(dissenting). The question is whether the judgment rendered May 23, 1927, condemning defendant to pay plaintiff 65 per cent of his wages, or the sum of $7.50 per week for a period of 300 weeks, less sums paid, is final and in effect res adjudicata as to the number of weeks plaintiff can claim compensation, when the facts show that he has been a permanent total disability as a result of and constantly since his injury received on June 30, 1925.
Following his injury on June 30, 1925, plaintiff brought suit alleging that it had produced in him a permanent total disability, and claimed compensation accordingly, but, in deciding the case by judgment rendered May 23, 1927, the court allowed him but 300 weeks, which was the greatest period of time during which compensation could be allowed for a temporary total disability. The greatest period of time during which compensation could be allowed on account of permanent total disability was 400 weeks.
The act provides that “the judge shall not be bound by technical rules of evidence or by technical rules or procedure other than as herein provided. * * * The judge shall decide the merits of the controversy as equitably, summarily and simply as may be.” Act No. 20 of 1914, sec. 18, par. 4, as amended by Act No. 85 of 1926. Section 36 provides that no contract, rule, regulation, or device whatever shall operate to relieve the employer in whole or in part from any liability created by this act, except as herein provided, and the provision is in furtherance of the act as a whole.
After paying compensation for about two years or more, defendant, moving' under *301section 20 of the act (amended by Act No. 38 of 1918 and Act No. 85 of 1926), alleged that plaintiff’s incapacity had terminated or decreased, ruled him into court to show why compensation should not he discontinued or decreased, which shows that defendant did not regard the 300 weeks which the judgment fixed as not subject to change. The plaintiff countered by alleging that his incapacity had increased, and ruled defendant to show cause why it should not be required to pay him an additional 100 weeks. Of course there can be no increase of incapacity beyond that of permanent total disability, but plaintiff prays in his rule, among other matters, for such further orders as may be necessary in the premises and for all equitable and general relief. Under this prayer it was shown that plaintiff was a permanent total disability, due to his injury of June 30, 1925, and had constantly been such since his injury. Appropriate relief can be granted in such a case. Abadie v. Gluck’s Restaurant, etc., 168 La. 241, 121 So. 757.
The judgment of May 23, 1927, should not, in my opinion, in view of the provisions of the Employers’ Liability Act on the subject, be given the effect of finality as to the number of weeks for which plaintiff can receive compensation when in appropriate proceedings he shows that he is a permanent total disability as a result of his injury on June 30, 1925, and has remained such constantly ever since.
It seems to me that the judgment of the district court, allowing plaintiff the 100 additional weeks, is correct and in compliance with the act in question, and that the judgment should be affirmed.
I therefore dissent.