Berry v. Higgins, Inc.
This text of 136 So. 2d 170 (Berry v. Higgins, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Plaintiff, Hiram Berry, employed as a ship’s carpenter, instituted this suit against the defendants, Higgins, Inc. and its insurer, Aetna Casualty and Surety Company, endeavoring to recover workmen’s compen[171]*171sation at the rate of $35.00 per week for a period of 400 weeks 1 together with medical expenses, attorney’s fees and penalties, for total and permanent disability resulting from a fracture of his left ankle which was incurred in the course of his employment on March 17, 1960.
The defendants pleaded the exceptions of no right or cause of action which were disposed of and then answered, admitting the occurrence of the accident and the injury to the plaintiff, but denied that there existed a residual disability therefrom; in the alternative, they pleaded payment of compensation to the plaintiff in the amount of $903.00 which should be deducted from any sum in excess thereof, in the event the defendants are cast in judgment.
From a judgment awarding the plaintiff compensation in the amount of $10.00 per week, for 175 weeks, together with the respective sums of $101.64 for penalties on past due compensation, $200 attorney’s fees, and $100 as an expert fee for Dr. Haslam, the defendants have prosecuted this appeal.
The plaintiff has answered the appeal requesting the rendition of a judgment for total and permanent disability and that the fee awarded plaintiff’s attorney be increased in view of the additional legal work necessitated by virtue of this appeal.
Counsel for the defendants has conceded in oral argument before this court that the medical testimony adduced in the lower court preponderated to the effect that the plaintiff had incurred a permanent partial disability of the left leg to the extent of 6.66% as found by the trial judge.
Therefore, the initial question posed for our consideration by virtue of this appeal, and the answer filed in response thereto, is whether the foregoing percentage of disability, considering the nature of the plaintiff’s work as a ship’s carpenter, constituted permanent total rather than permanent partial disability.
In our opinion, the answer to this question was provided by the four physicians who appeared to enlighten the court; namely, Dr. John D. Andrews, a general practitioner, who initially treated the plaintiff, and Drs. Hyman R. Soboloff, Armand J. Scully and Edward T. Haslam, orthopedists, all of whom with the exception of Dr. Scully, were thoroughly familiar with the nature of the plaintiff’s work. No useful purpose would be served by indulging in a protracted discussion of their testimony; suffice it to say that both plaintiff’s and defendants’ doctors related in substance, which in itself is somewhat unusual for appellate judges to read, that despite a disability of the left leg, ranging from 5% to 10%, the plaintiff was capable of resuming his former occupation as a ship’s carpenter. Therefore, we are in full accord with both the legal and factual conclusions reached by the trial judge who reasoned that the plain7 tiff had incurred a partial permanent disability of the left leg in conformity with the schedule of payments as disclosed by the Workmen’s Compensation Act2, awardT ed him $10.003 per week for 175 weeks, [172]*172subject to a credit for compensation previously paid.
The defendants also contend that the lower court erred in awarding an expert’s fee of $100.00 to Dr. Haslam. Our examination of the record fails to disclose any error in this respect; in fact, the testimony inscribed therein and also quoted extensively in the defendants’ brief reflects that Dr. Haslam, after having examined the plaintiff, appeared on his behalf only to express - a professional opinion as a specialist in .orthpedics relative to the nature and extent of his injury. It is clear that such an expert’s fee is taxable as costs and that the amount thereof was reasonable.4 Of course, if Dr. Haslam’s testimony had pertained to treatment of the plaintiff’s- injury, then it would have been improper, under such circumstances for the lower court to -award an expert’s fee.
The defendants finally insist that the lower court erred in assessing penalties and attorney’s fees. Our examination of the record relative to this contention discloses that at the time compensation was terminated, the insúrer had in its possession a medical report from its own treating physician, Dr. Andrews, wherein he had stated that although ' the plaintiff was able to resume employment, he nonetheless had incurred a “5% partial permanent disability of the left lower extremity.”
The trial judge correctly considered this as ample evidence from which to conclude that this failure to continue compensation payments in view of defendant’s knowledge of the plaintiff’s disability, was in the words of the applicable statute5, “arbitrary, capricious, or without probable cause,” and he therefore subjected the “insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss,” which amounted to the sum of $101.64. The mere fact that a compromise was offered or tendered to the plaintiff after suit was filed did not militate against or defeat his right to recover penalties.
Plaintiff has requested that the attorney’s fee of $200.00 awarded by the lower court should be increased, due to the extra legal work performed under the eyes of this court.
The penal statute 6 contained in the Insurance Code provides for the payment of “all reasonable attorney’s fees for the prosecution and collection” of compensation arbitrarily withheld; however, it places no limitation on the amount of the attorney’s fee, other than that the fee must be reasonable, that is, commensurate with and based on the reasonable value of the services rendered. This fee should also be fixed without regard to the provision relative to fees 7 contained in the Workmen’s Compensation Act which is wholly and entirely inapplicable.8
In conformity with the foregoing rationale, we shall increase the attorney’s fee from $200.00 to the sum of $400.00 and predicate this increase on the extra legal work performed by plaintiff’s counsel which was necessitated by virtue of this appeal.
For the reasons assigned, the judgment of the lower court insofar as it awarded the [173]*173plaintiff an attorney’s fee in the amount of $200.00 is amended so as to increase this fee to the sum of $400.00, and as thus amended, it is in all other respects affirmed.
Amended in part; affirmed in part.
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Cite This Page — Counsel Stack
136 So. 2d 170, 1962 La. App. LEXIS 1492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-higgins-inc-lactapp-1962.