
    No. 9165
    Orleans
    BERRY v. SMITH & SON, INC.
    (May 24, 1926, Opinion, and Decree.)
    (June 21, 1926. Rehearing Refused.)
    (Oct. 5, 1926. Writs of Certiorari and Review Denied by Supreme Court.)
    
      (Syllabus by the Court.)
    
    1. Louisiana Digest — Master and Servant —Par. 160 (I); Appeal — Par. 509.
    A judgment of non-suit, acquiesced in by plaintiff, will not be disturbed, on appeal by defendant, when it appears that there was no error in the judgment prejudicial' to defendant.
    Appeal from Civil District Court, Div. “F”. Hon. Percy Saint, Judge.
    Action by Thomas Berry against T. Smith & Son, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    A. A. Cologne, Boswell & Bryant, of New Orleans, attorneys for plaintiff, appellee.
    Terriberry, Rice & Young, of New Orleans, attorneys for defendant, appellant.
   OPINION.

WESTERFIELD, J.

This is a devolutive appeal, prosecuted by defendant, from a judgment of non-suit, in a compensation case. No appeal was taken by plaintiff and no answer was filed to defendant’s appeal.

The sole issue before us is defendant’s demand for a definite judgment.

Plaintiff’s injury was caused by the falling of a heavy weight on his right foot causing a fracture of the fifth metatarsal bone. Defendant admitted liability and paid compensation to plaintiff for a period of eighteen weeks at the rate of $18.00 per week or from June 14, 1921,' to October 21, 1921, and stopped further payments on the ground that plaintiff was no longer suffering disability caused by the injury.

Whereupon plaintiff sued for further compensation claiming that his disability continued.-

íhe' reasons' for judgment given by the trial court are as follows:

“This is a compensation suit. There is no dispute as to the injury; the only dispute is as to the injury extending beyond a certain date.

“The evidence of the different physicians is ■ so conflictihg that I am unable to determine that a preponderance of evidence is with the' plaintiff. I am inclined to think,- — from the' expert testimony in the record, — that the plaintiff is suffering more from neglected ‘flat feet’ than from any injury. At all events there is not that preponderance of testimony in favor of the plaintiff to justify the judgment asked for.

“There should he judgment as of non-suit and it is so ordered.

“PERCY SAINT, . “December 21, 1922. Judge.”

Three doctors, members of a firm of doctors employed by defendant, all of them of the highest standing in their profession, testified in substantial agreement that at the time defendant ceased making payments of compensation to plaintiff he was entirely well, so far as any effect of his injury was concerned, and quite able to resume his labors as longshoreman; that the only thing wrong with plaintiff at that time was flat feet, with which malady, if it may he so called, he had been afflicted long before the accident; that flat feet among negroes (plaintiff was a negro) is racial, by which we understand that individuals of the African race are predisposed to this trouble.

Three other physicians, of equally high repute, disagree, on important particulars, with the other three and, while admitting that plaintiff had flat feet before the accident, assert that he was still suffering from the effect' of the accident some time after defendant stopped his compensation. But one of plaintiff’s doctors, Dr. Hatch, is a specialist in orthopaedic surgery and has been for 22 years. He is the only specialist who testifies in the case. We are compelled to give greater weight to his testimony, other things being equal, when he testifies in relation to his specialty. He says, speaking of plaintiff’s condition some eighteen months after the accident:

“Q. * * * Doctor your conclusion from the examination and treatment of Berry is that though he is flat-footed in both feet, yet the right foot is more flat than the other, and that condition is either altogether or partially due to this accident he sustained — to trauma?

“A. Yes, sir, except you don’t put it quite as I would. I don’t want to say that it is more flat than the other but it is more rigid than the other.”

The extent to which the flat feet contributed to the disability whether racial, congenitial or systemic is immaterial, as we have recently held in Womack vs. N. 0. Public Service, No. 10,355 Orl. App. The' important consideration is whether plaintiff’s disability .continued beyond the time his compensation, voluntarily paid him by defendant, was stopped. Dr. Ficklin testified that on October 25, 1922, the last time he examined plaintiff, he was temporarily, and totally, disabled for work as a longshoreman. Dr. Lucas corroborates Dr. Ficklin.

It is true that defendant’s doctors, all equally able and reputable physicians, declare that plaintiff "was able to work, when discharged. But, after all, the only person who knew when plaintiff’s disability ceased, was Thomas Berry, the plaintiff himself. He says, most emphatically, and, quite naturally, that he was far from normal, when discharged. His wife agrees with him as might be expected. It is suggested that Berry is shamming or, as it is called, malingering. But it is proven, that, Berry earned an average wage largely in excess of $18.00 per week and we see no. reason for him to prefer the smaller sum even though he might be idle and receive it instead of working for the larger amount.

We recognize the force of counsel’s argument, to the effect that, after a fair opportunity has been afforded plaintiff to make out his case, there should be a definite judgment for defendant in order that there may be an end to litigation, and defendant spared the expense and annoyance of another trial. In this case however, we are not satisfied that the judgment appealed from is as favorable to plaintiff as might have been rendered under the evidence, and, we are not disposed to convert it into one less so, particularly since it is a compensation case.  