On Rehearing.
SOMMERVILLE, J.Further consideration has led to the conclusion that plaintiff’s suit in damages must be sustained, and that the case is not controlled by or provided for in the Employers’ Liability Act, No. 20 of 1914, p. 44.
Defendant excepted to the action for damages, and ■ denied liability for compensation.
*377The law guarantees life, liberty, and property to every person, and provides courts wherein one may have adequate remedy for injury done him in his rights, lands, goods, person, and reputation; and it obliges him, through whose fault an injury happens to another, to repair it.
The Employers’ Liability Act does not provide for compensation for the injury sustained by plaintiff.
Plaintiff was engaged, with a large number of other hands, in the factory of the defendant company, where she met with the frightful accident which injured and damaged her so disastrously. While in the dressing room of the defendant company, where she had a right to be, her entire scalp was taken from her head by her hair being caught in a revolving belt, which was not shielded. It was negligence on the part of the defendant to have such a belt in operation at that place without safeguarding it. Plaintiff’s scalp ■was taken off more completely and entirely than was customarily done by the savage Indian tribes which, with a scalping knife, scalped their victims, dead or alive, and carried the scalps as trophies, and as evidences of their conquests. She has not, and never Will have, a hair on her head. Plaintiff asked for judgment in the sum of $10,000 actual damages, and $2,500 exemplary damages. The trial judge gave judgment for the amount claimed for actual damages, and rejected the claim for exemplary damages. Exemplary damages cannot he allowed.
[9] The Employers’ Liability Act, recently adopted in 1914, giving compensation to the injured employé instead of the action for damages which was his exclusive remedy theretofore for personal injuries, is not clear from difficulties in its interpretation. It may have been taken from compensation acts of different states, and that may have led to some confusion in the act. Its terms would import that it was both a compulsory and a voluntary law at the same time. These terms will have to be construed with reference to these two forms of the act, and application will be made in cases presenting these points so as to give all the provisions proper-effect.
The act, before it was amended, strictly provided for compensation for personal injuries suffered by the employé while in the performance of services arising out. of and incidental to his employment by compensating him for loss of earning power. The act makes ,the loss of earning power alone the sole basis for compensation.
It may be assumed for the purposes of this case that Effie Boyer is a person described in the Compensation Act, and that the contract she entered into with her employer carried with it the presumed election on her part to work under the provisions of that act; but the act does not provide compensation for the personal injury suffered by her through the fault of the defendant.
Effie Boyer suffered personal injuries in the course of her employment under defendant which has not in any manner destroyed, in whole or in part, her earning power. Her injury is grievous, but it has not deprived her of any of the means of earning wages;, and the act as it originally was made no provision for such injury and damage.
[10,11] Indeed, the Legislature itself has declared in amending Act No. 20 of 1914, § 8, in Act No. 243 of 1916, § 1, p. 514, that there were cases which did not fall “within any of the provisions already made” in the original act. Act No. 20, it may be noted parenthetically, is no longer a purely compensation act. By the amendment just referred to, the act is made to embrace personal injuries which do not affect the earning power of the employé. In section 8, subd. (d), of that act (as amended), it is provided:
“In cases not falling within any of the provisions already made, where the employé is se*379riouslv permanently disfigured about the face or head or where the usefulness of a member or any physical function is seriously permanently impaired, the court of proper jurisdiction as hereinafter provided may allow such compensation as is reasonable in proportion to the compensation hereinabove specifically provided in the cases of specific disabilities above named, not to exceed fifty per centum of wages during one hundred weeks.”
The amendment may include the personal injury to plaintiff, but it was adopted subsequent to the time of the accident, and it is therefore without application here. The injury to Effie Boyer may have caused the adoption of the amendment.
The original act provides compensation for “every injury producing temporary total disability to do work of any reasonable character,” for “injuries producing temporary partial disability,” and for “every injury producing permanent partial disability,” in section 8. We repeat that only those personal injuries resulting in disability “to do work of any reasonable character” are covered by the act. And those disabilities are enumerated, such as the loss of a thumb, finger, arm, etc., which may disable an employé to do work; in other words, those injuries which impair the earning power of the employé.
Effie Boyer may be said to have sustained a personal injury “producing temporary total disability to do work” while she was in the hospital undergoing medical treatment after the accident to her. But she has sustained greater injury than a temporary disability. She has been deprived of her scalp. Such a condition cannot be termed a temporary disability, or a “disease or infection naturally resulting from the injury.” She is not “entitled to compensation under this act” for the injury which she has sustained and which she now bears. Her right to damages, or to compensation, is not provided for in the act. The act only restricts the rights and remedies to those employed under the act, where it provides that compensation shall be made for personal injuries which | affect, the earning power of the employé. Section 34 says:
“That the rights and remedies herein granted to an employé on account of a personal injury for which he is entitled to compensation under this act, shall be exclusive of all other rights and remedies of such employé,_ his personal representatives, dependents, relations, or otherwise, on account of such injury.”
The Compensation Act did not provide for compensation for the injury suffered by plaintiff, and she is not therefore entitled to compensation under that act. Her right to damages is not attempted to be excluded by the act. The rights and remedies given in the act are declared to be for a “personal Injury for which he [she] is entitled to compensation under this act.”
The claim of plaintiff not being embraced within the terms of or governed by the Employers’ Liability Act was properly made under article 2315, C. C.
The judgment appealed from is affirmed.
MONROE, O. X, concurs in the decree. LECHE, X, concurs in the decree. PROVOSTY, J, dissents and hands down reasons. See 78 South. 600. O’NIELL, J,is of the opinion that, unless the decision rendered in the case of Wood-ruff v. Producers’ Oil Co., 142 La. 368, 76 South. 803, holding that the Employers’ Liability Act does not apply to an injury that occurred within 30 days after the employment, should be overruled, the question whether the statute excludes an action for damages under article 2315 of the Civil Code, for such an injury as Effie Boyer suffered, should not be considered, because the injury she suffered occurred within 30 days after she was employed. He is of the opinion that the reasons given for the ruling in the case of Woodruff v. Producers’ Oil Co. are not tenable; that the ruling cannot be reconciled with that rendered originally in the present case and should be overruled.