Turner v. Standard Oil Co.

ODOM, J. The plaintiff, William P. Turner, brought this suit under the Workmen’s Compensation Act to recover compensation alleged to be due his minor son, Sambo Turner, on account of an injury which he sustained to his wrist on February 17, 1922, while employed by and working for the defendant company. At the time of the injury Sambo Turner was about 15 years and 6 months old and was receiving a daily wage of $4.50. In his original petition plaintiff alleged htat while assisting in laying a pipe line a heavy piece of timber fell on his son’s left arm and left wrist “thereby breaking, fracturing and permanently and seriously injuring his said wrist and arm to ■ such an extent that he will never hereafter be able to do work of a reasonable character.” And he further alleges that on or about the 17th of May following the deféndant company induced his son to resume work for it and that while so working he was again injured, this time by being hit by pipe line tongs, the same arm and wrist being injured, and that on account of said injuries his arm became useless and that he is now unable to do any work of a reasonable character. And he asks for compensation for four hundred weeks at $16.20 per week. Plaintiff also alleges that the suit is filed subject to a contract with the attorney, which contract is attached to and filed with the petition. That contract, we note, provides that the attorney shall re ceive one-third of the net sum which may; be recovered. The suit was filed on June 1, 1922. On June 7, 1922, defendant answered admitting that Sambo Turner was em ployed by it and was receiving $4.50 -per day on February 17, 1922, and that he was injured on that day by the accidental spraining of his wrist, and alleging that it paid him compensation for eleven weeks, amounting to $198.00, and, in addition thereto, paid for medical examination and medical treatment, and that on May Sambo returned to its office, signed a full receipt, acknowledged that he had fully recovered from all injuries received by; him on February 17 and again solicited employment; and that he' was re-employed and went back to work on May 10 and worked until May 17. — 667 — It especially denies that he received any injury on May 10, hut says that he quit work voluntarily. And it prays that plaintiff’s demand he rejected. The case went to trial on June 23 and was finished on June 27 and continued for argument. On July 10 the case was reopened for all purposes. On November 2, the ease was again tried and closed, except for the reception of the report of experts, Dr. Barrow and Dr. Spencer. On November 22 the judge again reopened the case ex proprio motu for the purpose of taking of the physician’s testimony. On January 3, 1923, the case was again reopened and tried on January 30, and on March 10 the court granted judgment for plaintiff for the amount sued for. Defendant filed a motion for a new trial on March 14 and on April 11 a new trial was granted. The case was again tried on May 8 and on June 2 the court rendered judgment rejecting plaintiff’s demands. This was followed by a motion for new trial on June 6 with a supplemental motion on June 9 and on June 11 a new trial was granted. On June 28 plaintiff filed an amended and supplemental petition in which he set up, in substance, that the injuries which his son received had caused his “brain, mind and nerves” to be seriously and permanently impaired and injured, each and all to such an extent that his son would never be able to do any work of a reasonable character and that he did not have sufficient knowledge of these impairments to enable' him to amend his original petition until June 27, 1923; and that by reason of the injuries and impairment set forth in the original petition and in this amended petition he should recover compensation as originally prayed for. Defendant filed an exception of vagueness and a plea of prescription of one year to the claim set up in the amended petition. This plea of prescription was re: ferred to the merits July 9. There was a motion to disallow the amended petition, which was overruled on June 30. The exception of vagueness was sustained on July 18 and plaintiff was ordered to amend. The amendment was filed on July 25 and on July 31 the court held that the amendment was not in compliance with its order and the defendant was relieved from further answering until . the court’s order was complied with. A third supplemental petition was filed on November 3, which was not in compliance with the court’s order, and on November 7 the plaintiff was again ordered to amend within twenty days and to . comply with the court’s order under pain of dismissal. On November 24 the fourth amended which his son had received “his mind, brain and entire nervous system became seriously permanently impaired” to such an extent that he had to be interdicted and sent to a hospital for insane, and that his mind and nerves are yet affected and that the injury now suffered on his brain, mind and nerves is both physical and functional, and that said injuries to the brain, nerves and mind were caused by the original accidental injury to his shoulder, wrist and arm and that his son was rendered insane and his mind so affected that he cannot now concentrate his mind on study or work, and has spells and imagines strange things; and that his nerves are so affected that. his injured — 668 — arm may be pricked with sharp instruments without any considerable pain. These amendments were allowed by the court over the strenuous objection of the defendant, and on December 21 the case again went to trial and was completed on January 11, and on April' 11 there was judgment on the merits in favor of the plaintiff for compensation at $16.20 per week for four hundred weeks, or as long as the disability continues, and fixing the fees of the attorneys for plaintiff at one-third of the net amount recovered. From this judgment the defendant has appealed. OPINION The above very lengthy statement of the proceedings and pleadings is made for the purpose of showing, first, what the issues before the court are, and, secondly,, to show the earnestness and activity of counsel on both sides and the very patent desire of the learned and conscientious District Judge to do absolute justice. As we see it, only issues of fact are presented for our consideration. It is admitted that Sambo Turner was accidentally; injured while at work for defendant company on February 17, 1922, and it is contended by plaintiff but denied by defendant he was again injured on May 17, 1922. But whether he did or did not receive additional injuries in May . we think is not important. Sambo Turner says of his injuries and the manner in which he received them: “I was totin’ rider boards and crossin’ .the creek and there was a log laying in .the creek an’ I stepped up on it and it turned an’ rolled an’ threw these boards across my arm.” He says these boards would weigh about ;75 pounds, and that his arm was bruised and made so that he could not use it. He went to Dr. Martin, at Minden, who examined the wound and made report to' the defendant company on one of its printed forms as follows: “This man was carrying a growler board and placed a piece of wood in a pool of water to stand on. He slipped off the wood and the growler board fell on his left wrist.” Dr. G. H. Cassity said that he examined the patient on May 23, 1922, three months after the accident, and says “the examination showed a stiff and painful wrist with creaky sounds in the joints, which is due to inflammation of the joint surfaces. His grip is very weak and he has very little use of his fingers in picking up things. Also he can’t open his hand very well. He can’t either open or close it well The X-ray picture shows a dislocation.” In his original petition plaintiff set up these injuries and alleged that they were permanent and such as to render his son wholly incapable of doing any work of a reasonable character; but after the trial on these issues plaintiff amended his petition so as to set out that the results of these injuries have been such as to petition was filed, which seems to have been allowed. In his fourth amended petition plaintiff set out that by reason of the injuries permanently impair the nerves, mind and brain of his son, Sambo Turner. He, therefore now relies not solely upon the plea that the injury to the arm caused permanent total disability, but relies upon the plea that in some way these injuries to the arm have caused permanent impairment of his mental faculties so that he cannot, on account of his inability to concentrate his mind on any kind of work do work of any reasonable character. — 669 — Defendant’s position has been and now is that whereas Sambo Turner was injured on February 17, 1922, he fully recovered and went back to work, and that if he now has any affliction, which is denied, it does not arise from and has no connection with the wound which he received while in its employ, and that it is in no way responsible therefor. In support of its plea that Turner entirely recovered from the effects of the wound which he received on February 17, 1922, defendant cites the fact that on or about March 20 he went to its office and asked to be put back to work, stating at the time that he had entirely recovered;- and that he called again, later, with the same request, at which time he was paid the amount of compensation due him; and we find in the record a receipt signed by Sambo Turner on a printed form which recites, among other things, that the payment is in full settlement of compensation under the Workmen’s Compensation Act “for all injuries received by me on or about the 15th day of February, 1922”, and “I hereby acknowledge that I am fully recovered from the injuries received by me on February 15, 1922.” This document is dated May 3, 1922. -Turner then went to work for defendant near Hosston, Louisiana, and worked some six or seven days. On May 17, after completing a day’s work, he went to a baseball park and took part in a game of ball. Later on it seems that he entered the Minden High School, joined a. football team and there is testimony to the effect that he was seen wrestling with other boys at school. In the early spring of 1923 he was bitten by a dog which later died. It was thought that this dog had hydrophobia and Turner had an attack of hysteria. He was then interdicted and sent to the Hospital for the Insane at Pineville, Louisiana. While at Pineville ,he did considerable manual labor, such as cutting wood, moving furniture, scrubbing floors, cleaning lawns, and on one occasion used a heavy sledge hammer. T. M. Walker, steward at Pineville, says he saw him rolling a wheelbarrow of apples; Mr. Lamurry, supervisor of the asylum, said that Turner did hard work while there, such as cleaning the floor, looking after the laundry,- and said he cut wood and such work as that, and in fact that He had done about everything except hoe and plow, and that he had no difficulty in doing whatever he had to do. Dr. J. N. Thomas, superintendent of the asylum at Pineville, testified that Turner was examined by himself, Dr. Spence and others while he was there; says he tested his grip and it was normal; saw that his left arm was sensitive to the prick of a pin; both hands and both arms were normal; saw him working cutting wood for a period of five minutes, and says he used both hands, and that he was in first-class condition when he was finally discharged. To the same effect is the testimony of Dr. Spence, connected at that time with that institution, and some other employees of the asylum. Mr. J. T. Mullens, who was 'employed by the defendant company, says Turner worked under him fixing fences and “he was a pretty good hand to work for me,” and says that to the best of his recollection he used the hammer in his right hand. In this connection it is well to state that Turner is naturally left-handed and that up to the time of this accident he — 670 — would use Ills left hand instead of his right hand. R. A. Fitch of the Standard Oil Company says he saw Turner throwing a ball about May 17 and that he threw it with his right hand. A man by the name of Ogden, employed by the defendant to watch Turner, says he saw him wrestling on the school ground at Minden, using both hands; saw him on the fair grounds using his left hand to hold an ice cream cone; saw him scratch himself with the fingers of the left hand. Mr. J. B. Lee says he saw Turner scratch with his left hand and also use the same hand to hold an ice cream cone. Ogden says he has no one to corroborate his testimony as to the wrestling. Defendant relies also upon the testimony of eminent specialists to the effect that there is no physical paralysis of the nerves or muscles of Turner’s left hand or arm. Hence, having shown that he has used his left hand and arm, and that there exists no physical paralysis thereof, defendant rests its case. We have made a very careful examination of the testimony of all the witnesses in the case and have reached the conclusion that the testimony does not sustain the contention of the defendant that Sambo Turner has recovered entirely from the wound which he received on February 17, 1922. Nor does it sustain the plaintiff’s contention that he is totally disabled. Referring to this testimony somewhat in detail, we find that Turner did sign a receipt for the sum of $198.00, compensation paid him by defendant, which receipt recited that this was the full amount due him on account of the injury which he had received and that he had fully recovered. We have no doubt that he thought at the time that he had recovered at least sufficiently to go back to work; nor have we any doubt that he was mistaken. It would appear that he was anxious to go back to work. He called at the office of defendant three times asking that he be put back to work, and when assigned a task he made an effort to perform it.' His conduct does not indicate that he had any desire to prolong the period of disability, notwithstanding he was drawing compensation. He was finally given work, not the kind he had been doing but lighter work, presumably at the same wage. But he worked only a few days when he failed to report one morning, and the foreman, Mr. .Beckam, found him in bed. Mr. Beckam says that Turner told him his arm was swollen and that he was going to town to get some dressing or liniment for it. Now it seems strange that after having been so anxious for work and after having been assigned to a less heavy task-he would quit it if indeed he experienced no difficulty in performing it. He again reported to the office and was sent to Dr. Smith, who, in turn, sent him to Dr. S. C. Barrow, radiologist, who, on May 3, made an X-ray picture of the left arm and wrist, and when asked to interpret the picture, he said, “and the plate shows a slight outward and backward displacement of the lower end of the ulna.” He made another picture on June 3 which showed the same condition. He said no fracture was indicated. — 671 — Dr. Smith, who at that time was the company. physician, was shown the picture and. said that it showed no fracture. He further said that he examined Turner about May 22 or 23 and found no evidence of any injury. He probably meant that he could find no evidence of any additional injury, which Turner claimed to have received after he returned to work. On November 2, 1922, Dr. S. C. Barrow was again called as a witness for defendant. He testified that he had made three X-ray pictures of Turner’s wrist and arm, one on May 23, one on June 13 and one on August 2, 1922. Heo says of the plate made August 2: “Plate shows slight upward and backward displacement of the lower end of the ulna.” Dr. Smith, on the same date, said the picture showed slight displacement of the bone, but says he can’t see that it would have any appreciable effect, and further, “as far as use is concerned, impaired very little.” Referring to the testimony that Turner played football, baseball and wrestled at Minden High School, we have carefully read the testimony of the witnesses on that point and are by no means satisfied that he took any part in these games which involved the use of his left hand. Mr. Ogden, the detective employed by the defendant company, says that he saw Turner romping and wrestling on the school grounds. “When asked to explain just how he wrestled, he said: “He would put his left hand around a boy’s neck and catch the wrist With his right hand and choke him down.” He does not say that he saw him use his left hand or fingers. It may.well be that he caught his left arm above the wrist with his right hand. Prof. Spencer of the Minden High School faculty states that Turner wanted to join the football team but did not get on the “squad.” Says he went through the motions but did not do much. Says when he gave orders Turner “took his place there in one position to do what he could.” He says he did not notice him particularly. Does not know that he played in the scrimmage. His testimony does not indicate that Turner did any playing involving the use of the left hand. Ardis Dickens, a member of the ball team, .says Turner would run signal and practice a little. He did not see him wrestle — did not see him do anything involving the use of his left arm. , Richard Taylor, another of Turner’s schoolmates, says he did not see him wrestle or use his left hand. He says Turner was not on the school grounds on the 11th of October, the day that Ogden saw him wrestling there. He says lj.e did not play football, he only ran signals. There is evidence in the record that he did take part in baseball games; caught the ball in his right hand, and some say that he batted the ball. As to the work that he did at the hospital for the insane at Pineville, Mr. T. Lamury, supervisor, says that for about eight days after he was admitted he worked all right, but at the' beginning he complained that his left hand was sore, but later he did any kind of work there was to do. J. A. Weaver testified that he was employed at the hospital at the same time that Turner was a patient there and said that Turner had a bad hand and that — 672 — lie permitted him to carry water, etc. He says that Turner could not do heavy work and that by order of Mr. Lamurry he put him in the straightjacket because he would not do hard work, but that Turner still told him that he could not do heavy .work on account of the condition of his arm. Mr. Moreland, who was a patient at Pineville while Turner was there, but who seems to have been discharged, says that he slept with 'Turner while there; that, his left wrist was enlarged, is stiff, and he cannot use it much; that the arm has red and white spots on it; that while working he does not close his fingers; says the ligaments in his wrist seemed to be adhered; and that this condition existed when Turner got there. While this hian, Mdreland, was a patient at the hospital- at that time, it seems that he is a man of fair intelligence, fairly well educated and had at one time studied medicine. He says that Turner complained a great deal and could not sleep at night. ■ Dr. Thomas says he saw Turner working, cutting wood, but says Turner told him that he could' not use his arm much at times but that it was getting better and that it hurt him only when he used it for a considerable length of time. Prom the fact that Turner was sent to the Hospital for the Insane on account of a mental impairment, we are inclined to the belief that it is probable that Dr. Thomas and his assistants there noticed more carefully Turner’s mental than his physical condition. We have the greatest respect for Dr. Thomas and have no reason to doubt the sincerity of any of the people who are connected with that institution; but from a very careful examination of all the testimony given by the physicians and others connected with that institution we get the impression that their observation of Turner’s physical activities was more or less casual. Por instance: Dr. Thomas is very positive that there was no physical impairment of Turner’s left arm, and he says he saw him work, but he says he watched him for only five minutes, and says he saw him use the sledgehammer. We think it is very probable that Dr. Thomas did not observe carefully to see whether Turner gripped the handle of the sledgehammei with his left hand and that it is very probable that, as explained by Turner and as explained by Dr. Cassity after saying that Turner used the sledgehammer, that he merely used 'his left hand to steady the handle. We think it very probable, also, that Turner was making a very strenuous effort to convince Dr. Thomas and others connected with that institution that there was nothing the matter with him physically in order to induce them to release him. It is in evidence that he was doing all he could to get them to release him so that he could return to his home. Turning now to the testimony more favorable to plaintiff, we find that a number of lay witnesses have testified that he has not recovered from the injury, among those being his father, his mother, and Mr. E. B., Taylor, who says that he has seen him in great pain. Sambo Turner says that he us his arm; that he cannot feel the prick of a pin in the. arm from the wrist to the elbow; cannot distinguish between hot and cold applied to the arm. With reference to the testimony of the doctors and experts, we find considerable conflict as -is usual in such cases. On November 2, 1922, the court appointed Dr. S. C. Barrow and Dr. Spencer to make — 673 — a “galvanic and. fradis test and to report to the court both from the standpoint of muscles and nerves and the outer sensibility of the skin of the hand and fingers.” On the following day Dr. Barrow reported that he and Dr. Spencer had made the examination of Sambo Turner’s left arm and that measurements of the arm showed that the two arms were practically the same; that the sensation in each arm is about the same; and that the muscles of the left arm react to the galvanic currents in practically the same manner and degree as those in the right arm, showing absence of paralysis of muscle or nerves, and hq closes the report thus; “It is my conviction that the sensation muscle and nerve action of this limb is normal.” That report is dated November 3 and is not sworn to. ' On November 4 Dr. Spencer reported to the court under oath, in which he gave it as his opinion “that Mr. Turner is suffering from a true functional disability of the left forearm and hand,” and says that from the history given him it is his opinion that this functional disability was brought about by the accident as claimed. He explains that a functional disability is a condition in which an individual cannot properly use a member “without having an actual lesion of the member,” and he further says that it is his opinion that the patient can use his hand “to a certain extent,” and again, “the dividing line between functional disability and malingering is often difficult to draw, but in this case I think a true functional disability exists.” Thus it will be seen that one of the experts appointed by the court is of the opinion that the sensation muscle and’ nerve action of Turner’s limb is normal which means, as we understand it, that the arm is now whole as ever, while the other is of the opinion that a real functional disability exists, and that this functional disability was brought on by; the injury as claimed. Dr. C. H. Cassity testified that his examination of Turner, made May 23, 1922 showed a stiff and painful wrist with creaky sounds in the joints due to the inflammation of the joints surface, and he corroborates Dr. Barrow that there is a backward displacement Of the ulna; in other words, it is .dislocated, and that it will take two years for it to form another joint and that the wrist will never be as good as before the accident. He testified on November 2 that since he made the examination of May he had made three more, the last one on November 1, and that there had been no improveentj that he had used an electric machine and found that tbie boy had very little sensibility in his hand or arm up to the elbow and had very little power of motion. He testified again on May 8, 1923, and says that he finds the same condition, except that the discoloration of the skin is more pronounced and that he stuck a needle in his arm in the presence of the court while the patient was blindfolded and that he showed no sense of emotion. Dr. O. C. Rigsby testified that he examined Turner on November 1, 1922, and “I made a careful examination of that and all the tests, such as pricking with a pin’and tests for detecting sensibility, and I found that 'his hand and wrist are paralyzed due to the nerve injury.” Dr. R. C. Tomkins, coroner of Webster parish, testified on January 20, 1923, that he had made an examination of Turner’s — 674 — arm on the day before and that there is a very marked deformity, a thickness of the joint. He says that he can use it some, of course, but not long at a time, and that there seems to be a paralyzed condition of the arm. Dr. S. W. Boyce testified on January 30, 1923, that he examined the boy’s arm on the day before and that he found his fingers somewhat swollen; his hand had a stiff feeling; that he had no sense of pain up to about half-way between the wrist and elbow and loss of sense of touch in the same area, and that “all motion that took place in the wrist joint is lost.” He said he tested him very thoroughly and became convinced that he had lost all sense of pain in the lower arm. Dr. J. B. Kilgore says he examined the patient on May 15, 1923, and found his left arm discolored and enlarged and, “I would say he has a bad arm and impaired to a considerable extent today.” He does not know whether it will get better or not Dr. E. S. 'Spence, who was at that time connected with the Pineville Hospital for the Insane, was a witness and saw pins and needles stuck into Turner’s • arm ' and said he did pot see the slightest movement of his face. He was asked to explain and said that he "could not do so. Dr. Clarence Pierson examined Turner about March 3, 1923 and says he found him very much disturbed mentally but does not think that condition could have been brought about by the use of drugs. He says that he has less sensation below the elbow and the circulation is slightly impaired and the left arm is considerably cooler than the right. Dr. Frank H. Walk, a witness for the defendant, testified that he made an examination of the plaintiff on December 23rd and was asked: “What did you find, what condition?” and he said: “Well, there was no anatomical lesion, such as you would fully expect; his fingers could be moved, flexible from an anatomical standpoint, no callous, no evidence of ciricololis, which you get following a Coles fracture; that was not present; the limb was discolored and he could apparently use it; however on positive motion there was no pain to amount to anything to indicate an injury.” If the above means anything, it means that on December 23, 1923, almost two years after the accident, there was, in the opinion of Dr. Walk, who testified for defendant, something wrong with Turner’s arm; it was “discolored”; he could “apparently use it” and there was no pain “to amount to anything to indicate an injury”. He further says he found “a glove anesthesia,” which is an area of tne arm where there is no feeling covering the area of a glove. He says it is a functional disease and he attributes it to hysteria. A reading of the testimony of all the witnesses, doctors, experts and others, will disclose that with the exception of Dr. Thomas and one or two others at Pine-ville, they are unanimous in the opinion that there was on the dates on which they testified something wrong with Turner’s arm; they differ as to the cause, but all agree that he is suffering some disability. Dr. Barrow made an X-ray examination of his arm shortly after the accident of February 17, 1922, and says that his examination and X-ray disclosed that there is a displacement of the ulna. That is denied by only one or two. The plate is in the record and very plainly shows the dislocation. It is asserted and not denied — 675 — that the skin on the arm is discolored; that the left arm is not as warm as the other; that it is enlarged slightly; that the nerves are paralyzed below the elbow, as is evidenced by the fact that he permitted pins and needles to be inserted into his skin and flesh without the slightest indication of feeling or pain. The experts differ, not as to whether or not there is disability, for they all agree that there is, but as to the cause of it, some claiming that it is what may be called anatomical and the others that it is a functional disease or functional disability. Dr. Spence gave it as his opinion in the report which he made in response to the court’s appointment that Turner is suffering from a true functional disability which was brought about by the accident as claimed. He later testified that he had changed his opinion, and he gave his reasons for doing so. These reasons do not appeal to us as having any force. We think, as stated, that the testimony abundantly shows that the plaintiff is now or was on the dates of the various trials suffering from disability. A majority of the witnesses are certain that this disability was brought about by the injury which Turner received to his arm and muscle on February 17th.' Some of them claim that the paralysis or glove anesthesia Which they find that Turner is afflicted with is a condition of mind and not of the body; but as far as we can see it is not seriously disputed by any of the experts that the injury is responsible after all for that condition. Our conclusion, therefore, is that he has not recovered from the accident of February, 17th, 1922. The very able and learned counsel for. defendant apparently do not deny that Turner is now or was on the date of the trials suffering from disabilities, but they say that his disability results from a “voluntary or involuntary control originating in the mind,” and they say “this glove anesthesia is most often found in hysterical patients who for some reason believe that they are unable to use one of t^he members.” The anesthesia of Turner’s arm did, not follow any anatomical destruction of the nerves and the neurologists and physicians testify positively that the same could' not have been caused by the destruction or impairment of a nerve or muscle.” We are unable to agree with counsel and the specialists in the view that Turner is suffering from no disability except that which originates in the mind. It may be and probably is true that it is possible for an individual to so control the muscles of his body as not to show sense of pain or sense of touch when the sensory nerves are pricked and otherwise disturbed; but, to say the least, such cases are rare indeed. One of the eminent specialists said that he had never seen a person who could do that unless it was in a show. But the glove anesthesia is not the only evidence of an injury to Turner’s arm.. He has a displaced or dislocated ulna, the skin on the lower arm is discolored, it is slightly enlarged, and the temperature in the left arm is slightly lower than in the other one. Suppose it to be conceded that the glove anesthesia which the specialists say he has results from a mental condition or process, will it also be contended that he could by any sort of mental process or control reduce' the temperature in that arm or cause discoloration of the skin? We hardly think that any such suggestion will be made. — 676 — It might, we think, he suggested with some degree of plausibility that lack of use might produce either of the latter conditions; but if we adopt defendant’s theory we would have to say that Turner not only can but has in fact constantly made use of his left arm, wrist and hand, and there is, therefore, no decay on account of non-usage of the member. Our opinion, based upon the testimony as a whole, is that Turner can use and has used to a limited extent the left arm, wrist and hand, but that he still is partially disabled as a result of the injury sustained on February 17, 1922. It is plaintiff’s contention that he is totally disabled from doing any work of a reasonable character and that view seems to have been adopted by the court below, as it allowed him sixty per cent of his wages for 400 weeks. We do not concur in that view. The only theory under which .we could hold that he is totally disabled is that his mind is so deranged that he cannot concentrate on work of any kind. ..That is not the case, as is evidenced by the fact that when the case was tried the last time in the District Court on December 23rd, his father testified that he was then at work at a small sawmill and was earning $1.50 per day. Insofar as the District- Court held that plaintiff is totally disabled, that decision is not correct. Plaintiff’s son is only partially disabled. He is entitled to compensation to be fixed at sixty-five per cent of the difference between what he was earning when injured and what he is able to earn now. We do not find it necessary to remand the case to ascertain what he can earn under present conditions. There is testimony' in the record that he was earning $1.50 per day on December 23, and we shall adopt' these figures in fixing the compensation. He was earning $4.50 per day when injured. We hold that he is partially disabled as a result of the injury of February 17, 1922, and that he is entitled to compensation as allowed by law in case of partial disability fixed at sixty-five per cent of the difference between what he could earn before the injury, or $4.50 per day, and what he can earn now, or $1.50 per day. We find that he was paid full compensation up to and including the 3rd day of May, 1922, and the compensation under this judgment should begin on that date. For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to read as follows: It is ordered, adjudged and decreed that William P. Turner do have judgment in his favor for the use and benefit of his minor son, Sambo Turner, against the Standard Oil Company of Louisiana in and for sixty-five per cent of the difference between what Sambo Turner was able to earn before -he was injured and what he is now able to earn, or a weekly compensation of $11.70, during the period of disability, not to exceed however, a period of' three hundred weeks, payable from’ week to week,, beginning on the 3rd day of May, 1922, each of the weekly payments bearing legal interest from its maturity until paid. Defendant to pay all costs of the suit. It' is further ordered, adjudged and decreed that the fees of Julius T. Long, at- ‘ torney representing the plaintiff herein, are hereby fixed at one-third of the net amount recovered and collected under this .. judgment.