White v. J. T. Strahan Co.

• Decision Date: 06 April 1964
• Docket Number: No. 18192,18192
• Citation: 135 S.E.2d 720,244 S.C. 120
• Parties: Lurean WHITE and Aaron Eugene White, age less than one year, Unborn Child, Respondents, v. J. T. STRAHAN COMPANY and/or Marvin Jones and Georgia Casualty and Surety Company, Appellants.
• Court: South Carolina Supreme Court

Page 720

135 S.E.2d 720

244 S.C. 120

Lurean WHITE and Aaron Eugene White, age less than one year,

Unborn Child, Respondents, v. J. T. STRAHAN COMPANY and/or Marvin Jones and Georgia

Casualty and Surety Company, Appellants.

No. 18192.

Supreme Court of South Carolina.

April 6, 1964.

Luke N. Brown, Jr., Ridgeland, Lewis C. Trice, Columbia, for appellants.

Walker & McKellar, Ridgeland, for respondents.

MOSS, Justice.

This case arose under the South Carolina Workmen's Compensation Act. Section 72-1 et seq., Code of 1962. It is an appeal from the order of the Circuit Court affirming an opinion and award of the South Carolina Industrial Commission, which ordered the payment of compensation to the dependent wife and children, the respondents herein, for the death of one Eugene White.

The said Eugene White was employed by Marvin Jones and died on November 22, 1962, as the result of an accident which arose out of and in the course of his employment while employed by the said Jones. At that time Jones was engaged in logging operations and had in his employ less than fifteen employees.

Jones was known in the trade as a pulpwood producer and he owned his equipment and employed three laborers, including Eugene White. J. T. Strahan Company is a pulpwood dealer or broker and acquires logs and pulpwood by purchasing tracts of standing timber from various and sundry landowners and, thereafter, from said tracts the logs and pulpwood would be cut and delivered to Strahan by a 'producer' of which Marvin Jones was one of Strahan's thirty-two producers in South Carolina.

Brunson Lumber Company of Hampton, South Carolina, purchased from one Rivers the logs upon a three or four acre tract of land. Jones was to cut the logs upon the said tract and deliver same to Brunson for a stipulated price per thousand feet. The pulpwood from said tract was to go to Strahan. Jones, with his equipment and employees, moved onto the Rivers tract on Saturday, November 17, 1962, and cut logs and pulpwood thereon 'to have a start for Monday morning.' The logs were to be delivered to Brunson and the pulpwood to Strahan. On Monday morning, November 19, 1962, a load of logs cut from the aforesaid tract was hauled by Eugene White to the Brunson Mill and, while delivering such logs on its yard, White was accidentally injured and his death resulted therefrom on November 22, 1962. Had White not been injured in delivering the logs to Brunson, the next load he would have hauled would have been the pulpwood from the 'tops' or 'laps' and such would have been delivered in Savannah to Strahan.

The testimony shows that at the end of each week Jones would make a settlement with Strahan for the pulpwood delivered, deducting from the settlement the amount due by Jones for workmen's compensation insurance on his employees. It further appears from the testimony that Jones paid to Strahan workmen's compensation insurance at the rate of 41cents per thousand feet for the logs delivered by him to Brunson. The amount paid by Jones to Strahan for the week ending November 24, 1962, for workmen's compensation was $8.32 and the check representing such payment was marked 'log w. c. and w. e.' The aforesaid payment by Jones to Strahan was subsequently remitted by Strahan to his compensation carrier, Georgia Casualty & Surety Company. A representative of the carrier admitted the aforesaid remittance and testified that it was not called to the company's attention that this premium covered 'an operation outside of the J. T. Strahan operation.' There is no testimony that the carrier returned or tendered a return of the aforesaid premium to Jones or Strahan.

Georgia Casualty & Surety Company, on March 13, 1962, issued its standard Workmen's Compensation and Employers' Liability Policy to J. T. Strahan Company, which said policy insured Jones, by name, for workmen's compensation while acting as a producer and while cutting for J. T. Strahan & Company. It is admitted that the aforesaid policy was in effect on November 19, 1962, and such policy had been properly filed with the Industrial Commission. It is also admitted that had the accident happened while Jones was producing for Strahan, the policy would have covered him.

It is the position of the appellants that the South Carolina Industrial Commission did not have jurisdiction to hear and determine this case, involving the death of Eugene White, who lost his life while working for Marvin Jones, for the following reasons: (1) that the employer was engaged in logging operations or work incidental thereto which is exempt employment under Section 72-107(4) of the Code; (2) that at the time of his death Marvin Jones had less than fifteen employees which is excepted employment under Section 72-107(2) of the Code; (3) that these exceptions were never waived by Marvin Jones as is provided under Section 72-109 of the Code; (4) that Marvin Jones was not a sub-contractor of Strahan so as to make that company or its insurer liable under Section 72-111 of the Code; and (5) that there was no evidence in the record sufficient to support a finding that Marvin Jones as a producer was cutting for Strahan at the time White was injured so as to include Jones as an insured under the terms of the policy issued by the Georgia Casualty & Surety Company.

Ordinarily, findings of fact by the Industrial Commission based upon competent evidence are conclusive on appeal but in determining whether or not the commission had jurisdiction of the claim presented, this Court is not bound by a finding of fact by the commission. This Court, and the Circuit Court, has both the power and duty to review the entire record and find therefrom the jurisdictional facts, without regard to the conclusion of the commission on such issue, and will decide the jurisdictional question in accord with the preponderance of the evidence. In determining such jurisdictional questions, it must be kept in mind that the basic purpose of the Workmen's Compensation Act is the inclusion of employers and employees within its coverage and not their exclusion,...