ON APPLICATION FOR REHEARING
CARVER, J.In his brief for rehearing, defendant’s able counsel insists that the burden was on plaintiff to prove his case; that the testimony does not show total or permanent disability but temporary and partial disability; and, further, that the applicable clause of the Compensation Act (Section 8 of Act No. 20 of 1914, as amended by Act No. 43 of 1922) is not any of the three disability clauses but that part of Subsection (d) of Section 8, providing that the total permanent loss of the use of a member shall be equivalent to the amputation of the member, and that therefore the award should be for only 175 weeks as for the loss of a leg.
He cites:
Piske vs. Brooklyn Cooperage Co., 143 La. 455, 78 South. 734.
Haddad vs. Commercial M. Truck Co., 150 La. 327, 90 South. 666.
The cited cases have little application in our opinion. They merely decide that the burden is on plaintiff to show that the injury was received in an accident arising out of and in the course of his employment.
The proof in this case unquestionably shows that plaintiff’s injuries did so arise.
In the Piske case the accident occurred at a place where plaintiff’s employment did not require him to be.
*256In, the Haddad case the court found as a fact that the injury was .produced by cancer of the liver.
As to. the totality of the injury in this case, the evidence fully satisfied us that the plaintiff at the time of the trial was totally disabled. This question was fully discussed in our original opinion and we see no reason to add anything to what was said therein. .
If the plaintiff is totally disabled,. then it is clear that either Subsection (a) or Subsection (b) of Section 8 of the act may be held to apply, according as the disability is temporary or permanent.
If by reason of the fact that there is a total loss of the use of the leg, the case might also fall under the above quoted provision from Subsection (d). If qo, the situation would be that two clauses of the act cover the case at bar. If then we should apply the clause giving the smaller compensation, this would be adopting a liberal construction in favor of the employer. But the jurisprudence is that a construction liberal to the employe should be adopted.
Jones vs. Powell Lumber Co., 156 La. 767, 101 South. 135.
Besides, the proof shows not merely a loss of the use of the leg; it shows also that the leg remains as a painful nuisance and obstruction to activities necessary for work of a reasonable character.
If our opinion that the disability is permanent- shall be disproved by the event, defendant can obtain relief after one year from the time the judgment becomes operative by exercising the right to demand review accorded it by Section 20 of the Compensation Act.
The judgment is not for 400 weeks but only for so much a week during disability, not to exceed 400 weeks.
Should we determine at this time, on the basis of the opinion of some of the doctors, that plaintiff was only temporarily disabled, then should the event prove that we were mistaken, the result would be that we would have denied him 100 weeks’ compensation, to which the final result would show he was entitled. .
Rehearing refused.