Ervin v. Myrtle Grove Plantation

• Decision Date: 22 January 1945
• Docket Number: 15704.
• Citation: 32 S.E.2d 877,206 S.C. 41
• Parties: ERVIN et al. v. MYRTLE GROVE PLANTATION et al.
• Court: South Carolina Supreme Court

32 S.E.2d 877

206 S.C. 41

ERVIN et al. v. MYRTLE GROVE PLANTATION et al.

No. 15704.

Supreme Court of South Carolina

January 22, 1945

Wise & Whaley and J. F. Spears, all of Columbia, for appellants.

Edgar A. Brown, of Barnwell, and James Julien Bush, of Columbia for respondents.

OXNER Justice.

This is a proceeding under the Workmen's Compensation Act by the widow and children to recover compensation for the death of Laurie N. Ervin, who was employed as superintendent and general manager of Myrtle Grove Plantation, a large hunting preserve and farm in Beaufort County.On December 20, 1943, Mr. Ervin drove a Plymouth automobile which belonged to his employer from the plantation to Beaufort, a distance of approximately 27 miles and while returning that night had an accident about 8 o'clock at a point about 13 miles from Beaufort receiving injuries from which he died on December 25th without regaining consciousness.

The Industrial Commission held that his death arose out of and in the course of his employment and made an award to claimants for the maximum death benefits under the Act, which was affirmed by the Circuit Court.The employer and carrier have appealed from the order of the Circuit Court and the only question for determination is whether there is any competent testimony reasonably tending to sustain the conclusion of the Commission that Mr. Ervin sustained his injuries while in the course of his employment.It is well settled that the limit of the inquiry which this Court is permitted to make "is whether there is any competent testimony reasonably tending to support the finding of fact by the Commission and that the sufficiency of the evidence is for the Industrial Commission but, of course, any finding of fact by the Commission must be founded on evidence, and cannot rest on surmise, conjecture or speculation."Smith et al. v. Southern Builders,202 S.C. 88, 24 S.E.2d 109, 111.

Mr. Ervin lived with his family in a house on the plantation and had been superintendent for a period of approximately four years prior to his death.The owners lived in Connecticut and only visited the plantation at intervals during the winter season.Mr. Ervin had general supervision and "came and went" as the circumstances required, without direction from his employer.Among his duties he was required to see that everything on the plantation was kept in repair and good working order.He had no fixed or regular hours of work and, if the occasion demanded, was expected to attend to his duties at any hour of the day or night.He had the use of several automobiles, including the one involved in the fatal accident.When his personal car was not available, he was at liberty to drive any of these cars for his private use.

There were three pumps which supplied water for the plantation.About the middle of December there was a hard freeze, which cracked some parts on two of the water pumps, resulting in their being out of order.This left only one pump in operation.The owners were expecting guests for the Christmas season and for several days prior to his death, Mr. Ervin was busily engaged in trying to get the pumps repaired and was fearful of another freeze coming before the pumps were repaired, which might result in the plantation being without water.After his death the two pumps under repair were found dismantled with the parts lying on the floor.According to respondents' testimony, considerable repair work connected with the plantation was done, and most of the parts for the machinery purchased, at Beaufort.

After lunch on December 20th, Mrs. Ervin and the children left the plantation for a Christmas visit to her relatives at Dillon, S. C.Her husband was working on these pumps when she left.Carrie McPherson, a servant in the Ervin home, testified that about 2:30 p. m. on the day of the fatal accident, Mr. Ervin told her to hurry through with her work so he could take her home "a little early because he had some special business to attend to in Beaufort."He carried her home about fifteen minutes later.J. C. Moylin, a petroleum distributor at Waterboro from whom gasoline for the plantation was usually purchased, and a close friend of the deceased, testified that on the same afternoon Mr. Ervin called him over long distance, stating that he was out of gasoline and requesting that some be delivered at once, to which he replied that he would be unable to do so until the next morning.Mr. Moylin further testified that when the above conversation was concluded, he invited Mr. Ervin and his family to his home for that evening and was informed by Mr. Ervin that his wife was not at home, whereupon Mr. Moylin asked him to come alone, to which Mr. Ervin replied that he would like to, but "he had two trips to make that afternoon and then go to Beaufort for something for the plantation and that it would be too late for him to come up."Mr. Moylin was unable to fix the exact hour of this conversation.The record does not disclose the exact time that the deceased left the plantation.There is testimony that he purchased gasoline at Beaufort late in the afternoon of this day and no one was in the car with him.After his death there was found in the car a paper box marked "Standard Cup Leathers."When found this box contained some babbit metal.It appears that this box, or one exactly like it, was kept by Mr. Ervin in the tool house as a container for washers or other parts used in connection with the repair of pumps.At the time of the accident the deceased was dressed in brown boots, tan riding pants and tan corduroy jacket.

Appellants objected to the testimony by deceased's servant and Mr. Moylin as to statements made by the deceased of his intention to go to Beaufort and his purpose in doing so as violating the hearsay rule.Respondents contended, and the trial Judge held, that these declarations were admissible as a part of the res gestae.We think the determination of this appeal depends upon the question of the admissibility of this testimony.If these declarations are not admissible, the remaining testimony, while showing an occasion for the deceased to make a trip to Beaufort in connection with the business of the plantation, is hardly sufficient to show that he in fact did so.On the other hand, if these declarations can be properly considered, we think there is sufficient testimony to support the finding of fact by the Industrial Commission that in making this trip to Beaufort, the deceased was acting in furtherance of his employer's business.

Where the purpose of a person since deceased in making a trip or journey is a material issue in a case, the overwhelming weight of authority is to the effect that declarations by such a person as to his purpose or destination, made at or about the time of his departure, are admissible to establish the destination or purpose of such a journey.Jones, Commentaries on Evidence, 2d Ed., vol. 3, p. 2243, § 1220;Wigmore on Evidence, 2d Ed., vol. 3, p. 696, par. 1725;Encyclopedia of Evidence, vol. 11, p. 422.An exhaustive annotation on the admissibility of such testimony will be found in 113 A.L.R. beginning on page 268.The annotation covers various types of cases, both civil and criminal, but those relating to the admissibility of such testimony in actions under workmen's compensation statutes will be found beginning on page 300.While it is firmly established that such testimony is admissible, jurists and text-writers are not in accord as to the theory of its admissibility.Such declarations by many, and perhaps by most, of the authorities are admitted as characterizing the journey and as part of the res gestae; they are spoken of by some as "verbal acts"; and they are characterized by others as original evidence admissible as an exception to the hearsay rule.However, it would serve no useful purpose to enter into an extended discussion of these various theories of admission of such testimony.The rule itself is now of more immediate concern than the theory upon which it is founded.

The foregoing rule has been applied in numerous cases where death benefits were claimed under workmen's compensation statutes and the issue in controversy was whether the employee at the time was engaged in the...