Smith v. Samuel T. Gately Marble & Granite Works

• Decision Date: 10 December 1934
• Docket Number: 15011
• Citation: 157 So. 802
• Parties: SMITH v. SAMUEL T. GATELY MARBLE & GRANITE WORKS et al
• Court: Court of Appeal of Louisiana — District of US

157 So. 802

SMITH v. SAMUEL T. GATELY MARBLE & GRANITE WORKS et al

No. 15011

Court of Appeal of Louisiana, Orleans.

December 10, 1934

Rehearing denied January 7, 1935.

Chas J. Larkin, Jr., of New Orleans, for appellants.

Quintero & Ritter, of New Orleans, for appellee.

OPINION

LECHE Judge.

Malcolm Smith, deceased husband of plaintiff, was employed by the Samuel T. Gately Marble & Granite Works, a commercial co-partnership, as a truck driver and laborer. His duties required him to perform the cemetery work for defendants, such as grave digging, removal of trash and debris, and hauling. Orders for the work were given by Mr. Leonard Gately, active member of the firm, to Morgan Brown, who had been in the employ of defendants for fifteen or eighteen years and who transmitted the orders to Smith and the other workmen and who actively supervised the work. Mr. Leonard Gately frequently visited the cemetery himself to inspect the work being done and on these occasions gave instructions to the men himself. On the 29th day of November, 1933, while in defendant's employ and while engaged in clearing debris and loading a truck in the Greenwood Cemetery, plaintiff's husband stepped on a nail which was protruding from a piece of old coffin wood and which punctured his right foot. He sat on the coping of an adjoining grave, removed his shoe and sock, and Gabriel Sims, a fellow workman also in defendant's employ, beat the injured foot with a stick to make it bleed. Morgan Brown, who was engaged in digging the grave where the injury occurred, witnessed the incident, and testified that his helper, Gabriel Sims, assisted in removing the nail. Plaintiff's husband continued with his work that day and for several days thereafter, when he became so ill that Morgan Brown advised him to go to the hospital. Meantime he had treated his injury by the application of fat meat. On December 5th plaintiff took her husband to Charity Hospital, where he died four days later from tetanus caused by the wound he received as above set forth. Plaintiff then brought this suit under the Workmen's Compensation Law against the copartnership and the individual members thereof, and judgment was rendered in her favor in the sum of $ 4.221/2 per week for 300 weeks, beginning December 7, 1933, with interest, costs, and $ 150 for funeral expenses. From this judgment the defendants have appealed.

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. 20 of 1914 (as amended), read as follows:

"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...