157 So. 802 | La. Ct. App. | 1934
The defense is based on the proposition that defendants received no notice of the injury and were prejudiced thereby and that for this reason plaintiff is barred from recovery.
Section 11, pars. 1 and 2, and section 15, par. 1 of the Workmen's Compensation Law, Act No.
"Section 11. 1. Be it further enacted, etc., That no proceeding under this act for compensation shall be maintained unless notice of the injury shall be given to the employer within six months after the date of injury or death. No such notice shall be held invalid or insufficient by reason of any inaccuracy in stating the time, place, nature or cause of the injury, or otherwise, unless it is shown that the employer was in fact misled to his injury thereby. Such notice may be given or made by any person claiming to be entitled to compensation, or by any one in his behalf.
"2. Want of notice or delay in giving notice shall not be a bar to proceedings under this act if it be shown that the employer, or his agent or representative, had knowledge of the accident, or that the employer has not been prejudiced by such delay or want of notice." Section amended and re-enacted by Act No.
"Section 15. 1. Be it further enacted, etc., That a notice given under the provisions of Section 11 of this act shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, nature or cause of the injury, or otherwise, unless it is shown that the employer was in fact misled to his injury thereby. Want of notice or delay in giving notice shall not be a bar to proceedings under this act if it be shown that the employer, or his agent or representative, had knowledge of the accident, or that the employer has not been prejudiced by such delay or want of notice."
We are convinced that Morgan Brown, who was present when the injury occurred, was the agent or representative of defendants within the meaning of that portion of the law quoted above. The deceased was an ignorant Negro, who did not realize the probable consequences of so slight an injury and did all within his power to avoid the result. There was sufficient notice to the employer to enable plaintiff to bring this suit under the Workmen's Compensation Law.
The act provides:
"The employer shall pay or cause to be paid reasonable expenses of the burial of the employee, not to exceed $100.00 and the reasonable contingent expenses in connection therewith not to exceed $50.00." Act No.
In view of this provision and in further view of the fact that the record discloses no contingent expenses, we believe that the judgment of $150 was unwarranted, and that plaintiff is entitled only to reasonable funeral expenses in the sum of $100.
As the record shows that plaintiff received Smith's regular salary for the week ending December 9, 1933, we believe that compensation should run from that date, rather than December 7th, as fixed by the trial judge.
For the reasons assigned the judgment appealed from is amended so as to read as follows:
It is ordered, adjudged, and decreed that there be judgment herein in favor of plaintiff, Mrs. Beulah Consee, widow of Malcolm Smith, and against the defendants, Samuel T. Gately Marble Granite Works, Mrs. Caroline Gately, widow by first marriage of Dudley Bozeman and now wife of Ennis A. Seagrave, Dr. Tracy T. Gately, and Leonard E. Gately, in solido, in the sum of $4.22½ per week for 300 weeks, beginning December 10, 1933, with interest thereon at the rate of 5 per cent. from the respective dates when said payments became due.
It is further ordered, adjudged, and decreed that there be judgment herein in favor of said plaintiff and against the said defendants, in solido, in the sum of $100. Defendants to pay all costs.
*804Amended and affirmed.