Dawkins v. Capitol Const. Co.

• Decision Date: 27 November 1967
• Docket Number: No. 18729,18729
• Citation: 158 S.E.2d 651,250 S.C. 406
• Parties: Colie L. DAWKINS, Respondent, v. CAPITOL CONSTRUCTION COMPANY and United States Fidelity and Guaranty Company, Appellants.
• Court: South Carolina Supreme Court

Page 651

158 S.E.2d 651

250 S.C. 406

Colie L. DAWKINS, Respondent, v. CAPITOL CONSTRUCTION COMPANY and United States Fidelity and Guaranty Company, Appellants.

No. 18729.

Supreme Court of South Carolina.

Nov. 27, 1967.

Bernard Manning, Columbia, for appellants.

Luther M. Lee, Dallas D. Ball, Columbia, for respondent.

GEORGE T. GREGORY, Jr., Acting Associate Justice.

This is a workmen's compensation case on appeal to this court by the employer and carrier from an order of the circuit court granting compensation.

Claimant injured his right ankle when working in Charleston, South Carolina, on April 14, 1965. The testimony as to the circumstances under which he was injured is in conflict. The employer, Ernest W. Medlin, was doing business under the name of Capitol Construction Company and is hereafter referred to as Medlin. Medlin admitted that he employed claimant during the week beginning April 12, 1965, as a welder. Medlin was on the job site when claimant was injured and claimant verbally reported the injury to Medlin immediately after being injured, but did not make a written report of the accident until his attorney wrote to the Industrial Commission requesting a hearing by letter dated September 14, 1965. Claimant did not consult a physician for treatment of the injury until September 14, 1965. Claimant's testimony shows that he worked for Medlin until May 22, 1965, and then worked for Trojan Steel Corporation, Columbia, South Carolina, from May 22, 1965, until September 14, 1965.

The first issue presented by this appeal relates to claimant's employment at the time of his accidental injury on April 14, 1965. Was he a covered employee of Medlin? This issue is jurisdictional and the court has the power and duty to consider all of the evidence and reach its own conclusion therefrom. Allen v. Phinney Oil Co., 241 S.C. 173, 127 S.E.2d 448.

Claimant testified that he was injured while welding bar joists to the steel frame of a building under construction for the Jewish Community Center; that Medlin had a subcontract for the erection of the steel frame for the building; that Medlin personally paid him in cash each weekend in Columbia, South Carolina; that claimant rode from his home in Columbia to Charleston each Monday in a truck owned by Medlin and returned to Columbia from Charleston in the truck each Friday; that Medlin carried claimant to Columbia to visit a physician when his eye was injured on the job. Medlin contended that he did not have a subcontract to erect the steel frame for the building and that claimant was employed by Frank Sims at the time of the accidental injury, April 14, 1965.

'Before the provisions of the Workmen's Compensation Act can become applicable, the relation of master and servant, or employer and employee, or some appointment must exist. This is the initial fact to be established * * *

'* * * the burden of proving the relationship of employer and employee is upon the claimants, * * *. And this proof must be made by the greater weight of the evidence. * * *' Holland et al. v. Georgia Hardwood Lumber Co. et al., 214 S.C. 195, 51 S.E.2d 744. Marlow v. E. L. Jones & Son, Inc., 248 S.C. 568, 151 S.E.2d 747.'

The greater weight of the evidence in this case supports the finding that claimant was an employee of Medlin, April 14, 1965, when he received the accidental injury.

The second question relates to probable cause. By it, appellants contend that the Commission erred in determining that the injury of April 14, 1965, was the probable cause of claimant's present disability, since claimant worked steadily for five months following the injury, did not see a physician until September 14, 1965, and it is claimed that there was an independent intervening injury which necessitated treatment of the ankle in September, 1965. The testimony of Dr. David E. Holler, the attending physician, clearly indicates that the subsequent injury suffered by claimant when he jumped over a log while deer hunting in late August or early September, 1965, could not have caused the disability to claimant's ankle which he found upon examining and treating claimant on September 14, 1965, and subsequent thereto. His testimony further indicates that the disability was most probably caused by an injury occurring two, three or four months prior to September 14, 1965, and possibly a year earlier.

'It is the law of this State that a claimant must establish by the preponderance of the evidence the facts which will entitle him to an award under the Workmen's Compensation Act. Fowler v. Abbott Motor Co., et al., 236 S.C. 226, 113 S.E.2d 737; and Glover v. Columbia Hospital, 236 S.C. 410, 114 S.E.2d 565. We have also held that in workmen's compensation cases the Industrial Commission is the fact-finding body; and this Court and the Circuit Court, both being Appellate Courts in workmen's compensation matters, can only review the facts to determine whether or not there is any competent evidence to support the findings of the fact-finding body. If there is, both this Court and the Circuit Court are without power to pass upon the force and effect of such evidence. When there is a conflict in the evidence, either of different witnesses or of the same witness, the findings of facts of the Industrial Commission, as triers of fact are conclusive. Steed, et al. v. Mount Pleasant Seafood Co., et al., 236 S.C. 253, 113 S.E.2d 827, and the cases therein cited.' Walsh v. United States Rubber Company, et al., 238 S.C. 411, 120 S.E.2d 685.

The record contains ample evidence to support the findings of the Commission that the April 14, 1965, injury was the proximate cause of claimant's disability.

By the third question appellants contend that the Commission did not find as a fact that the claimant had an excuse for his failure to file written notice to the accident within thirty days after the injury; that claimant did not have reasonable excuse; that no facts were stated by the Commission to sustain the conclusion that the appellants were not prejudiced by the failure to file a timely report and that appellants were prejudiced by that omission.

Section 72--301 of the 1962 Code is as follows:

'Every injured employee or his representative shall immediately on the occurrence of an accident or as soon thereafter as practicable give or cause to be given to the employer a written notice of the accident and the employee shall not be entitled to physician's fees nor to any compensation which may have accrued under the terms of this Title prior to the giving of such notice, unless it can be shown that the employer, his agent or representative, had knowledge of the accident or that the party required to give such notice had been prevented from doing so...