August 19, 1941.
Before LIDE, J., Calhoun County, December, 1940. Affirmed.
Proceeding under the Workmen's Compensation Act, 39 St. at Large, p. 1231 et seq., sec. 1 et seq., by H.S. King, claimant, against J.O. Wesner and others, co-partners doing business under the firm name of The Cameron Bedding Manufacturing Company, employers, to recover for the death of Heber L. King, deceased employee. From a Circuit decree affirming an award of the Industrial Commission granting compensation, the employers appeal.
The order of JUDGE LIDE, required to be reported, follows:
Heber L. King, the deceased employee, will sometimes hereinafter be referred to as the plaintiff, and Cameron Bedding Manufacturing Company, employer, will likewise sometimes be referred to as the defendant. Mr. King was a young man about twenty-three years of age and was employed by Cameron Bedding Manufacturing Company, a partnership, consisting of J.O. Wesner, W.A. Rast and A. L. Crook, engaged in the business of manufacturing mattresses at Cameron, S.C. the scope of Mr. King's employment being perhaps the main contested matter involved herein. But he came to his death on August 9, 1939, as the result of an accident which occurred while he was on a truck of the employer loaded with cartons of mattresses which were being taken from the factory of the company to the railroad depot at Cameron. It appears that the plaintiff King was in the back of the truck holding on to the mattresses when something happened which caused some of the mattresses to slip off, whereupon he also fell, resulting in his death shortly thereafter. The defendant denying liability, the case came on to be heard before William B. Todd, Esq., one of the commissioners, who after taking the testimony filed his opinion and award in favor of the claimants, and in due course an appeal was taken to the full commission, which after hearing affirmed the opinion and award of the hearing commissioner, the opinion and award of the majority of the commission being by Commissioner Martin and dated August 23, 1940. Thereafter in due time an appeal was taken to this Court, which came on to be heard before me at my chambers at Orangeburg on November 27, 1940, and after full argument of counsel was taken under advisement.
There are seven exceptions taken by the employer, the last of which was to the effect that the commission erred in refusing to grant the defendant's motion for a nonsuit, in that the claimants had failed to prove that Heber L. King died as the result of an accident which occurred during the course of his employment. It should be stated here that the undisputed evidence tends to show that Heber L. King was employed by the Cameron Bedding Manufacturing Company from about the 1st of April, 1939, until his death on August 9th of that year, and that he was what is known as a piece worker for the company, engaged in the stitching and tufting of mattresses, but that at times he did other work for the company, such as the loading and unloading of trucks containing mattresses being transported from the factory to the railroad station. The contention of the defendant, however, is, and testimony is adduced to that effect, that on the occasion of his death he had no instruction to go on the truck and that he had no business there for the company, and hence that the accident did not arise out of his employment.
While perhaps a motion for a nonsuit is not technically the sort of a motion that can be made at a hearing of this kind, yet it may be properly construed as a motion to dismiss the claim on the ground that the claimant had failed to produce evidence tending to establish such claim. But even if the same rules applicable to the trials of actions at law before a jury are followed, it is quite clear that a refusal of a motion for a nonsuit may be sustained although the testimony in chief did not make out a case, where the evidence offered by the defendant or other evidence later introduced in the case tended to support the allegations on which the claim was based. But upon a careful consideration of the evidence offered in chief here, without regard to other evidence, I do not think Commissioner Todd was in error in overruling the motion. The father of the deceased testified that while he did not know just what his son's duties were, he had seen him stitching or tufting mattresses, etc., and that he had also seen him working on a truck time and time again, which was loaded with cartons of mattresses which were being taken from the factory to the depot. There was also testimony by another witness who saw the accident who said that he had seen young King on other occasions on the truck which was hauling mattresses to the depot. And another witness testified that he had seen young King working around the truck loading and unloading at the depot. Surely the testimony was ample to make out a prima facie case.
One of the exceptions alleges in substance that the only reasonable inference that can be drawn from the evidence is that Heber L. King was not acting in the course of his employment when the accident occurred which resulted in his death, and there is another exception that the uncontradicted competent evidence is to the effect that young King was not so acting at the time in question.
But in addition to the witnesses for the plaintiff in chief above referred to there was testimony by another witness in behalf of plaintiff that he had seen Heber L. King on the truck a number of times while it was being driven to and from the depot and the factory with loads of mattresses in cardboard boxes of various sizes; and that it was unusual to see just one man handling a truckload of mattresses; and that the man on the back of the truck generally has one hand on the side of the truck and one on the mattresses, the cartons being slippery and having a tendency to slip off. Still another witness testified to the same effect. Indeed, it was admitted that where the load was of sufficient size the driver of the truck usually had someone to assist him, but it was contended in behalf of defendant that this load being of 19 single mattresses only, no extra man was required or provided.
The driver of the truck, M.B. Rast, testified in behalf of the defendant that he did not know Mr. King was on the truck until after the accident, and that he had no duties to perform thereon that the witness knew of. The driver had only worked for the company for a period of from four to six weeks during the employment of King, but he testified that King never did help him load or unload mattresses, qualifying this statement later that perhaps King did help him once with this kind of Work. He testified definitely that King was helping Mr. Wesner, one of the co-partners of the company, by putting labels on the boxes containing the mattresses which the witness was loading on the occasion in question; that when he got through loading he went around and got on the truck and did not know that King or anyone else had boarded it in the rear. He admitted that sometimes employees rode on the back of the truck holding the mattresses, but said that for the load he was then carrying he did not need any assistance. He admitted signing a statement or affidavit in the presence of the coroner to the effect that King was working on the truck with him, but in his testimony he denied the correctness of this statement, saying that when he signed the affidavit he was very much worried and made an error in this particular.
Mr. Johnny Wesner, superintendent of the plant, testified that he employed King as a piece worker, but he admitted that on some occasions perhaps King had done some other work on an hourly basis.
Mr. Forrest G. Gyles, employed by the Industrial Commission as an investigator, stated that he had a conference with Mr. J.O. Wesner in regard to the accident, whom he referred to as the owner of the business in question, but who was really only one of the co-partners. Among other things Mr. Gyles testified as follows: "I asked Mr. Wesner to give me some statement with regard to the accident and how the young man became injured and died. He stated that they had a load of mattresses to take to the station and while Mr. King was not employed for that particular work that frequently the mattresses being piled and not tied at times, that someone would volunteer to go to the depot with the truck, and it was his knowledge that Mr. King had volunteered and was told to go along with that particular load."
It appears that this Mr. Wesner was very deaf, and according to the testimony of Mr. Gyles he wrote out his questions but the answers were given by Mr. Wesner orally. And it seems that Mr. Wesner's speech was rather difficult to understand, and in a deposition given by him he averred that Mr. Gyles misunderstood him, and he then testified definitely that he knew nothing about King's volunteering to render such assistance on this particular occasion, and that he was not told to do so.
One of the points involved in certain of the exceptions is the competency of the alleged admissions of Mr. J.O. Wesnes, to which reference will hereinafter be made.
Without further reviewing the testimony, it seems apparent that the Court could not say as a matter of law that there was no substantial evidence to warrant the conclusion by the commission that the deceased employee was at the time of the accident acting in the course of his employment, and I think that this would be true even if the alleged admissions of Mr. J.O. Wesner were left out of the picture. The rule is so well settled by our decisions that citation seems scarcely necessary, to the effect that upon an appeal from the commission the Circuit Court may not reverse an award if there is any evidence to support it, that is to say, any competent evidence substantially tending to support the award. The Court is not a trier of facts and may not pass upon the weight or adequacy of the 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; Phillips v. Dixie Stores, Inc., 186 S.C. 374, 195 S.E. 646. Under Section 60 of the Workmen's Compensation Act, 39 St. at Large, p. 1260, the Court may consider errors of law only.
There is clearly evidence that Heber L. King while generally employed as a piece worker in the manufacture of mattresses did at times work for the company in the capacity of an hour worker and did assist in the matter of loading and unloading mattresses and in the hauling thereof, although the testimony is quite conflicting as to the extent and scope of his employment as an hour worker. But all such conflicts in the evidence were for the commission and not for the Court.
Counsel for the defendant earnestly argues in support of two of his exceptions that the testimony of the witness, Gyles, with reference to the alleged admissions by J.O. Wesner was erroneously admitted, so far as the partnership is concerned, because not binding on the two other partners, citing to sustain his views a number of cases to the effect that the declarations of an employee made some time after the accident and therefore not being a part of the res gestae would not be competent as against the principal, including such cases as Gilliam v. Southern Ry. Co., 108 S.C. 195, 93 S.E. 865, and Sandel v. State, 126 S.C. 1, 119 S.E. 776. But I do not think these cases would apply to statements made by a partner in the course of an investigation of an occurrence purporting to involve the firm, for the reason that a partner is a general agent for the firm as to all matters coming within the scope of its business and not a special agent, as an employee usually is. 47 C.J. 826, 827. And the general rule is: "The admissions of one partner as to matters of fact are competent against all other partners." 22 C.J. 402. Of course, even a general agent is confined to the scope of the business, but certainly when a matter is being investigated which may involve the firm's liability, the statements of a member of the firm as to the facts of the occurrence would be binding upon the other members.
It was earnestly argued before me that even if the alleged admissions of Mr. Wesner were competent they should be disregarded because upon a consideration of the entire record the only reasonable conclusion that could be drawn was that Mr. Gyles misunderstood Mr. Wesner. But I think the matter was one to be determined by the commission, for more than one conclusion might reasonably be drawn.
The remaining exceptions impute error to the commission in considering an affidavit made by Mr. Rast, driver of the truck sworn to before the coroner of Calhoun County, upon the ground that this was never introduced in evidence, although it was set out in the opinion and award of Hearing Commissioner Todd. It is true that the affidavit was merely marked for identification and was apparently inadvertently deemed by Commissioner Todd to have been introduced in evidence. However, the record plainly shows that Mr. Rast admitted making the statements contained in the affidavit, but testified that his averment that King was working on the truck with him was incorrect. Hence, whether the affidavit was introduced in evidence or not was quite immaterial, for it was used for the purpose of contradicting the witness, Rast, and since he admitted making the conflicting statements the introduction of the affidavit was unnecessary. It appears to be correct, as contended by counsel for the defendant, that testimony of inconsistent statements cannot be received as evidence of any fact touching the issue, but is effective only for the purpose of impeaching the witness. Sumter v. American Surety Co., 174 S.C. 532, 178 S.E. 145. But here there is nothing to show that it was otherwise used than for impeachment purposes. And, moreover, if this contradiction be entirely disregarded, there will be left ample testimony fairly tending to support plaintiff's claim.
After careful consideration of the matter, in the light of the well-prepared argument in behalf of the defendant, I am unable to find any error of law on the part of the commission. In dealing with a matter such as the scope of the employment of an employee, the terms of which are not usually in writing, it seems to me that the law should be construed with reasonable liberality. The scope of one's employment may be enlarged or limited by the particular circumstances, and it would be difficult, if not impossible, to prescribe a formula which would apply to all cases. See 71 C.J. 667. And clearly under the evidence it could not be said as a matter of law that the employee in this case was not acting in furtherance of his master's business, or that he had gone outside of the scope of his employment and incurred a danger of his own choosing. All of the exceptions are overruled, and it is
Ordered, that the opinion and award of the full commission be, and it is hereby, confirmed and made the judgment of this Court. This award refers to the Cameron Bedding and Manufacturing Company, but does not name the co-partners. It is admitted, however, that J.O. Wesner, W. A. Rast and A.L. Crook constitute the Cameron Bedding and Manufacturing Company, that is to say, that they are co-partners engaged in business under the firm name and style of Cameron Bedding and Manufacturing Company, and the judgment herein should be entered against them as such.
Mr. James A. Moss, of Orangeburg, for appellants, cites: As to Industrial Commission, sua sponte, assuming jurisdiction of issue arising under Workmen's Compensation Act: Sec. 54(a) of Act; Sec. 24(a) of Act (Utah); 81 A.L.R. 1222. As to dead man before Court as party-plaintiff: 1932 Code, Sec. 397. As to commission adjudicating rights of party not before it: Sec. 40 of Act; 1932 Code, Sec. 409; 43 S.C. 359; 21 S.E. 263, at p. 268; 93 S.C. 13; 75 S.E. 1012; 165 S.C. 1, 13; 162 S.E. 623. As to Common Pleas Court, on appeal from lower tribunal, rendering judgment against individual not shown by record to have been served with process or to have made appearance: 21 C.J.S. 153, Par. 97; 13 S.C. 198, 201; Cheves, 5; 81 S.C. 419, 428; 62 S.E. 1100; 93 S.C. 229; 76 S.E. 698; 43 L.R.A. (N.S.), 383; 20 S.C. 460; 13 S.C. 190; 21 Ga. App. 436; 94 S.E. 592; 189 S.C. 262, 267; 1 S.E.2d 262; 6 S.C. 173; 24 S.C. 424. As to commission's error in considering certain affidavit: 174 S.C. 532; 178 S.E. 145; 189 S.C. 188; 200 S.E. 727; 12 C.J. 1188, Par. 956; 160 S.C. 299; 158 S.E. 409. As to error of Court in admitting certain testimony: 174 S.C. 237, 243; 177 S.E. 129; 22 C.J. 402, Par. 479; 22 C.J. 404, Par. 481; 119 U.S. 99; 67 S.C. 347, 362; 45 S.E. 810; 6 Rich. L. 487.
Messrs. Zeigler Brailsford, of Orangeburg, for respondent, cite: As to admission of certain testimony: 191 S.C. 458; 4 S.E.2d 908; 193 S.C. 66; 7 S.E.2d 712. As to Court reforming designation of defendants: 25 S.C.L. 215; 47 C.J. pp. 955-956; 159 P. 125; Ann. Cas., 1918-C, 1043; 47 C.J. 976; 84 S.C. 343; 66 S.E. 409; 4 C.J. pp. 1152-1153; 11 C.J. 1155; 15 N.M. 500; 110 P. 575 (4 C.J. 1155, Note 84 (a)). As to setting aside award on ground that there is no party-plaintiff: 13 S.E.2d 602. As to dismissing or remanding proceeding for defect of parties plaintiff: 1932 Code, Sec. 458, Sec. 562; 137 S.C. 11; 134 S.E. 859.
August 19, 1941. The opinion of the Court was delivered by
This is an appeal from an order of his Honor, Judge Lide, affirming an award of the Industrial Commission in the case of the death on August 9, 1939, of Heber L. King, an employee of Cameron Bedding and Manufacturing Company. The order will be reported. In our opinion it properly disposes of the issues stated.
Although the exceptions of the appellants do not raise them, they state in argument questions which the respondent correctly contends were not presented in the Circuit Court and on that account cannot be considered here. They are set forth in respondent's brief in shorter form than in appellants' statement of questions, as follows:
"Should the award be set aside and the proceeding dismissed on the ground that no application for a hearing was made to the commission or on the ground that there is no party-plaintiff to the proceeding?
"Should the proceeding be remanded or dismissed for defect of parties-plaintiff?"
It appears that no report of the fatal accident was made by the employers and the fact of it was first brought to the attention of the commission by the investigator for it and the notices of the hearings were improperly captioned, carrying the name of the deceased as the plaintiff and the firm name of the employers instead of the individuals composing the partnership. The fact of the latter, however, appears affirmatively in the record by the formal statement of the able counsel who represented the employers at the commission hearings, before the Circuit Court on appeal and in this Court on appeal from the latter. Originally other than his present counsel appeared for the father of the deceased employee and was noted in the caption.
It is in the record that the employers formerly had compensation insurance coverage which they again obtained soon after the accident which gave rise to this proceeding, but at that time unfortunately for them they had no such insurance protection.
The Compensation Act expressly provides that the process and procedure before the Industrial Commission may "be as summary and simple as reasonably may be." Section 54. This Court has approvingly applied this provision. McDonald v. Palmetto Theatres, 196 S.C. 460, 13 S.E.2d 602, 604; Baker v. Graniteville Co., 197 S.C. 21, 14 S.E.2d 367. Contention cannot be reasonably made in this case that simplicity of procedure has been carried to a degree inconsistent with due process of law and without affording full opportunity to the employers, the defendants, to protect and defend their rights under the law.
The improper captions in the notices and awards of the hearing commissioner and the commission do not even raise a well-founded suspicion, in view of the contents of the record, that the employers were not fully and well represented by their counsel who appeared for them, as has been stated, and contested practically every inch of the way. It is noted that at the hearings before the commission counsel declined to make the usual admissions of employment, etc., but finally, with some apparent reluctance, made this statement, "We will admit we were operating under the Workmen's Compensation Act."
We think that the questions referred to should have been made before the commission and the Court below, particularly in view of the provision in the Act, Section 24, that claim must be filed with the commission within one year after the accidental death of an employee, which time has twice elapsed in this case during its tortuous course through the commission and the Courts. The niceties of pleadings and process in the law Courts, desirable though they may there be, cannot be required of the commission composed of laymen without violating the spirit and philosophy of workmen's compensation. 71 C.J. 341-353, 28 R.C.L. 755-760, 826-829. Phillips v. Dixie Stores, 186 S.C. 374, 195 S.E. 646; Rudd v. Fairforest Finishing Co., 189 S.C. 188, 200 S.E. 727; Marchbanks v. Duke Power Co., 190 S.C. 336, 2 S.E.2d 825; Bannister v. Shepherd, 191 S.C. 165, 4 S.E.2d 7, and Ham v. Mullins Lumber Co., 193 S.C. 66, 7 S.E.2d 712.
However, appellants strongly argue that because the record does not show the filing of a claim with the commission pursuant to Section 24, which point was made nowhere below or by exceptions here, a fatal jurisdictional defect has been pointed out, on which account the proceeding should be dismissed by this Court. For this, that the failure to file a claim under the Act is a fatal defect in the jurisdiction of the Industrial Commission, appellants cite Palle v. Industrial Commission, 1932, 79 Utah, 47, 7 P.2d 284, 285, 81 A.L.R. 1222, but it is not applicable for the decision of the Court is based upon a premise not present here; we quote: "The sufficiency of the application, or the want of one, was timely challenged by the alleged employer at the threshold of the case by demurrer and by his objection to the commission on such ground to hear the case, all of which were overruled." Here the point is made first in argument in this Court. Likewise we do not think that our case of Cantrell v. Fowler, 24 S.C. 424, is applicable, for in that case the suit in the Court of magistrate was by one partnership and judgment was rendered by default in favor of another.
Section 24 of the Act is more a limitation than a procedural requirement. In this case the commission proceeded to take jurisdiction and hear the controversy on its merits within the one-year limitation, and without objection of record by appellants or their counsel that the usual claim had not been filed, and no prejudice thereby to the appellants appears. There is an annotation upon the subject in 78 A.L.R. 1306, from which it appears that in the majority of jurisdictions where the point has been raised it has been held that appearance and contest on the merits, without timely objection of no or insufficient claim, constitute a waiver on the part of the employer of the filing of claim. The following is taken from page 1310 of 78 A.L.R.: "Several cases have held that an employer's failure to object before the Board or Commission to employee's failure to give notice of the injury, or to file the claim for compensation, is a waiver of such defense."
We likewise think that appellants' objection to the form of the award, made for the first time in argument before us, although urged as a jurisdictional defect, comes too late. The award is to the father of the deceased by name "and/or mother, sister, brother" of the deceased and directs that the receipt of the award by the father shall constitute final settlement and an acquittance of the appellants. As indicated, there was no exception thereto on the appeal from the hearing commissioner to the commission, none from the commission to the Circuit Court, and in fact none from the Court to this. Were this a law case unquestionably the defendants have slept over their right, if any they had, to assert a defect of parties plaintiff. See the recent decision of Baker v. Hartford Fire Insurance Co., 195 S.C. 373, 11 S.E.2d 434, and the authorities there cited. We think that similarly in this proceeding it is now too late for appellants to question the award in respect to its beneficiaries or raise the question of defect in plaintiffs.
The only other matter stated in the questions presented by the appellants not disposed of in the judgment on Circuit, which we have approved and adopted, is the complaint that the trial Judge was without right to direct that the judgment confirming the award be entered against the co-partners as such and not against the partnership by name as the award was stated. But counsel for the partnership had, as pointed out above, read into the record the existence of such and the names of the partners. Indeed, one of the exceptions of the employers to the Circuit Court from the award of the commission, No. 5, contains the statement that it has been "made to appear that the defendant company is a partnership composed of J.O. Wesner, W.A. Rast and A.L. Crook." Thus the defendants came into Court represented by counsel and defended the proceeding on the merits, and with the record before him the learned trial Judge properly corrected the award and judgment to conform. Code of Civil Procedure 1932, Section 494. 5 C. J.S., Appeal and Error, § 1875, et seq., particularly § 1881, Parties to Judgment.
Careful consideration has been given to the earnest argument of counsel and we conclude that the exceptions should be overruled and the judgment below affirmed.
MR. CHIEF JUSTICE BONHAM and MESSRS. JUSTICES BAKER and FISHBURNE concur.