Walters v. Blackledge

• Citation: 220 Miss. 485,71 So.2d 433
• Decision Date: 22 March 1954
• Docket Number: No. 38970,38970
• Parties: WALTERS et al. v. BLACKLEDGE et al.
• Court: United States State Supreme Court of Mississippi

Page 433

71 So.2d 433

220 Miss. 485

WALTERS et al. v. BLACKLEDGE et al.

No. 38970.

Supreme Court of Mississippi.

March 22, 1954.

Collins & Collins, Laurel, for appellants.

Beard, Pack & Ratcliff, Laurel, for appellees.

KYLE, Justice.

The sole question involved in this appeal is the constitutionality of Chapter 354, General Laws of the State of Mississippi 1948, as amended by Chapter 412, General Laws of the State of Mississippi 1950, known as the Mississippi Workmen's Compensation Law.

The appellants, Mrs. Gladys Walters and her two minor children, Charlotte Ann Walters and Ronnie Walters, filed their declaration in the Circuit Court of the Second Judicial District of Jones County against the appellees, Bennie L. Blackledge and Clinton C. Newcomb, doing business under the trade name of 'City Electric Company' and also under the trade name of 'Dykes Construction Company', to recover damages for the negligent injury and wrongful death of Mitchell Walters, the deceased husband of Mrs. Gladys Walters and the father of the two minor children.

The plaintiffs alleged in their declaration that Mitchell Walters was killed in an automobile accident on U. S. Highway No. 11, in St. Tammany's Parish, Louisiana, on March 22, 1951, while he was en route from New Orleans, Louisiana, to Laurel, Mississippi, when the truck in which he was riding as a guest collided with an automobile proceeding in the same direction and ran over an embankment and into a gasoline service station near the highway; that the truck in which Walters was riding was owned by the defendants and was being used by them in their electric contracting and repair business; that said truck at the time of the accident was being driven by Bennie L. Blackledge at a dangerous and reckless rate of speed, and that the wreck occurred when Blackledge carelessly and negligently undertook to pass the automobile in front of him and while doing so carelessly and negligently collided with said automobile and lost control of the movements of the truck; that Walters was fatally injured when the wreck occurred and died about one hour later. The plaintiffs alleged that Walters' injuries and death were caused by the negligent and reckless driving of said truck by the said Bennie L. Blackledge; and the plaintiffs asked for damages, both actual and punitive, in the sum of $100,000.

The defendants in their answer denied the allegations of negligence contained in the plaintiffs' declaration. The defendants also incorporated in their answer four special defenses. In their first special defense, the defendants averred that the collision in which Walters was killed was due solely to the negligence of the driver of the automobile which Blackledge was attempting to pass. In their second special defense, the defendants averred that at the time of the accident complained of, the defendants, whose place of business was at Laurel, Mississippi, were temporarily engaged in the performance of a contract in the State of Louisiana, and that while thus engaged the defendants and their employees were accustomed to drive each day from Laurel, Mississippi, to the place where they were working in Louisiana, and return to their homes at Lourel after the day's work had been finished; that Walters and the other employees were customarily paid for the time consumed in going to and returning from the job in Louisiana; that on the day that Walters was injured Blackledge and his employees had driven from Laurel to the place of work in Louisiana and had performed their day's work and were returning to Laurel in the truck driven by Blackledge; that Walters, at the time he was injured, was engaged in the performance of his duties as an employee of the defendant; that his injury was accidental and arose out of and in the course of his employment, and that the defendants and their insurance carrier were liable under the Mississippi Workmen's Compensation Law for the payment of death benefits to the plaintiffs, and that the plaintiffs were in fact receiving such death benefit payments as the time of the filing of the defendants' answer; and that the plaintiffs' exclusive remedy was that provided by the Workmen's Compensation Law.

In their third special defense, the defendants averred that the plaintiffs had accepted the benefits provided under the Mississippi Workmen's Compensation Law, and by doing so had elected their remedy and were estopped from asserting any claims other than those allowed under the provisions of said act.

As a fourth special defense, the defendants averred that, in the event it should appear that the Mississippi Workmen's Compensation Law was not applicable, the Louisiana Workmen's Compensation Law, LSA-R.S. 23:1021 et seq., should be applied.

The plaintiffs demurred to the second special defense on the ground that the Mississippi Workmen's Compensation Law was unconstitutional. The case was set down for hearing on the questions of law presented by the plaintiffs' demurrer. The learned special judge, after hearing the arguments, held that the Mississippi Workmen's Compensation Law was unconstitutional in that it violated Sections 1, 14, 24 and 31 of the State Constitution, and entered an order sustaining the demurrer. The defendants then asked for a hearing on their fourth special defense. The court, after hearing the testimony relative to the deceased's employment at the time of his death, held that the Louisiana Workmen's Compensation Law was applicable and that the plaintiffs were barred from any right of action herein; and the court entered a final judgment in favor of the defendants.

From that judgment, the plaintiffs prosecute this appeal.

The appellants assign two errors as grounds for reversal of the judgment of the lower court: (1) That the court erred in holding that the appellants were barred from recovery in the present action by the Workmen's Compensation Law of the State of Louisiana, and in holding that the appellants' exclusive remedy was afforded by said law; and (2) that the court erred in dismissing the appellants' suit.

The two points mentioned above are the only two points argued by the appellants in their original brief. The appellants did not argue in their original brief the question as to the constitutionality of the Mississippi Workmen's Compensation Law. The position taken by the appellees in their reply brief was that the Mississippi Workmen's Compensation Law is constitutional and that the appellants' rights and the appellees' liability are governed exclusively by that act; but the appellees say that, if they are mistaken in that position, the Louisiana Workmen's Compensation Law should be applied.

After the filing of the appellees' reply brief, the appellants filed a motion to strike that part of the appellees' brief containing the appellees' argument in support of the constitutionality of the Mississippi Workmen's Compensation Act; and as grounds for their motion the appellants say that the only questions before the Court on this appeal are those set out in the appellants' assignment of errors, that appellees have filed no cross appeal or cross assignment of errors, and that the appellees' argument in support of the Mississippi Workmen's Compensation Act relates to a matter which has not been properly presented to this Court for review.

We think that the motion to strike should be overruled.

'A cross assignment is not necessary with respect to jurisdictional or fundamental errors, which would not need to be assigned by an appellant (see supra § 1239), and the lack of a cross assignment does not preclude the appellate court in its discretion from considering errors against appellee or defendant in error in order properly to dispose of the case.' 4 C.J.S., Appeal and Error, § 1300, p. 1822, and cases cited; See also Lee v. Memphis Pub. Co., 195 Miss. 264, 14 So.2d 351, 152 A.L.R. 1428.

The appellants admit in their original brief that the deceased, Mitchell Walters, prior to and on the day of his death, was employed as an electrician by the appellees, doing business as the City Electric Company; that his employment was contracted for in Laurel, Mississippi, and covered generally the territory in and around Laurel and others parts of the State, and occasionally in the State of Louisiana; that while on a temporary job in Marrero, Louisiana, the deceased and other electricians traveled to Marrero each day and returned to Laurel after work; that while on one of these return trips the deceased was killed near Pearl River, Louisiana, while riding in a truck driven by the appellee, Blackledge, and occupied by two other electricians who were also killed; that the work in Louisiana was of a temporary nature; that the deceased resided in Laurel, Mississippi; that the City Electric Company was located in Laurel and had no other office or place of business either in the State of Mississippi or in the State of Louisiana; that the contract of employment of the deceased was a Mississippi contract; and that it was the general practice of the City Electric Company employees to return to Laurel after each day's work. And the appellants admit that 'Even though the City Electric Company had obtained security for the payment of compensation in the form of a policy of insurance written to cover employees while working in Mississippi and Louisiana, yet the contract under which the employees were working was a contract made in Mississippi and the Mississippi Workmen's Compensation Law, would, if constitutional, apply to injuries sustained on temporary missions without this State.'

If the Mississippi Workmen's Compensation Act is constitutional, the remedy provided by that Act is exclusive. Section 5 of the Act provides as follows: 'The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and...