Day Detectives, Inc. v. Savell

291 So. 2d 716
CourtMississippi Supreme Court
DecidedMarch 4, 1974
Docket47407
StatusPublished
Cited by15 cases

This text of 291 So. 2d 716 (Day Detectives, Inc. v. Savell) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Day Detectives, Inc. v. Savell, 291 So. 2d 716 (Mich. 1974).

Opinion

291 So.2d 716 (1974)

DAY DETECTIVES, INC., and Travelers Insurance Company
v.
Hershel SAVELL.

No. 47407.

Supreme Court of Mississippi.

March 4, 1974.
Rehearing Denied April 8, 1974.

*717 Daniel, Coker, Horton, Bell & Dukes, Donald V. Burch, Jackson, for appellant.

Pyles, Tucker & Cupit, Jackson, for appellee.

WALKER, Justice:

This appeal arose out of a workmen's compensation case. Appellee-claimant, *718 Hershel E. Savell, filed an application (B-5,11) for workmen's compensation benefits against appellants, Day Detectives, Inc., employer, and Travelers Insurance Company, carrier, on December 11, 1969. In his application he claimed that on May 22, 1969, he was employed by appellant detective company and while working as a security guard at the Clarion Ledger building in Jackson, Mississippi, suffered a cerebral thrombosis and myocardial infarction. He further stated that the injury was sustained around midnight while he was patrolling the Clarion Ledger building, and, as a result, he is permanently and totally disabled.

In response to claimant's application for workmen's compensation benefits, appellants denied that the claimant sustained an accidental injury arising out of and in the course of his employment and averred that claimant's disability, if any, was due to a prior existing disease, handicap or lesion, or if mistaken, that a prior existing disease, handicap or lesion substantially contributed to the disability alleged.

A hearing date was set in due course and Hershel E. Savell testified as the only witness in his behalf. His testimony was that he had begun work for Day Detectives in October of 1967 and that he received his injury on May 20, 1969, while working as a security guard at the Clarion Ledger building in Jackson. He stated that he worked from 5:30 p.m. until 7:00 a.m. and that his patrolling duties involved five rounds a night covering the three floors of the building; that while not patrolling he was stationed in a guardhouse outside the building and would check in trucks as they entered the rear parking lot. He testified that while on his second round at approximately 9:00 p.m., his arms began to hurt and he experienced pain in his chest; that upon returning to the guardhouse he called his supervisor and asked for relief but none was ever sent; that on his third round at approximately midnight his arms and chest were still hurting and after taking a glycerin tablet and resting for a few minutes he returned to the guardhouse where he experienced a severe headache and a continuation of the pain in his arms and chest; that at approximately 1:00 a.m., while in the guardhouse, he became dizzy and fell off of the stool upon which he had been sitting; that the manager of the mail room and another employee rushed to his assistance, called an ambulance and that he was taken to the Baptist Hospital where he remained for seven days after which he was transferred to Hinds General Hospital. He testified that he remained in Hinds General Hospital from May 29, 1969, until June 6, 1969, during which time he was treated by Dr. J.D. Mitchell who he says told him that he had experienced a heart attack and also had a stroke. Claimant further stated that since returning home on June 6, 1969, from the hospital that he has continued to experience pains in his chest and arms and still has headaches and dizziness. On cross-examination claimant Savell admitted that he had suffered heart attacks in 1967 and 1968 and had been treated by Dr. Mitchell for four years for this condition.

At this point the claimant rested, "relying on the presumption." And, in response, the appellants made a motion for the attorney-referee to enter an order in favor of the employer-carrier denying the claim for the reasons that the claimant failed to make a prima facie showing of any right under the Mississippi Workmen's Compensation Act and that he further failed to offer any medical proof which is required by the Act. Responding to that motion, the complainant argued: "[The] Presumption takes the place of it; this man suffered an accidental injury on the job... . There is no testimony here to overcome that presumption." The attorney-referee then overruled the objection of the appellants, recessed the hearing "to be reset in Jackson."

*719 Thereafter on November 4, 1970, the appellee-claimant filed a motion asking the Workmen's Compensation Commission, inter alia:

I.
A. To determine on the basis of the uncontroverted evidence the disability of the claimant or his incapacity because of the injury suffered by claimant on May 22, 1969, which arose out of and in the course of his employment.
... .
III.
A. Further in the alternative, if the Commission should refuse to grant the relief requested in paragraphs I and II hereof, the claimant moves the Commission:
1. To schedule a hearing and hear the testimony of:
a. Dr. J.D. Mitchell
b. Dr. Joseph P. Melvin, Jr.
B. In support of the relief requested in paragraph III hereof, claimant attaches hereto as a part hereof the following:
1. A copy of the narrative report of Dr. Joseph P. Melvin, Jr. and marked Exhibit "D" hereto.
2. Exhibit C attached hereto.

The pertinent parts of the letter from Dr. Mitchell which appellee-claimant referred to in the above motion reads as follows:

December 7, 1970
Mr. Dixon Pyles, Atty. 507 E. Pearl Street Jackson, Mississippi
Re: Mr. H.E. Savell
Dear Mr. Pyles:
Perhaps I can simplify the matter of Mr. Savell by stating that on 5-22-69, Mr. Savell experienced both a heart attack and a massive cerebral thrombosis in the cerebrum which resulted in a complete paralysis in the left side of his body. The paralysis has now become a hemiparesis. In other words some use of the left arm and leg has returned. As you are aware this was his second heart attack. Perhaps, the climbing of the steps and other activity did precipitate the heart attack, but the relationship to the cerebral thrombosis is difficult to determine because, as you know, cerebral thrombosis can and does occur to persons who are resting quietly. Of course, heart attacks can too, but they more frequently occur during periods of exertion.
At any rate, Mr. Savell is prominently and totally disabled for substantial, gainful employment based on either diagnosis, but when we put them together we surely do have a very sick man. He should never attempt to work again.
... .
Sincerely yours,
/s/ J.D. Mitchell M.D.
J. Daniel Mitchell, M.D.

Also, on November 4, 1970, the attorney-referee, without having reset the case for further hearing as he had indicated that he would do on October 5, 1970, and without knowledge that the above mentioned motion to determine disability or in the alternative to schedule a hearing and hear the testimony of Dr. Mitchell and Dr. Melvin had been filed, entered an order denying and dismissing appellee's claim for benefits and made the following findings:

That the claim of Hershel E. Savell for workmen's compensation benefits is unsupported by medical evidence as required by law.

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Bluebook (online)
291 So. 2d 716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-detectives-inc-v-savell-miss-1974.