opening statement to the jury, and that it was not shown to have been made freely and voluntarily as a foundation for its admissibility.

It is well settled in the jurisprudence of this state that admissions involving the existence of criminal intent or inculpatory facts are governed by the rules applicable to confessions. State v. Hayes, 162 La. 310, 110 So. 486; State v. Crittenden, 214 La. 81, 36 So.2d 645; State v. Robinson, 215 La. 974, 41 So.2d 848; State v. Clark, 228 La. 899, 84 So.2d 452. It will thus be seen that the statement which the State offered here over the objection of the accused was of such a nature that it could not have-been offered while the case was with the State in chief both without a compliance with the provisions of Article 333 of the Code of Criminal Procedure by reference to it, either specifically or in general terms, in the opening statement of the district attorney explaining the nature of the charge and the evidence by which the State expected to establish the same, and also without the laying of the proper foundation for its admissibility by a showing that it had been freely and voluntarily given pursuant to the provisions of Article 451 of the Code of Criminal Procedure and Article 1, Section 11, of the Louisiana Constitution of 1921.

No contention is made here, nor does the record disclose, that any reference was made to the statement by the district attorney in his opening statement to the jury, or that the foundation was laid for its admissibility as an admission of inculpatory facts. The question then is: Was the statement admissible solely for the purpose of impeaching the testimony of the accused by the State on rebuttal, in spite of the State’s failure to make reference to it in the opening statement and in spite of the failure to lay the proper foundation for its admissibility as an admission of inculpatory facts? We think that the question posed is fully answered by the jurisprudence of this state.

In State v. Hayes, supra, the defendant, as here, took the stand as a witness in his own behalf and gave evidence in conflict with certain statements that he had made before the trial. After the defense had closed its case, the State called to the stand witnesses for the purpose of showing the various statements which the defendant had denied having made. The defense objected on the ground that these statements had not been shown to have been freely and voluntarily made. These statements which were offered by the State were of a highly incriminating nature. This court in reversing the conviction said [162 La. 310, 110 So. 489]:

“However, as we have seen, the statements in this instance were not offered as substantive evidence, but merely as impeaching evidence, and the jury were so instructed by the court. Still, in our view, that makes no difference. The same rule, applicable to the admission of a confession, not voluntarily given, to impeach the evidence of an accused on trial, is, me think, applicable to the admissibility of incriminatory statements, mhen offered for the same purpose. * * *
******
“Since, when a confession is objected to as one not voluntarily made, the state must show that it was so made, before it can be received in evidence, and the defendant must be given an opportunity to offer in rebuttal his evidence, we think the same rule governs the admissibility of incriminatory statements, whether they are offered as substantive or impeaching evidence. * * * (Italics ours.)

The rule announced in the Hayes case, that the proper foundation for the admissibility of admissions of inculpatory facts had to be laid, was approved by this court in the recent case of State v. Clark, supra, in which we quoted at length from the Hayes case.

In State v. Ward, 187 La. 585, 175 So. 69, during the cross-examination of the defendant the State used a confession made by Ward as an attack upon his credibility and to contradict him, although the State had failed to lay the proper predicate in the opening statement for the admissibility of this confession and the defense objected to its admission on that ground. This court in reversing the conviction pointed out that the confession was inadmissible and could not be heard by the jury because the State had failed to lay the proper predicate in the opening statement for its admissibility, and that the State could not indirectly by a process of cross-examination, on the theory of contradiction and an attack on the accused’s credibility as a witness, have the jury hear the contents of such a confession. Moreover, in that case the court pointed out that the State did not lay the foundation for the admission of the confession by showing that it was freely and voluntarily given, and that to say that this confession could be shown by cross-examination of the defendant would, in effect, be saying that the State could dispense with both the requirements of the law that the confession must be mentioned in the opening statement and that the proper foundation must be laid by a showing that it was free and voluntary.

In the instant case the trial court should have sustained defense counsel’s objection to the admission of the inculpatory statement on the grounds that the proper predicate had not been laid for its admissibility by the State in its opening statement to the jury and that it was not shown to have been freely and voluntarily given.

The State cites and relies on the recent case of State v. Sheffield, 232 La.Sup. 53, 93 So.2d 691, and argues that we held there that a confession may be admitted by way of rebuttal to impeach the testimony of a defendant without the establishing of its voluntary character. In that case the record discloses that no contention was made that the statement was not shown to be freely and voluntarily given, and we were not called upon to pass upon this question. Be that as it may, our holding there in no way can be construed as abrogating the rule of law established by the Ward case that a confession cannot be admitted even though used by way of rebuttal and for the purpose of impeachment without the laying of a predicate for its introduction in the opening statement of the district attorney. In the Sheffield case the court was careful to point out that the confession or statement there used had been covered by the opening statement.

For the reasons assigned the verdict and sentence are annulled and set aside, and the case is remanded to the lower court for a new trial.

FOURNET, C. J., absent.

      . The efforts of the jury commission to obtain qualified jurors for the general venire list are fully set out in the opinion of this court rendered this day in the case of State v. Eubanks, 232 La. 289, 94 So.2d 262.


source: Caselaw Access Project

author: SIMON, Justice. HAMITER, Justice PER CURIAM.

license: Public Domain

text:
    232 La. 486
    STATE of Louisiana v. Peter W. MURTES.
    No. 43277.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rehearing Denied April 1, 1957.
    Jack P. F. .Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. St. Clair Favrot, Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., Baton Rouge, for appellant.
    Richard Dowling, New Orleans, for ap-pellee.
   SIMON, Justice.

This is an appeal by the State from a judgment quashing an indictment against the defendant which charged him with having violated LSA-R.S. 48:422, which provides in part as follows: “ * * * no member of the legislature or officer of the executive department of the state shall be in any way interested in any contract for the building or improving of any highway or any other public work coming under the supervision of the Department of Highways or in any contract for the furnishing of any material or supplies of any kind to be used in connection therewith, nor shall any such member or officer receive any gratuity, commission, or payment of any sort as compensation for the procurement of any such contract.”

The Grand Jury of East Baton Rouge Parish returned a bill of indictment in the Nineteenth Judicial District Court against Peter W. Murtes, charging him with being, between November 1, 1952 and January 31, 1955, while a member of the House of Representatives of the Legislature of Louisiana, interested in certain contracts for the furnishing of material and supplies to the Department of Highways of the State of Louisiana to be used in connection with the building and improving of highways or other public works coming under the supervision of the said Department of Highways, the said contracts being for the sale and delivery of certain paints, he, the said Peter W. Murtes, being then and there in the employment of and acting for the Murtes Paint Company on a salary and commission basis.

Before trial of the charge contained in the indictment the accused filed a motion to quash said indictment. After hearing was had thereon the trial judge concluded that the Legislature in enacting the statute failed to define the word “interested” and sustained the motion to quash on the ground that said statute was unconstitutional, being violative of the La.Const.1921, Art. 1, Sec. 10, LSA, which provides that the accused shall be informed of the nature and cause of the accusation against him, and being violative of the 14th Amendment of the Constitution of the United States.

In support of its judgment the trial court relied upon and cited: State v. Rose, 147 La. 243, 84 So. 643; State v. Truby, 211 La. 178, 29 So.2d 758; State v. Kraft, 214 La. 351, 37 So.2d 815; City of Shreveport v. Brewer, 225 La. 93, 72 So.2d 308.

The State reserved a bill of exception and an appeal to us relies thereon for the reversal of the judgment sustaining the motion to quash.

The State contends that the cases of State v. Evans, 214 La. 472, 38 So.2d 140, and State v. Roth, 226 La. 1, 74 So.2d 392 are pertinent to and controlling in the case at bar. In the Evans case, in considering the constitutionality of a statute, we held the words “to prospect” and “mechanical device” to have a well-defined and accepted common-place meaning and to be not of a vague and general nature such as would render the act unconstitutional; in the Roth case, the words “sexually- indecent” were held as having a well-defined meaning as against the contention that they had no fixed meaning.

Thus the State contends that the word “interested” in the instant case is well-defined and has a meaning as well fixed as the disputed words in the Evans and Roth cases in that the word “interested” as used in LSA-R.S. 48:422 is defined, modified, and described to be interested “in any way.”

The word “interested” is defined in Webster’s New International Dictionary, Second Edition, as: “1. Having the attention engaged; having emotion or passion excited; as an interested listener. 2. Having an interest; having a share or concern in some project or affair; involved; liable to be affected or prejudiced; as, an interested witness; having self-interest; not disinterested; as generosity proceeding from interested motives.”

Conceivably the interest contemplated and intended to be prohibited by the statute could be a financial interest, but not an interest based on sentimental or ethical considerations alone. But the statute does not define so the term as used therein. It is further conceivable that interest which is a financial interest, which touches one’s pocket, is apt to prejudice the judgment. Interest which amounts to mere sentiment, good-will, or civic-mindedness may, and perhaps in rare cases does, so color the judgment of some, but the danger in the latter respect is far more remote. Manifestly the statute’s failure to- indicate, determine, or define the interest which it seeks to prohibit is conspicuously fatal.

In the Rose case, supra, the legislative act involved therein was decreed constitutional primarily because the word “lewd” was used in connection with and descriptive of the word dancing. In the Truby case, supra, the legislative act therein involved was declared unconstitutional because of the vagueness of the words “immoral purpose.” In the Vallery case, State v. Vallery, 212 La. 1095, 34 So.2d 329, the legislative act therein involved was de-dared unconstitutional in that the word “immoral” did not have a fixed and definite meaning. In the Kraft case, supra, the act therein was declared unconstitutional because of the vagueness of the word “indecent.” And in the Brewer case, supra, the act therein was declared unconstitutional in that the words “satisfactory explanation” were too broad and general and did not have a definite or fixed meaning.

Hence, it is sufficient to say that a criminal statute, in order to be valid and enforceable, must define the offense so specifically and accurately that any reader having ordinary intelligence will know when or where his conduct is on the one side or the other of the borderline between that which is and that which is not denounced as an offense against the law. La.Const.1921, Art. 1, Sec. 10; State v. Kraft, and City of Shreveport v. Brewer, supra.

This principle of law is recognized in each of the above cited cases and is the well established jurisprudence of this State.

In the case of State v. Truby, supra [211 La. 178, 29 So.2d 765], we said: “It is well settled that the determination or definition of acts which are punishable as crimes is a purely legislative function which cannot be delegated to, or exercised by, the courts. For, as pointed out in United States v. Reese [92 U.S. 214, 23 L.Ed. 563], supra, it would ‘certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.’ ”

Courts can do no more than interpret and construe statutes. They cannot, under the guise of interpretation, assume legislative function. State v. Vallery, supra.

In the instant case the words of the statute “in any way interested” are so broad, general and vague as to fail to define the offense which the statute seeks to prohibit; and moreover it fails to constitutionally inform the purported offender of the action denounced as an offense.

For the reasons assigned LSA-R.S. 48:-422 is hereby declared to be unconstitutional and the judgment of the trial court is accordingly affirmed.

FOURNET, G. J., absent.

HAMITER, J., concurs with written reasons.

HAMITER, Justice

(concurring).

Believing that the declaration of unconstitutionality announced by the majority is intended to affect only that portion of LRS 48:422 which relates to a person who is “in any way interested in any contract”, I concur in the decree affirming the judgment of the trial court.

PER CURIAM.

As the result of an application for rehearing we are aware of a need for a clarification of our decree. Our opinion clearly relates to the unconstitutionality of only that portion of LSA-R.S. 48:422, which prohibits any member of the Legislature or officer of the Executive Department of the State from being “in any way interested in any contract” for the building or improving of any highway or any other public work coming under the supervision of the Department of Highways or in any contract for the furnishing of any material or supplies of any kind to be used in connection therewith.

Accordingly, our decree is recast to read as follows:

For the reasons assigned, LSA-R.S. 48:-422 insofar as it prohibits any member oi the Legislature or officer of the Executive Department of the State from being “in any way interested in any contract” for the building or improving of any highway or any other public work coming under the supervision of the Department of Highways or in any contract for the furnishing of any material or supplies of any kind to be used in connection therewith is hereby decreed to be unconstitutional and the judgment of the trial court is accordingly affirmed.


author: HAMLIN, Justice ad hoc. PER CURIAM.

text:
    232 La. 494
    Eddie ARCENEAUX v. Margaret Stutes ARCENEAUX.
    No. 43290.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rehearing Denied April 1, 1957.
    Joseph A. Gladney, Baton Rouge, for defendant-appellant.
    Cole & Mengis, Baton Rouge, for plaintiff-appellee.
   HAMLIN, Justice ad hoc.

On September 12, 1956, Eddie Arceneaux filed suit against his wife., Margaret Stutes Arceneaux, for a divorce “a vinculo matri-monii”, on the ground of adultery. Mrs. Arceneaux did not file an answer.

A preliminary default taken by the plaintiff was confirmed on October 10, 1956, and judgment granting plaintiff an absolute divorce from his wife was rendered and signed on said date.

Plaintiff alleged in his petition that no children were born of the marriage, and that no community property was acquired; hence, there was no settlement of any community property.

Eddie Arceneaux died on October 14, 1956.

On November 8, 1956, defendant petitioned the court to name the son of the deceased by a previous marriage as a substituted party-plaintiff to the suit, praying that a curator-ad-hoc be appointed to represent him as a minor, and that a suspensive appeal be granted.

The trial court acted in accordance with defendant’s prayer, and the transcript was filed in this Court on December 17, 1956.

On December 18, 1956, the curator-ad-hoc filed a motion to dismiss the appeal taken by the defendant, on the ground that the question of divorce was personal and had become moot upon the death of Eddie Arceneaux. He contended that since there were no children nor community involved, it would be a vain and useless thing for this Court to consider the case.

Defendant filed an opposition to the motion to dismiss, denying that the question was moot. She alleged that there was certain property acquired during the marriage, and that there was involved the cash value of a life insurance policy in which she was named the beneficiary as long as she remained the wife of plaintiff.

We believe that the curator-ad-hoc is correct in his contention that the question of divorce between Eddie Ar-ceneaux and Margaret Stutes Arceneaux has become moot. Article 136 of the LSA-Civil Code provides that the bond of matrimony is dissolved by the death of husband or wife. This dissolution is final despite any separation or divorce action pending in any court of law. When Eddie Arceneaux died on October 14, 1956, the marital status between him and Margaret Stutes Arceneaux was completely dissolved. At that moment, the wife was free to remarry. If Eddie Ar-ceneaux had not been the successful litigant in his divorce proceeding, she would still have enjoyed this privilege at his death. It follows that this Court cannot consider an appeal from a judgment of divorce when there is no longer any existing marriage. Such would be a vain, useless, and illegal gesture.

We then come to the question of the status of the divorce decree rendered against Margaret Stutes Arceneaux by the trial court.

Article 565 of the Louisiana Code of Practice provides that one has an appeal from all final judgments, whether rendered after hearing the parties or by default. Louisiana LSA-Revised Statutes 13:4452 and Article 573 of the Louisiana Code of Practice allow thirty days for the taking of an appeal from a judgment of divorce. When plaintiff died on October 14, 1956, the judgment of divorce which he had secured was not final. Death prevented the wife’s contesting such judgment. Her intention to do so was expressed by the appeal which she filed on November 8,1956.

Under such circumstances, we hold that the marriage between Eddie Arceneaux and Margaret Stutes Arceneaux was dissolved by Eddie Arceneaux’ death and not by the judgment of divorce which had not become final.

For the reasons assigned, the motion to dismiss the appeal is granted.

Appeal dismissed.

On Application for Rehearing

PER CURIAM.

In an application for rehearing counsel for appellee complain that we “erred in considering the life insurance policy mentioned and in considering the effect of the divorce judgment, the court not being called upon nor asked to rule with regard to those matters and those matters not being before the court for decision.” The complaint has merit, for the only question presented by the motion to dismiss the appeal (and on which we were entitled to rule) was whether or not the divorce action had abated on the death of plaintiff. See In re Lambert, 115 La. 469, 39 So. 447 and Interdiction of Roddy, 230 La. 635, 89 So.2d 150. Accordingly, our opinion to the extent thus complained of is not binding on the parties, and insofar as the status or effect of the judgment is concerned the appeal is dismissed without prejudice to their rights.

The application for rehearing is denied.


author: HAWTHORNE, Justice. McCALEB, Justice

text:
    232 La. 499
    STATE of Louisiana ex rel. Robert R. BOUCHER et al. v. J. Hadley HEARD, Administrator of the Division of Employment Security of the Department of Labor of the State of Louisiana, et al.
    No. 43156.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rehearing Denied April 1, 1957.
    Jack P. F. Gremillion, Atty. Gen., Harry Fuller, 2nd Asst. Atty. Gen., Lewis D. Dunbar, Marion Weimer, Baton Rouge, for respondents-appellants.
    James J. Morrison, Morrison & Newell, New Orleans, for relators-appellees.
   HAWTHORNE, Justice.

This is an appeal from a judgment of the district court ordering respondents-appellants, Richard E. Walker, Administrator of the Division of Employment Security of the Department of Labor, State of Louisiana, and A. P. Tugwell, Treasurer of the State of Louisiana, to pay to relators, Robert R. Boucher, Ancil C. Wilkinson, and Jules R. Gueymard, back salaries from June 24, 1953, through October 29, 1954.

This is the third time we have been called upon to consider the circumstances of this case. First, there was before us an appeal from the decision of the State Civil Service Commission sustaining the dismissal for cause of these relators on June 24, 1953. In that appeal this court held that the removal of Boucher, Wilkinson, and Gueymard was improper because the appointing authority had not furnished the Director of Personnel with advance written notice of their removal, as required by Rule XII, Section 2, of the Commission. Accordingly we reversed the decision of the Commission which had sustained their dismissal by the Administrator of the Division of Employment Security of the Department of Labor. See Boucher v. Division of Employment Security of the Department of Labor, 226 La. 227, 75 So.2d 343.

In State ex rel. Boucher v. Heard, 228 La. 1078, 84 So.2d 827, Boucher, Wilkinson, and Gueymard instituted mandamus proceedings in the district court against the Administrator of the Division of Employment Security, the Commissioner of Labor, and the Treasurer of the State of Louisiana to recover their back salaries from June 24, 1953, to October 29, 1954, alleging that they had never been lawfully dismissed from their civil service offices, and that their services had never lawfully terminated. The lower court dismissed these mandamus proceedings on various exceptions, among which were a plea to the jurisdiction of the district court ratione materiae, exceptions of lis pendens, prematurity, and no right or cause of action. On appeal this court reversed the judgment of the lower court, overruled the exceptions, and remanded the case to the district court for further proceedings, holding that under Article 834 of our Code of Practice the writ of mandamus lies to order public officers to perform their mandatory duties, and that accordingly Boucher and the other relators were entitled to bring mandamus proceedings to recover their back salaries because they had never been lawfully dismissed from their civil service offices.

The present appeal is from a judgment on the merits in the mandamus proceedings. This judgment, as we have said, ordered the Administrator of the Division of Employment Security of the Department of Labor and the State Treasurer to pay to relators, Boucher, Wilkinson, and Guey-mard, their back salaries from June 24, 1953, through October 29, 1954.

On this 'appeal respondents are again urging their plea of lis pendens, contending that relators’ claim for back pay for the period June 24, 1953, through October 29, 1954, is still pending before the State Civil Service Commission, and that accordingly relators are seeking to recover this amount in two forums at the same time. Respondents state that in our former opinion in this mandamus proceeding we erroneously overruled their plea of lis pendens, and that we were in error when we stated: “ * * * the appeal referred to by relators and which is still pending before the Commission does not involve any claim whatsoever for back pay. Relators’ appeal pending before the Commission involves solely the legality of their dismissal from the service on October 29, 1954, the jurisdiction of which is vested exclusively in the Commission.” [228 La. 1078, 84 So.2d 829] Respondents then attempt to show that this claim for back salary is involved in the proceeding pending before the Commission by quoting from relators’ appeal to the Commission their prayer for reinstatement “with full pay for lost time”.

For the exception of lis pendens to be well founded, the two actions must be between the same parties, for the same object, and growing out of the same cause of action, either in the same court or in another court of concurrent jurisdiction. La. Code Prac. Arts. 94, 335; see McMahon, Louisiana Practice, Vol. 1, p. 315 et seq., and authorities there cited.

In the instant case it is unnecessary for us to decide whether the Civil Service Commission is a court within the meaning of Articles 94 and 335 of the Code of Practice. However, if we pretermit this question and concede for the sake of argument that it is a court, the question then presents itself whether the Commission is a court of concurrent jurisdiction.

The first time this case was before this court, 226 La. 227, 75 So.2d 343, we held that the dismissal of relators on June 24, 1953, was illegal, null, and void, as stated above. Subsequently, when this case was before us on appeal from the district court’s judgment sustaining exceptions in the present mandamus proceeding, 228 La. 1078, 84 So.2d 827, 830, we held that the provision of Article 14, Section 15(0) (3), of the Constitution which permits the Commission to order full pay for lost time to an employee reinstated was not applicable to the facts of the instant case. We pointed out in that opinion that for the constitutional provision regarding back pay to be applicable the predicate of a lawful dismissal or suspension followed by a subsequent reinstatement must exist before the discretionary power vested in the Commission to order back pay can be exercised, and that “In the absence of a lawful dismissal there is no necessity, in law or in fact, for a reinstatement”. We then said that relators were never lawfully dismissed from their civil service offices and their services never lawfully terminated. In other words, we held that the Commission was without jurisdiction to decide any claim for back pay under the facts of this case.

That the question of back pay was not before the Commission was recognized in State ex rel. Anderson v. Walker, 230 La. 816, 89 So.2d 324, 325, from which the trial judge here quoted in his reasons for judgment. This court said in the Anderson case: “ * * * Counsel for the respondent administrator contend that such second dismissal was retroactive to June 24, 1953 (when the first dismissal was attempted) and that he, therefore, cannot recover any back pay. But this contention completely overlooks the rationale of the Boucher case which was that, regardless of the validity of the second discharge, the civil service employees were entitled to recover their salaries for the period between the two dismissal attempts, because then they were still in the classified service inasmuch as initially the discharge was illegal.”

As we have said, this court held in the first of this series of cases, Boucher v. Division of Employment Security, 226 La. 227, 75 So.2d 343, that the dismissal of these relators on June 24, 1953, was illegal, null, and void because of non-compliance with the provisions of Rule XII, Section 2, of the rules of the Civil Service Commission which required that the Director of Personnel should be given advance written notice of the removal. Despite that decision, respondents now argue that the failure to give notice to the Director did not invalidate or nullify the dismissals. This argument is predicated on the theory that the rule goes beyond the constitutional requirement of the civil service constitutional amendment of 1952, now Article 14, Section 15 (N) (1), of the Louisiana Constitution, which provides that “No person in the State or Classified Service, having acquired permanent Civil Service status, shall be demoted, dismissed, or discriminated against, except for cause, expressed in writing by the appointing authority * * * ”. In short, respondents’ contention is that the Civil Service Commission could not, without legislating, adopt any rule or regulation which would conflict with or go beyond the authority specifically conferred by the provision of the Constitution. It is respondents’ position that the appointing authority in the instant case complied with every requirement of the constitutional provision in the dismissal of relators for cause on June 24, 1953, and that this was sufficient.

Article 14, Section 15(1), of the Constitution confers upon the State Civil Service Commission the power to adopt rules having the effect of law regulating removals, etc. In adopting Rule XII, Section 2, the Civil Service Commission did not go beyond the authority of the constitutional article because there is nothing in this rule which contradicts the Constitution or enlarges the powers of the Commission. Article 14, Section 15(N) (1), of the Constitution requires that the appointing authority put in writing the cause for the employee’s dismissal, and the rule adopted by the Commission merely prescribes the manner or procedure of giving notice and to whom it is to be given. There is therefore no merit in respondents’ contention. Moreover, the cases which respondents cite are neither pertinent nor applicable to the question here presented, and hence are not decisive.

For the reasons assigned the judgment appealed from is affirmed; costs insofar as allowed by law are to be paid by respondents.

SIMON, J., absent.

McCALEB, Justice

(concurring).

Although I presently entertain doubt as to the correctness of our previous decisions herein, which are reported in 226 La. 227, 75 So.2d 343 and 228 La. 1078, 84 So.2d 827, it can hardly be gainsaid that they are the law of the case. Hence, the ruling now made is entirely proper.

      . Under this judgment Boucher will receive $7,436.67 in back pay, Wilkinson $10,023.34, and Gueymard $8,123.76.

      . The Commission itself, as shown by its interlocutory ruling entered on January 19, 1955, was of the view that the only question for determination on relators’ appeal then pending before it was the legality of their discharge effective October 29, 1954, and by this ruling the Commission made it plain that this was the only question presented for determination in the appeal before it.

      . Respondents point out in brief that Rule XII, Section 2, insofar as it required such advance written notice to be given to the Director of Personnel has been repealed.


author: LOTTINGER, Judge.

text:
    Cornelius J. MASSON and Ethel McS. Masson v. M. J. VELLA.
    No. 4400.
    Court of Appeal of Louisiana. First Circuit.
    March. 25, 1957.
    Rehearing Denied May 2, 1957.
    Horace R. Alexius, Jr., Covington, for appellant.

      Philip E. Pfeffer, Covington, for appel-lee.
   LOTTINGER, Judge.

The plaintiffs brought suit seeking the return of $1,750 deposit which they had made on a contract to buy a piece of property. The Lower Court rendered judgment in favor of plaintiffs and the defendant has appealed. The trial judge very competently disposed of the matter as follows:

“Plaintiffs, who are husband and wife, bring this suit seeking the return of a $1,750.00 deposit which was made on a contract to buy and sell a certain piece of real estate situated in Jefferson Parish, Louisiana. The plaintiffs allege that on November 9, 1954, they entered into this contract to purchase the said real estate from the defendant, M. J. Vella, and that the contract, which is annexed to the petition, provides that the sale was to be passed on or prior to February 9, 1955, and that through no faitlt on the part of the petitioners the sale was not executed before such date, and further, that the contract was cancelled by agreement of both parties, it being understood that defendant Vella was to return to petitioners their deposit of $1,750.00. I note even though the contract originally provided that the sale was to be made on or prior to February 9, 1955, that an extension was granted on said contract, providing that the sale was to be passed on or before February 24, 1955.
“A reading of the contract shows it provides in the event the seller did not comply with the agreement within the time specified that the purchaser had the right to demand a return of his deposit in full.
“While it is true that the petition alleges that the plaintiffs are entitled to the return of the deposit because the contract was cancelled by agreement of the parties, and the defendant agreed to return the deposit, yet the contract which is the foundation of this suit and is annexed to and made a part of the petition, sets forth that the defendant had a certain time limit within which to deliver this title, otherwise, he was to return the deposit, and if the evidence shows that the defendant failed to deliver title within the time limit set forth in the contract itself, the plaintiffs would be entitled to recover the deposit, because the contract upon which the petition is founded forms a part of said petition and controls the allegations thereof.
“The defendant contends that during the entire time of the extension of the contract that he was ready and willing to deliver a good and merchantable title to the property, all in accordance with the contract.
“A reading of this contract shows that it was conditioned upon the ability of the purchaser to borrow $10,200.00 upon certain terms and conditions, giving the property as security therefor. It is, therefore, necessary to ascertain whether or not the plaintiff purchasers were able to obtain the loan of $10,-200.00 prior to the expiration of the contract as extended, which date is February 24, 1955.
“The testimony of the witness Cas-tagna, Manager of the Home Mortgage & Investment Corporation, who was handling the loan, reflects it was not until February 25, 1955, or one day after the expiration for the sale to take place under the contract as extended, that he received a letter from Fort Wayne, Indiana, that the money for the loan was available, and it was not until March 1,1955, that he notified the plaintiff Masson of this fact. By the testimony of the defendant’s own witness it is apparent that the loan was unobtainable until after the expiration of the time limit in the contract for the sale, which was February 24, 1955. Of course, after this expiration limit the plaintiff refused to take the property and demanded the return of the deposit, all in accordance with the terms of the contract of sale. The witness, Jack L. McSpadden, the son of plaintiff, Mrs. Masson, testified that shortly after the end of February, 1955, he contacted defendant Vella over the telephone and that in the course of the conversation Vella agreed to return the deposit, but did not have the money at that time and would accordingly make the return as soon as he sold the house.
“This testimony is corroborated by that of Mrs. Masson, who likewise had a conversation with Vella along about the same time. In addition to this, Mrs. Masson testified that on February 25, 1955, she sent the defendant a telegram demanding return of the deposit and he did not deny receiving this telegram.
“I am satisfied from the testimony of these two witnesses that the defendant did agree to return the deposit as soon as he could sell the house; this is corroborated by the fact he advertised the property for sale in the New Orleans newspapers on March 5, 1955, and again on March 30, 1955.
“For the above and foregoing reasons, I will sign a judgment when presented to me in favor of plaintiffs and against the defendant in the full sum of $1,750.00, together with interest on said amount at the legal rate from April 21, 1955, until paid.”

The record amply substantiates the above findings but in addition to the above we note that the contract signed by the parties dated November 9, 1954 provides that the sale is conditioned upon the ability of the purchaser to borrow upon this property as security the sum of $10,200 and the said principal is to be payable in equal monthly installments over a period of twenty-five years. The contract further provides, “Should the loan stipulated above be unobtainable by the purchaser, seller or agent within sixty days from date of acceptance hereof (November 9, 1954) this contract shall then become null and void and the agent is hereby authorized to return the purchasers’ deposit in full.” We note further that the letter referred to by the Lower Court from Fort Wayne, Indiana is a letter from the Lincoln National Life In-' surance Company of said city da.ted February 25, 1955 and addressed to Home Mortgage and Investment Corporation, New Orleans, Louisiana wherein said Lincoln National Life Insurance Company agreed to make a loan to the plaintiffs herein on the property involved in the amount of $10,200 for a twenty year term on a monthly payment basis and not on a twenty-five year basis as is provided in the contract by the plaintiffs and defendant. It is apparent from the record that it was not until March 1, 1955 that plaintiffs were notified that the loan was approved and available. It is likewise apparent from the record that the loan was unavailable until after the expiration of the time limit of the contract of the sale which was February 24, 1955 and it is likewise apparent that the loan that was available did not comply with the requirements and provisions in the contract to purchase said property. Since the loan was unavailable during the contract period, this contract then became null and void and according to the provisions of the contract the seller was obligated to return the purchasers’ deposit in full.

For the above and foregoing reason the judgment appealed from is affirmed.

Judgment affirmed.


text:
    Maurice Frank WELSH v. Lamar M. RICHARDSON.
    No. 4387.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    France W. Watts, Jr., Franklinton, for appellant.
    Carter, Erwin & Carter, Franklinton, for appellee.
   LOTTINGER, Judge.

This is a suit by petitioner to terminate a lease to defendant because of certain damage to the premises leased by defendant, and breach by the defendant by certain conditions of the lease. The Lower Court gave judgment in favor of the petitioner and the defendant has appealed.

Since the filing of this appeal, the termination of the lease had expired and the defendant has vacated the premises. The questions presented in the suit have therefore become moot, and both parties have moved that the appeal be dismissed.

For the reasons hereinabove assigned1,, this appeal is dismissed, all costs of this' appeal to be paid by the defendant.

Appeal dismissed.


author: TATE, Judge.

text:
    Joseph A. NIX et ux., Plaintiffs-Appellees, v. STATE FARM MUTUAL INSURANCE CO., Defendant-Appellant.
    No. 4360.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    Rehearing Denied May 2, 1957.

      Plauche & Stockwell, Lake Charles, for appellant.
    Russell T. Tritico, Ralph Hanks, Jr., Lake Charles, for appellee.
   TATE, Judge.

This suit arises from an intersectional collision occurring at 9 a. m. on January 27, 1955 in Maplewood, Louisiana.

The evidence shows that Mrs. Nix, co-plaintiff, was driving her 1949 Chrysler eastward on Parish Road. Defendant’s insured, Mrs. Daly, was driving southward on East End Boulevard. Both ladies were driving at speeds of less than 25 miles per hour.

The front end of Mrs. Nix’s car struck the right rear door of Mrs. Daly’s car. Mrs. Nix testified that the impact occurred in the center of the intersection, as she pulled left when she suddenly perceived Mrs. Daly was not going to stop, in disregard of Mrs. Nix’s right of way. Mrs. Daly testified she had almost completed crossing the intersection before she was struck, in her own lane of traffic, on the rear of her automobile. Parish Road, upon which Mrs. Nix was driving and which Mrs. Daly was crossing, was 25 feet in width.

Mrs. Daly admitted that she never saw Mrs. Nix before the impact. Mrs. Nix testified at the trial that she saw Mrs. Daly’s car approaching, when it was approximately 100 feet from the intersection, and when Mrs. Nix herself was approximately 140 feet from the intersection; that the Daly car slowed, leading her to believe that it would stop before entering; that nevertheless it failed to stop and proceeded into the intersection in her path. Mrs. Daly admitted slowing as she came into the intersection, in order to observe any oncoming traffic; and failing to observe Mrs. Nix’s approaching car, she entered the intersection.

Mrs. Daly was concededly negligent in entering the intersection in disregard of Mrs. Nix’s right of way, as the latter car was approaching from Mrs. Daly’s right, LSA-R.S. 32:237, subd. A. The chief question posed by this appeal is whether Mrs. Nix was contributorily negligent, so as to defeat her recovery, in failing to stop or slow when she saw Mrs. Daly’s car approaching.

Alternatively, defendant argues that the testimony in discovery depositions supports a finding that Mrs. Nix also did not observe the approach of the Daly car. We need not discuss this contention in detail: first, because the District Court accepted Mrs. Nix’s sworn testimony at the trial that she observed and relied upon Mrs. Daly slowing as she approached the intersection; and second, assuming arguendo that Mrs. Nix did not observe Mrs. Daly’s car, even if so, as the discussion below indicates, Mrs. Nix was entitled if she had observed the other to proceed towards and into the intersection in reliance upon her own superior right of way, and therefore such failure of lookout would not be a contributory proximate cause of the accident, Wilson v. Williams, La.App. 1 Cir., 82 So.2d 71, Duke v. Malone, La.App. 1 Cir., 57 So.2d 711, Boullon v. Bonin, La. App. 1 Cir., 2 So.2d 535.

We have had occasion several times recently to reiterate the rule that traffic with the right of way is entitled to approach towards and to enter an intersection, even if it observes traffic approaching on an inferior thoroughfare, because superior traffic is entitled to rely upon the assumption that the other traffic will respect the superior right of way, Brashears v. Tyson, La.App. 1 Cir., 86 So.2d 255, Bahry v. Folse, La.App. 1 Cir., 83 So.2d 912, certiorari denied Gautreaux v. Southern Farm Bureau Cas. Co., La. App. 1 Cir., 83 So.2d 667, unless the superior motorist should reasonably realize in time to stop and avoid the accident, that the inferior traffic will continue its approach and will obstruct the superior motorist’s passage across the intersection, Miller v. Abshire, La.App. 1 Cir., 68 So.2d 143, Droddy v. Southern Bus Lines, Inc., La.App. 1 Cir., 26 So.2d 761, Termini v. Aetna Life Insurance Company, La.App. 1 Cir., 19 So.2d 286.

The cases relied upon by defendant are factually distinguished. In Comeaux v. Blanchet, La.App. 1 Cir., 69 So.2d 527, the District Court’s determination that the excessive speed of the superior motorist proximately contributed to the accident was held non-erroneous. In McCardle v. United States F. & G. Co., La.App. 1 Cir., 56 So.2d 273, and Vidrine v. Fontenot, La. App. 1 Cir., 49 So.2d 428, the superior motorist was held negligent in failing to slow and desist from entry into the intersection towards which the inferior motorist was proceeding at obvious excessive speed under the circumstances — that is, with the apparent intention of ignoring the superior motorist’s right of way.

As we pointed out in Starnes v. Mury, La.App. 1 Cir., 90 So.2d 901, and LaFuria v. Tarver, La.App. 1 Cir., 86 So.2d 232, the District Court’s factual determination that the superior motorist’s entry into the intersection did or did not proximately cause the collision concerned must be reviewed by an appellate court in the context of the infinite variations in split-seconds arid feet distant involved, depending upon which the relative rights and duties of the parties concerned must be evaluated, and which determinations themselves must be deduced from the data furnished by the necessarily imperfect human observations and recollections of two or three moments of sudden crisis.

In the present case, Mrs. Nix testified that she was traveling between 15-20 mph (21.9'-29.2/ per second) or bétween 20-25 mph (29.2'-36.5/ per second). Mrs. Daly testified that she had slowed from 25 mph to 15 mph before entering the intersection. If Mrs. Nix saw Mrs. Daly when the latter was 100' from the intersection, at 25 mph, she was less than three seconds away from it but still able to come to a complete stop according to all stopping distance tables before entering same.

If the rule were that both parties are enjoined from entering an intersection so long as other traffic is in sight, and therefore ipso facto both parties are contributorily negligent in every intersec-tional collision, then of course Mrs. Nix had a duty to stop or to slow immediately upon perceiving the other vehicle. But the legislative provision of the right of way is to facilitate the passage of traffic, rather than requiring that all vehicles stop at each corner. Gautreaux v. Southern Farm Bureau Cas. Co., La.App. 1 Cir., 83 So.2d 667, Van Dyke v. Waguespack, La.App. 1 Cir., 198 So. 425. The standard by which the actions of motorists are to be judged as negligent or not in legal actions is that of the reasonably prudent motorist, not that of the super-cautious motorist.

Applying such principles, Mrs. Nix was certainly entitled to continue her approach toward the intersection even after she saw (or should have seen) the other car, relying upon her own right of way. Considering that the accident was to happen in the next three or four seconds, the point at which Mrs. Nix was called upon to realize that the other motorist was going to disregard the Nix vehicle’s right of way cannot of necessity be determined with any precision. But we are certainly unable to say the District Court’s determination was manifestly erroneous that Mrs. Nix did not have the opportunity, in time to avoid the accident, to observe that the other car was not going to stop before entering the intersection in disregard of Mrs. Nix’s superior right of way.

It should be borne in mind that it took only approximately one second in all for Mrs. Daly to enter and cross to the other side of the intersection at a speed of IS miles per hour, during which time plaintiff Mrs. Nix, at a greater speed of 20-25 mph and considering reaction time, had but a split-second to avoid the accident. For this reason, whether the impact occurred at the center of the intersection, or five or ten feet further south therefrom, is immaterial in the terms of the split-seconds involved, for the purposes of appellate review as to whether the District Court’s determination is manifestly erroneous.

Plaintiff answered the appeal seeking an increase in the amount of damages awarded; defendant in brief requests the amount be reduced. We find the damages neither manifestly inadequate nor manifestly excessive.

For the above and foregoing reasons the judgment appealed from is affirmed.

Affirmed.


author: TATE, Judge. LOTTINGER, Judge

text:
    Hammie DUPLECHIEN, Plaintiff-Appellant, v. STATES EXPLORATION COMPANY et al., Defendants-Appellees.
    No. 4363.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    Rehearing Denied May 2, 1957.

      Alfred R. Ryder, Oberlin, for appellant.
    Lawes, Cavanaugh, Hickman & Brame, Lake Charles, for appellee.
   TATE, Judge.

In these proceedings for workmen’s compensation, plaintiff’s present disability from an accident in the course of his employment is admitted. The principle question is whether plaintiff’s refusal to submit to a tendered operation is so arbitrary and unreasonable as to relieve defendant employer and its co-defendant compensation insurer from the obligation of paying further compensation unless plaintiff employee agrees to submit to the operation in question.

Defendants paid all workmen’s compensation benefits due from the initial wrist injury of November, 195S up through April 27, 1956. Compensation payments were terminated when plaintiff through his attorney refused surgery recommended as able to end his disability. The operative procedure in question is a resection of the distal ulna of the right arm, that is, a cutting off of the lower % inch of the inner bone of the right forearm.

Both the orthopedic specialist and plaintiff’s family physician agree that, by eliminating pain in ordinary use of the wrist, this operation would substantially relieve plaintiff’s present disability and permit him to return to the type of work in which engaged at the time of the industrial accident herein.

In Borders v. Lumberman’s Mutual Casualty Co., La.App., 90 So.2d 409, certiorari denied, this Court recently had occasion to summarize the jurisprudence on the question: While “the courts may not compel an injured employee to submit to surgery, * * * the courts may order compensation payments withheld when an employee unreasonably refuses to submit to surgery which will remove his disability,” 90 So.2d 411. Further, the relative criteria in determining whether an employee’s refusal to submit to operative procedure is reasonable are:

(1) Can the operation reasonably be expected to relieve the legal disability?

(2) Will it cause the claimant a minimum of danger to his life and a minimum of pain ?; and

(3) Is there substantial agreement among all medical witnesses testifying as to the necessity for the operation and the probability that the disability will be cured without recurrence?

Although one reason the plaintiff was unwilling to submit to the operation in question was his personal fear that the condition of his arm would not be materially improved despite his subjecting himself to the risk of surgery, nevertheless as above stated, the medical testimony is in entire agreement that, medically, the relatively minor operation should be performed, with excellent prospects of relieving the disability in question within 3-5 months under supervised therapy thereafter.

The chief legal question remaining is whether the danger involved in the use of general anesthesia is so relatively insubstantial under the facts of this case, that the employee’s failure to accept the suggested operative procedure is not reasonably based under the facts in this case. (The medical witnesses testified that due to the difficulty of anesthesizing the bone that would have to be cut or sawed off, local anesthesia is impractical, although not impossible.)

The claimant objected to undergoing general anesthesia (being “put to sleep”) because of fear of same, based upon his conversations with a nephew who had undergone an (unsuccessful) knee operation.

Both the orthopedic specialist and plaintiff’s family physician testified that in general health he was a good candidate for surgery, as did an internal specialist called upon to examine plaintiff especially for this purpose. A physician anesthesiologist who examined plaintiff and used the findings of the internal specialist, described the procedure to be involved and estimated that the mortality rate concerning a man in plaintiff’s physical condition (with a physician anesthesiologist administering the anesthesia) would he less than one in five thousand; he further stated that according to recent statistics from the Massachusetts General Hospital, with the use of physician anesthesiologists (as compared to non-physician anesthetists) the mortality rate had been less than one in ten thousand cases. The medical witnesses admitted that unusual fear could increase the danger of surgery under a general anesthesia, but stated that with proper premedication (the use of calming drugs) such fear would not play a calculable part in the risk of death from operation.

The physician anesthesiologist testifying frankly admitted that “anesthesia is an approach to death, but it should be a controlled approach,” (Tr-69). The substance of all this medical testimony is that whether or not the general anesthesia is dangerous or suitable as to a particular person depends upon all the circumstances surrounding the particular person and the particular operation in question.

The majority of this Court frankly admits that it approached study of this question with some doubt that an injured claimant should ever be required to submit to surgical procedure requiring general anesthesia and the consequent some risk to life. But on the basis of the record presently before us, and the surrounding facts and circumstances, we are unable to hold manifestly erroneous the District Court’s determination that in this particluar case the risk of death or danger through use of general anesthesia is not substantial enough so as to excuse the employee’s continued refusal to submit to surgery after a final judicial assessment of the risk as such.

Defendants-appellants re-urge by answer to the appeal their plea of pre-maturity, overruled by the District Court. This plea is based upon LSA-R.S. 23:1314, which provides that the employee instituting suit for compensation must allege that he is not being paid the workmen’s compensation benefits to which he is entitled, and:

“* * * when such allegations are contained in such petition and are denied by the employer at the time fixed thereunder by the court, if it be shown that such allegations are without reasonable cause or foundation in fact, such petition shall be dismissed; and the question of whether or not such allegations of nonpayment or of failure to render medical attention or failure to furnish medical reports is justified under the facts shall be determined by the court before proceeding with the hearing of the other issues involved.” (Italics ours.)

With considerable logic defendants urge that when it is judicially determined after trial that an employee’s refusal to submit to a tendered operative procedure is not reasonably based, then ispo facto the employee’s allegation that he is not being paid compensation to which he is entitled is thus found to be “without reasonable cause,” and the allegation of nonpayment is found not “jttstified”; and the employee’s suit must be dismissed.

As the able District Court pointed out in overruling this exception, it would not be fair to characterize the present employee’s refusal to submit to the recommended surgery as so “unreasonable”— when, in his words “there is some likelihood that there will be disagreement on this point among the judges of the various trial and appellate courts” — as to justify dismissal of his suit, and loss of workmen’s compensation benefits due in the interim. The question of whether the employee’s refusal to accept the tendered surgery is reasonable, is not a medical question; it is a legal question, involving not only an assessment of the medical testimony, but of the circumstances surrounding this particular employee under the particular facts of this particular case, and an application to these facts of the legal standards evolved and evolving through the jurisprudence. We are inclined to believe that such determination can never properly be made ex parte by one of the interested parties, but only by the court after a judicial assessment of all the surrounding facts and circumstances of the particular case concerned.

We are fortified in these conclusions by the following comments of that eminent authority, Dean (now Under-Secretary) Larson, in his treatise, Workmen’s Compensation Law, Volume 1, pp. 189-191, Section 13.22 (footnotes omitted):

“The question when compensation should be suspended because claimant refuses to submit to reasonable treatment or surgery is one of the most delicate medico-legal issues in the entire realm of workmen’s compensation. It is easy enough to state a general rule that such unreasonable refusal becomes an independent intervening cause responsible for persisting consequences which the treatment or surgery would have cured. The difficulty arises when ‘reasonableness’ has to be defined. The judgment usually resolves itself into a weighing of the probability of the operation’s successfully reducing the disability by a significant amount, against the risk of the operation to the claimant. If the risk is insubstantial and the probability of cure high, refusal will result in a termination of benefits. But if there is a real risk involved, and particularly if there is a considerable chance that the operation will result in no improvement or even perhaps in a worsening of the condition, the claimant cannot be forced to run the risk at peril of losing his statutory compensation rights. In the commonest operations presenting this problem —hernia, intervertebral disc, and amputations — most courts will not at present disturb a finding that refusal to submit to the operation is reasonable, since the question is a complex fact judgment involving a multitude of variables, including claimant’s age and physical condition, his previous surgical experience, the ratio of deaths from the operation, the percentage of cures, and many others. The matter cannot be determined automatically as a matter of medical statistics and expert testimony. The surgeon who sees several operations every day and who testifies that the chance of fatality is ‘only five per cent’ naturally has a different point of view than the claimant who has never had a major operation and might quite understandably prefer to enjoy life as best he can with his injury; rather than take a one-in-twenty chance of being dead. On the other hand, refusal of surgery cannot be deemed reasonable when the only reason shown for the refusal is the claimant’s subjective fear of the operation.” (Italics ours.)

Considering the remedial nature of the workmen’s compensation statute, the burden is and should be put upon the employer to secure a judicial determination of the necessity of the surgery, rather than upon the employee to prove that his own refusal to submit to same is reasonably based. This is certainly so in the present instance, when the employee’s initial refusal to submit to an operation was based on grounds not patently trivial.

Our able brother in his learned and acute dissent points out abuses on the part of employees which may occur through dilatory refusals to accept undoubtedly reasonable surgery. The present case does not concern such an instance.

Further, the workmen’s compensation statute is protective in purpose and is designed to “insure that an employee whose wages were discontinued as the result of injury sustained during the course of his hazardous employment would be paid weekly compensation on which to subsist during the period of his disability,” Puchner v. Employers’ Liability Assurance Corporation, 198 La. 921, 5 So.2d 288, 291, 292. Just as abuses on the part of unscrupulous employees taking advantage of the present ruling may be imagined, so may abuses on the part of unscrupulous employers and insurers (if such there be), should upon the contrary ruling they be legally entitled to disrupt compensation payments permitting minimum subsistence to admittedly disabled employees, ex parte and without judicial sanction.

But the compensation act must be interpreted with a view to the vast mass of ordinary, decent employees, employers, and insurers concerned, not only to the extreme instances of unscrupulosity which may occasionally occur. The legislature has not provided that an employee’s compensation payments may be suspended because of his unwillingness to submit to an operation; it is an equitable judicial doctrine. The employee is thus entitled to his day in court (including appellate review) to test the reasonableness of his grounds of unwillingness, under the circumstances of the particular case concerned. It is to be supposed that the vast mass of employees will not refuse on trivial grounds an operative procedure recommended, which may reasonably be supposed to end disability and pain and enable a return to earning decent wages again, greater than the bare subsistance payments of weekly compensation.

The vast mass of well-intentioned employees should not be deprived of their right to have this question judicially determined before subjecting them to any penalty for their refusal to accede to their adversaries’ ex parte determination that the operation is reasonable, because of the mere possibility of abuse by an unscrupulous few —any more than the vast mass of well-intentioned insurers are penalized for nonpayment of weekly compensation which the courts find due after trial to an injured employee, Clements v. Liberty Mutual Insurance Co., La.App. 1 Cir., 85 So.2d 675, in the absence of arbitrariness or capriciousness, Fruge v. Pacific Employers Insurance Co., La.App. 1 Cir., 71 So.2d 625. Both are entitled to resist their opponents’ demands until the courts order otherwise, without fear of penalty because they chose to assert their legal right to litigate the question.

For the above and foregoing reasons, the judgment of the District Court is affirmed, but must be recast due to the appellate delays which have intervened.

For the above and foregoing reasons, the judgment of the District Court is affirmed awarding plaintiff compensation at the rate of $30 per week, commencing November 14, 1955 (subject to credit of compensation paid), with legal interest upon such payments from date of delinquency until paid, and further assessing defendants with all costs of the proceedings below; such weekly compensation not to be paid exceeding four hundred weeks in all.

It is further ordered, adjudged, and decreed that plaintiff’s right to receive compensation payments beyond those due up to sixty days from date of finality of this judgment, is conditioned however, that if within sixty days from date of finality of this judgment, plaintiff does not submit to an operation on his right wrist, as described in these proceedings, by a competent orthopedic surgeon of his own selection and at the exclusive cost of defendants (including hospitalization, etc.); on his refusal to submit to such an operation within that time and without reasonable grounds, then plaintiff’s right to receive further compensation as the result of the present suit shall cease after the expiration of the said sixty 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.

The cost of this appeal would be assessed against plaintiff-appellant except that this suit is in forma pauperis.

Affirmed.

LOTTINGER, Judge

(dissenting).

I dissent from the majority opinion herein overruling the plea of prematurity for the following reasons.

The record shows that petitioner was injured on November 14, 1955 and his injury was aggravated on or about January 4, 1956. The injury was diagnosed as an acute hyper extension injury of his right wrist with a resultant tear of the radial ulnar and styloid triquetral ligament as well as a probable disruption of the triangular articular cartilage between the radius and ulnar at this level. The injury resulted in a marked loss of disability in petitioner’s hand, so as to totally disable him from doing his work. In paragraph 11 of the petition, plaintiff admits receipt of weekly compensation payments at the prescribed rate at the time of his injury up to April 27, 1956. However the evidence shows that the benefits were actually paid to May 4, 1956. Following this admission plaintiff alleges as follows:

“ * * * From this latter date, despite amicable demands made, both of the defendants have failed and refused to pay your petitioner any compensation whatsoever, despite their knowledge of the accident, and despite their knowledge of the doctor’s advice that resection of the distal ulna would be necessary to reestablish function of petitioner’s wrist. * * * ”

To the petition thus framed, the defendants have interposed (a) plea of prematurity and (b) alternative rule to show cause why plaintiff should not be required to submit to recommended surgery to be performed by plaintiff’s present medical expert or other surgeon of his choice at defendants’ cost, failing which, his right to further prosecute this accident or request further benefits by virtue thereof should not be suspended during the period of his refusal. In connection with defendants’ plea of prematurity, defendants deny and controvert plaintiff’s allegations that compensation is due and affirmatively aver that the allegations are without reasonable cause of foundation in fact under the provisions of LSA-R.S. 23:1314. It is shown that on February 24, 1956 petitioner’s own orthopedic surgeon recommended resection of the distal ulna and the defendants tendered full expense of the operation to petitioner on March 26, 1956, April 12, 1956 and April 20, 1956. As the operation was refused by petitioner the defendants stopped all payments on May 4, 1956. Nineteen days thereafter suit was filed on May 23, 1956. After hearing and trial on both the exception and the rule, the exception of prematurity was overruled. The Court rendered judgment on a rule to show cause why petitioner’s suit should not be suspended until such time as he should submit to recommended medical care and procedure. The Court gave judgment on said rule in favor of defendant with the provision that if petitioner fails to have the operation performed within 60 days, all further compensation payments should be stopped. The petitioner has appealed and the defendant has answered the appeal seeking maintenance of its plea of prematurity.

The record shows that three specialists examined the petitioner to determine whether or not he was a good surgical risk for the particular operation which he required. Dr. Schneider, an orthopedic surgeon in Lake Charles, of plaintiff’s choice, testified as to the injury to petitioner as well as the procedure required in the operation. As to the injury, he stated that petitioner was presently totally disabled and that his wrist would become worse unless the operation was performed. He stated that unless the operation was performed the petitioner would never recover the use of his wrist. He did state, however, that there was a good possibility of an operation within the near future being very successful and the petitioner would recover almost full use of his wrist, except for a possible slight weakness which would in no way bother him. Dr. Schneider testified that after a successful operation the petitioner would be able to return to his former job and would be well able to perform said job. As to the operation itself, Dr. Schneider classified it as being a relatively simple one which he has performed many times, and that he felt sure that the operation on petitioner would be successful. As the operation required chipping into the bone, it was Dr. Schneider’s opinion that a general anesthesia would be required for the operation, although it could possibly be performed by local anesthesia. Dr. Schneider then testified that the operation itself was a minor one and that he knew of no reason, from the medical standpoint, why his recommended surgery should not be performed on Mr. Duplechien and that the operation would not jeopardize the life of Mr. Duplechien or the affected limb more than the usual risk inherent in the administration of anesthesia; that it was less hazardous to the life or affected limb than the operation for the removal of the semi-lunar cartilage; that there would not be involved any more pain or discomfort than is associated with any surgical procedure and that he would have no hesitancy in performing the recommended surgery on Mr. Duplechien.

Dr. Kent, an anesthetist of Lake Charles, also testified as to the operative procedure from the standpoint of his specialty. He had examined plaintiff on June 22, 1956. He testified that the operation itself was a minor one. He further testified that a general anesthesia is always preferable in an operation which required the cutting of a bone. He stated that although a local anesthesia would deaden the flesh portion of the body, it would not penetrate the bone and the patient would feel a dull pain, similar to a tooth-ache pain, when the bone is chipped. He testified, however, that a person under general anesthesia “is approaching death” and would feel nothing. He concurred in Dr. Schneider’s testimony to the effect that the only danger of the operation would be the inherent danger of the anesthesia, and he testified that the mortality rate of a person of petitioner’s age (which was 40 years) and health would be one in five thousand. Dr. Kent further stated that as a result of his examination of the claimant, Mr. Duplechien was a satisfactory risk for general anesthesia.

Dr. Anderson, who testified on behalf of defendants, is a specialist in internal medicine. He testified that he had thoroughly examined the petitioner and found no reason whatsoever why the operation should not be performed, and why a general anesthesia should not be administered to petitioner. Further medical testimony was given by a general practitioner who concurred in the testimony of the specialists to the effect that the petitioner should undergo the operation.

The only reason the record discloses as to why the petitioner would not agree to the operation was:

1st. He stated that the doctors would not guarantee success, and

2nd. He was afraid.

I feel both of these reasons were very poor excuses for remaining crippled the remainder of his life while all the competent medical testimony is to the effect that the prognosis would be very good toward achieving a good result and rehabilitation of this patient by what is considered a minor operation. The medical profession is a highly specialized and honored one and I feel that no doctor would be willing to guarantee the success of any operation however slight. As to the petitioner being afraid, Dr. Schneider said that it is only normal, that he himself would be afraid if he was about to receive an operation. Be that as it may nevertheless, according to the medical testimony, a person is administered drugs in some form or another before he is brought to the operating room and by that time the fear is removed.

All of the above evidence is admissible for consideration of the plea of prematurity filed by the defendants. The defendants based their plea of prematurity on the basis that compensation is not now due and they aver that the allegations of petitioner are without reasonable cause or foundation in fact because of the refusal of petitioner to submit to the operation as was tendered by defendants. Defendants cited LSA-R.S. 23:13I4 as basis for their plea of prematurity and seek, thereunder, to have the petition dismissed.

LSA-R.S. 23:1314 reads as follows:

“Unless in the verified petition above referred to it is alleged (where the petition is filed by the employee or his dependents) that the employee or the dependents is not being or has not been paid, and that the employer has refused to pay, the maximum percent of wages to which petitioner is entitled under the provisions of this Chapter, or that the employee has not been furnished the proper medical attention, or that the employee has not been furnished with copies of the reports of examination or examinations made by employer’s medical practitioners after written request therefor has been made under the provisions of this Chapter, the presentation or filing of such petition shall be premature and shall be dismissed; when such allegations are contained in such petition and are denied by the employer at the time fixed thereunder by the court, if it be shown that such allegations wre without reasonable cause or foundation in fact, such petition shall be dismissed; and the question of whether or not such allegations of nonpayment or of failure to render medical attention or failure to furnish medical reports is justified under the facts shall he determined by the court before proceeding with the hearing of the other issues involved.” (Emphasis ours.)

It is defendants’ position that in view of the nature of the operation and the prognosis for its success, that plaintiff’s allegations of non-payment of compensation benefits are not justified under the facts of this case within the clear meaning of the provisions of the statute hereinabove quoted and that the plaintiff is not legally entitled to be paid compensation during the period when his disability is occasioned by his own wilful refusal to submit to proper medical treatment. Our jurisprudence is now to the effect that an employee should not be paid compensation during the period when his disability is occasioned by his own wilful refusal to submit to proper medical treatment. Powers v. Allied Chemical & Dye Corp., La.App., 46 So.2d 332; Bronson v. Harris Ice Cream Co., 150 La. 455, 90 So. 759; Simmons v. Blair, 194 La. 672, 194 So. 585.

In the Bronson & Simmons cases, supra, the Supreme Court refused to order claimant to submit to an operation for the repair of a fractured or torn semilunar cartilage. Similar operations, however, were ordered in French v. Employers Mutual Insurance Co., La.App., 70 So.2d 179 and Fredieu v. Mansfield Hardware Lumber Co., La.App., 53 So.2d 170, 174 by the Second Circuit Court of Appeal.

The medical testimony in the instant case shows that the operation necessary to repair the petitioner’s disability is less serious than that involved in the above mentioned cases. There are no reported cases covering an operation similar to the one required by petitioner.

This is the first time that the question of a plaintiff’s refusal of a tendered operation and as a result defendants denying and controverting plaintiff’s allegation (that compensation is due) has been raised or presented in form of a plea of prematurity. I am of the opinion, nevertheless, that the plea is good and same should be maintained. I do not feel that the petitioner’s allegation (that compensation is due) is reasonable or justifiable under the evidence presented. If his refusal to submit to this operation was found reasonable after judicial determination, then I would say his demand for further compensation would be justifiable, but his refusal to submit to this operation was found by the Lower Court as well as this Appellate Court to be unreasonable. Then how can we say his allegation of non-payment is justifiable? All the doctors testified that petitioner should undergo the operation, that chance of his complete recovery are very good and that he will be able to perform his previous labor within a few weeks after a successful operation. We are of the opinion that the operation suggested or recommended by the medical experts will enable plaintiff to again enjoy a useful and normal life and. do the work he was doing at the time he was injured and work of similar kind and character. Although the Court cannot order a person to submit to an operation, I feel that his arbitrary refusal to submit thereto under the circumstances presented in this case do constitute reason for dismissal of his petition as provided under the provisions of LSA-R.S. 23:1314 as the allegations of the petition of non-payment are not justified under the evidence presented.

It appears to me that the controversy existing between the employee and the employer, that is, the refusal of the tendered operation versus claim that compensation is due, is properly and squarely presented for judicial determination in the plea of prematurity. If, after judicial determination on the plea, the court decides that the employee was unreasonable in his refusal to submit to the operation, how can it be said that the claim that compensation is due is justifiable in view of the jurisprudence that an employee should not be paid compensation during the period when his disability is occasioned by his own wilful refusal to submit to proper medical treatment. The purpose and reason behind defendants’ plea of prematurity (which is the instrument that brought to a head the controversy at issue for a judicial determination) is to stop compensation and not allow further compensation due to the unreasonable refusal to submit to proper medical treatment. The controversy itself came into existence when the employee unreasonably refused to submit to the operation, that is May 4, 1956, and that is when the compensation should end. Under these circumstances the merits of the controversy are disposed of under the plea of prematurity after judicial determination and all parties have had their day in court. Naturally if the employee’s refusal to submit to the operation in the case at bar had been found reasonable, then the allegation that compensation is due would have been justifiable and the employee would be entitled to compensation, but that is not the case here. The sum, substance and effect of the majority opinion herein is that the refusal to submit to the operation is unreasonable, but still the plaintiff is entitled to compensation after the controversy came into existence, and until sixty days after the finality of this judgment, which to me is all contrary to the jurisprudence cited above and not equitable as hereinafter pointed out.

According to LSA-R.S. 23:1314 as here-inabove cited there is no question in my opinion that the plea of prematurity is a proper procedural remedy under the circumstances and facts of this case. According to the last sentence in LSA-R.S. 23:1314, “And the question of whether or not such allegation of nonpayment (that compensation is due) is justified under the facts shall (that is, must) be determined by the court before proceeding-with the hearing of the other issues involved.” That to me is clear and unambiguous language that the plea as filed herein must be determined by the court before proceeding with the hearing of the other issues involved.

According to the rule of the majority herein, an injured employee may recover compensation for a year or more when he is really not entitled to any due to his unreasonableness and unjustifiable refusal of an operation or simple surgical procedure to cure his disability such as in the case at bar. It is true in the instant case that the present suit was filed only nineteen days after compensation was discontinued, but still I can foretell that with the necessary appellant delays, rehearing and application for writs, that the plaintiff herein will recover compensation for more than a year after May 4, 1956, when in truth and in fact, he is not entitled to any after said date due to his arbitrary and unreasonable position or demand in the matter. Now this is a case where no dilatory tactics were employed because the plaintiff lost no time in filing suit but suppose an injured employee delayed in filing suit maybe six months or nearly a year, which would be within his rights, then we would have a case where the employee could recover compensation for a year and a half or nearly two years or one hundred weeks when he is really not entitled to any during said period of time. I do not believe that to be fair or equitable to the parties involved. I am not unmindful of the humanitarian aims behind our Compensation Statute and the liberal manner in which it should be construed but to allow the majority opinion and its effect to' stand would, in my opinion, be stretching the liberality to such an extent never contemplated by the Legislature. I am of the opinion, however, that the procedure as taken by the defendants in the instant case and as outlined by the Statute above quoted does substantial justice to both sides without penalizing anyone.

For the above and foregoing reasons I am of the opinion that the plea of prematurity should be maintained and petitioner’s suit dismissed, and I therefore respectfully dissent from the majority herein.

      . We have some doubt in our mind that the issue of whether a refusal to take an operation is reasonable, is one properly to be raised by the plea of prematurity. We have pretermitted a discussion of this phase, because defendant by alternative rule in the nature of an answer admitted of the decree entered of suspension of compensation payments if the employee, after court determination, refused to submit to surgery.
      The issue herein is one in the nature of “confession and avoidance” — “Yes, he is disabled, and nevertheless we have terminated his compensation payments, but we feel we have legal cause to do so”. The delicate question of whether an admittedly disabled employee’s rights to workmen’s compensation may be conditioned upon bis submission to surgery, goes to the heart of the merits of the suit. If the plea of prematurity lies in this case, then it also lies in every case where the employee’s allegation of nonpayment of compensation to which the employee is entitled, is denied on the ground that the employee is not entitled to any because he is not disabled; which would include almost every compensation suit filed.
      Construing the act as a whole, it seems that an employer in a compensation suit is required to file an answer in ten days, LSA-R.S. 23:1315, even if he files other pleadings; and in the failure to file an answer, the court shall “upon simple request” of the petitioner enter a preliminary judgment in his favor, LSA-R.S. 23 :1316; or, at the time set for hearing, shall hear the evidence, and shall “decide the merits of the controversy as equitably, summarily and simply as may be,” LSA-R.S. 28:1317. This to our notion indicates that most probably the plea of prematurity raises only threshold questions of whether or not the workmen’s compensation benefits due (accepting plaintiffs claim of disability as true) are being paid; because if so, the employee is not statutorily entitled to seek a judicial determination of the controversy. If the plea of prematurity goes to the merits, then unless set for trial at the same time as the answer, this raises the probability of a multiplicity of trials of essentially the same issues, in contravention of the simple and expeditious procedure envisioned by the Act.
      When the employer denies any liability at all to an admittedly injured employee on the alleged ground that the payment of wages constituted the payment of compensation benefits due, the Supreme Court (reversing this Court) has ordered the plea of prematurity overruled, so that the rights and liabilities of the parties may be determined after a trial on the merits; D’Antoni v. Employers’ Liability Assurance Corporation, 213 La. 67, 34 So.2d 378, Thornton v. E. I. Du Pont De Nemours & Co., 207 La. 239, 21 So.2d 46, 47. (See also, Scalise v. Liberty Mutual Insurance Co., La.App., 1 Cir., 84 So.2d 88 at page 98.)