Brookhaven Steam Laundry v. Watts, 38055

• Decision Date: 09 June 1952
• Docket Number: No. 38055,38055
• Citation: 214 Miss. 569,59 So.2d 294
• Parties: BROOKHAVEN STEAM LAUNDRY et al. v. WATTS et al.
• Court: Mississippi Supreme Court

Page 294

59 So.2d 294

214 Miss. 569

BROOKHAVEN STEAM LAUNDRY et al. v. WATTS et al.

No. 38055.

Supreme Court of Mississippi.

June 9, 1952.

Butler, Snow & O'Mara, Jackson, for appellant.

Cohn, Hobbs & Hobbs, Brookhaven, for appellee.

KYLE, Justice.

This case was submitted on October 1, 1951, and an opinion was rendered by the Court, affirming the judgment of the lower court on November 26, 1951. After the filing of that opinion the appellants filed a suggestion of error, in which the appellants challenged the correctness of the opinion of the Court on three main grounds: (1) That the Court erred in holding that the provisions of Section 2(2) of the Mississippi Workmen's Compensation Act, Ch. 354, Laws 1948, do not require that in a case of injury or death caused by the willful act of a third person, such act mut have been directed against the employee because of his employment in order for compensation to be allowed, and (2) that the Court erred in holding that the death of Charles Watts arose out of his employment, within the meaning of the Mississippi Workmen's Compensation Act, and (3) that the Court erred in holding that Charles Watts' employment was a substantial contributing cause of his death. After the briefs filed in support of the above mentioned suggestion of error had been considered by the Court, a memorandum request was made by the Court for reply briefs from the attorneys for the appellees. Reply briefs were filed on May 1, 1952, and the case has again been considered by the Court in banc with all of the Judges participating, and a majority of the Judges are of the opinion that the suggestion of error should be sustained, and that the original opinion rendered by the Court on November 26, 1951, should be withdrawn and the judgment entered by the Court on that date affirming the judgment of the lower court set aside, and the judgment of the lower court affirming the order of the Compensation Commission allowing the claim should be reversed and judgment entered here for the appellants.

The facts disclosed by the record, as summarized in the original opinion, are substantially as follows:

Appellees, Katherine L. Watts and Ronny Watts, are the wife and minor son of Charles Watts, who was shot and killed by a customer of the appellant, Brookhaven Steam Laundry. The other appellant is the insurance carrier, Utica Mutual Insurance Company. Appellees were granted an award of compensation under the Mississippi Workmen's Compensation Act. Miss. Laws 1948, Chap. 354, amended by the Laws of 1950, Chap. 412 (only the 1948 Act is applicable here). The order of the hearing examiner was affirmed by the Workmen's Compensation Commission and by the Circuit Court of Copiah County. The question is whether there is sufficient evidence to support the finding of the hearing examiner that the death of Charles Watts, resulting from this assault upon him, arose out of his employment and was 'because of his employment' within the terms of the statute.

Charles Watts, the deceased, was employed by the Brookhaven Steam Laundry as a route man. His duties were to pick up and deliver laundry and dry-cleaning for the employer. He worked on a commission basis, and was encouraged to obtain additional customers within the territory assigned to him. Crystal Springs was designated by his employer as one of the towns in his territory. The employer also designated Tuesdays and Fridays of each week as the days on which Watts would call on customers of the laundry in Crystal Springs. The truck which he used for his job and all of the expenses of its operation were furnished by the employer. Watts had been working for the laundry for about two years prior to his death. The laundry had on its books a regular customer in Crystal Springs by the name of Henry Garrett.

There were only three witnesses to the shooting who knew anything of its precedent circumstances. They were Henry Garrett, who did not testify and who was not offered by either side; Charles Watts, the deceased; and Mrs. Henry Garrett. Mrs. Garrett testified that she first met Charles Watts sometime in September, 1948. The Garretts were living in a house on Lee Avenue in Crystal Springs. Lee Avenue runs east and west and the house is on the north side of the street facing south. It had a small porch on the front. The living room door, with a screen door on it, faced south, and to the right as one goes up the front steps is a bedroom door, which entrance at the time of the shooting also had a screen door. The bedroom door faced west. The two doors were within a few feet of each other, and each screen opened toward the other door.

Mr. Garrett worked in Jackson and left his home about five o'clock A.M., returning around 4:30 P.M. Mrs. Garrett, who worked in a shirt factory in Crystal Springs, was temporarily laid off from work because of a fire in September, 1948. Before that she had been leaving their laundry and dry cleaning with the next door neighbor for appellant laundry to pick up. She testified that, after she was temporarily out of a job, Watts called at their house for the laundry, and that after several meetings she and Watts began to have a love affair and regular sexual intercourse; that Watts would come to her house on Tuesdays and Fridays, the regular days for his work in Crystal Springs, for 30 to 45 minutes during the noon lunch-hour, and that after she went back to work, she would come home for lunch for the purpose of meeting him; that the Garretts regularly traded with appellant laundry, and that Watts oftentimes would pick up and deliver laundry or dry cleaning on those occasions; and that on other occasions, he would visit with her for personal purposes without picking up or delivering any clothing. She said that she and Watts had an arrangement by which clothing to be cleaned would be placed on a chair on the porch as a signal to Watts that he could come in the house. Apparently in most instances the clothing was also put out for him to pick up and have cleaned and pressed.

Watts had at least one other customer in the immediate neighborhood, the Jones, who lived next door to the east of the Garrett house. On most occasions, when Watts would call he would leave his laundry truck in front of the Garrett house, and at other times partly between the Garretts' and the Jones' houses. On the day of the shooting of Watts, April 19, 1949, Mrs. Garrett returned from work to her house around 12:10 P.M. She placed a suit of her husband on the chair on the porch, and she said that this was a signal that Watts could stop and come in the house. She also stated that her husband had previously 'told me to have it cleaned and I put the suit out'. She 'meant for him to carry them away with him.'

Watts arrived at the house later than usual, at about 12:30 P.M., went up on the porch and talked to Mrs. Garrett for about fifteen minutes. She told him not to come in because she was late and had to get back to work. During this period Watts was standing on the porch with the screen door to the living room held open, the wooden door being open also. Mrs. Garrett was standing just inside the living room door. She did not remember when Watts picked up the clothing which was to be cleaned, but she said that he had them in his hand for some time while they were talking. She did not know that Garrett, the husband, was in the house. She thought he had gone to work that morning. She and Watts were talking in a normal tone, and she thought her husband could have heard their conversation. Garrett suddenly opened the wooden door to the bedroom. She said that she and Watts had been talking about future meetings between them. When Garrett appeared Watts had the suit of clothes of her husband in his hand. Garrett had a pistol in his hand, which was apparent to both Mrs. Garrett and Watts when he opened the door. She said that Garrett said, 'Well, I caught y'all,' and that he told Watts to get away from the house and stay away. She then testified as follows: 'Q. What did Mr. Watts do, if anything? A. When Henry spoke we both whirled out of the door and Charles grabbed the door that went into the bedroom--the screen door--and he pulled it open and threw the clothes down. Henry stepped back in the room and asked him to stop and step backwards. When I seen what Charles was going to do, I grabbed for him and Charles said 'Fella, I'll * * *;' and he never did finish the sentence. Henry shot him. And when I grabbed him that finger there--the bullet hit the nail on it. Q. The finger of your left hand? A. Yes, sir.'

Watts threw the clothing just on the inside of the bedroom door. After Watts fell Mrs. Garrett sat on the edge of the porch with her feet on the first step and held his head in her lap until the ambulance arrived. One of his feet was in the door of the bedroom with the screen door against it. He died shortly after the shooting.

C. B. Ferguson, City Marshal of Crystal Springs, testified that he arrived 5-10 minutes after the shooting and, speaking of Mrs. Garrett, Ferguson said: 'Just a few minutes after I had gotten there and the neighbors began to gang around she said 'I hope all you neighbors are satisfied. All this talk you been doing that you don't know anything about has caused an innocent man to get shot."

Mrs. Garrett denied making this statement, but stated that she told the neighbors who had gathered around that she knew they had been talking and she hoped that now they were satisfied.

The examiner found in effect that Garrett did not know Watts personally, and that Garrett had no actual knowledge of the affair and did not suspect Watts individually. Concerning this Mrs. Garrett testified: 'Q. He didn't know Watts, did he? A. I don't know whether he did or not. Q. He didn't know who the man was talking to you--correct? A. I don't know what he knew.'

After Garrett had opened the bedroom door, Mrs. Garrett manifestly thought that it was apparent that her...