Bannister v. Shepherd
| Decision Date | 20 July 1939 |
| Docket Number | 14921. |
| Parties | BANNISTER v. SHEPHERD et al. |
| Court | South Carolina Supreme Court |
[Copyrighted Material Omitted]
This is an appeal from the South Carolina Industrial Commission's award. By consent of all parties, this appeal was taken up before me at Aiken on January 23, 1939, at which time the appeal was argued by counsel, pro and con. I reserved my decision to give thorough consideration to the matter involved.
The facts are, that Eugene Bannister was employed in this State to work for W. C. Shepherd, Bannister residing at the time in Abbeville County. On September 2, 1937 while in the course of his employment, he received injuries near Aiken, in Aiken County, South Carolina, resulting in the loss of part of a leg and a small toe, and other injuries and damages described in the testimony. The hearing Commissioner decided that the Commission did not have jurisdiction, but the Full Commission reversed the hearing Commissioner and held that the Commission did have jurisdiction. The Commission proceeded to ascertain the necessary information that resulted in the award. The carrier objected to this procedure, saying that it did not intend to waive jurisdiction. When the Full Commission made its award in favor of the plaintiff, Eugene Bannister (and the employer it will be noted, did not object to jurisdiction, but freely admitted that the commission had jurisdiction), the carrier appealed to the Court of Common Pleas from the award and now raises, among other things, the question of jurisdiction. In fact, the exceptions raise these questions:
1. The Commission erred in failing to hold that the Georgia Industrial Commission did not have exclusive jurisdiction over the subject matter herein involved.
2. The Commission erred in finding that it has jurisdiction over the subject matter herein involved.
3. The Commission erred, as a matter of law, in placing the functional loss of the use of claimant's leg at seventy-five per cent; whereas, the same should have been fifty per cent.
4. The Commission erred, as a matter of law, in fixing the claimant's average weekly wage at fifteen and 82/100 ($15.82) dollars; whereas, the same should have been fixed at twelve and 50/100 ($12.50) dollars.
As to the first exception. The Compensation Law of this State, Act July 17, 1935, 39 St. at Large, p. 1231, defines who are employers and who are employees, and also fixes the status of the carrier and the employer with reference to the benefits provided in the law for the employee. Upon consideration of the testimony, and particularly that Bannister was employed in South Carolina, to work on South Carolina jobs; that he sustained his injuries in South Carolina while taking a tractor from a South Carolina job to be repaired this Court cannot say, as a matter of law, that the South Carolina Commission had no jurisdiction, especially in view of the fact that Bannister's work carried him into the States where Shepherd had the jobs, and that in South Carolina the insurance premium was based upon the amount of the payroll, and Bannister was upon the Walterboro, South Carolina, payroll at the time he was injured.
Exception Two covers practically the same matter as set forth hereinabove with reference to Exception One, except as to the feature pertaining to the exclusiveness of the Statute. By reference to the Georgia Statute, it will be seen that the Statute anticipates recoveries in other States; but it appears from the testimony that the Commission not only had jurisdiction of the parties, but of the subject matter as well; and that it has all machinery for enforcing the judgment or award of the Commission. It is elementary law that parties may contract with reference to the place of performance, and in that event the law of the place of performance would govern.
The Third and Fourth Exceptions involve purely questions of fact, according to the adjudications of the Courts of this State. The doctor's testimony was being considered by the Commission. He testified at one time that the loss was seventy-five per cent and later that it may not exceed fifty per cent. However, all the testimony was before the Commission for its consideration. The Courts hold that where a witness' testimony conflicts with other testimony, or where conflicts arise in his own testimony, it then becomes a matter of opinion for the triers of the facts, and I am not permitted to disturb findings of fact where there is testimony to sustain them. This principle is equally applicable to the Fourth ground, there the average weekly wage is found. The testimony is that Bannister lived largely on the truck, eating and lodging wherever his work carried him, and that he got Twelve and 50/100 ($12.50) Dollars a week as straight salary, and board and lodging that really average more than three and 32/100 ($3.32) dollars per week, and the Court cannot say, as a matter of fact, that this was not additional to his straight twelve and 50/100 ($12.50) dollars per week. There are a number of cases referred to in Paul Thibeault v. General Outdoor Advertising Company, 114 Conn. 410, 158 A. 912, 84 A.L.R. 184. There are a number of cases referred to in the annotations from States having dealt with the Workmen's Compensation Law for sometime. It seems from those cases that where the allowance represents a real and reasonably definite economic gain to the employee, reasonably within, or at least not contrary to, the fair intent of the parties, such allowances should be considered as part of his earnings in computing workmen's compensation.
Therefore, the appeal must be, and hereby is, denied and the award of the Full Commission affirmed.
Order of Judge Bellinger.
This matter comes before me upon a Rule to Show Cause heretofore issued by Judge Stoll, dated April 4, 1939, requiring the Defendant, American Mutual Liability Insurance Company, if any it can, to show cause why the said Defendant has not complied with the Order and judgment of this Court with respect to the payments to be made to Eugene Bannister.
Judge Rice having disqualified himself, the matter comes before me by the written consent of the Attorneys representing the respective parties.
It appears from the Petition upon which the Rule to Show Cause was issued, that the Plaintiff was injured while in the employ of W. C. Shepherd, on or about September 2, 1937, and that pursuant to proceedings duly had on July 7, 1938, the Industrial Commission of South Carolina made an award of compensation to the Plaintiff, in which it directed the American Mutual Liability Insurance Company, the carrier, to pay the amounts set forth in said award.
It further appears that said carrier appealed to this Court from such award, and that by Order of this Court the award was affirmed on February 1, 1939.
The Petition further shows that said carrier gave Notice of Intention to Appeal to the Supreme Court from said Order, but that said appeal has not been perfected, nor has the record herein been filed in the Supreme Court; and that said carrier has refused to make the payments required by the judgment of this Court, and that the Plaintiff "is much in need of the compensation, not only for his own personal living purposes, but because he is in need of a leg".
The Respondent appeared by counsel and made oral return to the Rule, and admitted the facts contained in the Petition but denied that the Plaintiff was entitled to the relief sought, taking the position that the filing of the Notice of Intention to Appeal to the Supreme Court from the Order of this Court per se acted as a supersedeas, and that the Order therefore could not be enforced until the final determination of the issues raised by the appeal. The Defendants ask that the Rule be dismissed.
Section 60 of Act No. 610, of the Acts of the General Assembly of South Carolina, (Acts of 1936, pages 1231, 1260) provides ...
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