[293]*293Lonzo Brooks vs Board of Commissioners of the Port of New Orleans,Appellant.
No.8891
Charles F.Claiborne,Judge.
This is a suit for $4968 under the Employer’s Liability Act.
The plaintiff averred that for five years,more or less,preceding April 1921 he had been employed by the defendant, generally known as the Dock Board,as a laborer at the wages of 40 cents aeUiour for nine hours each day^making S3.60 a day, and |21.60 a w.eek;that in the month of April 1921 he was working at the Industrial Canal;that in the course of his employment he fell from a plankway erected over the Canal and was precipitated to the bottom of the Canal,a distance of eleven feet; that by said fall he broke six ribs and was otherwise badly hurt;that he was taken to the Charity Hospital where he remained for two weeks;that after leaving the Hospital he was treated at his home by Dr Breaux for a period of four months and a half; that for the five months during which he was under treatment he received half pay from the Dock Board or $216-; that after these five months he tried to work without avail;that his injuries have produued permanent total disability to do work of any kind and have oaused permanent blindness of his left eye , Plaintiff prayed for sixty per cent of.$21.60 per week for a total of 400 weeks,or for $5184 subject to a credit of $268 or $4968 with five per cent per annum interest from judicial demand till paid.
The defendant admitted that the■plaintiff,at the time of the accident to him,was employed at the wages alleged by him;that he was treated by Dr Breaux,the defendant's physi-oiansthat he was discharged by the physician,and told to go baok to work;that he returned tó work,but came late and made [294]*294no effort to work and was finally discharged; and it denied all the other allegations of the petition.
There was judgment for the plaintiff for compensation at the rate of $12.96 per week payable weekly for 400 weeks beginning April 1st 1921 ,less a credit of $216 . The defendant appealed.
The contention of the defendant is that the incapacity for work of the plaintiff arose from two causes having no connection with the accident to him l
First; Senile changes incapacitating him from work,as he was seventy years old at the' time,and
Second: Total blindness of the left eye due to glaucoma, having no casual relationship with his fall.
The evidence is that prior to his accident the plaintiff was employed as a laborer on the Industrial Canal handling and lifting timber,rolling dirt,and doing other manual labor.A fellow-laborer thus described him:" Well,at that time that old gentleman was weighing about 196 pounds,good and heavy and he could get around as good as some of these young fellows", The same witness testifies:" Well his ability now,compared to’ the time before he' got hurt,he is no more than a child now tc what he was,because he couldn't give no man an honest day's work now,to save fels life."There is no contradiction of that testimony; on the contrary it is corroborated throughout.
Another colored witness says that since $e was.hurt his condition has changed powerfully-he cant stand no work."
Dr Randolph Lyons,who was appointed by the Court, to examine the plaintiff says,as a part of his report;
" His fall is therefore only indirectly responsible for his present disability xxx But the shock might liave accelerated the condition which was due to aome in the course of time It brought on a senile condition which might not have occurred [295]*295immediately.I mean by that he might have continued to work for several months,or probably a year,had this shock not occurred.
The snook simply brought on the senile changes which would make it practically impossible for him to work any more. In other words,the man was able to work until he got this shock, and while the injury was not a severe injury,ho was unable to do any work thereafter m The fact that ho was able to work, and worked oontinnously SeBore the fall,and the fact that the changes which he showed at the examination occurred or were present after the fall,leads me to believe that the fall,or shook as a result of the fatl,had brought on the condition of marked senility.xxx I think it ( the accident ) is responsible for the present condition in this manner,that if it had not occurred,he might still be working now with the same job that he had;but his physical condition showed that he could not work oontinnously for any length of time."
The plaintiff was not blind of one eye or did no know he was blind,prior to the accident.He ascertained it only many months after.Glancoma was the cause of the loss of his oyeJbut it had no casual connection with his fall. Whether it had or not,is not necessary to determine since' Dr Xyons'opinion as to plaintiff’s ability to work and the effect of the fall is based upon tne plaintiff’s physical condition independently of his sense of sight.
The /law of the oaB^^a^^t^he^i^irait^s^nd^^.^^. diseases with which the employee may have been,afflicted do - «not affect his right of recovery.The test is,did the aGcidént i bring about the condition of disability which it is th& iftteri-. ■ tion of the Workmen's Compensation Aot to relieve t If it did ' i .i ' 'the employer is liable.
Our Supreme Court in Behan vs Honor Co. 143 La 348 said; " The fact that an employee was-already afflicted with a' dormant disease that might some day have produced physioal [296]*296disability is no,reason why the employee should not be allowed compensation under the Workmen's Compensation Act for the injury which.added to the disease,superinduced physical disa-I bility-Also 147 La 865,Advance Sheets of C.J. No.60 p.76 . f
The schedule of payments under Compensation Act No.20 of 1914 is fixed by Section 8 (d) P.51 as follows:
"For injury producing permanent total disability to do work of any character,fifty per centum of the average weekly wages,but not more than $10,nor less than $3 per week fcr a period nor exceeding 400 weeks ."
The same compensation is repeated in Act 243 of «48 1915 (e.) p.515 .
Section 8 S 1 p.53 of Act 38 of 1918 again amends these acts.
ACt 247 of 1920 p.467 is the law of this case.
Sec 8 S 1 ( ") reads as follows :For xxx any injury producing permanent total disability to do work of any 'reasonable character,sixty per centum of wages during the period of disability,not however,beyond 400 weeks."
Under this paragraph the Judgment appealed from allowed the plaintiff 60 per cent of his weekly wages or $12.96 during 400 weeks.
The defendant argues that the Judgment should be reduoed to 30U weeks under the following paragraph 0 which reads as follows :
" For injury producing partial disability to do work of any reasonable character,sixty per oebt of difference between wages at the time of the injury,and wages which the injured employee is able to earn thereafter during the period of disability,not however beyond 300 weeks."
The evidence satisfies us that plaintiff's disabll-r; ity is of a " permanent total" character and not only partial.
An injury rendering the "ability of the employee to do any renumerativo labor more than doubtful constitutes, [297]
Free access — add to your briefcase to read the full text and ask questions with AI
[293]*293Lonzo Brooks vs Board of Commissioners of the Port of New Orleans,Appellant.
No.8891
Charles F.Claiborne,Judge.
This is a suit for $4968 under the Employer’s Liability Act.
The plaintiff averred that for five years,more or less,preceding April 1921 he had been employed by the defendant, generally known as the Dock Board,as a laborer at the wages of 40 cents aeUiour for nine hours each day^making S3.60 a day, and |21.60 a w.eek;that in the month of April 1921 he was working at the Industrial Canal;that in the course of his employment he fell from a plankway erected over the Canal and was precipitated to the bottom of the Canal,a distance of eleven feet; that by said fall he broke six ribs and was otherwise badly hurt;that he was taken to the Charity Hospital where he remained for two weeks;that after leaving the Hospital he was treated at his home by Dr Breaux for a period of four months and a half; that for the five months during which he was under treatment he received half pay from the Dock Board or $216-; that after these five months he tried to work without avail;that his injuries have produued permanent total disability to do work of any kind and have oaused permanent blindness of his left eye , Plaintiff prayed for sixty per cent of.$21.60 per week for a total of 400 weeks,or for $5184 subject to a credit of $268 or $4968 with five per cent per annum interest from judicial demand till paid.
The defendant admitted that the■plaintiff,at the time of the accident to him,was employed at the wages alleged by him;that he was treated by Dr Breaux,the defendant's physi-oiansthat he was discharged by the physician,and told to go baok to work;that he returned tó work,but came late and made [294]*294no effort to work and was finally discharged; and it denied all the other allegations of the petition.
There was judgment for the plaintiff for compensation at the rate of $12.96 per week payable weekly for 400 weeks beginning April 1st 1921 ,less a credit of $216 . The defendant appealed.
The contention of the defendant is that the incapacity for work of the plaintiff arose from two causes having no connection with the accident to him l
First; Senile changes incapacitating him from work,as he was seventy years old at the' time,and
Second: Total blindness of the left eye due to glaucoma, having no casual relationship with his fall.
The evidence is that prior to his accident the plaintiff was employed as a laborer on the Industrial Canal handling and lifting timber,rolling dirt,and doing other manual labor.A fellow-laborer thus described him:" Well,at that time that old gentleman was weighing about 196 pounds,good and heavy and he could get around as good as some of these young fellows", The same witness testifies:" Well his ability now,compared to’ the time before he' got hurt,he is no more than a child now tc what he was,because he couldn't give no man an honest day's work now,to save fels life."There is no contradiction of that testimony; on the contrary it is corroborated throughout.
Another colored witness says that since $e was.hurt his condition has changed powerfully-he cant stand no work."
Dr Randolph Lyons,who was appointed by the Court, to examine the plaintiff says,as a part of his report;
" His fall is therefore only indirectly responsible for his present disability xxx But the shock might liave accelerated the condition which was due to aome in the course of time It brought on a senile condition which might not have occurred [295]*295immediately.I mean by that he might have continued to work for several months,or probably a year,had this shock not occurred.
The snook simply brought on the senile changes which would make it practically impossible for him to work any more. In other words,the man was able to work until he got this shock, and while the injury was not a severe injury,ho was unable to do any work thereafter m The fact that ho was able to work, and worked oontinnously SeBore the fall,and the fact that the changes which he showed at the examination occurred or were present after the fall,leads me to believe that the fall,or shook as a result of the fatl,had brought on the condition of marked senility.xxx I think it ( the accident ) is responsible for the present condition in this manner,that if it had not occurred,he might still be working now with the same job that he had;but his physical condition showed that he could not work oontinnously for any length of time."
The plaintiff was not blind of one eye or did no know he was blind,prior to the accident.He ascertained it only many months after.Glancoma was the cause of the loss of his oyeJbut it had no casual connection with his fall. Whether it had or not,is not necessary to determine since' Dr Xyons'opinion as to plaintiff’s ability to work and the effect of the fall is based upon tne plaintiff’s physical condition independently of his sense of sight.
The /law of the oaB^^a^^t^he^i^irait^s^nd^^.^^. diseases with which the employee may have been,afflicted do - «not affect his right of recovery.The test is,did the aGcidént i bring about the condition of disability which it is th& iftteri-. ■ tion of the Workmen's Compensation Aot to relieve t If it did ' i .i ' 'the employer is liable.
Our Supreme Court in Behan vs Honor Co. 143 La 348 said; " The fact that an employee was-already afflicted with a' dormant disease that might some day have produced physioal [296]*296disability is no,reason why the employee should not be allowed compensation under the Workmen's Compensation Act for the injury which.added to the disease,superinduced physical disa-I bility-Also 147 La 865,Advance Sheets of C.J. No.60 p.76 . f
The schedule of payments under Compensation Act No.20 of 1914 is fixed by Section 8 (d) P.51 as follows:
"For injury producing permanent total disability to do work of any character,fifty per centum of the average weekly wages,but not more than $10,nor less than $3 per week fcr a period nor exceeding 400 weeks ."
The same compensation is repeated in Act 243 of «48 1915 (e.) p.515 .
Section 8 S 1 p.53 of Act 38 of 1918 again amends these acts.
ACt 247 of 1920 p.467 is the law of this case.
Sec 8 S 1 ( ") reads as follows :For xxx any injury producing permanent total disability to do work of any 'reasonable character,sixty per centum of wages during the period of disability,not however,beyond 400 weeks."
Under this paragraph the Judgment appealed from allowed the plaintiff 60 per cent of his weekly wages or $12.96 during 400 weeks.
The defendant argues that the Judgment should be reduoed to 30U weeks under the following paragraph 0 which reads as follows :
" For injury producing partial disability to do work of any reasonable character,sixty per oebt of difference between wages at the time of the injury,and wages which the injured employee is able to earn thereafter during the period of disability,not however beyond 300 weeks."
The evidence satisfies us that plaintiff's disabll-r; ity is of a " permanent total" character and not only partial.
An injury rendering the "ability of the employee to do any renumerativo labor more than doubtful constitutes, [297]*297permanent total disability within the Workmen's Compensation act -146 La 383 .
" Where one loses his only eye and it does not appear that he is able to do remunerative work of any reasonable character,the disability will be considered to tal and he will be allowed compensation as for permanent total disability." 151 La 59 (62 ) .
But even then the record does not show what was the difference between plaintiff's wage earning capacity before and after the accident,and we are not able to make a computation under the law.145 La 829 .
The defendant has answered the appeal by praying H for interest at five per cent on each past due payment from the time the same became due."He is entitled to the amendment under Article C.C.1938 (1932) which provides:
"■ All debts shall bear interest at the rate of five per centum per annum from the time they become due,unless otherwise stipulated,"
It is therefore ordered that the judgment of the District Court be affirmed with five per cent per annum interest on each past due payment from the time the same became due,and that defendants pay costs in both Courts.
Judgment affirmed with interest,
April 2nd 1923.
[298]*298LONZO BROOKS vs. BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS.
NO. 8891.
COURT OF APPEAL PARISH OF ORLEANS.
On Motion of Appellee to Dismiss Appeal
"’illia:.: a. bell, judge
Appellee troves to dismiss the appeal herein taken by-appellant on the ground that the order of appeal was not signed by the Judge of the Trial Court having authority or jurisdiction to grant said order of appeal. The records shows that the judgment appealed from was rendered by the judge of Division "P" of the District Court for the Parish of Orleans which judge was duly appointed to act for and in place of the judge of Division ."C" of said District Court, all in compliance with two certain orders of the Supreme Court of Louisiana dated and reading as follows:
November 4, 1921.
"It having been made known to this Court that the Honorable E. K. Skinner, Judge of Division "C", has owing to ill-health, applied for a leave of absence for sixty days; it is ordered that the Honorable Percy Saint, Judge of Division "F" of the Civil District Court be and he is hei'eby assigned to take charge of Division "C" of the Civil District Court in place and stead of the Honorable E. R. Skinner and to try and determine all matters end causes allotted to this division according to law and until further orders of this Honorable Court".
June £3, 1922.
"It is ordered that for the proper dispatch of the business of the said Civil District Court for the Parish of Orleans that all the cases that shall be pending before Division "C" of the Civil District Court for the Parish of Orleans on the 1st. day of August, 1922, and which [299]*299have been tried in whole or in part and which are still undecided, or the judgment rendered therein unexecuted shall he assigned to Bivision "F" for full trial and for execution of judgment rendered".-
It is contended that the order granting the appeal herein having been signed by the Judge of Division "C" when the cause had already been transferred to Division "F" and to the Judge presiding over the said latter Division of the said Court, that the said order was null and void and of no effect with the result that no order of appeal has been legally entered and that therefore the appeal herein taken is also null and void and should accordingly be dismissed.
Rule eight of the Civil District Court for the Parish of Orleans revised, adopted and effective from August 16, 1921 reads as follows:
Section 4. In case of absence or disability of the Judge to whose division a cause has been allotted, or in case of vacancy in his office, any other Judge of the Court shall be empowered to act in said cause as fully as if it had been originally allotted to the division over which he presides,' runtil the absenoe or disability shall have ceased, or the vacancy shall have been filled.
Even though there were no such rule as just above quoted and even though under the Constitution of 1921 the Civil District Court for the Parish of Orleans might be said not to have authority to adopt such rule, we are satisfied upon the authority cited below, that there is no merit in the motion herein made for the dismissal of the appeal. It has been held that where a Judge of a District Court of the Parish of Orleans is absent, another District Judge of the Parish can grant an appeal from a judgment rendered by the absent Judge.
BOLDEN v. BARNES, 118 La. 274; BRIGOT v. BRIGOT, 49 La. Ann. 1442; AUSTIN v. SCOVILL, 34 La. Ann. 484; BUISSON v. LAZARUS, 33 La. Ann. 1434; DE ST. ROMES v. LEVEE STEAM & CO., 31 La. Ann. 224.
MOTION TO DISMISS APPEAD IS DENIED.
ríinúajy .22, 1923.