108 So. 2d 211 | Miss. | 1959
This proceeding was brought by the dependents of James H. Byrd, deceased, for the recovery of workmen’s compensation benefits alleged to be due them as the widow and children of James H. Byrd who met his death as the result of a collision between a gravel truck owned and operated by Byrd and an automobile owned by James A. Venhaus and operated by Julius D. Smith. There is no dispute of the fact that Byrd’s death arose out of and in the course of his employment with Bush if the relationship of employer and employee existed between them at the time. The attorney-referee found that it did exist and awarded compensation to the dependents; the Workmen’s Compensation Commission affirmed the action of the attorney-referee and on appeal the circuit court affirmed the decision of the Commission, from which comes this appeal.
1. Only two questions are raised by appellant as grounds for reversal. The first is that Byrd was not covered by the Compensation Act for the reason that he was an independent contractor and not an employee.
We think that under these facts the relationship of employer and employee existed between them, and that the case of Wade v. Traxler Gravel Co., 100 So. 2d 103, not yet reported in the State Reports, is identically in point. We quote briefly from Pages 108 and 109 of the opinion in that case as follows: “In the case that we have here there is no substantial dispute as to the facts relating to Wade’s employment; and it seems clear to us from the testimony of Wade and Traxler that Wade was a mere employee of Traxler at the time of his injury. Traxler had and exercised the right of control over Wade’s hauling operations which is normally present in the employer-employee relationship. Wade was hired to haul gravel at so much per cubic yard and according to the length of the haul. He did not contract to do a set piece of work; his employment was not to
2. The second point raised by appellants is really two points argued together.
(a) One is that appellees failed to comply with the notice provisions of Section 12 of the Compensation Act, Section 6998-18, Recompiled Code of 1942, the applicable portion of which requires that actual notice of an injury be received by the employer or by an officer, manager, or designated representative within thirty days after the occurrence of the injury, but the same section also provides that “Absence of notice shall not bar recovery if it is found that the employer had knowledge of the injury and was not prejudiced by the employee’s failure to give notice. ’ ’ The record shows that Bush and his superintendent knew of Byrd’s accident and death within a very few minutes after it happened and conducted an investigation at the scene of the accident. Moreover, the claim agent for the carrier made an investigation of the accident. Both the appellants had full knowledge of the injury and death of Mr. Byrd and it is not shown that either of them was prejudiced by the failure to give notice within thirty days.
Section 6998-36, supra, provides that the employee or his dependents bringing suit against a third party must notify the employer or carrier within fifteen days of the filing of such suit and the appellants contend that the appellees are barred from prosecuting their compensation claim because such notice was not given.
We feel that the decisions by the lower tribunal are correct and that the order appealed from should be affirmed and the cause remanded to the Commission' for supervision of^the payments due. An attorneys’ fee1 of one-third of the total amount of the recovery is hereby allowed to counsel for the claimants for all their services in this case.
•Affirmed and remanded.