OPINION ON REHEARING AFTER REMAND
CROW, J.On first hearing of this case by this court the judgment of the District Court, rejecting plaintiff’s demands was affirmed.' An application for a rehearing was filed by plaintiff and later a rehearing was granted. After the order granting the rehearing had been made by this court counsel for defendant filed here a motion setting up that, in the event the judgment of the District Court, on rehearing, should not’ be affirmed, then the case should be remanded to the lower court to enable defendant to supply evidence to show that plaintiff’s condition was normal and that he had fully recovered from the’ injury he had received and the effect of the consequent operation performed on his skull by Dr. Hendricks, as described in our former opinion herein.
After due consideration of the said motion to remand, this court, in the following order or decree, remanded the case to the District Court:
“It is, therefore, ordered and decreeded that this case be and.it is hereby remanded to the Honorable The First Judicial District Court for the Parish of Caddo, Louisiana, with directions to re-open the note of evidence for the taking of such legal testimony on the question of plaintiff’s ability to perform work of reasonable character, since the trial of the cause in said court as both parties shall desire to offer, after which the entire record will be returned .to this court.”
In compliance with and conformity to the foregoing order, the case was again taken up in the District Court on April 1, 1924, and evidence was .submitted by both parties. After the case was. again submitted to the said District Court, his Honor, Judge T. F Bell, in a written opinion handed down by him, said:
“This is a compensation case. When first tried in this Court, judgment was rendered rejecting the demands of plaintiff. We did this on the ground that there was not sufficient evidence in the record to ‘connect the injury of plaintiff with his’ condition at the time of the trial. We never had any doubt of plaintiff’s condition; that it was such as to prevent him from doing reasonable work. The case was presented to the Court of Appeal when the judgment of the lower court was affirmed. A rehearing was granted and later the case remanded to take evidence on the restricted question of plaintiff’s ability to work. This evidence has been taken, and it devolves upon us to again render judgment. This evidence shows that plaintiff, since the time the first judgment was rendered has done considerable work, but our opinion as to his present condition is no different from what it was after the first trial, and that is, although he has worked, he is in no physical condition to work, and should not work. He has worked during that time because he *75had to in order to live, but we are of the opinion that every day he does work shortens his chance of life out of all proportion.
Since this judgment was first rendered the Supreme ' Court has rendered opinions in cases which cannot be reconciled, in our opinion, with our judgment in this case. But the Constitution of 1921 has passed jurisdiction on this class of cases in the Court of Appeals, and . we do not know what view that Court will take in a case, such as this, where mo other reasonable cause of plaintiff’s condition can be given except the accident which befelj. him.
If the case were being presented to us as a new case we would be inclined to follow what seems to us to be. the present jurisprudence of the Sureme Court, and find for plaintiff, but in view of the condition • of this case, we thing it the better policy to reinstate our former judgment, and let the case again go to the Court of Appeals, and let that Court formulate its own policy for the future guidance of this Court.
For the foregoing reasons there should be judgment rejecting the demands of plaintiff and it 'is so ordered.
T. F. Bell,
District Judge”
The said learned and able Judge frankly says: “We never had any doubt of plaintiff’s . condition; that it was such as to prevent him from doing reasonable work”. He also says: “Since this judgment was first tendered the Supreme Court has rendered opinions in cases which cannot be reconciled, in our opinion with our judgment in this case. But the Constitution of 1921 has vested jurisdiction over this class of cases in the Court of Appeals, and we do not know what view that Court -will take in a case, such as this, where no other reasonable cause of plaintiff’s condition can be given except the accident which befell him”. He further states: “If this case were being presented to us as a new case we would be inclined to follow what seems to us to be the present jurisprudence of the Supreme Court, and find for plaintiff; but in view of the condition of this case, we think it the better policy to reinstate our former judgment, and let the case again go to the Court of Appeals, and let that Court formulate its own policy for the future guidance of this District Court.” He accordingly, again rejected the demands of plaintiff.
The record has been again sent to this Court in accordance with our order remanding the case to the District Court, and is before us for final determination of the issues involved therein.
At the time the case was last argued in this court. Counsel for defendant, appellee, filed another motion to have the case again remanded, in the event we should not affirm the judgment of the lower court. The motion sets up, substantially, the same sort of alleged facts as did the first motion to remand, which was sustained by this court, viz: That defendant had learned that plaintiff had been doing work of a reasonable character since the last trial and that he did not quit work until about five days before the last trial. The motion is based mainly on hearsay statements and ex parte letters and affidavits. Since the case was submitted the last time to this court, plaintiff has filed counter affidavtis of himself and ■ his brother-in-law, Mac Spoon, with whom plaintiff had worked, or attempted to work, in which it is said “that in attempting to do hard work, or any kind of work he (plaintiff) has undergone such continuous and serious pain and suffering that he has constantly endangered his life, and finally on last Wednesday (preceding November 1st, 1924) he (plaintiff) hardly escaped dying as ,a result of such exertion; that he (plaintiff) has been advised by his physician that he cannot work or labor; that he cannot comb his head and at present his condition is such that he cannot even wear a hat on his head; that affiant (plaintiff) cannot now do any work *76without serious probability of dying. This he (plaintiff) knows not only of his own experience, but from medical advice he has been given”.
While we think the motion of defendant, appellee, to again remand this case is made in good faith, we also think that it is based on the fact that plaintiff had worked or tried to work, some since the last trial, and before that time, when, as said by the trial judge, “he is in no physical condition to work, and should not work. He has worked during that time because he had to in order to live, but we are of the opinion that every day he does work he shortens his chance of life out of all proportion.” It is his ability to perform services of a reasonable character that is made the test and not the fact that, out of sympathy of his employer or his fellow workmen, he does some work. Nor is the fact that he forces himself to do some work, out of dire necessity, made the test in compensation cases, particularly when to do so “shortens his life out of all proportion.” (See Hulo vs. City of New Iberia, 153 La. 284, 95 South. 719; Norwood vs. Lake Bisteneau Oil Co., 145 La. 823, 83 South. 25.
Too, there must be an end to a case of this character sometime. This is certainly true when, under the law, judgments in compensation cases may on application of either party be modified oy the court after one year from the dates they become operative. If we should order the case again remanded on the showing made by defendant, appellee, the same sort of application as made by defendant might again be made when the record would again come up to this court, and then again and again, and so on ad infinitum.
In the meantime, in all probability, the plaintiff would have “shuffled off this mortal coil” and passed into' another realm.
The motion to again remand the case, therefore is denied. .