Smith v. Southern Builders

• Decision Date: 13 January 1943
• Docket Number: 15489.
• Citation: 24 S.E.2d 109,202 S.C. 88
• Parties: SMITH et al. v. SOUTHERN BUILDERS, Inc., et al.
• Court: South Carolina Supreme Court

24 S.E.2d 109

202 S.C. 88

SMITH et al. v. SOUTHERN BUILDERS, Inc., et al.

No. 15489.

Supreme Court of South Carolina

January 13, 1943

[Copyrighted Material Omitted]

R A. Palmer and W. S. Houck, both of Florence, for appellant.

Royall & Wright, of Florence, for respondent.

G DEWEY OXNER, Acting Associate Justice.

The appellants are the widow and certain dependent children of Charles H. Smith, who died on July 17, 1941, and at the time of his death was employed by respondent Southern Builders, Inc., with the respondent American Mutual Liability Insurance Company as its insurance carrier. A claim was filed shortly after his death in behalf of his dependents with the South Carolina Industrial Commission which alleged that his death was due to an accident arising out of and in the course of his employment. The hearing Commissioner found as a fact that the deceased "suffered from a heat stroke which arose out of and in the course of his employment, and subsequently resulted in death," and made an award in favor of appellants. Upon review the opinion and award of the hearing Commissioner was sustained by a majority of the full Commission. Respondents appealed to the Circuit Court from the opinion and award of the full Commission, and the Circuit Judge held that the quoted finding of fact by the Commission had "no reasonable support in the evidence."

Respondents contend that there is no testimony reasonably tending to sustain the conclusion that the death of the employee resulted from a heat stroke arising out of and in the course of his employment, and that the only reasonable inference to be drawn from the testimony is that such death resulted from an acute heart failure. This contention raises the principal question to be determined and necessitates a review of the testimony. In doing so, we must keep in mind that the limit of the inquiry which the Court is permitted to make is whether there is any competent testimony reasonably tending to support the finding of fact by the Commission and that the sufficiency of the evidence is for the Industrial Commission, but, of course, any finding of fact by the Commission must be founded on evidence, and cannot rest on surmise, conjecture or speculation. Westbury v. Heslep & Thomason Co. et al., 199 S.C. 124, 18 S.E.2d 668.

Charles H. Smith, the employee, was a carpenter by trade and had been doing this kind of work for a considerable period of time. However, for several weeks prior to his employment by the Southern Builders, Inc., he had not been working and during this period visited the various members of his family. Mrs. Smith, the widow of the deceased employee, with whom he lived and to whom he had been married for about five years, testified that his health was good; that he had not been treated by a doctor during this period; that he had made no complaint of illness at any time; and that he did not suffer from pain in the chest or exhibit any other symptoms of heart trouble. Her testimony was corroborated by a married daughter, who, although she did not live at his home, was a frequent visitor there. This testimony on the part of the widow and the daughter is uncontradicted. Mr. Smith at the time of his death was about sixty years of age and he weighed something over two hundred pounds.

During the summer of 1941 the respondent Southern Builders, Inc., was engaged in the construction of a building in the City of Florence, referred to in the record as the A & P Super Market, and on July 16, 1941, engaged Mr. Smith as a carpenter to assist in the completion of the building. He commenced work the following morning at seven o'clock. He was engaged during the early part of the day in some work on the inside of the building and under the roof, but from about ten-thirty until twelve o'clock noon he worked on the roof of the building, sawing and nailing sheeting. During the morning he performed his work in the usual manner and was apparently in good health. None of the employees who testified recalled any complaint by him of illness or discomfort, although it would not necessarily follow from this that he did not have any. At twelve o'clock noon the foreman, who was then standing on the ceiling joist with his head above the roof, gave notice to the workmen that the time for lunch had arrived. A co-worker of Mr. Smith told him they had better go ahead of the crowd, and he preceded Mr. Smith in leaving for lunch. Mr. Smith walked across the roof of the building to a point near where the foreman was standing, and as he came near the foreman, Mr. Smith called him and leaned over toward the foreman and as Mr. Smith apparently started to speak, he suddenly "slumped," or, to use the language of the foreman, "went right down." The foreman caught him by the shoulder and called to some of the workmen for assistance, who immediately responded and laid Mr. Smith down on a level place. A physician was immediately summoned and Dr. J. L. Bruce arrived in ten or twelve minutes. He testified that when he arrived Mr. Smith was dead, but "his body was still warm and he had perspiration about his face and hands." From the testimony of the workmen, apparently Mr. Smith died almost instantly.

The testimony as to the weather conditions on this day is conflicting. In behalf of the appellants, one of the employees testified that it was a still, cloudy day, with the sun rays coming through the clouds and that this was an unusually hot and sultry morning. This testimony was corroborated by two policemen of the City of Florence, one of whom testified "It was pretty close, there was not any breeze stirring *** I suffered all morning with the heat, but it was mighty hot that day." Respondents offered testimony to the effect that the day was not unusually hot and that there were no unusual conditions about the weather. The official weather report showed that a maximum of 94 degrees was reached around two o'clock in the afternoon, and this reading was taken in the back yard of a residence. It is probably not unreasonable to infer that it was somewhat warmer on top of this building.

It appears that the building under construction was I one-story building and adjoining same, or close by, were several buildings and some trees which were higher than the building under construction which to some extent cut off the normal air circulation. The hearing Commissioner, who doubtless viewed the locale, concluded that these obstructions "fairly closed in this one-story building from the standpoint of normal air circulation."

Dr. Bruce, the physician who responded to the emergency call and examined the deceased, diagnosed the cause of death as "an acute heart failure." Dr. Smyser, another Florence physician who testified for respondents, did not see the deceased but gave expert testimony as to the cause of his death. In this connection, Dr. Smyser testified that if he had seen the deceased ten or fifteen minutes following his death, he would not have been in a better position to diagnose the cause of his death. He likewise concluded that the employee's death resulted from heart attack and not from a heat stroke. Dr. Smyser stated "a man will not die instantaneously from a heat stroke." The only medical testimony offered by appellants was that of Dr. Eaddy, who is county physician for Florence County. He never examined the deceased and, as did Dr. Smyser, gave his opinion as to the cause of death from hypothetical questions propounded. Inasmuch as the testimony of Dr. Eaddy as to the cause of the death of the deceased is the principal testimony relied on by appellants, it will be necessary to quote portions of this testimony rather fully in order to ascertain whether there is any testimony reasonably tending to support the conclusion of fact found by the Industrial Commission.

Dr. Eaddy stated that there art "two varied symptoms of heat stroke. The first is, the temperature runs up to 107 degrees and 112 degrees, and lasts for several days and may go on and the man get well; then you have another heat stroke and the man goes into collapse and breaks out in perspiration and dies almost instantly."

On direct-examination, he testified in part as follows:

" Q. Now, assuming that this man died on this job, Mr. Smith died, assuming that he was sixty years of age, that he weighed about 200 to 230 pounds, that he had good health from all appearances, and was in good health, that on a hot close, sultry day, on the 17th of July, 1941, when the humidity was great and the temperature was high, and he worked for four hours doing carpenter work such as nailing on sheeting, sawing sheeting and doing bridge work, nailing and sawing, that he dropped dead on top of a roof of a building on which he was working and had been most of the morning, that his clothes were wet from perspiration, he gave no signs of pain and did not complain of any, he did not put his hand over his chest, what would you say the man died from, if he died under such circumstances? A. I would say he died from a heat stroke.

"Q. Is it possible, doctor, from the sum of the facts enumerated here, that he might have died of a heart attack? A. Well, assuming that the man had never had any heart trouble, I would say that he did not die with a heart attack unless the heart attack was due to over-heat. *** I don't think any man ever died suddenly from a heart attack that has never had symptoms of a heart attack before. I don't think that is even possible. Of course, we doctors, sometimes give different credits and sign a death certificate of some heart trouble, but when you go into it, it is really not a heart condition at all."

On cross-examination, he testified in part as follows:

"Q. You say that it is unqualifiedly your opinion from the testimony you heard...