Murdaugh v. Robert Lee Const. Co.

• Decision Date: 17 December 1937
• Docket Number: 14588.
• Citation: 194 S.E. 447,185 S.C. 497
• Parties: MURDAUGH v. ROBERT LEE CONST. CO. et al.
• Court: South Carolina Supreme Court

194 S.E. 447

185 S.C. 497

MURDAUGH v. ROBERT LEE CONST. CO. et al.

No. 14588.

Supreme Court of South Carolina

December 17, 1937

Appeal from Common Pleas Circuit Court of Hampton County; A. L Gaston, Judge.

Proceeding under the Workmen's Compensation Act by Paul Murdaugh claimant, employee, opposed by Robert Lee Construction Company, employer, and the American Mutual Liability Insurance Company, insurance carrier. A single commissioner made an award in favor of claimant, and on appeal the Industrial Commission amended the award, and on appeal to the Court of Common Pleas, the action of the full Industrial Commission was reversed and the award of the single commissioner was reinstated, and the employer and insurance carrier appeal.

Judgment reversed, and award of the Industrial Commission affirmed in part and reversed in part.

The decree of the court of common pleas directed to be reported follows:

This case was heard by me while presiding at Hampton, on appeal from the award of the South Carolina Industrial Commission dated July 2, 1936.

The grounds of the appeal are: (1) That the commission erred in reversing the award for disfigurement made by the commissioner who first heard the claim. (2) and (5) Error of law in holding that the shortening of appellant's leg did not constitute a serious disfigurement under the Workmen's Compensation Act of this state, Act July 17 1935, 39 St. at Large, p. 1248, § 31, as a matter of law. (3) Error of law in holding that "serious disfigurement" was injected into the act to provide compensation only when such serious disfigurement existed as the proximate result of an accident, for which no compensation was contemplated otherwise by the act, as the loss of the nose and ear, etc. And holding that the Industrial Commission has no power to award compensation for specific loss and also for disfigurement of the same member. (4) That the award of 10 per cent. is absurd and grossly inadequate.

I think the cause of Stevenson v. Illinois Watch Case Company, 186 Ill.App. 418, is directly in point.

This case is also reported in 5 N.C.C.A. 858, and note. This valuable set of Reports has been on my book shelves since 1921 and have now become of use with the adoption of the state statute. In the Stevenson Case he was injured while employed to operate a press, which caught his fingers in the press and caused the loss of about one-quarter of an inch of the bone from the ends of the first and second fingers of the right hand. He was awarded compensation for loss of wages under clause b of section 5 of the act, Laws Ill.1911, p. 317, and the further sum as compensation for disfigurement of the hand under clause c of the same section, page 318. The court held that the Legislature provided for compensation for the disfigurement in such cases, in addition to the loss of wages due to the same identical injuries to the fingers; and that it was a question of legislative intent under a reasonable construction of the provisions of the act.

See, also, Mabee, Inc., v. Anthony, 155 Okl. 35, 8 P.2d 22, 80 A.L.R. 968, and notes.

The statute is to be construed liberally for the protection of the injured employee-to promote the purpose of its enactment. Schenck's Case, Mass., 200 N.E. 266; Ritchie v. Indiana State Highway Commission, 101 Ind.App. 32, 198 N.E. 125.

The act of this state approved July 17, 1935, Acts 1936, 39 Stat. at Large, p. 1231, provides under section 31, p. 1248:

"Provided, however, that the foregoing schedule of compensation shall not be deemed to apply and compensate for serious disfigurement resulting from any injury to any employee received while in and about the duties of his employment.

And provided, further, that the Industrial Commission shall have power and authority to make and award a reasonable compensation for any serious bodily disfigurement received by any employee within the meaning of this Act, not to exceed Twenty-five Hundred ($2,500.00) Dollars."

It follows therefore that the full commission was in error in reversing the finding of the single commission, and that the law does permit compensation for bodily disfigurement of the nature and character sustained by the appellant.

The award or decision below is conclusive and binding as to all questions of fact. But the denial of compensation by the entire commission was based upon an erroneous conclusion of law.

The plaintiff contends that the amount fixed by the board is inadequate and that the court can set aside the award on this ground. The Supreme Court has recently held that the court has no power to increase the amount of the verdict found by the jury or the lower court, or in this case the award by the board. Anderson v. Ætna Casualty & Surety Co., 175 S.C. 254, at page 290, 178 S.E. 819; Planter's Sav. Bank, etc., v. American Surety Company of New York, 177 S.C. 363, at page 369, 181 S.E. 222.

Under the law as cited and under the facts as developed in this case, I think that the court has no power to increase the amount found by the board below. I think, therefore, the decision of the board should be overruled and reversed; and that the decision of the single commissioner should be sustained, affirmed, and made the order of this court.

Be it so ordered.

BAKER, J., dissenting.

William Elliott, Jr., of Columbia, for appellants.

George Warren, of Hampton, for respondent.

BONHAM Justice.

Paul Murdaugh was employed by Robert Lee Construction Company; October 21, 1935, while so employed, and while engaged in work incident to his employment, he suffered an injury to his leg. The Robert Lee Construction Company, hereinafter called the Employer, is subject to the terms and conditions of the South Carolina Workmen's Compensation Act, 39 St. at Large, p. 1231, which we will refer to as the Act. The American Mutual Liability Insurance Company, referred to as the Carrier, is the insurance carrier for the Employer in accordance with the terms of the Act.

The injury suffered by Paul Murdaugh, the employee, resulted in a comminuted fracture of the left leg at a point between the knee and the hip joint. It seems that this leg prior to this injury was from one-half to one inch shorter than the other leg and that the injury resulted in a further shortening of one and one-fourth inches.

The respondent made claim for compensation under the Act, and a hearing was had before Commissioner Martin, who made an award of $6 per week for temporary total disability, which is 50 per cent. of claimant's average weekly wage from October 21, 1935, to and including April 1, 1936. The defendant, Employer, was required to pay hospital, medical and X-ray costs, and the costs of the hearing; and claimant was awarded further "Five Hundred Dollars for permanent bodily disfigurement, on account of the alleged 1 1/4 inches shortening of the left leg as a result of the injury."

From this award, the defendants appealed to the full Industrial Commission, under the provisions of section 59 of the Act.

After a hearing the Commission amended the award made by Commissioner Martin, by reversing the award made for serious disfigurement, and allowed the claimant 10 per cent. functional loss of use of his left leg upon the basis of 17.5 weeks, payable consecutively.

The claimant appealed from the award of the full commission to the court of common pleas for Hampton county, which appeal was heard by Hon. A. L. Gaston, presiding judge, who reversed the action of the full commission and reinstated the award of Commissioner Martin.

From this order comes this appeal.

Mr. Justice Baker has written an opinion which affirms the order of Judge Gaston. I find myself not in accord with the conclusions reached by him, and since this matter is one of grave importance and of novel impression in this court, involving as it does a first construction by this court of the Act approved July 17, 1935, 39 St. at Large, p. 1231, I think it is my duty to state the grounds of my dissent.

The main opinion states that the exceptions of the appellants raise two questions: (1). Does the Act permit compensation for bodily disfigurement of the nature and character sustained by the respondent? (2) Did the trial judge err in holding that the full commission found as a matter of law that the respondent did not suffer serious bodily disfigurement as contemplated under section 31 of the Act?

It seems to me that the specific finding of the full commission, as to the first question, is thus stated: Did the full commission err in holding that the Industrial Commission has no power to award compensation for specific loss and also for disfigurement of the same member?

As to the second question, it seems to me it should be thus stated: Was the finding of fact by the full commission that there was no serious disfigurement modified and made a conclusion of law by the addition of the words: "As contemplated under section 31 of the Compensation Act?"

I am frank to say that, as to the first question, stated as I have put it, the full commission was in error in concluding that it has no power to award compensation for specific loss and also compensation for disfigurement of the same member.

In the annotation to the case of Mabee, Inc., v. Anthony, 80 A.L.R. 968, is a review of the decisions of the courts of other jurisdictions which have adopted Workmen's Compensation Acts, more or less in accord with our Act, construing these Acts. The compendium of these decisions on this very point is that a claimant may be awarded compensation for a specific loss, and also compensation for disfigurement of the same member.

It is true that some jurisdictions hold the contrary view, the majority of the courts hold the view I have above set forth.

However I do not...