Thornton v. E. I. Du Pont De Nemours & Co.

• Decision Date: 11 December 1944
• Docket Number: 37428.
• Citation: 21 So.2d 46,207 La. 239
• Court: Louisiana Supreme Court
• Parties: THORNTON v. E.I. DU PONT DE NEMOURS & CO.

21 So.2d 46

207 La. 239

THORNTON v. E.I. DU PONT DE NEMOURS & CO.

No. 37428.

Supreme Court of Louisiana

December 11, 1944

Fred G. Benton, of Baton Rouge, for plaintiff-appellant.

Taylor, Porter, Brooks & Fuller, of Baton Rouge (Abel Klaw, of Wilmington, Del., and W.G. Randolph and Ada Mott, both of Baton Rouge, of counsel), for defendant-appellee.

O'NIELL Chief Justice.

This is a suit for compensation under the Employers' Liability Act. The suit is brought against the employer alone, who does not carry employers' liability insurance. The defendant without answering the petition, filed a plea of prematurity and an exception of no cause of right of action. The judge of the district court maintained both the plea of prematurity and the exception of no cause or right of action, on the face of the pleadings, and dismissed the suit at the plaintiff's cost. The Court of Appeal for the First Circuit affirmed the judgment maintaining the plea of prematurity and dismissing the suit at the plaintiff's cost. Thornton v. E.I. du Pont de Nemours & Company, 15 So.2d 543. The case is before us on a writ of review granted at the instance of the plaintiff.

The question is whether an injured employee may sue to have the amount of his workmen's compensation fixed by a judgment of court in order to prevent the loss of his claim by prescription while the employer continues paying his regular wages.

The paragraphs in the plaintiff's petition, on which the defendant based its plea of prematurity and exception of no cause or right of action, are as follows:

"That during all of this time [from the date of the accident], and even up to the present time [of the filing of the suit], petitioner has been retained upon the payroll of the said employer, but that he has been unable to do the work of a rigger [which he was doing up to the time of the accident], which requires climbing, picking up and carrying heavy objects, straining and hard manual labor generally, and requires the free and full normal use of both arms and both legs.

"That petitioner has been incapable of doing any of this work, or of undertaking any kind of manual labor, which is the only work for which he is trained and fitted, but that he has been retained upon the payroll of the said employer at the same salary under a medical slip which has required him to perform only light duties.

* * * * *

"Petitioner shows that he has been paid no compensation whatever by the employer since the date of the accident, and that he was earning at the time $1.37 1/2 per hour upon the basis of an eight-hour day and five days per week, and that thus he is entitled to a maximum compensation in the sum of $20.00 per week for a period not to exceed 400 weeks.

* * * * *

"Petitioner shows that said employer has treated petitioner fairly in every way, and that if it had not been for the sympathetic support and co-operation which he has received petitioner would have been unable to remain upon the job and to earn the substantial income which he has received since the accident, and indeed would have been unable to pass any industrial examination or to undertake any kind of reasonable work and employment for which he is in any sense trained and fitted."

It is admitted in the defendant's plea of prematurity that the defendant paid the plaintiff his weekly wages regularly and continuously from the date of the accident. February 3, 1942, to the date of the accident. February 2, 1943. And it is alleged in the defendant's plea of prematurity that, although it does not appear in the plaintiff's petition that the defendant paid the plaintiff compensation, it is nevertheless a fact that on February 8, 1943, that is, on the 6th day after the suit was filed, the defendant ceased paying the plaintiff weekly wages, and, on February 9, 1943, began paying him workmen's compensation at the maximum rate of $20 per week, intending to continue these payments during the period of his disability, as shown by a copy of a letter sent by the defendant to the plaintiff on February 9, 1943. The defendant averred in the plea of prematurity: "That, therefore, there is not presently existing any dispute between the plaintiff and defendant, this exceptor, which entitles plaintiff to institute and prosecute this suit."

The defendant alleged also in the plea of prematurity: "That, moreover, since defendant has actually placed plaintiff on workmen's compensation, as aforesaid, it cannot at this time plead the prescription referred to in plaintiff's petition, and particularly in paragraph 12 thereof."

The prescription referred to in paragraph 12 of the plaintiff's petition and in the defendant's plea of prematurity is the prescription of one year, provided for in Section 31 of Act No. 20 of 1914 as amended and re-enacted by Act No. 85 of 1926 and by Act No. 29 of 1934,--thus: "Section 31. That in case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties shall have agreed upon the payments to be made under this act or unless within one year after the accident proceedings have been begun as provided in Sections 17 and 18 of this Act. Where, however, such payments have been made in any case, said limitations shall not take effect until the expiration of one year from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitations shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the said proceedings have been begun within two years from the date of the accident.

The plaintiff avoided the danger of a plea of prescription by filing this suit on the last day before the year would have expired, from the date of the accident. The allegation in the twelfth paragraph of the petition reads as follows: "That the filing of this suit is made necessary by the fact that one year will have soon elapsed since the date of said accident without the said employer having paid petitioner any sum of money whatever as compensation, and that after the lapse of one year unless the suit is filed in the meantime a serious question might be presented as to whether or not petitioner's claim is prescribed."

In the letter which the defendant wrote to the plaintiff on February 9, 1943, and of which a copy is annexed to and forms part of the defendant's plea of prematurity and exception of no cause or right of action, the defendant acknowledged that the reason why the plaintiff's services with the defendant acknowledged that the reason why the plaintiff's services with the defendant company were terminated on the 8th of February was that he had filed this suit against the company for workmen's compensation. The pertinent paragraphs of the letter read as follows:

"This will confirm our verbal conversation of yesterday during which I notified you, in behalf of E.I. du Pont de Nemours & Co., that in view of your having filed suit against the company for workmen's compensation in the matter entitled Carl K. Thornton v. E.I. du Pont de Nemours & Co., No. 19,463 on the docket of the Nineteenth Judicial District Court of the State of Louisiana, within and for the Parish of East Baton Rouge, your services with the company were terminated as of the 8th instant.

"Effective as of today, we are placing you on workmen's compensation at the rate of Twenty Dollars ($20.00) per week during the period of your disability as provided by the laws of this state. Your compensation payments will be made at our regular payroll periods, the time of which periods you are familiar. Your first compensation payment will be due and payable February 26th, 1943.

* * * * *

"Our placing you on workmen's compensation is not to be construed as an admission on the part of the du Pont Company that you are permanently and totally disabled as alleged in your petition."

This protestation, which we have quoted from the letter written by defendant to the plaintiff on the 9th of February, 1943, shows that the defendant was not willing, even then, six days after the suit was filed, to admit that the plaintiff was entitled to the maximum compensation which he was claiming.

The judge of the district court and the judges of the court of appeal rested their judgment, maintaining the plea of prematurity upon Subsection 1(B) of Section 18 of the Employer's Liability Act, as amended by Act No. 85 of 1926; which subsection--as we read it--has reference to cases only where the employer pays the compensation due to the injured employee--or to his dependents in the case of a fatal injury. Subsection 1(B) reads as follows: "Unless in the verified complaint above referred to [in Subsection 1(A) of Section 18] it is alleged (where the complaint is filed by the employee or his dependents) that the employee or the dependent is not being or has not been paid, and that the employer has refused to pay, the maximum per cent of wages to which petitioner is entitled under the provisions of this act, the presentation of [or] filing of such complaint shall be premature and shall be dismissed; when such allegation is contained in such complaint and is denied by the employer at the time fixed for the hearing thereunder by the court, if it be shown that such allegations are without reasonable cause or reasonable foundation in fact, said complaint shall be dismissed; and the question of whether or not such allegation of non-payment is justified under the facts shall be determined by the Court before proceeding with the hearing of the other issues involved." Subsection 1(B) of Section 18,...