
    (86 South. 730)
    No. 22868.
    CRAVER v. GILLESPIE.
    (Nov. 29, 1920.)
    
      (Syllabus by Editorial Staff.)
    
    1. Master and servant <&wkey;4l7(41/2)— Certificate or affidavit unnecessary on appeal in compensation case.'
    On appeal from-a default judgment in a proceeding under the Workmen’s Compensation Act, where the motion for appeal was made in writing in accordance with Code Prac. art. 573, neither certificate nor affidavit was necessary.
    2.’Master and servant <&wkey;4l7(4i/2) — Judgment for compensation held not to have become final before appeal;
    Where judgment, in a proceeding under the Workmen’s Compensation Act was rendered February 14th, and defendant, having moved for appeal March 6th, excepted to the jurisdiction of the court to consider plaintiff’s subsequent motion to vacate the appeal, and the appeal was then lodged with the Court of Appeal, which transferred the cause, the appeal will not be dismissed on the ground that judgment became final before any appeal was made.
    3. Master and servant <&wkey;4l7(4(/2)— Order for appeal in compensation case held not to have been vacated.
    Order allowing appeal held not to have been ^vacated; the minutes showing that the case was transferred to the Court of Appeal, etc., after defendant excepted to the jurisdiction of the court to hear plaintiff’s motion to vacate the appeal.
    
      4. Master and servant <&wkey;4l7(4l/2) — Appeal bond unnecessary in compensation case.
    Under Employers’ Liability Act, § 19, an appeal may be prosecuted by either employer or employs without furnishing an appeal bond.
    5. Judgment <&wkey;ll7 — Evidence proving default cannot enlarge pleadings.
    Where defendant defaulted, evidence received in proving up the default could not enlarge the cause of action pleaded, because defendant was not present consenting.
    6. Master and servant <&wkey;349 — Statute held not in force at time of compensation claimant’s injury.
    Act No. 243 of 1916, amending the Employers’ Liability Act (Act No. 20 of 1914), was not approved until July 6, 1916, and was not published until July 22, 1916, and so did not become a law outside of Baton Rouge until 20 days after publication; hence it was not in effect August 7th in Caddo parish, and one then injured in such parish cannot recover for permanent facial disfigurement by virtue of the amendatory act.
    Appeal from First Judicial District Court, Parish of Caddo; J. R. Land, Judge.
    Proceeding by R. O. Craver against George S. Gillespie under the Employers’ Liability Act for personal injuries. From a judgment for plaintiff, defendant appeals.
    Plaintiff’s motion to dismiss having been denied, the judgment was annulled, and judgment entered in favor of Mrs. Ida Gillespie, dative testamentary executrix, substituted defendant.
    J. E. Smitherman, of Shreveport, for appellant.
    Barret & Files, of Shreveport, for appellee.
   On Motion to Dismiss Appeal.

SOMMERVILLE, J.

Plaintiff-and appellee moves to dismiss the appeal herein for the reasons:

“1. That there is no certificate or affidavit attached to the motion for appeal.
“2. Judgment in the trial court had become final before any appeal-was made.
“3. There was no order for appeal herein, the.original order having been vacated by judgment of the trial court.
“4. There was nb appeal bond filed in the trial court.”

1. The motion for appeal herein was in writing, made in open court, and it was granted, without bond. This was all done in accordance with article 573, C. P., and the Workmen’s Compensation Act, and appellee has failed to point to any law requiring that the motion of appeal should be accompanied by certificate or affidavit.

2. We fail to understand what is meant in the second ground for dismissal, to the effect that the judgment in the trial court had become final in the trial court before any appeal was taken. The judgment was rendered February 14, 1917, and the motion for appeal was made March 6, 1917. It is noticed that' plaintiff filed a motion to vacate the order of appeal, and defendant, appellant, excepted to the jurisdiction of the trial court to try or consider the motion to vacate and rescind its order of appeal, on the ground that the said cause had been lodged in the Court of Appeal. This appears from the reading of the minutes, although the minutes may be somewhat confused.

The appeal had been taken to and lodged in the Court of Appeal, which court transferred the case to this court, as the amount involved exceeded the. limit of the jurisdiction of that court.

3. This ground for dismissal is:

“There was no order for appeal herein, the original order having been vacated by judgment of the trial court.”
This point was disposed of under paragraph 2, which says that the minutes of the court show that the order of appeal had not been vacated, but that the exception to the jurisdiction of the court to try the motion to vacate had been sustained.

4. Appellee says:

“There was no appeal bond filed in the trial court.”

This is true. But reference to section 19, Act 20 of 1914, p. 57, which is the Employers’ Liability Act, provides that:

“Such appeal may be prosecuted by either employer or employé without the necessity of furnishing an appeal bond, and shall suspend the operation of the judgment appealed from.”

The motion to dismiss is denied.

On the Merits.

Thus suit is by an employee, who alleges that the defendant is indebted to him in the sum of $2,650 under the Employers’ Liability Act, “No. 243 of the General Assembly of 1916, p. 512, amending the Employers’ Liability Act, No. 20 of 1914.” And he alleges with reference to the injuries received by him in the course of his employment:

“That on or about August 7, 1916, while in the employment of said defendant, your petitioner was injured by having his face terribly lacerated and his jaw broken and injured to such an extent that a great portion of it had to be removed, leaving him seriously permanently disfigured about his face and head, and that he received other injuries that will be shown on the trial hereof.
“That your petitioner received a weekly wage amounting to $50 per week, and that under the act hereinabove referred to petitioner is entitled to receive 50 per cent, of this weekly wage for a period of 100 weeks, aggregating the sum of $2,500, and that in addition to said sum of $150, the amount allowed under said act for physicians’ and medical bills.”

Defendant failed to answer, for reasons stated on the brief, and there was judgment by default, which went beyond the scope of the petition, reading as follows:

“It is ordered, adjudged, and decreed that the plaintiff, R. O. Craver, do have and recover judgment against the defendant, George S. Gillespie, in the full sum of $130 being for total disability at $10 per week for 13 weeks from August 7, 1916, and .for the further sum of $150 for medical and hospital services and. for' medicine, due to injuries received by the plaintiff, and which was paid by the plaintiff, and in the further sum of $1,000 for permanent disfigurement of face and head payable at the rate of $10 per’week for 100 weeks, beginning January 19, 1917.”

The petition contains no allegation of total disability, and no claim was therein made therefor. No damages could therefore be allowed in the judgment for such total disability.

The evidence taken in proving up the default could not have the effect of enlarging the pleadings, because defendant was not present consenting thereto. Louisiana State Bank v. Senecal, 9 La. 225Lockett v. Toby, 10 La. Ann. 713.

As to the claim for serious permanent disfiguring about his face and head on August 7, 1916, there can be no compensation awarded, for the reason that the Employers’ Liability Act of 1914 contained no provision for such injury or accident.

In the act amending the act of 1914, No. 243 of 1916, p. 512, provision is made in section 8, paragraph 1, subsee. (d), where an “employee is seriously permanently disfigured about the face or head or where the usefulness of a member or any physical function is seriously permanently impaired,” and he may recover for such injury.

But, in the “Titles of Acts and Concurrent Joint Resolutions passed by the’ General Assembly of the State of Louisiana, at the Regular Session of 1916, with Date of TheliApproval and Publication,” it appears that Act 243 was approved July 6, 1916, and was published July 22,' 1916. As that act did not become a law outside of Baton Rouge until 20 days after its publication, it was not a law and had no effect on August 7. 1916, in Caddo parish when plaintiff suffered the injury complained of. Plaintiff, therefore, shows no cause of action under that act for the injury alleged to have been suffered by him.

This matter was very thoroughly considered and passed upon in Boyer v. Crescent Paper Box Factory, 143 La. 368, 78 South. 596. . We there say, in part:

“The act before it was amended (No. 20 of 1914) strictly provided for compensation for personal injuries suffered by the employee while in the performance of services arising out of and incidental to his employment, by compensating- him for loss of earning power alone the sole basis for compensation.
• “The amendment (of 1916) may include the personal injury to plaintiff, but it was adopted subsequent to the time of the accident, and it is therefore without application here. The injury to Effie Boyer may have caused the adoption of the amendment.
“The original act provides compensation for ‘every injury producing temporary total disability to do work of any reasonable character,’ for ‘injuries producing temporary partial disability,’ and for ‘every injury producing permanent partial disability,’ in section 8. We repeat that only those personal injuries resulting in disability ‘to do work of any reasonable character’ are covered by the act. And those disabilities are enumerated, such as the loss of a thumb, finger, arm, etc., which may disable an employee to do work; in other words, those injuries which impair the earning power of the employee.”

Plaintiff does not complain of any injury enumerated in the act of 1914, and lie cannot recover compensation thereunder. His claim is made' under the act of 1916; but he cannot recover thereunder, because that act was. not a law in Caddo parish when he suffered his injury.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of Mrs. Ida Gillespie, dative testamentary executrix, substituted defendant, rejecting plaintiff’s demand, at his costs.

O’NIELL, J., concurs in the decree.  