Opinion
No. 41846.
May 8, 1961.
1. Workmen's compensation — Commission — a trier of fact.
The compensation commission is a trier of fact.
2. Workmen's compensation — Commission's findings — where supported by substantial evidence.
Where there was substantial evidence to sustain the finding of the compensation commission, the Circuit Court erred in reversing the Commission.
3. Workmen's compensation — widow living apart from employee in open adultery with another not entitled to compensation benefits.
Widow was not entitled to compensation where she was not living with the employee and had lived apart from him without justifiable cause for more than three years prior to his death by having lived in open adultery with another. Sec. 6998.02(14), Code 1942.
4. Workmen's compensation — attorney's fees.
Motion for attorney's fees was granted in the amount of 33-1/3% of the amount awarded.
Headnotes as approved by Jones, J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, J.
Cox Dunn, Harmon W. Broom, Jackson, for appellants.
I. The Workmen's Compensation Commission and not its attorney-referee is the trier of the facts. Fair Stores v. Bryant, 238 Miss. 434, 118 So.2d 295; Railway Express Agency, Inc. v. Hollingsworth, 221 Miss. 688, 74 So.2d 754.
II. This Court has in numerous cases affirmed the decision of the full Commission, although contrary to the findings of fact by its attorney-referee. Fair Stores v. Bryant, supra; Jackson Ready-Mix Concrete Co. v. Young, 236 Miss. 550, 111 So.2d 255; Lloyd Ford Co. v. Price, 240 Miss. 250, 126 So.2d 529; Thyer Mfg. Co. v. Keys, 235 Miss. 229, 108 So.2d 876.
III. The evidence supported the findings and decision of the Commission in case at bar, whereunder it was determined by a majority of the Commission after a review of the record, including the evidence and all of the reasonable inferences therefrom that Erner Sayles Curtis was disqualified as a "compensation widow" because she was separated from her husband in 1953 and had not lived with him for more than three years prior to his death and was not living apart for justifiable cause and was, in fact, living in the house with another man. Albee's Case, 128 Maine 126, 145 A. 742; Allen v. Westinghouse Electric Co. (Miss.), 118 So.2d 869; American Mutual Liability Ins. Co. v. Henderson, 141 F.2d 813; Anderson v. Ingalls Shipbuilding Corp., 229 Miss. 670, 91 So.2d 756; Anderson-Tully Co. v. Wilson, 221 Miss. 656, 74 So.2d 735; Bjorkstrand v. Klagstad, 262 Mich. 186, 247 N.W. 149; Broughey v. Mowry Grain Co., 61 R.I. 221, 200 A. 768; Central Electric Power Assn. v. Hicks, 236 Miss. 378, 110 So.2d 351; Cole v. Superior Coach Corp., 234 Miss. 287, 106 So.2d 71; Fondren v. Fortenberry Drilling Co., 233 Miss. 210, 101 So.2d 654; Freeman v. Mississippi P. L. Co., 230 Miss. 396, 92 So.2d 658; Henderson v. Avondale Marine Ways, Inc., 204 F.2d 178; In re Newman's Case, 222 Mass. 563, 111 N.E. 359, L.R.A. 1916C 1145; James F. O'Neil, Inc. v. Livings, 232 Miss. 118, 98 So.2d 148; Lawson v. Traxler Gravel Co., 229 Miss. 159, 90 So.2d 204; Malley v. Over the Top, Inc., 229 Miss. 347, 90 So.2d 678; Martilla v. Quincy Mining Co., 221 Mich. 525, 191 N.W. 193, 30 A.L.R. 1249; Mississippi Products Inc. v. Skipworth, 238 Miss. 312, 118 So.2d 345; Oatis v. Williamson Williamson Lumber Co., 230 Miss. 270, 92 So.2d 557; Passons v. State, 239 Miss. 629, 124 So.2d 847; Ryan Stevedoring Co. v. Henderson, 138 Fed. 2d 348; Southern R. Co. v. Cartwright, 64 App. D.C. 288, 77 F.2d 546; Stewart Co. v. Christmas, 224 Miss. 29, 79 So.2d 526; Sullivan v. C. S. Poultry Co., 234 Miss. 126, 195 So.2d 558; Tanner v. American Hardware Corp., 238 Miss. 612, 119 So.2d 380; Thomas v. Contractor's Material Co., Inc., 213 Miss. 672, 57 So.2d 494; Thompson v. Armstrong Cork Co., 230 Miss. 730, 92 So.2d 658; Veber v. Massachusetts Bonding Ins. Co., 224 Mass. 86, 112 N.E. 485; Watkins v. Taylor, 216 Miss. 822, 63 So.2d 225; Watson v. National Burial Assn., 234 Miss. 749, 107 So.2d 739; Weeks v. Behrend, 135 F.2d 258.
Morse Morse, Jackson, for appellees.
I. The Circuit Court was correct in overruling the two commissioners and in holding for the widow, Erner Curtis.
II. The Court was correct in ruling that the Commission was wrong as a matter of law.
III. The overwhelming evidence was that Dove and Erner Curtis were living together as husband and wife at the time of Dove's death.
IV. The appellants are estopped to question the fact that Erner Curtis was Dove's wife and widow, and entitled to the compensation.
Collation of authorities: Berman v. George J. Blair Co., 137 Pa. Super. 193, 8 A.2d 731; Central Electric Power Assn. v. Hicks, 236 Miss. 378, 110 So.2d 351; Federal Reserve Bank of St. Louis v. Wall, 138 Miss. 204, 103 So. 5; Franks v. Goyer Co., 234 Miss. 833, 108 So.2d 217; Gleason v. Gleason, 152 N.J. Misc. 197, 121 N.J. Eq. 251, 190 A. 82, 84; Great Southern Box Co., Inc. of Miss. v. Barrett, 231 Miss. 101, 94 So.2d 912; Griffin v. Griffin, 207 Miss. 500, 42 So.2d 720; Kearney v. Kearney, 178 Miss. 766, 174 So. 59; Love v. Moynehan, 16 Ill. 277, 63 Am. Dec. 606; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 48 So.2d 148, 53 So.2d 69; Mastin v. Mangum, 215 Miss. 459, 61 So.2d 298; Middleton v. Berlin, 18 Conn. 189; Miller v. Stence (Texas), 99 S.W.2d 397; Napier v. Napier, 187 Ky. 722, 220 S.W. 735; Ouzts v. Carroll, 190 Miss. 217, 199 So. 76; Planters Bank v. Garrott, 239 Miss. 248, 122 So.2d 256; Shettlee v. Smith, 41 N.Y. 328; Smith v. Smith, 361 Mo. 894, 237 S.W.2d 84; Spafford v. Spafford, 199 Ala. 300, 74 So. 354, L.R.A. 1917D 773; Stewart Co. v. Christmas, 224 Miss. 29, 79 So.2d 526; Van Syckel v. Van Syckel, 51 N.J. Eq. 194, 26 A. 156; 26 Am. Jur., Secs. 3 note 18, 4 note 20, 8, 18 pp. 633, 636, 645; 21 C.J.S., Sec. 116 p. 370; 31 C.J.S., Sec. 117 p. 378; 41 C.J.S. 400, 401, 410; 99 C.J.S. 456, 471, 472, 474, 476; 100 C.J.S., Secs. 401, 512(B), 599 pp. 184, 429, 853; Amis on Divorce and Separation in Mississippi, Sec. 91 p. 135; Bunkley Morse's Amis on Divorce and Separation in Mississippi, Secs. 1.02(6), 3.06 pp. 21, 67; 2 Schneider's Workmen's Compensation Text (2d ed.), Sec. 369 p. 1224.
This is a workmen's compensation case coming to this Court by way of the Circuit Court of the First Judicial District of Hinds County.
Lee Dove Curtis, while employed by Jackson Oil Products Company, Inc., in the City of Jackson, died on March 21, 1959, as a result of an injury arising out of and in the course of his employment. There was no question regarding compensability of the death, it being admitted that death benefits were and are payable under the Mississippi Workmen's Compensation Act. The sole question before the Commission was as to who was entitled to the compensation.
The sole question on this appeal is whether the widow of the decedent is entitled to compensation or whether she had lost her right to compensation by not living with the decedent and having lived apart from him without justifiable cause for more than three years prior to his death and by having lived in open adultery with another. Section 6998.02 (14), Miss. Code of 1942, as amended by Ch. 344, Laws of 1956.
The Workmen's Compensation Commission found against the widow and awarded benefits only to certain children and a grandchild. As stated, the only question here is as to the widow.
(Hn 1) It is settled that the Commission is the trier of fact. Fair Stores v. Bryant, 238 Miss. 434, 118 So.2d 295. There was much evidence pro and con and upon conflicting evidence the Commission, as stated, held that the widow was not entitled to compensation.
In the circuit court this order was reversed, the learned circuit judge holding that the widow was entitled to compensation.
(Hn 2) There was substantial evidence to sustain the finding of the Commission and the circuit court was in error in reversing the Commission. (Hn 3) We therefore reverse the case and reinstate the order entered by the Commission.
(Hn 4) The attorney for the dependents (save and except the widow) has filed a motion for attorney's fees in the amount of 33 1/3 per cent of the amount awarded his clients. This motion is sustained.
The case is remanded to the Commission for further proceedings in accordance herewith.
Reversed and Remanded.
McGehee, C.J., and Kyle, Gillespie and McElroy, JJ., concur.