Tedars v. Savannah River Veneer Co.

• Decision Date: 02 April 1943
• Docket Number: 15523.
• Citation: 25 S.E.2d 235,202 S.C. 363
• Parties: TEDARS et al. v. SAVANNAH RIVER VENEER CO. et al.
• Court: South Carolina Supreme Court

25 S.E.2d 235

202 S.C. 363

TEDARS et al. v. SAVANNAH RIVER VENEER CO. et al.

No. 15523.

Supreme Court of South Carolina

April 2, 1943

Williams & Busbee, of Aiken, and Nathan Jolles and I. S. Peebles Jr., both of Augusta, Ga., for appellant.

Hendersons & Salley, of Aiken, and Bussey & Fulcher, of Augusta Ga., for respondent.

STUKES Justice.

Appellants are the next of kin of Henry Grady Smith, having been substituted as claimants for their brother in this proceeding for workmen's compensation. The latter was dependent upon the deceased employee but died pending the proceeding. Smith the employee, worked for the Veneer Company as a timber "spotter." He lived in the City of Augusta Georgia, and it was found that ninety per cent of his work was in that State and ten per cent in South Carolina . The employer is a South Carolina corporation with its office and place of business at North Augusta, in this State. Smith had never lived in South Carolina and maintained his home in Georgia as stated, where his invalid dependent brother resided with him.

He met death in an automobile accident, riding alone when his car was in violent collision with a bridge abutment on a Georgia highway over a hundred miles in that State from his Augusta home and not far from the City of Savannah. He was en route there late on a Saturday afternoon, after usual work hours, to visit his sister, one of appellants, but he had notified the employer's general manager that on the trip he would see one or more persons in negotiations looking toward the procurement of timber, raw material for the employer. Respondents strongly resisted the finding of the Commission, sustained on appeal by the Circuit Court, that the accident occurred in the course of his employment so in that respect an award of compensation was warranted. This issue is tendered in the present appeal by the submission by respondents of their position in that connection as a ground upon which to sustain the judgment. But in the view taken by this Court this issue is not necessary to be determined, as will be seen.

As indicated, the Industrial Commission made the usual award of death benefits but upon appeal the lower Court set aside the award, overruling the grounds of appeal of the present respondents relating to their contention that the death did not occur in the course of decedent's employment, above alluded to, but sustained their position that Smith's residence without the State barred any award of compensation, and the latter issue is for determination by this Court. The contentions of the present appellants will be considered in the order in which they have argued them in their printed brief.

The applicable statute law is the following quoted portion of Section 36 of the original Compensation Act, now Section 7035-39 of the Code of 1942: "Where an accident happens while the employee is employed elsewhere than in this State which would entitle him or his dependents to compensation if it had happened in this State, the employee or his dependents shall be entitled to compensation, if the contract of employment was made in this State, if the employer's place of business is in this State, and if the residence of the employee is in this State; provided his contract of employment was not expressly for service exclusively outside of the State." (Emphasis added.)

This Section of the Statute was before this Court for construction in the recent case of Price v. Horton Motor Lines, 1942, S.C., 23 S.E.2d 744, 745, where the following analysis was made: "It will be seen from the foregoing that there are four prerequisites to the South Carolina Industrial Commission having jurisdiction: (1) The contract of employment must be made in this State; (2) the employer's place of business must be in this State; (3) the residence of the employee must be in this State; and (4) the contract of employment must be for services to be performed not exclusively outside of this State."

There the issue was whether claimant resided in this State, he apparently conceding that unless so our Industrial Commission had no jurisdiction to award compensation on account of his accidental injury, which occurred in Georgia. That case comes very near being this, the vital distinction being of course the different places of residence of the respective employees, the one within and the other without the State.

Appellants first argue that waiver and estoppel arise in their favor and that the case should turn upon application of these doctrines. There was no express finding of such by the hearing Commissioner or the Commission. The record indicates that these questions were injected first by appellants in their argument before the Circuit Judge (and emphasized in this Court), and he considered and dismissed them. In like manner passing over the question of the propriety of considering these contentions in the absence of any finding thereabout by the Commission, we have examined them with care and find no merit.

The hearing Commissioner, whose findings were adopted by the Commission on appeal, based his conclusion, apparently on the whole matter, on the case of Ham v. Mullins Lumber Company, 193 S.C. 66, 7 S.E.2d 712, which he said was "similar," in fact "practically identical," evidently overlooking the factual difference most important in this connection, that Mr. Ham was a resident of this State whereas it is admitted in the instant case that Mr. Smith resided in Georgia.

But appellants argue that the following facts are in the record and estop respondents to deny that decedent came within the compensation law and the liability of the insurance carrier in the case of the extraterritorial accident here involved: (1) The employer knew of his residence in Georgia and made no objection; (2) his payroll was included in the computation of premiums on the insurance; (3) the contract of employment was a South Carolina contract with a South Carolina employer; and finally (4) that the employer "thought" the employee was "covered." (Undoubtedly he was, so far as accidents in South Carolina were concerned, and for that liability the insurer was entitled to premiums.) It should be observed that all of the parties were charged with knowledge of the law, and its provisions entered into the terms of their contracts; that they contracted with reference to it requires no citation of authority and the compensation law expressly incorporates its terms into all employment agreements and insurance contracts entered into thereunder. 1942 Code, sections 7035-6 and 7035-75.

The findings of facts entering into the establishment of jurisdiction of the Commission to make an award are subject to review by the Courts, unlike ordinary factual findings. It is hornbook law that ordinarily facts are exclusively for the Commission and its findings thereof will not be disturbed on appeal if there is any competent evidence in the record supporting them. 1942 Code, section 7035-63. But, as stated, it is otherwise in the case of jurisdictional facts. It was said in Knight v. Shepherd, 191 S.C. 452, 4 S.E.2d 906, 907: "It is suggested that we are bound by the fact finding of the South Carolina Industrial Commission, which held that it lacked jurisdiction. It is true that as to disputed facts which do not go to the jurisdiction, we are bound by the finding of the Commission, but where the only question presented is whether or not the jurisdictional fact exists entitling the claimant to be heard before the Commission, we have a right to review the action of the Commission, even to the extent of finding the fact to be other than the Commission found it."

See also Yeomans v. Anheuser-Busch, 198 S.C. 65, 15 S.E.2d 833, 136 A.L.R. 894.

Appellants earnestly urge that from the facts above enumerated the Commission impliedly found that waiver and estoppel gave it jurisdiction of this Georgia accident despite the plain provision of the statute because it said: "It is found as a fact that all parties to this case are subject to and bound by *** the Workmen's Compensation Act of South Carolina." Even if the stated implication is warranted and is based upon factual findings, it is subject to the scrutiny of judicial review, as we have seen.

And we find no sufficient basis for waiver or estoppel in the facts mentioned.

Basic elements are missing. There was no evidence of the relinquishment of a known right by respondents and no reliance by decedent upon misrepresentation, so far as the record shows. There is no intimation in the facts that he was misled. Inclusion of the deceased employee in the compensation law as to accidents in this State, which unquestionably existed, is consistent with and sufficiently explains all of the representations and agreements allegedly implied by the cited facts.

Painstaking study of the record has disclosed nothing which would not appear in any other employment of a non-resident by a South Carolina employer (subject to the compensation law) in duties without the State, so to follow appellants would result in conspicuous and complete "judicial legislation" and a flaunting of the law as written by the Legislature.

Our conclusion upon the question (in affirmance of that of the trial Judge) is consistent with Knight v. Shepherd, supra, where jurisdiction of our Industrial Commission was upheld; there award was made to a resident of Georgia for disability from accident suffered in this State resulting from employment here by a Georgia employer under a Georgia contract. The controlling difference is, of course, that in this case the accident was in another State and one of the conditions for jurisdiction does not obtain--local residence of the injured employee.

In this view, that there was insufficient evidence at most to...