In a Workmen's Compensation suit, in order to determine the extent of the claimant's disability, the trial judge ex proprio motu, on three separate occasions, called a medical expert, who gave expert testimony, which was used by the court in determining the issues presented. The district judge rendered a judgment on the merits in favor of the plaintiff and condemned the defendant to pay the costs of court. *Page 40
The defendant did not appeal and about five months after the date of the judgment, without any attempt to ascertain the amount of the expert's fee, paid the judgment and all of the costs of court, except the medical expert's fee. Sometime later, the doctor learned what had happened and filed a rule against the defendant to tax as costs his fee as an expert. The defendant pleaded that, under the provisions of the Workmen's Compensation Law, Act 20 of 1914, as amended by Act 85 of 1926, it is mandatory for the fee of the expert to be fixed in the judgment on the merits, otherwise, it will be disallowed; and that as the judgment was final, the district judge had no authority or jurisdiction to amend or modify it. The pertinent part of the statute reads as follows:
"* * * The judge shall decide the merits of the controversy as equitably, summarily and simply as may be. Costs may be awarded by the said Judge in his discretion, and when so awarded by the said Judge in his discretion, and when so awarded the same costs may be allowed, taxed and collected as are allowed, taxed and collected for like services in other civil proceedings. The fees of medical witnesses shall be reasonable and are not to be allowed unless fixed in the judgment. The judgment rendered by the Court shall have the same force and effect and may be satisfied as other judgment[s] of the same Court." Section 18, subd. 4, as amended by Act No. 85 of 1926. *Page 41
The question to be determined is whether or not the word "judgment" in the statute refers to the judgment on the merits between the employee and employer or the judgment on the rule to tax costs.
It has been the uniform practice, under our law in civil cases, for the court in its decree to assess the costs of court against the party cast. If there is no dispute between the litigants as to the costs, they are usually settled by the parties themselves. In the event a controversy arises, the procedure followed is to institute a rule to tax costs and the judge then determines whether or not the items claimed are legal charges and if the amounts demanded are correct. If the court concludes that they are legitimate claims and the sums claimed are correct, the rule to tax costs is made absolute in a judgment which then fixes definitely the items and amounts that constitute the costs of court. Bentley et al. v. Fischer Lumber Mfg. Co., 51 La.Ann. 451, 25 So. 262; Wall v. Rabito, 144 La. 888, 81 So. 382; Barker v. Houssiere-Latreille Oil Co., 163 La. 555, 112 So. 415; Wright v. Fuller Const. Co., La.App., 145 So. 300; Crichton et al. v. Krouse et al., La.App., 150 So. 443. See, also, Dart's La.Digest, Vol. 2, verbo "Costs, fees and taxation," paragraphs 37 and 40.
It is obvious that a rule to tax costs is not an attempt to modify or change, or in any way alter the final judgment, but a method of carrying the judgment into execution and is merely accessory and incidental thereto. It is clear that the *Page 42 judge has jurisdiction of the case for this purpose.
In the instant case, this well-established practice is sought to be changed by saying the Legislature, in using the above language, intended that in compensation cases the rule should be different. The whole modern trend of our law is for simplifying our procedure and eliminating procedural pitfalls for unwary litigants. The trial judge concluded that the defendant's interpretation of the statute was unsound, the Court of Appeal annulled the judgment and adopted the defendant's views. Jefferson v. Laure N. Truck Line, 181 So. 821.
It will be noted that the law-writer was dealing with the question of taxing costs of court and while it is conceded that the initial language of the paragraph deals with issues arising on the merits, nevertheless, the last subject matter directly dealt with in the paragraph is "taxing costs." It is, therefore, more logical and reasonable, especially in view of our jurisprudence with reference to taxing costs in civil cases, to conclude that the legislators had in mind the judgment taxing costs and not the judgment on the merits. Surely, if the law-making body intended to change a well-established rule of procedure, it would have done so in an unequivocable and clear way, but the above quoted language does not do so. The interpretation placed upon the statute in the majority view leads to obvious confusion on the trial of compensation cases on the merits. There are some cases where only one or two experts might *Page 43 be employed or used, but there are a great many where several experts appear on each side. If each litigant were to question the extent of the value of each expert's fee, the court would then become involved in controversies which were foreign to the merits of the case. These collateral issues or claims of experts would tend to cloud the issues, and, therefore, this procedure would be more involved and more harmful than helpful.
It is said that the Legislature had in mind protecting the party cast from unreasonable or exorbitant expert fees and also letting the party condemned know the extent of his liability. The simple procedure by rule is an equally adequate and effective means for those purposes. So there is no reason for the alleged change in procedure.
Protection from unusual and excessive medical fees is also provided for in Section 21, subsection 2, of Act 85 of 1926, the pertinent part of which reads:
"* * * Fees of physicians for services or treatment under this act shall be reasonable and according to the workmen's station, and shall not be enforceable unless agreed upon by all parties concerned or approved by the Court."
In the instant case, the defendant who was clearly liable for the doctor's fee is defeating a just and honest claim on a strict legal technicality. I, therefore, respectfully dissent from the majority view, because of the injustice done by the incorrect interpretation or construction placed on the law. *Page 44