Thompson v. Louisiana Central Lumber Co. , 2 La. App. 200 ( 1925 )

CARVER, J.

This is a suit under the workmen’s compensation act. Both parties appeal from a judgment awarding plaintiff $14.40 per week for 175 weeks and during disability, not exceeding 225 additional weeks, less $210.00 deducted from the first amounts due, and' less an additional $1151.00 to be paid by deducting the amount of compensation due at the time of the judgment and the balance by deducting 50% of the weekly compensation allowed until paid.

The proof shows that on October 23, 1923, the plaintiff then 19 years old, while working for defendant as a “swamper” clearing roads for its log wagons, accidently cut his left leg just above the knee. Defendant had him placed in the St. Francis Sanitarium at Monroe and his wound treated by Doctors Beetle and Ben-dell. They tried to save the leg, but it had become badly infected and on or about December 25, 1923; they amputated it just above the knee.

He remained at the Sanitarium until about January 29, 1924, when his uncle, John A. Moore, who had partially raised him and who stood to him as a parent, his father and mother both having died, when 'he was quite young, took him over the objection of defendant to Shreveport. Moore tried to place him in the Charity Hospital, but that institution refused to receive him because he was entitled to compensation from his employer.

Thereupon Moore telephoned to the office of defendant at Clark’s, Louisiana, he says he recived no satisfaction at this place, whereupon he called ■ up the head man of defendant at Pineville or Alexandria and was told to carry him to Schumpert Sanitarium, which was done. His condition on arrival there is described by Dr. Willis as follows:

"Yes, I first saw him on January 29, 1924. He came into the Sanitarium very emaciated, had bed sores over his back and both hips as big as saucers and the left leg was amputated above the knee. General condition very good.”

He further stated (page 14) that there Were three large sores about the size of a round s’aucer with the bone exposed in the center from both hips and the sacrum and back bone.

And further, ' (page 15) “He was so emaciated you could easily lift him with both hands”.

He remained in the Schumpert Sanitarium until September 19, 1924, when he was discharged.

Dr. Willis says (page 11):

“His condition on discharge was that the stump of his left leg was healed, his general condition was good. We considered him in good shape and expected him to make a good recovery in about three or four months, of course, with the loss of the leg.”

"Q. Had the toxins due to the infection entirely disappeared when he was discharged?

“A. Yes.”

He further gave it as his opinion that after three or four months from the time of discharge he would be all right, except for the loss of the leg.

While in the Schumpert Sanitarium his leg was reamputated near the hip;. Dr. Willis stating that this was necessary because the bone was protruding beyond the muscle and skin tissue.

On January 10, 1925, Doctors E. L. Sanderson, S. C. Barrow and O. C. Rigby gave testimony, they having examined him December 31, 1924. Dr. Barrow had taken x-ray pictures of his right knee joint and stated that it was affected with arthritis; that the cartilage had become partly absorbed; and there was inflamation of the parenthymatous membrane; all of which thought was caused by general infection of the system.

Dr. Rigby testified, page 22:

“On physical examination he looked somewhat emaciated and extremely weak. His pulse was one hundred and forty and his temperature was one hundred. His respiration was about twenty. The left leg is amputated at the junction of the middle upper third of the fema. The right leg shows some atrophy of the muscles of the knee joint with some contraction of the flexor muscles and tenons of the knee. The foot is bluish in color, and cold, due to poor circulation. The lungs, on examination with a stethescope, ' did not reveal any rels or anything that might lead you to suspect tuberculosis. The heart does not seem to be enlarged but is very rapid. His general appearance is that of a disease of infection of some kind in which it has gone all over the body, but must have been absorbed up. The x-ray which was taken of the knee joint shows chronic arthritis, with an absorbtion of the cartilage in the knee.”

He further testified, page 24:

“I think his knee will always be impaired, and it is probable that he otherwise may be impaired from the standpoint of his heart and lungs.”

He further testified page 25:

“I don’t believe he will ever be able to doi manual labor any more.”

Dr. Sanderson testified, page 30:

“Well, I am convinced that this man having gone through a long period of septic infection, that all the tissues in his body were infected and naturally the larger joints in your body suffer from general septic poisoning more so than the other parts. I don’t say that they suffer more, but their function is more impaired because of their greater importance. I think when this man got out of bed and began to walk that his knee joint had been so affected that the pressure necessary to carry the whole weight of his body, even if that knee were normal, was too great, and it produced a hypo-atrophy of the tissues around the joint, that is, there was some enlargement, nature trying to make it stronger with absorption of the cartilage that lined the joint. I think the absorption the x-ray shows took place after the man got up his weight bearing in the knee joint twice as much as the knee was accustomed to carrying and that the cartilage was diseased and they would not stand the bearing, and that cartilage was ahsorbed, leaving the bone practically without .any bearing.”

Further, on page 32:

“I think he is totally disabled and permanently disabled.”

At the time of the trial. Dr. Hines examined the plaintiff at defendant’s request but was not asked to testify.

While in the Schumpert Sanitarium plaintiff’s right leg had become crooked and an effort was made to straighten it by the use of a plaster of paris cast. This effort, though, was unsuccessful as the leg became crooked again soon after taking the cast off and at the time of trial was still crooked to the extent of about six inches.

Plaintiff testified that he had made efforts by the help of school children and others to straighten the leg but could not do it and could not bear his weight on it without crutches. He further said that he was subject to falling and that he had chills when he ate anything hard to digest. Also that while his normal weight was 172 pounds that he then weighed only a little over 100. And further, that he had been very much more emaciated but had gained in weight until about six weeks before the trial, which was on January 15, 1925, at which time he had ceased to gain.

The evidence satisfies us that plaintiff’s condition is one of total and permanent disability.

Plaintiff alleges and swears that his wages at the time of the accident were $3.50 a day and board.

Rosser, the contractor under defendant for whom plaintiff worked testified that it was $3.00 a day and board.

As to board, the proof shows that at the regular boarding house the charge is $1.00 a day. Rosser says, though, that he intended boarding plaintiff at his own residence and figured that the additional cost, besides the expense of his own family, would be only 50 or 60 cents a day. However, his family was absent at the time and he placed plaintiff at one Bill Jordan’s without making any arrangement as to the expenses for plaintiff’s board, but after the accident settled with him for 75 cents per day .

The District Judge figured the wages at $4.00 a day including board but wrote no opinion showing how he arrived at it, and counsel for plaintiff and defendant disagree as to how it was arrived at. Plaintiff’s counsel says that he figured $3.50 a day, plus 50 cents for board. Defendant’s counsel say he figured $3.00 a day plus $1.00 for board.

Besides the above testimony of plaintiff and Rosser, we quote the following:'

Rosser, page 132:

“Q. What was the usual and customary price paid for swamping?

“A. $2.75.

“Q. And the man board himself?

“A. Yes, sir.”

Plaintiff and Rosser both testify that formerly plaintiff had worked as swamper for Mr. Griggs and plaintiff admits (page 133) that he was getting from Griggs for the swamping job $2.75 He does not say whether he got board in addition or not. On being asked if $2.75 was the regular price for swamping, he answered, “No, sir, $3.50 is the regular price for contractors to pay”. *

Under this evidence we think that the proper amount to figure as plaintiff’s wages, besides the board, is $3.00 a day.

As to board, we think 75 cents a day, the amount paid Jordan, the proper amount to fix.

Plaintiff, though, was to receive seven days a week board which would be $5.25 a week. This divided by six, the number of days worked, would make 87-1/2 cents per day. So his entire wages would be $3.87-1/2 a day, or $23.25 per week. Sixty per cent of this would be $13.95 per week.

The main dispute in the case is over the allowance made by the District Judge of $1,151.00 excess expenses incurred* for hospital and medical bills over and above the $250.00 which the statute requires defendant to pay

C. B. Tyhite, cashier of defendant, testified that $1,401.00 was paid as follows:

March 28, 1924. Drs. . Beetle & Bendell .................................................... $200.00

March 15, 1924. Drs. Willis, Knighton, Garrett & Willis--------~~ 150.00'

June 1, 1924. St. Francis Sanitarium................................................... 302.50

Schumpert Sanitarium, as follows:

March 28, 1924 ................................ 182.50

May 2, 1924 ____________________________________ 177.50

November 15,1924 —.________________________ 388.50

Total____________________________ $1,401.00

Less statutory liability of defendant __________________________________________________________ 250.00

Leaving excess payment ________.... $1,151.00

As stated above, the District Judge allowed this excess.

These charges do not appear to us unreasonable. Plaintiff stayed in the St. Francis Sanitarium from October 27, 1923, to January 28, 1924, a little over three month. Drs. Beetle & Rendell treated him during this time and amputated his leg. He stayed in the Schumpert Sanitarium from January 29, 1924, to September 29, 1924, eight months Dr. Willis treated him during this time and reamputated his leg. Of course the Sanitarium services included medicines, surgical dressings, services of nurses, and also sustenance.

Anticipating that plaintiff would need excess medical and hospital services, the insurer of defendant undertook to make an arrangement with plaintiff and his uncle and also his cousin providing for such services be furnished and taken out of his compensation as advance payments thereon.

J. F. Bolton, an agent of the insurer, went to see plaintiff while he was at the St. Francis Sanitarium, on January 3, 1921, and says he explained to plaintiff and also to plaintiff’s CQUsin what was desired. He left with them a printed blank containing a request for such excess services if necessary and an agreement that they be charged as advance payments on the compensation. This printed blank came back to defendant by mail signed with plaintiff’s name and attested by W. S. Moore, his cousin, the date having been filed in January 5th. We are satisfied that defendant and its insurer believed this instrument to have been signed by Thompson himself, but we are satisfied it was not signed by him but his cousin, Moore. It is so testified by Moore, and besides the record contains considerable writing of plaintiff’s, including his signature which is materially different from the signature to this instrument. .

Moore further testifies that Bolton tried to explain about this paper to plaintiff but that he was unconscious, and that Bolton then tried to explain it to him, Moore, but that he did not know what he did explain.

The record contains receipts purporting to be signed by L. W. Thompson as follows:

January 30, 1924, for compensation 26 • October, 1923, to December, 1923, $75.60.

January 30, 1924, for compensation 8 December, 1923, to 21 December, 1923, $25.20

January 30, 1924, for compensation December 22, 1923, to January 19, 1924, $50.40.

January 30, 1924, for compensation 21st, January, 1924, to February 2, 1924, $25.20.

These are • signed L. W. Thompson, Quitman, Louisiana. It will be noted they all bear the same date. Also that this was the day after Thompson had been removed from St. Francis Sanitarium to Schumpert Sanitarium.

J. A. Moore; plaintiff’s uncle, lived at Quitman and these receipts are all attested by him.

Plaintiff testifies that he did not sign any of these receipts and we are satisfied that he did not.

Other receipts were filed as follows:

April 9, 1924, for compensation February 4, 1924, to March 1, 1924, $50.40

April 9,- 1924, for compensation March 3, 1924, to March 29, 1924, $50.40.

April 26, ■ 1924, for compensation March 31, 1924 to April 26, 1924, $50.40.

August 1, 1924, for compensation June 23, 1924, to July 21, 1924, $50.40.

These receipts were intended by defendant to show payments on account of the Sanitarium and medical bills as well as what was paid to plaintiff himself.

Plaintiff admits signing those covering 4th of February to 1st of March, 31st of March to 16th of April, and 23rd of June to 21st of July. He was not asked about the one from 3rd of March to 29th of March, but comparison of signatures convinces us that he signed this also.

Plaintiff testifies that he did not sign the printed blank as to excess medical and hospital services and that he never did understand it, or know what arrangement had been made about his compensation. Several letters written by him are in the record. These letters express thanks and appreciation for the kindness of defendant towards him but they also show, we think, he did not understand the arrangement about excess services. In one, of July 31, 1924, he says: “But please tell me why $50' is this receipt when I did not get the full amount”. On July 30, 1924, he wrote: “Will you also tell me how much insurance I am supposed to draw, what kind of arrangement did Moore make when he came down there. He has not told me anything I suppose he wants to tend to everything”.

We are satisfied that plaintiff’s uncle and nephew understood the substance of the agreement evidenced by the written instrument to which plaintiff’s cousin signed plaintiff’s name. We are satisfied also that though plaintiff did not know exactly what arrangement had been made about the excess services, yet he knew that some arrangement had been made and at the time had no objection to it, trusting to their having made a beneficial arrangement.

“All that man hath will he give for his life.”

We are satisfied, too, that defendant and his insurer believed in good faith that plaintiff had signed the printed instrument. We are also satisfied that defendant or its insurer for its account did make the expenditures claimed and that they did save plaintiff’s life.

For these reasons we regret that we cannot see any legal, way to allow these expenses. In our opinion plaintiff is responsible for them under article 2295, et seq. of the Civil Code under the head of “Quasi Contract”.

Article 2299 reads:

“Equity obliges the owner, whose business has been well managed, to comply with the engagements contracted by the manager, in his name; to indemnify the manager in all the personal engagements he has contracted and to reimburse him all useful and necessary expenses.”

Article 2300:

“All persons, such even as are incapable of consent, may, by the -quasi contract, resulting from the act of a third person, become, either the object or the subject of an obligation; because the use of reason, although necessary on the part of the person whose act forms the quasi contract, is not requisite in those by whom, or in whose favor, the obligations resulting from the act, are contracted.”

Plaintiff’s father and mother were dead, and his uncle admits (page 94) that he could not take care of him.

Whether the arrangement for medical and hospital treatment was made on request of the uncle and'nephew or by dewe are satisfied that these service! saved fendant or its insurer of their own volition, plaintiff’s life and that therefore he is responsible for the expense under Articles 2299 and 2300.

It was squarely held, though, by the Supreme Court in Delany vs. Ferd Brenner Lumber Co., 154 La. 156, 97 South. 349, and Quave vs. Lott-Batson Lumber Co., 151 La. 1052, 92 South. 678, that excess payments for hospital and medical services could not be deducted by the employer from the compensation due the employee without the latter’s consent.

We do not understand these decisions to hold that the employee is not responsible for these charges where they inure to his benefit. In either one of these cases are the circumstances mentioned, so as to show whether the expenditures were judicious and beneficial or not; but the decisions do squarely hold that without the employee’s consent the excess charges cannot be taken out of his compensation.

In this case we do not believe the plaintiff did consent and we are cited to no law by virtue of which his consent if it had been given, would have been valid he being a minor.

It is decreed that the judgment of the lower court be amended in the following respects:

First: By reducing the weekly compensation allowed to plaintiff from $14.40 per week to $13.95 per week.

Second: By disallowing the $1,151.00 allowed to defendant for excess medical and hospital services.

And as thus amended, said judgment is affirmed.