Opinion
No. 41354.
February 1, 1960.
1. Workmen's compensation — evidence — findings of attorney-referee and of Commission reinstated and judgment entered in favor of claimant.
Where there was substantial evidence supporting finding of attorney-referee and orders of Compensation Commission awarding compensation to claimant, judgment of Circuit Court reversing the attorney-referee and Commission would be reversed and findings of attorney-referee and of Commission would be reinstated and judgment entered in favor of claimant.
Headnote as approved by Hall, J.
APPEAL from the Circuit Court of Jones County; LUNSFORD CASEY, Judge.
Travis Moore, Jackson, for appellant.
I. The Circuit Court of Scott County erred in setting aside the award of compensation by the Commission; said award being based upon substantial and credible evidence.
II. The Court erred as a matter of law in finding the appellant to be an independent contractor.
Collation of authorities: Bardwell v. Perry Timber Co., 222 Miss. 854, 77 So.2d 708; Boyd Construction Co. v. Worthy, 234 Miss. 671, 107 So.2d 120; California Eastern Airways v. Neal, 228 Miss. 370, 87 So.2d 895; Carroll v. Laughlin Sons, 220 Miss. 485, 71 So.2d 433; Chambers v. Florida, 309 U.S. 227, 84 L.Ed. 716, 60 S.Ct. 472; Cole v. Superior Coach Corp., 234 Miss. 287, 106 So.2d 71; Dowdle Pearson, Inc. v. Hargrove, 222 Miss. 64, 75 So.2d 277; Freeman v. Mississippi P. L. Co., 230 Miss. 396, 92 So.2d 658; Wilson Furniture Co. v. Wilson, 237 Miss. 512, 115 So.2d 141; 1 A.L.I., Restatement of the Law (Agency), Sec. 2 p. 11; 56 C.J.S., Sec. 3(3) p. 49; Larson's Workmen's Compensation Law, Sec. 45.
Pierce Waller, Jackson, for appellee.
I. Cited and discussed the following authorities: Carr v. Crabtree, 212 Miss. 656, 55 So.2d 408; Crosby Lumber Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285, 854; Employers Ins. Co. v. Dean, 227 Miss. 501, 86 So.2d 307; Employment Security Comm. v. Plumbing Wholesale Co., 219 Miss. 724, 69 So.2d 814; Grubbs v. Revell Furniture Co., 234 Miss. 319, 106 So.2d 390; McDonald v. Hall-Neely Lumber Co., 165 Miss. 143, 147 So. 315; Williams v. Newberry, 32 Miss. 256.
This is a workmen's compensation case brought by William Carl Gaines against Hardy F. McCormick, doing business as McCormick Wholesale Company, for the recovery of benefits due him under the compensation law. The attorney-referee found in favor of the claimant and the full Compensation Commission affirmed the order of the attorney-referee. The appellee appealed to the circuit court and that court entered a judgment rejecting the claim and finding in favor of the appellee, stating in his order that the orders of the Commission affirming the attorney-referee's opinion are contrary to the law and facts and are manifestly wrong and against the great weight of evidence and should be reversed. From that order comes this appeal. (Hn 1) We have carefully considered the entire record, and we are of the opinion that there is substantial evidence supporting the finding of the attorney-referee and the orders of the Commission, and further that these findings and orders are not manifestly wrong and are not against the great weight of the evidence in this case. Not only is there substantial evidence supporting these orders and findings but we are of the opinion that the overwhelming weight of the evidence is in favor of the appellant and that the judgment of the circuit court reversing the attorney-referee and the Commission is against the great weight of the evidence and should be reversed. Accordingly the findings of the attorney-referee and of the Commission are hereby reinstated and judgment is here entered in favor of the claimant-appellant.
An attorney's fee of 33 1/3% of the amount of recovery is hereby awarded to the attorneys for the appellant, and the cause is hereby remanded to the Compensation Commission for such further proceedings as may be appropriate.
Reversed and judgment here and cause remanded to the Workmen's Compensation Commission.
McGee, C.J., and Holmes, Ethridge and Gillespie, JJ., concur.
MOTION FOR DAMAGES AND INTEREST, FOR ALLOWANCE OF ADDITIONAL ATTORNEYS' FEES, AND FOR ASSESSMENT OF COSTS.
The motion to assess the court costs in this case against the appellee is hereby overruled for the reason that the order of the court heretofore entered in this cause has already made the assessment for which the motion asks.
The motion for allowance of an additional attorneys' fee in the amount of 33 1/3% of the entire recovery in this Court is hereby overruled for the reason that the order of the Court heretofore entered in this cause made such allowance.
The motion for damages in the amount of 5% is hereby overruled for the reason that this is not a case for the assessment of such damages. The same motion for interest on the compensation due, beginning with the date of the order of the attorney-referee, is hereby overruled for the reason that the same has already been allowed by the order heretofore entered in this cause by this Court.
If the person who filed these motions had taken the trouble to inquire of the Clerk's Office, he would have found that the several items covered by said motions have already been taken care of in the orders heretofore entered by this Court. The motions filed are a useless waste of time and paper.
Motions overruled.
McGehee, C.J., and Lee, Ethridge and Gillespie, JJ., concur.