West v. Industrial Lumber Co. , 1930 La. App. LEXIS 405 ( 1930 )

MOUTON, J.

Plaintiff alleges that on March 21, 1929, while in the employ of defendant company, he was struck by a knot or other object just above the left eye, severing the skin, causing considerable concussion to his brain, injury to his nerves and head, which, in consequence of said blow, has resulted in a serious and permanent injury and impairment of his brain, nerves, and left eye, to such an extent that he has since not been able to do work of any reasonable character, and will continue to be so incapacitated in the future, and that he has lost sight in his left eye for all practical purposes.

He further alleges that on July 5, 1922, during his employment at that time with defendant company, while the company was engaged in dynamiting a stump on its premises, in connection with its business, an explosion occurred which blew him down, burning his face, eyes, and head; seriously and permanently injuring both eyes and his brain, which necessitated the removal of his right eye, causing him to lose about four months of work; that he returned to his work after the explosion, continued therein at the same wages, at the same position, having slight pains, peculiar feelings in his left eye, brain, and head, but not sufficient to prevent him from working; that during that time he knew of no serious injury to his nerves, left eye, or brain, and that physicians, after examining him, said there were no serious or permanent injuries to his brain, eye, or nerves, other than to the eye removed.

He further alleges that the blow he received in March, 1929, acting on his previous injured and weakened condition, above described, either caused or materially aided in producing his present and future disabilities and impairments of which he complains.

In the alternative he avers that if the court hold that the blow of March 21, 1929, did not cause or materially aid in bringing about his present troubles and disabilities, then he avers that they were produced by the dynamite explosion of 1922. As he avers that he was paid compensation by defendant company for the loss of his right eye in 1922, we shall not comment on the cause of its loss, except in so far as it may have caused or materially aided to produce his alleged present disabilities and impairments.

PRESCRIPTION

We shall at the outset consider the plea of prescription of one year filed by defendant under section 31, Act No. 20, of 1914, as to the injury for the accident alleged to have occurred in 1922.

In Guderian v. Sterling Sugar & Ry. Co., 151 La. 59, 91 So. 546, decided in 1922, the court held that the prescription b'egan to run from the time plaintiff became aware of the injury, and not from the actual date of the injury.

Section 31, Act No. 20 of 1914, as amended by Act No. 85 of 1926, reads that the action of the employee is barred, unless brought within one year, not from the injury or death as was provided in section 31 of act of 1914, but from the date of the “accident” or death of the employee.

On account of this substitution of the word “accident” in this statute for the previous word “injury” used in the prior law, the district judge held that prescription began to run from the date of the accident and not from the time knowledge of the injury was possessed by the employee, as was held in Guderian v. Sterling Sugar & Ry. Co., 151 La. 59, 91 So. 546.

Viewing the question in that light, the court held that any action plaintiff had, arising out of the accident of 1922, was prescribed. The word “accident” used in the act of 1926, as we read section 31 of that statute, has certainly no reference to the death of the employee, and unquestionably refers to any “injury” the em-’ ployee might suffer. We do not think that any other interpretation would be consonant with the provisions of the statute, and would, if applied, be destructive of the liberal construction which our courts have given to the provisions of that statute and in favor of the employee.

The ruling of the lower court maintaining the plea of prescription is therefore overruled, and we shall therefore take into account any right of action that may exist in favor of plaintiff, growing out of the accident which he alleges occurred in 1922.