As stated in the majority opinion, the plaintiff does allege in his petition that he was not being paid the maximum per cent of wages to which he was entitled at the time he filed his suit on September 27, 1939. The defendants do not deny that allegation but admit that the maximum per cent of wages was not being paid and had not been paid when the suit was filed, but seek to excuse their failure to make these payments and made an offer in their answer to pay up the past-due compensation and continue the payments on the basis of what they claim is the correct basis.
Not only had the employer failed to pay the maximum per cent of wages when the suit was filed, but it had failed to pay any compensation at all for some three weeks prior thereto. The compensation payments were handled by the insurance carrier, but, of course, the employer was under the same obligation to make the weekly compensation payments fully and promptly as was the insurance company.
The adjuster for the insurance company testified that he investigated the case and recommended that compensation be made on the basis of a 36 hour week and 30 cents per hour, this being the rate and hours reported to the insurance company by the employer. On this report and recommendation, compensation was paid for a little over seven weeks. The last three payments were not paid when due, but the adjuster stated that this delay was caused on account of his inability to get a prompt medical report from their doctor who was treating plaintiff. I am fully aware of the necessity of getting periodic medical reports showing the condition of the injured employee from time to time, and I also realize that there are times when these reports may be delayed, but I think that the employer and his insurance carrier are duty bound to arrange for and procure these reports so as not to unreasonably delay the payments to an employee who has a right to expect these payments every week as they may be his sole means of procuring the common necessities of life.
It was no doubt because of the delay in these last payments that plaintiff consulted an attorney, and these last payments were made through this attorney and in response to a letter by him to the insurance company on September 7, 1939. On the following day, September 8th, the insurer sent a check for these payments to the attorney, together with a final receipt for plaintiff to sign. The attorney struck out the word "final" and sent the receipt back to the insurance company in a letter under date of September 12th, stating in the letter that plaintiff's disability had not ceased and that plaintiff did not concede that he had been paid sufficient compensation for the admitted period of disability.
No further payments were made or offered until October 3rd, after the suit was filed. However, around September 18th or 19th, the adjuster and the attorney for plaintiff had a conference with reference to the claim, and it seems that the attorney stated at this conference that he intended to have his client examined and would furnish a copy of the report of the examination to the adjuster. The latter claims that he understood from this conversation with the attorney that no suit would be filed until this report was furnished. The attorney states that he did not agree or infer that he would withhold suit pending the examination and report.
Be that as it may, no further effort was made by the adjuster to pay or adjust the *Page 50 difference in what had been paid as compensation and what was due on the basis of a 40 hour week which the adjuster admits that he ascertained to be the correct basis when he visited Baton Rouge to see the attorney about the claim around September 17th, and it was not until October 3rd following that the company wrote that it was willing to continue compensation on the revised basis.
Such was the situation when the defendants came into court after the suit was filed and set up their mistake, gave their explanation of the delay in making the full payments, and indicated their willingness to continue payments at the revised rate as long as the plaintiff's disability continues, not exceeding 400 weeks. In my opinion, if an employer could thus delay payments, keep the employee in a state of uncertainty and require him to employ an attorney, and then when sued, come in and offer to make all back payments and offer to continue these payments in order to serve as the basis of a plea of prematurity and have the suit dismissed, a way would be opened to the employer to defeat the right of the employee to have his claim adjudicated by a judgment. As I read the law regarding prematurity, I understand it to mean that the failure or refusal of the employer to pay the maximum per cent of wages must be based on reasonable grounds. It is not altogether a question of good faith on the part of the employer, as we all may at times fail to discharge our obligations in perfect good faith, and yet not be free from fault or neglect. This seems to be in line with the interpretation of this law in the case of Clark v. Forest Lumber Co., 9 La.App. 639, 120 So. 88.
The law which permits an employer to prevent an employee from having his claim reduced to a judgment by showing that he is paying and has not refused to pay full compensation should be construed strictly, and the employee should not be deprived of his right to prosecute his claim to a judgment unless the employer shows that he is paying and has not failed or refused to pay full compensation at the time the suit is filed. It is stated in the majority opinion that the purpose of the law is to enable the employer to avoid the trouble and expense of defending a lawsuit which could have no other result than to require him to do what he is already doing. I agree with that statement, but there is another side to the question. The employee has a right to expect and to receive these payments promptly when the law says they are due, and if they are not paid when due, he must himself incur the expense of paying a lawyer out of his meager allowances.
In fact, it was the conduct of the defendants in this case, and not that of the plaintiff, which made it necessary for the latter to employ a lawyer to collect what should have been paid him without that expense. Why should the plaintiff be penalized by forcing him to employ a lawyer just because the defendants made a mistake, neglected to get the necessary information, or for any other reason failed to pay plaintiff full compensation when it was due?
In my opinion, the plaintiff has a right to prosecute his claim to a judgment and have the court determine the basis of his compensation and the period of his disability. The plea of prematurity should not be used under the circumstances of this case to deprive him of that right.
I respectfully dissent.