Smith v. Fulmer

• Decision Date: 03 July 1941
• Docket Number: 15288.
• Citation: 15 S.E.2d 681,198 S.C. 91
• Parties: SMITH et al. v. FULMER et al.
• Court: South Carolina Supreme Court

15 S.E.2d 681

198 S.C. 91

SMITH et al. v. FULMER et al.

No. 15288.

Supreme Court of South Carolina

July 3, 1941

Stephen Nettles, of Greenville, for appellants.

Robert L. Gray, of Laurens, for respondents.

L. D LIDE, Acting Associate Justice.

This is a Workmen's Compensation case, and the testimony is not printed in the record, but we quote the following from the "statement" in the transcript, which gives the material facts of the case and states the single question involved in this appeal:

"C D. Fulmer had a contract with the State Highway Department to build a concrete bridge over a railroad track at Roebuck, S C. He sublet to M. G. Sherard the work of making the fills and laying the concrete paving. The fills were made and the bridge completed and Sherard was making ready to lay the paving at the end of December, 1939. Sherard hired a foreman who was skilled in laying concrete paving, and he came to the job with three or four Negro laborers, who also were experienced in that sort of work. The deceased, Uzer Smith was one of these Negroes. As soon as the necessary preliminary arrangements could be made Sherard expected to hire some twenty-five or thirty other laborers to assist in laying the paving.

"Before the actual laying of the paving commenced Sherard planned to bring some equipment he owned to the job, some of which was in Spartanburg and some in Greenwood. Right after Smith came on the scene of the job Sherard sent his foreman, the deceased and another employee on his (Sherard's) truck to Spartanburg and got the equipment there. For one or two days immediately after that Smith worked at the scene of the job connecting up a water pipe line and doing other things preliminary to the laying of the paving. Then (on December 30, 1939) Smith went with Sherard's foreman and another employee on Sherard's truck to Greenwood to get the equipment there, which included a concrete bin. When loaded on the truck the bin stood up rather high, and when the truck was passing through the village of Ora, S. C., on the return trip the top of the bin came in contact with a wire stretched across the highway, and Smith was dragged or thrown off the truck and crushed to death under the wheels of the truck. Ora is twenty miles from Roebuck, the scene of the job. Owing to the bad weather which set in about this time the work of laying the paving had to be postponed, and it was March, 1940, before any of the paving was actually laid.

"The only question presented by the appeal from the order sustaining the award is whether the general contractor (Fulmer) is liable for the death of the subcontractor's (Sherard's) employee under Section 19(a) of the Workmen's Compensation Act, Act July 17, 1935, 39 St. at Large, p. 1242. More specifically stated, the only inquiry is whether Uzer Smith was 'employed in the work' of the general contractor at the time of his death."

The mother and other dependents of Uzer Smith, deceased, filed their claim for compensation, which was heard before Commissioner Duncan, whose opinion and award was in favor of the claimants. Thereafter upon review by the full Commission the opinion and award of Commissioner Duncan was affirmed. An appeal was taken to the Court of Common Pleas which came on to be heard before Judge Featherstone, who handed down his order dated April 2, 1941, confirming the award of the Industrial Commission in every respect, and from the judgment entered thereon the instant appeal was taken by C. D. Fulmer, contractor, and American Mutual Liability Insurance Company, insurance carrier.

Section 19(a) of the Workmen's Compensation Act contains several paragraphs, but the pertinent one is the second paragraph, which is as follows:

"Where any person (in this section referred to as 'contractor') contracts to perform or execute any work for another person, which work or undertaking is not a part of the trade, business or occupation of such other person and contracts with any other person (in this section referred to as 'subcontractor') for the execution or performance by or under the subcontractor of the whole or any part of the work undertaken by such contractor, then the contractor shall be liable to pay to any workman employed in the work any compensation under this Act which he would have been liable to pay if that workman had been immediately employed by him."

Under the language above quoted the contractor, Fulmer, is liable, provided the deceased employee, Uzer Smith, was at the time of his death "employed in the work," that is to say, "the work undertaken by such contractor." The work undertaken by Fulmer was the building of a concrete bridge for the State Highway Department, which included making fills for the approaches to the bridge and laying concrete paving over the approaches and the bridge, and the subcontractor, Sherard, contracted with Fulmer to make the fills and lay the concrete paving. Sherard's foreman hired Smith to assist in laying the concrete paving, the kind of work he was qualified to do, the same being semi-skilled work.

It is apparent from the facts above stated that while at the time Smith met his death he was not actually engaged in laying the paving, he was engaged in the preliminary work essential thereto. In other words, he was assisting in transporting the concrete bin or mixer which was required for the accomplishment of the work, and, as stated in Judge Featherstone's order, was subsequently used therein. It is earnestly argued, however, by counsel for the appellants that Fulmer was in no way concerned with such preparation for the performance of the job which Sherard agreed to perform as subcontractor. And it is further argued that Fulmer, the contractor, is liable to an employee of Sherard, the...