9 La. App. 244 | La. Ct. App. | 1928
The demand in this suit is for compensation under the Employers’ Liability Act, and the question as submitted for decision is whether plaintiff’s right of action is prescribed.
Plaintiff was injured about August 31, 1923, and entered into an agreement with defendant on April 7, 1924, whereby he accepted a lump sum in settlement of his claim for compensation. That agreement was submitted to the District Judge and appi’oved by the latter on April 21, 1924. The present suit, assuming as null the agreement of April 7, 1924, on the ground of fraud and deception, is to urge a claim for compensation as if no such agreement had ever been entered into and was filed on November 18, 1927.
By an amendment of the law, as provided in Sec. 8, paragraph 8, p. 79 of Acts of 1922, the prescriptive period within which an action may be brought to set aside a lump sum settlement, where such lump sum settlement is made at a greater rate of discount than eight per cent, whether approved by the Judge or not, is fixed at five years. Such was the prescriptive limit within which an action to set aside a lump sum settlement on the ground that a discount greater than eight per cent had been deducted, could be instituted, at the time the agreement in this case was entered into. Act 216 of 1924, at page 452, reenacted the same paragraph and section but did not change the ground upon which, nor the period during which, an action to annul a lump sum settlement could be filed.
Paragraph 8 of Section 8 of the Employers’ Liability Act was again re-enacted in the same words by Act 242, at page 389 of the Acts of 1928, except that the prescriptive period is therein changed and fixed at two years in lieu of five years.
This view of plaintiff’s demand is confirmed by the terms of the prayer of his petition. Plaintiff does not pray that the agreement of April 7, 1924, be set aside and annulled. He ignores this agreement entirely and prays for compensation as if no such agreement ever had existed.
The prescriptive period whether it be five or two years, provided for in paragraph 8 of Section 8 of the Employers’ Liability Act, applies solely according to the language of the statute as we understand0 that language, to a demand based upon the fact that an agreement fixing a lump sum settlement', was not approved by the Judge, or even if approved by the Judge, that the computation of such lump sum is based upon an usurious discount or a discount in excess of eight per cent. In such a demand, if the facts alleged are true, the employee is' then entitled to recover a penalty originally fixed at double the amount of the lump sum, but now reduced by the amendment of 1926, page 122, Sec. 8, Par. 9, to one-half the amount of the lump sum already paid to the employee.
The present suit' not being of that character, we do not think that the plea of prescription is well founded. Whether plaintiff’s demand is prescribed upon other grounds, is a matter about which we can express no , opinion, and in the present condition of the case, all that we can do is to annul and set aside the judgment appealed from, and to remand the case for further proceedings, and,
It is so ordered, defendant and appellee to pay the costs of this appeal.
