King v. Wesner
| Decision Date | 19 August 1941 |
| Docket Number | 15310. |
| Parties | KING v. WESNER et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Calhoun County; L. D Lide, Judge.
Proceeding under the Workmen's Compensation Act, 39 St. at Large, p 1231 et seq., § 1 et seq., by H. S. King, claimant, against J. O. Wesner and others, copartners doing business under the firm name of the Cameron Bedding & Manufacturing Company employers, to recover for the death of Heber L. King deceased employee. From an order confirming an award of the Industrial Commission granting compensation, the employers appeal. [Copyrighted Material Omitted]
The order of Judge Lide, requested to be reported, follows:
Heber L. King, the deceased employee, will sometimes hereinafter be referred to as the plaintiff, and Cameron Bedding & Manufacturing Company, employer, will likewise sometimes be referred to as the defendant. Mr. King was a young man about twenty-three years of age and was employed by Cameron Bedding & Manufacturing Company, a partnership, consisting of J. O. Wesner, W. A. Rast and A. L. Crook, engaged in the business of manufacturing mattresses at Cameron, S.C., the scope of Mr. King's employment being perhaps the main contested matter involved herein. But he came to his death on August 9, 1939, as the result of an accident which occurred while he was on a truck of the employer loaded with cartons of mattresses which were being taken from the factory of the company to the railroad depot at Cameron. It appears that the plaintiff King was in the back of the truck holding on to the mattresses when something happened which caused some of the mattresses to slip off, whereupon he also fell, resulting in his death shortly thereafter. The defendant denying liability, the case came on to be heard before William B. Todd, Esq., one of the Commissioners, who after taking the testimony filed his opinion and award in favor of the claimants, and in due course an appeal was taken to the full Commission, which after a hearing affirmed the opinion and award of the hearing Commissioner, the opinion and award of the majority of the commission being by Commissioner Martin and dated August 23, 1940. Thereafter in due time an appeal was taken to this Court, which came on to be heard before me at my chambers at Orangeburg on November 27, 1940, and after full argument of counsel was taken under advisement.
There are seven exceptions taken by the employer, the last of which was to the effect that the Commission erred in refusing to grant the defendant's motion for a nonsuit, in that the claimants had failed to prove that Heber L. King died as the result of an accident which occurred during the course of his employment. It should be stated here that the undisputed evidence tends to show that Heber L. King was employed by the Cameron Bedding & Manufacturing Company from about the 1st of April, 1939, until his death on August 9th of that year, and that he was what is known as a piece worker for the company, engaged in the stitching and tufting of mattresses, but that at times he did other work for the company, such as the loading and unloading of trucks containing mattresses being transported from the factory to the railroad station. The contention of the defendant, however, is, and testimony is adduced to that effect, that on the occasion of his death he had no instruction to go on the truck and that he had no business there for the company, and hence that the accident did not arise out of his employment.
While perhaps a motion for a nonsuit is not technically the sort of a motion that can be made at a hearing of this kind, yet it may be properly construed as a motion to dismiss the claim on the ground that the claimant had failed to produce evidence tending to establish such claim. But even if the same rules applicable to the trials of actions at law before a jury are followed, it is quite clear that a refusal of a motion for a nonsuit may be sustained although the testimony in chief did not make out a case, where the evidence offered by the defendant or other evidence later introduced in the case tended to support the allegations on which the claim was based. But upon a careful consideration of the evidence offered in chief here, without regard to other evidence, I do not think Commissioner Todd was in error in overruling the motion. The father of the deceased testified that while he did not know just what his son's duties were, he had seen him stitching or tufting mattresses, etc., and that he had also seen him working on a truck time and time again, which was loaded with cartons of mattresses which were being taken from the factory to the depot. There was also testimony by another witness who saw the accident who said that he had seen young King on other occasions on the truck which was hauling mattresses to the depot. And another witness testified that he had seen young King working around the truck loading and unloading at the depot. Surely the testimony was ample to make out a prima facie case.
One of the exceptions alleges in substance that the only reasonable inference that can be drawn from the evidence is that Heber L. King was not acting in the course of his employment when the accident occurred which resulted in his death, and there is another exception that the uncontradicted competent evidence is to the effect that young King was not so acting at the time in question.
But in addition to the witnesses for the plaintiff in chief above referred to there was testimony by another witness in behalf of plaintiff that he had seen Heber L. King on the truck a number of times while it was being driven to and from the depot and the factory with loads of mattresses in cardboard boxes of various sizes; and that it was unusual to see just one man handling a truckload of mattresses; and that the man on the back of the truck generally has one hand on the side of the truck and one on the mattresses, the cartons being slippery and having a tendency to slip off. Still another witness testified to the same effect. Indeed, it was admitted that where the load was of sufficient size the driver of the truck usually had someone to assist him, but it was contended in behalf of defendant that this load being of 19 single mattresses only, no extra man was required or provided.
The driver of the truck, M. B. Rast, testified in behalf of the defendant that he did not know Mr. King was on the truck until after the accident, and that he had no duties to perform thereon that the witness knew of. The driver had only worked for the company for a period of from four to six weeks during the employment of King, but he testified that King never did help him load or unload mattresses, qualifying this statement later that perhaps King did help him once with this kind of work. He testified definitely that King was helping Mr. Wesner, one of the co-partners of the company, by putting labels on the boxes containing the mattresses which the witness was loading on the occasion in question; that when he got through loading he went around and got on the truck and did not know that King or anyone else had boarded it in the rear. He admitted that sometimes employees rode on the back of the truck holding the mattresses, but said that for the load he was then carrying he did not need any assistance. He admitted signing a statement or affidavit in the presence of the coroner to the effect that King was working on the truck with him, but in his testimony he denied the correctness of this statement, saying that when he signed the affidavit he was very much worried and made an error in this particular.
Mr. Johnny Wesner, superintendent of the plant, testified that he employed King as a piece worker, but he admitted that on some occasions perhaps King had done some other work on an hourly basis.
Mr. Forrest G. Gyles, employed by the Industrial Commission as an investigator, stated that he had a conference with Mr. J. O. Wesner in regard to the accident, whom he referred to as the owner of the business in question, but who was really only one of the co-partners. Among other things Mr. Gyles testified as follows: "I asked Mr. Wesner to give me some statement with regard to the accident and how the young man became injured and died.
He stated that they had a load of mattresses to take to the station and while Mr. King was not employed for that particular work, that frequently the mattresses being piled and not tied at times, that someone would volunteer to go to the depot with the truck, and it was his knowledge that Mr. King had volunteered and was told to go along with that particular load."
It appears that this Mr. Wesner was very deaf, and according to the testimony of Mr. Gyles he wrote out his questions but the answers were given by Mr. Wesner orally. And it seems that Mr. Wesner's speech was rather difficult to understand, and in a deposition given by him he averred that Mr. Gyles misunderstood him, and he then testified definitely that he knew nothing about King's volunteering to render such assistance on this particular occasion, and that he was not told to do so.
One of the points involved in certain of the exceptions is the competency of the alleged admissions of Mr. J. O. Wesner, to which reference will hereinafter be made.
Without further reviewing the testimony, it seems apparent that the Court could not say as a matter of law that there was no substantial evidence to warrant the conclusion by the Commission that the deceased employee was at the time of the accident acting in the course of his employment, and I think that this would be true even if the alleged admissions of Mr. J. O. Wesner were left out of the picture. The rule is so well settled by our decisions...
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