L. B. Priester & Son, Inc. v. Bynum's Dependents

• Decision Date: 04 November 1963
• Docket Number: No. 42783,42783
• Citation: 247 Miss. 664,157 So.2d 399
• Parties: L. B. PRIESTER & SON, INC., et al. v. DEPENDENTS of Clarence Edward BYNUM, Deceased.
• Court: Mississippi Supreme Court

Page 399

157 So.2d 399

247 Miss. 664

L. B. PRIESTER & SON, INC., et al. v. DEPENDENTS of Clarence Edward BYNUM, Deceased.

No. 42783 Supreme Court of Mississippi.

Nov. 4, 1963.

Lawrence W. Rabb, Joe C. Hamilton, Meridian, for appellants.

Ethridge, Minniece & Bourdeaux, Meridian, for appellees.

RODGERS, Justice.

This is a Workmen's Compensation case. It has been to this Court previously. It came, first, on a motion to dismiss (244 Miss. 185, 137 So.2d 907), and, thereafter, it was heard on regular appeal (244 Miss. 185, 141 So.2d 246). It was determined by this Court on the prior appeals that an amendment to the Workmen's Compensation Law, Sec. 6998-02, (9), Code 1942, by the Laws of 1960, did not change the presumptive rule that a causal connection existed between the death of a laborer and his work, when the evidence showed that a laborer was found dead at the place of his employment during the hours of his work. The Court held that the case should not have been dismissed by the attorney-referee. It was remanded for a full hearing. On suggestion of error, we pointed out that the presumption of work connection is a rebuttable rule of evidence and overruled the suggestion of error, 244 Miss. 185, 142 So.2d 30.

This cause was again heard by the attorney-referee and the facts were finally fully developed by the evidence of the employer and carrier. The attorney-referee entered an order sustaining the claim of the dependents of deceased for workmen's compensation death benefits. The Workmen's Compensation Commission sustained the order of the attorney-referee and the circuit court affirmed the order of the Commission. On the trial of the claim before the attorney-referee, the defendants, employer and carrier, offered evidence to show the activity of the deceased about twelve o'clock on the day of his demise, and also offered medical testimony tending to show that deceased was ill and his death was probably brought about from one of three causes: a heart attack, a stroke, or acute cardiac arrhythmia. There is a conflict in the testimony as to the exact time when deceased's body was discovered, and there is also a conflict in the evidence as to when the work-day ended. The testimony for the employer tended to show that deceased was only paid to work until twelve o'clock on Saturday. On the other hand, it was shown that deceased was a foreman. He was not paid by the hour, but by the week, and it was his duty to close the shop and turn on a certain floodlight before leaving.

After taking into consideration (by agreement) the testimony of the previous record on appeal in this case, and the record as now having been developed, we are of the opinion that the order of the Workmen's Compensation Commission and the order of the circuit judge affirming the order of the Commission, allowing death benefits, should be sustained for the following reasons.

The question as to whether or not a laborer died as a result of an injury arising out of, and in the course of, his employment, is ordinarily a question of fact to be determined by the evidence. Facts in hearings on workmen's compensation, like facts in other trials, may be established by circumstantial evidence. Sanford v. A. P. Clark Motors, Inc., 45 So.2d 185 (Fla.); Retail Credit Company v. Coleman, 227 Miss. 791, 86 So.2d 666; Daigle v. Crescent City Garage, Inc., 180 So. 831 (La.App.); El Patio Motor Court, Inc. v. Dependents of Jessie Long, Deceased, 242 Miss. 294, 134 So.2d 437; Pearson v. Dixie Electric Power Ass'n, 219 Miss. 884, 70 So.2d 6; Dunn's Mississippi Workmen's Compensation, Sec. 163, p. 124; 100 C.J.S. Workmen's Compensation Sec. 521, at p. 495; 58 Am.Jur., Workmen's Compensation, Sec. 450, p. 865; Chillstrom v. Trojan Seed Company, 242 Minn. 471, 65 N.W.2d 888.

We are of the opinion that the attorney-referee and the Commission had ample testimony on which to base an award for the claimant. The testimony of claimant shows that deceased died with his keys in his hands, at his place of duty before he had performed his final tasks of turning on the floodlights and closing the shop. Cf. Ingalls Shipbuilding Corporation v. R. C. Howell, 221 Miss. 824, 74 So.2d 863.

Since, therefore, the referee had before him sufficient circumstantial evidence on which to base his findings that deceased died at the place of his employment, during work hours, a rebuttable presumption arose that deceased met his death as the result of an injury arising out of, and in the course of, his employment. M. & W. Construction Company v. Dependents of Bugg, Deceased, 241 Miss. 133, 129 So.2d 631. Cf. Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 55 So.2d 381, 59 So.2d 294; Henry v. D. A. Odell Motor Car Company, 191 Minn 92, 253 N.W. 110; General Accident, Fire & Life Assurance Corporation v. P. J. Donovan, 102 U.S.App.D.C. 204, 251 F.2d 915; Sullivan v. Suffolk Peanut Company, 171 Va. 439, ...