Horney v. Scott

• Court: Court of Appeal of Louisiana
• Writing for the Court: HAMITER, Judge.
• Citation: Horney v. Scott, 171 So. 172 (La. App. 1936)
• Decision Date: 11 December 1936
• Docket Number: 5275
• Parties: HORNEY v. SCOTT

171 So. 172

HORNEY v. SCOTT

No. 5275

Court of Appeal of Louisiana, Second Circuit.

December 11, 1936

M. C Redmond, of Monroe, for appellant.

Theus Grisham, Davis & Leigh, of Monroe, for appellee.

OPINION

HAMITER Judge.

In his petition plaintiff alleges, in substance, that on September 12, 1934, while acting in the scope of his employment as a laborer for the defendant, he received a rupture or hernia when raising a large bridge timber; that by reason of such injury he was rendered totally incapacitated to do work of any kind; that he was entitled, under the workmen's compensation laws of Louisiana, to 65 per cent. of his wages during disability not to exceed 400 weeks; and that on or about January 8, 1935, a compromise lump-sum settlement with defendant was entered into wherein he was paid $ 200 as full settlement for his claim arising under the accident.

There is attached to the petition a certified copy of the court proceedings, which authorized and approved the purported lump-sum settlement, and to which we shall hereafter refer.

Plaintiff further alleges that the lump-sum settlement was contrary to law, in that the amount due him was discounted at a rate greater than 8 per cent. per annum.

The prayer of the petition is for judgment setting aside the settlement agreement, and for compensation for 400 weeks at one and one-half times 65 per cent. of his wages, plus medical expenses in the amount of $ 250, less the sum of $ 200 previously paid.

After the district judge overruled an exception of no cause or right of action tendered by defendant, an answer was filed. On the day of the trial of the merits, such exception was again urged. This resulted in the previous ruling being recalled and the exception of no cause of action being sustained and plaintiff's suit dismissed. Plaintiff then asked for and was granted an order of devolutive appeal returnable to this court.

The joint petition in the alleged settlement proceeding, which was signed by plaintiff, by his then attorney and by the attorneys for defendant, reads in part as follows:

"2. That on September 12th, 1934, and for some time prior thereto, William S. Horney, was employed by your second named petitioner in the capacity of a laborer at an average weekly wage of Ten and no/100 ($ 10.00) Dollars.

"3. William S. Horney contends that on September 12th, 1934, while he was performing his usual duties he severely strained himself resulting in a rupture on both the left and right abdominal walls and that he suffered other injuries to his abdomen. Your second named petitioner denies that William S. Horney received any accident while in its employ, contending that in the event the said Horney has a hernia or rupture that same was not due to any accident. Your second named petitioner denies that the said Horney has a hernia or rupture, however, in order to compromise this claim, your second named petitioner has offered the said Horney Two Hundred and no/100 ($ 200.00) dollars in cash, which amount the said Horney has agreed to accept, but before same can be accepted and completed it will be necessary that this Honorable Court approve same by rendering judgment permitting this settlement.

"4. That the said William S. Horney has been examined by physicians of his choice and his true condition ascertained, and he has had all of his rights under the compensation laws explained to him by an attorney of his choice and he makes this settlement voluntarily, believing same to be to his advantage."

Under its exception of no cause of action, defendant urges in this court the following:

"1. The joint petition was a compromise settlement in conformity with section 17 of the Act and is not a settlement of an undisputed claim at a discount of 8% per annum as provided by Section 8, subsection 9 of the act.

"2. That the petition contains no allegations of fact that constitute fraud or duress which would permit a judgment being rendered annulling the compromise joint petition.

"3. That the petition does not allege that plaintiff paid or made a tender to defendant of the $ 200.00 admittedly paid as a compromise settlement."

"Section 8, subsec. 9, of Act No. 20 of 1914, as amended (Gen. St. §4398), this being the Workmen's Compensation Act of Louisiana, provides:

"The amounts payable as compensation may be commuted to a lump sum settlement by agreement of the parties after having been approved by the court as reasonably complying with the provisions of this act; provided, that in making such lump sum settlement, the payments due the employee or his dependents, under this act, shall not be discounted at a rate greater than eight per centum per annum; if such lump sum settlement be made without the approval of the court, or at a discount greater than eight per centum per annum, even if approved by the court, the employer shall be liable for compensation at one and one-half times the rate fixed in this act, and the employee or his dependents shall, at all times within two years after date of the payment of the lump settlement and notwithstanding any other provisions of this act, be entitled to demand and receive in a lump sum from the employer such additional payment as together with the amount already paid will aggregate one and one-half times the compensation which would have been due under this act, but for such lump sum settlement. But upon the payment of a lump sum settlement commuted on a term agreed upon by the parties, discounted at not more than eight per centum per annum and with the approval of the court, the liability under this act of the employer making such payment shall be fully satisfied; provided, that for injuries scheduled in paragraphs 1-d and 2 of this section, no shorter term than therein set forth have been agreed upon. (Acts 1914, No. 20, §8; 1916, No. 243, §1; 1918, No. 38, §1; 1920, No. 247, §1; 1922, No. 43, §1; 1924, No. 216, §1; 1926, No. 85, §1; 1928, No. 242, §1.)"

Section 17 of that act, as amended (Gen. St. §4407), reads:

"The interested parties shall have the right to settle all matters of compensation between themselves. But all agreements of settlement shall be reduced to writing and shall be substantially in accord with the various provisions of this act, and shall be approved by the court. The agreement between employer and employee or his dependent, shall be presented to the court upon joint petition of employer and employee or his dependent, which petition must be verified by both parties. The settlement so approved shall be immediately entered as the judgment of the court, and such judgment shall have the same force and effect and may be satisfied as other judgments of the same court. (Acts 1914, No. 20, §17; 1918, No. 38, §1.)"

A lump-sum settlement of compensation payments is authorized under section 8, subsec. 9, of the act, where the settlement is commuted on a term agreed upon by the employer and claimant, and where there is no room for dispute as to the applicability of the Compensation Act, the extent of the injury, and employee's average weekly wage at the time; provided that the payments due are not discounted at a rate greater than 8 per cent. per annum, that the settlement has the approval of a competent court, as reasonably complying with the provisions of the act, and that, for the injuries scheduled in subsections 1 (d) and 2 of such section, no shorter term than therein set forth shall be agreed on.

If, however, there are grounds for dispute, as, for example, with reference to the extent of the injury, or to claimant's right to the benefits afforded by the Compensation Act, and the parties interested are aware of the facts surrounding the accident and possess information regarding the injury sufficient for reasonably determining the probable effects and duration of the attending disability, such parties may compromise or settle the claim under the authority of and on complying with the provisions of said section 17. The agreement of settlement or compromise shall be reduced to writing and shall be substantially in accord with the various provisions of the Compensation Act, and shall be approved by the court.

In the absence of fraud, ill practice, or misrepresentation settlements properly made under and pursuant to the provisions of the above-quoted sections are forever valid and binding on the parties. Plaintiff, in the case of Musick v. Central Carbon Co., 166 La. 355, 117 So. 277, 280, sought to set aside a previously made and judicially approved settlement of an alleged compensation claim growing out of the death of her husband. The joint petition of the widow and employer, under which the settlement was made, recited that decedent was burned on December 28, 1923, while discharging the duties of his employment; that he contracted pneumonia on or about February 1, 1924, and died four days later as a result of the pneumonia contracted; and that the employer denied liability for the death of the deceased, for the reason that the injuries received by him while in defendant's employment were not the cause of the death. The Supreme Court held the settlement of the claim to be authorized under the provisions of section 17 of the Compensation Act, because a dispute and doubt existed as to whether the death of decedent was caused by the injury. In sustaining an exception of no cause of action, the court commented on the two above-quoted sections as follows: "Section 17 of the Act of 1918, quoted above, unquestionably authorizes the parties at interest to effect an amicable settlement of the claim for compensation, with the approval of the court, provided the settlement be in substantial accordance with the Employers' Liability Act. On the other hand, paragraph, or subsection 8, of section 1 of the Act of...