160 So. 327 | La. Ct. App. | 1935
The Crossett Lumber Company contracted with Sam Hollingsworth to haul and deliver the pulpwood cut by it for so much per cord. Hollingsworth furnished his own truck and labor and had entire control of the hauling. That he was an independent contractor is not only established by the evidence, but by the following admission in the answer: "* * * That Sam Hollingsworth is and was an independent contractor and your respondent had nothing whatever to do with said injury or said death."
Sam Hollingsworth employed his brother, Enoch Hollingsworth, to drive and, with the aid of a helper, to load and unload one of the trucks engaged in hauling the pulpwood. Enoch was paid $1.75 per day, working six days per week. On June 2, 1932, while engaged in the above work, a log which he had thrown to the top of the load fell back, its end striking him in the lower chest and abdomen and knocking him down. He did no more work that day, which was Thursday. On Saturday, faced with the necessity of providing for a wife, four children in being and one about to be born, he went back on the job, confining his efforts to driving the truck. He did this again on Monday and Tuesday, until forced by his injury to give up. His wife applied humble home remedies until his condition became so serious that he was sent to the office of Dr. J.N. Jones. The doctor testifies that he found the chest and abdomen bruised. and that the patient complained of pain in that region. He strapped him up with adhesive tape and sent him home. In a few days he was called to that home, where he found the patient vomiting blood and suffering considerable pain. Upon his advice. Enoch was moved to the Bastrop General Hospital, where he treated him until death occurred on June 19th.
Dr. Jones testified positively that the bruises and symptoms were of such a character that no one could believe otherwise than that a traumatic injury was the cause of the hemorrhages and resulting death. He says that the patient gave a history of his injury, as recited above. The testimony of Dr. Jones is not discredited in any way. Defendant does offer Dr. Smith I. Sims, who, while hurrying to attend his own patient, was called in by the alarmed friends of Enoch to attempt *328 to stay a hemorrhage. He says that the man was vomiting blood and apparently dying; that he saw no bruises, but made no thorough examination in his haste to attend his own patient.
It is shown that the deceased was an exceptional workman. He was not addicted to hemorrhages prior to the accident. His disability followed it promptly and steadily grew worse. His death occurred within seventeen days of the receipt of the blow, and reasonably and logically resulted therefrom. The brave efforts of the injured man to continue his work and avoid expense, together with his speedy death, dissipates any suspicion of fraud or malingering. His white helper, Haywood Lankston, saw him knocked down by the log and was shown his bruised body. He testifies to Enoch's inability to work thereafter and to his pain and suffering following the injury. Clyde McDougal, who was hauling on the same job, says that he was told about the accident when the trucks reached the mill and that he helped unload in Enoch's place.
Strange to say, the principal defense witness is deceased's own brother, Sam Hollings-worth. He claims that, though he lived within one hundred yards of Enoch, was with him constantly, and took him to the hospital, he heard nothing about any accident or injury until six months later. He says: "Well, I don't know anything except what I have heard. Of course, I would like to see the woman have something if she is entitled to it, but I think it is a frame-up myself. If he was hurt, I never did know anything about it at all."
In the light of the testimony of Dr. Jones as to the evidences of trauma, and the history given by deceased, as well as the testimony of other relatives, this is hard to believe, particularly as Dr. Jones was refused permission by this same brother to have an autopsy performed to determine the exact cause of death. It is inconceivable that an autopsy was considered unless there was some discussion as to the cause of death.
Without going further into detail, we will say that we are satisfied that the deceased suffered the accident claimed and died from its effects.
The widow of deceased, appearing for herself and her now five minor children, all dependents, is appealing from a judgment below rejecting her demands against the Crossett Lumber Company for compensation, under Act No.
Section 6 of the act, as amended by Act No.
It being established that the cutting and hauling of pulpwood was a part of defendant's business and that Sam Hollingsworth, having independently contracted to do the hauling, employed Enoch in the work, and that the death of deceased was due to an injury incurred while so employed, from an accident arising out of the employment, plaintiff has made out her case, unless she has forfeited her right to recover by failure to give statutory notice.
The act requires in section 11, as amended by Act No.
Section 12 of the act, as amended by Act No.
Subsection 2 of section 11, as amended by Act No.
Deceased was earning a weekly wage of $10.50. The doctor's bill was $100. The hospital bill was $51.25, upon which friends had paid the sum of $15. Under the provisions of section 8, subsec. 2(E), par. 6, of the act, as amended by Act No.
For the reasons above assigned, the judgment appealed from is reversed, and judgment is now rendered in favor of plaintiff, Mrs. Lillie Hollingsworth, for the common benefit of herself and her minor children, Almeta, Pauline, Mary, Henry, and Virginia Hollingsworth, against defendant, Crossett Lumber Company, in the full sum of $6.82 per week for three hundred weeks, beginning June 19, 1932, with 5 per cent. per annum interest on each weekly payment from the date it is due until paid, and for the further sum of $136.25 medical expenses, and for all costs of both courts.