Watson v. Wannamaker & Wells

• Decision Date: 17 June 1948
• Docket Number: 16094.
• Parties: WATSON v. WANNAMAKER & WELLS, Inc., et al.
• Court: South Carolina Supreme Court

48 S.E.2d 447

212 S.C. 506

WATSON v. WANNAMAKER & WELLS, Inc., et al.

No. 16094.

Supreme Court of South Carolina

June 17, 1948

Stephen Nettles, of Greenville, for appellants.

Herbert N. Felton and Poliakoff & Poliakoff, all of Spartanburg for respondent.

FISHBURNE Justice.

This cause was heard in the circuit court of Spartanburg County on appeal by the defendants, employer and insurance carrier, respectively, from an award made by the South Carolina Industrial Commission in favor of the plaintiff. The plaintiff is the widow of L. D. Watson, who sustained an injury to his head on November 17, 1944 resulting from a fall. At the time of his injury he was working at Weldon, North Carolina, for the defendant-employer, Wannamaker & Wells. He died on February 7 1945 and the plaintiff thereafter filed claim for compensation for his death with the South Carolina Industrial Commission.

On this appeal, the assignments of error are to the affirmance by the lower court of the findings of fact of the Commission that (1) the contract of employment between the employer and the plaintiff's deceased was made in South Carolina and was not expressly for service exclusively outside of the State and (2) the evidence was sufficient to support an award for claimant because (a) the injury resulted from an accident arising out of and in the course of employment, and (b) the death of the employee was accelerated by such injury.

The appellants contend that the South Carolina Industrial Commission was without jurisdiction of the claim because the contract of employment as shown by the evidence was made in North Carolina exclusively for service in that State.

Where the jurisdiction of the Industrial Commission to hear and consider a claim for compensation under the provisions of the South Carolina Workmen's Compensation Act, Code 1942, § 7035-1 et seq., is challenged by an employer, on the ground that such employer is not subject to the provisions of the Act, the findings of fact made by the Commission, on which its jurisdiction is dependent, are not conclusive. The circuit court, and this court, on the appeal of either party to the proceeding, has both the power and the duty to consider all the evidence in the record, and find therefrom the jurisdictional facts, without regard to the finding of such facts by the Commission. Tedars et al. v. Savannah River Veneer Co. et al., 202 S.C. 363, 25 S.E.2d 235, 147 A.L.R. 914. As to disputed facts which do not go to the jurisdiction, we are bound by the finding of the Commission, if there is any competent evidence to sustain such finding. Knight v. Sheperd, 191 S.C. 452, 4, S.E.2d 906.

Section 36 of the South Carolina Workmen's Compensation Act, section 7035-39, Code provides '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, (a) if the contract of employment was made in this State, (b) if the employer's place of business is in this State, (c) and if the residence of the employee is in this State; (d) provided his contract of employment was not expressly for service exclusively outside of the State * * *.' (Letters added.)

It is conceded here that the employer's place of business is in this State and that the residence of the deceased employee was in this State. On the question of jurisdiction the issue is raised that the contract of employment was made in North Carolina and expressly for service to be rendered exclusively in that State.

We deal first with the undisputed facts. On or about May 1, 1941, L. D. Watson, the deceased employee, and his son, E. C. Watson, both of whom were carpenters by trade, residing at Spartanburg, South Carolina, dispatched a telegram to Wannamaker & Wells, who are general contractors with business headquarters at Orangeburg, South Carolina, inquiring about employment. They were promptly advised by Wannamaker & Wells, by telegram, that work was available for one carpenter at Cheraw and for two at Chester, South Carolina. The Watsons chose the employment at Chester and promptly reported there to Mr. W. G. Albergotti, who was the superintendent in charge of construction at that point. Albergotti, as superintendent, was fully empowered to contract with the Watsons, and they were employed by verbal agreement at Chester at an agreed wage. No mention was made as to the duration of the work or concerning the place or places they would be required to perform the services contracted for other than that they would commence immediately at Chester. The father and son continued to work at Chester until about September 1, 1944, a period of approximately four months. The carpentry work upon which they were engaged was finished at that time and they thereupon returned to their home in Spartanburg.

E. C. Watson, the son, testified for the claimant. Some of the evidence given by him is in dispute. He stated that upon the completion of their work at Chester Mr.

Albergotti, the superintendent, told him and his father, the deceased, that their services were needed by Wannamaker & Wells on a construction job then under way at Weldon, North Carolina, and that he instructed them to report there for work. 'Mr. Albergotti told us to go to Weldon, North Carolina * * * I didn't ask him, he told us * * * We had to wait in Spartanburg until he sent for us'. Just before leaving Chester they requested of Mr. Albergotti a release from their employment with Wannamaker & Wells but he refused to give them such release, and they had to agree to proceed to Weldon as employees of Wannamaker & Wells on the construction work there before Mr. Albergotti would furnish them with gasoline coupons for the trip. They paid for the gasoline.

J. C Edwards, general manager of the employer, testified that Albergotti, as superintendent at Chester, was authorized to transfer employees working under him to other locations where they were needed, subject, however, to reasonable objection by the superintendent in charge of the operations to which...