Lewis v. Hamilton Veneer Co.

• Decision Date: 23 May 1945
• Docket Number: 15737.
• Parties: LEWIS et al. v. HAMILTON VENEER CO.
• Court: South Carolina Supreme Court

34 S.E.2d 220

206 S.C. 349

LEWIS et al. v. HAMILTON VENEER CO.

No. 15737.

Supreme Court of South Carolina

May 23, 1945

W. B. Martin, of Orangeburg, for appellant.

T B. Bryant, Jr., of Orangeburg, and N. A. Turner and Edward A Harter, Jr., both of Columbia, for respondents.

STUKES, Justice.

Adam Lewis was an employee of Hamilton Veneer Company of Orangeburg and suffered a compensable accident on September 11, 1942 whereby he was totally disabled for a time and finally lost two fingers of his left hand. He died from natural causes, unrelated to the accident, on the following November 4th.

His widow, Adrianna, filed claim with the Industrial Commission as his dependent for a small amount of accrued, but unpaid compensation for total disability and for the specific award provided by law for the injury to his hand. The matter was heard between her, the employer and its compensation insurance carrier, Associated Indemnity Corporation. After taking the testimony of the widow and another witness, award was made to the claimant. Before payment of it to her, a sister of the employee, the appellant Mary Sanders, intervened, claiming both as the administratrix of the estate of the deceased and as his dependent. She produced numerous witnesses whose testimony was taken on September 17, 1943, and the Hearing Commissioner made another award which was identical with that before made. Thereupon Mary Sanders applied for review by the Commission, stating as her ground for review that the only evidence which was binding upon her was uncontradictedly to the effect that Adam and Adrianna had separated by mutual consent seven years before his death and that he thereafter contributed nothing to her support and that Mary was entitled to the award as executrix, the latter term apparently intended for administratrix.

The Commission reviewed the award, upheld and adopted it under date of June 20, 1944, stating that the conclusion was reached 'after hearing able arguments of counsel and after careful consideration of all the evidence in the case.' Mary Sanders then appealed to the Court of Common Pleas, principally upon the ground that the testimony of the widow and her witness, taken before appellant was a party to the proceeding, and upon which the award was founded, should not have been considered by the Commission, and that, without it, the evidence was conclusively against the widow and in favor of the contentions of appellant.

When the record was filed in the Court for the purpose of the appeal it was discovered that there was in it no transcript of the evidence offered by appellant and she moved the Court to remand the proceeding to the Industrial Commission for a rehearing. The motion was supported by affidavit of appellant's counsel to the material effect that the testimony was not transcribed and filed with the clerk of Court until November 30, 1944, and that the Hearing Commissioner and the Commission, quoting, 'did not have before them the testimony of about five witnesses who testified in support of the claim of Mary Sanders * * *'.

The Court in a rather full order in which the former proceedings were recited, concluded upon this point as follows 'While the transcript of this testimony may not have been before the Commission at this hearing, we may safely assume, I think, that alert counsel that he is, its purport was fully argued to the Commission, and for this Court to hold that the Commission was not advised of its existence, or that they had not considered it, would, I think, be a challenge to the recorded statement of the Full Commission that it had carefully considered 'all the evidence in the case' and to so hold, this Court would require evidence clear and positive that such was the case. This Court is bound to respect the statement by the Commission, and, consequently, affirm its findings.'

The Court thereupon refused the ...