Opinion
No. 32918.
January 31, 1938. Suggestion of Error Overruled March 14, 1938.
WORKMEN'S COMPENSATION.
A bill to recover compensation under Louisiana Employers' Liability Act must be dismissed, where respondents denied and complainant did not prove that demand was made on employer for compensation (Act No. 20 of La. 1914, as amended; Act No. 85 of La. 1926, p. 121, section 18, subd. 1 (B)).
APPEAL from the chancery court of Amite county. HON. R.W. CUTRER, Chancellor.
Roach Jones, of McComb, and C.T. Gordon, of Liberty, for appellants.
At the time of the attempted service on G.J. Bienvenu for the Box Company, the Box Company was not doing business in this state. It is absolutely uncontradicted in this record that at the time of the attempted service on G.J. Bienvenu for the Box Company that the Box Company was not doing business in the State of Mississippi in any form, shape or fashion. Section 4166 of the Code of 1930 provides as follows: "Any corporation claiming existence under the laws of any other state or of any other country foreign to the United States, found doing business in this state, shall be subject to suit here to the same extent that corporations of this state are, whether the cause of action accrued in this state or not."
Arnett v. Carol C. and Fred R. Smith, 145 So. 638, 165 Miss. 53; Fireman's Fund Ins. Co. v. Cole, 152 So. 872, 169 Miss. 634; First National Bank v. Miss. Cottonseed Products Co., 157 So. 349, 171 Miss. 282; Section 4166, Code of 1930.
We say that the motion of the Box Company to dismiss and quash the process should have been sustained for the reason that at the time the service was attempted to be had on Bienvenu for the Box Company he was present in the State of Mississippi for the purpose of testifying for the Casualty Company on the trial of this case; the said Bienvenu having come into this state from the State of Louisiana in response to a request from the Casualty Company that he come to Mississippi and testify in its behalf and in response to a subpoena delivered to him through the United States mail commanding him to appear in this state and testify in behalf of the Box Company, and compulsory process, by way of a subpoena, having been served upon him immediately upon his arrival within the county where this case was pending for trial.
Arnett v. Carol C. and Fred R. Smith, 145 So. 638, 165 Miss. 53.
We submit, and submit earnestly, that the appellee is not entitled to recover in this case because she has failed to comply with one of the conditions precedent to her right of so doing. Paragraph B of Section 18 of the Workmen's Compensation Act of Louisiana provides that an injured employee must allege and prove a demand upon his employer for compensation before he is entitled to recover under the act.
Travelers' Ins. Co. v. Inman, 147 So. 663, 167 Miss. 288.
Hathorn Williams, of Poplarville, and F.D. Hewitt, of McComb, for appellee.
Paragraph B of Section 18 of the Louisiana Workmen's Compensation Act reads as follows: "Unless in the verified complaint above referred to it is alleged (where the complaint is filed by the employee or his dependents) that the employee or the dependent is not being or has not been paid, and that the employer has refused to pay, the maximum per centum of wages to which petitioner is entitled under the provisions of this act, the presentation of filing of such complaint shall be premature and shall be dismissed; when such allegation is contained in such complaint and is denied by the employer at the time fixed for the hearing thereunder by the court, if it be shown that such allegations are without reasonable cause or reasonable foundation in fact, said complaint shall be dismissed; and the question of whether or not such allegation of non-payment is justified under the facts shall be determined by the court before proceeding with the hearing of the other issues involved."
Appellee's bill of complaint alleged: "There has not been a compensation allowance of the sum of $7.15 per week made to complainant by defendants, or either of them. . . . That by reason of this existing controversy and the failure and refusal of the defendants to recognize the liability to which the complaint is entitled, said defendants have refused to make said weekly payments of $7.15 to complainant, . . . and said defendants are now denying or contesting their liability to complainant."
The answer of both the United States Casualty Company and the Box Company admit that there had been no compensation allowance to appellee by appellants. There is no denial in either the answer of the United States Casualty Company or the Box Company of the allegation by appellee contained in her bill of complaint that "said defendants have refused to make said weekly payments of $7.15 to complainant, . . . and said defendants are now denying or contesting their liability to complainant."
Counsel for appellants admit that on questions of practice and procedure in compensation cases the law of the forum governs. This court has so held in the case of Dunn Construction Company v. Bourn, 159 So. 841. With both sides agreeing that the law of the forum in the matters of practice and procedure herein controls, we now call the attention of the court to the fact that it is the law of this state that when allegations are made in a bill of complaint and not denied by the answer, they must be taken as true.
Hickory Inv. Co. v. Wright Lbr. Co., 152 Miss. 825, 119 So. 308; Hopper v. Overstreet, 79 Miss. 241, 30 So. 637; Hinton v. Mills, 120 Miss. 388, 82 So. 264; Meade v. Day, 54 Miss. 58.
It, therefore, appears that appellants expressly admitted that there had been no compensation paid to appellee. It also appears that appellants, by failing to deny the allegation in the bill that they had refused to pay appellee compensation, impliedly admitted the truth thereof, and thereby relieved appellee of the burden of proving said allegation. It also appears that appellants impliedly admitted the allegation in the bill of complaint that they were denying liability to appellee at the time the suit was filed by failing to deny this allegation, and thereby relieved appellee of the burden of proving said allegation.
It further appears that these allegations by appellee and the admission thereof by appellants is a literal compliance with paragraph B of Section 18 of the Louisiana Workmen's Compensation Act.
Appellants could have denied these allegations of non-payment and refusal, and the allegations that said defendants were denying or contesting their liability to complainant, and thereby put appellee to the proof thereof, in advance of the hearing on the merits. Appellants did not choose to do this, but instead thereof expressly admitted the allegations of non-payment and impliedly admitted a refusal to pay by failing to deny the allegation that they had refused to make said weekly payments. These admissions by appellants and their appearance in defense of the case generally on the merits, constituted a waiver of the requirements of paragraph B of Section 18 of said Act.
M. O.R.R. Co. v. Swain, 145 So. 627, 164 Miss. 823; Wagner v. Wooley, 152 N.E. 856, 85 Ind. App. 259.
In the Wagner case, which was a compensation case, the employer answered appellee's claim for compensation and denied liability for the injuries and resisted the claim at the hearing on the ground of non-liability, and the Indiana Supreme Court held that the denial of liability met the requirements of the Indiana Workmen's Compensation Act with regard to the requirement that there must be a failure to agree before suit could be filed.
Clegg v. Johnson, 143 So. 848, 164 Miss. 198; Ins. Co. v. Nero, 66 So. 780, 108 So. 321; Ins. Co. v. Jemison, 120 So. 836, 153 Miss. 60.
Appellee waited from March 4, 1934, to January 19, 1935, the date on which she filed her suit for a reply to her demand on the Box Company for compensation. Receiving none, she filed her suit. This was a long delay, and failure of appellants to pay appellee compensation, after said demand and after they knew of her injury and after they had assisted her in getting money under the group insurance policy for said injury, was such conduct on the part of appellants as to amount to a refusal to pay compensation.
Clark v. Forrest Lbr. Co., 120 So. 88.
We are frank to concede that after reading carefully the case of Arnett v. Smith, 145 So. 638, 165 Miss. 53, and the case of Fireman's Fund Ins. Co. v. Cole, 152 So. 872, 69 Miss. 634, and the case of Bank v. Mississippi Cottonseed Products Co., 157 So. 349, 71 Miss. 282, we have reached the conclusion that the chancellor erred in overruling the motion to quash the process and dismiss the suit as to the New Orleans Corrugated Box Company, Inc., and that this court should now enter an order here quashing the process and dismissing the suit as to said Box Company.
In view of the fact, however, the Louisiana Workmen's Compensation Act expressly provides that the employer is not a necessary party to an action for compensation, but that the insurance carrier may be sued directly and individually on its primary obligation, and in view of the fact that both the Louisiana court and this court have construed this provision of the Louisiana Workmen's Compensation Act and held that the insurance carrier may be sued directly and individually on its primary obligation, without suing the employer (see Wyatt v. Finley, 167 La. 161, 118 So. 874, and Travelers Ins. Co. v. Inman, 128 So. 877), the case should be affirmed as to the United States Casualty Company, the insurance carrier, which was sued herein jointly with the Box Company.
Argued orally by Gordon Roach and Bert Jones, for appellant, and by F.C. Hathorn, for appellee.
In the chancery court the appellee recovered a decree against the United States Casualty Company, as surety, and the New Orleans Corrugated Box Company, Inc., as principal, under the Louisiana Employers' Liability Act, Act No. 20 of La. 1914, as amended. Both corporations have appealed to this court.
As to the New Orleans Corrugated Box Company, Inc., it is conceded that the court below erred in retaining jurisdiction of it as being suable in Mississippi, under the circumstances clearly developed in the record. The court below should have dismissed the cause, and erred in not doing so, under the authority of Arnett v. Smith, Inc., 165 Miss. 53, 145 So. 638; Fireman's Fund Ins. Co. v. Cole, 169 Miss. 634, 152 So. 872; First Nat. Bank v. Mississippi Cottonseed Products Co., 171 Miss. 282, 157 So. 349.
Likewise, the bill will of necessity have to be dismissed by this court as to the United States Casualty Company et al. under Louisiana Act No. 20, Laws of 1914, as amended by Louisiana Act No. 85, Laws of 1926, p. 121, section 18, subd. 1, par. (B) thereof.
The appellee did not prove that a demand was made upon the employer for compensation in his behalf; on the contrary, the record clearly shows that no such demand was made for the compensation here sued for. If it be conceded that appellee, in her bill of complaint, alleged that she had made demand for such compensation, it is clear, and beyond argument, that the appellants denied such allegation, and affirmatively asserted that no demand had been made for compensation under the act. The bill, for this reason, must be dismissed. We so held in Travelers' Ins. Co. v. Inman, 147 So. 663, citing in support of our opinion Chafin v. Meridian Lumber Co., 12 La. App. 73, 125 So. 483. We there held that a demand for, and refusal to pay, compensation under the statute was a condition precedent to the maintenance of the suit.
Reversed and bill dismissed.