*1 485 486 prescribed Mon had interest which 1927 and reverted largest subject his Monzingo 1937, land maximum of owned in the zingo ever ownership underlying the mineral reser minerals one-half, because Township pur NE(4 SE^, 33, act of own Section in his vation contained North, 18 yet Range had three- West was a interest 8 chase. His vendors’ eighths Decisions, interest can- however, one-half interest. prescribed sold a he when 1935; Baker M. M. minerals to assumption not be based on mere of facts. sale by fact, virtue matter of In concluding that Bates is en- Fuller a B. one-eighth A. interest prayed for, titled to relief on the record in later, oversold Monzingo few up^ expatiating made we refrain the owner However, remained terest. question purely hypothetical on the —the therefore, if 1942, and land until ownership proportionate minerals pre interest one-half his own vendors’ underlying land, subject of this enured 1937, interest scribed in persons may who have an litigation, in all the benefit Monzingo’s also benefit therein, including the de- possibly interest theretofore interest vendee of suit. to this fendants Richard, La. v. “oversold”. McDonald assigned, judgment the reasons For Hodges, 201 v. 712; White 155, So.2d is affirmed. appealed from Louisiana 433; Sample v. 1, 9 La. So.2d 941, 111 HAMITER, 162 La. concurs Corporation, J., Refining Oil decree.. interest reversionary Thus, his 336. So. affected been had minerals which Fuller was Baker
the sales thereby con interests
to deduction
veyed.
However, v. NATIONAL SURETY WRIGHT (by action petitory into a jactitation et CORP. al. defendant themselves), up title in setting No. 40415. Rushing and his lessee Monzingo and 28, April 1952. the burden assumed Crossman transferee . title. establishing affirmatively Rehearing June Denied Board, Mineral State Operators
Realty v. 198; Waterman 12 So.2d La. Co., 213 La. Associated Oil
Tidewater they done. 225. This have not
35 So.2d event, being ar assumed
But in
guendo interest reserved that the mineral *2 Dubuisson,
Dubuisson & Opelousas, for applicant. Christovich,
Alvin R. Christovich & Kearney, Orleans, New Huckabay, Seale, Hayes, Kelton & Rouge, Baton Marian n Mayer,Deutsch, Kerrigan Stiles, & New Orleans, amici curiae. Opelousas, Pavy,
A. V. for respondents. McCALEB, Justice. compensation is a suit
This brought Paragraph under 2 of LSA-R.S. 23:1221 Paragraph B (formerly of Subsection 1 of asphalt Act, required operator of an of an Liability Employer’s 8 of the Section pursuit de- amended) other similar variously machine as Act No. comparable he per- strength, produced manding skill injury alleged to have- for an doing totally, permanently any is disabled from disability do work of manent total there- work of reasonable character and character. reasonable fore entitled to on that basis. seriously are not case The facts He further claims that the defendant n disputed follows: find them payments compensa- surer discontinued 6, 1947, plaintiff had been January On arbitrarily and without cause and by T. months L. employed for about six that, therefore, it is liable for opera- Company as the Construction James attorneys provided LSA- distributor, asphalt earn- tor a truck and 22:658 (formerly R.S. Section 14:48 date, he On ing about week. $66 Code, 1948). Insurance accident aris- right arm in an fractured hand, em- the other defendant employ- in the course ing out of ployer insurer take n ment. arm his broken weeks after Several position was manual set, re-injured it the con- had been laborer and inasmuch as he can now This sequence bathroom. of a fall *3 automobile, drive a truck or he has not sus- and, as a operations several mecessitated compensable disability, tained a despite the result, limitation is a definite final there impairment fact that a there is of 60% pronation in supination (about 60%) pronation injured arm. addition, grip his member. In After trial in the court, a district there right hand is somewhat weakened. These was judgment plaintiff in favor of and, for permanent as a con- -disabilities are compensation weeks, not to exceed 400 .sequence, plaintiff longer perform sub- can no credits, certain ject together pen- with required operator duties of him as compensation payments alties of of all However, asphalt .an mixer or distributor. 12% prevent date impairment judgment, due at the rendition does not arm light a attorneys from an or driving him automobile fees' the sum $750. n truck and, period for a since his time appeal, Appeal the Court of On reached convalescence, plaintiff employed as was a plaintiff’s disability that the conclusion was n candysalesman and operated truck a small total, partial, and judg- but rendered not At time with his connection duties. for his favor at ment filed, res- engaged was was suit August rate week of $17.51 taurant business. weeks, period not to exceed $1,320 compensa- that, subject a credit of plaintiff It is contention of paid. Recovery of and attor- longer perform can the work .(cid:127)since he no neys La.App., injury lessened, approx- fees was denied. See So. shoulder which 20%, rehearing, imately perform 2d one of the ability On with judges customary However, dissenting, the court reinstated work. it was disclosed changes, not employee first decree certain minor had cleaning been doing important La.App., 597. and pressing here. See 52 So.2d (which the work Court of Appeal evidently We had granted certiorari. found -to manual labor) and it was therefore concluded that fact substantially finding the same partial the disability complete’ was and not disability respecting plaintiff’s injuries and plaintiff as the was able to do work similar above, which have set forth the Court of to the labor in engaged which he was when Appeal plaintiff was not reasoned injured. - he was totally within the permanently disabled But that case bears little resemblance to- Employer’s Liability meaning this matter question-here, on the facts. The really skilled mech because he was cases, as in all anic, plaintiff laborer, these merely but it took no is whether is “disabled to special work of operate skill do reasonable- knowledge or character” within asphalt the intendment attached truck. distributor to the is, Accordingly, statute —that as was the court decreed since stated Morgan case, perform operate “disability to is still able to an auto truck, description,, work of the same or similar wholly mobile he is not disabled (not necessarily kind or character to do work of reasonable character. iden- position) tical support ruling, dependence In to that of this was which the claimant was placed Morgan perform accustomed on our recent decision in v. or was under- Co., talcing when the injury See,, American Bitumuls 217 La. occurred.” also, long list So.2d 739. of authorities cited in opinion. Appeal We think the Court of was in resolving that the error in work require The facts of this case performing Initially, at the of the accident affirmative time answer. it strikes us. labor, and operator was unskilled manual also in as self-evident that of an Morgan asphalt distributor, that the case was which is a large mech similar matter, American Bitumuls Co. In that anical device used in surfacing blacktop- laborer, *4 plaintiff, roads, common a sustained a regarded the is to be a skilled laborer.1 (and long, operation Plaintiff testified he is uncontra- to six feet the duty dieted), spreader pump, it was his that to see that machine and that he kept good required operate machine was clean and in the booster, was also the operation repair; required consisting that heavy a which is device of a only driving, raising output pump but also and lower and kerosene heater with ing spreader bar, hoses, top which is the four about two one at and one at bottom.. conclude, totally per- plaintiff Since we Albeit, find that 'is hesitate would we meaning manently opinion to within disabled absence of authoritative the Employer’s Act, pass on to ordinary Liability driver truck contrary, that an question But and at- occupies laborer. of whether of common the status torneys against fees may, question decision are to assessed be be as it a rea- under LSA-R.S. do work of insurer plaintiff is whether can course, is, conced- 22:658. pertinent part It sonable character. that statute work, provides: same but it that cannot ed do said, an drive automobile since he is able to “All issuing any type insurers truck, totally disabled be- he is not or small specified contract other than those is of driving cause a motor vehicle R.S. 22:656 and 22:657 shall above dis- operating asphalt an character same amount any claim due tributor. sixty days receipt sured within after fact analogy. The to discern the We fail satisfactory proofs of loss operate auto- an able party insured or in interest. light no furnishes mobile or truck payment Failure make such within dis- extent of his which the on
(cid:127)criterion receipt proofs sixty after of such hardly be it can rest—for ab-'^ty must such demand therefor when failure driving type of that this seriously believed arbitrary, capricious, found or previous to his character is of similar a probable cause, shall without exceedingly Verily, employment. penalty, in addition to the insurer impair- plaintiff, due to the doubtful that loss, per of twelve cent amount of the hand, ob- could right arm and ment of total damages on the amount van, large of a as the driver tain work insured, loss, together payable to truck, and cumbersome heavy other or attorney’s fees for reasonable .all otherwise, might be there vehicle. Were prosecution and collection type of argument that such some basis for partial loss, payment in the event or work to the operation was similar truck made tender has been twelve or previously engaged he had'been which the difference between cent of training for which he was suited paid tendered amount it is evident experience. But here due found to be and all reason- amount heavy, longer laborious can no do attorney’s prosecution able work. required wages things, he was take $1.25 were hour other Plaintiff’s operation parts driving secondary all used down he testified put asphalt, operation, spreading clean them and part if the truck was together. job; them back addition to driven on *5 495 496 n** 18, April However,
and collection of such amount.
after
no evidence
(Italics ours.)
was
support
offered to
position,
this
and no
was
explain
effort
ever made to
the sum-
22:657, which are
22:656 and
LSA-R.S.
mary stoppage
compensation pay-
of all
provisions,
excepted
foregoing
from the
despite
ments
the unanimous medical testi-
insurers
specific penalties against
prescribe
mony showing that
insurer was well
cause,
just
pay,
for
without
failure to
aware at that
plaintiff
time that
was still
life, health,
insur-
and accident
claims on
partially,
totally,
if not
Obviously,
disabled.
policies.
of coun-
contention
ance
It is the
the discontinuance was indefensible.
the statute
since
sel
letter,
covers,
all other
unequivocal
by its
rehearing,
Appeal
Court
con
penalites
insurance,
due
types
are
sidered in detail the claim for
inasmuch as the action of
case
attorneys
and
fees and
they
concluded that
discontinuing all com-
company
surance
because,
were not assessable
by strict con
1948,
arbitrary
pensation
6,
April
was
after
22:658, plaintiff
struction of LSA-R.S.
is
it
capricious
the fact that was
in vievr of
regarded
as the “insured” to whom
a serious
suffering
was
well aware
payment of the
This,
is
insurance
due.
to-
right
arm
impairment
the function
minds,
only
question
our
is
debatable
and wrist.
respecting
claim as it is clear that the
only defense of
provision
The
the insurance penalty
ap
LSA-R.S. 22:658
company,
pleadings
plies
according
policies
its
to workmen’s
brief of its counsel
as it
all other
both
and in the
does to
here
forms
insur
Appeal,
fully
ance,
that it
justi
particular
Court of
than
other
classes
refusing
excepted.2
further
specifically
fied
they impair
obliga
2. LSA-R.S. 22:658 is remedial in
stitution and that
nature
though
imposes penalties.
See, Supreme Ruling
it
even
Su-
of contracts.
Ruling
Mystic
preme
Mystic
of the Fraternal
Snyder,
of the Fraternal
Circle v.
Snyder,
497,
supra;
Casualty
227 U.S.
33
Circle v.
S.Ct.
&Life
Ins. Co. v. Mc
292,
Therefore,
ap-
Cray,
566,
L.Ed. 611.
482,
57
291 U.S.
54 S.Ct.
78 L.
policies
prior
plicable
987,
issued
to its en-
Ed.
and annotation “Constitutional
liability
ity
providing
actment
insurance
of statutes
for additional
liability
penalty
thereunder before
incurred
delay by
effective
for failure or
payments
company
when the
due
paying
date
are arbi-
claims,”
insurance
trarily
withheld for more than 60
Compare,
in
forego all defenses which as such 22:658; and, The seem to follow such action. in- would have defense of R.S. this, car- protecting from that the form of insurance serves the surance means by employee. employer ried Workmen’s employer the While the under the both Compensation type an in- Law not may such insurance 'be considered contemplated contract the statute demnity the insurer under sense that the provisions within promises employee bring contin- violation of its on the apply but, reality, protective its I gencies, provisions it is a terms. believe that its to all arise out of arrangement by for the forms insurance which sanctioned law contract employer the em- between not mutual benefit of individuals Compensation ployee. contem- Insurance which It not an insurance as Workmen’s appellant’s policy governed strictly by plated within terms of the Workmen’s provision.” Compensation Law. respectfully For these reasons dissent I by policy provision
The referred part opinion and decree prorating court was concerning one penalties and which awarded the the at- among losses insurance com- two or more torney’s in this case. fees panies appellant company seek- and the Compensation ing to the Workmen’s have HAMITER, (concurring part Justice provisions within insurance included dissenting part). point court that clause. further provi- do believe that the stated: “We not facts and circumstances of Under the classifying given sion can be effect plaintiff, I is entitled to agree, this case protection given employee an under permanent as for total and Law, Compensation Workmen’s disability. employee bring as to carried surance agree But I do under terms of the insurance company is defendant insurance purpose provision
policy’s and manifest for the and at- liable provision. employee, under of such torney’s provided for in LSA-R.S. Law, Compensation Workmen’s opinion my statutory pro- these 22:658. In pro- merely recipient of the benefits visions, penal in nature to strict *8 in consideration sur- law vided construction, intended for not the bene- are may have in- which he rendering rights Thereunder, injured employee. fit of an such law.” dependent of penalized in event of insurer is a failure claim amount due case think that I when thought vnsivredwithin failure I have that the pertinent arbitrary, capricious without found to insured within the con- not an employee is probable according cause. Em- And
ployer’s Liability (LSA-R.S. 23:1162), policy pay- insured insuring in a
ment of employer, is the employee.
LAKESIDE GREGER- et
SEN al.
No. 2, 1952.
June