Dapsco, Inc. v. Upchurch's Dependent

• Decision Date: 26 February 1962
• Docket Number: No. 42205,42205
• Citation: 243 Miss. 427,138 So.2d 287
• Parties: DAPSCO, INC., et al. v. DEPENDENT OF Harold J. UPCHURCH, Deceased.
• Court: Mississippi Supreme Court

Page 287

138 So.2d 287

243 Miss. 427

DAPSCO, INC., et al. v. DEPENDENT OF Harold J. UPCHURCH, Deceased.

No. 42205.

Supreme Court of Mississippi.

Feb. 26, 1962.

Morse & Morse, Gulfport, Gartin & Hester, Laurel, for appellants.

Melvin, Melvin & Melvin, Laurel, for appellee.

RODGERS, Justice.

This is a workmen's compensation case. Harold Upchurch was killed on October 23, 1957, while employed by Dapsco, Inc. The employer and insurance carrier voluntarily paid death benefits to his widow, Martha N. Williams Upchurch, a minor. The widow filed an application with the Workmen's Compensation Commission on the Commission's printed Form B-19, which is an application for a lump sum settlement under Sec. 13, subsec. (j), Chap. 354, Laws 1948. She alleged that she wanted the 'C & B Partial' 'To pay debts partial improve home also to go on through college.' On the 12th day of January 1960, the Commission entered an order directing the carrier to pay $500 to the claimant. On January 21, 1960, Mrs. Upchurch again filed a Form B-19 with the Commission asking for an additional payment for the purpose set out therein: 'To improve my home--plans and cost date attached.' On January 26, 1960, the Commission entered a second order directing 'That a full lump sum settlement be paid immediately by carrier to claimant in accordance with Sec. 13(j) of the Mississippi Workmen's Compensation Law.'

On February 6, 1960, the employer and carrier filed a motion with the Commission, pointing out that the claimant-widow was a minor, that a guardian should have been appointed, and asking the Commission to stay the order of January 26, 1960. The Commission took no action on the motion of the employer and carrier, and on February 20th they filed a contest of claimant's right to a lump sum settlement. On the 26th day of February the claimant-widow, Martha N. Williams Upchurch, filed a petition in the Chancery Court of the Second Judicial District of Jones County asking that her disability of minority be removed so that she could contract with Dapsco, Inc. and Maryland Casualty Company, and could sign and execute a contract of release and endorse checks. On the 29th of February 1960, the chancery court granted an order removing the disability of minority of Mrs. Martha N. Williams Upchurch Walters (being one and the same person as Mrs. Martha N. Williams Upchurch).

The employer and carrier filed a motion with the Commission asking that the original order of January 26, 1960, above set out, be reopened, upon the grounds that the order was secured by fraud, there was a mistake in fact, and there was a change in conditions. Notice was given of the date hearing would be sought before the Commission.

A hearing was had before the attorney-referee, agent of the Workmen's Compensation Commission in the courthouse at Laurel, Mississippi. The petitioners sought to introduce evidence of the remarriage of Mrs. Martha N. Williams Upchurch, and testimony of Mrs. Birdie Upchurch, mother of the deceased workman, Harold J. Upchurch, but upon the objection of the attorney for the widow, the evidence was rejected. The attorney-referee determined that the objection of the claimant-widow to the introduction of the evidence alleging that she had remarried on the 15th of February 1960 was incompetent. The attorney-referee held that the Commission had lost jurisdiction on the grounds that the order granting a lump sum payment to the widow was final, and since no appeal had been taken from the order, the Commission lost jurisdiction after the time for the appeal had elapsed.

The employer and carrier appealed from the order of the attorney-referee to the full Commission, where an order was entered on the vote of a majority of the Commission affirming the order of the attorney-referee. One of the commissioners dissented with the majority opinion. The employer and carrier appealed to the Circuit Court of Jasper County and the judge affirmed the order of the Commission allowing the award of a lump sum settlement.

From the order of the circuit court, the case has been appealed to this Court.

The issue to be determined here is whether or not the attorney-referee committed reversible error in refusing to entertain an investigation on the motion to reopen the order of the Commission awarding a lump sum settlement to a minor dependent upon the ground that the dependent was ineligible to receive such a lump sum settlement since she had remarried.

As hereinbefore stated, the widow of the deceased workman, Harold J. Upchurch, is a minor, and she was eighteen years of age at the time she filed application to obtain a lump sum payment. In order to accept payment, endorse checks and sign a release, it was necessary that she either have her disability removed or obtain permission of the chancery court to allow her to accept payment and sign releases. See Shemper v. Hancock Bank, 206 Miss. 775, 40 So.2d 742.

Under the general rule in state statutes on Workmen's Compensation, payment of an award is permitted to the widow for the use and benefit of herself and dependent minor children, and the appointment of a guardian is not necessary. See Hiebert, Widow and Guardian, etc. v. Howell et al., 59 Idaho 591, 85 P.2d 699, 120 A.L.R. 388.

On the other hand, in some states where there is no statutory authority to require the appointment of a guardian in workmen's compensation cases, it is said in 58 Am.Jur., Workmen's Compensation, Sec. 550, p. 920, that: 'Where a deceased workman leaves a widow and minor children, and no guardian of the estate of the children participates in the action on their behalf, it has been held that the widow is only entitled to one half of the statutory compensation, and that the defendant employer may withhold payment of the other half until a binding settlement of adjudication can be had between the employer and some person authorized to act for the minor children.' See also Gilliland v. Edgar Zinc Co., 112 Kan. 39, 209 P. 658, 29 A.L.R. 431.

Sec. 6998-17, Miss. Code 1942, Rec., gives the Workmen's Compensation Commission authority to require appointment of a guardian or other representative to receive compensation for a minor payable to such person.

Under Sec. 6998-13, Subsec. (c), Miss. Code 1942, Rec., we find the following language: 'The Commission may, in its discretion, require the appointment of a guardian for the purpose of receiving the compensation of a minor dependent. In the absence of such a requirement the appointment of a guardian for such purposes shall not be necessary; provided if no legal guardian be appointed, payment to the natural guardian shall be sufficient.' This section of the Code clearly permits the payment of awards to the adult mother of the workman's dependent children, who is thereby authorized to accept the award. It does not permit, however, the payment of an award directly to a minor dependent.

It is clear that it was necessary in this case for the Commission to require the appointment of a guardian for the dependent minor widow, unless she secured removal of her disability of minority by proper decree of the chancery court. Moreover, at the time the order was entered permitting the lump sum settlement, the minor-widow-petitioner was not capable of receiving a lump sum settlement because of her inability to contract. The...