Opinion
No. 38683.
January 18, 1954.
1. Workmen's Compensation — supersedeas bond — motion for cancellation of — sustained.
Where employer and his insurance carrier had paid all costs and statutory damages assessed against them on their failure to successfully prosecute their appeal from an award for claimants under Workmen's Compensation Act, and employer and insurance carrier were paying installments of compensation award, and claimants stipulated in writing their concurrence in motion of employer and insurance carrier to cancel supersedeas appeal bond insofar as surety thereon was concerned, Supreme Court would sustain such motion. Secs. 6998-01, et seq., Code 1942.
Headnote as approved by McGehee, C.J.
APPEAL from the circuit court of Clarke County; JESSE H. GRAHAM, J.
Satterfield, Ewing, Williams Shell, Jackson, for appellants.
I. The lower court erred in awarding compensation to Lige Taylor, Jr., and Annie Helen Taylor. Franklin Fluorspar Co. v. Bell, 247 Ky. 507, 57 S.W.2d 481; Hoover v. Central Iowa Fuel Co., 188 Iowa 943, 176 N.W. 945; Johnson Coffee Co. v. McDonald, 143 Tenn. 505, 226 S.W. 215, 217; Meyer v. Neilsen Chevrolet Co., 137 Neb. 6, 287 N.W. 849; O'Shell v. Cambria Coal Co. (Tenn.), 216 S.W.2d 331; Palmer v. Hamer, 133 Neb. 362, 275 N.W. 322; Roberts v. Whaley (Mich.), 158 N.W. 209; Utah Fuel Co. v. Industrial Comm. (Utah), 15 P.2d 297; Secs. 2(12), 9(c), 9(d), 9(g), Miss. Workmen's Comp. Act.
II. The lower court erred in awarding compensation to Retha Mae Taylor and was correct in refusing compensation to Jessie James Taylor.
III. The lower court erred in granting compensation to Lige Taylor, Jr., Annie Helen Taylor and Retha Mae Taylor on the basis of twenty-five per centum of the average weekly wage of the deceased. Secs. 2(14), 9(c), 9(d), Miss. Workmen's Comp. Act.
IV. The lower court was correct in holding that Teressa Jones Taylor was not the widow of Lige Taylor as such term is defined by the Mississippi Workmen's Compensation Act. Sec. 2(14), Miss. Workmen's Comp. Act.
Robert E. Covington, Jr., Quitman, for appellees.
I. The lower court was correct in finding that Lige Taylor, Jr., and Annie Helen Taylor were children of the deceased and awarding compensation unto them as such. Deemer Lumber Co. v. Hamilton, 211 Miss. 673, 53 So.2d 634; Secs. 2(12), 2(18), 9(g), Miss. Workmen's Comp. Act.
II. The lower court was correct in finding that Retha Mae Taylor was a child of the deceased and awarding compensation unto her as such and was in error in finding that Jesse James Taylor was not a child of the deceased and denying compensation unto him. Alabama By-Products Co. v. Landgraff (Ala.), 27 So.2d 209; Blackwell v. Wimberly (La.), 53 So.2d 814; Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 55 So.2d 381; Di Giorgio Fruit Corp. v. Pittman (Fla.), 49 So.2d 600.
III. The lower court, having found that there was no surviving wife entitled to compensation as the "widow" of the deceased, was correct in awarding compensation to his "children" on the basis of twenty-five per centum of his average weekly wage. Secs. 9(c), 9(d), 9(e), 9(g), Miss. Workmen's Comp. Act.
IV. The lower court erred in holding that Teressa Jones Taylor was not the "widow" of the deceased as such term is defined by the Workmen's Compensation Act. Sec. 2(14), Miss. Workmen's Comp. Act.
In the above styled cause there was involved an appeal with supersedeas from an award under the Workmen's Compensation Act wherein the Fidelity and Deposit Company of Maryland was surety on the surety appeal bond. The employer, Oliver Watkins, and his insurance carrier, American Mutual Liability Insurance Company, have paid all the costs and the statutory damages which were assessed against them upon their failure to successfully prosecute their appeal, and it is agreed that they were paying the installments of the award of compensation as and when the same have become due and payable since the affirmance of the case on March 9, 1953. The appellees, through their attorney of record, have stipulated in writing their concurrence in the motion to cancel the supersedeas appeal bond insofar as the Fidelity and Deposit Company of Maryland, as surety thereon, is concerned, but retaining however all rights against the appellants Oliver Watkins and the American Mutual Liability Insurance Company, the insurance carrier, in their individual capacities in the event default is made in payment of any of the future installments of the Workmen's Compensation benefits set forth in the judgment of award appealed from. The motion to cancel the supersedeas appeal bond is filed in order that the employer and its insurance carrier may be relieved of the payment of annual premiums to the Fidelity and Deposit Company of Maryland throughout the period that the future installments on the award are to become due and payable.
(Hn 1) We have concluded to sustain the motion in view of the fact that both the appellants and appellees have agreed thereto, but our decision sustaining this motion to cancel the supersedeas appeal bond is not to be taken as a precedent for cancelling such bonds upon the application of the principals named therein, and where the beneficiaries of such a supersedeas bond have not consented in writing thereto.
Motion sustained.
Hall, Lee, Holmes and Arrington, JJ., concur.