Wolf v. Louisiana Milk Products Co. , 1928 La. App. LEXIS 216 ( 1928 )

ON REHEARING

ELLIOTT, J.

Plaintiff’s injury is limited to the use of his leg. In James vs. Spence & Goldstein, 161 La. 1108, 109 So. 917, the Supreme Court held that where only one member is involved in an injury, that Act 20 of 1914, Section 8, Subsection (d) (amd. Act 43 of 1922), to the effect that “the permanent total loss of the 'use of a member shall be equivalent to the amputation of a member” does not permit of the award of a greater compensation than that fixed by the law when amputation has taken place. And it seems from the language used in the opinion that a greater compensation than that fixed for the loss of the use of a member is not permissible under the law as it stands, even though there may exist a disability greater than would have been the case had amputation taken place. In this case the judgment appealed from classes plaintiff as a permanent total disability and fixes his compensation at 65 per cent of his weekly wages during the period of disability, not to exceed four hundred weeks. We hold that the evidence in the case leaves a reasonable certainty of conviction that the plaintiff is a permanent disability as to work of any reasonable character, unable to get about without the use of a crutch, and possibly would be for tho balance of his life, and we accordingly affirmed the judgment appealed from.

The decision was in harmony with the previous jurisprudence which prevailed in the Courts of Appeal, First and Second Circuits, to the effect that it was not the intention of the Legislature by the enactment mentioned, to deny to an injured party the compensation proper to the situation in which the injury received had left him. See Bryant vs. Texas Pipe Line Co., 1 La. App. 42; Wilson vs. Dubach Mills Co., 2 La. App. 249; O’Donnell vs. Fortuna Oil Co., 2 La. App. 462; Davis vs. Gillis, 2 La. App. 567; Franklin vs. Ernest Roger Co., 2 La. App. 764; Chandler vs. Oil Fields Co., 2 La. App. 778, etc.

Defendant contends that as plaintiff’s injury involves the loss of the use of but one member, his leg, that he can not under the language quoted from sub-section (d), be allowed a longer compensation than is provided for, had his leg been amputated, and that the allowance of compensation for the period provided for under subsection (b), is not in harmony with the decision, of the Supreme Court in the case 'above cited. We find that 'a lack of harmony does exist between the decisions of this Court and that of the Supreme Court, as to the period of compensation to which the plaintiff is entitled and we, therefore, place our decision in line with that of the Supreme Court. The compensation to which plaintiff is entitled under the law is that fixed by Act 216 of 1924.

Our former opinion and decree, and the judgment appealed from, are therefore amended and corrected, and plaintiff’s compensation is now fixed at 65 per cent of his weekly wage of $18.74 for a period of two hundred weeks instead of as originally ordered. The period of payment to commence July 10, 1926, and be credited with twenty-six weeks following said time of commencement, and as thus amended and corrected our original opinion and decree herein is reinstated and made the final judgment of this Court.