Cokeley v. Robert Lee, Inc.

• Decision Date: 27 May 1941
• Docket Number: 15266.
• Parties: COKELEY et al. v. ROBERT LEE, Inc., et al.
• Court: South Carolina Supreme Court

14 S.E.2d 889

197 S.C. 157

COKELEY et al. v. ROBERT LEE, Inc., et al.

No. 15266.

Supreme Court of South Carolina

May 27, 1941

Cooper & Maher, of Columbia, for appellants.

Norbert A. Theodore and Heyward Brockinton, both of Columbia, for respondent.

J STROM THURMOND, Acting Associate Justice.

This is an appeal from an order of the Circuit Court affirming an award of the South Carolina Industrial Commission under the Workmen's Compensation Act. Act July 17, 1935, 39 St. at Large, p. 1231 .

Louis Cokeley, colored, age 23, son of Nathaniel and Susan Cokeley the respondents, was employed as a laborer by Robert Lee Inc., and on February 14, 1940, while crossing the Santee River en route to his place of employment, was accidentally drowned. The respondents made application to the Industrial Commission for compensation, under the Workmen's Compensation Act, against the appellants. Liability being denied, a hearing was held by Commissioner John H. Dukes on April 30, 1940, at which hearing only one witness, Nathaniel Cokeley, father of the deceased employee, testified.

Commissioner Dukes filed his opinion on June 7, 1940, and found that the respondents were dependent upon Louis Cokeley for a living that Cokeley received an average weekly wage of $12 or a compensable wage of $7.20, that Cokeley was performing duties and labor within the scope of his employment at the time of the fatal accident, and he awarded compensation to the respondents on the basis of whole dependency, to wit, $7.20 per week for 350 weeks, commencing February 14, 1940.

The appellants appealed from the findings and award of the Hearing Commissioner to the full commission. As a result of this review, the full commission, speaking through Commissioner Hyatt, on August 10, 1940, found that the deceased employee, Louis Cokeley, gave all of his earnings to his parents, and held that the respondents, being his next of kin, were entitled to compensation under Sec. 40 of the Workmen's Compensation Act, as well as under Sec. 38 of said act, as amended by Act May 21, 1937, § 5, 40 St. at Large, p. 616, and sustained the findings and award of the Hearing Commissioner.

The appellants appealed from the decision of the full Commission to the Circuit Court. His Honor, Judge Philip H. Stoll, heard the matter, and on September 24, 1940, affirmed the award of the full commission.

The appellants appealed from the order of Judge Stoll to this Court, assigning six exceptions which present the question whether, under the applicable legal principles, the evidence sustains the award. The full commission upheld the award on both the theory of dependency, whether partial or total, and on the theory that respondents were the next of kin of the deceased. The Circuit Judge sustained both views, and we are of the opinion that he was correct.

We shall first consider the question whether the award finds support in the evidence, viewing the respondents as claimants on the basis of dependency. In their brief, the appellants admit that the death of Louis Cokeley resulted from injury by accident arising out of and in the course of his employment, that he received an average weekly wage (for compensation purposes) of $12, and that respondents were "dependents," but contend that the respondents, under the evidence, were only "partially dependent" rather than "wholly dependent" upon their deceased son.

Section 38 of the Workmen's Compensation Act, in part, provides: "If death results proximately from the accident and within two years thereafter, or while total disability still continues, and within six years after the accident, the employer shall pay for or cause to be paid, subject, however, to provisions of the other sections of this Act in one of the methods hereinafter provided, to the dependents of the employee, wholly dependent upon his earnings for support at the time of accident, a weekly payment equal to sixty (60%) per cent of his weekly wages, but not more than twenty-five ($25.00) dollars, nor less than five ($5.00) dollars, a week for a period of three hundred and fifty weeks from the date of the injury, and burial expenses not exceeding two hundred ($200.00) dollars. If the employee leaves dependents only partly dependent upon his earnings for support at time of the injury, the weekly compensation to be paid, as aforesaid, shall equal the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependent bears to the annual earnings of the deceased at the time of his injury. ***"

If the respondents were wholly dependent upon their deceased son, the correct weekly payment, under the above section of the statute, would be 60% of $12, or $7.20 per week, for the statutory period of 350 weeks. If they were only partly dependent upon him, the dependency must be measured by the support he contributed from his earnings. Moll v. City Bakery, 199 Mich. 670, 165 N.W. 649. In arriving at the rate of weekly compensation to be awarded the parents, the determinative factor is the contribution of the deceased son to them. In order to ascertain the correct weekly compensation for partial dependents, under the said statute, it is necessary to determine: (1) The amount of the weekly payment for persons wholly dependent upon the deceased employee; (2) the amount contributed annually to the support of such partial dependents by the deceased employee; (3) the annual earnings of the deceased at the time of his injury.

The appellants contend that the deceased employee contributed only $3 per week, or the sum of $156 annually, to the support of his dependent parents. The total annual earnings of the deceased, based on his average weekly wage of $12, amount to $624. On this basis, the proposition, stated mathematically, under the statute, would be as follows: X, the amount of the weekly compensation to be determined, is to $7.20, the amount of the weekly payment for persons wholly dependent upon the deceased employee, as $156, the amount it is alleged the deceased employee contributed annually to the support of his dependent parents, is to $624, the annual earnings of the deceased at the time of his injury, or X:$7.20::$156.00:$624.00. The product of the extremes being equal to the product of the means, we have the formula: $624.00X=$1,123.20; X=$1.80.

A simpler method of computing the weekly compensation to which a partial dependent is entitled, is to divide the "annual contribution of the deceased" by the "annual earnings of the deceased", and multiply the result by the "weekly payment for a person wholly dependent." If the figures in the above computation are used, the formula, under this method, is: $156.00:$624.00 X $7.20=$1.80.

The appellants claim that the amount of $1.80 represents the weekly compensation which the Commission should have awarded the parents as a result of the death of their son. The Commission found, though, that the deceased employee gave all of his earnings ($12 per week) to the support of his dependent parents, and it also found that the parents were wholly dependent upon their deceased son; and it granted them weekly compensation of $7.20. If either of the above findings of the Commission is supported by any evidence, the award is proper and should not be disturbed.

Where there is any testimony supporting the Industrial Commission's award, the Court of Common Pleas and the Supreme Court are without power to review the findings of fact. It is the well settled law of this State that if there is any competent evidence to support the findings of fact of the Industrial Commission, such findings are conclusive on appeal. Murdaugh v. Robert Lee Construction Company, 185 S.C. 497, 194 S.E. 447; Phillips v. Dixie Stores, 186 S.C. 374, 195 S.E. 646; Spearman v. Royster Guano Company, 188 S.C. 393, 199 S.E. 530; Rudd v. Fairforest Finishing Company, 189 S.C. 188, 200 S.E. 727; Rice v. Brandon Corporation, 190 S.C. 229, 2 S.E.2d 740; Layton v. Hammond-Brown-Jennings Company, 190 S.C. 425, 3 S.E.2d 492; Bannister v. Shepherd, 191 S.C. 165, 4 S.E.2d 7; Ham v. Mullins Lumber Company, 193 S.C. 66, 7 S.E.2d 712; Briney v. Hopper Construction Company, 146 Kan. 927, 73 P.2d 1110; Baker v. Graniteville Company, S.C., 14 S.E.2d 367, decided April 10, 1941.

Some of the evidence pertinent to the issues in this appeal will now be considered. The sole witness, Nathaniel Cokeley, on direct examination, testified:

"Q. How much support did he give you? A. Well now, to tell you the truth, he worked and what he made he would bring to me."

The said witness, Cokeley, on cross-examination, testified as follows:

"Q. What is the most he ever brought you a week? A. Well, to tell the truth, he would bring me about $12.00.

"Q. How many times did he bring you $12.00? A. I don't know.

"Q. You say he brought you two or three dollars a week? A. Yes.

"Q. And then you say one time he brought you $12.00? A. Yes.

***

" Q. And all he made he brought to you? A. Yes.

***

"Q. Do your other children send you money from time to time? A. No.

"Q. They don't send you any money? A. No.

"Q. The ones in Philadelphia, Washington and Richmond send you anything? A. No, nothing at all.

"Q. You do make a little money yourself, don't you? A. Mighty little.

"Q. How much do you make? How much do you make a month? A. I don't make much.

***

"Mr Dukes: Do you own your place up there? A. No.

***

"Q. Do you grow anything on the place? A. No.

"Q. Do you live off of the place? A. Well, I do the best I can. With the help of the boys I make a little corn, five or six acres, and potatoes.

"Q. Do you raise any hogs? A. If you call it that, now and then I get one or two.

"Mr Brockinton: Do you rent or...