Musick v. Central Carbon Co., Inc.

• Court: Louisiana Supreme Court
• Writing for the Court: OVERTON, J. P.
• Citation: Musick v. Central Carbon Co., Inc., 166 La. 355, 117 So. 277 (La. 1928)
• Decision Date: 07 May 1928
• Docket Number: 29176
• Parties: MUSICK v. CENTRAL CARBON CO., Inc. In re MUSICK

117 So. 277

166 La. 355

MUSICK v. CENTRAL CARBON CO., Inc.

In re MUSICK

No. 29176

Supreme Court of Louisiana

May 7, 1928

Affirmed.

Matthew C. Redmond, of Monroe, for applicant.

Hudson Potts, Bernstein & Sholars, of Monroe, for respondent.

OPINION

OVERTON, J. P.

Harvey Musick was employed by defendant, and, while discharging the duties of his employment, was burned on December 28, 1923 about the face, chest, and hands. He contracted pneumonia on or about February 1, 1924, and died on February 5th of that year, as a result of the pneumonia contracted. In April, 1924, his widow, in her own behalf, and as tutrix of her minor children, the issue of her marriage with the deceased, together with the defendant herein, petitioned the district court for the parish of Ouachita, which had jurisdiction of the claim of the widow and children for compensation, to authorize a compromise settlement thereof. In this petition it is alleged, in addition to the facts above stated, that immediately after the deceased received the burns he was sent to the St. Francis Sanitarium in Monroe, where he remained for two weeks, at the termination of which period he returned to his home, on the advice of his physicians, and remained there approximately two weeks, going to Monroe about three times a week to have his wounds dressed; that, while at his home, he contracted pneumonia, as stated above, on February 1, 1924, after which he was taken back to the sanitarium, where he died; that at the time the deceased was injured he was receiving sufficient wages to entitle him, under the laws of this state, then in force, to the maximum compensation of $ 18 a week; that one of the petitioners, the Central Carbon Company, Inc., denies liability for the death of the deceased, for the reason that the injuries received by the latter, while in its employment were not the cause of deceased's death; that petitioners have nevertheless agreed to settle the matter of compensation between themselves in the following manner, to wit:

"The Central Carbon Company, Inc., to pay the medical and hospital bills, amounting to two hundred and fifty ($ 250) dollars, to pay the sum of two hundred and thirty-four ($ 234) dollars for the time deceased lived and was unable to work, and to pay the sum of three thousand ($ 3,000) dollars for the death of the deceased. All of said sums to be paid in accordance with section 8, par. 2, subsec. J, of the Workmen's Compensation Law, to the widow for the common benefit of such widow and the above-named children."

The petition then sets forth that the Central Carbon Company has paid all of the foregoing items, except the one for $ 3,000, which it desires to pay, and which the remaining petitioner desires to accept in her own behalf and in behalf of her minor children, in full compromise settlement of any balance due on said claim.

The district court, after considering the foregoing petition, granted an order authorizing the compromise proposed, and payment was made in accordance with the order authorizing it.

Over two years after the foregoing compromise was effected the widow of the deceased in her own behalf, and as natural tutrix of her minor children, instituted the present suit to recover from the Central Carbon Company, Inc., $ 10,332, less the foregoing sum of $ 3,000, paid as the balance due under said compromise settlement, with legal interest thereon from judicial demand. In this suit the proceedings for a compromise settlement, outlined above, are made part of the petition by reference. It is also alleged that at the time the deceased was injured he was earning sufficient wages to entitle him to the maximum compensation of $ 18 a week; that the Central Carbon Company, Inc., paid the deceased from the date of his injury up to the time of his death compensation at that rate; that, at the time of his death, there was due petitioners the sum of $ 18 a week for 277 weeks, making the aggregate sum of $ 5,166, due them at that time; that the compromise settlement, made over two years before, was nothing more than a lump sum settlement, and was made in contravention of law, for the reason that the discount was at a greater rate than 8 per cent. per annum, the rate provided for in section 8, par. 8, of Act No. 20 of 1914, as amended by Act No. 43 of 1922; that the discount should not have exceeded $ 1,050; that, however, it greatly exceeded that amount -- in fact more than doubled it -- that therefore the settlement made was made in violationof law; that the Central Carbon Company, Inc., having settled the claim for an amount in contravention of subsection 8 of section 1 of Act 43 of 1922, it is by the terms of that section liable to petitioners in double the amount that was due at the time the lump sum settlement was made, less the amount actually paid in that settlement, or $ 10,332, less the $ 3,000 paid, or a balance of $ 7,332, with legal interest thereon from judicial demand.

One of the pleas filed by the Central Carbon Company, Inc., to the foregoing petition is an exception of no cause of action. This exception presents the question, among others, whether the settlement alleged to have been made under the judgment, authorizing it, is binding on plaintiffs, or, in other words, whether that judgment was such a one as the court had power to render, as appears from the allegations of fact contained in the petition, and from those which, by reference to other proceedings, constitute part of the petition. Plaintiffs contend that it was not, and defendant contends that it was. The answer to the question depends largely upon a proper interpretation and application of certain sections of the Employers' Liability Act, Act No. 20 of 1914, as amended.

Section 17 of that act, as...