ON APPLICATION FOR REHEARING
Defendant, Louisiana Central . Lumber Company, in an application for rehearing, urges that the judgment herein rendered is incorrect:
1. In holding that the evidence did not show that plaintiff consented to the deduction of the excess medical and hospital bills from his compensation.
2. In holding that plaintiff was incapacitated to contract as to the excess medical and hospital bills because he was under the age of 21 years.
3. In holding that the letters of plaintiff did not indicate that he understood ancl agreed that the excess medical and hospital bills should come out of his compensation.
4. In holding that plaintiff was entitled to full compensation during disability, not exceeding 400 weeks.
OPINION.
On the first point in defendant’s application, that the evidence shows consent on the part of plaintiff that the excess medical and hospital bills over $250 should be paid out of his compensation.
Lonnie W. Thompson testified, page 8:
“Q. Now, were you entirely at yourself during the time you were at the Sanitarium, and if not, how were you?
“A. I. was unconscious, most of the time I was at the St. Francis Sanitarium.”
(Page 29):
“Q. Do you remember Mr. Bolton coming up there to see you about the first of January?
“A. I remember some man coming up there.
“Q. You remember him explaining to you that the company was only liable for medical and hospital expenses up to $250.00 and anything over that would be considered excess medical fees and would have to come out of your compensation, don’t you?
“A. I remember a man coming up there with some papers.
*207“Q. You remember him saying something to you about the papers having to be signed?
“A. No, sir.
“Q. You don’t remember anything about that?
“A. No, sir.”
John A. Moore testified, page 25:
“Q. At that time Mr. Bolton explained to you in the presence of your cousin, Lonnie W. Thompson, and to him that the company was only liable for $250.00 medical and hospital fees, and any more than that paid out would have to come out of your cousin’s compensation, didn’t he?
“A He tried to explain to my cousin but he was unconscious and then he tried to explain it to me, but I don’t know what he did explain.”
(Page 27):
“Q. You know that you were very anxious to save his life and you knew that he was very anxious to get well, didn’t you?
. “A. I don’t know that he knew because he was unconscious.
“Q. He wasn’t unconscious at the time Mr. Bolton was there, was he?
“A. Yes, sir.”
J. P. Bolton a witness for the Southern Casualty Company, the company carrying theo insurance in this case, testified, page 35:
"Q. Please state whether or not the plaintiff, Lonnie W. Thompson, was conscious at that time and took part in the conversation?
“A. As far as I could see he was — he talked to me.”
(Page 36):
“Q. The plaintiff was in a bad condition at that time?
“A. He looked thin and in very bad condition to me.”
It is to be observed that Mr Bolton does not say that Lonnie W. Thompson was conscious — he says — “so far as I could see he was — he talked to me”.
This testimony, we do not think, overcomes the positive testimony of Lonnie W. Thompson and John A. Moore that plaintiff was in a state of mind entirely beyond the ability to make a contract or waive any of his rights.
The testimony as a whole, we think, fully warrants the' holding of this court that plaintiff was in such a frame of body and mind as not to be in condition to contract and hence that in law he gave no consent it should have the right to withhold out of to the contract claimed by defendánt that the compensation due him under the workmen’s compensation act the amount of the medical and hospital bills in excess of $250.00.
Delanney vs. Ferd Brenner Lumber Co.
Quave vs. Lott-Batson Lumber Co., hold that hospital and medical bills cannot be deducted by the employer from the compensation due the employee without the latter’s consent.
II.
On the second ground of defendant’s application, that the court erred in holding that the plaintiff, as a minor, was incapacitated to give his consent that the excess medical and hospital bills should be paid out of his compensation, defendant calls our attention to subsection 6 of section 3 of the Workmen’s Compensation Act which provides that employees of the age of 18 years and upwards shall exercise the right of election or termination or waiver authorized by this section, and insists that it thereby conclusively appears that it was the intention of the legislature to provide that compensation due a minor over the age of eighteen years is to be paid to the minor and that the plaintiff, Lonnie W. Thompson, was fully capable of exercising any right or privilege and of making any agreement with reference to his compensation that an adult would have.
We cannot concur in this view.
Civil Code, 1782, provides:
*208“All persons have the capacity to contract except those whose incapacity is specially declared by law. These are persons of insane mind, those who are interdicted, minors and’ married women.”
Subsection 6 of Section 3 of the Workmen's Compensation Act cited by defendant, has extended the capacity of minors over the age of 18 years so that they may now elect whether they will come under the operation of the Workmen’s Compensation Act; but this section does not go to the extent of giving to minors the right to enter into a contract not expressly contemplated by the Workmen’s Compensation Act.
Counsel’s argument that if a mjnor is given the right to determine whether he will come under the operation of the Workmen’s Compensation Act he certainly, for the greater reason, has the right to contract with reference to his rights under that Act, is forceful; but the right of minors to contract is fixed by the general law and cannot be extended except by legislative enactment, and the Act relied on by counsel for defendant does not go to the extent of allowing a minor to contract as to rights that have already accrued to him under the Workmen’s Compensation law.
III.
On the third point in defendant’s application, that plaintiff’s letters indicated that he understood and consented that the excess medical and hospital bills were to come out of his compensation, we have carefully read plaintiff’s letters and in our opinion they indicate that plaintiff was homesick, tired of remaining in the hospital and was pleading for money; he practically said in each letter “Please send me a little money”.
To our mind, plaintiff’s letters indicate that he did not understand any of the arrangements under which he was being kept in the Sanitarium. He wrote in one of his letters: “What kind of an arrangement did Mr. Moore make while he was down there?”
From all the letters we think our original holding as to them was correct.
IV.
As to defendant’s fourth contention, that we. were in error in holding that at the date . of the trial plaintiff, was totally disabled to do work of any reasonable character and hence entitled to collect compensation during total disability, not to exceed 400 weeks.
Doctor J. C. Willis, Jr., testified on page . 2 of the testimony taken by R. T. Russ.
“Q. Doctor, have you had occasion to treat the plaintiff in this case,. Lonnie W. Thompson, and if so when and for what condition?
“A. Yes, I first saw him on January 29, 1924. He came into the Sanitarium very emaciated, had bed sores over his back and both hips as big. as saucers and the left leg was amputated above the knee. General condition very poor. He remained under our care, generally improved, slowly improved, very slowly and was operated on again in June, amputation of the stump of the left leg. Discharged September 19, 1924.”
Doctor O. C. Rigby testified, page 9:
“A. I would. I don’t belive he will ever be able to do manual labor any more.
“Q. You looked at that x-ray plate, did you?
“A ' Yes.
“Q. Do you agree .with.Doctor Barrow on what he says?
“A. I do.”
On cross examination he testified, page 9:
“Q. Doctor, considering that this man was in a state of emaciated condition for a period of twelve months and that up until some time in July or August, 1924, his life was almost despaired and that after that time he was, you might say, almost nothing but skin and "bones, wouldn’t that indicate there would be a considerable length of time after he was *209able to get up before he would regain the maximum amount of strength that you think he could gain and be a good long time, in other words before ' he would be able to use himself to any advantage?
“A. Yes, it would be a good long time. I don’t believe he will ever be able to use himself to any advantage. The fact that he has a pulse of 140 and a temperature of 100 goes to show that there is still some poison in his system.”
Doctor E. L. Sanderson, testified, page 15-16:
“Q. If it is shown that this patient had walked with two crutches under his arms and with the assistance of another man to help him up and down the little rises between here and the Merchants building, what would you say about his likelihood of getting better, knowing the condition as you do?
“A I think he is totally disabled and permanently disabled'.”
“A. My opinion is if he was able to walk out of the Sanitarium three or four months ago, that .so far' as his ability for getting around is concerned, it must have been as good then as it is now because it is about all he can do now to walk out of the Sanitarium.”
(Page 19):
“A. Well, his muscles and his general body tissues have improved, I think, quite rapidly. The thing that doesn’t repair is what is known as the parenchymatous tissue. That means that the parenchymatous tissue of the organs, the liver cells is destroyed by septicism, and never repairs. It is replaced by a sort of fibrous tissue, but the other tissue never repairs. The heart tissue that is destroyed by septic poisoning, the tissue is not repaired'. The cells of your spleen and different other organs of the body that control the body, these cells are called parenchymatous cells and they are destroyed during infection and they don’t repair. They are destroyed forever, and that is the part of the body I don’t think the man has any possible chance to ever repair, is the active organs of the body. So far as the other effect on his body he might get just as good as he ever was, and even his muscles, after long exercise, may develop, but the organs of his body are impaired for all time to come.”
Under the above evidence We are forced to our original conclusion that the plaintiff, at the time of the trial, was permanently, totally disabled to do work of any reasonable character.
For the above reasons the application for a rehearing is refused.