Younginer v. J. A. Jones Const. Co.

• Court: South Carolina Supreme Court
• Writing for the Court: OXNER, Justice.
• Citation: Younginer v. J. A. Jones Const. Co., 215 S.C. 135, 54 S.E.2d 545 (S.C. 1949)
• Decision Date: 13 July 1949
• Docket Number: 16237.
• Parties: YOUNGINER v. J. A. JONES CONST. CO. et al.

54 S.E.2d 545

215 S.C. 135

YOUNGINER v. J. A. JONES CONST. CO. et al.

No. 16237.

Supreme Court of South Carolina

July 13, 1949

McKay & McKay, Columbia, for appellant.

John Gregg McMaster, Columbia, for respondent.

OXNER, Justice.

The question involved on this appeal is whether claimant, Eddie L. Younginer, after having procured and accepted compensation under the Workmen's Compensation Act of Tennessee Code, § 6851 et seq., for personal injuries sustained in this State may now recover the benefits allowed by the Workmen's Compensation Act of South Carolina, Code 1942, § 7035-1 et seq., after crediting same with the amount awarded under the Tennessee Act.

In October, 1940, claimant, a resident of this State, was employed as a sheet metal worker by a subcontractor Interstate Roofing Company, on a construction job at Fort Jackson, South Carolina, upon which the J. A. Jones Construction Company was the general contractor. After working for three or four months at Fort Jackson, claimant was transferred by the Interstate Roofing Company to Spartanburg where Camp Croft was being constructed. After the completion of this work, he, while still in the employ of the Interstate Roofing Company, worked at the following places Forth Smith, Arkansas; Ozark, Alabama; Panama City, Florida Gulfport, Mississippi and Knoxville, Tennessee. The J. A Jones Construction Company was the prime contractor on all these jobs. After the work at Knoxville was completed, claimant, in April, 1944, secured employment as a sheet metal worker with G. G. Ray, who was doing construction work as a subcontractor of J. A. Jones Construction Company on the atomic bomb project at Oak Ridge, Tennessee. The subcontract was finished in January, 1945, at which time claimant was employed directly by the prime contractor, J. A. Jones Construction Company, for work on the project at Oak Ridge. On March 18, 1945, while so employed, he sustained a deep laceration between the little finger and ring finger of his left hand. It became necessary to amputate the little finger.

J. A. Jones Construction Company carried workmen's compensation insurance with the Aetna Casualty & Surety Company. All medical, surgical and hospital expenses were paid by the carrier. It also paid claimant the sum of $270.00 which represented the benefits allowed by the Tennessee Act for the loss of a little finger. A disagreement arose, however, between the parties 'as to whether said injuries have resulted in any permanent disability to the left ring finger and, if so, the extent thereof.' A compromise agreement was reached whereby claimant agreed to accept the additional sum of $225 in full settlement of all claims growing out of said accident. Thereupon, a joint petition for approval of this agreement was filed by claimant and the carrier in the Circuit Court of Tennessee. The matter was heard in open court upon oral testimony and on August 15, 1946, an order was filed wherein the Court found that the compromise settlement was reasonable and should be ratified and confirmed. It was accordingly adjuged that the claimant recover of the carrier the sum of $225, together with the costs of the proceeding, 'in full and final settlement and discharge of all of his claims, demands, actions or causes of action against the said J. A. Jones Construction Company, Inc., and the petitioner Aetna Casualty and Surety Company, growing out of the matters referred to herein and in said petition.' The sum mentioned was duly paid to the claimant.

On June 25, 1946, claimant, through his attorney, filed a claim with the South Carolina Industrial Commission for benefits under the Workmen's Compensation Act of this State on account of the injury sustained in Tennessee. No reference was made in the Tennessee court proceedings to the pendency of this claim before the South Carolina Industrial Commission. At a hearing on the claim filed with the South Carolina Industrial Commission held on January 9, 1947, the carrier and employer objected to the jurisdiction of the Commission, asserted that the claim was barred because not filed within one year after the accident, and claimed that the recovery sought was barred as res judicata by the Tennessee award. The single Commissioner decided all of these issues adversely to the carrier and employer and awarded claimant the sum of $87.50 'for permanent partial disability of the left ring finger', and the 'sum of $105.00 for loss of the left little finger.' The total amount awarded represented the difference between the benefits paid to claimant under the Tennessee Act and the benefits to which he was entitled under the South Carolina Act. There was further awarded to claimant the sum of $650.00 for serious bodily disfigurement. It appears that no allowance for disfigurement is permitted by the Tennessee Act. The award of the single Commissioner was duly approved by the full Commission. The carrier and employer appealed to the Circuit Court where the award was affirmed. This appeal followed.

The only question we need determine is whether the South Carolina Industrial Commission had jurisdiction. In doing so, we are not bound by the factual findings of the Industrial Commission, but are required to review the evidence and determine the jurisdictional facts in accordance with our view of the preponderance of the evidence. Tedars v. Savannah River Veneer Company, 202 S..C. 363, 25 S.E.2d 235, 147 A.L.R. 914; Miles v. West Virginia Pulp and Paper Co., 212 S.C. 424, 48 S.E.2d 26; Watson v. Wannamaker & Wells, Inc., 212 S.C. 506, 48 S.E.2d 447; Holland et al. v. Georgia Hardwood Lumber Company et al., 214 S.C. 195, 51 S.E.2d 744.

The right of claimant to receive compensation under the South Carolina Act is governed by Section 7035-39 of the 1942 Code, which is as follows: '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: provided, however, if an employee shall receive compensation or damages under the laws of any other State nothing herein contained shall be construed so as to permit a total compensation for the same injury greater than is provided for in this article.'

In analyzing this section, the Court in Price v. Horton Motor Lines, 201 S.C. 484, 23 S.E.2d 744, 745, said, '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...