Prince v. Nicholson

• Decision Date: 07 January 1957
• Docket Number: No. 40307,40307
• Citation: 229 Miss. 718,91 So.2d 734
• Court: Mississippi Supreme Court
• Parties: R. E. PRINCE and T. H. Mastin & Company v. Howard NICHOLSON.

Page 734

91 So.2d 734

229 Miss. 718

R. E. PRINCE and T. H. Mastin & Company v.Howard NICHOLSON.

No. 40307.

Supreme Court of Mississippi.

Jan. 7, 1957.

Watkins & Eager, Shelby Rogers, Jackson, for appellant.

Jesse P. Stennis, Macon, for appellee.

HOLMES, Justice.

This appeal involves a claim of the appellee, Howard Nicholson, against his employer, R. E. Prince, and the latter's insurance carrier, T. H. Mastin & Company(Consolidated Underwriters), who are appellants here, for compensation benefits under the provisions of the Mississippi Workmen's Compensation Actas amendedCode 1942, Sec. 6998-01 et seq.It is the claim of the appellee that while in the employment of the appellant, R. E. Prince, on January 18, 1954, in Noxubee County, Mississippi, he suffered a cerebral hemorrhage, resulting in a stroke which paralyzed his entire right side, and that said injury arose out of and in the course of his employment and has totally disabled him and is compensable.

After a full hearing, the attorney-referee found that the claimant's injury arose out of and in the course of his employment and was compensable; that his average weekly wage was $30 per week; that he reached maximum recovery within six months after the date of his stroke; and in accordance therewith the attorney-referee ordered that the employer and the insurance carrier pay medical benefits as provided in the Act, and pay the claimant compensation at the rate of $20 per week from January 18, 1954 to July 15, 1954, for temporary total disability, and $20 per week for permanent total disability from July 16, 1954, not to exceed 450 weeks or the maximum of $8,600, whichever shall be the lesser in amount.

On a review of the attorney-referee's findings and order by the full commission, the said findings and order were affirmed and on appeal to the circuit court the same were likewise affirmed.The circuit court in its order found and adjudged that the employer and carrier both failed to file any notice of their desire to controvert the claimant's claim and made no report of the claimant's injury for more than fourteen days after he had knowledge of such injury, and it was therefore ordered that in addition to other benefits to be paid to the claimant ten percent thereof be paid in accordance with Subsections (d) and (e) of Section 6998-19, Vol. 5A, Mississippi Code of 1942.It was further ordered by the circuit court that all medical and/or drug, hospital and ambulance expenses incurred and to be incurred as the result of the claimant's injury be paid, with legal interest from their respective due dates.It was further recited in the order of the circuit court that an attorney's fee of forty percent of the sums recovered be allowed claimant's attorney for his services pursuant to a contract entered into between the claimant and his attorney.This appeal is prosecuted from the judgment of the circuit court.

On January 18, 1954, the appellant, R. E. Prince, was operating a sawmill in Noxubee County, Mississippi.The claimant, who was then 62 years of age, was employed to work at said mill and the duties of his employment required him to roll logs from a ramp to make them available for the saw carriage, which duties the claimant performed by the use of a cant hook.The claimant had been working for his employer, according to the testimony of the employer, for a period of approximately nine months prior to the date of the injury, and according to the testimony of the claimant, for a period of approximately two years prior to the date of the injury.On the morning of January 18, 1954, it was cold and the ground was frozen.The claimant reported for work at about seven o'clock in the morning and began his duties as a log-ramper.During the course of his work it was observed by some of his co-workers that he was sweating.The mill had been operating from fifteen minutes to an hour, as variously estimated by the witnesses, when the saw struck a nail and it was necessary to discontinue the sawmill operations and file the saw.The claimant, with other co-workers, went a short distance to a sawdust pile where there was a fire.The claimant had put on his wife's stockings that morning for warmth.He sat down on the sawdust pile by the fire and removed one of his shoes for the purpose of warming his foot.One of his co-workers began to joke him about having on his wife's stockings.It was all in good humor and no one was mad.The claimant put his shoes back on and about that time one of the co-workers in the mill, Ed Brookshire, started to walk by the claimant, who was then sitting on the sawdust pile.The claimant reached or grabbed for the leg or pants leg of Brookshire, causing Brookshire to stumble and fall and the claimant immediately fell back exclaiming that his arm was broken and that his head was bursting.It was first thought by his co-workers that he was joking, but it was soon discovered that he was in severe pain, suffering pain in his right arm and in his neck and that he had a marked stiffness of the neck, and that he had suffered paralysis in his right leg and right arm.He was taken in a truck to a hospital in Macon, where he was first attended by Dr. J. W. Grossnickle.Dr. Grossnickle then sent him to the Charity Hospital in Jackson where Dr. Jack H. Phillips was called in as a consultant and examined him.He also went to the Matty Hersee Hospital in Meridian where he was attended by Dr. E. Zinke.

Dr. Grossnickle, a witness for the claimant, testified that in his opinion the claimant's work was a contributing cause of the stroke and that the stroke followed a cerebral hemorrhage.Dr. Phillips, a witness for the employer and carrier, testified that the cause of the stroke was most likely a cerebral vascular accident, but that he would not say that the activities of the claimant's employment caused the hemorrhage, nor would he say that it did not cause the hemorrhage.Dr. Charles Neill of Jackson, Mississippi, a witness for the employer and carrier, examined the claimant on April 1, 1955.He at first was of the opinion that the stroke was caused by a thrombosis and that if such was the cause of the stroke it was not causally connected with the claimant's employment.Upon being advised, however, that the claimant experienced a stiffness of the neck from the onset of the attack, Dr. Neill expressed it as his opinion that the claimant had suffered a cerebral vascular...