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Tanner v. American Hwd. Corp.

Supreme Court of Mississippi
Apr 11, 1960
119 So. 2d 380 (Miss. 1960)

Opinion

No. 41477.

April 11, 1960.

1. Workmen's compensation — scope of employment — evidence — sustained finding that night watchman had not sustained fall nor suffered injury in course of his employment.

In workmen's compensation proceeding by night watchman who was suffering from ileo-femoral venous thrombosis of the left leg or thrombo-phlebitis (varicose veins), evidence sustained finding that night watchman had not suffered a fall and had not sustained an injury arising out of and in the course of his employment. Secs. 6998-01 et seq., Code 1942.

Headnote as approved by McGehee, C.J.

APPEAL from the Circuit Court of Coahoma County; E.H. GREEN, Judge.

Brewer, Brewer Luckett, Clarksdale; Pyles Tucker, Jackson, for appellant.

I. The commission erred in arbitrarily disregarding the evidence of the appellant and denying compensation on the ground that no accidental injury in fact occurred. Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 53 So.2d 69; National Surety Co. v. Kemp, 217 Miss. 537, 64 So.2d 723; Reyer v. Pearl River Tung Co., 219 Miss. 711, 68 So.2d 442; Ryals v. Douglas, 205 Miss. 695, 39 So.2d 811; Shivers v. Biloxi-Gulfport Daily Herald, 236 Miss. 303, 110 So.2d 359; Standard Oil Co. v. Henley, 199 Miss. 819, 25 So.2d 400; Yaoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50.

II. The Commission erred in failing to award compensation to appellant at the maximum rate for his disability resulting from an accidental injury which occurred in the course of and arose out of his employment. Central Electric Power Assn. v. Hicks, 236 Miss. 378, 110 So.2d 351.

III. The appellant is entitled to the penalties provided by law on the unpaid payments of compensation. Alexander Smith, Inc. v. Genette, 232 Miss. 102, 98 So.2d 445; Cumbest Mfg. Co. v. Pinckney, 225 Miss. 218, 83 So.2d 74; Dependents of Harris v. Suggs, 233 Miss. 533, 102 So.2d 696; Guess v. Southeastern Utilities Service Co., 216 Miss. 637, 85 So.2d 173; James F. O'Neil, Inc. v. Livings, 232 Miss. 118, 98 So.2d 148; Southern Engineering Elec. Co. v. Chester, 226 Miss. 136, 84 So.2d 535.

Watkins Eager, Jackson, for appellee.

I. The claimant failed to sustain his burden of proof that any accident occurred on the job resulting in his disability, and the finding of the Commission against claimant is supported by the overwhelming weight of the evidence to the effect that the disability beginning August 6 was not the result of the accident on the job described by appellant. Albert v. Doullut Ewin, 180 Miss. 626, 178 So. 312; Anderson v. Ingalls Shipbuilding Corp., 229 Miss. 670, 91 So.2d 756; Baker v. Building Loan Assn. of Jackson, 168 Miss. 808, 152 So. 288; California Eastern Airways v. Neal, 228 Miss. 370, 87 So.2d 895; Columbus G.R. Co. v. Lee, 149 Miss. 543, 115 So. 782; Druey v. Ingalls Shipbuilding Corp., 237 Miss. 277, 114 So.2d 772; Freeman v. Mississippi P. L. Co., 230 Miss. 396, 92 So.2d 658; Harris v. Bailey Ave. Park, 202 Miss. 776, 32 So.2d 689; Hazard v. Bank of Hickory Flat, 152 Miss. 191, 119 So. 173; Hill v. United Timber Lumber Co., 219 Miss. 388, 68 So.2d 420; Louisville N.R. Co. v. Whisenant, 214 Miss. 421, 58 So.2d 908; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 53 So.2d 69; Mississippi Products, Inc. v. Skipworth, 238 Miss. 312, 118 So.2d 345; New Orleans N.R. Co. v. Lewis, 214 Miss. 163, 58 So.2d 486; Rathborne, Hair Ridgeway Box Co. v. Green, 237 Miss. 588, 115 So.2d 674; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; Rials v. Douglas, 205 Miss. 695, 39 So.2d 311; Sampey v. So. Production Co. (La.), 74 So.2d 764; Shivers v. Biloxi-Gulfport Daily Herald, 236 Miss. 303, 110 So.2d 369; Simpson v. Alabama Dry Dock, etc. Co. (Ala.), 114 So.2d 918; Standard Oil Co. v. Henley, 199 Miss. 819, 25 So.2d 400; Sullivan v. C. S. Poultry Co., 234 Miss. 126, 105 So.2d 558; Thompson v. Armstrong Cork Co., 230 Miss. 730, 93 So.2d 831; Welborn v. Joe N. Miles Sons Lumber Co., 231 Miss. 827, 97 So.2d 734; Wilson Furniture Co. v. Wilson, 237 Miss. 512, 115 So.2d 141; Yazoo M.V.R. Co. v. Beasley, 158 Miss. 370, 130 So. 499; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; 100 C.J.S., Workmen's Compensation, p. 939; Dunn's Workmen's Comp. Law, Sec. 167.

II. Failure of appellant here to give notice of the alleged compensable injury when the accident occurred is an absolute bar to any compensation benefits. Port Gibson Veneer Box Co. v. Brown, 226 Miss. 127, 83 So.2d 757; Larson's Workmen's Comp. Law, Sec. 78.20 et seq.


This appeal is taken from an order of the attorney-referee, the full Commission, and the circuit court, denying compensation to the appellant, S.C. Tanner, under the Miss. Workmen's Compensation Law of 1948, as amended.

The claimant, S.C. Tanner, is approximately 65 years of age and claims to have had a fall and sustained an injury on the morning of June 26, 1957, arising out of and in the course of his employment as a night watchman at the place of business of his employer, the American Hardware Corporation, Clarksdale, Mississippi.

There were no witnesses to the accident, but the claimant testified that about 6:30 A.M. of June 26, 1957, while making his rounds and punching the clock he came to station 15 and slipped in some grease on the concrete floor and fell. The place where he says he fell was on a platform about 20 feet wide and about 100 feet in length behind the building, and the testimony is in conflict as to whether or not there was any grease on the floor where he fell. He testified that he was carrying the clock, and that when he fell on his left side and leg that he broke the clock, which was underneath the calf of his leg when he fell. He worked on until 8 o'clock that morning and then went home, reporting to his wife that he had sustained a fall by slipping and falling in grease, and she testified that he had grease on his pants and that his leg was swollen.

The claimant continued to work on his shift from 12 o'clock at night until 8 in the morning until the night of August 6, 1957, when he became disabled and his son carried him home. On the next day he made an appointment with Dr. Charles Neal in Jackson. Dr. Neal referred him to Dr. Jack V. King for treatment. Dr. King found that he was suffering from ileo-femoral venous thrombosis of the left leg or thrombo-phlebitis, which is explained to mean in layman's language as being varicose veins. He was treated by Dr. King at St. Dominics Hospital in Jackson for a period of two weeks and discharged, but was unable to return to his work.

Other employees, who did not see the accident on the morning of June 26, 1957, testified that upon their arrival for work they learned of the accident, one of them saying that he saw the grease on claimant's pants, and others saying that they saw him "limping" or "hobbling" during the period which ensued between June 26, 1957, and August 6, 1957.

Dr. King, as a witness for the claimant, testified that the claimant did not advise him that he had the fall until October 9, 1957, and it is undisputed that he did not report it to anyone in authority at the place of business of his employer, and that the first knowledge that they had that he claimed to have had the fall was when this proceeding was instituted before the Workmen's Compensation Commission. Dr. King testified that there could have been a causal connection between the fall and the condition that he found the claimant in when he came to see him on August 7, 1957; and he expressed that as being his opinion.

Dr. Rosenblatt of Jackson testified on direct examination that the malady that the claimant had when he saw him in 1958, if caused by a fall, would have been spontaneous. He was corroborated in this view by Dr. Crowson of Clarksdale. Dr. Rosenblatt waivered on cross-examination to the extent of conceding that if the claimant had really had the fall that there could be some causal connection between the fall and the illness from which he was suffering at the time he was seen by Dr. Rosenblatt in 1958, but both he and Dr. Crowson maintained that the varicose vein condition would have been spontaneous after the fall.

The man who followed the claimant as night watchman testified that there was nothing wrong with the clock when he began using the same, and the records of the company failed to disclose that any repairs had been made to the clock.

Again there was testimony that the only grease that was about the premises was that which was carried on the inside of the building in fifty gallon capacity drums, where the same were opened and the oil used for greasing machinery. The testimony of the witnesses for the employer tended to show that there was no grease on the platform.

But it is strenuously urged that since the oral testimony of the plaintiff in regard to his having sustained the fall in the course of and arising out of his employment on the morning of June 26, 1957, and that the testimony of his witnesses as to what he told them in regard to the matter is wholly uncontradicted, that the attorney-referee and the Commission had no right to arbitrarily reject this testimony. It is true that "evidence which is not contradicted by positive testimony or circumstances, and is not inherently improbable, incredible, or unreasonable, cannot be arbitrarily or capriciously discredited, disregarded, or rejected, even though the witness is a party or interested; and, unless shown to be untrustworthy, is to be taken as conclusive, and binding on the triers of fact * * *" (Emphasis supplied.) 32 C.J.S., Evidence, Section 1038, pp. 1089-1092. To the same effect are the decisions of Mobile, Jackson and Kansas City R.R. Company v. Jackson, 92 Miss. 517, 46 So. 142; Holmes v. Holmes, 154 Miss. 713, 123 So. 865; Lucedale Veneer Company v. Rogers, 211 Miss. 613, 48 So.2d 148, 53 So.2d 69; and Reyer v. Pearl River Tung Company, 219 Miss. 211, 68 So.2d 442.

The proof disclosed that there were signs placed in the building requesting the employees to notify their foreman in case of an injury sustained, however slight it may be. No notice was ever given to anyone in authority in regard to the alleged injury of June 26, 1957. The testimony showed, as aforesaid, that the first notice that those in authority had as to this accident was when the proceeding was commenced before the Workmen's Compensation Commission.

(Hn 1) We think that there were ample circumstances to make an issue for the triers of fact as to whether the testimony of the claimant and his witnesses should prevail over the circumstances hereinbefore referred to.

In other words, the attorney-referee, the full Commission, and the circuit court, denied liability on conflicting testimony, and we are of the opinion that the decision of the attorney-referee and the Commission, which was affirmed by the circuit court, was supported by substantial evidence, and that the same should therefore be affirmed.

Affirmed.

Lee, Kyle, Holmes and Ethridge, JJ., concur.


Summaries of

Tanner v. American Hwd. Corp.

Supreme Court of Mississippi
Apr 11, 1960
119 So. 2d 380 (Miss. 1960)
Case details for

Tanner v. American Hwd. Corp.

Case Details

Full title:TANNER v. AMERICAN HARDWARE CORPORATION, et al

Court:Supreme Court of Mississippi

Date published: Apr 11, 1960

Citations

119 So. 2d 380 (Miss. 1960)
119 So. 2d 380

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