Burton v. Kaucher

REYNOLDS, J. [76] OPINION. Defendants plea that the contract between plaintiff and his attorney whereby the latter is to receive one-third of whatever amount may be recovered in this-suit as compensation for his services is illegal is not supported by the citation of any authority. Act 124 of 1906 specially authorizes the making of such a contract by an attorney and his client, and in the case of Smith vs. Vicksburg, Shreveport & Pacific Ry. Co., 112 La. 985, such a contract was duly recognized by the Supreme Court. Paragraph 2 of Section 21 of the compensation act provides: “Fees of attorneys and physicians for services under this act shall be reasonable and shall be measured according to the workman’s station and shall be approved by the court.” Under the two above mentioned acts this court has frequently approved contracts between attorneys and their clients where the court found such contracts reasonable, and we consider one-third of the amount that may be recovered in this case a reasonable fee. Defendants’ contention that the contract between the plaintiff and his attorney makes the latter a joint owner with him of the cause of action and that the suit should not proceed unless Mr. Julius T. Long be made a party to it cannot be sustained in law, for Act No. 124 of 1906, above mentioned, gives the attorney a privilege on any judgment he may recover for his client to secure the payment of his fees, and hence it follows that the attorney is not a joint owner with his client but only has a privilege. Defendants insists that under the authority of Craft vs. Gulf Lumber Co., 151 La. 281, 91 South. 736, plaintiff having received full compensation for temporary total disability „ during sixteen weeks cannot now recover for the permanent impairment of the usefulness of a member or any physical function for 100 weeks under Section 8, subsection 1, clause (e) of the compensation act. This clause reads as follows: “In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a member or any physical function is seriously permanently impaired, the court may allow such compensation as is reasonable in proportion to the compensation hereinabove specifically provided in [77] cases of specific disability above named, not to exceed sixty-five per centum of wages during one hundred weeks.” Under this plain and unequivocal language we find no reason to refuse compensation under this clause of the act on the ground that plaintiff had already received compensation for a period of sixteen weeks for temporary total disability under another provision of the act. In our opinion it is clear that an injured employee may recover compensation for and during temporary total disability and after such disability shall have ceased may recover compensation under clause (e) of subsection 1 of section 8. We do not think that Craft vs. Gulf Lumber Company, 151 La. 281, 91 South. 736, supra, holds to the contrary, for in that case the court said: “Besides this claim is only made in the alternative in plaintiff’s petition.” The claim referred to by the court was one for 100 weeks additional compensation under clause (e) of subsection 1 of section 8, in the alternative, and in the same judgment the court awarded the claimant compensation for 300 weeks under a different provision of the act under his first claim. In our opinion, under the authority of: Quave vs. Batson & Co., 151 La. 1052, 92 South. 678. Kinney vs. Edenborn, 151 La. 216, 91 South. 712. Mack vs. Legeai, 144 La. 1017, 81 South. 694. Harwood vs. Standard Oil Co., 1 La. App. 310, the/ judgment appealed from in this case is correct. Defendants further insist that the amount allowed plaintiff is excessive; but the allowance was only $3.00 per week, the minimum permitted by the compensation act. Plaintiff insists that the judgment should be increased from $11.70 per week during total disability to $13.65 per week on the ground that he was receiving $3.00 per day and that 65% of $21.00 is $13.65 and not $11.70; but there is no proof in the record that plaintiff worked seven days in the week and under the general custom there are only six working days in the week, and in the absence of proof to the contrary we must presume that plaintiff only worked six days in the week. We do not feel warranted in changing the finding of the trial judge as to the number of days in the week the plaintiff worked from six to seven. For the reasons assigned the judgment of the lower court is affirmed.