
    NO. 8269
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. ADELINE JOHNSON, wife of ROBERT JOHNSON versus VICTOR HURWITZ, conducting business under the name and style of V. HURWITZ & COMPANY.
    Dinkelspielj J.
   Dinkelspiel; J.

This suit is brought by the plaintiff who resides in the Parish of Terrebonne, stating that her son, Robert Johnson, Jr., and upon whom she was actually dependent for support was in the employ of defendant on Qctober 15th, 1913 and had been in said employ as a laborer for several years prior to this time, his wages being twelve dollars per week.

On the day mentioned and at the store of the defendant víhióh is on RoyallStreet in the City of Kew Orleans, whilst working in a freight elevator, which w.-'S unenolosed, he precipitated and fell from said elevator, which in its transit had reached a point between the second.and third floors, to the ground floor of said building and as the result of said fall austs.ined a depressed fracture of the skull, a compound fracture of the right radius or forearm and ulu.a and a fracture of the right femur or hip and from the effeots of which injuries, died.in the Charity Hospital in Rev; Orleans on the seme day.

That the cause of the fall from the elevator wee that a piece of furniture then being carried on said elevator, which had no sides and no gate or be,r-rier of *>ny kind either on the front or rear thereof, came in contact with the descending lifting weight thereof, causing the e.'-id saa piece of furniture to fall striking petitioner's son, knocking him out of said elevator and finally causing his death.

That said injuries were sustained by plaintiff's sen on account of his em -loyment, which employment and the duties incident thereto were of a hazardous nature and that said injuries 'which resulted in and caused the death of plaintiff's eon were suffered and sustained while in the course of his employment by defendant.

And further alleging that at the time of said injuries, plaintiff's son was making two dollars per day or twelve dollars per week and that under the provisions of Seotion 8, paragraph 3, subject paragraph G, of Act 20 of the General Assembly of this State, for the year 1914, as amended by Aot 343 of 1916, as amended by Act 38 of the Acts of the General Assembly of 1918, plaintiff's son leaving surviving him, neither a widow nor children, plaintiff is entitled to reoeive twenty five per cent of the wages of her deoeased son for a period of three hundred weeks, beginning Ootober 15th, 1919, and whloh should be paid in regular form and according to law.

That defendant had full knowledge of said injury ies and did from the time that it happened and although notified lay of the death of plaintiff's son, refused to pay the compensation to which plaintiff vías entitled by law.

TOierefore she prayed for judgment against defendant in the full sum of $900.00, in regular payments as the law provides and for general relief.

Defendant excepted to plaintiff's petition, that because being a married woman and her husband and father of her deceased son was living, she had not been authorized under the law to institute and prosecute this suit. That petition discloses no lege.l or valid cause of aotion.

Answering to the petition, requires striot proof that the decee.sed was the legitimate issue of the marriage between Robert Johnson, the husband, and that plaintiff was actually dependent upon the deceased for support.

Claims that defendant had no knowledge as to how deoeased met his death but admits the death; admits also that the deoeased was earning two dollars per day or twelve dollars per week at the time of the employment; admits that he has refused to pay the compensation claimed but avers that he has paid one hundred dollars for funeral exxoenses of the deceased, for which he is entitled to credit,if liable in any event.

Wherefore he prays that the exceptions be maintained, and if overruled that after the trial on the merits, plaintiff's suit be dismissed and for gener-.l relief.

And examination of this record convinces us that plaintiff was the wife of Robert Johnson and they had been living apart for twenty years prior to institution of this suit; it further satisfies us that the deoeased was the main support of plaintiff and he remitted to her regularly from his wages, from five to seven dollars per week during the entire time of his services with the defendant; it further satisfied us from the testimony that the deoeased was a labor in defendant's employ at the time and for several years prior to the time of this unfortunate accident and was reoeiving wages at the rate of twelve dollars per week. It oonvinoes us further that the acoident occurred just as described in plaintiff's petition, that in the course of his employment, whilst in the discharge of his duties, he was knocked off of the elevator to the floor, sustaining injuries which finally resulted,the same day, in his death at the Charity Hospital in the City of Hew Orleans.

The fact of the employment admitted, give plaintiff a right to compensation to the extent of twenty five per cent of her deoeased son's wages for a period of three hundred weeks, and under lots of 1914, 1916 we and 1918, and under the testimony in this oase/x«B are satisfied that plaintiff is entitled to the amount she olaims.

There is nothing in our opinion for defendant to fear that if he pays this judgment that the husband of plaintiff would have been entitled to make the same oleim against him; in fact the pre3cri .tion of one year has set in since these proosed-ings began.

In the argument before us in this case, our attention has been called to the further alleged fact that the amount involved is below our jurisdictional amount, because the amount of funerrl expenses, attempted to be deduoted by the dependent in thi3 case being ninety eight dollars, would not entitle us to determine this oase. We do not concur in this view for on the oontrary this case under the Act ?bove quoted and under the laws of this State w.is for the sum of $900.00, to be paid in due course as provided by law and vie only consider one question to be de-oided, that being the one of deducting funeral expenses as prayed for by defendant.

The law is plain and reads:

Aot 38 of the Legislature of 1918, Section o, at page 56.

The employer shall in every oase furnish the employee reasonable medioal, surgical end hosjital servios and medicines not to exceed or.e hundred and fifty dollars in velue, unless the employee refuses to allow them to be furnished by the employer, and in every oase of death, the employer shall pry or oause to be paid the re5 sonable expenses of the burial of the employee, not exceeding one hundred dollars.

It leaves no room ax for doubt th; t in addition to the compensation required to be paid there also must be furnished to the injured party, medioir.es • nd other medioal aid to the extent of c-ne hundred fifty dollars and oonsequently in oase of de., th funeral expenses not to exoeed one hundred dollars.

Therefore the olaim of defendant that the amount of ninety eight doll-, rs for funeral ex..enees paid by him be allowed to him as a deduo tier. fr.,.-.. the -aaount that he owes under che ...ust be deni

For the rei eor.3 aligned, it is ordered, adjudged and decreed, that the judgment of she Court a quo should be xattx amended and it ie now ordered, adjudged and deoreed, ch. t some should be rendered in favor of lire. A leline Johnson wife of Robert Johnson, affirming judgment in plaintiff's f„voi for the full amount of her clr.ii. against defendant, that ie for $900.00, payable in weekly installments of three dollars per week for three, hundred vreeks end that judgment in favor of defendant deducting from said amount the sum of ITinety Eight Dollars for funere.1 expenses, be reversed; s.n..e disallowed, and as thus amended, judgment is affirmed, cost3 of both courts to be paid by the defendant.

Judgment,amended; partly affirmed; partly reversed.  