Holland v. Georgia Hardwood Lumber Co.

• Decision Date: 03 February 1949
• Docket Number: 16178.
• Parties: HOLLAND et al. v. GEORGIA HARDWOOD LUMBER CO. et al.
• Court: South Carolina Supreme Court

51 S.E.2d 744

214 S.C. 195

HOLLAND et al. v. GEORGIA HARDWOOD LUMBER CO. et al.

No. 16178.

Supreme Court of South Carolina

February 3, 1949

J. Julian Bush, of Columbia, Edgar A. Brown, of Barnwell, for appellants.

Benjamin A. Bolt, of Greenville, R. S. Jones, of Franklin, N. C., for respondents.

FISHBURNE Justice.

This is a proceeding under the Workmen's Compensation Act. Two questions are presented for determination by this court: (1) Was the decedent, J. B. Holland, at the time of his death, an employee of Georgia Hardwood Lumber Company? (2) Was sufficient evidence adduced from which the reasonable inference could legitimately be drawn, that the decedent's death resulted from an accident arising out of and in the course of his employment?

The hearing commissioner found that J. B. Holland was, with respect to the alleged work in which he was engaged at the time of his fatal injury, an employee of the Lumber Company and granted an award. A majority of the commission took the opposite view, reversed the findings of the commissioner, and denied the award. They held that at the time of the fatal accident, the decedent was a passenger on the truck in which he met his death; that his death did not result from an accident arising out of and in the course of his employment; that he was not under orders or instructions from the appellant, and that he did not have any duties to perform with reference to the truck. Upon exceptions being taken to the Greenville County Court, that court reversed the Industrial Commission, and held, in accord with the hearing commissioner, that the decedent was an employee of the Lumber Company, and reinstated the award for compensation.

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, and this is the first question we shall consider.

The Act defines an employee as a 'person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written * * *.' Code, Section 7035-2.

'This relation is contractual in character and to constitute one an employee it is essential that there shall be a contract of service. However, no formality is required. The contract may be oral or written. It may be accomplished with a few words or it may be implied from conduct without words. It is sufficient if the circumstances show unequivocally that the parties recognize each other as employer and employee. 'A contract will arise even where the employer does not intend to enter into one, if his conduct is such as to lead claimant, acting as a reasonable man, or in good faith, to believe that he is being employed.' 71 C.J. Page 431. Moreover, 'the hiring, or contract for employment, is the jurisdictional factor' and not the actual commencement of work thereunder. Simpkins v. Lumbermens Mutual Casualty Co., 200 S.C. 228, 20 S.E.2d 733, 738. ' Alewine v. Tobin Quarries Inc., 206 S.C. 103, 33 S.E.2d 81, 83.

We have uniformly held that where the jurisdiction of the Industrial Commission to hear and consider a claim for compensation under the provisions of the South Carolina Workmen's Compenation Act, Code, Section 7035-1 et seq., is challenged by an employer on the ground that such employer is not subject to the provisions of the Act, the findings of fact made by the Commission on which its jurisdiction is dependent, are not conclusive. The circuit court, and this court on appeal of either party to the proceeding, has both the power and the duty to consider all the evidence in the record and find therefrom the jurisdictional facts, without regard to the finding of such facts by the Commission; and will conclude the issue in accord with the preponderance of the evidence. Watson v. Wannamaker & Wells, Inc., 212 S.C. 506, 48 S.E.2d 447; Miles v. West Virginia Pulp & Paper Co., 212 S.C. 424, 48 S.E.2d 26; Tedars v. Savannah River Veneer Co., 202 S.C. 363, 25 S.E.2d 235, 147 A.L.R. 914; McDowell v. Stilley Plywood Co., 210 S.C. 173, 41 S.E.2d 872; Knight v. Shepherd, 191 S.C. 452, 4 S.E.2d 906.

In a proceeding of this kind before the Commission, for compensation, the burden of proving the relationship of employer and employee is upon the claimants, who are the father and mother of the decedent. And this proof must be made by the greater weight of the evidence. The Industrial Commission found as a matter of fact, and ruled as a matter of law, that the decedent, J. B. Holland, was not an employee of the Georgia Hardwood Lumber Company at the time he met his death.

The direct testimony in this case offered by the lumber company, and the circumstantial evidence introduced by claimants, as to whether or not the decedent was an employee of the Lumber Company at the time he was killed, are materially conflicting. But in our opinion, the preponderance of the evidence is in accord with the finding made by the Commission, which held that at the time of his accidental death, the decedent was not employed by the Lumber Company.

The record discloses that J. B. Holland had been intermittenly employed by the appellant lumber company for about two years prior to his accidental death, on May 19, 1946. He was employed on an hourly basis and his wages approximated sixty cents as hour. He appears to have been mainly hired as a truck driver in the hauling of logs to the mill, but he had also performed work in the planing mill and in the sawmill operated by the lumber company at its plant at Cleveland, South Carolina.

A separate corporation known as Mill Stores, Inc., owned two stores, one at Cleveland, South Carolina, and the other at Jackson, Mississippi. The store at Cleveland was operated as a commissary for the convenience of persons in the employment of the lumber company and for others who wished to trade there. Mr. J. L. Murray, who was the manager of both stores, wanted to ship a load of corn meal from Cleveland to the store at Jackson, Mississippi. Similar shipments of meal had theretofore been made in trucks hired by Murray from the lumber company, but the decedent, Holland, had never been engaged as driver or otherwise placed in charge of such trucks.

Carl Gregg, an employee of the Lumber Company at Cleveland, desired to transfer his household goods from Jackson, Mississippi, where he formerly resided, to Cleveland, South Carolina, and learning of Mr. Murray's intentions with reference to the shipment of corn meal, he interviewed him and thereafter undertook to obtain the use of a truck from the Lumber Company for this double purpose. Murray told Gregg that this would be agreeable to him, but that Gregg would have to make the arrangement with Mr. Cheatham, who was the manager of the Georgia Hardwood Lumber Company at Cleveland, and in charge of the trucks. Gregg than went to see Mr. Cheatham for the purpose of securing the necessary truck. Present on this occasion were Mr. Cheatham, Gregg, and Luke Clark, who was the foreman of the Lumber Company planing mill and the father-in-law of Gregg.

It was mutually agreed between Gregg and Mr. Cheatham that the lumber company would furnish the truck to be used in taking the meal from the store at Cleveland to Jackson, Mississippi and in bringing back the household furniture of Carl Gregg. Gregg was to be in charge of the truck as driver and was to be paid by the lumber company his regular hourly wage for the time consumed in making the trip. Reimbursement was to be made to the lumber company by the Mill Store, on a cost plus basis for the transportation of the meal. The fact that Gregg was alone...