SUPREME COURT OF LOUISIANA. SUMMERS VS. WOODWARD, WIGHT & CO., LTD. (No. 22441.)* WORKMEN'S COMPENSATION-RIGHT TO COMPENSATION. Where an employer pays the wages of an injured employee in full for a number of weeks, and subsequently in part, and, holding a policy of insurance, taken out with the express reference to the Burke-Roberts Employers' Liability Act obtains receipts showing such payments as for wages to which the employee was entitled under the Workmen's Compensation Act, upon which it obtains reimbursement from the insurance company, the question whether the injury of the employee entitles him to compensation under the act will be regarded as eliminated. Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge. Proceeding by Mrs. Eulah H. Summers under the Workmen's Compensation Act to obtain compensation for personal injury, opposed by Woodward, Wight & Co.. Limited, employer. Compensation awarded, and defendant appeals. Affirmed. Edward Rightor and Eugie V. Parham, both of New Orleans, for Appellant. Suthon & Suthon, of New Orleans, for Appellee. Statement of the Case. MONROE, C. J. Plaintiff, 32 years of age, was employed by defendant, in June, 1915, under the written contract which was silent in regard to the "Burke-Roberts Employer's Liability Act," and in November, following, whilst engaged in the duties of her position, she had occasion to go to the ladies' dressing room, where she accidentally fell upon the floor and sustained a Colle's fracture of her left wrist, which fracture, after some temporary attention, was "reduced" (or thought to have been reduced) at one of the infirmaries, and the wrist incased in a plaster cast, where it remained for some three weeks. After the removal of the cast, and up to the trial of the case, in December, 1916, plaintiff found herself disabled by reason of her injury to such an extent that she was unable to go on with her work or to find other work of a reasonable character; it having been discovered, in the meanwhile, that the fracture had been imperfectly reduced, leaving a visible deformity, resulting from displacement of one end of the fractured bone. She was advised that there were two courses open to her, to wit: A surgical operation, consisting of * Decision rendered. June 30, 1917. Rehearing denied, Oct. 29, 1917. 76 S. W. Rep. 674. Syllabus by the Court. a cutting in to the fracture, chiseling the fragments of the bone apart, and replacing them, so as to obtain a more accurate reduction-a course which would require several months, and the result of which could not be guaranteed; or, as temporary measure, hot air bathing, or baking, friction, rest, and time, which might at least diminish the disability, and, if not too long persisted in, would not interfere with the surgical operation as the last resort. She was advised to try the last-mentioned measure before resorting to the other. She was also advised, by another surgeon to be treated by electricity, and she took that advice, with no resulting benefit. She brought this suit under the Burke-Roberts Employers' Liability Act, claiming, as for temporary total disability, her average weekly wage for 300 weeks, less a credit for certain payments received prior to the institution of the suit. In regard to those payments, it appears that defendant, for a while, paid her full salary and took receipts "on receipts "on account of salary"; that it then took up with the Employers' Liability Insurance Company, whose policy it held, the question of its reimbursement, and was requested to obtain vouchers showing that plaintiff's injuries were within the terms of the BurkeRoberts Act; and that it thereupon obtained other receipts from plaintiff, covering amounts for which she had already receipted, and also, perhaps, some subsequent payments, and which read:* * for that portion of my weekly wages **to which I am entitled under the Louisiana Workmen's Compensation Act." * "Received Defendant's Secretary testifies that he told plaintiff that she was waiving no rights in signing the receipts, and further as fol lows: "Now, my recollection is that we took the matter up with the insurance company, at that time, to see what position they were going to take with respect to protecting us, and, as a result of taking it up with them well, this $180 receipt, on their form, is the result of taking it up with them. They agreed to reimburse us to that extent which is the equivalent of one-half weekly wages for a period of six months; and, that being the case, * * * we took this * * * Q. gregate, was date on receipt from Mrs. Summers in reimbursement. Now, Mr. Rogers, this amount of $180, in the agPaid to Mrs. Summers some months prior to the which she would have been entitled to receive that aggregate amount? A. Yes, sir. Q. Under the Workmen's Compensation Act? A. Yes, sir; several months before. Q. Now, When were you-was your company, Woodward, Mr. Rogers, Wight & Co.--reimbursed for that amount? A. Some time in June, is my recollection. On cross-examination:"Q. This receipt * * * * * for $180 covers, as I understand the matter, all prior receipts, for less amounts, that Mrs. Sum mers had given Woodward, Wight Co.? A. Yes, sir; that is correct." It is shown that defendant has a large establishment, in which it conducts a wholesale supplies and machinery business, and in that connection operates a steam boiler, for heating purposes, electric elevators, and pipe-cutting devices (though the latter are not in the building in which plaintiff worked), machine shop (across the street from the main building), etc. It is shown, also, that in the policy of insurance held by defendant the insurer agrees to "pay the compensation, and to furnish or cause to be furnished the medical, surgical, and hospital services and medicines provided for by Act No. 20 of * * * 1914 (Burke-Roberts Employers' Liability Act) on behalf of the assured, to any person or person to whom such compensation shall become due for or on account of personal injuries, including death, resulting at any time therefrom, received or suffered by any employee or employees of the assured, or a contractor or subcontractor, as provided by section 6 of said act, within the period of this policy," etc. (the amount taken out upon office employees being $70,000). Opinion. The judge a quo says, in his well-considered opinion:— "This testimony [plaintiff's], the appearance of her arm and wrist, her treatment at the infirmary, her long confinement, and all the circumstances shown convince me that this is a case of permanent disability." And he awarded plaintiff $7.50 per week for 300 weeks, subject to certain credits, with leave to defendant to move for a modification of the judgment in case her disability should be removed. Our learned brother also states that he does not see how defendant's admissions, that plaintiff's injuries bring her within the Burke-Roberts Act, could be made any stronger, and we, too, are of that opinion. It had taken out employers' liability insurance with express reference to that act, which declares that all contracts of employment in the business mentioned in paragraph 2 of its section 1 shall be presumed to have been made subject to its provisions; defendant's business is one of those so mentioned; its contracts with plaintiff contain nothing which negatives that presumption; and whether the establishment of the presumption, by the act, is authorized or not, it is a legitimate and natural presumption from the fact that defendant employs between 200 and 300 persons, took out the policy to which we have referred, made payments to plaintiff, the reimbursement of which from the insurance company it obtained upon vouchers which plaintiff furnished upon its request, and in which it is stated that the payments were made as part of the wages to which plaintiff was entitled under "The Louisiana Workmen's Compensation Act," which must refer to the Burke-Roberts Act, mentioned by name in the policy, since there is no act bearing the title as given in the receipts. We therefore conclude that the question, whether plaintiff's injury falls within the act, is eliminated by defendant's conduct and admissions. The evidence shows that, in consequence of her injuries, defendant is, as yet, unable to do work of any reasonable character, and hence that she is entitled to compensation, as provided by “section 8 (a)” of the act, at a rate equal to one-half her average wage during a maximum of 300 weeks, subject to a shortening of the period in the event that her condition should improve; and, the judgment appealed from having been rendered upon that basis, it is Affirmed. SUPREME JUDICIAL COURT OF MASSACHUSETTS. IN RE MURPHY IN 1. WORKMEN'S COMPENSATION—CLAIM DECEDENT WHO LEFT CHILD. OF SISTER OF Deceased having left a minor daughter, his sister, claimant for compensation is not his next of kin and can have no claim, unless she member of his family, partly dependent for support upon his was a earnings at the time of his death. 2. WORKMEN'S COMPENSATION "FAMILY" COMPOSED OF DECEDENT'S SISTER AND HER SON. Deceased employee's sister and her minor son, who lived with the deceased employee in a house formerly owned by the mother of brother and sister, who had died intestate, constituted a family within the meaning of the act. 3. WORKMEN'S COMPENSATION PLOYEE AS HEAD OF FAMILY. ACT DECEASED EM Though deceased employee, his sister, and her minor son, lived together in a house formerly owned by the mother, who had died intestate, the sister and her son constituting a faimly and though decedent's weekly payments contributed to the support of the household whenever he could obtain employment, and though he purchased some incidental household furnishings and supplies, as well as cultivated the garden, he was not the head of family of which his sister and her son were members. Appeal from Industrial Accident Board. of Jeremiah Mahoney by Mrs. Agnes M. Murphy, his sister, and Proceedings under the Workmen's Compensation Act for the death Geraldine Winifred Mahoney, his minor daughter, opposed by the Biddle & Smart Company, the employer, and the London Guarantee Decision rendered, Nov. 27, 1917. 117 N. E. Rep. 794. * & Accident Company, Limited, the insurer. Compensation was awarded the claimant sister, the award confirmed by the superior court, and from the decree the insurer appeals. Decree reversed, and decree for the insurer ordered to be entered. Before the committee of arbitration Mrs. Murphy testified that she was the sister of Jeremiah Mahoney; that her mother died around Thanksgiving, 1912; that at the time of her mother's death, she, the witness, was living with her mother and her brother Jeremiah; that she is a widow and has one child, a son, age 15 years, who attends the high school; that her mother was sick for a year and a half previous to her death, and she had to take care of her; that she used to go out in the morning for a few hours doing house cleaning, washing, and ironing, and she earned on an average about $3 or $3.50 a week; that she gave what she earned toward running the house; that her mother owned the house: that her mother did not leave a will; that while her mother was living her brother Jeremiah paid a certain sum to her each week; that her mother ran the house and she, the witness, could not tell exactly what her brother paid her mother, but he gave her some money every week; that five children survived her mother and a deceased brother's wife and child; that she inherited one-sixth of the house, and she has been living there since her mother's death; that she never received any deed from the others; that her brothers' wives want to have the house sold in order to get their share; that she has not as yet paid any rent at that place, and she has been living there since the death of her mother; that she supported herself after her mother's death by going out working, and her brother Jeremiah gave her $5 every week he worked; that if he did not work a full week he would give her what he could and make up the deficiency the next week; that nothing was ever said about board by either her or her brother; that besides paying her the $5 a week he bought her son shoes and stockings and bought her a new stove; that he did work around the house when he was not working, such as tearing down an old barn, chopping up the wood from it, which saved her from buying wood, and dug up the rocks which he sold; that he also bought her wood and coke and articles of food; that as far as she knew, he always seemed anxious to find work; that a year ago this winter he went to work in Newton on the ice and gave her $5 each week while working there; that last winter there was very little work to be obtained in Amesbury, and a great many people could not get work; that her brother was working in Biddle & Smart Company about two months before the injury; that he had worked steadily during that time and had given her $5 a week, besides buying other things; that he also dug up the vegetable garden and attended to the raising of the vegetables; that he gave her son spending money; that her son gave her this money, and she bought food for it; that she considered she was partially dependent upon her brother for support; that she has not been able to get along as well since her brother's death; that at the present time she earns on an average about $2 a week; that she cannot support herself on this amount; that when her brother died he was probably two or three months behind in paying her the weekly amount of $5, as during the winter he did not work steadily and he owed some money, so that he did not get a chance to make it up; that her brother lived at the house 3 or 4 years before he died; that the bills of the last sickness and burial have not been paid. H. S. Avery, of Boston, for Appellant. Martin F Connolly of Amesbury, for Claimant Sister. BRALEY, J. [1-3] We are of opinion that the decree for the claimant must |