Smith v. Fulmer, No. 15288.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: L. D. LIDE, Acting Associate Justice
• Citation: 15 S.E.2d 681
• Parties: SMITH et al. v. FULMER et al.
• Docket Number: No. 15288.
• Decision Date: 03 July 1941

15 S.E.2d 681

SMITH et al.
v.
FULMER et al.

No. 15288.

Supreme Court of South Carolina.

July 3, 1941.

[15 S.E.2d 681]

Appeal from Common Pleas Court, of Laurens County; C. C. Featherstone, Judge.

Proceeding under the Workmen's Compensation Act by Ada Smith and others, to recover compensation for the death of Uzer Smith, employee, opposed by C. D. Fulmer and M. G. Sherard, employers, and the American Mutual Liability Insurance Company, insurance carrier. From a judgment confirming an award of compensation by the Industrial Commission, Fulmer and the insurance carrier appeal.

Affirmed.

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

[15 S.E.2d 682]

Negroes. As soon as the necessary preliminary arrangements could be made Sher-ard 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...