Day Detectives, Inc. v. Savell, 47407

• Decision Date: 04 March 1974
• Docket Number: No. 47407,47407
• Citation: 291 So.2d 716
• Parties: DAY DETECTIVES, INC., and Travelers Insurance Company v. Hershel SAVELL.
• Court: Mississippi Supreme Court

Page 716

291 So.2d 716

DAY DETECTIVES, INC., and Travelers Insurance Company v. Hershel SAVELL.

No. 47407.

Supreme Court of Mississippi.

March 4, 1974.

Rehearing Denied April 8, 1974.

Daniel, Coker, Horton, Bell & Dukes, Donald V. Burch, Jackson, for appellant.

Pyles, Tucker & Cupit, Jackson, for appellee.

WALKER, Justice:

This appeal arose out of a workmen's compensation case. Appellee-claimant Hershel E. Savell, filed an application (B-5,11) for workmen's compensation benefits against appellants, Day Detectives, Inc., employer, and Travelers Insurance Company, carrier, on December 11, 1969. In his application he claimed that on May 22, 1969, he was employed by appellant detective company and while working as a security guard at the Clarion Ledger building in Jackson, Mississippi, suffered a cerebral thrombosis and myocardial infarction. He further stated that the injury was sustained around midnight while he was patrolling the Clarion Ledger building, and, as a result, he is permanently and totally disabled.

In response to claimant's application for workmen's compensation benefits, appellants denied that the claimant sustained an accidental injury arising out of and in the course of his employment and averred that claimant's disability, if any, was due to a prior existing disease, handicap or lesion, or if mistaken, that a prior existing disease, handicap or lesion substantially contributed to the disability alleged.

A hearing date was set in due course and Hershel E. Savell testified as the only witness in his behalf. His testimony was that he had begun work for Day Detectives in October of 1967 and that he received his injury on May 20, 1969, while working as a security guard at the Clarion Ledger building in Jackson. He stated that he worked from 5:30 p.m. until 7:00 a.m. and that his patrolling duties involved five rounds a night covering the three floors of the building; that while not patrolling he was stationed in a guardhouse outside the building and would check in trucks as they entered the rear parking lot. He testified that while on his second round at approximately 9:00 p.m., his arms began to hurt and he experienced pain in his chest; that upon returning to the guardhouse he called his supervisor and asked for relief but none was ever sent; that on his third round at approximately midnight his arms and chest were still hurting and after taking a glycerin tablet and resting for a few minutes he returned to the guardhouse where he experienced a severe headache and a continuation of the pain in his arms and chest; that at approximately 1:00 a.m., while in the guardhouse, he became dizzy and fell off of the stool upon which he had been sitting; that the manager of the mail room and another employee rushed to his assistance, called an ambulance and that he was taken to the Baptist Hospital where he remained for seven days after which he was transferred to Hinds General Hospital. He testified that he remained in Hinds General Hospital from May 29, 1969, until June 6, 1969, during which time he was treated by Dr. J. D. Mitchell who he says told him that he had experienced a heart attack and also had a stroke. Claimant further stated that since returning home on June 6, 1969, from the hospital that he has continued to experience pains in his chest and arms and still has headaches and dizziness. On cross-examination claimant Savell admitted that he had suffered heart attacks in 1967 and 1968 and had been treated by Dr. Mitchell for four years for this condition.

At this point the claimant rested, 'relying on the presumption.' And, in response, the appellants made a motion for the attorney-referee to enter an order in favor of the employer-carrier denying the claim for the reasons that the claimant failed to make a prima facie showing of any right under the Mississippi Workmen's Compensation Act and that he further failed to offer any medical proof which is required by the Act. Responding to that motion, the complainant argued: '(The) Presumption takes the place of it; this man suffered an accidental injury on the job. . . . There is no testimony here to overcome that presumption.' The attorney-referee then overruled the objection of the appellants, recessed the hearing 'to be reset in Jackson.'

Thereafter on November 4, 1970, the appellee-claimant filed a motion asking the Workmen's Compensation Commission, inter alia:

I.

A. To determine on the basis of the uncontroverted evidence the disability of the claimant or his incapacity because of the injury suffered by claimant on May 22, 1969, which arose out of and in the course of his employment.

III.

A. Further in the alternative, if the Commission should refuse to grant the relief requested in paragraphs I and II hereof, the claimant moves the Commission:

1. To schedule a hearing and hear the testimony of:

a. Dr. J. D. Mitchell

b. Dr. Joseph p. Melvin, Jr.

B. In support of the relief requested in paragraph III hereof, claimant attaches hereto as a part hereof the following:

1. A copy of the narrative report of Dr. Joseph P. Melvin, Jr. and marked Exhibit 'D' hereto.

2. Exhibit C attached hereto.

The pertinent parts of the letter from Dr. Mitchell which appellee-claimant referred to in the above motion reads as follows:

December 7, 1970

Mr. Dixon Pyles, Atty.

597 E. Pearl Street

Jackson, Mississippi

Re: Mr. H. E. Savell

Dear Mr. Pyles:

Perhaps I can simplify the matter of Mr. Savell by stating that on 5-22-69, Mr. Savell experienced both a heart attack and a massive cerebral thrombosis in the cerebrum which resulted in a complete paralysis in the left side of his body. The paralysis has now become a hemiparesis. In other words some use of the left arm and leg has returned. As you are aware this was his second heart attack. Perhaps, the climbing of the steps and other activity did precipitate the heart attack, but the relationship to the cerebral thrombosis is difficult to determine because, as you know, cerebral thrombosis can and does occur to persons who are resting quietly. Of course, heart attacks can too, but they more frequently occur during periods of exertion.

At any rate, Mr. Savell is prominently and totally disabled for substantial, gainful employment based on either diagnosis, but when we put them together we surely do have a very sick man. He should never attempt to work again. . . ..

Sincerely yours,

/s/ J. D. Mitchell M.D.

J. Daniel Mitchell, M.D.

Also, on November 4, 1970, the attorney-referee, without having reset the case for further hearing as he had indicated that he would do on October 5, 1970, and without knowledge that the above mentioned motion to determine disability or in the alternative to schedule a hearing and hear the testimony of Dr. Mitchell and Dr. Melvin had been filed, entered an order denying and dismissing appellee's claim for benefits and made the following findings:

That the claim of Hershel E. Savell for workmen's compensation benefits is unsupported by medical evidence as required by law.

Thereafter on November 6, 1970, the appellee-claimant filed a motion that the order of the attorney-referee of November 4, 1970, denying and dismissing appellee-claimant's claim be withdrawn, alleging that:

1. . . . on said date claimant's Motion to Determine Disability was filed in said cause, and the same was pending at the time said Attorney Referee Order was entered, but apparently was not delivered to the Attorney Referee, although claimant's said motion was exhibited to the Full Commission at the time it was filed.

6. . . . by said motion claimant further tenders the reports of physicians who have examined and treated him and whom he desires to call as witnesses if in the opinion of the Commission their testimony is required. . . .

The exact time of the issuance of the attorney-referee's order denying appellee's claim for benefits on November 4, 1970, as well as the exact time that appellee's motion to 'determine disability' or in the alternative to schedule a hearing is not established with any degree of certainty. However at a hearing on the two motions on December 18, 1970, the attorney-referee testified that he did not know that the motions were pending at the time that he entered his order denying and dismissing appellee's claim and that if he had known that they were pending, he would not have issued the order.

Thereafter, on February 26, 1971, the attorney-referee, without explanation, entered orders overruling both motions. From that decision the claimant appealed to the Full Commission by filing his petition for review on March 2, 1971. On December 3, 1971, by order of the majority members of the commission, the previous decision of the attorney-referee overruling the claimant's two motions was upheld with one member dissenting.

An appeal was then taken to the Circuit Court of Hinds County where on January 5, 1973, a judgment was entered reversing the commission and remanding the case back to it for a full hearing on the merits. From that judgment, the employer-carrier has appealed to this Court.

I.

The appellant, in his first assignment of error, contends that the circuit court erroneously reversed the attorney-referee's order of November 4, 1970, and argues that the order was never appealed to the Full Commission nor to the circuit court as provided by Mississippi Code Annotated sections 71-3-47 and 71-3-51 (1972); and, as a consequence, the circuit court was without jurisdiction to pass upon said order.

Section 71-3-47 which is also known as section 18 of the Mississippi Workmen's Compensation Act provides, in part, that:

Informal conferences and hearings in contested cases may be conducted by a duly designated representative of the commission. Upon the conclusion of any such hearing, the commission's representative shall make or deny an award, and file the decision in the office of the commission. Immediately after such filing, a notice of decision shall be sent to all interested partie...