Boyer v. Crescent Paper Box Factory, Inc.

• Decision Date: 26 November 1917
• Docket Number: 22434
• Court: Louisiana Supreme Court
• Parties: BOYER v. CRESCENT PAPER BOX FACTORY, Inc

78 So. 596

143 La. 368

BOYER v. CRESCENT PAPER BOX FACTORY, Inc

No. 22434

Supreme Court of Louisiana

November 26, 1917

On Rehearing, April 29, 1918

Gordon Boswell and L. P. Bryant, Jr., both of New Orleans, for appellant.

George Sladovich and Henry J. Rhodes, both of New Orleans, for appellee.

MONROE C. J., dissents. LECHE, J., takes no part.

OPINION

PROVOSTY, J.

While plaintiff was in the dressing room of the defendant's factory getting ready to go home after her day's work her hair got caught in some machinery, and she was scalped. There can be no serious question but that she would be entitled to heavy damages were it not for Act 20, p. 44, of 1914, known as the Employers' Liability Act. She denies that her case comes under this act; and, in the event that it does, she contends that the act is unconstitutional.

Her reasons for saying that the act does not apply to her case are:

First. That she gave defendant the notice provided for by paragraph 3 of section 3 of said act.

That section provides that the parties to the contracts of employment covered by the act shall be presumed to have intended that their contract should be subject to the provisions of the act, unless otherwise stipulated in the contract, or unless either party gives to the other notice to the contrary 'not less than thirty days prior to the accident.'

Plaintiff gave this notice only after the accident, but within 30 days of the date of her employment; and the argument is that she had days within which to give the notice. The act does not so provide. It is explicit to the contrary. By its operation every contract is included, unless taken out either by express stipulation in the contract itself, or by notice 30 days before the accident. Needless to consider what would have been the legal situation if the notice had been given as soon as it was possible to give it, but less than thirty days before the accident.

Second. That defendant refused to furnish her the medical aid required by paragraph 5 of section 8 of the act to be furnished by the employer to the injured employe 'during the first two weeks after the injury,' and is therefore not in a position to invoke the benefit of the act.

There is no evidence of defendant's having failed to furnish this medical aid. One of the exhibits attached to plaintiff's petition is a letter, alleged to be from defendant's counsel, bearing upon this question of medical aid; but this letter was not offered in evidence, and if, in evidence, would show that defendant complied fully with the medical aid requirement. It is dated December 8, 1915, is addressed to plaintiff's counsel, and reads:

'Dear Sir:

'Re Miss Effie Boyer v. Crescent Paper Box Factory, Inc.

'Crescent Paper Box Factory, Inc., has referred to me for attention your communication of Dec. 2d and 6th, relative to accidental injuries sustained by your client, Nov. 13th, while in its employ.

'As you know, Act No. 20 of 1914 imposes upon my client certain obligations and liabilities from which it cannot escape, and it is our intention to comply to the letter with the requirements of the said act.

'Directly after the accident, and in order to alleviate, as much as possible, the pain and suffering of Miss Boyer, we had her removed from the Charity Hospital to the Touro Infirmary, and placed under the treatment of our own surgeon, Dr. J. Barnett. However, in view of her attitude, as expressed in your communication, we felt that it is not incumbent upon us to incur further expenses in her behalf, and have therefore notified Dr. Barnett and the Touro Infirmary that we will not be responsible for any further expenses in the nature of medical attention, medicine, or hospital fees. As attorney at law and in fact for Miss Boyer we hereby notify you, with the request that immediate arrangements be made for the rendering of further attention at the expense of Miss Boyer.

'Allow me to emphatically deny the statement of Miss Boyer that any one representing her employer has called upon her to annoy her with any proposal to effect an amicable settlement. Such a statement is without foundation in fact.

'If there are any features of the case which you wish to discuss with me kindly advise me and it will afford me pleasure to call upon you.

'Very truly yours.'

Defendant appears by this letter to have furnished medical assistance from November 13th to, at least, December 8th -- more than two weeks.

Third. That the defendant has not posted a notice in its factory as required by said Act No. 20 of 1914.

The notice here referred to as required to be posted is that provided for by section 12 of the act, reading as follows:

'Sec. 12. Be it further enacted, etc., that it shall be the duty of the employer to cause to have printed and to keep posted at some convenient and conspicuous point about the place of business a notice reading * * * as follows: 'In case of accidental injury or death the injured employe or some one acting in his behalf, must give notice to [here shall follow the name and address of the party] within fifteen days, and unless notice be given to the above party within fifteen days, no payments will be made under the law for such injury or death.' In the event of the failure of the employer to keep posted said notice, the time in which notice of the injury shall be given as provided in section 11 shall be extended to six months from the date of injury.'

Evidently the only function, or effect, of said notice is to start the running of the 15-day delay within which an injured employe must give notice of his injury; and the only consequence of failure to give this notice is that the employe has 6 months, instead of 15 days, within which to give notice of his injury.

Fourth. That the loss of a scalp is not mentioned among the special cases of loss for which provision is made in said act, and that therefore any injury of that kind does not come under the act.

Section 8 of the act provides, in general terms, 'for injury producing (a) temporary total disability to do work of any reasonable character; (b) temporary partial disability; (c) permanent partial disability; and (d) permanent total...