Cuna v. Elton Lumber Co., Limited

• Decision Date: 02 May 1921
• Docket Number: 23039
• Citation: 88 So. 493,148 La. 1097
• Court: Louisiana Supreme Court
• Parties: CUNA v. ELTON LUMBER CO., Limited

88 So. 493

148 La. 1097

CUNA v. ELTON LUMBER CO., Limited

No. 23039

Supreme Court of Louisiana

May 2, 1921

Appeal from Fifteenth Judicial District Court, Parish of Jefferson Davis; Winston Overton, Judge.

Action by Will Cuna against the Elton Lumber Company, Limited. Judgment for defendant, and plaintiff appeals.

Affirmed.

McCoy &amp Moss, of Lake Charles, for appellant.

John A Hunter and Robert A. Hunter, of Shreveport, for appellee.

PROVOSTY J. O'NIELL, J., dissents.

OPINION

PROVOSTY, J.

Plaintiff sues under the Employers' Liability Act (Act 20, p. 44, of 1914). No claim for compensation, as required by section 11 of said act, was made previous to the filing of the suit; and the filing was more than six months after the occurrence of the injury. Said section reads:

"That no proceedings under this act for compensation shall be maintained unless a notice of the injury shall have been given to the employer within fifteen days after the accident, or in case of death within thirty days and unless either a claim for compensation with respect to such injury or any payment under section 8 of this act shall have been made within six months after the date of the injury or death. Such notice may be given or made by any person claiming to be entitled to compensation or by some one on his behalf."

Act 243, p. 512, of 1916, abrogated this requirement of making a claim for compensation within six months; and it went into effect about five months after the occurrence of the injury, so that there would yet have been time to make such claim for compensation if the requirement of it had not been abrogated.

Plaintiff contends that said requirement pertained to the remedy, and therefore could be dispensed with at any time by the Legislature, and, at most, was a statute of prescription, which could be repealed at any time before the prescription had accrued.

Defendant, on the other hand, contends that the said requirement formed part of the contract of the parties, which the Legislature was powerless to impair.

There is no contention that said Act of 1914 was not, in every one of its provisions, read into the contract of the parties by operation of section 3 of the act; but the contention is that this requirement to make a claim for compensation before the bringing of suit did not constitute part of the substance of the contract, but related only to the remedy for the enforcement of it.

The provisions of said act being read into the contract, the situation is as if these provisions had been inserted into the contract, not by operation of said act, but by the parties themselves. Now, if parties agree that "no...