Laurent v. Dendinger, Inc.

• Decision Date: 05 March 1930
• Docket Number: 593
• Court: Court of Appeal of Louisiana — District of US
• Parties: LAURENT v. DENDINGER, INC

126 So. 600

13 La. App. 234

LAURENT v. DENDINGER, INC

No. 593

Court of Appeals of Louisiana, First Circuit

March 5, 1930

Rehearing Refused, the Original Decree Being Amended April 14, 1930.

Appeal from District Court, Parish of St. Tammany. Hon. P. B Carter, Judge.

Action by Rosa Laurent against Dendinger, Inc.

There was judgment for plaintiff, and defendant appealed.

Judgment reversed but on rehearing the original decree was amended.

Judgment amended and affirmed.

Harvey E. Ellis, Robert D. Jones and Adrian D. Schwartz, of Covington, attorneys for plaintiff, appellee.

Dresner & Dresner, of New Orleans, and Burns & Burns, of Covington attorneys for defendant, appellant.

ELLIOTT J. LECHE, J., not participating.

OPINION

ELLIOTT, J.

Plaintiff-appellee moves to dismiss this appeal on the ground that it was returnable on December 1, 1928, and had not been filed until December 3, 1928.

The construction that has always been placed on Code Practice, arts. 585 and 883, is that, if the record was filed within 3 days after the return day, it was in time. The motion to dismiss is overruled.

Defendant-appellant moves this court to remand the appeal herein for the purpose of having the lower court require a bond for cost. The case has been brought up on appeal by defendant-appellant. As for the bond which appellant endeavors to have required of the plaintiff, that matter was carried before the Supreme Court in an effort to have the lower court require the bond before any appeal was taken. The Supreme Court, acting on the writ that had been sued out in that court, refused to compel the lower court to require the bond, on the ground that defendant's motion came too late. If it was too late then, it is too late now. The motion to remand is refused.

Rosa Laurent, widow of William Laurent, alleging his accidental injury and resulting death while in the employ of the defendant, Dendinger, Inc., claims compensation in the amount of $ 4.87 1/2 per week, beginning September 6, 1927, to continue until her death, the first payment to be made September 13, 1927. She also claims $ 163.50 for medical and funeral expenses.

The defense is that the death of her husband was not due to accident, but to pulmonary tuberculosis, with which he was suffering previous to his employment. There was judgment in favor of the plaintiff for compensation as claimed, but there was no allowance for medical fees and funeral expenses.

On the first hearing of this appeal we held that Act 20 of 1914 (amended by Act 85 of 1926) did not provide for the payment of any compensation to a widow on account of the death of her husband, where none had been paid previous to his death. That section 8, subsec. 2, of Act 20 of 1914, as amended by Act 85 of 1926, sec. 1, providing that compensation in such a case was to be "as hereinafter provided," not having been followed by any provisory provision, no compensation could be allowed under the statute.

We reversed the judgment appealed from and dismissed plaintiff's suit. We had made a similar ruling in the case of Missouri Cooley Bass vs. Weber-King Mfg. Company, 168 La. 651, 123 So. 112, which was then pending before the Supreme Court on a writ of review, and had not at that time been acted on.

The Supreme Court, reviewing Act 85 of 1926, held that compensation was contemplated and provided for in the situation stated.

Plaintiff's application for rehearing in the present case was therefore granted in order that we might decide on the subject in harmony with the decision of the Supreme Court in the case cited.

The ruling of the lower court, overruling the defense mentioned, is therefore now affirmed.

The defendant urges an exception to plaintiff's demand, on the ground that she does not expressly allege in her petition that she was living with her husband at the time of the accident and at his death, relying on Act 85 of 1926, sec. 1, amending section 8, subsec. 2, pars. (A) and (B) and (K) of Act 20 of 1914; the two former reading as follows: "The following persons shall be conclusively presumed to be wholly and actually dependent upon the deceased employee. (B) A wife upon a husband with whom she was living at the time of her accident or death." It is also provided under paragraph (K) that the widow must be living with her deceased husband at the time of the injury and death.

The presumption of the law is not a necessary averment in the wife's petition in order to show her dependency.

Under the law, Civil Code, art. 120, a wife is bound to live with her husband and is presumed to do so.

She alleges that the decedent and herself were married on December 27, 1903, and that she was entirely dependent on him for support. This is sufficient. The exception was properly overruled. The other grounds of exception urged by defendant to plaintiff's demand come within the reason for the decision in 168 La. 651, 123 So. 112, and were properly overruled in the lower court.

William Laurent was assisting two other men in carrying a cypress cross-tie. Two of them were carrying the front and by means of a wooden bar, called a lug hook. A lug hook, according to our understanding, is a wooden bar with two iron hooks hanging from it in the middle. These hooks catch into the thing to be carried and it is then lifted with a man carrying each end of the bar. Plaintiff's husband had been carrying the rear end of the tie by lifting it with his hands. After it had been carried in the way stated about fifty feet, the men laid it down and rested, at which time Laurent complained of being tired. When they started again one of the men who had been carrying one of the ends of the bar took the end of the tie that Laurent had been carrying, and Laurent took one of the ends of the bar. In this way the tie was carried the remainder of the distance, about fifty feet and placed on the ground where it was to be used. Laurent then walked about forty feet away and fell to the ground unconscious, a hemorrhage of blood coming from his mouth. A physician in the employment of the defendant was sent for. He arrived and administered first aid treatment for the hemorrhage, had him removed from the ground where he had fallen to a bunk in a camp car, and directed that he be kept quiet for three or four days, at the end of which time he said he would return.

The plaintiff Laurent's wife, living at Madisonville, nearly thirty miles distant, hearing of what had happened to him, came the next day in an automobile, had him taken out of the bunk, and placed in the automobile in which she had come and carried him back home, that is to Madisonville. She then sent for a physician living at Covington, who came the next day following Laurent's return and found him, he says, suffering with incipient bronchial pneumonia. Five days thereafter he died with this disease. The immediate cause of Laurent's death was bronchial pneumonia, and that in turn was produced by the hemorrhage; there is no serious dispute about that, but there is a diversity of opinion among the physicians as to the cause of the hemorrhage. The physician who had observed and treated Laurent at the place where he was stricken expressed the opinion that he was suffering with consumption, and that the hemorrhage which prostrated him was brought on him by that disease and not as a result of injury received in carrying the cross-tie. The opinion of this physician was based entirely on his observation and what he was told about Laurent at the time.

Another physician living at Madisonville had treated Laurent more than a year previous to the time in question. He declared that Laurent had consumption; that he had treated him for it; that he had examined Laurent about 8 months before his death; that both lungs were then infected. His opinion was based entirely on his observation and personal examination, and not on a microscopic or pathologic examination.

The physician at Covington, who had been called by Laurent's wife to treat him upon his return to...