
    NO. 8939
    COURT OF APPEAL PARISH OF ORLEANS.
    JOHN LEMIEUX versus GEORGE COUSIN
    
      
    
   Í^JttnESlBpiel; J.

Plaintiff institutes his original suit in the Civil District court, rlleging that defendant was indebted to him in the sum of iSleven thousand Dollars, the cause of action being that on the morning of October 16th, 1921, whilst engaged at work acting as a tong hooker and cutting of logs one of the logs to which he had hooked his tongs in order that said log might be dragged from the swamp and loaded on the log train, became jammed with a limb of a tree and further alleging injuries to his right foot and frank lower part of his leg, which were frightfully crushed and smashed and that he suffered excruciating pain and agony, prayed for damages for injuries aforesaid caused through no negligence on his part, in the sum claimed under Civil Code Art. 2315./'Subsequently plaintiff filed in this same proceeding , after answer had been filed/by the defendant disclaimer and if there viere any injuries they were due to the negligence contribuíory/nagigBH<£E of plaintiff, a supplemental and amended petition that he was entitled under the original petition to receive the benefits of the compensation laws of this State, vhieh included the last amendment made in August, 1920; alleging further the amount of his earnings and that he was entitled to receive sixty per cent of his wages for not exceeding three hun-ired weeks, prayed for permission to file-this supplemental and amended petition, which order was ex parte allowed by the District Judge and which supplemental petition-was not filed.until after several days after the prescriptiBJl period of one year had elapsed.

2o this supplemental petition the defendant filed exceptions , the first was a misjoinder of causes of action, which were cumulated inconsistent with one another and which cannot be /feaaadssaixtagafctoc sex in one proceeding. Also exception of no cause or right of action; and finally exception that the demand for compensation comes too late, tacaHy«iirxha one year having elapsed from the date of the alleged, injuries t,o the date of the filing of this supplemental proceedings', and prays' that the exceptions be maintained in an .to hi s right to seek under the far as/XRS kbpkuwx compensation/ law, and defendant be relived of any liability 4o pleasd.

On argument before the District Court, we find that .the plea or prescription was maintained .as to '■ the supplemental petition for compensation and from this judgment this appeal is had.

Under Act of the legislature of 1920, the 2nd section, amongst other things, provides:

"She Court in its discretion may grant further time for filing the answer or hearing the complaint and allow amendments to said petition and answer at any stage of the proceeding."

In the case of Philps vs. Guy Drilling Co. 143 La. 951, amongst other parts of the decision of that case,.held:

"Where supplemental petition in suit for compensation under Act ifo. 20 of 1914, complying with Sec. 18 paragraph one, a plea of prescription because Original petition set-.-.forth no cause of action, ana supplemental petition was not filed within one year after accident', was without merit."
"A demand for compensation under Act No. 20 or 1914, was no waiver and would not be dismissed merely because urged in the alternative and only if the Court should hold - that- -plaintiff, was not entitled to damage for tort under Civil Code Art. 2315."

In the case of Whittington vs. the La. Saw Mill Co. 142 La. 323. the Supreme Court held:.

"Under Employers Liability Act, Sec, 18; par. 2., granting the Court discretion to allow amendments at any stags of the.proceedings, and paragraph 4 providing'that the ludge. shall not be bound by any technical- or formal rules of procedure other than is'herein provided', plaintiff -seeling t o recover for the death.of the employee under .the law prior, to the enactment of that. Aet should be allowed to amend to show .a cause of action under the act, especially in view of the newness of the-.' prácti'e-,under such act.
"Under tlie Employers liability Act as amended by Act 234 of 1920, providing that an answer shall be filed to the complaint and that the dudge shall not be bound by the usual rules of evidence or by any formal rules of procedure other than those provided for in the Act, an exception of no cause of right of action should be mansxmx overruled itonggte though the petition is carelessly drawn and does not technically enforce a cause of action, its general purport showing it to be for compensation for an accident."

Pierre vs. Barringer, 149 La. 71.

Under the Employers' LiabilityyAct, (Act No. 20 of 1914), Sec. 18, as amended by Act Ho. 234of 1920, providing that the Judge shall not be bound by technical or formal rules of procedure, etc., a defendant neither admitting or denying plaintiff's allegations for want of information was properly permitted to reopen the case and file an amended answer denying that plaintiff was in its employ, notwithstanding tefc pleading Act, (Act No 157 of 1912) See. 1, subdivision 2 as amended by Act 300 of 1914, requiring defendant lacking information to deny the fact.alleged."

Hammett vs. Gilliland Oil Co. 151 La. 70.

Under the authorities and the law quoted, the exceptions of no cause of action, together with misjoinder of causes of action plead to be inconsistant with one another are in our opinion not material and therefore both these exceptions overruled; and the further exception that -the deffiand for compensation comes too late, the prescription period of one yoar having elapsed from the date of the alleged injuries to the date of the filing of this supplemental proceeding , in so far as it affects the claim for compensation is also overrulled for the reasons and the authorities herein cited.

We are of the opinion further that the cause of action as stated in the original petition remains unchanged in so far as the supplemental petition is concerned, except for the fact that the injuries are identical, but that the remedy.is different, tut the result if reached, and the conclusion from the evidene to he taken remains the same.

April 2nd. 1923.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment maintaining the exceptions of no cause.of action, misjoinder of causes of action, and the prescription ox one year, he and the same are hereby overruled, and the exceptions' are without merit, and therefore cannot he entertained.

It is further ordered, adjudged and decreed, that this case he remanded to the Civil District Court for further proceedings and he tried on its merits in accordance with the views herein expressed.

It is further ordered adjudged and decreed that the defendants pay costs of this appeal and all other costs to await" the final action of the Court.

Judgment reversed, and ease remanded for trial on its merits.  