Harrison Co. v. Norton

• Decision Date: 05 November 1962
• Docket Number: No. 42422,42422
• Citation: 146 So.2d 327,244 Miss. 752
• Parties: The HARRISON COMPANY et al. v. Dewey M. NORTON.
• Court: Mississippi Supreme Court

Page 327

146 So.2d 327

244 Miss. 752

The HARRISON COMPANY et al. v. Dewey M. NORTON.

No. 42422.

Supreme Court of Mississippi.

Nov. 5, 1962.

Lipscomb & Barksdale, Jackson, for appellants.

Joshua Morse, Poplarville, Williamson & Smith, Meridian, for appellee.

McELROY, Justice.

This is an appeal from the Circuit Court of Monroe County, Mississippi, wherein the court affirmed an award of the Mississippi Workmen's Compensation Commission in which the appellee was awarded compensation at the rate of $10 per week minimum and assessing a ten per cent penalty.

The appellee, Dewey M. Norton, a life-long resident of the State of Mississippi, entered into a contract in May 1956, in the State of Georgia with appellant, The Harrison Company, to work in the states of Mississippi and Alabama as a lawbook salesman. The appellee worked for the appellant until December 12, 1956, at which time he had an accident in Monroe County, Mississippi. The claimant's testimony, that seventy-five per cent of his work was performed in Mississippi and about ninety per cent of his earnings were received from work done in Mississippi, was undisputed. He did no work in Georgia.

Immediately after his injury on December 12, 1956, the appellant insurance carrier voluntarily began to pay compensation under the Georgia Act. On April 1, 1957, the claimant was sent a Georgia form entitled 'Final Compensation Settlement Receipt' and the receipt was signed by the appellee. Voluntary payments were made to the appellee totaling $480 at $30 a week under the Georgia Act, and the limit of $1,500 medical expenses was paid under the Act.

Within two years after the injury, claimant filed Forms B-5 and B-11 before the Mississippi Workmen's Compensation Commission requesting a hearing to determine the extent of his permanent disability. To this claim the defendant interposed a motion to dismiss for want of jurisdiction predicated on the ground that the Georgia law provided the exclusive remedy. The Commission found that claimant had a disability of five per cent of the body as a whole and sustained a five per cent loss of wage-earning capacity. The Commission also allowed the $10 minimum in Mississippi to be paid at the rate of $10 per week for 450 weeks and ten per cent damages. The award of the Commission was appealed to the circuit court which affirmed the Commission's award.

The question before the Supreme Court is whether or not the claimant is entitled to compensation under the laws of the State of Mississippi. If he is, the Georgia Act may not be interposed as a bar provided full faith and credit is given to the payments voluntarily made under the Georgia Act. It is to be remembered that the appellee is a resident of Mississippi, doing business in Mississippi and Alabama, and not in the State of Georgia. The accident occurred in Monroe County, Mississippi, and ninety per cent of the expenses paid was for work done in the State of Mississippi.

The facts before us are that the appellee, Dewey Norton, was permanently in the State of Mississippi. The Workmen's Compensation Commission in its award to the appellee, gave credit for all the payments voluntarily made under the Workmen's Compensation Act of Georgia.

The exclusive feature of the Georgia Act was more or less gone into in the case of Mandle v. Kelly, 229 Miss. 327, 90 So.2d 645, 92 So.2d 246, decided in 1956. It was said in that case: 'The Georgia Act is silent as to the extra-territorial provisions of the workmen's compensation or similar laws of other states, and there is no provision for exempting from its application employees and employers when the employee has been hired and is regularly employed outside of Georgia, and such employee is injured while temporarily within Georgia doing work for his employer. The exemption does not apply to the present case, and the Mississippi Workmen's Compensation Act applies to the injury sustained by appellant while temporarily within this State doing work for his employer.'

In the Mandle case, the complainant was temporarily working in Mississippi, whereas in the case before us, the claimant made a contract in another state to do work here in Mississippi, and is a citizen in this state and has done practically all of his work in this state. The Mandle case followed 58 Am.Jur., Workmen's Compensation, Sec. 76; Valley Steamship Co. v. Wattawa, 244 U.S. 202, 37 S.Ct. 523, 61 L.Ed. 1084, 1085; The Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511. In Mandle it was said: 'The sensibilities of mankind demand that anyone, whether he be a citizen or a stranger, is entitled to receive hospital and medical care when he is injured in this State, and the State must furnish such services either through the means of its public institutions or by private citizens, who are the State. Humanity also demands that indigent and helpless persons be furnished the necessities of life, and this, too, must be furnished by the State through public or private means. These duties of the State rest more on moral rather than legal grounds, but the power of the State to legislate in regard thereto rests on firm legal ground. This State has done so by assuring the payment of compensation so that an injured employee who is covered by the act may not become a public charge; and by making provisions that whoever may succor the injured employee by providing hospital and medical care shall be paid therefor. These considerations are public ones; they are substantial; and they are the legitimate concern of the State where the injury occurs.' (Emphasis supplied.) Cf. Bagnel v. Springfield, 1 Cir., 144 F.2d 65; Lavoie's Case, 334 Mass. 403, 135 N.E.2d 750. The compensation act of the State of Georgia likewise has an extra-territorial provision, Sec. 114-411 of the Georgia Code, which provides: 'Accidents outside the State.--Where an accident happens while the employee is employed elsewhere than in this State, which would entitle him or his dependents to compensation if it had happened in this State, the employee or his dependents shall be entitled to compensation, if the contract of employment was made in this State, and if the employer's place of business is in this State or if the residence of the employee is in this State: Provided, his contract of employment was not expressly for service exclusively outside of the State: * * *.' (Emphasis supplied.) The Georgia Act by its very terms does not provide coverage for persons whose contract of employment is expressly for services exclusively outside the state. The testimony is that the claimant was employed for services exclusively outside the State of Georgia. His primary duties were supposed to be in the State of Mississippi. He was employed for services particularly outside of the State of Georgia and has never performed any services for the Harrison Company in the State of Georgia.

In the case of Miller v. National Chair Co., 19 N.J.Misc. 275, 18 A.2d 847, the contract of employment was made in the State of New Jersey. The claimant was injured while working in North Carolina and the insurance carrier for the Employee's Associated Corporation entered into voluntary agreement for the payment of compensation on a weekly basis with the subsequent approval of the North Carolina Commission, very similar to the forms signed by the claimant in this case. The claimant made a claim under the New Jersey Act and the North Carolina Act was pled as a bar and also election of remedy and res judicata was pled. It was held that since there was no formal award of compensation in the latter estate there could be no basis for the contention that payment received was such as to bar any subsequent award on the principle of res judicata since the mere approval of the voluntary agreement of the parties were more in the nature of an administrative act than a judicial one, pointing out that the power of the state to impose the liability of the workmen's compensation act in pursuance of state policy enabled the state to prohibit any contract in evasion of it. The court further stated there could not be any election of remedies so as to bar the claim in New Jersey since the parties couldn't contract so as to modify the essential provisions of the statute according to New Jersey law.

Section 6998-21, Miss.Code 1942, Rec., Sec. 15 of the original act, provides in part: 'No agreement by an employee to waive his right to compensation under this act shall be valid.' Therefore the specific provision in Mississippi's act that no agreement by an employee to waive his rights under the Mississippi act could be valid would prevent any Georgia contract from effectively barring a claim in Mississippi.

In the case of Industrial Indemnity Exchange v. Industrial Accident Commission, 80 Cal.App.2d 480, 182 P.2d 309, decided in 1947, the California employer and the Utah insurance carrier accepted liability without any award and made payments to an employee who was employed under a California contract of employment and was injured while working under it in the State of Utah. The Utah payment was pled in bar of a subsequent California claim. It was held by the California court that claimant's acceptance of voluntary payment did not waive his right to apply for and receive compensation in California nor did it amount to an election of remedies but that payment made under Utah proceedings would be credited to the California award. It was said in that case: 'In the instant case there was no formal award in Utah, hence no question of a formal judgment is involved nor anything in the nature of an adjudication.'

And to the same effect see Cline v. Byrne Door, Inc., 324 Mich. 540, 37 N.W.2d 630, 8 A.L.R.2d 617, decided in 1949. The party to a Michigan contract of employment was a resident of that state but his injury occurred in Florida. It was held that voluntary payments of compensation by the carrier was not a bar to claim for...