Rivers v. V. P. Loftis Co.

• Decision Date: 26 January 1949
• Docket Number: 16175.
• Citation: 51 S.E.2d 510,214 S.C. 162
• Parties: RIVERS v. V. P. LOFTIS CO. et al.
• Court: South Carolina Supreme Court

51 S.E.2d 510

214 S.C. 162

RIVERS v. V. P. LOFTIS CO. et al.

No. 16175.

Supreme Court of South Carolina

January 26, 1949

A. R. McGowan, Irving Steinberg and James H Harvey, all of Charleston, and J. D. Parler, of St. George for appellant.

Hagood Rivers & Young, of Charleston, for respondents.

BAKER Chief Justice.

Except for minor changes, the following, appearing in quotation, is taken from the agreed Statement in the Transcript of Record:

'This is an appeal in a workmen's compensation case from an order by the Honorable Marvin M. Mann, Circuit Judge reversing the finding of fact and the award made by the hearing Commissioner, which said finding of fact and award were affirmed by the South Carolina Industrial Commission as a whole.

'The appellant, Evelyn Rivers, is the common-law widow of the deceased, Robert Moses Rivers, and was the sole beneficiary of the award of the South Carolina Industrial Commission.

'It is admitted that all parties hereto are subject to and bound by the terms and provisions of the Workmen's Compensation Act [Code 1942, § 7035-1 et seq.]; that the deceased was an employee of the respondent, V. P. Loftis Company on the date of his death; that he died while in the discharge of his duties as its employee, and that his compensable wage was as stated in the award.

'The sole question involved in this appeal is: 'Did the deceased come to his death as the result of an accident arising out of his employment?'

'Every other issue involved is either admitted or uncontested by the appellant and the respondents.'

The deceased was a colored man, 35 years of age, who had been suffering from a serious heart ailment over a period of several years. Due to his heart condition he could not work regularly--some days he was up, some days he was down, and some weeks he could not work at all. On Saturday, September 5, 1942, he entered the employment of the respondent, V. P. Loftis Company, as a deck hand on a 31-foot tug, the crew of which consisted of a Mr. Anderson, the skipper, and the deceased in the capacity aforestated. It is admitted that the corespondent named in the caption was the insurance carrier, and we will make no further reference to such respondent. If we have occasion to refer to V. P. Loftis Company, it will be as respondent.

The deceased was apparently feeling fine when he entered upon this employment, and the respondent accepted him without inquiry as to his physical condition, and without a physical examination. He worked on this tug boat from Saturday morning until the following Tuesday afternoon without complaining of any physical discomfort, and apparently his duties were performed in a satisfactory manner. Late Tuesday afternoon (September 8, 1942) between five and six o'clock, the skipper, Mr. Anderson, docket this tug in the slip or berth which rightfully belonged to a 75-foot long, 35 foot wide barge. At about this time, the barge was arriving, and when it reached signaling distance, the tug was signaled to stand off until the barge could come in and be made fast. Whereupon the deceased untied the line and the skipper backed the tug out. It did not require that any one on the tug rush in order to clear for the docking of the barge. There was 'plenty of time.' Upon the barge coming in and making fast, the tug was then steered back into the dock and within five or six feet of the barge. Attached to the tug and used for the purpose of making it fast in the dock was a three-fourths inch (usually referred to as a one inch) manilla rope fifteen feet long, lacking a few inches, and the deceased was instructed to throw an end of this rope over to the barge--a distance of about five or six feet. The rope was dry and did not weigh more than two or three pounds, and it required no substantial effort to throw the end of this rope the short distance to the barge. The deceased did not have the entire rope in his hands, although more than one-half of it. As he threw the end of the rope to a person on the barge,...