Walker v. City Motor Car Co.

• Decision Date: 05 March 1958
• Docket Number: No. 17396,17396
• Citation: 102 S.E.2d 373,232 S.C. 392
• Court: South Carolina Supreme Court
• Parties: Jerome E. WALKER (Employee), Respondent, v. CITY MOTOR CAR COMPANY (Employer), and General Accident Fire and Life Assurance Corporation (Carrier), Appellants.

Page 373

102 S.E.2d 373

232 S.C. 392

Jerome E. WALKER (Employee), Respondent, v. CITY MOTOR CAR COMPANY (Employer), and General Accident Fire and Life Assurance Corporation (Carrier), Appellants.

No. 17396.

Supreme Court of South Carolina.

March 5, 1958.

Holcombe & Bomar, Spartanburg, for appellant.

Arnold R. Merchant, Spartanburg, for respondent.

TAYLOR, Justice.

This is a Workmen's Compensation Case.

The Findings of Fact by the hearing Commissioner were:

'1. That all parties to this proceeding are subject to and bound by the terms and provisions of the South Carolina Workmen's Compensation Act.

'2. That claimant was employed by City Motor Car Company on March 24, 1956, and that on this date he suffered an accidental injury arising out of and in the course of his employment.

'3. That claimant, Jerome E. Walker, has reached maximum improvement of his accidental injury of March 24, 1956, and as a result has a 25 per cent permanent partial disability of a general nature.

'4. That claimant's average weekly wages were $99.50; that he is presently employed at an average weekly wage of $77.64, which gives him a diminution of earnings of $21.86, or the compensable rate of $13.12, commencing March 24, 1956.

'5. That claimant has serious bodily disfigurement in that he has a limp.'

Upon review by the whole Commission, the findings were adopted in toto.

Appellant contends that the trial Judge erred in holding that the Industrial Commission found as a fact that the cause of the diminution in claimant's earnings was his incapacity to earn. It may be observed by reference to the Findings of Fact that such is not spelled out specifically, which should have been done; however, we are inclined to agree with Judge Littlejohn that when such findings are read in connection with the issues raised and evidence submitted, it is reasonably clear that the Commission found that the cause of diminution in Respondent's earnings was the incapacity of claimant to earn. We, therefore, are devoting our consideration to the sole question of whether or not the hearing Judge erred in refusing to set aside the award for partial disability in that there was no competent evidence to sustain the award.

Upon appeal, this Court and the Circuit Court can only review the evidence for the purpose of determining whether or not there is any competent evidence to support such findings. If there is, both this Court and the Circuit Court are without power to pass upon the force and effect of such evidence. Rudd v. Fairforest Finishing Co., 189 S.C. 188, 200 S.E. 727; Ham v. Mullins Lumber Co., 193 S.C. 66, 7 S.E.2d 712; Jones v. Anderson Cotton Mills, 205 S.C. 247, 31 S.E.2d 447; Radcliffe v. Southern Aviation School, 209 S.C. 411, 40 S.E.2d 626; Whitfield v. Daniel Construction Co., 226 S.C. 37, 83 S.E.2d 460; Wilson v. City of Darlington, 229 S.C. 62, 91 S.E.2d 714; Leonard v. Georgetown County, 230 S.C. 388, 95 S.E.2d 777.

Respondent, a salesman of new and used cars for the City Motor Car Company, the Dodge and Plymouth dealer for the City of Spartanburg for approximately sixteen years, injured his back while raising a heavy overhead door, at Appellant City Motor Car Company's place of business early in 1956. Appellants have paid all medical bills, including approximately two weeks hospital bills.

During 1955, the year preceding Respondent's injury, he was paid a salary of $150.00 per month plus a 3 per cent commission on new cars and 4 per cent on used cars. Respondent, during the year, sold 59 new cars and 13 used cars, or a total of 72 units, and received therefor $5,174.01 from his employer in salary and commissions.

At the beginning of 1956, prior to the accident, Appellant City Motor Car Company changed its working agreement with its salesmen. Under such agreement, Respondent was paid a guaranteed salary of $350 per month, with additional bonuses or commissions should the employer realize additional profits, over and above the $350, from Respondent's sales.

Between January 1, 1956, and December 18, 1956, Respondent sold 54 new cars and 18 used cars, or a total of 72 units, and received compensation therefor in the sum of $4,037.53. It further appears that Appellant City Motor Car Company's overall sales were 10 to 12 per cent less in 1956 than in 1955.

The burden is upon claimants to prove such facts as will render the injury compensable within the provisions of the Workmen's Compensation Act, and such award must not be based upon surmise, conjecture or speculation....