186 So. 389 | La. Ct. App. | 1939
Joe H. Pitts, the plaintiff, filed this suit against M.W. Kellogg Company, Inc., and its insurer, the Travelers Insurance Company, for compensation at the rate of $20 per week (the maximum weekly compensation allowed by the Compensation Statute, Act No.
After a preliminary default had been entered against the defendants for failure to answer within the period prescribed by law, they filed an exception of no right or cause of action. The exception was referred to the merits by the trial judge. The defendants thereupon filed a joint answer, reserving the benefits of the exception.
In their answer the defendants admit plaintiff's allegations to the effect that he was injured while employed by the defendant, M.W. Kellogg Company, Inc., and that because of his injury he has been entitled to receive and has been receiving from them the maximum weekly compensation from the date of his injury to the present, and that he is entitled to continue such compensation as long as his present injury shall exist not to exceed 400 weeks. They admit that they have refused to agree that the injury will exist for the full 400 weeks' period or any other definite period; but contend that plaintiff's admission in his petition to the effect that he has been receiving the maximum weekly compensation since the date of his injury to the present, and is now receiving such benefit, shows that they have complied with the provisions of the statute, and the plaintiff's suit should therefore be dismissed.
The trial of the case was restricted to the sole and only question as to whether *390 or not defendants had been paying the plaintiff compensation at the rate of $20 per week in accordance with the Compensation Statute, and resulted in a judgment in favor of defendants, dismissing plaintiff's suit as being premature. The plaintiff has appealed.
From the allegations of plaintiff's petition and the admission thereof by the defendants, it is uncontroverted that since the date of the injury the defendants have been paying and the plaintiff has been receiving the maximum weekly compensation.
Plaintiff contends that since the exception of no cause or right of action was merely a plea of prematurity, such plea should have been filed prior to preliminary default being taken and should not be considered by this court In answer to his contention it is necessary only to state that the plea of prematurity in such an action, though a dilatory plea, goes to the merits in accordance with Subsection 1(B) of Section 18 of the Compensation Statute (as amended by Act No.
Plaintiff in his brief admits that this court had under consideration the very same issue under similar facts in the case of Moss v. Levin,
In the case of Reiner v. Maryland Casualty Company, supra, we further held that the prescription of one year as prescribed by the compensation statute would begin to run only from the date of the last compensation payment, and in that case we also differentiated the case of Brister v. Wray Dickinson Co., Inc., et al.,
The plaintiff also contends that our decision in Moss v. Levin, supra, is contrary to the case of Thibeau v. Dutton Mercer,
For these reasons, the judgment appealed from is affirmed.