Following the resubmission of this case after a rehearing was granted, we requested of the Supreme Court instructions on the intricate question of law propounded by plaintiff's application for a modification of the judgment originally rendered by this court (162 So. 430), and the plea of res judicata filed and urged by defendant. Prefatory to the question of law on which instructions were desired, we incorporated in said application a resume of the history of the case and the record facts thereof, from which we quote the following:
"Plaintiff brought suit against his employer, Southern Carbon Company, to recover compensation payments for 400 weeks. He alleged that he experienced an accident while performing the duties of his employment, resulting in injuries producing total and permanent disability to do work of a reasonable character. He recovered judgment in the lower court as *Page 374 by him prayed for. On appeal to this court, plaintiff's contentions and findings of fact of the trial court were upheld, with the exception of the term for which compensation was due. We found and held that the injury and its effects were confined to the left foot and, this being true, notwithstanding total and permanent disability resulted, no greater amount of compensation was recoverable than would be due had he lost the foot entirely; and, accordingly, the judgment appealed from was amended by reducing the term of compensation from 400 weeks to 125 weeks. (See 162 So. 430). In reaching this conclusion, we were influenced by our interpretation of the jurisprudence of the Supreme Court as previously enunciated by it in several cases.
"Plaintiff applied for a rehearing which was denied. He then applied to the Supreme Court for a writ of certiorari or review. This was refused. Payments under the judgment began July 15, 1934. The last one was due on December 9, 1936. All payments have now been made.
"The present suit was filed October 31, 1936. The history of the case, including the action of each court therein, particularly the reasons of this court for reducing the term of compensation payments, is clearly set out therein. This is followed by allegations that since rendition of the above mentioned judgment, plaintiff's `physical condition has gradually grown worse and his disability constantly increased'. Detail of facts supporting this conclusion is alleged. The proof unquestionably sustains these allegations. Disability has increased. He prays that the judgment of this court, review of which was denied by the Supreme Court, be modified, and that he now have judgment awarding him compensation for the full term of 400 weeks, less payments heretofore made. A plea of res judicata and an exception of no cause and no right of action were interposed by defendant. These were overruled by the court aquo. Trial on the merits resulted in judgment for plaintiff as prayed for by him. On appeal to this court, the plea of res judicata was sustained. Our action in this respect was largely predicated upon the case of O'Donnell v. Fortuna Oil Company, 10 La.App. 599,120 So. 789, in which an application for a writ of review was denied by the Supreme Court. Plaintiff applied for rehearing which was granted, in order that this application for instructions might be made.
"It is conceded that had the court's pronouncements in the case of Barr v. Davis Bros. Lumber Company, 183 La. 1013, 165 So. 185, been made prior to the first judgment of this court, whereby compensation payments were reduced to 125 weeks, the district court's judgment would not have been amended in this respect."
And closed the application with the following:
"In view of the situation reflected from the above related record facts, we propound the following question of law, and respectfully request instructions thereon:
"May the provisions of Section 20 of Act No. 20 of 1914, as amended, be availed of by plaintiff and the judgment where — under some of the payments were made after the present suit was filed, be modified by increasing the term of compensation to 400 weeks; or, conversely, is he barred from such a course by the plea of res judicata?"
The question was exhaustively considered by the Supreme Court and, by a vote of four to three, the primary question was answered in the affirmative, pursuant to which instructions were given us, of which the following is a copy, 181 So. 469, 474:
"Therefore, our answer to the question of law propounded to us by the Court of Appeal of the Second Circuit is that the judgment in the instant case may be modified by increasing the term of the compensation to not exceed 400 weeks, if the proof on the merits warrants that conclusion and that the plaintiff's right to ask for such a modification of the judgment originally granted is not barred by the plea of res judicata."
The majority opinion, supplemented by the dissenting opinion of the minority members, covers 20 typewritten pages. It appears at page 992 of 189 La., and at page 469 of 181 So., and will not be reproduced here.
The testimony adduced on the trial of the present proceeding clearly establishes that plaintiff's disability at that time was total, with favorable prospect for a long continuance of that condition.
The malignancy of the leg wound producing the original disability increased since the date of trial of the first suit. The infection seems to have become aggravated. Plaintiff's disability, while *Page 375 found to be total at the first trial, within the purview of the Workmen's Compensation law, had, as a matter of fact and from a physical standpoint, increased during the interim between trials. It is not improbable that the leg, in whole or part, eventually will suffer amputation.
There follows from these findings of fact, in the light of the law embodied in the instructions given this court by the Supreme Court, supra, that plaintiff is entitled to have our original judgment modified by increasing the term for payment of compensation due him to the period of his disability, not exceeding, however, 400 weeks, less the 125 weeks for which payments have been made. The lower court so found and held.
For the reasons herein assigned, the judgment appealed from is affirmed, with costs.