White v. Tremont Lumber Co. , 142 So. 165 ( 1932 )

On the Motion to Dismiss.

mcgregor, j.

This is a suit under the Employers’ Diability Act (Act No. 20 of 1914 and subsequent amendments thereto). Plaintiff is claiming compensation in the sum of 65 per cent, of $16.50 per week on the basis of total, permanent disability for a period not exceeding four hundred weeks.

The case w;as tried and submitted on June 8, 1931, and was "decided by written opinion handed down in chambers and filed on August 24, 1931. In this opinion judgment was granted in favor of the plaintiff for compensation at the rate of 65 per .cent, of $16.50 per week for a period of eighteen weeks, beginning June 25, 1930, and at the rate of 65 per cent, of $10.50 per week for a period of twenty-one weeks, beginning at the expiration of the eighteen-week period, all with interest as provided by law and subject to a credit of $180.50.

• Appended to the written opinion of the court below there is the usual order for sus-pensive and devolutive appeals granted to both parties separately. The plaintiff perfected his devolutive appeal by filing the required bond on September 26, 1931. No appeal was perfected by or on behalf of the defendant.

Plaintiff’s appeal, with the record in the case, was duly filed in this court, and on April 7, 1932, the defendant and appellee filed a motion to dismiss on the alleged ground that the judgment as rendered had been paid in full by defendant and accepted by the plaintiff. on October 10, 1931.

Attached to the motion is a canceled voucher check of the defendant for the sum of $161.11, payable to the order’of M. G. White and H. W. Ayres (his attorney of record). The cheek is. indorsed by the payees, and in the body of the voucher are typed the words,. “Payment Judgment, M. G. White vs. Tre-mont Dumber Company.” It is urged that the simple production of this paid voucher is sufficient evidence of plaintiff's acquiescence in the judgment as rendered and justifies the dismissal of his appeal. In the alternative defendant asks that the case be remanded for the purpose of taking testimony on the subject.

In their brief counsel for the defendant state that the plaintiff requested the defendant to pay the amount of the judgment and made threats of having a writ of fieri facias issued in the event his request was not complied with.

The question of the right of a plaintiff in a compensation suit to accept payment of the amount for which the court gave judgment during the pendency of plaintiff’s appeal to have the amount of the judgment raised, and of the effect that such acceptance has upon the status of the case in the appellate court, has been passed upon several times.

Bryan v. Louisiana Oil Refining Corp., 2 La. App. 494. This suit is on all fours with the one under consideration. Plaintiff sued for compensation for a period of three hundred weeks. There was judgment in the district court awarding plaintiff compensation at the rate of $18 per week for fifty-two weeks, dating from the date of the injury. Being dissatisfied with that portion of the judgment that .rejected his demand for compensation beyond the period of fifty-two weeks, he appealed the case to this court. While the case was pending on appeal, but .after the expiration of the fifty-two week period, the plaintiff issued execution on the judgment which he obtained in the district court and collected it in full. Defendant thereupon filed a motion in this court to dismiss the appeal on the ground of acquiescence. In overruling the motion, this court,, in an opinion written by Judge Odom, said:

“Plaintiff sued for compensation for 300 weeks and was awarded compensation for only 52 weeks. Defendant did not appeal. Plaintiff executed the judgment which granted him compensation for 52 weeks. That was an acquiescence in the judgment to that extent only, and in executing that part of the judgment which was in his favor he did not acquiesce in that portion- of it which was against him.

“The judgment was in his favor for 52 weeks and against him for 248 weeks. He appealed only from that part of the judgment which was against him.”

Chandler v. Oil Fields Gas Co., 2 La. App. 778. In this case the plaintiff sued for compensation at the rate of $18 per week on the basis of total, permanent disability for a period not exceeding four hundred weeks. Judgment was rendered in his favor at the rate of $18 per week for a period not to exceed one hundred twenty-five weeks. He appealed from this decision. Previous to the time of trial he had received the sum of $108, being six weeks’ compensation, for which the judgment gives credit. After the trial and during the pendency of the case on appeal, the defendant continued to accept these payments of $18 per week. Defendant filed a motion to dismiss the appeal on the ground that the plaintiff had acquiesced in the judgment by thus receiving compensation in installments. In overruling the motion, the court relied upon the case of Kittredge v. Grau, 158 La. 154, 103 So. 723, and in the course of the opinion said:

“On the authority of Kittredge v. Grau, 158 La. 154, 103 So. 723, we think the motion to1 dismiss must be overruled.

“In that case plaintiff sued to be declared the owner of certain stock and, in the alternative, for a money judgment for the value of the stock. They obtained judgment in the lower court for twenty-eight hundred and odd dollars, which was less than they claimed. They took ah appeal, which they characterized as both a suspensive and a devolutive appeal. After the time allowed for taking a sus-pensive appeal had expired, defendants filed an answer to plaintiff’s appeal, praying that the judgment be amended by reducing the amount to sixteen hundred and odd dollars. Thereafter plaintiff’s attorney had the judgment of the lower court recorded in the mortgage office. Defendants moved to dismiss the appeal on the theory that the recording of this judgment was an execution of it and therefore an acquiescence in it.

“The court overruled the motion to dismiss, pointing out that Article 567 of the Code of Practice, which provides that the party against whom a judgment has been rendered cannot' appeal if, he has acquiesced iñ same by executing it voluntarily was founded expressly upon the theory of acquiescence and that plaintiff had not acquiesced in the judgment of the lower court so far as it was against him by recording the judgment awarding him part of what he claimed in the alternative.

“In this case plaintiff is claiming $18 per week for 400 weeks. We do not think that his acceptance of $18 per week as time goes on is an acquiescence in the judgment limiting his right to 125 weeks.

“Counsel for appellee seeks to differentiate this case from the Kittredge Case by saying that in that ease the appeal was from the judgment only insofar as it rejected their demands, whereas in this case the appeal is from the judgment generally.

“It is true in the Kittredge Case the court says: ‘The plaintiffs in this case appealed from the judgment only insofar as it rejected their demand.’

“We do not understand this to mean, though, that in their appeal the plaintiffs specified that it wás from the judgment so far as it rejected their demand but only that that was the logical effect of the appeal which was taken.”

Cory v. Askew, 169 La. 479, 125 So. 455. This is a review of a case from this court on a writ of certiorari. The plaintiff sued the defendant for compensation at the rate of $20 per week for four hundred weeks. At the trial judgment was awarded to the plaintiff for $20 per week for five weeks. Plaintiff prayed for an order of appeal from the judgment “only in so far as same rejects his demands,” and was granted an order of appeal “restricted to that part (of the judgment) that rejects his demands.” After the case had been lodged in this court on appeal, the plaintiff issued execution on his judgment and collected it. Thereupon the defendant filed a motion to dismiss the appeal on the ground that the plaintiff had voluntarily executed the judgment and had thereby acquiesced in it. The case was remanded to the lower court “for the trial of the issue of whether plaintiff has acquiesced in the judgment appealed from.” Id., 11 La. App. 110, 120 So. 779, 781. A rehearing was granted, but the court was still of the opinion .that the case should be remanded to the lower court for the purpose of taking testimony on the question of acquiescence, so the original judgment was reinstated. 11 La. App. 645, 123 So. 435. The case was then carried to the Supreme Court, on a writ of certiorari, where it was held that the execution of the judgment as rendered by the district court did not justify the dismissal of plaintiff’s appeal. In passing upon the subject, the court said: :

“In the ease of Kittredge v. Grau, 158 La. 154, 103 So. 723, this court held that, where a judgment was rendered for the plaintiff for a part of his claim, the recording of the judgment by the plaintiff was not an acquiescence in the judgment rejecting the balance of the sum sued for. In the case of H. D. Chandler v. Oil Fields Gas Co:, Inc., 2 La. App. 778, the motion to dismiss the appeal upon the ground of alleged acquiescence in the judgment was denied on the authority of Kittredge v. Grau, cited supra.”

The law relied upon by the defendant is article 567 of the Code of Practice, which provides that:

“The party against whom judgment has been rendered can not appeal ⅞ ⅜ * if he háve acquiesced in the same.” (Italics ours.)

In the case under consideration the plaintiff did not appeal from that portion of the judgment which he has collected. The defendant never appealed and that part of the judgment was no longer a matter of controversy. The defendant is the one that acquiesced, in it by not appealing from it, by not answering plaintiff’s appeal, and by paying it. The article of the Code relied upon would bar the defendant from an appeal under the circumstances of the case, but has no application to the plaintiff whatever. The motion to dismiss has no merit and is, therefore, over-' ruled.