
    Riley MORRIS v. Bolivar KEMP D/B/A Kemra Lumber Company, Lloyds of London.
    No. 4770.
    Court of Appeal of Louisiana. First Circuit.
    March 23, 1959.
    Rehearing Denied April 27, 1959.
    
      Edgar Corey, New Orleans, Iddo Pittman, Jr., Hammond, for appellant.
    Sidney W. Provensal, Jr., New Orleans, for appellees.
    Before LOTTINGER, TATE and FRUGÉ, JJ.
   LOTTINGER, Judge.

This is a workmen’s compensation proceeding wherein the plaintiff seeks benefits for total and permanent disability arising out of an accident which occurred May 12, 1957. While the petition does not recite the claimant’s rate of pay, it avers that he is entitled to compensation at the rate of $31.20 per week for 400 weeks beginning May 15, 1957, less compensation paid at the rate of $26 per week for a period of 26 weeks.

The defendants filed an exception of prematurity based on two contentions, namely, that the $26 per week payments which they had paid and were presently paying were in the correct amount and, secondly, that plaintiff had failed to notify defendants of any incorrectness in the amount of the payments.

The exception was maintained by the trial court and the matter is before us on an appeal taken by the plaintiff.

The plaintiff testified that he was paid on an hourly basis at the rate of $1 per hour. He admitted, however, that he received $40 per week, and never more or less than that amount, although on occasion he worked more than forty hours at defendant’s mill.

Mrs. Lois Jones, bookkeeper for the defendant Mr. Bolivar Kemp, testified that plaintiff was paid a straight salary of $40 per week and never more or less. She testified further that she worked at the mill, knew plaintiff and was familiar with his duties and that in the months previous to his injury he did not work a full forty hour week for Kemra Lumber Company.

From the above and foregoing we are convinced that plaintiff was paid at a weekly rate of $40 regardless of how many actual hours he worked at the mill, and, therefore, that the compensation payments in the amount of $26 being 65% thereof, were correct. The trial judge so held and there is certainly no error in his findings.

Judgment affirmed.

ELLIS, J., recused.  