[139]*139McGehee, C. J.
This is one of the five appeals under the Mississippi Workmen’s Compensation Act out of a total of eleven appeals, both civil and criminal, submitted to the Court on November 14, 1955. On the question of liability it involves solely the question of whether or not the employee’s work for the Southern Engineering & Electric [140]*140Company aggravated, contributed to and precipitated his death on December 9, 1953, due to a pre-existing heart-ailment. There is no conflict in the testimony that the employee, James D. Chester, had been suffering from a heart ailment for sometime prior to the date of his death, and that he suffered the attack of coronary thrombosis while about the duties of his employment. He had been about his work nearly an hour on that morning when he climbed onto a scaffold slightly over eleven feet high either by means of a ladder or by climbing from one cleat or crosspiece to the other from the floor to the top of the scaffold, one or two of the witnesses having testified that they did not think the ladder was then available, whereas another witness thought that he ascended to the top of the scaffold by using a ladder. At any rate, the pain in his chest became so severe within about ten minutes after he reached the top of the scaffold and began his work of installing an electric wire in the ceiling of the building that it was necessary for him to come off the scaffold to the floor where he was administered unto until he could be carried to the hospital, where he admittedly died within twenty or thirty minutes from coronary thrombosis.
The employee lived at Yazoo City but went to and from Indianola where the work in which he was then engaged was being performed. On that morning while enroute to Indianola, accompanied by another employee in an automobile, he complained of pain in his chest and stated that he wasn’t feeling well at all and that he perhaps should not have undertaken to work that day. On the day before, he had worked elsewhere due to the fact that the employees of the Southern Engineering and Electric Company were having a holiday and a picnic. He complained of “not feeling too good” on December 8, after having climbed a ladder to the attic of a building where his work was being done on that day, and he had also complained of pains in his chest on [141]*141former occasions according to the medical history of the case as set forth in the record.
There is no material conflict in the testimony of the lay-witnesses who testified before the attorney-referee, and the medical testimony is summarized in the appellants “Statement of Facts” in the forefront of their brief as follows: “Claimants called as medical witnesses, Dr. Edward Corbin, deceased’s family physician, who was a general practitioner, and Dr. Thaddeus Le Becki, who purported to be a specialist in cardiovascular diseases. Each testified the likely cause of death was ‘coronary thrombosis’ and each gave his opinion that the work Chester was doing aggravated or precipitated his attack. Appellants called as their medical witnesses two well recognized specialists in cardiovascular work, Dr. D. T. Yan Landingham and Dr. William H. Rosenblatt. Each agreed the likely cause of death was ‘coronary thrombosis’ and each gave positive testimony that there was no causal connection whatsoever between the work and the attack from which the deceased died. ’ ’
The lay-witnesses testified to the prior complaints of the employee in regard to the pains in his chest, and some of them testified as to the facts and circumstances in connection with what happened on the morning of his death. And it is true that the medical witnesses testified, two one way and two the other, as to whether or not there was causal connection between the work and the death of the employee, in response to hypothetical questions embodying the history of the case. The attorney-referee, the commission and the circuit court adopted the testimony of Drs. Corbin and Le Becki to the effect that the work of the employee aggravated, contributed to and precipitated the attack of coronary thrombosis from which the employee died. Such being the case, the question of liability is well-settled by the following recent cases of this Court to wit: Avery Body [142]*142Company, et al. v. Hall, 79 So. 2d 453; Cowart v. Pearl River Tung Company, 218 Miss. 472, 67 So. 2d 356; East v. Pigford Brothers Construction Company, et al., 219 Miss. 121, 68 So. 2d 294; Hardin’s Bakeries, Inc., et al. v. Ranager, 217 Miss. 463, 64 So. 2d 705; Ingalls Shipbuilding Corp., et al. v. Byrd, 215 Miss. 234, 60 So. 2d 645; La Dew, et al. v. La Borde, 216 Miss. 598, 63 So. 2d. 56; Mississippi Products, Inc. v. Gordy, 80 So. 2d. 793; Pearson v. Dixie Electric Power Association, 70 So. 2d 6; Railway Express Agency, Inc. v. Hollingsworth, et al., 74 So. 2d 754; Thornbrough Well Servicing Company, et al. v. Brown, 78 So. 2d 159; Stanley v. McLendon, et al., 70 So. 2d 323; Sunnyland Contracting Company, Inc., et al. v. Davis, et al., 74 So. 2d 858; Tate v. Dr. Pepper Bottling Company, et al., 70 So. 2d 602; all of which sustain the view that where a preexisting disease or infirmity is aggravated, accelerated or contributed to and precipitated by the work in which the employee is engaged, the claim is compensable under the Workmen’s Compensation Act upon the theory that in such event the injury or death occurred during the course of, and arising out of, the employment.
We do not mean by the foregoing summary of the facts and law of this case to say that the claim as to liability was not defended before the attorney-referee and the commission in good faith, since the employer and its insurance carrier may have had as much right to rely upon the opinions of the two physicians consulted by them as did the claimants to rely upon the opinions of the two physicians who testified in their behalf. The conflicting views expressed by these medical witnesses clearly represent two opposing theories entertained by members of the medical profession, who are said to be experts in this particular field, as to whether or not in the absence of any unusual or extraordinary exertion the work of the employee has any causal connection with an attack of coronary thrombosis. But we do em[143]*143phasize the fact that there is little to he gained by an appeal from an adverse finding of the attorney-referee and of the commission where there is ample testimony to sustain either of the conflicting views testified to by the medical experts. When such is the case the question has already been repeatedly decided by this Court in the cases hereinabove set forth.
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[139]*139McGehee, C. J.
This is one of the five appeals under the Mississippi Workmen’s Compensation Act out of a total of eleven appeals, both civil and criminal, submitted to the Court on November 14, 1955. On the question of liability it involves solely the question of whether or not the employee’s work for the Southern Engineering & Electric [140]*140Company aggravated, contributed to and precipitated his death on December 9, 1953, due to a pre-existing heart-ailment. There is no conflict in the testimony that the employee, James D. Chester, had been suffering from a heart ailment for sometime prior to the date of his death, and that he suffered the attack of coronary thrombosis while about the duties of his employment. He had been about his work nearly an hour on that morning when he climbed onto a scaffold slightly over eleven feet high either by means of a ladder or by climbing from one cleat or crosspiece to the other from the floor to the top of the scaffold, one or two of the witnesses having testified that they did not think the ladder was then available, whereas another witness thought that he ascended to the top of the scaffold by using a ladder. At any rate, the pain in his chest became so severe within about ten minutes after he reached the top of the scaffold and began his work of installing an electric wire in the ceiling of the building that it was necessary for him to come off the scaffold to the floor where he was administered unto until he could be carried to the hospital, where he admittedly died within twenty or thirty minutes from coronary thrombosis.
The employee lived at Yazoo City but went to and from Indianola where the work in which he was then engaged was being performed. On that morning while enroute to Indianola, accompanied by another employee in an automobile, he complained of pain in his chest and stated that he wasn’t feeling well at all and that he perhaps should not have undertaken to work that day. On the day before, he had worked elsewhere due to the fact that the employees of the Southern Engineering and Electric Company were having a holiday and a picnic. He complained of “not feeling too good” on December 8, after having climbed a ladder to the attic of a building where his work was being done on that day, and he had also complained of pains in his chest on [141]*141former occasions according to the medical history of the case as set forth in the record.
There is no material conflict in the testimony of the lay-witnesses who testified before the attorney-referee, and the medical testimony is summarized in the appellants “Statement of Facts” in the forefront of their brief as follows: “Claimants called as medical witnesses, Dr. Edward Corbin, deceased’s family physician, who was a general practitioner, and Dr. Thaddeus Le Becki, who purported to be a specialist in cardiovascular diseases. Each testified the likely cause of death was ‘coronary thrombosis’ and each gave his opinion that the work Chester was doing aggravated or precipitated his attack. Appellants called as their medical witnesses two well recognized specialists in cardiovascular work, Dr. D. T. Yan Landingham and Dr. William H. Rosenblatt. Each agreed the likely cause of death was ‘coronary thrombosis’ and each gave positive testimony that there was no causal connection whatsoever between the work and the attack from which the deceased died. ’ ’
The lay-witnesses testified to the prior complaints of the employee in regard to the pains in his chest, and some of them testified as to the facts and circumstances in connection with what happened on the morning of his death. And it is true that the medical witnesses testified, two one way and two the other, as to whether or not there was causal connection between the work and the death of the employee, in response to hypothetical questions embodying the history of the case. The attorney-referee, the commission and the circuit court adopted the testimony of Drs. Corbin and Le Becki to the effect that the work of the employee aggravated, contributed to and precipitated the attack of coronary thrombosis from which the employee died. Such being the case, the question of liability is well-settled by the following recent cases of this Court to wit: Avery Body [142]*142Company, et al. v. Hall, 79 So. 2d 453; Cowart v. Pearl River Tung Company, 218 Miss. 472, 67 So. 2d 356; East v. Pigford Brothers Construction Company, et al., 219 Miss. 121, 68 So. 2d 294; Hardin’s Bakeries, Inc., et al. v. Ranager, 217 Miss. 463, 64 So. 2d 705; Ingalls Shipbuilding Corp., et al. v. Byrd, 215 Miss. 234, 60 So. 2d 645; La Dew, et al. v. La Borde, 216 Miss. 598, 63 So. 2d. 56; Mississippi Products, Inc. v. Gordy, 80 So. 2d. 793; Pearson v. Dixie Electric Power Association, 70 So. 2d 6; Railway Express Agency, Inc. v. Hollingsworth, et al., 74 So. 2d 754; Thornbrough Well Servicing Company, et al. v. Brown, 78 So. 2d 159; Stanley v. McLendon, et al., 70 So. 2d 323; Sunnyland Contracting Company, Inc., et al. v. Davis, et al., 74 So. 2d 858; Tate v. Dr. Pepper Bottling Company, et al., 70 So. 2d 602; all of which sustain the view that where a preexisting disease or infirmity is aggravated, accelerated or contributed to and precipitated by the work in which the employee is engaged, the claim is compensable under the Workmen’s Compensation Act upon the theory that in such event the injury or death occurred during the course of, and arising out of, the employment.
We do not mean by the foregoing summary of the facts and law of this case to say that the claim as to liability was not defended before the attorney-referee and the commission in good faith, since the employer and its insurance carrier may have had as much right to rely upon the opinions of the two physicians consulted by them as did the claimants to rely upon the opinions of the two physicians who testified in their behalf. The conflicting views expressed by these medical witnesses clearly represent two opposing theories entertained by members of the medical profession, who are said to be experts in this particular field, as to whether or not in the absence of any unusual or extraordinary exertion the work of the employee has any causal connection with an attack of coronary thrombosis. But we do em[143]*143phasize the fact that there is little to he gained by an appeal from an adverse finding of the attorney-referee and of the commission where there is ample testimony to sustain either of the conflicting views testified to by the medical experts. When such is the case the question has already been repeatedly decided by this Court in the cases hereinabove set forth.
Under Section 13 (e) of the Mississippi Workmen’s Compensation Act, the attorney-referee failed to assess the employer and its insurance carrier with the 10% penalty therein provided for in case of failure to pay any installment of compensation payable “without an award” within fourteen days after it becomes due, and also failed to assess them with a penalty not to exceed $100 under Section 28 (d), for the failure of the employer or insurance carrier to report to the commission the alleged injury within ten days after its fatal termination.
The commission assessed both of these penalties, and on appeal to the circuit court the commission was affirmed as to the penalty assessed under Section 13 (e) and reversed as to the penalty assessed under Section 28 (d) of the Act.
In view of the well-recognized rule that penal statutes should be strictly construed, this appeal presents to a minority of the Judges the troublesome question of whether or not this is a proper case for the assessment of penalties other than the 5% penalty provided for by Section 1971, Code of 1942, required in the event of an affirmance of a judgment for a sum of money on appeal here.
Section 13 (e) in reference to an installment of compensation “payable without an award” has not heretofore been interpreted to apply to cases where the right to compensation is being questioned or contested in good faith. However, five of the Judges, Hall, Lee, Kyle, Arrington and Ethridge, are of the opinion that this penalty [144]*144was properly assessed by tbe commission and by tbe circuit court. They were also of tbe opinion tbat the $100 penalty provided for under Section 28 (d) of tbe Act was properly assessed by tbe commission, and tbat tbe circuit court was in error in reversing tbe commission on such assessment, and tbat therefore tbe judgment of tbe commission should be reinstated in full. They state their reasons in a separate opinion rendered herewith as to why they think both penalties- should be assessed.
Those of us who are not so strongly impressed with tbe idea tbat tbe penalties should be assessed under all of tbe facts and circumstances of this case, do not care to register a dissent to tbe specially concurring opinion of Justice Ethridge in regard thereto.
Tbe judgment of tbe attorney-referee, commission and tbe circuit court must therefore be affirmed on tbe question of liability, tbe judgment of tbe circuit court must be reversed to tbe extent tbat it disallowed tbe $100 penalty under Section 28 (d) of tbe Act, and affirmed wherein it approved tbe judgment of tbe commission in allowing a penalty under Section 13 (e) of tbe Act.
The record contains a written stipulation duly signed by tbe appellees, wherein it is agreed tbat their attorneys may receive 25% of tbe compensation award in consideration of their services before tbe referee and commission, and an additional $500 on appeal to tbe circuit court and tbe further sum of $500 on appeal to tbe Supreme Court. We are asked to approve and allow these fees as stipulated for. Tbe court is committed to tbe policy of not allowing a total compensation for attorneys’ fees in a workmen’s compensation case in excess of 33-1/3% of tbe award. Therefore, tbe fees stipulated for as aforesaid, or a total fee for all legal services rendered not to exceed 33-1/3%, whichever is tbe lesser, is hereby approved and allowed.
The motion of tbe appellees for an allowance of 5% as damages and 6% interest under Section 1971, [145]*145Code of 1942, must of necessity be sustained, and the judgment should be ■written accordingly.
Affirmed in part, reversed in part and remanded.
All justices concur, except Holmes, J., who took no part.