Parham v. Standard Oil Co.

275 F. 1007 | N.D. Miss. | 1921

HOLMES, District Judge.

[1J The Workmen’s Compensation Law of the state of Louisiana (Act No. 20 of 1914, as amended by Act No, 243 .of 1916 and Act No. 38 of 1918) is constitutional. Paragraph 3 c£ section 3 of this law is broad and sweeping enough in its terms to embrace a minor under the age of 18 years, and consequently the plaintiff in this case, who entered the employment of the defendant without expressly stipulating against the application of said section 3, is bound by its provisions unless he relieves himself from the presumption of section 3 as provided by paragraphs 4 and 6. Admittedly no such election to terminate the provisions of paragraph 3 was exercised by the plaintiff in the manner provided by paragraph 6 prior to the injury. Paragraph 4 of section 3 provides that any agreement or election for the operation of the provisions of the act may be terminated by either party to the contract of hiring giving written notice to the other party not less than 30 days prior to the accident that the provisions of the act shall not apply.

[2] 'It seems very clear, under said paragraph 3, that when an employé begins work without expressly stipulating against the provisions of the act, it becomes effective by operation of a legal presumption. After the act takes effect as to any employment, it can only be terminated by “written notice given not less than 30 days prior to the accident to the other party.” Of course the act cannot be “terminated” unless its operation has previously begun. The right to terminate the operation of the act is “a right, privilege or election” which accrues to the employé under the act, but by paragraph 4 of section 3 this termination must take place by written notice not less than 30 days prior to the accident. This is a limitation of time provided in the act within which the right to terminate the operation of the act shall expire. It applies to all persons over the age of 18 years mentally competent to act for themselves and to all minors and persons non compos mentis who have a curator or tutor, but, under section 16, “in case an injured employé is mentally incompetent or a minor” at the time when the right to terminate the operation of the act accrues to him, “no limitation of time” shall run so long as such incompetent has no curator or tutor.

The plaintiff in this case is an injured employé and a minor under the age óf 18 years without a curator or tutor. It is, therefore, difficult to see why, under said paragraph 6, his father cannot elect, even after the injury, to terminate the provisions of the act with reference to his injury when section 16 provides that in case an injured employé is.a .minor at the time when any right, privilege, or election accrues to him under the act, his duly qualified curator or tutor may, in his behalf, claim and exercise such right, privilege, or election, and that “no limitation of time” shall run so long as such minor has no curator or tutor. The only, limitation of time on the right to terminate is that provided in said paragraph 4. It is worthy of comment that notice to terminate an agreement to work under the act requires 30 days’ time prior to the accident under paragraph 4, but an employé who has given notice to his employer, or an employer who has given notice to his employé, that he elects not to be subject to -the provisions of the áct, may waive such election, under paragraph 5, “by a notice in writing which shall take effect immediately.”

This shows an intention on the part of the lawmakers to facilitate the operation of the act. In the first place, under said paragraph 3, in the incipiency of the employment, the burden of preventing the act from operating is placed upon the party objecting to its provisions, and inaction on the part of both gives effect to the act. In the second place, when, the act has once taken effect by any agreement or election, express or implied, it requires written notice not less than 30 days prior to the accident to the other party that the provisions of the act shall no longer apply. But, on the other hand, under said paragraph 5, when one of the parties has elected not to be under the act, he may waive such election by a notice in writing which shall take effect immediately. In other words, under paragraph 5, such waiver of an election not to come under the act might take place even after the injury and would take effect immediately. Thus the operation of the act is favored by making its provisions optional at all times, unless some of the parties to the employment give written notice either at the time of the contract of hiring or not less than 30 days prior to the accident that the act shall not apply, but the right to terminate the operation of the act after the accident has occurred is saved only in favor of injured employes who are mentally incompetent or minors without curators or tutors.

The language of section 16, standing alone, might include a minor over the age of 18 tiears, but paragraph 6 of section 3 clearly shows an intention to emancipate such a minor in so far as his right of election or termination or waiver is authorized by the act.

[3, 4] I conclude, therefore, that as neither the father, mother, nor the court had exercised on behalf of the plaintiff the right of termination under paragraph 6 prior to the accident, and as the plaintiff neither has nor had any tutor, that the father may exercise this right after the accident, and that by filing suit he has exercised it and rendered unnecessary giving written notice, as the law never requires the doing of an idle or useless thing.

The demurrer will be overruled.