HAMITER, Judge.
The provisions of Section 20 of the Louisiana Employer’s Liability Act, being Act No. 20 of 1914, as amended, Act No. 85 of 1926, p. 123, § 5, are invoked herein by plaintiff. He seeks a modification of a judgment previously rendered awarding him compensation.
On August 17, 1934, suit was filed by plaintiff, Theodore Irvin Harris, against defendant, Southern Carbon Company, Incorporated, in which he alleged that he was totally and permanently disabled by reason of an injury to his foot received in an accident while employed by the defendant company. Compensation as for total and permanent disability in the amount of $20 per week for a period not exceeding 400 weeks, together with medical and hospital expenses, was prayed for. The entire relief requested was granted him_ by the district court, after a- trial of the case on its-merits, and defendant appealed to this court.
The evidence in the record, furnished to us in connection with that appeal, revealed that plaintiff was at the time of trial totally and permanently disabled.
With reference to this, we stated in our original opinion (162 So. 430) that “all the doctors for both plaintiff and defendant testify that plaintiffs foot was in such condition as to render it totally useless, and that, due to the condition of his foot, he was disabled from performing any labor or to follow any trade” (page 433). However, as the injury was confined to his foot and lower leg, and further, because of the construction placed by us on the jurisprudence of this State at that time interpreting the Louisiana Employer’s Liability Act, we held that plaintiff’s disability was equivalent only to the loss of a foot. Accordingly, the judgment of the trial court, granting compensation as for total and permanent disability was amended so as to award compensation pursuant to the provisions of Section 8, subd. 1(d)
7
of the statute Act No. 242 of 1928, p. 357. Regarding this, we said, 162 So. 434:
“The lower court found plaintiff to be totally and permanently disabled, and awarded him judgment for a period of not more than 400 weeks. In this respect the judgment is erroneous. The injury to plaintiff is localized in the foot and lower leg, all below the knee, and he is entitled to judgment for the loss of a foot only, or for 125 weeks. Calhoon v. Meridian Lumber Company, 180 La. 343, 156 So. 412.”
Applications for rehearing were then filed in this court by both plaintiff and defendant. A rehearing was refused. Thereafter, plaintiff applied to the Supreme Court for writ of certiorari, but his efforts were without success.
Payment of compensation was later commenced, as required by the provisions of the judgment. On October 31, 1936, and while there remained unpaid only six of the weekly compensation benefits, plaintiff instituted this proceeding. In his petition he outlined in detail the course pursued by his initial suit and alleged the result thereof. He further alleged the payment of compensation by defendant under the original judgment for more than twelve months, with a few remaining payments to be made; that the infection from the original foot injury has spread and increased, and that since 'the rendition of the judgment and trial of the first suit, his physical condition has gradually grown worse and his disability has increased. The prayer is for judgment modifying the iudgment in the first suit, and ordering the payment to him of compensation during disability, not exceeding 400 weeks, less such payments made prior to the trial of this proceeding.
Defendant then filed a plea of res ju-dicata, exceptions of no cause and no right of action and a plea of payment and satisfaction. These were overruled. Issue was then joined by defendant’s answer in which it reserved all rights under the aforementioned exceptions and pleas, denied that the condition of plaintiff had changed, and repleaded its pleas of res judicata and payment and satisfaction.
After a trial there was judgment rendered in plaintiff’s favor as prayed for. From the judgment defendant prosecuted this appeal.
In this court appellant again urges its pleas and exceptions which were overruled by the district court. It also argues that the evidence in the record discloses that there has been no change in plaintiff’s condition since the original judgment was rendered.
The contention of plaintiff is that his incapacity has greatly increased since the former trial, and that, under the authority of Section 20 of the Compensation Statute, he is entitled to a modification of the original judgment. The section just mentioned provides as follows:
“That a judgment of compensation may be modified by subsequent agreement between the parties, with the approval of a Judge of a Court which rendered the judgment sought to be modified, at any time after six months after said judgment of compensation shall have been rendered by the Judge of the trial Court it shall be reviewed by a judge of the Court that rendered the judgment sought to be modified upon the application of either party, on the ground that the incapacity of the employee has been subsequently diminished or increased, or upon the ground that the judgment was obtained through error, fraud or misrepresentation. In such cases the provisions of paragraph[s] 1 and 3 of Section 9 and Section 10 with reference to medical examination shall apply.”
Appellant’s plea of res judicata will first be considered and discussed. If it is meritorious, there is no need for discussing the other issues in the case. In this pleading, defendant avers:
“That all matters in dispute herein have been adjudged and are res judicata, and
in support thereof defendant shows that plaintiff in the original suit contended that he was totally disabled and was in fact found totally disabled and yet limited to recovery under specific provisions of the Workmen’s Compensation Laws of the State of Louisiana and in support thereof defendant attaches and makes a part hereof the original petition, original judgment, opinion and decree of the Court of Appeal, Second Circuit, State of Louisiana, application of plaintiff for writs of certiorari and review, and order of the Supreme Court of the State of Louisiana, refusing and disallowing said application.”
It might be here observed that if the initial proceeding had come before us subsequent to the decision and opinion of the Louisiana Supreme Court in Barr v. Davis Bros. Lumber Company, 183 La. 1013, 165 So. 185, no doubt our judgment therein would have been one awarding compensation for a period not exceeding 400 weeks, under the total disability clause of the statute, as prayed for by plaintiff; for the cited case clearly expresses the view that an employee is entitled to be compensated under the total disability provisions of the statute for an injury to a specific member of the body which totally disables him from doing work of any reasonable character, and the evidence in the record of the former suit showed that plaintiff was wholly incapacitated to work. It so happened, however, that the appeal in the initial proceeding was considered by us prior to the aforementioned decision, and, as before stated, our appreciation of the jurisprudence at that time compelled an award of compensation as for the loss of a specific member.
Free access — add to your briefcase to read the full text and ask questions with AI
HAMITER, Judge.
The provisions of Section 20 of the Louisiana Employer’s Liability Act, being Act No. 20 of 1914, as amended, Act No. 85 of 1926, p. 123, § 5, are invoked herein by plaintiff. He seeks a modification of a judgment previously rendered awarding him compensation.
On August 17, 1934, suit was filed by plaintiff, Theodore Irvin Harris, against defendant, Southern Carbon Company, Incorporated, in which he alleged that he was totally and permanently disabled by reason of an injury to his foot received in an accident while employed by the defendant company. Compensation as for total and permanent disability in the amount of $20 per week for a period not exceeding 400 weeks, together with medical and hospital expenses, was prayed for. The entire relief requested was granted him_ by the district court, after a- trial of the case on its-merits, and defendant appealed to this court.
The evidence in the record, furnished to us in connection with that appeal, revealed that plaintiff was at the time of trial totally and permanently disabled.
With reference to this, we stated in our original opinion (162 So. 430) that “all the doctors for both plaintiff and defendant testify that plaintiffs foot was in such condition as to render it totally useless, and that, due to the condition of his foot, he was disabled from performing any labor or to follow any trade” (page 433). However, as the injury was confined to his foot and lower leg, and further, because of the construction placed by us on the jurisprudence of this State at that time interpreting the Louisiana Employer’s Liability Act, we held that plaintiff’s disability was equivalent only to the loss of a foot. Accordingly, the judgment of the trial court, granting compensation as for total and permanent disability was amended so as to award compensation pursuant to the provisions of Section 8, subd. 1(d)
7
of the statute Act No. 242 of 1928, p. 357. Regarding this, we said, 162 So. 434:
“The lower court found plaintiff to be totally and permanently disabled, and awarded him judgment for a period of not more than 400 weeks. In this respect the judgment is erroneous. The injury to plaintiff is localized in the foot and lower leg, all below the knee, and he is entitled to judgment for the loss of a foot only, or for 125 weeks. Calhoon v. Meridian Lumber Company, 180 La. 343, 156 So. 412.”
Applications for rehearing were then filed in this court by both plaintiff and defendant. A rehearing was refused. Thereafter, plaintiff applied to the Supreme Court for writ of certiorari, but his efforts were without success.
Payment of compensation was later commenced, as required by the provisions of the judgment. On October 31, 1936, and while there remained unpaid only six of the weekly compensation benefits, plaintiff instituted this proceeding. In his petition he outlined in detail the course pursued by his initial suit and alleged the result thereof. He further alleged the payment of compensation by defendant under the original judgment for more than twelve months, with a few remaining payments to be made; that the infection from the original foot injury has spread and increased, and that since 'the rendition of the judgment and trial of the first suit, his physical condition has gradually grown worse and his disability has increased. The prayer is for judgment modifying the iudgment in the first suit, and ordering the payment to him of compensation during disability, not exceeding 400 weeks, less such payments made prior to the trial of this proceeding.
Defendant then filed a plea of res ju-dicata, exceptions of no cause and no right of action and a plea of payment and satisfaction. These were overruled. Issue was then joined by defendant’s answer in which it reserved all rights under the aforementioned exceptions and pleas, denied that the condition of plaintiff had changed, and repleaded its pleas of res judicata and payment and satisfaction.
After a trial there was judgment rendered in plaintiff’s favor as prayed for. From the judgment defendant prosecuted this appeal.
In this court appellant again urges its pleas and exceptions which were overruled by the district court. It also argues that the evidence in the record discloses that there has been no change in plaintiff’s condition since the original judgment was rendered.
The contention of plaintiff is that his incapacity has greatly increased since the former trial, and that, under the authority of Section 20 of the Compensation Statute, he is entitled to a modification of the original judgment. The section just mentioned provides as follows:
“That a judgment of compensation may be modified by subsequent agreement between the parties, with the approval of a Judge of a Court which rendered the judgment sought to be modified, at any time after six months after said judgment of compensation shall have been rendered by the Judge of the trial Court it shall be reviewed by a judge of the Court that rendered the judgment sought to be modified upon the application of either party, on the ground that the incapacity of the employee has been subsequently diminished or increased, or upon the ground that the judgment was obtained through error, fraud or misrepresentation. In such cases the provisions of paragraph[s] 1 and 3 of Section 9 and Section 10 with reference to medical examination shall apply.”
Appellant’s plea of res judicata will first be considered and discussed. If it is meritorious, there is no need for discussing the other issues in the case. In this pleading, defendant avers:
“That all matters in dispute herein have been adjudged and are res judicata, and
in support thereof defendant shows that plaintiff in the original suit contended that he was totally disabled and was in fact found totally disabled and yet limited to recovery under specific provisions of the Workmen’s Compensation Laws of the State of Louisiana and in support thereof defendant attaches and makes a part hereof the original petition, original judgment, opinion and decree of the Court of Appeal, Second Circuit, State of Louisiana, application of plaintiff for writs of certiorari and review, and order of the Supreme Court of the State of Louisiana, refusing and disallowing said application.”
It might be here observed that if the initial proceeding had come before us subsequent to the decision and opinion of the Louisiana Supreme Court in Barr v. Davis Bros. Lumber Company, 183 La. 1013, 165 So. 185, no doubt our judgment therein would have been one awarding compensation for a period not exceeding 400 weeks, under the total disability clause of the statute, as prayed for by plaintiff; for the cited case clearly expresses the view that an employee is entitled to be compensated under the total disability provisions of the statute for an injury to a specific member of the body which totally disables him from doing work of any reasonable character, and the evidence in the record of the former suit showed that plaintiff was wholly incapacitated to work. It so happened, however, that the appeal in the initial proceeding was considered by us prior to the aforementioned decision, and, as before stated, our appreciation of the jurisprudence at that time compelled an award of compensation as for the loss of a specific member.
The question therefore presented by the plea of res judicata may be stated: If it be conceded arguendo that the original judgment of this court was erroneous, does such erroneous judgment bar plaintiff’s right to obtain in this proceeding compensation as for total and permanent disability under the present jurisprudence of Louisiana ?
According to Article 539 of the Louisiana Code of Practice, a definitive or final judgment is such as decides all the points in controversy between the the parties and has' the force of res judicata. To determine whether or not a judgment is res judicata to a subsequent action, the provisions'of Louisiana Civil Code, Article 2286 must be considered. This article reads:
“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action ; the demand must be between the same parties, and formed by them against each other in the same quality.”
The jurisprudence of this state is to the effect that a final judgment in a cause is res judicata to a later suit where the elements named in Civil Code, Article 2286 are present in both proceedings, regardless of whether the judgment is correct or incorrect. Pace Lake Gas Company v. United Carbon Company, 177 La. 529, 148 So. 699; Jones v. Briscoe, 179 La. 309, 154 So. 7; LeBlanc v. Cristina, 19 La.App. 397, 140 So. 149.
Even if we assume that the judgment in the original suit was incorrect, under the aforementioned authorities it operates as a bar to the instant proceeding, unless section 20 of the compensation statute, above quoted, provides otherwise. The judgment in question is definitive in character, for it decided all of the points in controversy between the parties. In both suits, the thing demanded is the same, plaintiff having sought compensation therein under the total and permanent disability provisions of the statute; and the demand is founded on the same cause of action, is between the same parties and is formed by them against each other in the same quality.
A readng of the above mentioned and quoted section of the compensation statute is convincing that no relief is thereunder granted to plaintiff with respect to the prosecution and maintenance of this action. It authorizes the modification of a judgment, awarding compensation, on the ground that the incapacity of the employee diminished or increased, or that such judgment was obtained through error, fraud or misrepresentation; however, it does hot contemplate or provide for a situation, such as is here presented, where the proof in the first proceeding disclosed permanent and total disability, but the court, being cognizant of that- proof, decreed recovery under one of the specific injury clauses of the statute because of a statutory construction with which jurisprudence subsequently made by the highest tribunal of this state conflicted.
The provisions of the compensation statute relied on herein by plaintiff .for a mod
ification of the judgment was involved in the case of O’Donnell v. Fortuna Oil Company, 10 La.App. 599, 120 So. 789, decided by this court. The plaintiff in that case had suffered an injury to the middle finger of his left hand, and for that injury he was awarded compensation, under a final judgment, as for partial disability for a period not exceeding 300 weeks. Compensation- under the judgment was paid by the defendant for more than 150 weeks, and it then caused the issuance of a rule praying that the judgment be modified by decreeing that plaintiff was not entitled to further payments of compensation. It urged in the proceeding that the original judgment was erroneous in that the proper period of compensation should have been one not exceeding 150 weeks under the specific member provisions of the statute. Our holding was that the correctness of the original judgment could not be questioned in that proceeding. An application for writs of certiorari was then made to the Supreme Court. These were denied on May 20, 1929. In the opinion of that case, we said (page 790) :
“The injury sustained by O’Donnell, for which compensation was awarded him, was an injury to the middle finger of his left hand, and the Fortuna Oil Company contends that, even though it be conceded that the injury to the finger involved the hand, the-period of ■ compensation should not have been fixed for a period exceeding 150 weeks, under paragraph (5), cl. (d), subsec. 1, § 8 of the statute, as amended by section 1, of Act No. 247 of 1920, which provided that for the loss of a hand the period of compensation should be 150 weeks, citing in support of its position the decision in James v. Spence & Goldstein, Inc., 161 La. 1108, 109 So. 917, in which, it is claimed, it was held that where disability results from injury to a member, as the fingers or hand, and compensation is allowed on the basis of disability, the period of compensation should not exceed that fixed by the statute for the loss of the member, and appellant, Fortuna Oil Company, seeks to have the judgment awarding O’Donnell compensation reviewed and the period of compensation fixed at not exceeding 150 weeks, and thus be relieved of further payments, as it had already paid O’Donnell compensation for a period in excess of 150 weeks.
“Counsel do not cite any authority which would authorize the proceedings had and judgment rendered therein to be thus reviewed, and,
being of the opinion that the judgment was conclusive of all matters of fact and law which were or could have been considered at the time of the trial, the judgment cannot be questioned on an application to modify the decree
(Estate of Beckwith v. Spooner, 183 Mich. 323, 149 N.W. 971, Ann.Cas.1916E, 886), where it is not alleged to have been obtained through error superinduced by fraudulent practices or misrepresentation. Section 20, Act No. 20 of 1914, as amended; article 607, C.P.”
The doctrine announced in the last discussed- case was reiterated in Bailey v. Gifford Sand & Gravel Company, La.App., 145 So. 712, in the following language:
“The original judgment in this case is conclusive of all matters of fact and law which were or could have been considered at the time of trial. The correctness of the judgment cannot be questioned on an application to modify the decree when there is no plea of error, fraud, or misrepresentation. O’Donnell v. Fortuna Oil Company, 10 La.App. 599, 601, 120 So. 789.”
For the foregoing reasons, the judgment appealed from herein is reversed and set aside; defendant’s plea of res judicata is sustained, and plaintiff’s action is dismissed at his costs.