Sligh v. Newberry Elec. Co-op.

• Decision Date: 03 April 1950
• Docket Number: 16333.
• Citation: 58 S.E.2d 675,216 S.C. 401
• Parties: SLIGH v. NEWBERRY ELECTRIC COOPERATIVE, Inc. et al.
• Court: South Carolina Supreme Court

58 S.E.2d 675

216 S.C. 401

SLIGH v. NEWBERRY ELECTRIC COOPERATIVE, Inc. et al.

No. 16333.

Supreme Court of South Carolina.

April 3, 1950

Osborne, Butler & Moore, Spartanburg, for appellants.

E. M. Parler, Lancaster, J. D. Parler, St. George, for respondent.

LIDE, Acting Justice.

This is a death case under the Workmen's Compensation Act. The Hearing Commissioner made an award in favor of the claimant, Lottie Sligh, as widow and sole dependent of Tom Sligh, employee of Newberry Electric Cooperative, Inc., upon the ground that the employee sustained an injury by accident on November 11 1946, arising out of and in the course of his employment, and that the same had a causal connection with his death, which occurred July 6, 1947. This award was affirmed by the full Commission upon a review thereof; and the employer and its insurance carrier thereupon appealed to the Court of Common Pleas for Newberry County, resulting in an order by Judge Griffith, dated September 21, 1949, affirming the award of the Industrial Commission, and from the judgment entered thereon the case comes to this Court upon the appeal of the employer and its insurance carrier, the appellants above named.

The appeal relates to the merits of the cause, the exceptions denying that there was any competent evidence tending to show that the employee sustained any injury by accident whatsoever arising out of and in the course of his employment, or that such accidental injury, if there was any, had any causal connection whatsoever with the employee's death. There are also exceptions alleging error in the admission of certain parts of the evidence, and that such admission was so harmful and prejudicial to the appellants as to require a reversal.

It is of course well understood that under the Workmen's Compensation Act, Code § 7035-63, we sit for the review of errors of law only, since an award of the Commission 'shall be conclusive and binding as to all questions of fact'. However, in order to perform our judicial function in this respect we must review the record of the evidence, bearing in mind the oft repeated formula that the scope of our inquiry is limited to ascertaining whether or not there is any competent testimony reasonably tending to support the findings of fact by the Commission, the sufficiency thereof being for it, but that such findings of fact must be based on evidence and cannot rest on surmise conjecture or speculation.

It is admitted that Tom Sligh, a colored man approximately fifty years old, was employed as a laborer by Newberry Electric Cooperative, Inc. and the report of the manager of the employer shows that he had been so employed for seventeen months. And it is further admitted that on November 11, 1946, Sligh in the course of his employment was assisting in the lifting of an electric power transformer from a truck. And it is alleged in behalf of the claimant that in this process he sustained an injury by accident due to being struck on his neck by the transformer, followed by pain and a swelling of his neck and a growth thereon, from which a cancer developed, so that about two weeks later, to wit, on November 26, 1946, he was compelled to give up his employment, and was sent to a physician for treatment, and that notwithstanding his treatment by a succession of physicians, his resulting death occurred on July 6, 1947.

At the time of the occurrence in question there were five employees engaged in the unloading of certain electric power transformers from a truck, the same to be set up on the Fair Grounds, presumably in or near the City of Newberry. One of these employees was J. W. Ringer, Jr., the foreman under whom Sligh was working. One of the men was on the truck pushing the transformers to the rear thereof, and the other four, including Sligh and Mr Ringer, took them down from the truck one by one. It appears that in the course of the removal of the last one of the transformers, weighing approximately 285 pounds, Sligh said that he had torn his shirt. All of those present, with the exception of Sligh, who died before the hearing was commenced, testified in the case, one of them for the claimant and the others for the defendants; and they agreed that Sligh made the statement mentioned, but stated that they saw nothing out of the ordinary in the lifting of this heavy piece of machinery from the truck and lowering it to the ground, nor did they see it strike Sligh's neck. One of the assistants in the process of lifting this transformer was Harvey Shealy, a witness for the defendants, who testified: 'I heard him say, 'Boys, I've torn my shirt"--a typical res gestae exclamation. He further said that Tom stated that his shirt was caught on the stud of the transformer; the same being a sort of bolt that holds the top of the transformer on.

Lottie Sligh, who was the wife of the employee and is the claimant herein, testified that on the day of, or night after, the occurrence Tom complained 'with his neck hurting him'. And she also testified as follows:

'Q. Lottie, did you notice the condition of Tom's clothes that night? A. Well, they was torn. His shirt was torn at the neck part.

'Q. Up on the shoulder part? A. Yes, sir.

'Q. Have you ever heard, or had he ever complained to you before this time about his neck hurting? A. No, sir--never did until he had this accident.'

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'Q. When was the first time that you observed a knot on his neck? A. After he had this trouble with his neck--after the trouble happened.

'Q. How long after he first mentioned it did you notice it? A. Around about two or three weeks.

'Q. Around about two or three weeks? A. Yes, sir.

'Q. Did you ever notice a knot there before? A. No, sir.'

Mr. Ringer, the foreman above mentioned, stated that he had worked with Tom about eight months, and that he was a 'pretty steady worker'. We also quote the following from his testimony:

'Q. Was he ever out sick any for any great length of time? A. No. Tom had trouble with his asthma. That's the only thing I've ever hear him complain with.

'Q. So then, Mr. Ringer, up until November eleventh, you never heard Tom complain? A. No, sir.'

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'Q. Now, you say Tom complained to you about two weeks later? A. Approximately two weeks.

'Q. That his neck was hurting? A. (Witness nodded affirmative.)

'Q. Did he tell you anything then about having hurt himself--thinking that he had hurt himself? A. Yes. He said that his neck was swelled up--it had begun to swell and it was hurting him, and his ears were hurting him. He couldn't hear. It was affecting his hearing.

'Q. Did he say anything then to you about it having developed from the transformer hitting him or anything relative to that? A. He said that the he had noticed it since then.

'Q. He said he had noticed it since then? A. That's right.'

The witness further stated that in consequence of what Sligh had told him he sent him to the manager, E. V. Lewis; and it appears from the testimony of Mr. Lewis that this was on November 26, 1946.

Mr. Lewis testified that when Sligh came to see him he was complaining of hurting in his ear--right ear, and that he sent him to Dr. Livingston.

Mr. Lewis also testified as follows:

'Q. Now, Mr. Lewis, when you talked to Mr. Ringer, did Mr. Ringer tell you what he has testified today substantially? A. Yes. He hold me that Tom said that the transformer had caused the thing.

'Q. That Tom said? A. That's right, sir, and Tom told me that too when I sent him to the doctor.'

Pursuant to the Workmen's Compensation Act, Section 7035-69, Mr. Lewis as Manager of Newberry Electric Cooperative, Inc., made out and forwarded to the Commission what is designated as 'Employer's First Report of Injury'. This report, which was introduced in evidence, was dated December 2, 1946, and Mr. Lewis testified that he made it after he had consulted both Mr. Ringer and Tom.

We quote the following part of this report:

'Cause of Accident:

'(18) What was employee doing when the accident occurred? Unloading transformer from truck.

'(19) Occupation: Laborer

'(20) How long employed by you at this occupation? Seventeen months.

'(21) What machine, tool, substance or object was most closely connected with the accident? Transformer * * *

'(23) How did the accident happen? Injured was helping two other men lift transformer off of truck when top of transformer hit his neck.

'(24) In what way was the machine, tool or object defective? None * * *

'(29) Names and addresses of witnesses: J. W. Ringer, Jr. Newberry, South Carolina

'Nature and Location of Injury:

'(30) Injury to right-side of neck--causing pain in ear.

'(31) Name and address of physician: Dr. R. E. Livingston, Newberry South Carolina'

The death certificate was introduced in evidence, dated July 7, 1947, showing that Thomas Sligh's death occurred on July 6, 1947, the immediate cause of death being cancer involving glands of neck.

The only other material witnesses were the physicians. Those testifying for the defendants were Dr. R. E. Livingston, to whom the patient was sent by the employer, and Drs. E. G. Able and R. W. Lominack, all of whom examined Sligh. The two physicians who testified for the claimant were Drs. H. D. Heering and Fred C. Brinkley, neither of whom ever examined Sligh, their testimony consisting of their expert opinions based upon hypothetical questions. Particular reference will now be made to the testimony of each of these qualified physicians.

Dr. Livingston testified that he first saw Tom Sligh on November 26, 1946 and that he found a mass on the right side of Sligh's neck; and that the last time he saw him was, he believed, in the latter part of January, 1947; and in reply to the question as to the 'case history' given...