The instant consideration deals solely with the allegations of plaintiff's petition; defendant, in challenging the action as being prematurely brought, tendered merely a plea of prematurity and exceptions of no right and no cause of action directed at those allegations. It has not answered.
True, defendant did allege certain facts in the plea of prematurity, and it attached to that pleading a copy of a letter purportedly written by it to plaintiff. But there was no trial of the plea in the sense that evidence was adduced in support of those factual averments and the letter. Consequently, defendant's averments and letter are not before us, and we are now concerned only with the question of whether *Page 262 or not plaintiff's petition on its face discloses a premature institution of the suit.
It is provided in the first part of subsection 1(B) of Section 18 of the Employers' Liability Act, as finally amended, that the presentation or filing of a complaint of an injured employee shall be premature and shall be dismissed unless it be alleged therein that he "is not being or has not been paid, and the employer has refused to pay, the maximum per centum of wages to which petitioner is entitled under the provisions of this act." The payments thus contemplated, obviously, are those made as compensation. According to my appreciation of plaintiff's allegations, the mentioned statutory requirement has been substantially discharged; for petitioner declares specifically in his petition that "he has been paid no compensation whatever by the employer since the date of said accident." Therefore, error, in my opinion, was committed in the District Court and Court of Appeal by the dismissing of plaintiff's suit on the plea of prematurity and the exceptions of no right and no cause of action, all of which, as before shown, were leveled solely at plaintiff's allegations. Such plea and exceptions should have been overruled, thus compelling defendant's filing of an answer and the placing of the allegations of the petition at issue.
Defendant, when its answer is filed, may deny plaintiff's charge that he received no compensation. Should such a denial be made it will create an issue respecting the nature of the payments which plaintiff, admittedly and allegedly, continued to receive from the date of the accident until *Page 263 the institution of this suit; and that issue will necessitate the taking of evidence, and its determination must occur before proceeding with the hearing, of the other issues involved. If, on that preliminary hearing it be found that those payments (whether they be called by the parties wages or something else) were in the nature or in lieu of the full compensation due and owing to plaintiff under the statute (not earned income, for and commensurate with services actually performed by the employee), the suit must then be dismissed as being premature. Such is the procedure outlined in the last portion of said subsection 1(B) of Section 18, it reading: "* * * when such allegation is contained in such complaint and is denied by the employer at the time fixed for the hearing thereunder by the Court, if it be shown that such allegations are without reasonable cause or reasonable foundation in fact, said complaint shall be dismissed; and the question of whether or not such allegation of nonpayment is justified under the facts shall be determined by the Court before proceeding with the hearing of the other issues involved."
For these reasons, I concur in the decree annulling the judgments of the District Court and the Court of Appeal and remanding the case to the District Court for further proceedings.