Kennerly v. Ocmulgee Lumber Co.
| Decision Date | 25 July 1945 |
| Docket Number | 15759. |
| Parties | KENNERLY et al. v. OCMULGEE LUMBER CO. et al. |
| Court | South Carolina Supreme Court |
Thomas, Cain & Black, of Columbia, and Walker Walker & Jenkins, of Summerville, for appellants.
J D. Parler, of St. George, and J. Julian Bush, of Barnwell for respondents.
The facts of this case are within a narrow compass.
Ocmulgee Lumber Company, a corporation chartered under the laws of the State of Georgia, and duly domesticated under the laws of South Carolina, owns and operates a sawmill near Summerville S. C. Its main timber holdings in Dorchester County are on a tract of land containing nearly four thousand acres, the fee to which is owned by said Company. This lumber company, in accord with its custom as to its logging operations, entered into a contract with one W. L. Helmey, Jr., an experienced logging contractor (and also with at least one other), to cut and haul to its mill at or near Summerville the timber from the large tract of land above mentioned, paying him therefor at the end of each week on the basis of a certain price per thousand feet based on the log measurements. This timber was cut under the general supervision of a representative of the lumber company, that is to say, a representative of the lumber company would from time to time visit the premises for the purpose of determining whether property lines were being properly observed, whether or not all the merchantable timber was being cleared up as the work progressed, and whether all the merchantable timber suitable for sawmill purposes was being cut in standard lengths so as to conserve all of the merchantable logs in the trees by cutting the logs and working them out most advantageously to conserve the footage on the acreage.
Helmey owned his own logging equipment, hired and paid his own employees who worked solely under his directions, and supervised and conducted the logging operations. He also built at his own expense the necessary roads into the timber, and on which to haul same out and to highways leading to the lumber mill, but the lumber company furnished him without charge the necessary lumber and timber with which to build and keep in repair these roads.
Prior to the accident out of which this action arose, Ocmulgee Lumber Company elected to come within the provisions of The South Carolina Workmen's Compensation Act, in respect of the operation of its sawmills, planing mills, lumber yard clerical office employees, salesmen and collectors; and its co-appellant, American Mutual Liability Insurance Company, issued a policy of insurance covering the operations above set forth. Helmey has never elected to come within the said Workmen's Compensation Law. Code 1942, § 7035-1 et seq.
In October, 1943, one William Kennerly, Jr., an employee of the said Helmey, was killed while logging timber for Helmey from the tract of land hereinabove mentioned, and the beneficiaries entitled to recover under the said Compensation Law proceeded against the appellants, Ocmulgee Lumber Company and the American Mutual Liability Insurance Company, to recover under the provisions of the said Law for the death of the said Kennerly. The appellants deny liability on the grounds that the said Ocmulgee Lumber Company was not engaged in the logging operations in which the said Kennerly was engaged at the time of his death, and that it, the said Ocmulgee Lumber Company, had never elected to come within the provisions of the said Law in respect of logging operations.
The Hearing Commissioner found that said Kennerly received the fatal injuries while engaged in the performance of a part of the business of the Ocmulgee Lumber Company and that the said appellants were bound by, and subject to, the terms and provisions of the said Compensation Law. These findings were sustained by a majority of the Commission and by the Court of Common Pleas on appeal from the Opinion and Award of the majority of the Commission, and this appeal followed.
The only question to be determined in this appeal is whether the decedent, William Kennerly, Jr., who was employed by one W. L. Helmey, Jr., in these logging operations conducted by the said Helmey for the benefit of Ocmulgee Lumber Company, was brought within the provisions of the South Carolina Workmen's Compensation Law by reason of the election of the appellant, Ocmulgee Lumber Company, to accept the provisions of said Compensation Law as to its sawmill operations as hereinabove outlined.
The policy of insurance issued by American Mutual Liability Insurance Company to Ocmulgee Lumber Company, and filed with the Industrial Commission for the year, 1943 (also for the years, 1942 and 1944), covered the operations of the latter named Company as hereinabove indicated, and also contained the following provision:
'This agreement shall apply to such injuries so sustained by reason of the business operations described in said declarations which, for the purpose of this insurance, shall include all operations necessary, incident, or appurtenant thereto, or connected therewith, whether such operations are conducted at the work places defined and described in said declarations or elsewhere in connection with, or in relation to, such work places.'
In addition thereto, the policy has the standard South Carolina endorsement stipulating that the obligations of the Insurance Company include the Workmen's Compensation Law of this State, the second paragraph of which is as follows:
'2. If this employer is an owner, contractor or subcontractor within the meaning of these words as used in Section 19 of said compensation law, and he shall subcontract or otherwise provide for the performance of any of the work included in the employer's contract and covered by this insurance, the remuneration of all employees of every subcontractor of this employer shall be included in the return of remuneration of the direct employees of this employer and shall in all respects be governed by the same terms, conditions and requirements of the policy with respect to premium computation on such remuneration. The meaning of the word subcontractor as used herein shall be that stated in said Section 19. The requirements of this paragraph shall not apply with respect to the employees of any such subcontractor who furnishes this employer with evidence satisfactory to the Company that such subcontractor has complied with the provisions of said compensation law, during the continuance of such work, as respects insurance security as set forth in Section 67 of said Law.'
Section 7035-16(b), Code of 1942, provides that the Workmen's Compensation Act shall not apply to 'employees or employers principally engaged in the business of operating a sawmill, * * *, nor to logging operations and work incident thereto' unless such employees and employers voluntarily elect to be bound by the Act as provided in Section 7035-5(2) of the Code. The last mentioned Section provides that any person exempted from the mandatory provisions of the Act 'may come in under the terms of [the Act] and receive the benefits hereof and be subject to liabilities hereof. * * *'; and as aforestated, the Ocmulgee Lumber Company elected to come under the terms of the Act in respect to the operation of its sawmills, planing mills, lumber yard, clerical office employees, salesmen and collectors.
Where the employer elects to come within the terms of the Act as is permitted by Section 7035-5(2) of the Code, no positive action on the part of the employee is required in order to entitle such employee to the benefits of the said Act. See Ham v. Mullins Lumber Co., 193 S.C. 66, 7 S.E.2d 712.
The settled law in this State is that the 'basic purpose (of the Workmen's Compensation Act) is inclusion of employers and employees, and not their exclusion, and that its presumptions and its penalties are directed towards the end of effecting coverage rather than non-coverage.'
It is the position of the appellants tha...
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