Trussell v. American Sand & Gravel Co.

• Decision Date: 08 December 1969
• Docket Number: No. 45498,45498
• Citation: 229 So.2d 59
• Parties: Mrs. Elsie L. TRUSSELL, etc., Dependents of Lonnie L. Trussell, Deceased v. AMERICAN SAND & GRAVEL CO. and U.S.F. & G.
• Court: Mississippi Supreme Court

Page 59

229 So.2d 59

Mrs. Elsie L. TRUSSELL, etc., Dependents of Lonnie L Trussell, Deceased v. AMERICAN SAND & GRAVEL CO. and U.S.F. & G.

No. 45498.

Supreme Court of Mississippi.

Dec. 8, 1969.

Sullivan & Sullivan, Hattiesburg, for appellants.

Heidelberg, Sutherland & McKenzie, Hattiesburg, for appellee.

INZER, Justice:

This is an appeal by Mrs. Elsie L. Trussell and her minor daughters, Teresa and Glenda Trussell, from a judgment of the Circuit Court of Forrest County wherein that court reversed an order of the Workmen's Compensation Commission awarding appellants death benefits as dependents of Lonnie L. Trussell, deceased. We reverse the judgment of the circuit court and reinstate the order of the commission as modified.

Appellants are the wife and dependent daughters of Lonnie L. Trussell, who died, during a coffee break, about 9:30 A.M. on April 14, 1967, as a result of an acute myocardial infarction. Trussell was 51 years of age at the time of his death and he had worked for appellee, American Sand & Gravel Company, for many years prior to his death. On the day of his death he went to work at about 6 A.M. and worked at his usual employment as a welder until a few minutes before he died. He and another employee, as was customary, went to the nearest cafe for coffee. Trussell ate some breakfast and while drinking a second cup of coffee slumped over. He was taken to the hospital and pronounced dead on arrival. The claim for death benefits was filed and the employer and carrier controverted the claim alleging that there was no causal connection between Trussell's death and his employment. In the alternative it was alleged that Trussell had a pre-existing disease which materially contributed to his death and that any award made should be apportioned.

A hearing was had and the attorney referee found conflicting evidence as follows:

(1) That the deceased, Lonnie Trussell, sustained an accidental injury which grew out of and in the course of his employment with the employer on April 14, 1967;

(2) That the activities of his employment combined with and precipitated an underlying pre-existing condition of coronary artery disease to produce a myocardial infarction which resulted in his death on April 14, 1967;

(3) That medical evidence revealed that said pre-existing condition was a material contributing factor in producing the death of the deceased and the degree to which said condition contributed to the cause of death is hereby established to be 60 percent, with the remaining 40 percent thereof having a direct and causal relationship with the activities which he performed in the course of his employment with the employer;

(4) That dependents of the deceased were his wife, Mrs. Elsie L. Trussell, born on January 9, 1921, and two minor children, namely, Teresa Trussell, born December 11, 1960, and Glenda Trussell, born on May 17, 1949; and

(5) That the deceased received an average weekly wage of $107.03.

The order required the employer and its carrier to pay to Mrs. Trussell the lump sum of $100 as required by Section 9(a), Chapter 454, Mississippi Laws of 1958; to pay funeral expenses not exceeding $350; and to pay death benefits at the rate of $35 per week from the date of death to March 4, 1968, the date of the order; and to pay death benefits of $14 per week from March 4, 1968, for a period not to exceed 450 weeks or the maximum of $12,500.

Upon review by the full commission the order of the attorney referee was affirmed by a majority of the commission with one commissioner dissenting. Upon appeal to the circuit court that court found that the commission committed prejudicial error and entered a judgment reversing the order of the commission and dismissing the claim for death benefits. From that judgment this appeal is prosecuted.

The primary question to be decided is whether there was substantial evidence to support the order of the commission. If there was substantial evidence, the circuit court was in error in reversing the order of the commission under the well established rule that in the absence of unusual circumstances, the decision of the commission on a disputed issue of fact will be affirmed where there is substantial evidence to support such decision.

After a careful review of the record in this case, we are of the opinion that there was substantial evidence to support the order of the commission. The facts in this case distinguish it from Union Producing Co. v. Dependents of Simpson, 251 Miss. 183, 168 So.2d 808 (1964) and the other cases cited and relied upon by appellee. Simpson, supra, involved the...