Abshire v. Cities Service Refining Corp.

• Decision Date: 08 February 1951
• Docket Number: No. 3334,3334
• Citation: 50 So.2d 307
• Parties: ABSHIRE v. CITIES SERVICE REFINING CORP. et al.
• Court: Court of Appeal of Louisiana — District of US

Page 307

50 So.2d 307

ABSHIRE v. CITIES SERVICE REFINING CORP. et al.

No. 3334.

Court of Appeal of Louisiana, First Circuit.

Feb. 8, 1951.

Murray Anderson, Lake Charles, for appellant.

Jones, Kimball & Everett, Lake Charles, for appellees.

DORE, Judge.

In this suit plaintiff appeals from a judgment sustaining a plea of prescription as to his demand for the maximum compensation and the maximum medical expenses as provided for under our Workmen's Compensation Statute, LSA-RS 23:1021 et seq., alleging that he was totally and permanently injured on August 6, 1948, while in the employ of defendant, Cities Service Refining Corp. He made his employer and its compensation insurer, The Hartford Accident and Indemnity Company, defendants.

We have carefully read the transcript and the conclusions predicated thereon by the trial judge in his written opinion for judgment, and we are convinced that these reasons cover the issues herein involved so fully that we adopt them as our own:

'This is an action under the provisions of the Workmen's Compensation Act, instituted by Gladu Abshire against Cities Service Refining Corporation and its compensation insurer, Hartford Accident and In demnity Company. Plaintiff alleges that on August 6, 1948, during the course of his employment by the first named defendant he sustained an accidental injury which has rendered him totally and permanently disabled, that after the injury was sustained, however, said defendant continued to employ him at his regular wages but that he thereafter performed only light duties, and that such employment continued until September 6, 1949, when plaintiff was discharged.

'Plaintiff first instituted a suit for compensation against defendants on December 21, 1949, which suit bears No. 28,006 on the Civil Docket of this court. That suit, however, was voluntarily dismissed as of non-suit by plaintiff, and the present suit was instituted on January 17, 1950. More than one year elapsed, however, between the date on which the injury is alleged to have been sustained and the date on which plaintiff instituted legal action for compensation payments.

'Defendants filed an exception or plea of prescription of one year, which plea was duly fixed for hearing and at such hearing evidence was introduced by both parties. The matter is before the Court at this time on that exception or plea of prescription.

'The jurisprudence of this State has been established to the effect that if an injured employee continued to work for and to receive regular wages from the same employer after the injury is sustained, the prescription of one or two years, as provided by Section 31 of Act 20 of s914, as amended, LAS-RS 23:1209, will begin to run from the date of the accident unless it is established that the payment of wages after the accident was in lieu of or in the nature of compensation and therefore had the legal effect of interrupting prescription. Thornton v. E. I. Dupont De Nemours & Co., 207 La. 239, 21 So.2d 46; D'Antoni v. Employers' Liability Assur. Corp., Ltd., 213 La. 67, 34 So.2d 378; Carlino v. United States Fidelity & Guaranty Co., 196 La. 400, 199 So. 228; Arnold v. Solvay Process Co., 207 La. 8, 20 So.2d 407; Michel v. Maryland Casualty Co., [La.App.] 33 So.2d 144; Walker v. Mansfield Hardwood Lumber Co., [La.App.] 35 So.2d 610.

'In the case of Arnold v. Solvay Process Co., supra, the Supreme Court expressed the rule as follows: 'Unquestionably the payments there contemplated for tolling the running of the one year limitation are only those made to an employee as, in lieu of, or in the nature of, workmen's compensation, or which may reasonably be considered as such. The statute, in clear and certain language, refers to them as 'payments to be made under this Act.'' [207 La. 8, 20 So.2d 409.]

'And in the case of Thornton v. E. I. Dupont De Nemours & Co., supra [207 La. 239, 21 So.2d 52], the same Court, with Chief Justice O'Niell as its organ, said: 'There is no reason why the payment of wages should prevent the running of prescription against a claim for workmen's compensation, because, according to the wording of Subsection 1(B) of Section 18 of the statute, the payment of wages after the accident has happened does not prevent the injured employee from bringing his suit to have the court fix the amount of the compensation that is due him, and to put a maximum limit upon the number of weeks during which it shall be paid. In the words of that subsection it is only the payment of workmen's compensation that suspends the right of an injured employee to bring suit to fix the amount of compensation to which he is entitled, and to limit the number of weeks in which it is to be paid. Of course if it is shown in any case that the payment of wages to the injured employee after the accident happened was a mere subterfuge or pretense on the part of the employer, intending thereby to lull the injured employee into a sense of security until the expiration of the year has elapsed, so that the employer might then plead prescription in bar of a suit for compensation, the payments made after the injury might well have the effect of preventing the running of prescription; otherwise an injustice would be sanctioned,--as explained by the court of appeal in the Carpenter case [Carpenter v. E. I. DuPont De Nemours & Co., 194 So. 99].'

'If the wages paid to an injured employee after the accident are in the nature of or are in lieu of compensation payments, any action which the employee may institute under the Workmen's Compensation Act while such wages are being paid would be vulnerable to a plea of prematurity. If the wages so paid, however, are not in the nature of or in lieu of compensation there would be no merit to a plea of prematurity and plaintiff could maintain an action to have the amount of compensation due him fixed by judgment of the Court even though he may still be employed by and be receiving regular wages from the same employer. This principle of law was stated by...