Opinion
No. 40703.
March 17, 1958.
1. Workmen's compensation — death benefits denied — deceased — an independent contractor — not an employee of lumber company.
Denial of compensation for death of one killed on lumber company's premises while unloading logs from truck, on ground that deceased was an independent contractor and not an employee of lumber company, was supported by substantial evidence. Sec. 6998-01 et seq., Code 1942.
2. Workmen's compensation — Commission's refusal to reopen for introduction of further evidence — discretionary.
Commission's refusal to reopen compensation proceedings for introduction of further evidence was discretionary.
Headnotes as approved by Holmes, J.
APPEAL from the Circuit Court of Clarke County; WM. J. GUNN, JR., J.
J.P. Abston, Meridian, for appellant.
I. Claimant's husband, Claude Ainsworth, deceased, was an employee of defendant Long-Bell Lumber Company within the meaning of the Mississippi Workmen's Compensation Act, and his death arose out of and in the course of his employment. Laurel Daily Leader, Inc. v. James, 224 Miss. 654, 80 So.2d 770; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Sones v. Southern Lbr. Co., 215 Miss. 148, 60 So.2d 582; Marter v. Cathey-Williford-Jones, 225 Miss. 118, 82 So.2d 724; Wade v. Traxler Gravel Co., 232 Miss. 592, 100 So.2d 103; Shannon v. Western Indemnity Co. (Tex.), 257 S.W. 522; Carr v. Crabtree, 212 Miss. 656, 55 So.2d 408; Bardwell's Estate v. Perry Timber Co., 222 Miss. 854, 77 So.2d 708.
II. The Mississippi Workmen's Compensation Commission erred and abused its discretion in failing and refusing to permit appellant to introduce evidence sought to be introduced before the Commission hearing upon the earnings and manner of payment of appellant's deceased husband by the appellee, and the Circuit Court erred in not reversing the Commission for this highly prejudicial error.
Watkins Eager, Shelby Rogers, Jackson, for appellees.
I. The appellant has the burden of proving facts to merit recovery under the Workmen's Compensation Act, and this Court has consistently stated that it will be bound by and is not warranted in disturbing findings of the Commission and Trial Judge when they are supported by substantial evidence. Bardwell's Estate v. Perry Timber Co., 222 Miss. 854, 77 So.2d 708; Barry v. Sanders Co., 211 Miss. 656, 52 So.2d 493; California Eastern Airways, Inc. v. Neal, 228 Miss. 370, 87 So.2d 895; Deemer Lbr. Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634; Fischer v. Gloster Lbr. Co. (Miss.), 57 So.2d 871; Ingalls Shipbuilding Corp. v. Howell, 221 Miss. 824, 74 So.2d 863; Majure v. Alsup, 216 Miss. 607, 63 So.2d 113; Malley v. Over The Top, 229 Miss. 347, 90 So.2d 678; T.H. Mastin Co. v. Mangum, 215 Miss. 454, 61 So.2d 298; Mississippi Products, Inc. v. Gordy, 224 Miss. 690, 80 So.2d 793; Oatis v. Williamson Williamson Lbr. Co., 230 Miss. 270, 92 So.2d 557; Smith v. St. Catherine Gravel Co., 220 Miss. 462, 71 So.2d 221; Sones v. Southern Lbr. Co., 215 Miss. 148, 60 So.2d 582; Southern Eng. Electric Co. v. Chester, 226 Miss. 136, 83 So.2d 811; Stovall's Estate v. A. DeWeese Lbr. Co., 223 Miss. 833, 77 So.2d 291; Thornton v. Magnolia Textiles, Inc. (Miss.),
55 So.2d 172; Wallace v. Copiah County Lbr. Co., 223 Miss. 90, 77 So.2d 316.
II. The evidence overwhelmingly and conclusively meets all the legal tests set forth by the decision of this Court to fully qualify Claude Ainsworth as an independent contractor. Bardwell's Estate v. Perry Timber Co., supra; Crosby Lbr. Co. v. Durham, 181 Miss. 559, 179 So. 285; Kughn v. Rex Drilling Co., 217 Miss. 434, 64 So.2d 582; Simmons v. Cathey-Williford-Jones Lbr. Co., 220 Miss. 389, 70 So.2d 847; Stovall's Estate v. A. DeWeese Lbr. Co., supra; Tranum v. Mitchell Engineering Co., 223 Miss. 221, 78 So.2d 111; Vol. I, Larson's Workmen's Comp. Law, Sec. 43.30 p. 627.
III. The Commission exercised sound discretion in not reopening said cause for introduction of obvious incompetent and immaterial evidence, and which evidence was available to the appellant at the original hearing, and further which testimony was not necessary for the proper decision in this cause. Dixie Pine Products Co. v. Dependents of Bryant, 228 Miss. 595, 89 So.2d 589; Ingalls Shipbuilding Corp. v. King, 229 Miss. 871, 92 So.2d 196; Thompson v. Armstrong Cork Co., 230 Miss. 730, 93 So.2d 831; West's Estate v. Southern Bell Tel. Tel. Co., 228 Miss. 890, 90 So.2d 1.
Claude Ainsworth was killed on October 11, 1955, on the premises of Long-Bell Lumber Company in Clarke County when a log fell on him while he was unloading logs from a truck. A claim for death benefits under the Mississippi Workmen's Compensation Act was filed on behalf of the widow and minor child of the deceased against Long-Bell Lumber Company and its insurance carrier, Fidelity and Casualty Company of New York. The claim was predicated upon the ground that at the time of the death of the deceased he was an employee of Long-Bell Lumber Company and that his death arose out of and in the course of his employment.
The attorney-referee heard the claim and denied it, finding from the evidence that at the time of the death of the deceased he was an independent contractor and not an employee of Long-Bell Lumber Company within the contemplation of the Mississippi Workmen's Compensation Act. This action of the attorney-referee was affirmed by the Commission and by the circuit court. Hence this appeal is prosecuted on behalf of the claimants.
(Hn 1) It is here contended on behalf of the claimants that there is not substantial evidence to support the findings and orders of the attorney-referee and the Commission. The facts in this case in all material respects are similar to the facts in the case of Stovall's Estate v. A. Deweese Lumber Company, 222 Miss. 833, 77 So.2d 291, and under the principles there enunciated, we are compelled to reject as unsound the aforesaid contention of the claimants.
(Hn 2) It is further contended on behalf of the claimants that the Commission erred in refusing to reopen the case for the introduction of further evidence. This was a matter within the discretion of the Commission under its Procedural Rule No. 7, and the record, in our opinion, discloses no abuse of such discretion.
We are accordingly of the opinion that the judgment of the court below should be and it is affirmed.
Affirmed.
McGehee, C.J., and Lee, Arrington and Ethridge, JJ., concur.