Proctor v. Ingalls Shipbuilding Corp.

• Decision Date: 21 February 1966
• Docket Number: No. 43821,43821
• Citation: 254 Miss. 907,183 So.2d 483
• Parties: Mrs. Samuel A. PROCTOR and Dependents v. INGALLS SHIPBUILDING CORPORATION.
• Court: Mississippi Supreme Court

Page 483

183 So.2d 483

254 Miss. 907

Mrs. Samuel A. PROCTOR and Dependents v. INGALLS SHIPBUILDING CORPORATION.

No. 43821.

Supreme Court of Mississippi.

Feb. 21, 1966.

Alton Massey, Koscuisko, for appellants.

White & White, Gulfport, for appellee.

JONES, Justice.

This suit by dependents for death benefits under the Workmen's Compensation Act on account of an alleged injury, which it is charged later caused the death of the husband and father, comes here from the Circuit Court of Jackson County which affirmed an order of the Commission denying benefits. We affirm.

We believe it is unnecessary to discuss any issue presented other than that of res judicata which arises from these facts:

During 1961 Samuel A. Proctor filed claim for disability benefits because of an injury said to have been received by him in the course and scope of his employment by Ingalls. The claim was contested and after a full hearing the attorney referee in May 1962 entered an order awarding compensation. On appeal to the Full Commission, it denied compensation and dismissed the claim, finding the overwhelming weight of the credible testimony disclosed claimant did not sustain an accidental injury arising out of and in the course and scope of his employment. On appeal to the Circuit Court of Jackson County, after argument and consideration of the record, the Commission's order was affirmed.

The claim was then appealed to this Court. Before hearing here, the parties requested this Court to dismiss the appeal and remand the case to the Circuit Court of Jackson County from whence it came, where, on due petition and order, a settlement was made with claimant and his wife. The adjudications and orders made prior thereto remained unaltered.

When the present claim was filed, after the death of Samuel A. Proctor, the employer and its carrier pled the foregoing facts as res judicata of the issue here.

The attorney referee, after hearing this plea, entered his order dismissing the claim and finding:

This claim has been heard in full and denied on its merits. This matter was fully explored on its merits, with both sides introducing numerous lay and medical witnesses. The Full Commission, based on the record and including the depositions, denied compensation and such denial was affirmed by the Circuit Court of Jackson County, Mississippi. The claimant has not performed any work for Ingalls Shipbuilding Corporation since August 1959. This is a claim for death benefits on an injury which has been held to be non-compensable under the Mississippi Workmen's Compensation Act, as amended.

From this order of the attorney referee dismissing the present claim the matter was appealed to the Full Commission which affirmed the attorney referee. The order of the Commission was affirmed by the circuit court, and the case is now here.

Our compensation law, Mississippi Code Annotated section 6998-04 (1956) provides in part:

Compensation shall be payable for disability or death of an employee from injury arising out of and in the course of employment * * *.

The section 'Compensation for Death,' Mississippi Code Annotated section 6998-13 (1956), begins:

If the injury causes death, the compensation shall be known as a death benefit * * *.

It is apparent that the death must result from an injury such as mentioned in section 6998-04 supra: that is, one 'arising out of and in the course of employment.'

The fact that such an injury produced the disability or death, whichever is involved, is essential to recovery. If claimant had never presented his claim and there had been no hearing and adjudication of whether decedent's injury had arisen out of and in the course of his employment, the dependents here would have been required to prove that it had. The question is whether after such fact has been adjudicated against the employee, his dependents can re-litigate same after his death. A similar issue would be presented, if this question had, after hearing, been adjudicated in favor of the employee and after his death, the employer and his carrier in defending against the claim of the dependents would seek relitigation of this fact.

In Larson, Workmen's Compensation Law section 64.10 (1952), the writer discusses the independence of the claim of dependents from that of the employee and states:

The most striking consequence of the independent status or dependency rights is the rule, accepted by the majority of jurisdictions, that an adverse decision on the merits of a claim by the employee while he was alive does not bar a dependency claim under the doctrine of res adjudicata, since the parties and rights involved are different, and since the dependent is not in privity with the injured employee as to the rights asserted by him.

This is a new question in Mississippi; but, regardless of the majority of opinions, if such be true, we are of opinion the sounder rule is to prevent re-litigation of questions already fully litigated. Certainly, all parties are involved and necessarily so in the manner in which the injury is received.

The dependents necessarily must prove dependency and that upon the injured employee, where same is not conclusively presumed. If they are not dependent, they do not recover. If the employee does not die as a result of an injury arising out of and in the course of employment, they do not recover.

We adopt the reasoning of the following cases to sustain the plea and affirm the case.

In Card v. Lloyd Mfg. Co., Inc., 82 R.I. 182, 107 A.2d 297 (1954), the Rhode Island Supreme Court held that in a case similar to this the plea of res judicata applied. There the court stated and reasoned as follows:

The question is one of novel impression in this state. In England it was apparently settled many years ago, while the workmen's compensation act there was in its infancy, that the right to compensation thereby given to dependents was separate from and independent of that given to the workman. Williams v. Vauxhall Colliery Co., Ltd., (1907) 2 K.B. 433. Thereafter the English courts appear to have uniformly held that because of that fact the decision of an issue in a workman's proceeding for compensation could not be pleaded as res judicata of the same issue in a later proceeding for dependent's compensation. Howell v. Bradford & Co., 104 L.T. 433; Tucker v. Oldbury Urban District Council, 5 B.W.C.C. 296; Manton v. Cantwell, 13 B.W.C.C. 55; Harper v. Dick, Kerr & Co., 13 B.W.C.C. 250.

In the United States among the courts of last resort which have passed upon the question there is a pronounced split of authority. The following cases cited and relied upon by respondent to support the trial justice's decision substantially adopt the reasons of the English cases and hold the doctrine of res judicata inapplicable. Industrial Comm. v. Davis, 126 Ohio St. 593, 186 N.E. 505, 88 A.L.R. 1175; Wray v. Carolina Cotton & Woolen Mills Co., 205 N.C. 782, 172 S.E. 487; Laird v. State Highway Dept., 112 Vt. 67, 20 A.2d 555. The following recent cases are relied upon by petitioner for the contrary view. Hagerman v. Lewis Lumber Co., 13 N.J. 315, 99 A.2d 513; Lanning v. Erie R. Co., 265 App.Div. 576, 40 N.Y.S.2d 404, affirmed 291 N.Y. 688, 52 N.E.2d 587; Bell v. Batesville White Lime Co., 217 Ark. 379, 230 S.W.2d 643. Other cases have been cited and discussed by the parties in their briefs but they need not be mentioned here, since the above cases sufficiently illustrate the division of authority and the nature of the reasons upon which it is based.

After careful consideration of all the cases cited as well as others not cited by either party, we are of the opinion that those cases relied on by petitioner state the better view. At least such view is more consonant with our conception of the nature of the rights to compensation that the legislature intended to grant by virtue of the provisions therefor in our act. In our opinion those...