McCastle v. Architectural Stone Co.

• Court: Court of Appeal of Louisiana
• Citation: McCastle v. Architectural Stone Co., 4 So.2d 120 (La. App. 1941)
• Decision Date: 08 October 1941
• Docket Number: 2274.
• Parties: MCCASTLE v. ARCHITECTURAL STONE CO. ET AL.

4 So.2d 120

MCCASTLE v. ARCHITECTURAL STONE CO. ET AL.

No. 2274.

Court of Appeals of Louisiana, First Circuit

October 8, 1941

Rehearing Denied Dec. 30, 1941.

R F. Walker, of Baton Rouge, and W. T. Bennett, of Clinton, for appellant.

Laycock & Moyse, of Baton Rouge, for appellees.

OTT, Judge.

On December 10, 1936, the plaintiff and his employer, the Architectural Stone Company, a subcontractor of Caldwell Brothers &amp Hart, engaged in the construction of a building on the Louisiana State University campus, entered into an agreement of settlement for compensation due the plaintiff for an injury which he received while working for said Stone Company. The Central Surety & Insurance Corporation, the carrier of the employer's compensation insurance, was also a party to said agreement.

The agreement recites, in substance, that plaintiff sustained an injury on July 3, 1936, when a tile fell on his head from above where he was working as a common laborer assisting in stucco and plaster work; that plaintiff was taken to the hospital and an X-ray made of his head which showed a fracture of the left parietal bone; that plaintiff was treated for the injury and paid compensation to December 7, 1936, when he was discharged as cured by the employer's physician. The agreement further states that the plaintiff claims that he still suffers from dizzy spells and a feeling of faintness and is still temporarily disabled from doing the type and character of work that he was doing when injured, and in all probability would be so disabled for a period of three months to a year; that the employer admits that plaintiff sustained said injury and that he was paid compensation therefor from the date of the injury to December 7, 1936, at the rate of $11.12 per week but claims that said employee had fully recovered from said injury on said date, and, whereas there is serious doubt and dispute as to the duration, extent and degree of the disability of said employee, the parties entered into said agreement whereby the employer, through its insurance carrier, agreed to pay the further sum of $165.69 as additional compensation, which, together with the compensation and medical expenses already paid, was to be in full settlement for compensation on account of said injury. The settlement was approved by the court and the amount paid as therein stipulated.

The present suit was filed on July 3, 1937, against said Stone Company and its insurer in which the plaintiff claims that he is totally and permanently disabled on account of said injury that he was induced to enter into said agreement for the settlement of his claim by various acts of fraud and misrepresentation on the part of the attorney for the insurance company, and he alleges that there was no dispute between his employer and himself, and that the payment under said agreement was nothing more than a lump sum settlement discounted at a greater rate of interest than eight per cent per annum, and for that reason he is entitled to recover compensation in a lump sum one and one half times above the amount he would have been entitled to recover had said purported settlement not been made, less the amount already paid. In the alternative, and in case it is held that said settlement was a compromise, then and in that case, he asks that the settlement be set aside for fraud, misrepresentation and ill practice on the part of said attorney and that he be awarded compensation for total permanent disability at the rate of $11.12 per week for a period not exceeding 400 weeks, subject to a credit for the amount already paid.

Several exceptions and additional pleadings were filed and acted upon by the court, but it is unnecessary to detail them here. Separate answers were filed by the Stone Company and its insurance carrier in January, 1939, in which they both plead the former judgment approving the previous settlement as res adjudicata, and plead estoppel against plaintiff on account of the statements made by him in the agreement for the settlement and the petition filed for its approval. They both deny that any fraud or misrepresentation was practiced on plaintiff and aver that the settlement was made in good faith, and plaintiff was in no way imposed upon. They also deny that plaintiff is totally and permanently disabled.

The trial judge sustained the plea of res adjudicata and estoppel and held that the agreement for a settlement and the judgment rendered thereon were binding on the plaintiff and precluded him from recovering any further compensation. The plaintiff has appealed.

There are several rather serious allegations of fraud and misrepresentation made in the petition against the attorney for the insurance company who handled the proceedings leading up to and the completion of the settlement on which the defendants rely. We agree with the trial judge that no wilful fraud or ill practice was proved on the part of this attorney, and we deem it unnecessary for the purpose of a decision of this case to describe these allegations and discuss the evidence adduced relative thereto.

We also agree with the trial judge that the settlement which was made between the parties and approved by the court was a compromise settlement under the provisions of Section 17 of Act 20 of 1914, as amended, by Act No. 38 of 1918, and not a lump sum settlement under subsection 9 of Section 8 of said act, as amended. It is obvious that there was a dispute between the employee and the employer as to the extent of the injury and the duration of the disability. Both the agreement and the petition signed by the parties and presented to the court showed such a disagreement, and, indeed, the fact that the plaintiff then claimed and is still claiming that he is disabled and the employer then claimed and is now claiming that plaintiff had then recovered shows that there was then and is now a dispute between the parties on this subject.

The jurisprudence of the state at the present time is that a compromise entered into by an employee and employer and approved by the court under Section 17 of the Compensation Act where there is a bona fide dispute between them as to the liability of the employer, the extent of the injury, the duration of the disability, or the amount of compensation, is binding on the employee unless some fraud, ill practice or misrepresentation was employed in inducing the employee to accept the settlement. We list here several cases supporting this jurisprudence: Musick v. Central Carbon Company, Inc. 166 La. 355, 117 So. 277; Young v. Glynn, 171 La. 371, 131 So. 51; Horney v. Scott, La.App., 171 So. 172; Calhoun v....