West's Estate v. Southern Bell Tel. & Tel. Co., 40246

• Decision Date: 15 October 1956
• Docket Number: No. 40246,40246
• Citation: 90 So.2d 1,228 Miss. 890
• Parties: ESTATE of Evelyn June WEST, Mrs. Hardie West, et al., v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.
• Court: Mississippi Supreme Court

Page 1

90 So.2d 1

228 Miss. 890

ESTATE of Evelyn June WEST, Mrs. Hardie West, et al., v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.

No. 40246.

Supreme Court of Mississippi.

Oct. 15, 1956.

Travis & Moore, Jackson, John B. Farese, Ashland, for appellants.

Jas. Stone & Sons, Oxford, Hugh N. Clayton, New Albany, for appellee.

HALL, Justice.

This is an appeal by Mrs. Hardie West, a widow, and her minor daughter, from a judgment of the Circuit Court of Union County affirming an order of the Workmen's Compensation Commission which affirmed an order of the attorney-referee denying compensation for the death of Evelyn June West, an employee of Southern Bell Telephone and Telegraph Company, a self insurer, which death occurred on November 12, 1954, in the telephone exchange of the Company at New Albany, Mississippi, at a time when she was engaged at work as an operator in the telephone exchange.

There is little if any dispute as to the facts in the case. Miss West had been employed by the company for approximately 18 months. She was the childhood sweetheart of Clarence O'Neil Sullivan whom she had known all her life and with whom she went to school. He was in the United States Navy from November 1950 to July 1954, at which time he was discharged from further service. During this time they kept up a correspondence, but while he was away she started going with Wilbourn Goode in 1953. Goode gave her a ring about Christmas 1953 and it is a fair inference from this record that this was an engagement ring. Upon Sullivan's return home in July 1954 she started going with him and in a short time she stopped going with Goode and returned the ring to him.

At about 9:45 P.M. on the night of November 12, 1954, Goode came into the telephone exchange and at that time there were only two employees present and on duty. One was Miss West and the other was Mrs. Curry. Goode entered the room and said nothing to either of them. Miss West asked him to leave and told him that it was against the rules of the company for him to be in the building. Goode walked past Mrs. Curry and went up to Miss West. She pulled off her headset and her glasses and again asked him to leave the building. Mrs. Curry asked Miss West what she wanted her to do and she did not answer but was still insisting on Goode's leaving the room. Goode then said to Mrs. Curry, 'If you are going to do anything, you can call the undertaker'. Then he pulled a gun from his shirt and started swinging it around and Miss West asked him to put the gun up but he did not do so and Mrs. Curry left the room and when she was in the hall she heard several shots fired and heard Miss West screaming. She went on outside and across the street to the hospital and reported what had happened and asked them to get help. As soon as help arrived both Goode and Miss West were found upon the floor fatally wounded. They were both removed to the hospital across the street and Goode died at 10:20 P.M. and Miss West died at 10:25 P.M. the same night. The whole record reflects that Miss West was murdered by a jilted lover and that the only connection between her employment and the cause of her death was that she was on duty at the time she was shot and was merely informing Goode of the rules of the Telephone Company which prohibited visitors in the operating room at the exchange. The attorney-referee rendered his written opinion and findings on May 25, 1955, and held that the evidence is insufficient to prove that there was a causal connection between the employment of Miss West and her death or that her death arose out of her employment. On October 20, 1955, the full commission affirmed the order of the attorney- referee and the order of the commission was affirmed by the circuit court on January 3, 1956.

On June 6, 1955, the claimant filed a petition for review by the full commission and on June 16, 1955, the claimants filed a petition to reopen the case for the taking of further proof on the ground of newly discovered evidence; which evidence in general terms was alleged to be that at and for sometime prior to the killing Wilbourn Goode was of unsound mind and in fact insane. The motion to reopen the case was overruled on August 23, 1955.

Appellants contend first that there was error in the overruling of their motion to reopen the case and they base their contention upon the provisions of Section 6998-27 of the Mississippi Code of 1942. A reading of that section of the compensation act clearly shows that it was purely discretionary with the Commission as to whether or not it will reopen a case. The statute says 'Upon its own initiative, or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may' review the case and issue a new compensation order, etc. It is true that sometimes the word 'may' has been construed to mean 'shall', but we do not think that in this case it was mandatory on the Commission to reopen the matter and have another hearing. It had a sound discretion to exercise with reference to reopening the case, and so long as its discretion was not abused, its action in refusing to reopen the matter does not constitute reversible error. Furthermore as we shall show under the next point, even if Goode was insane, we do not think that this would change the result under the particular facts of this case.

The second and last point argued by appellants is that Miss West's death arose out of and in the course and scope of her employment. The Compensation Act of Mississippi, Section 6998-02, in paragraph 2 provides: "Injury' means accidental injury or...