Gurley v. Mills Mill, 16840

Decision Date09 March 1954
Docket NumberNo. 16840,16840
Citation225 S.C. 46,80 S.E.2d 745
CourtSouth Carolina Supreme Court
PartiesGURLEY v. MILLS MILL et al.

Johnson & Johnson, James B. Stephen, Brown, Turner & Brown, Spartanburg, for appellant.

Leon Moore, Thomas B. Butler, Spartanburg, for respondents.

MOSS, Acting Associate Justice.

This is an appeal from an Order of the court below affirming the Industrial Commission that appellant who sustained an injury by accident arising out of and in the course of his employment with Mills Mill, was not entitled to recover benefits under the Workmen's Compensation Law, Code 1952, § 72-1 et seq., for the injuries so received.

The facts are substantially as follows:

Appellant was an employee of Mills Mill and on May 28, 1948 he received an injury to his head and eye and was paid compensation for temporary total disability from the date of his injury until July 28, 1948, on which date he returned to work with his employer. He continued to work until March 27, 1949, on which date he resigned. Several Hearings were held before Commissioner Isaac L. Hyatt and on October 21, 1949 the Hearing Commissioner issued his award directing the payment to appellant of compensation for 40% general disability, and the sum of $1,000 for head or facial disfigurement.

The respondents in due time filed Notice and Grounds of Review by the Full Commission. This commission, composed of five members, heard the review on November 28, 1949, at which time appellant appeared in person and his disfigurement was viewed. Commissioner Isaac L. Hyatt participated in this review hearing but he did not vote or take any action on the appeal as a member of the Full Commission prior to the expiration of his term as Commissioner. He was succeeded on January 11, 1950 by Commissioner Faith Clayton. At the time Commissioner Hyatt left the commission no official action had been taken by the Full Commission on the appeal and the case was undecided. However on March 30, 1950 the Industrial Commission directed a letter to one of the Attorneys for the appellant wherein it is stated 'This is to advise that the Commission has been unable to reach a decision in this matter. There is an equal split vote between the four of the commissioners. Former Commissioner Hyatt who was serving on the commission at the time of the review conducted in this matter failed to vote before he left the commission and his successor, Commissioner Clayton, we do not feel should vote in the case unless there is another review. Therefore, we are ordering this case to be reviewed again by the Full Commission.'

Thereafter, the Commission fixed May 30, 1950 as the date for review by the Full Commission and appellant's counsel asked for a continuance and took the position that 'The Commission lacks jurisdiction to order the case reheard on account of the change in the personnel of the Commission and that the award under these circumstances (a two-two vote) is automatically affirmed by operation of law.' A continuance was refused and the Commission proceeded to revew the award in the absence of the claimant and his counsel. On October 23, 1951 the Full Commission by vote of three-two reversed the findings and holdings of the single commissioner and denied any compensation.

Thereafter, the claimant, appellant here, appealed the case to the Court of Common Pleas and same was heard before the Trial Judge, who by Order dated November 19, 1953 reversed the commission and remanded the case to the commission for an award for disfigurement. He sustained the commission in denying any other compensation.

The matter comes before this court upon appeal from the ruling and decision of the Court of Common Pleas. The appellant states the questions involved to be three in number and we shall determine the questions as stated.

The appellant takes the position that since the Full Commission had already rendered a tie vote after hearing the review that this was tantamount to an affirmance of the award under the circumstances.

The appellant urges upon this Court that we should follow the rule announced in the case of Hutchinson v. Turner, 88 S.C. 318, 70 S.E. 410, and McAulay v. McAulay, 96 S.C. 86, 79 S.E. 785. It is urged that under these cases that where this Court is composed of only four members and they equally divide, the judgment below is properly affirmed. Appellant overlooks the fact that these cases were decided upon the constitutional provision contained in Article 5, Section 12 of the 1895 Constitution of this State. The right of this court to affirm the lower court where there is an equal division in the vote stems from this constitutional provision. This provision is not applicable to the Industrial Commission and only pertains to decisions of this Court.

It should also be noted that at the time of the hearing of the application for review there were five duly appointed members of the Commission. However, Commissioner Isaac L. Hyatt vacated his office prior to the rendition of any decision upon such review. Appellant urges that Commissioner Hyatt would have voted to affirm the award. Be that as it may he did not exercise his right prior to his separation from office. To hold that Commissioner Hyatt would have voted to affirm the award would be to engage in...

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5 cases
  • Bowen v. Chiquola Mfg. Co.
    • United States
    • South Carolina Supreme Court
    • 16 Mayo 1961
    ...the Industrial Commission, as triers of fact, are conclusive. Cokeley v. Robert Lee, Inc., 197 S.C. 157, 14 S.E.2d 889; Gurley v. Mills Mill, 225 S.C. 46, 80 S.E.2d 745.' While it is true that there is some testimony that maximum healing was reached on both dates, courts should not usurp th......
  • Packer v. Corbett Canning Co.
    • United States
    • South Carolina Supreme Court
    • 6 Junio 1961
    ...the Industrial Commission, as triers of fact are conclusive. Cokeley v. Robert Lee, Inc., 197 S.C. 157, 14 S.E.2d 889; Gurley v. Mills Mill, 225 S.C. 46, 80 S.E.2d 745.' There is a natural presumption, or a presumption of fact, that one charged with the performance of a duty and injured whi......
  • Trotter v. Facility
    • United States
    • South Carolina Supreme Court
    • 15 Agosto 2011
    ...of the hearing commissioner, whose ruling will not be disturbed unless a clear abuse of discretion is shown. Gurley v. Mills Mill, 225 S.C. 46, 80 S.E.2d 745 (1954); see also Williams v. Bordon's, Inc., 274 S.C. 275, 279, 262 S.E.2d 881, 883 (1980) (“It has long been the rule in this State ......
  • Steed v. Mount Pleasant Seafood Co.
    • United States
    • South Carolina Supreme Court
    • 7 Abril 1960
    ...the Industrial Commission, as triers of fact, are conclusive. Cokeley v. Robert Lee, Inc., 197 S.C. 157, 14 S.E.2d 889; Gurley v. Mills Mill, 225 S.C. 46, 80 S.E.2d 745. Under the evidence presented, the question of whether the deceased dived into the water voluntarily or accidentally fell ......
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