Lowther v. Standard Oil Co. of N. J.

• Decision Date: 03 May 1945
• Docket Number: 15732.
• Parties: LOWTHER v. STANDARD OIL CO. OF NEW JERSEY.
• Court: South Carolina Supreme Court

33 S.E.2d 889

206 S.C. 286

LOWTHER v. STANDARD OIL CO. OF NEW JERSEY.

No. 15732.

Supreme Court of South Carolina

May 3, 1945

W. N. Heyward, of Ridgeland, and A. J. Hydrick, of Orangeburg, for appellant.

Benet Shand & McGowan, of Columbia, for respondent.

BAKER Chief Justice.

At the time hereinafter mentioned, the appellant, A. E. Lowther, was employed by respondent, Standard Oil Company of New Jersey as a commission sales agent, his compensation being dependent upon the volume of sales he made of respondent's products. On January 24, 1939, appellant was injured as a result of an accident admittedly arising out of and in the course of his employment with the respondent. The respondent was immediately notified of the accident and injury and furnished a physician to treat appellant, and a written report of the accident was made to the respondent on March 1, 1939. Thereafter, on March 9, 1939, a claim agent of the respondent visited appellant and prepared a Standard Form No. 15 for Agreement as to Compensation provided by the Industrial Commission, showing respondent as self-insurer which agreement in writing and duly witnessed was entered into by and between appellant (employee) and respondent (employer), reading as follows:

'We A. E. Lowther residing at Hardeeville, South Carolina and Standard Oil Company of New Jersey, 26 Broadway New York, New York have reached an agreement in regard to compensation for the injury sustained by said employee and submit the following statement of facts relative thereto:----

'Date of injury January 24, 1939 Date disability began January 24, 1939 Nature of injury Contusions of head and strained 6 muscles of neck. Place of accident Shoemakers' Service Station, Switzerland, South Carolina. Cause of accident Injured was opening dome of tank truck, preparatory to making delivery when he lost his balance and fell, striking his head on driveway, resulting in contusions of head and strain of neck. Probable length of disability _____.

'The terms of this agreement under the above facts are as follows: That the said A. E. Lowther shall receive compensation at the rate of $25.00 per week based upon an average weekly wage of $48.46, or $210.00 monthly average, and that said compensation shall be payable at same intervals as average commissions are normally payable from and including the 27th day of January month, 1939 until terminated in accordance with the provisions of the Workmen's Compensation Law of the State of South Carolina.'

The appellant, with the assistance of his sixteen-year-old son, whom he took out of school, and his wife, continued to sell and distribute the products of respondent under his sales agent contract, and the gross earnings were about the same as prior to his injury.

In that there was no material difference in the gross earnings of appellant prior to and following his accident, the respondent did not pay out any amount under the Workmen's Compensation Act by reason of the disability of appellant. However, upon the expiration of appellant's sales agent contract with respondent in September, 1939, it was not renewed; and in October, 1939, appellant was advised by respondent that it denied that he was entitled to receive anything under the Workmen's Compensation Act. This denial was occasioned by an inquiry to respondent made by counsel for appellant as to the contents of a paper signed by appellant for respondent's adjuster and requesting a copy thereof (the paper referred to was the 'Agreement as to Compensation' hereinabove set out). In the letter of denial of compensation, respondent's agent also suggested that if appellant believed himself entitled to compensation, respondent was willing to give the matter consideration upon receipt of an up-to-date medical report, and suggested an examination by an orthopedic specialist, naming the specialist and voluntarily agreeing to pay the expense thereof. A copy of the Form 15, Agreement to pay Workmen's Compensation, was not furnished by respondent to counsel for appellant, nor was any mention made that this agreement was not in respondent's possession at the time, or that it had not been filed with the Industrial Commission.

On February 6, 1940, the appellant filed a claim with the Industrial Commission for compensation arising out of the accident and the resultant injuries suffered by him on January 24, 1939.

When a hearing was first entered upon before the Hearing Commissioner on the claim filed by appellant on February 6, 1940, respondent took the position that any claim appellant had for workman's compensation by reason of the accident and injury suffered by him, admittedly in the course of his employment, on January 24, 1939, was barred, he not having filed his claim within one year from the date of the accident, as required by Section 24(a) of the Workmen's Compensation Act; and, further, that appellant was not entitled to compensation, in that he suffered no loss of earnings as a result of the accident and that he had suffered no disability.

During the proceedings had before the Hearing Commissioner, counsel for appellant inquired as to what had become of the 'Agreement as to Compensation,' and counsel for respondent (a Mr. Gillson) replied: 'It may be in the office at New York and...