#### SAMS v. GREAT NATIONAL OIL CORPORATION et al.

No. 6305.

Court of Appeal of Louisiana. Second Circuit.

June 18, 1941.

On Rehearing Oct. 31, 1941.

Further Rehearing Denied Nov. 28, 1941.

Certiorari Denied Jan. 5, 1942.

Irion & Switzer and Simon Herold, all of Shreveport, for appellants.

John B. Files, of Shreveport, for appel-lee.

HAMITER, Judge.

In the afternoon of July 31, 1939, while engaged as an employee of the Great National Oil Corporation in the unearthing and removing ©fa pipeline located near Mira, Louisiana, plaintiff, Johnnie Sams, experienced an accident that caused him injury and disability. He was at the time assisting others in the moving of a log, and, in the conduct of this particular task, stepped into a hole and fell bearing the log’s weight.

For eighteen weeks thereafter plaintiff was paid compensation at the rate of $13.52 per week. Following cessation of the payments, he brought this suit against the employer and its insurer, the United Employers Casualty Company, asking to be awarded the benefits provided for in, the Louisiana Compensation statute. Only the named insurer was cited and filed answer.

The district judge heard evidence on the issues created by the pleadings, and thereafter reached the conclusion, as his well-considered written opinion discloses, that the accident was responsible for plaintiff’s suffering a spraining of the lumbar muscles and a sacroiliac strain, and that total disability was a consequence of the injuries. Accordingly he decreed plaintiff entitled to be paid $13.52 per week from July 31, 1939, during disability but not exceeding 400 weeks, less a credit of eighteen weeks’ com*350pensation previously paid, with legal interest on all past-due installments. The signed judgment was in keeping with the decree except to the extent that the credit allowed was for only sixteen weeks of the compensation that had previously been paid.

The insurer perfected a suspensive appeal to this court, following which it was placed in receivership; and the duly appointed and qualified receiver has been substituted in its stead through an appropriate motion and an order.

The principal issue in the case is whether or not plaintiff’s present disability, which is clearly shown to be total, resulted from the admittedly occurring accident and injury. This, of course, is one of fact; and for the purpose of aiding in solving it, an array of physicians appeared at the trial and furnished relevant medical proof.

The experts called by plaintiff expressed themselves affirmatively on the question. The contrary view was taken by the ones whom defendant offered; however, among these there was a disagreement as to the true cause of plaintiff’s disabling condition, two of them taking the position that an infected prostate and an infected kidney were responsible therefor while others attach no significance to the found infections.

A thorough and correct analysis of the testimony of each medical expert is provided by the trial judge in his written reasons for the judgment rendered. We do not give here a similar discussion of it because no useful purpose would be served by our doing so. The record has been carefully and painstakingly studied by us, however, and we are of the belief that the evidence was properly evaluated and that the announced issue of fact was correctly resolved in favor of plaintiff. Consequently, such litigant, as has been held, is entitled to the benefits provided by the act in cases of total and permanent disability.

Appellant complains that the evidence adduced was insufficient to justify the fixing of compensation in the amount of $13.52 per week. There is merit, we think, in the complaint.

The petition of plaintiff recites that he was receiving a weekly wage in excess of $21. The answer lists a denial of the allegation. Respecting the issue thus formed, the only proof offered is to be found in the following question and answer: “Q. What wages were you getting at that time, Mr. Sams? A. We were allowed forty-four hours a week, we were working overtime, I don’t know just exactly what we were making.”

It is true, and so admitted by defendant, that plaintiff was paid eighteen weeks’ compensation at the rate of $13.52 per week. But inasmuch as these payments, according to the specific provisions of the applicable statute, would not constitute an admission of liability for compensation, Subsection 5 of Section 18, Act 20 of 1914, as amended by Act 85 of 1926, we think that they cannot be considered as making full proof of the wages being earned by plaintiff when injured.

Therefore, the case will be remanded for the restricted purpose of receiving evidence relative to such wages; and after the reception of this proof the district court shall render a judgment in favor of plaintiff for the appropriate compensation beginning July 31, 1939, and continuing during disability but not exceeding 400 weeks, less a credit for the eighteen weeks already paid. The installments are to bear legal interest from their respective maturity dates and defendant shall pay all costs incurred in the trial court.

Accordingly, the judgment is reversed and set aside and the case is remanded for further proceedings consistent and in keeping with the views herein expressed. Costs of this appeal shall be paid by plaintiff.

On Rehearing.

DREW, Judge.

This case is before us on rehearing. In our former opinion we found that plaintiff was totally and permanently disabled and therefore entitled to compensation at the rate of 65% of his weekly wage for a period not to exceed 400 weeks. However, we found that the amount of weekly wage was not sufficiently established and remanded the case for the restricted purpose of receiving evidence relative to such wages. On application for a rehearing urged by plaintiff it was granted.

In our former opinion we said: “It is trae, and so admitted by defendant, that plaintiff was paid eighteen weeks compensation at the rate of $13.52 per week. But inasmuch as these payments, according to the specific provisions of the applicable statute, would not constitute an admission of liability for compensation, Subsection 5 of Sec*351tion 18, Act 20 of 1914, as amended by Act 85 of 1926, we think that they cannot be considered as making- full proof of the wages being earned by plaintiff when injured.”

We have concluded that while the above-quoted statement is the law, it is not applicable to the case at bar when we consider the answer and admission of the attorney for defendant made in the lower court in his brief.

The above law is applicable 'in cases where the employer has paid some compensation through error or before proper investigation has been made, and only when the employer denies that the case is covered by the Employers’ Liability Act or that it at any time owed the employee any amount of compensation.

In the case at bar the employer admitted that plaintiff, its employee, was injured in the course and scope of his employment and that he was entitled to compensation. Its contention is that it had paid him 18 weeks’ compensation and that his disability caused by the accident ceased at the end of that period.

Article 12 of plaintiff’s petition is as follows: “Petitioner shows that said defendants had full knowledge of the said accidental injury on July 31, 1939, and that said defendants have paid compensation for 18 weeks at the rate of $13.52 per week, but have failed and refused to pay any additional compensation, although amicable demand has been duly made.”

And is answered by Article 12 of the answer, “Defendant admits the payment of compensation for 18 weeks at the rate of $13.52 per week which is the full amount to which plaintiff herein is entitled, if anything, and it is denied that plaintiff is entitled to any additional compensation, the trouble that he complains of, if any, not being disabling and being the result of a diseased condition of his system that has no connection with any alleged injury or accident or employment.”

This case was defended in the lower court by J. Fair Hardin and in his brief filed in the court below in a statement of the case he said:

> “This is a suit for Workmen’s Compensation and the issue is simple. There is no question about the employment or the rate of compensation and we might add that from a practical standpoint there is no dispute as to the fact that an accident occurred substantially as plaintiff alleges, inasmuch as the defendant had no proof to counteract his proof on that score.

> “The Casualty Insurance Company, however, does urge most seriously that this man was fully recovered from any possible effects of any accident or injury that he may have sustained, and we submit that we have established this defense by a clear preponderance of the evidence.”

We are convinced that the answer quoted above, coupled with the statement of counsel in the lower court made in his brief, is a sufficient admission to justify us in fixing the amount of weekly compensation at $13.52 and there is no need to remand the case.

In allowing credit for the amount of compensation paid by defendant, the lower court inadvertently allowed only sixteen weeks when it should have allowed eighteen weeks at $13.52 per week.

It therefore follows that the former judgment of this court remanding the case to the lower court is set aside and the judgment of the lower court, which was in favor of plaintiff, awarding him compensation for a period of not more than 400 weeks at the rate of $13.52 per week; be and the same is hereby amended by increasing the number of weeks’ credit to be given defendants from sixteen weeks to eighteen weeks and, as amended, the judgment of the lower court is affirmed, with costs.