Dawson's Dependents v. Delta Western Exploration Co.

• Court: Mississippi Supreme Court
• Writing for the Court: ETHRIDGE; McGEHEE; RODGERS; McGEHEE
• Citation: Dawson's Dependents v. Delta Western Exploration Co., 147 So.2d 485, 245 Miss. 335 (Miss. 1962)
• Decision Date: 17 December 1962
• Docket Number: No. 42484,42484
• Parties: DEPENDENTS OF Jerry Mac DAWSON, Deceased, v. DELTA WESTERN EXPLORATION CO., Inc., and American Foreign Insurance Association.

Page 485

147 So.2d 485

245 Miss. 335

DEPENDENTS OF Jerry Mac DAWSON, Deceased, v. DELTA WESTERN EXPLORATION CO., Inc., and American Foreign Insurance Association.

No. 42484.

Supreme Court of Mississippi.

Dec. 17, 1962.

Modified on Suggestion of Error Jan. 14, 1963.

Bernard W. N. Chill, Jackson, for appellant.

James A. Becker, Jr., Watkins & Eager, Jackson, for appellee.

ETHRIDGE, Justice.

This is a workmen's compensation death claim, which was denied. The Commission's order sustained the motion to dismiss, by defendants, Delta Western Exploration Co., Inc. (called Delta), and its insurance carrier, for want of jurisdiction. The case involves the issue of whether an employer and insurance carrier are estopped to deny coverage of an employee temporarily working out of the state for more than six months, where the employer agreed to continue coverage. The employer failed to give the Commission notice of extension. We hold they are precluded from asserting this defense.

Jerry Mac Dawson, 22 years of age, was a resident citizen of Scott County, Mississippi. He was married, and left surviving him a widow and two minor children. On June 11, 1959, he and Delta executed in Jackson, Mississippi, an employment contract, by which Delta agreed to employ Dawson for a minimum period of three years 'in foreign service', at a stipulated salary, living allowance, and, after termination of the agreement, an additional, stated sum would be paid him for each month of foreign service. Delta agreed to provide transportation to the place of foreign service for Dawson and his family, and to furnish them with return transportation to Mississippi.

The contract stated: 'This is a Mississippi contract; has been executed in Mississippi and shall be interpreted and construed under the laws of Mississippi regardless of where the work shall be performed.' Paragraph VII further provided:

'In the event Employee shall suffer injury arising out of and in the course of employment hereunder, irrespective of negligence on the part of either Delta or Employee, Delta shall voluntarily pay, or cause to be paid by its insurance carrier, to Employee or his dependents compensation as determined and measured by the standards of the Mississippi Workmen's Compensation Law. Employee, for himself, his heirs and representatives agrees that such compensation shall be in lieu of any other liability of Delta. Delta is hereby subrogated up to the amount of compensation paid, to any right of action or damages which Employee or his representative may have or recover in the future against or from any third party liable for any injury in consequence of which Delta has paid compensation, or caused compensation to be paid by its insurance carrier.'

On the day he executed this contract, June 11, 1959, Dawson departed from Jackson, Mississippi, for Bolivia. At no time did he contemplate or move his domicile there. Delta carried a valid and subsisting workmen's compensation insurance policy covering its employees in foreign service, about which further reference will be made.

Dawson was working with a seismograph crew ninety kilometers east of Santa Cruz, Bolivia. He was required to carry sidearms on the job. A pistol in his possession discharged a bullet which passed through his abdomen, resulting in his death. He received the wound on December 12 and died December 17, 1959.

Section 49 of the Mississippi Workmen's Compensation Act deals with its 'extraterritorial application'. Miss.Code 1942, Rec., Sec. 6998-55. It provides: '(a) If an employee who has been hired or is regularly employed in this state receives personal injury by accident arising out of and in the course of his employment while temporarily employed outside of this state, he or his dependents in case of his death shall be entitled to compensation according to the law of this state. This provision shall apply only to those injuries received by the employee within six months after leaving this state, unless prior to the expiration of such six months' period the employer has filed with the commission of Mississippi notice that he has elected to extend such coverage a greater period of time.

'(b) The provisions of this section shall not apply to an employee whose departure from this state is caused by a permanent assignment or transfer.'

After Dawson's widow and children filed their claim for workmen's compensation benefits, defendants moved to dismiss it for lack of jurisdiction. Scott Builders, Inc. v. Dependents of Layton, 145 So.2d 165 (Miss.1962). They asserted that his injury and death occurred more than six months after he left Mississippi; Delta had not filed with the Commission a notice of election to extend such coverage past six months, as required by Section 49, and the claim should be dismissed. The Commission sustained that motion, because Delta had not taken that affirmative action. Its order was affirmed by the circuit court.

I.

Dawson was employed on June 11, and received his fatal injuries on December 12, 1959. Computation of a period of months refers to calendar months. Williams Bros. et al. v. Bank of Blue Mountain, 132 Miss. 178, 95 So. 843 (1923); Paine Plumbing & Supply Co. v. McMurtray's Estate, 203 Miss. 334, 34 So.2d 676 (1948). Hence the six months period of Sec. 49 ended on December 10, two days before Dawson was injured.

Appellees argue that jurisdiction cannot be conferred upon or extended for the Mississippi Workmen's Compensation Commission by agreement of the parties or by estoppel; that its jurisdiction stems entirely from the statute; and since the six months period expired before Dawson was injured, and the employer had not filed with the Commission a notice of election to extend coverage for a longer period of time, the Commission has no jurisdiction of the claim.

This argument as to lack of jurisdiction does not answer the issues here. Section 49 cannot be considered in vacuo, by disregarding the general legislative purpose of the Workmen's Compensation Act and the present facts. Mississippi has a substantial relationship to this claim. Dawson was a resident citizen of the State, as are his widow and two minor children. The contract was executed in Mississippi, at the home office of Delta, the employer. Dawson's departure from the state under this employment contract was not 'caused by a permanent assignment or transfer'. Sec. 49(b). His assignment or transfer was temporary. He had no intention of changing his residence. The employment contract provided that, after a specified maximum time, the employer should furnish return transportation for the employee to Mississippi. Winborn v. R. B. Tyler Co., 231 Miss. 166, 94 So.2d 340 (1957).

This state has a legitimate interest in the imposing of a rule of compensation liability where the injured employee is a resident citizen of Mississippi, employed under a contract executed in Mississippi, to perform services out of the state for a temporary, stated period of time. Alaska Packers Ass'n v. Industrial Accident Comm., 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044 (1934); Harrison Co. v. Norton, 146 So.2d 327 (Miss.1962); Mandle v. Kelly, 229 Miss. 327, 90 So.2d 645, 92 So.2d 246 (1956). Dawson was within this classification. He and his dependent widow and minor children were protected expressly by Sec. 49 for six months after he left the state.

Section 49 does not say that jurisdiction of the Mississippi Commission shall terminate after six months. It says coverage may be extended for a greater period of time if the employer, before the six months has expired, files with the Commission notice of an election to extend it. Delta did not give that notice. Yet in Paragraph VII of its employment contract, it agreed that Dawson would be covered under the act, either by Delta as a self-insurer or by workmen's compensation insurance purchased by Delta. It purchased such insurance. It knew that Dawson would be overseas, in Bolivia, for three years. The essence of the employer's agreement was that it would protect Dawson and his dependents under the Mississippi Workmen's Compensation Act for the period of the employment.

Despite its contract, upon which Dawson undoubtedly relied, Delta wants to disclaim this responsibility. This is contrary to every acceptable, legal and ethical standard. Delta is estopped from denying liability to Dawson's dependents under the Mississippi act. A party to a contract cannot take advantage of his own act or omission to escape liability on it. 5 Williston, Contracts (3d Ed. 1961), Sec. 677; 17 C.J.S. Contracts Sec. 468. This is not a de novo creation of jurisdiction in the Mississippi Commission. The Commission had jurisdiction over any claim by Dawson as a Mississippi employee. The Mississippi Act applied to him and his dependents, up to six months after departure from this state.

The same factual relationships between employer and employee continued to exist after that period. Dawson was still working under a Mississippi contract while temporarily outside the state. Neither the Commission nor Dawson were required to do anything to extend the period of application. That was the sole responsibility of Delta, which, by necessary inference, it had agreed it would discharge. This local contract for compensation coverage for three years during temporary absence from the state requires the inference that Delta agreed to give the Commission the required notice of election to extend coverage for that period. No factual relationships between the employer and employee were changed. Delta simply failed to perform the ministerial duty of giving to the Commission the notice. Since Delta agreed to do this, as we construe the contract, it cannot now be heard to assert that this was not done, and thereby relieve itself of responsibility under the act.

II.

Since jurisdiction and application of the act already existed, Delta's failure to comply with its contract to continue and extend the...