92 So. 2d 370 | Miss. | 1957
This is a workmen’s compensation case. The appellee was employed by the appellant, Pope Company, Inc., as a salesman in its grocery department, but he was also required to perform such other duties as the company might require of him. According to his testimony and that of Leonard Ashley appellee was directed to go to the company’s warehouse and assist Ashley in loading one hundred sacks of cement and to deliver the same to Thyer Manufacturing Company which was engaged in the manufacture of prefabricated homes and which used cement in the making of concrete for the floors of the homes. The appellee said that this occurred on or about October 15, 1954; that it was a hot day and he was sweating xwofusely; that some of the bags of cement were torn and that he got cement on his legs, arms and neck, which stuck to him; that this caused a burning and stinging sensation in about two hours; that he did not stop work but continued in his employment until March 14, 1955, with the exception of two trips to see a doctor in Laurel who gave him treatment for the rash on one of his legs.
On March 14, 1955, the trouble on his leg had developed into an open sore and he went to a doctor in Collins, where he resided, who found him totally disabled and who testified that he prescribed bed rest and a heal
Appellee testified that he reported the trouble to Mr. John B. Pope, President of Pope Company, Inc., on February 15, 1955, but Mr. Pope testified that it was reported to him about March 14th, and said that so far as he remembered it was on the day that appellee quit work. Mr. Pope reported the matter to the insurance carrier on March 22, 1955. He said that he remembered the occasion when the appellee and Mr. Ashley moved the one hundred bags of cement to the Thyer Manufacturing Company but that he did not remember the date. He and his brother who was secretary and treasurer of the company both testified that they could not find any record of the one hundred bags of cement, but he did testify that he found a record of forty-five sacks sold to Thyer on July 5, 1954, twenty-five sacks on July 14th, and six sacks on July 13th. His brother testified to the same sales but placed the sale of the six sacks on July 15th. All of the records of Thyer Manufacturing Company had been sent to the home office in Toledo, Ohio, and an accountant for that company testified by deposition that he had a record of only six sacks in July and that this was on July 15, 1954. The Pope brothers testified that they found no record of any sales of cement to Thyer in September or October 1954, but the accountant for Thyer testified by deposition that his record showed the purchas of one sack in September and two in October. He also testified that his records would not indicate whether any exchange or loan of cement took place between Pope Company, Inc., and Thyer at any time.
At the conclusion of the hearing the attorney-referee found as a fact that appellee was an employee of Pope
On appeal to the full Commission tAvo members voted to affirm the order of the attorney-referee and one member filed a strong dissenting opinion. On appeal from that order the circuit judge disagreed with the attorney-referee and the tAvo members of the Commission on the ground that they Avere in error in applying Section 12 of the Mississippi Workmen’s Compensation Act and held that the notice to the employer Avas given in time, and accordingly there Avas a reversal of the attorney-referee and of the tAvo members of the Commission Avho affirmed the same, and a judgment Avas entered awarding to the claimant two-thirds of his average weekly Avage, or the sum of $15.39 per week for the period from March 15, 1955, to and including July 31, 1955, together with costs of medical and surgical treatment from March 14, 1955, to and including July 31, 1955. Prom that judgment of
Section 12 of the Compensation Act is found as Section 6998-18, of the Recompiled Volume 5A of the Code of 1942, which provides for actual notice to the employer within thirty days after the occurence of the injury. That section further provides that the absence of notice shall not bar a 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. In the case of Pearl River Tung Company, et al. v. Estate of Leslie John, 83 So. 2d 95, not yet reported in the Mississippi Reports, we had occasion to deal with Section 12 of the Act, in a case where no notice was given and we there said that ‘ ‘ there is no showing whatever that the employer was prejudiced by failure of claimant to give notice in the manner contemplated by the statute.” We there cited the case of Ingalls Shipbuilding Corporation v. Byrd, 215 Miss. 234, 60 So. 2d 645, and Pepper v. Barrett, 82 So. 2d 580.
In this case the employee did not become disabled until March 14, 1955, and he immediately gave notice to the employer. We do not think that the failure to give notice before March 15, 1955, as found by the attorney-referee, resulted in any prejudice whatsoever to the appellant.
Moreover, we do not think that notice was required until there was a disability where the injury is progressive and cannot with reasonable certainty be recognized at first as compensable. In this case the claimant continued with his work until he became totally disabled and saw Dr. Smith on March 14, 1955. We had occasion to deal with this question in Ingalls Shipbuilding Corporation v. Byrd, 215 Miss. 234 (248), 60 So. 2d 645, where we quoted from American Jurisprudence and also Larson and stated our views as follows: “ ‘Failure to make claim upon an employer for compensation'within
We are also of the opinion that the case of Hardin’s Bakeries, et al. v. Ranager, 217 Miss. 463, 64 So. 2d 705, in some of its aspects, is particularly applicable to the case at bar; and also the case of Christopher v. City Grill, et al., 218 Miss. 638, 67 So. 2d 694.
Prom what we have said it follows that the judgment of the circuit court should be, and the same is hereby, affirmed.
Affirmed.