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JOHN SAWYER d/b/a LAKELAND PLANTATION & SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. RUFUS HEAD

MARCH 18, 1987

JOHN SAWYER d/b/a LAKELAND PLANTATION & SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY
v.
RUFUS HEAD, DECEASED DEPENDENTS OF



BEFORE WALKER, C.J., PRATHER AND GRIFFIN, JJ.

WALKER, C.J., FOR THE COURT:

This appeal is prosecuted from the Circuit Court of Holmes County, Mississippi and involves a claim for Workers' Compensation Benefits.

On June 19, 1973, Roosevelt Head, Sr., Roosevelt Head, Jr., Rufus Head, Lester D. Johnson and Arthur Lee Mason, employees of Lakeland Plantation, were involved in a motor vehicle collision. At the time of the accident the four were enroute to lunch in a pickup truck provided by Lakeland Plantation and driven by Roosevelt Head, Sr., a co-employee. Roosevelt Head, Sr. was allowed to use the truck to transport himself and those workers in need of transportation not only to and from work but also to and from lunch. Mason and Johnson were severely injured in the accident and the two young boys, Rufus Head and Roosevelt Head, Jr. and Roosevelt Head, Sr. were killed.

 In 1975 the dependants of Rufus Head (hereinafter claimants) filed a Motion to Controvert with the Workers' Compensation Commission. Thereafter, a civil action sounding in tort was filed by the claimants against Frederick A. Ahner and C. D. Kilgore d/b/a Vicksburg Truck Center, the third party whose truck collided with the Lakeland Plantation vehicle; Ruby Moore, administratrix of the estate of Roosevelt Head, Sr., deceased; George Langdon, farm manager; and John Sawyer, owner of Lakeland Plantation. Prior to trial the claimants entered into a settlement and release agreement in 1980 whereby they received the following:

 1. Two Thousand Dollars ($2,000.00) paid on behalf of Frederick Ahner and Kilgore d/b/a Vicksburg Truck Center.

 2. Thirty-Five Hundred Dollars ($3,500.00) on behalf of John Sawyer.

 3. Fifty-Five Hundred Dollars ($5,500.00) on benalf of George

 Langdon and Ruby Moore administratrix of the estate of Roosevelt Head, Sr.

 In 1981 a hearing was held before the administrative judge of the Mississippi Worker's Compensation Commission on the claim for Worker's Compensation benefits. With regard to those issues pertinent to this appeal he found:

 1. At the time of the accident Rufus Head was acting in the course and scope of his employment for Lakeland Plantation;

 2. At the time of his death Rufus Head left surviving him his mother, three sisters and two brothers as his dependents;

 3. The employer and carrier were to be given credit against the award made to the dependents of Rufus Head, for sums received by them in settlement of third party actions and direct suits against the employer arising out of the accident causing the death of Rufus Head.

 Following the issuance of the administrative judge's order the claimants filed their petition for review with the full commission. Following review by the full commission the order of the administrative judge was affirmed in part and amended in part as follows:

 The administrative judge erred in allowing defendants credit against their workmen's compensation liability for those sums paid to claimants by their employer and co-employees pursuant to the settlement and release agreement entered into. Thus the defendants are entitled only to a credit against their workmen's compensation liability equal to the amount paid the claimants pursuant to their settlement of the tort claim against the third party, Ahner and Kilgore d/b/a Vicksburg Trucking.

 On appeal to the Circuit Court of Holmes County the finding of the commission was affirmed in toto. The appellants, John Sawyer d/b/a Lakeland Plantation and Southern Farm Bureau Casualty Insurance Company, aggrieved with the finding of the Worker's Compensation Commission and affirmance thereof by the Circuit Court, have perfected an appeal to this Court.

 I.

 The Circuit Court erred in upholding the Workers' Compensation Commission's decision that the death of Rufus Head occurred out of and within the course and scope of his employment.

 Following the issuance of the administrative judge's order the claimants prosecuted their appeal to the full commission specifically assigning as error the amount found to be the deceased's average weekly salary and the allowance of a credit to the appellants. Sawyer and his carrier did not cross-appeal to the full commission so as to preserve this assignment.

 In order to preserve a point for review by the Supreme Court, the point must be presented not only to the commission but also to the circuit court by an assignment of error there by direct or cross-appeal. Dunn, Mississippi Workmen's Compensation 291 (2d edition 1967; 3rd edition 1982). Cf. Coulter v. Harvey, 190 So. 2d 894 (Miss.1966); Dixie Pine Products Company v. Bryant's Dependents, 228 Miss. 595, 89 So. 2d 589 (1956).

 Although appellant states that this assignment" was perserved for appeal in the assignment of errors filed with the Circuit Court of Holmes County, "we find no assignment presented to the circuit court wherein he specifically asserted it was error for the commission to hold that the death of Rufus Head arose out of and occurred within the course and scope of his employment. This assignment was waived by the appellants when they failed to perserve this issue for review by this Court.

 II.

 The Circuit Court erred in upholding the Workers' Compensation Commission's decision that Appellees were" ...


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