author: PRATHER, Justice,

text:
    Marie BOWEN v. MAGIC MART OF CORINTH, MS and The London Agency, Inc.
    No. 54013.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    James H. Mathis, Corinth, for appellant.
    John S. Hill, Mitchell, McNutt, Bush, La-grone & Sams, Tupelo, for appellee.
    Before WALKER, BOWLING and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

This workmen’s compensation action is appealed here from the Circuit Court of Alcorn County. The claimant, Marie Bowen, received a compensable injury while employed with Magic Mart of Corinth, Mississippi. During the hearing on the controverted claim, the claimant Bowen, the employer Magic Mart, and its insurance compensation carrier, the London Agency, Inc., settled the claim, but with one reservation. That reservation concerned reimbursement to the claimant for medical expenses paid from a collateral source by Blue Cross Insurance Company, the claimant’s personally secured and paid health and accident insurance company. That one issue was agreed to be submitted to the workmen’s compensation administrative judge for decision. Both the administrative judge and the full workmen’s compensation commission denied recovery of these medical benefits to the claimant, which gives rise to this appeal. We reverse the commission.

The issue here is whether the employer/carrier is entitled to credit for medical expenses of the claimant paid by a collateral source.

I.

Marie Bowen was injured in the course of her employment. Her employer refused to pay compensation and a motion to controvert was filed. A hearing was held on the merits of the claim during which a compromise settlement was agreed upon by the parties.

Between the time of the injury and that settlement, claimant incurred medical expenses of $2,888.87. Since the employer had denied liability and had not furnished claimant with any temporary benefits, she filed a claim with Blue Cross under a medical insurance policy which she owned personally and for which she paid the premiums. Upon that claim Blue Cross partially paid the claimant’s hospital and drug bills in the total amount of $1,965.43, leaving $923.44 unpaid.

Before the settlement was agreed upon, the employer discovered that claimant’s drug and hospital bills had been partially paid by Blue Cross. However, the employer refused to agree to pay the amount already paid for claimant by Blue Cross. The settlement called for a cash payment of $2,500 and a reimbursement of unpaid medical expenses of $923.44 totalling $3,423.44.

The settlement order excluded from the settlement:

Any claim of Blue Cross Insurance for medical expenses paid by said insurance company. The employer and carrier’s liability for any medical expenses paid by persons other than the claimant shall be determined by this commission. (Emphasis added).

A hearing was held at which it was the employer’s position that no further claims existed since the only claim excluded in the settlement was any claim by Blue Cross for medical expenses paid by that company. The claimant testified that at the time of her injury she had in effect a private policy of insurance with Blue Cross and Blue Shield on which she paid the premiums. Blue Cross was not represented at this hearing.

II.

Should the employer and insurance carrier be allowed credit for the $1,965.43 of claimant’s total medical expenses? The employer actually agreed to pay the $923.44 that the Blue Cross Insurance did not cover; the issue here relates only to that portion paid by Blue Cross Insurance as a collateral source.

Mississippi Code Annotated section 71-3-15 (1972) (Supp.1983) states that:

The employer shall furnish such medical surgical, and other attendance or treatment, nurse and hospital service, medical crutches, artificial members, and other apparatus for such period as the nature of the injury or the process of recovery may require.

A general rule with respect to this issue may be found at 100 C.J.S. Workmen’s Compensation § 391 (1958), wherein it is stated that:

[T]he payment of benefits from a source or fund not intended to be in lieu of compensation under a workmen’s compensation act does not waive the right to such compensation.
(Id. at 160).

Further, at 4 Larson’s Workmen’s Compensation Law § 97.51 (1982) it is stated:

As to private pensions or health and accident insurance, whether provided by the employer, union, or the individual’s own purchase, there is ordinarily no occasion for the reduction of compensation benefits.
(Id. at 18-50) (Emphasis added).

Case law overwhelmingly supports the proposition that the employer should not be allowed to a credit for medical expenses reimbursed to the employee by another source. In Riddell Jr. v. Estate of Cagle, 227 Miss. 305, 85 So.2d 926 (1956) this Court held that a payment of $5,000 from a life insurance policy did not release the employer from liability to the employee’s widow and dependents under the Workmen’s Compensation Act.

In Pet, Incorporated, Dairy Division v. Roberson, 329 So.2d 516 (Miss.1976), this Court held that the employer was not entitled to credit for sick pay paid to the employer since the sick pay was not salary in lieu of compensation, but was money claimant was entitled to based upon his past services.

In Southwestern Bell Telephone v. Siegler, 240 Ark. 132, 398 S.W.2d 531 (1966), the Arkansas Supreme Court would not allow a reduction of compensation since the payments the employee had received was through a unilateral pension plan which was considered a benefit and not an advance payment of compensation.

The Supreme Court of North Carolina in Ashe v. Barnes 255 N.C. 310, 121 S.E.2d 549 (1961) held that payments made to an employee under an accident policy taken out by the employer on each employee was, “in the nature of a ‘fringe benefit’, such as life insurance, on and off the job sickness or accident insurance, annual leave, etc., which many employers furnish their employees as part of the terms of employment.” (Id. at 311, 121 S.E.2d at 550.)

Quoting from Alabam Freight Lines v. Chateau, 57 Ariz. 378, 114 P.2d 233 (1941) the North Carolina Court said that:

[T]he proceeds from the accident, insurance policy should not be credited against the award in favor of the employee as compensation for his lost time, even though the employer paid all of the premiums for the insurance. The Court further said: “There was no connection, as a matter of law, between the amount which he was entitled to under the accident insurance policy and the amount which was due him as an award under the workmen’s compensation law. By the terms of that award, (the employer) was required to pay a fixed sum for compensation, and also the necessary medical expenses. It was also provided that any sums which had been paid previously on either the compensation or the medical expenses might be deducted from the award. All of the medical expenses having been paid by (the employer) under its contract with (the employee), the latter had no further claim under the award against (the employer) for medical expenses. But he did have a right to recover from (the employer) the award of compensation, for the amount paid him under his accident policy was not, and could not be, a payment on the award. The one rested upon the workmen’s compensation law and the other upon a contract between (the employer) and the insurance company for the benefit of (the employee).” Ashe v. Barns, 225 N.C. at 314, 121 S.E.2d at 549; Alabam Freight Lines v. Chateau, 57 Ariz. at 382, 114 P.2d at 235.

Perhaps the case most comparable with the case sub judice is Meyers v. Meyers Oil Co., 88 S.D. 166, 216 N.W.2d 820 (1974). In Meyers, the claimant was an employee of his father’s oil company and while within the scope of his employment he suffered injuries as a result of an automobile accident. The workmen’s compensation insurance carrier refused to pay $5,908.14 of the claimant’s doctor and hospital bill because the same had been paid by the claimant’s private insurer. With respect to the claimant’s demand for workmen’s compensation, the Court held:

The insurer’s main contention before the industrial Commissioner, the circuit court, and before this Court was that it was not liable for the $5,908.14 because this expense was not paid by the claimant but instead was paid by his personal insurance carrier. We would hold that since accident insurance is a matter of private contract, it would not affect the rights of injured employees to recover under the compensation law. 101 C.J.S. Workmen’s Compensation § 1045, p. 628 and SDCL 62-3-18. If a claimant chooses to pay the premium for personal insurance, the compensation carrier should not be the beneficiary of claimant’s personal policy in the event of injury. Anderson v. Industrial Commission, 108 Utah 52, 157 P.2d 253; Fireman’s Fund Indemnity Co. v. Industrial Accident Commission, 226 Cal.App.2d 676, 38 Cal.Rptr. 336.
Id. 216 N.W.2d at 821.

We agree with these cases and hold that the claimant, Bowen, is entitled to recover the $1,965.43 which her employer refused to pay. The Blue Cross policy was not intended to be in lieu of compensation under the Workmen’s Compensation Act. That policy was a contract between claimant and Blue Cross to which her employer had no privity. The employer cannot be allowed to derive a benefit under a health and accident insurance policy bought and paid for by the employee — claimant.

Further, the claimant is entitled to the ten percent penalty provided for in section 71-3-37 of the Mississippi Code.

REVERSED AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

PATTERSON, C.J., WALKER and BROOM, P. JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Sharon SURRETTE v. B & M BUILDING SUPPLY.
    No. 54570.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    John Booth Farese and Farese, Farese & Farese, Ashland, for appellant.
    Ben F. Horan and Horan & Horan, Water Valley, for appellee.
    Before WALKER, BOWLING and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

B & M Building Supply Company, Inc., a Mississippi corporation, sought to enforce a materialman’s lien and secure a judicial sale of the real estate to which the lien was attached. The lien was procured by default judgment in a previous circuit court action filed by B & M Building Supply, a partnership, against Sharon Surrette and her husband, Jerry Surrette. From the Yalobusha County Chancery Court decree ordering a judicial sale of the Surrette’s real estate, this appeal by Sharon Surrette was taken.

The appellant alleges that the trial court erred in granting a decree to a corporate entity enforcing the materialman’s lien of a partnership. We concur and reverse the trial court’s order.

I.

On June 2,1982, B & M Building Supply, a partnership, filed a circuit court suit against Jerry and Sharon Surrette on an open account resulting from purchases made by Jerry Surrette of building supplies. Various purchases were made from July 20, 1981, through October 1, 1981, totaling $6,905.27. This action sought judgment for this amount, plus interest and attorney’s fees. Summons was served on Sharon Sur-rette on June 7, 1982 and on Jerry Surrette on July 27, 1982. Default judgment was entered against Sharon Surrette on August 6, 1982 and against Jerry Surrette on September 7, 1982 in the amount of $8,905.27. In addition to the default judgment on each, the decree awarded to the plaintiff a materialman’s lien upon the property owned by the defendants and upon which the building supplies were used.

On September 20, 1982, B & M Building Supply Company, Inc., a Mississippi corporation, filed a lawsuit against Sharon Sur-rette declaring that none of the judgment had been paid. The suit asked for a judicial sale of the defendant’s property. On October 27, 1982, the chancellor ordered a judicial sale, and appeal is taken by Sharon Surrette.

II.

As a threshold question to this appeal is the appellee’s contention that a judgment taken pursuant to a default cannot be appealed by the defaulting party. The basis of this claim is that nothing was heard or addressed before the lower court and cannot be raised for the first time on appeal. This contention is answered in Simpson v. Smith Sons’ Gin & Machine Co., 75 Miss. 505, 22 So. 805 (1897), where this Court held:

Notwithstanding the decree pro confesso, the final decree, and the failure of the appellant to appear in the court below, if on the whole case as presented here it appears that the appellee was not entitled to relief, the decree must be set aside. (75 Miss. at 508, 22 So. at 806).

See e.g., Kennedy v. East Union Lumber & Mfg. Co., 92 Miss. 405, 46 So. 625 (1908). The question of the insufficiency of factual allegations to constitute a cause of action is not waived by default of a party defendant. 4 C.J.S. Appeal and Error § 155 (1957) at pages 523-524.

We, therefore, conclude that the appellant here does have standing to appeal the trial court’s order, and if on the merits of the appeal, can sustain her position, she may have relief in this Court even though judgment was secured by defendant’s default in the trial court.

III.

Addressing now the merits of this appeal, the default judgment and materialman’s lien was obtained in circuit court as a result of a lawsuit filed by B & M Building Supply, a partnership. The suit to enforce the materialman’s lien which resulted in an order by a chancery court to have the appellant’s property judicially sold, was brought by B & M Building Supply Company, Inc., a Mississippi corporation. There was not sufficient facts stated in the complaint to show that B & M Corporation had acquired the choses in action of the partnership. This argument is based on Mississippi Code Annotated section 11-7-3 (1972), wherein it is provided that:

The assignee of any chose in action may sue for and recover on the same in his own name, if the assignment be in writing. In case of a transfer or an assignment of any interest in such chose in action before or after suit brought, the action may be begun, prosecuted and continued in the name of the original party, or the court may allow the person to whom the transfer or assignment of such interest has been made, upon his application therefor, to be substituted as a party plaintiff in said action. If in any case a transfer or assignment of interest in any demand or chose in action be made in writing before or after suit is filed, to an attorney or firm of attorneys, appearing in the ease, it shall be sufficient notice to all parties of such assignment or transfer, if such assignment or transfer be filed with the papers in said cause, and such attorney or attorneys shall not be required to be made parties to said suit.

In the case sub judice no allegation in the complaint asserts the assignment of this judgment to the appellee. The judgment rests upon allegations of a complaint so deficient in substance as to negate a cause of action. Therefore, the judgment is void. 47 Am.Jur.2d Judgments § 1175 (1969). Compare, Britton v. Magnolia State Casket And Supply Co., 210 Miss. 264, 49 So.2d 404 (1950).

The complaint in the case sub judice did not set forth sufficient facts to show that B & M Building Supply Company, Inc., a corporation, had a cause of action against the defendant. There is no “short and plain statement of the claim showing that the pleader is entitled to relief.” Mississippi Rules of Civil Procedure, Rule 8. (Emphasis added).

We, therefore, reverse the trial court and remand this cause for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

PATTERSON, C.J., WALKER and BROOM, P. JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.


text:
    Philip O. ALLEN v. Hue B. SNOWDEN.
    No. 55133.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    Frank R. McCreary, III and Charles T. Sykes, Jr., Gulfport, for appellant.
    Boyce Holleman and Boyce Holleman, P.A., Gulfport, James M. Hall, Wiggins, for appellee.
   PRATHER, Justice,

for the Court:

This case involves an election contest from Harrison County in which there are two questions for resolution.

(1) Was the electronic voting machine system used in Harrison County, Mississippi, in the August 2, 1983 Democratic Primary valid under section 42 U.S.C. 1973 et seq. of the Voting Rights Act of 1965; and

(2) Does the Electronic Voting Systems Act, section 23-7-301 et seq., Mississippi Code Annotated supersede and/or satisfy the requirements of the Corrupt Practices Act with respect to (A) initialing of ballots and (B) the contents, custody, returning and sealing of the boxes?

Both of these questions were resolved by the specially appointed tribunal, Chancellor Edward J. Prisock, in favor of the appellee, Hue B. Snowden and against the contestant, Philip 0. Allen. We affirm.

I.

On August 2, 1983, Snowden and Allen were candidates in the Democratic Primary for the office of Supervisor, Fourth District of Harrison County. Allen lost the race by 62 votes.

The voting system used in Harrison County is known as a “punch card” system, and is technically known as a votamatic vote recorder. Under this system, the paper ballot is replaced by a card which is voted by punching a hole into the designated space by the candidate’s name. Attached to the card is a stub which is numbered in sequence with all other ballot cards.

The voter receives the card from the poll manager with the stub attached, and punches his vote into the card. The ballot or punch card is then returned to the election officer. The voter detaches the numbered stub from the ballot card in the presence of the election officer and places the ballot card in the ballot box. The election officer then places the numbered stub on a string with all other numbered stubs. After the polls close, the ballot cards are electronically tabulated.

This voting system has been in use in Harrison County since 1967. However, it was not submitted for approval by the U.S. Attorney General in compliance with the Voting Rights Act of 1965 until September 30, 1983. The U.S. Attorney General opinion interposing no objections to its use was not issued until October 4, 1983.

After the District Four Supervisor’s race was completed, it was discovered that in one of the precincts within District Four of Harrison County, none of the ballots were initialed by the initialing manager as required by Corrupt Practices Act, section 23-3-13. Also, ballots in three other precincts were initialed, but not by an initialing manager other than the receiving manager as provided for in the same section, 23-3-13 of the Mississippi Code.

A petition by Allen contesting the election was filed with the Harrison County Democratic Committee on these grounds of initialing technicalities and noncompliance with Voting Rights Act of 1965. No fraud was charged. The petition was denied and Allen filed his petition for judicial review of the election contest with the Harrison County Circuit Court. A special tribunal was called and the two issues mentioned were submitted for “determination of law prior to trial on the merits.” Those two questions were answered in favor of Snow-den and an interlocutory appeal permitted.

II.

The first question is whether the Electronic Voting Systems Act for use in Harrison County had been approved pursuant to the Voting Rights Act of 1965, section 42 U.S.C.A. 1973 et seq.

This Court’s holding in Ladner v. Fisher, 269 So.2d 633 (Miss.1972) is disposi-tive of this issue. In that case we held that a voting statute is, upon approval of the U.S. Attorney General, effective from the date of passage of the Act by the Legislature. Id. at 634-635. This state’s Legislature adopted the Electronic Voting Systems Act in 1966. It has been used in Harrison County since 1967. The approval by the U.S. Attorney General of this Act on October 4, 1983 relates back to the date of passage by the Legislature. We find no merit in this argument.

III.

The next question is whether the provisions of the Electronic Voting Systems Act satisfy or supersede the Corrupt Practices Act with respect to initialing the ballots and the contents, returning, sealing, and custody of ballot boxes.

When this question was presented to the special tribunal on its merit, there was no proof offered as to the contents, returning, sealing, and custody of ballot boxes. We, therefore, consider only the question of whether serially numbered ballots used under the Electronic Voting Systems Act supersedes the requirement that ballots be initialed as provided for in the Corrupt Practices Act. We hold that the serially numbered ballots do not have to be initialed. We base this conclusion on an analysis of the Corrupt Practices Act, section 23-3-1 et seq. (1972), and the Electronic Voting System Act, section 23-7-301 et seq. (1972).

Under the Corrupt Practices Act, Mississippi Code Annotated section 23-3-13 (1972) provides inter alia, that:

Upon the opening of the polls, and not before, the managers of the election shall designate one of their number, other than the manager theretofore designated to receive the blank ballots, who shall thereupon be known as the initialing manager. When any person entitled to vote shall appear to vote, he shall first sign his name in a receipt book or booklet provided for that purpose and to be used at that election only and said receipt book or booklet shall be used in lieu of the list of voters who have voted formerly made by the managers or clerks; whereupon and not before, the initialing manager shall indorse his initials on the back of an official blank ballot, prepared in accordance with law, and at such place on the back of the ballot that the initials may be seen after the ballot has been marked and folded, and when so indorsed he shall deliver it to the voter, which ballot the voter shall mark in the manner provided by law, which when done the voter shall deliver the same to the initialing manager in the presence of the others, and the manager shall see that the ballot so delivered bears on the back thereof the genuine initials of the initialing manager, and if so, but not otherwise, the ballot shall be put into the ballot box; and when so done one of the managers or a duly appointed clerk shall make the proper entry on the poll book.

The requirement that “paper ballots” be initialed by someone other than the receiving manager was to prevent the fraudulent conduct commonly known as the “tasmani-an dodge” whereby a blank ballot was passed to a dishonest politician who pre-marked it and paid a corrupt voter to take it to the poll to vote. The corrupt voter received his ballot, but put the premarked ballot in the ballot box. He then took the blank ballot he received at the poll to the dishonest politician who again premarked it and paid the second corrupt voter to vote the ballot. This process continued throughout election day.

This practice was eliminated by requiring the initialing manager to initial the ballot before it was given to the voter. A checking system was created by requiring that the initialing manager be someone other than the receiving manager, the manager receiving the blank ballots from the distributor.

In 1966 the Mississippi Legislature passed the Electronic Voting System Act to permit use of voting machines or electronic tabulators within counties or cities that desired to do so. Section 23-7-301 et seq. (1972).

The Electronic Voting Systems Act at Mississippi Code Annotated section 23-7-311 (1972) says that, “If ballot cards are used, each card shall have a serially numbered stub which shall be removed in the presence of an election officer by the voter before being deposited in the ballot box.”

Under section 23-7-317, as amended, the procedure provided that “If ballot cards are used, the voter, after he has marked his ballot card, shall remove the stub in the presence of the election officer, and deposit the ballot card inside the ballot box.” Further, a “ballot card” is defined as “a tabulating card on which votes may be recorded by means of punching or marking.” Mississippi Code Annotated section 23-7-301 (1972).

No portion of the Electronic Voting Systems Act requires that ballots be initialed. The only initialing requirement is that which is provided for under section 23-3-13 of Corrupt Practices Act supra, in a primary election.

Additionally, section 23-7-303, Mississippi Code Annotated (1972) provides that:

[T]he provisions of this Article [Electronic Voting System Act] shall be controlling with respect to election where an electronic voting system is used, and shall be liberally construed so as to carry out the purpose of this Article. The provisions of the election law relating to the conduct of elections with paper ballots, insofar as they are applicable and not inconsistent with the efficient conduct of elections with electronic voting systems, shall apply. (Emphasis added).

With the advent of electronic tabulating machines, came the requirement that “ballot cards” have attached thereto sequentially numbered stubs. These numbered stubs are designed to prevent the same fraudulent activity that the initialing process was designed to prevent. The election manager issues a numbered “ballot card” to the voter after the voter has signed the poll registry and receipt book. The voter either marks, or as in this case, punches the “ballot card.” After voting the “card” in the tabulating machine, the ballot is returned to the election manager, who in the presence of the voter detaches the numbered stub from the ballot. The “ballot card” is not placed in the ballot box until the stub is detached. The stub after being detached is placed on a spindle or string as in this case and is kept with all other stubs.

Under these circumstances, if a dishonest politician fraudulently obtained a numbered ballot at the beginning of the election day, when his first corrupt voter would enter the poll, he would receive a “ballot card” with a higher number than the one given to him by the politician. If he voted the politician’s ballot, it would be out of sequence with the ballots being voted by legitimate voters at that time. The election officer would be able to see that the ballot being returned would be substantially out of sequence; therefore, the fraudulent scheme would not work.

IV.

The Corrupt Practices Act and the Electronic Voting Systems Act must be construed together. The Electronic Voting Systems Act does not supersede the Corrupt Practices Act, but merely provides a method for a newer and more efficient way of tabulating votes. However, for the initialing procedures of the Corrupt Practices Act to apply to “ballot cards” used pursuant to the Electronics Voting Systems Act, the initialing process must be both “applicable and not inconsistent with the efficient conduct of elections with electronic voting systems.” Mississippi Code Annotated section 23-7-303 (1972). We hold that the initialing process is inapplicable in primary elections where sequentially numbered ballot cards are used since the numbers serve the same purpose served by the initials.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.

      . Initialing of ballots under section 23-3-13 only applies to primary elections. Initialing is not required in a general or special election. See Hubbard v. McKey, 193 So.2d 129 (Miss.1966).


author: ROY NOBLE LEE, Justice,

text:
    C.L. HARRIS v. CHICAGO MILL AND LUMBER COMPANY.
    No. 53974.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    George F. Hollowell, Jr., Greenville, for appellant.
    Yardaman S. Dunn and Cox & Dunn, Ltd., Jackson, William D. Carlson, Green-ville, for appellee.
    Before BROOM, ROY NOBLE LEE and DAN M. LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

The Mississippi Workmen’s Compensation Commission entered an order awarding temporary total and minimum permanent partial benefits to claimant, C.L. Harris. The order reversed the administrative judge, who denied compensation for permanent partial disability. The employer, Chicago Mill & Lumber Company, appealed to the Circuit Court of Washington County, Honorable B.B. Wilkes, presiding, which reversed the order of the Commission as to the allowance of permanent partial disability. The claimant has appealed to this Court.

The only question presented on this appeal is whether or not there is sufficient medical evidence to establish a permanent disability under'the Mississippi Workmen’s Compensation Act.

The claimant was twenty-four (24) years of age and worked as an edger operator for Chicago Mill & Lumber Company. In March of 1979, he and a co-worker were carrying a saw blade, which had been folded and strapped to facilitate handling, and were moving the blade upstairs. The strap broke, shifting the weight to Harris and injuring his back. Harris complained to his foreman and was assigned to another job in the mill, which involved lighter work. On May 11,1979, the foreman ordered claimant to either return to his former duties or take a reduction in pay for the lighter work. Claimant refused both, and his employment was terminated.

The employer began paying workmen’s compensation as of May 11, 1979, together with medical expenses, and paid the compensation until August 20, 1979, when claimant was finally released from medical treatment to work without restrictions. In September, 1979, claimant began work with another company and, since that time, has worked a minimum of 40 hours a week at a wage of $3.45 an hour. His last medical visit was in December, 1979, and he has seen no doctor since that time.

Claimant testified that he is unable to do heavy lifting without pain and that he is assisted in any lifting required of him in his present work. Co-workers testified that they helped Harris with heavy work at the plant.

The employer concedes that claimant was injured on the job in March of 1979, sustaining a sprained back; and that he was entitled to temporary disability benefits from May 11, 1979, until August 20, 1979, for which he has been paid.

Chapter 276, Laws of 1960, amended Section 6998-02, Mississippi Code of 1942, now Mississippi Code Annotated § 71-3-3 (1972). The preamble to Chapter 276, Laws of 1960, states:

AN ACT to amend Section 6998, Mississippi Code of 1942, so as to clarify the definition of “disability”; and for related purposes.

The amended section follows:

(i) “Disability” means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings. (Emphasis added) Miss.Code Ann. § 71-3-3 (Supp.1983).

The burden of proof rests upon the claimant to establish by competent evidence all the elements of his claim together with the extent and degree of his claimed disability. American Potash & Chemical Corporation, 228 So.2d 867 (Miss.1969); Narkeeta, Inc. v. McCoy, 247 Miss. 65, 153 So.2d 798 (1963).

Claimant cites Malone & Hyde of Tupelo, Inc. v. Kent, 250 Miss. 879, 168 So.2d 526 (1964), which is distinguished from the case sub judice (involving a sprained back). In Malone, a ruptured disc was diagnosed and whether or not there were medical findings to support the disability as permanent in any degree, such as is the issue in the present case, was not involved.

Here, Dr. J.B. Yeldell, a family practitioner, testified for claimant. He first saw and examined claimant on June 12, 1979, and last saw him on December 15, 1979. He diagnosed claimant’s complaint as myo-sitis, an inflammation of the back muscles. On October 23, 1979, he examined claimant for soreness in the back and changed his diagnosis to chronic sprained back muscles.

Dr. Yeldell did not express an opinion that claimant had a permanent injury to his back as a result of the sprain in March, 1979. His testimony thereasto follows:

Q. Do you have an opinion, based upon reasonable medical certainty, as to whether or not this condition which you diagnosed will be permanent?
A. Well, I usually do not try to make that determination on my own, leave that up to the orthopedic surgeons to make that diagnosis.
But based on my experience, depending upon the severity of the original injury, my experience has been that from time to time, if one has a severe sprained back, that he can expect some residuals. In other words, there will be times when he will have some reason to complain about pain in the back.
Q. Okay. Do you have an opinion, based upon reasonable medical certainty, as to whether or not the condition you diagnosed regarding Mr. Harris has resulted in a permanent impairment of physical function?
(Interruption)
A. I think I wouldn’t be able to answer that question fairly since I haven’t seen him since back then in 1979.
Q. Based upon the last time you saw Mr. Harris, did you have an opinion, based upon reasonable medical certainty, as to whether or not the condition you diagnosed regarding Mr. Harris has resulted in a permanent impairment of physical function?
A. I would have to answer that the same way, that last time I saw him I hadn’t reached a point where I could make an opinion.
Q. Okay.
A. As to the permanency of his disability
Q. Okay.
Do you have an opinion, based upon reasonable medical certainty, as to whether or not Mr. Harris will require future medical attention?
A. Well, at the last time I saw him, my opinion was that quite possibly he could require some future medical attention. ⅜ * ⅜ * * *
A. Based upon reasonable medical certainty, he should have some improvement in his condition as time went on.
A. Right. Now last time I actually saw him was 12/15/79. So I have not seen him at all since that date.
Q. So you have no opinion as to what his condition might be now.
A. Certainly not.

Dr. David Bissett Keddy, a family practitioner, who had a special interest in matters pertaining to sports medicine involving strains and sprains, testified for the employer. That testimony follows:

Q. All right.
Doctor, in your opinion and again based upon reasonable medical certainty, did Mr. Harris, on August 20,1979, the last date you saw him, suffer from a permanent impairment of physical function as a result of the condition for which you treated him?
A. No.
A. No, no. Because it was — to me he was normal, ready for normal work. And, you know, that’s as far as I normally go.
Q. Okay.
Let me ask you this. If someone was to have this back pain, as he did evidently on 7/12/79, is there a probability that this could reoccur, this back pain could reoccur at a later time?
A. Only if he suffers another injury.
Q. Okay. In other words, you don’t think it would be a relapse of the first injury?
A. No, no.
Q. Why do you say that?
A. Because he was cured. It’s like having an ulcer that is healed. Once it’s healed, it’s healed. You may get another ulcer because you haven’t removed the stress, so you get another ulcer. It may or may not be in the same spot.
You can sprain your back and it will heal, and it will heal in a very specific way, and if under certain circumstances you can predict, and his back responded as one would predict. And after six weeks of physiotherapy, after having the myelogram, after being sure that there is no disk or anything, he did beautifully.
******
Q. Okay. And you do not feel that this same sprain could reoccur, the same injury?
A. No, it can’t. He can have another sprain, but it’s not going to come from the same problem. He can resprain himself doing anything, but it has healed.

We are of the opinion that the medical evidence did not support a permanent injury to claimant’s back; that he failed to meet the burden of proof; and that the judgment of the lower court should be, and is, affirmed. Temporary total disability is allowed for the period conceded and indicated, and permanent partial disability is denied.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

      . The decision of the Commission was split 2-1.

      . He examined claimant on July 12, 1979, and diagnosed his condition as a sprain of the back.


text:
    ALLSTATE INSURANCE COMPANY v. Barbara RANDALL, Individually, By and Through Her Father, Otis C. Randall, et al.
    No. 54948.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    James N. Compton, Bryan, Nelson, Allen, Schroeder & Compton, Biloxi, for appellant.
    Donald Dornan, Jr. and Denton & Persons, Biloxi, John M. Deakle, Hattiesburg, for appellees.
    Before BROOM, ROY NOBLE LEE and HAWKINS, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

The United States Court of Appeals for the Fifth Circuit has certified this cause to the Mississippi Supreme Court, asking that we decide the following question:

1. The trial court held that any provision excluding or reducing the mandatory coverage of the Uninsured Motor Vehicle Act, Miss.Code Ann. § 81-11-101, et seq. (1972), to an amount less than the minimum prescribed by the Vehicle Safety Responsibility Act, Miss.Code Ann. § 63-15-1, et seq. (1972), was null and void, following Preferred Risk Mutual Insurance Co. v. Poole, 411 F.Supp. 429 (N.D.Miss.), aff’d, 539 F.2d 574 (5th Cir.1976), which followed Harthcock v. State Farm Mutual Automobile Insurance Co., 248 So.2d 456 (Miss.1971). Harthcock indicates that insured/uninsured motor vehicle status was to be determined from the perspective of the insured. Aitken v. State Farm Mutual Automobile Insurance Co., 404 So.2d 1041 (Miss.1981), indicated that one should look to whether the vehicle was covered by liability insurance, irrespective of whether there was an exclusion which invalidated a particular claim. Harthcock further allowed the motorcycle on which the plaintiff was a passenger to be an uninsured vehicle under the owner’s policy, while Aitken stated that the vehicle had to be another and separate vehicle. Thus, following Harth-cock and Preferred Risk, uninsured motorist coverage would be available to Barbara Randall. Does Aitken overrule Harthcock and is there uninsured motorist coverage available for Barbara Randall under these facts? (Emphasis added).

Since certification of the cause to us, this Court has been advised by counsel representing Allstate Insurance Company that the case of State Farm Mutual Automobile Ins. Co. v. James Nester and Mary Nester, No. 54,437, is now pending before the Mississippi Supreme Court; that it has been briefed and is awaiting docketing and assignment for oral argument; that it involves the same issue as Allstate Ins. Co. v. Barbara Randall, the subject of this certification; and that State Farm Mutual Automobile Ins. Co. v. James Nester and Mary Nester will decide the question which has been certified to us.

Therefore, we respectfully decline to rule upon the question presented.

CERTIFICATION DENIED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


author: WALKER, Presiding Justice,

text:
    HARMONY CORPORATION v. M & M PIPE AND PRESSURE VESSEL FABRICATORS, INC.
    No. 54046.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    Robert J. Dambrino, III, Bryan, Nelson, Allen, Schroeder & Backstrom, Pascagoula, Murphy J. Foster, III, Baton Rouge, La., for appellant.
    Henry L. Tillman, Pascagoula, for appel-lee.
    Before WALKER, BOWLING and PRATHER, JJ.
   WALKER, Presiding Justice,

for the Court:

The question on this appeal is whether a judgment rendered in the District Court of Louisiana is entitled to full faith and credit in the courts of Mississippi. The Circuit Court of Jackson County held that it was not so entitled. From this judgment the appellant perfected its appeal and assigns the following as error:

The circuit court erred in denying full faith and credit to a Louisiana judgment by assigning a lack of minimum contacts requisite for in personam jurisdiction to attach under Louisiana’s long arm statute.

The appellant, Harmony Corporation, is a general contractor based in Baton Rouge, Louisiana and incorporated under the laws of that state. The appellee, M & M Pipe and Pressure Vessel Fabricators, Inc., (hereinafter M & M) is a Mississippi corporation with manufacturing facilities located in Pascagoula.

Harmony was submitting a bid to Exxon Company, U.S.A. for construction of a refinery in Baton Rouge. Since the job would require pipe fabrication, Harmony contacted several companies, including M & M, for price quotations. On July 2,1979, M & M sent a letter to Harmony in Baton Rouge, Louisiana confirming its oral quotation. It was this quote that Harmony used in its bid to Exxon. Thereafter, Harmony was awarded the construction contract on the Exxon refinery. On August 14, 1979 Harmony, at Baton Rouge, accepted M & M’s price offer of July 2, 1979. Under the terms of the contract Harmony was to furnish M & M with all materials, except consumables, at its Pascagoula plant. M & M was required to do the fabrication and then ship the finished product to the refinery site at Baton Rouge. The agreed price was $34,260.00.

After the appellant had made partial payment in the amount of $20,000.00, a dispute arose as to the quality of the pipe. When efforts to resolve the dispute failed, Harmony filed a contractual damages action against M & M in the Nineteenth Judicial District of Louisiana. Service of process was by certified mail pursuant to Louisiana’s long arm statute. The appellee failed to appear in Louisiana and the court entered a default judgment in the amount of $83,707.00.

Harmony then brought suit in the Circuit Court of Jackson County on its Louisiana judgment. The appellee opposed the suit, asserting that the Louisiana judgment was void for lack of in personam jurisdiction.

Both parties agreed that the contract did not require M & M to perform any welding or fabrication in Louisiana.

After the hearing, the trial judge held that there was not sufficient contact for the Louisiana court to obtain in personam jurisdiction over M & M. Accordingly, he refused to enroll the judgment.

The Mississippi law relating to foreign judgments was summarized in the case of Galbraith & Dickens Aviation Insurance Agency v. Gulf Coast Aircraft Sales, Inc., 396 So.2d 19 (Miss.1981):

It is well settled that a judgment rendered by a court of competent jurisdiction in a sister state is entitled to a presumption of validity as to the court’s assumption of jurisdiction, and the burden is on the party attacking the judgment to affirmatively show its invalidity. Marsh v. Luther, 373 So.2d 1039 (Miss.1979).
It is also a general rule that judgments entered in courts of a sister state, when sought to be made the judgment of another state, may only be attacked for lack of jurisdiction, otherwise they must be given the same effect as a domestic judgment. See generally 50 C.J.S. Judgments § 889 (1947); 47 Am.Jur.2d Judgments §§ 1214 et seq. (1969).
As a general rule, one must look to the law of the state which rendered the judgment sought to be enforced to determine its validity. 47 Am.Jur. Judgments § 1236 (1969).

396 So.2d 21.

Therefore, we must look to the law of Louisiana to determine if that state would have assumed in personam jurisdiction over the appellee had it been presented with the jurisdiction issue.

The Louisiana long arm statute provides:

A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s:
(a) transacting any business in this state;
(b) contracting to supply services or things in this state;
(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
(d) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;
(e) Having an interest in, using or possessing a real right or immovable property in this state; or
(f) Non-support of a child or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.
(g) Parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.

La. Revised Statutes Annot. § 13:3201 (Supp.1983).

The Louisiana Supreme Court has interpreted this statute to extend jurisdiction over nonresidents to the limit permitted by the due process clause of the Fourteenth Amendment to the United States Constitution. Drilling Engineering, Inc. v. Independent Indonesian American Petroleum Company, 283 So.2d 687 (La.1973). “Business activity which will satisfy the requirements of due process will thus necessarily satisfy the ‘transacting business’ requirement of the long arm statute.” Standard Fittings Company v. Sapag, S.A., 625 F.2d 630, 641 (5th Cir.1980).

In International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1942) the United States Supreme Court held that due process is satisfied if a nonresident has certain minimum contacts with the foreign state so that the assumption of jurisdiction does not offend traditional notions of fair play and substantial justice. The Fifth Circuit Court of Appeals, in discussing the necessary “minimum contacts”, stated:

To determine whether the requirements of due process have been met, this Court looks to whether the defendant has purposefully availed himself of the benefits and protection of the forum state’s laws, whether the forum state has any special interest in exercising jurisdiction, and whether the convenience of the parties favors litigating in another state. Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 494-98 (5th Cir.1974). See Standard Fittings, 625 F.2d at 641-43.
With regard to the purposeful availment prong of this test, the Product Promotions Court stated that “even if the defendant performs no physical act within the State, activities outside the State can provide adequate contacts if they have reasonably foreseeable consequences within the State.” In addition, the Court noted that “[t]he operative consideration is that the defendant’s contacts with the forum were deliberate, rather than fortuitous, so that the possible need to invoke the benefits and protections of the forum’s laws was reasonably foreseeable, if not foreseen, rather than a surprise.” 495 F.2d at 496 (footnotes omitted). (Emphasis added).

Austin v. North American Forest Products, 656 F.2d 1076, 1089-90 (5th Cir.1981). That case involved the sale of doors for use in a housing project being constructed by the corps of engineers in Fort Polk, Louisiana. Negotiations were conducted by telephone between Oregon and Michigan. An agreement was reached and confirmed by a letter sent from Oregon to Michigan. The doors were then sent by the manufacturer to Alabama. In short, the defendant’s only connection with the State of Louisiana was that it knew that the doors were intended for use in that state. The Fifth Circuit held that this was sufficient contact with the state to satisfy the requirements of due process and that Louisiana would have assumed jurisdiction under its long arm statute. The court based its decision, in part, on World Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), wherein the Court stated:

The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.

444 U.S. 297-98, 100 S.Ct. at 567.

In the instant case, M & M’s bid on the job was accepted by Harmony in Baton Rouge, Louisiana, and M & M knew that its product was intended for use in the Exxon refinery to be built in Baton Rouge. The contract required M & M to ship the product directly to the refinery site, and when Harmony fell behind on payment under the contract, M & M officials traveled to Baton Rouge and met with Harmony in an effort to collect.

We are of the opinion that M & M had sufficient contacts in the State of Louisiana to justify assumption of jurisdiction by the Louisiana court and that traditional notions of fair play and substantial justice were not violated and due process was satisfied.

The remaining assignment of error is without merit and warrants no discussion.

Therefore, the judgment of dismissal entered by the Circuit Court of Jackson County is reversed and this cause is remanded to that Court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.