Virgin v. Porkert ( 1919 )

opinion.

St. Paul. Judge.

Plaintiff wae injurad whilst in defendant a employ and recovered judgment for six months compensation. The injury still continuing plaintiff then sued again for an additional six months compensation.

Defendant pleads prescription under section 31 of the Employer's liability Act (No. 20 of 1914) whioh in.effect provides that cttlms for compensation shall be barred unlesssued for within one year after the accident (or death) or from the time when a payment was last made on account thereof.

As the additional olaim was filed more than a year after the accident but within a year after defendant paid the judgment against him the question is whether a payment must be purely voluntary in order to interrupt prescription under seotlon 31 of said aot.

The trial judge thought not, md we agree with him.

Section 31 must be read in oonneotion with seotion 20, whioh in effect provides that no agreement between the parties or judgment of court oan remain final for more than one year quoad the extent of the injury or the amount of compensation due; whioh latter may be increased as well as diminished should the ocoasion warrant doing so.

Under the oiroumatahoes it is olear that the prescription of one year oannot as to said increase begin from the time of the accident; from whioh it follows that the prescription must in such case begin only from the time when the last iHiétit payment was made.

But such payments are never voluntary, in as much as under sections 17 and 18 they must always be made pursuant to some.judgment of Court; for even the agreements between the parties must be reduced to the form and subatanos of Judgments of Court.

1919

fio» in tlio out before na, whatever be the form In whloh this oíala may originally have been made, it le In substance and effeo* nothing more than a proceeding under aeetlon 20 of the aet to have the mount of the ooapenaatlon lnereaaed In accordance with the terns of that section, and was properly referred to and passed upon by the Judge who rendered the first judgment.

She plea of prescription herein filed la not well founded, and that la the only defense aet up.

Judgipent Affirmed.

Hew Orleans ha,