From Casetext: Smarter Legal Research

Spearman v. F.S. Royster Guano Co. et al

Supreme Court of South Carolina
Oct 31, 1938
188 S.C. 393 (S.C. 1938)



October 31, 1938.

Before SEASE, J., Spartanburg, December, 1937. Affirmed.

Proceeding under the Workmen's Compensation Act by Frank Spearman, employee, opposed by the F.S. Royster Guano Company, employer, and the Liberty Mutual Insurance Company, insurance carrier. From a decree affirming the award of the Industrial Commission denying the claim for compensation, the employee appeals.

The decree, requested to be reported, follows:

This matter comes before me as resident Circuit Judge of the Seventh Circuit on an appeal by the claimant from an award of the South Carolina Industrial Commission, denying his claim for compensation for alleged injuries claimed to have been sustained by him while in the employ of F.S. Royster Guano Company, designated as employer, for which employer the defendant Liberty Mutual Insurance Company is the insurance carrier. The matter was taken up before me at Chambers at Spartanburg, S.C. on December 10, 1937, and the argument continued during the morning of December 11th. Because of the novelty of the questions arising under the South Carolina Workmen's Compensation Act, Act July 17, 1935, 39 St. at Large, p. 1231, a very considerable amount of time was allowed for argument, and the attorney for the claimant argued very fully over a period of several hours the various contentions presented by him. After hearing argument from the attorney for the claimant and from attorneys for the defendants, I am of the opinion that the award of the South Carolina Industrial Commission should be affirmed.

A brief history of the progress of the litigation should perhaps be given. On October 27, 1936, a hearing was held at Spartanburg before Hearing Commissioner Isaac L. Hyatt, pursuant to the claim filed with the Industrial Commission by the claimant, asserting his rights to compensation under the Act. At that hearing extensive testimony was taken, both from the claimant, and from various lay and medical witnesses. At the conclusion of that hearing it was agreed that the hearing should be continued and that the Hearing Commissioner would designate an eye specialist to examine the claimant, with the right thereafter to both parties to examine and take the testimony of such doctor as the Commissioner might select. Thereafter, Mr. Hyatt arranged with Dr. Walter J. Bristow of Columbia to examine the claimant and such examination was had and on November 25, 1936, the testimony of Dr. Bristow was taken before Commissioner Hyatt at Spartanburg.

Thereafter, on January 23rd, Commissioner Hyatt filed his opinion and award, denying compensation to the claimant and on the basis of this, a formal award was issued by the Commission. Thereafter in accordance with Section 59 of the Compensation Act, claimant applied to the full commission for a review of Commissioner Hyatt's award and such review was duly granted. Pursuant to the application for review, the matter was presented to the full Commission in Columbia on March 1, 1937, and at that time the attorney for the claimant asked leave to amend the claimant's claim for compensation by reducing it on the ground that there had been an improvement in his condition and also asked that claimant be placed on the witness stand, which appears to have been done. Claimant's attorney also asked for leave to take the testimony further of Dr. Clark on the basis of an affidavit of Dr. Clark filed with the Commission. The claimant also asked the Commission, pursuant to the provisions of Section 63 of the Act, to appoint another doctor at the expense of the State to examine the claimant. The Commission refused to take further testimony other than that of the claimant himself, and likewise refused the application of appointment of another doctor under Section 63, and thereafter on March 15, 1937, Commissioner Camak filed an opinion for the full Commission, overruling the exceptions of the claimant and affirming Commissioner Hyatt, and in accordance with this opinion, a formal award was issued by the Commission denying compensation in accordance with Commissioner Hyatt's opinion.

From that opinion and award of the full Commission, the claimant has appealed to this Court under the provisions of Section 60 of the Act and it was pursuant to this appeal upon the records certified by the secretary of the Industrial Commission to the Clerk of Court for Spartanburg County, that the appeal in this cause was heard by me.

At the outset, it should be remembered that by Section 60 of the Act, which provides the right of appeal to the Courts of Common Pleas, the awards of the Industrial Commission, are "conclusive and binding as to all questions of fact," and the Courts have jurisdiction only with relation to "errors of law under the same terms and conditions as govern appeals in ordinary civil actions." This means, as I understand it, that the Courts have jurisdiction to review awards of the Industrial Commission only where there is no substantial evidence to support the findings of fact of the Commission, or, in other words, that the Court has jurisdiction identical with the jurisdiction of the Supreme Court in jury cases in determining whether a verdict should have been directed. That this view is the correct one seems to be sustained by the opinion of the Supreme Court filed December 17, 1937, in the case of Murdaugh v. Robert Lee Construction Company, 185 S.C. 497, 194 S.E., 447, the first decision by the Supreme Court involving the Compensation Act.

The claimant's contention is that while he was employed at the plant of F.S. Royster Guano Company, just outside of Spartanburg, that he sustained an injury or injuries to his eyes as the result of the use by the Royster Company of a substance known as Urea, which when used in connection with the manufacture of fertilizer in its plant, where claimant was employed, produced a gas which brought about, as claimant contends, injuries of a permanent and drastic nature to his eyes. These contentions defendants deny. Necessarily it is encumbent upon the claimant to show that he has sustained an injury by accident, arising out of and in the course of his employment (Section 2 (f), in order to make his claim compensable and bring it within the provisions of the Act.

While there are a number of exceptions filed in this Court from the award of the Industrial Commission, denying compensation, the points taken by claimant appear to involve the following contentions:

(1) That under the evidence this Court should hold the Commission in error in finding that there was no injury by accident arising out of and in the course of the claimant's employment. In other words, that the only reasonable inference to be drawn from the evidence is that the claimant sustained an injury by accident under the Act.

(2) That the claimant was prejudiced by the admission and consideration of hearsay testimony in the form of statements of a Dr. Allen Woods, with whom Dr. Bristow had conferred, but who was not sworn as a witness.

(3) That it was error on the part of the Commission not to grant claimant's application under Section 63 for the appointment of another doctor at the expense of the State to examine the claimant and that the Court should remand the case to the Commission with direction that that be done.

(4) That it was error on the part of the Commission to hold that the word "accident" as defined in the Act cannot be extended to include typically genuine occupational disease cases, it being contended by claimant that by this conclusion the Commission has reached an erroneous construction of the Act and of the definition of the term "injury by accident," which justifies a reversal of the Commission's award.

These several contentions shall be dealt with herein, in the order stated above.

In order to sustain the claimant's first position, an examination of the evidence must disclose that there is no basis for Commissioner Hyatt's finding of fact (which was adopted by the full Commission), that the cause of blindness is from a tumor of the optic nerve of long standing and not as a result of the alleged accident and that the claimant's condition does not come within the requirements of Section 2(f) of the Act. Commissioner Hyatt also found that "The instant case shows no accident at any time." I am therefore confronted by a finding of fact by the Commission with which I cannot interfere, if there is any evidence to support it. See Section 60 of the Act and also Murdaugh v. Robert Lee Construction Company.

In this connection I cannot say that the evidence is not conflicting as to the cause of the condition of claimant's eye. It is true that Dr. N.T. Clark was of the opinion and so testified that the condition of claimant's eyes could have been the result of coming in contact with a gas of the Urea type. However, on the other hand, both Dr. R.G. Anderson of Spartanburg, who examined the claimant at the request of the defendants, and Dr. Bristow, who examined the claimant at the request of Commissioner Hyatt, are positive in their testimony that the condition of claimant's eyes could not have been caused by the substance complained of. Dr. Anderson was of the opinion that the condition of the right eye was due to degenerative nerve heads of long standing and that the condition of the left eye, which was not so bad as that of the right, was due to other conditions not in any way connected with any alleged injury from gas. Dr. Bristow was of the definite opinion that the condition of the claimant's right eye was due to a tumor of the optic nerve which was in no way connected with any alleged accident or application of gases or accident. Dr. Bristow testified that there were three causes for a tumor of the malignant malanoma type, such as this was, and that none of these causes result from an accident.

Both Dr. Anderson and Dr. Bristow testified that the condition of claimant's eyes was of long standing and definitely that such condition was not the result of an accident. Under these conditions, it matters not that I might find myself disposed to agree with the theory advanced by Dr. Clark (and I express no opinion thereabout). I have no jurisdiction to say that Dr. Clark was right and that Doctors Anderson and Bristow were wrong. The Legislature has seen fit to leave the determination of conflicts in evidence to the Industrial Commission and has expressly denied the Courts the right to interfere therewith. It would therefore be an unwarranted assumption of jurisdiction for this Court to undertake to determine the conflict in the testimony of the physicians. The finding of fact by the Commission that claimant's condition was not the result of injury by accident is therefore supported by abundant and substantial evidence and such findings are affirmed and made the judgment of this Court.

Coming to the second contention, relative to the question of hearsay, involving reference to Dr. Allen Woods' opinion, this developed in the following manner: When it appeared that the opinions of another doctor might be advisable and of assistance to the Commission in determining the case, after Commissioner Hyatt had heard the evidence of Dr. Clark and Dr. Anderson, the parties agreed that Commissioner Hyatt should himself select another specialist who should examine the claimant independently of the other doctors and without knowledge of their findings (page 130 of the testimony). The record shows that Mr. Hyatt called up Dr. Walter J. Bristow of Columbia, and arranged to have claimant go to Columbia for examination, which was done on two different occasions and pursuant to the request for examination by Mr. Hyatt, Dr. Bristow wrote Mr. Hyatt a letter under date of November 17, 1936, advising that he had made the examination requested by Mr. Hyatt. In the course of his letter, he stated among other things that: "On the second examination, Dr. Allen Woods, Ophthalmologist in Chief of Johns Hopkins Hospital happened to be in Columbia and I had him to examine this negro's eye. He pronounced the condition a tumor of the optic nerve" On the basis of this statement in this letter claimant contends that he has been prejudiced by hearsay. There are a number of reasons why this position cannot be sustained. In the first place, there is respectable authority for the proposition that hearsay is admissible in proceedings under Compensation Acts, though the Courts will not permit awards to stand which are based on hearsay evidence uncorroborated by facts, circumstances or other evidence. See Schneider's Workman's Compensation Law, Vol. 2, Second Edition, Section 508. It is not however necessary for me to base my conclusion upon the admissibility of hearsay under the Compensation Act. In the first place, the letter was never received in evidence nor was Dr. Bristow permitted to testify except with respect to his own knowledge and own opinion. On page two of the second part of the testimony, when a question had been asked with respect to Dr. Bristow's examination, objection was interposed by the attorney for claimant to reference to Dr. Woods' opinion. The Commissioner ruled that he could testify only from his own knowledge and directed that he should give only his own findings. The defendants insisted upon Dr. Bristow being allowed to testify as to the examination made by Dr. Woods in Dr. Bristow's presence, but upon further objection by claimant the Commissioner ruled that Dr. Bristow must confine himself to his own findings and nowhere in the evidence did Dr. Bristow testify with respect to the opinion of or examination by Dr. Woods. All that the defendants were allowed to prove was the identity of Dr. Woods, and certainly this could have no prejudicial effect. All that the Commissioner did rule was that the Commission had already received the letter or report and that it was in the Commission's file and that there was no way to get it out. This is an entirely correct statement. It was necessary for Dr. Bristow to report to the Commission and I cannot hold that the mere writing of a letter to the Commissioner advising that the examination had been made, which letter must necessarily have then become a part of the Commission's files, was hearsay in the face of the rulings of the Commissioner that Dr. Bristow's testimony must be confined to his own findings. The letter could not properly be destroyed as it was a part of the official file of the Commission and presumably in the absence of an affirmative showing to the contrary, the Commission rested its conclusion solely upon the evidence presented. An examination of the opinions of both Hearing Commissioner Hyatt, and of the full Commission show that Dr. Woods' opinion, and Dr. Bristow's reference to it in his report to the Commission were not considered by the Commission in reaching its conclusion. I cannot therefore say that the Commission has considered the statement in Dr. Bristow's letter with regard to Dr. Woods, but I must hold in the face of the extended discussion by Commissioner Hyatt of the evidence, that he was proceeding on the basis only of the testimony of the doctors who were actually sworn. All that the Court could do would be to remand the case, with directions to the Commission to disregard the statement contained in Dr. Bristow's letter, even if that statement were not admissible in evidence. It does not appear that the Commission has considered that statement and therefore there is no necessity for such remand.

Again claimant has failed to show that the elimination entirely of this letter from the record will affect the result and I cannot find that even if the Commission has considered the statement in the letter that the result would be affected if the cause were remanded to the Commission with directions to disregard the statement in the letter. The contentions in this respect are therefore overruled.

The next contention of the claimant is that he should have been permitted to have another doctor appointed by the Commission for an examination at the expense of the State. Section 63 provides that "the Commission or any member thereof may, upon the application of either party, or upon its own motion, appoint a disinterested and duly qualified physician or surgeon to make any necessary medical examination of the employee, and to testify in respect thereto." It further provides that the physician's fee shall be paid by the State. It will be particularly noted that the Legislature has used the word "may", thus investing in the Commission the discretion of making or refusing such appointment. The Commission in this case has found that it did not see fit to appoint another doctor for the purpose of making an examination at the expense of the State. I cannot say that the Commission has abused its discretion. Indeed it seems that that has been done which was contemplated by this section of the Act, to wit: The selection of a disinterested physician. Dr. Bristow, by Mr. Hyatt to make an examination and testify in respect thereto. No reason presents itself why I should disturb the action of the Commission in this respect.

Claimant likewise complains that he was not permitted to again present Dr. Clark as a witness before the full Commission. In the first place, Dr. Clark was not offered as a witness but only his affidavit was presented, as to what he would testify. The Commission has found it unnecessary to take Dr. Clark's testimony again, after he had testified at length and I have no reason for disturbing this conclusion. The Commission appears to be given broad discretionary powers with respect to taking of additional testimony, for it is stated in Section 59 that it has power, if application for review is made, to review the award, and if good grounds be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives and, if proper, amend the award. No error of law is involved in this case in the Commission's decision that there was no occasion for taking Dr. Clark's testimony further. He had already testified at length and in view of the limitation placed upon the Courts in reviewing the action of the Industrial Commission, I do not deem it proper to disturb this finding. It appears that the Commission has a rule (No. 16) relating to the taking of additional testimony, which rule appears to have been passed pursuant to the provisions of the Act and not in conflict with it. This rule provides that additional testimony may be taken in the discretion of the Commission where a proper case is shown by affidavit under the common-law rule governing admission of newly discovered evidence in application for a new trial. The evidence proposed to be introduced in this case from Dr. Clark does not comply with the common-law rule governing the admission of newly discovered evidence in the application for new trial, and there was therefore no compliance by claimant with Rule 16 of the Commission.

It is further complained by the claimant that the full Commission erred in stating that in addition to the conclusions of law of the Hearing Commissioner, which were adopted by the full Commission, "it is stated (by the full commission) that while the word `accident' need not be narrowly defined, it cannot be embellished and broadened to such an extent as to include typically genuine occupational disease' cases, as included in the Acts of a few states by specific phraseology and particular amendments". Claimant contends that by this conclusion the Commission has held that the condition of claimant's eyes is an occupational disease, and has erroneously concluded that the South Carolina Compensation Act does not provide compensation for occupational diseases. It is unnecessary for me to decide in this case whether the term "injury by accident" as defined in Section 2(f) includes any occupational disease or not. Even if the Commission is in error in concluding that occupational diseases are not embraced by the statutory definition of injury by accident nevertheless there are other grounds upon which the commission could deny compensation in this case without invading the field of a discussion and decision of the term injury by accident in its relation to occupational diseases. As pointed out earlier in this order, there was a serious conflict in the evidence, particularly the medical evidence, as to whether the alleged gases had anything at all to do with the condition of claimant's eyes. At least two doctors were positive that there was no connection. The Commission has found as a matter of fact that there was no connection between the alleged gases and the condition of the eyes, and this finding of fact by the Commission, which is conclusive, is sufficient without any further finding, to support the award. What the Commission has said in effect is, first, that there is no connection between the alleged gas and the eye condition, but, in the alternative, even if the condition were the result of the alleged gases, that the condition was an occupational disease not falling within the provisions of the Compensation Act. The first conclusion is sufficient of itself to support the Commission's finding and is disconnected from the second alternative conclusion. It is a well-settled principle that where a finding of a lower Court or Commission is correct in principle, it will not be reversed because of the assignment of erroneous reasons therefor. The finding that there was no injury by accident, and no connection between the alleged gases and eye condition, is amply supported by the evidence and this is sufficient to require of this Court an affirmance of the award and renders unnecessary a decision on the application of the term "injury by accident", as used in the Act, to occupational diseases of any sort.

In this connection the claimant seeks to find support in the case of McNeely v. Carolina Asbestos Company, 206 N.C. 568, 174 S.E., 509, decided May 23, 1934, in which the Supreme Court of North Carolina considered a common-law action brought for damages because of alleged asbestosis, from which plaintiff suffered as a result of his employment in defendant's plant. It may be argued from that case that the Supreme Court of North Carolina has held that the words "injury by accident" as used in a Compensation Act do include some sort of diseases designated as occupational. However, even in the light of the construction of the North Carolina Act, Code 1931, § 8081h-hhhh, as stated in the McNeely case, claimant is met with the later case of Swink v. Carolina Asbestos Company, 210 N.C. 303, 186 S.E., 258, decided by the same Court June 15, 1936. That, too, was an asbestosis case, and the facts were substantially similar as in the McNeely case. The Swink case was brought as a claim under the North Carolina Compensation Act and compensation was denied by the Commission with a finding of fact that the claimant had sustained no injury by accident. Upon a reversal by the Circuit Judge of the award of the Industrial Commission denying compensation, the Supreme Court reversed the Superior Court and held that the plaintiff's condition was not compensable under the Act because the Courts were bound by the finding of fact made by the Industrial Commission, such finding being supported by competent evidence. The Swink decision may be regarded in some respects as being in conflict with the McNeely case, but it is unnecessary to attempt a reconcilement of the two decisions because these decisions of the Supreme Court of North Carolina, while they may be persuasive, are not binding, and in this case it is unnecessary to decide the question as to the exact meaning of the words injury by accident". I, expressly, therefore, avoid a determination of the inclusion of occupational diseases in the South Carolina Act and hold there are ample grounds aside from this question sufficient to require an affirmance of the Commission's award. In fact this question is moot in the instant case and I merely mention these decisions because the McNeely case urged so strenuously by claimant's attorneys. The exceptions raising this question are therefore overruled.

It is therefore ordered, adjudged and decreed that the award of the South Carolina Industrial Commission denying compensation in this case be and the same is hereby affirmed and made the judgment of this Court, and all exceptions of claimant are overruled.

Let this order be enrolled in the office of the Clerk of this Court along with the record herein as certified by the South Carolina Industrial Commission, with leave to the defendants to enter judgment hereon, as a judgment of this Court, as provided in said Compensation Act. The plaintiff shall pay the costs involved in this appeal.

Messrs. Foster Dunbar, for appellant, cite: Accidental injury arising out of employment: 153 S.E., 266; 158 P., 256; Ann. Cas., 1918-B, 354; 152 S.E., 805; L.R.A., 1916-A, 227; 144 N.E., 857; 96 So., 188; L.R.A., 1916-A. 22; Ann. Cas., 1916-A, 386; 148 N.W., 243; 6 A.L.R., 1242; 116 N.E., 1060; 13 A.L.R., 522; 181 N.W., 706; 174 S.E., 509; 162 S.E., 223; 128 A., 635; 44 A.L.R., 363; 164 S.E., 492. Evidence: 2 Brev., 461; 196 S.E., 342; 195 S.E., 34; 194 S.E., 303; 164 S.E., 344; 174 S.E., 911; 3 L.Ed., 348; 113 S.C. 84; 100 S.E., 892; 113 S.C. 326; 101 S.E., 849; 52 S.C. 428; 29 S.E., 856; 30 S.E., 142; 59 S.C. 311; 37 S.E., 938; 91 S.C. 523; 74 S.E., 386; Ann. Cas., 1914-A, 139; 192 S.E., 266; 162 S.C. 17; 159 S.E., 818; 161 S.C. 479; 159 S.E., 822; 69 S.C. 413; 48 S.E., 290; 66 L.R.A., 723; 104 A.S. R., 811; 162 S.E., 247. Hypothetical questions: 197 S.E., 398; 22 C.J., 706; 179 A., 54; 98 A.L.R., 1006. Total disability: 166 S.C. 316; 164 S.E., 878; 166 S.C. 367; 164 S.E., 881.

Messrs. Osborne, Butler Moore, for respondent, cite: Evidence: 185 S.C. 497: 194 S.E., 447; 186 S.C. 374; 195 S.E., 646. As to new trial on newly discovered evidence: 184 S.C. 158; 191 S.E., 905.

October 31, 1938. The opinion of the Court was delivered by

The appeal in this case is from an order of the Circuit Court affirming an award of the South Carolina Industrial Commission. In his well-prepared decree, as will be seen, Judge Sease, by whom the matter was heard, gave much thought and full consideration to the several questions involved in the controversy; and this Court is entirely satisfied, from a careful examination of the record, with the conclusions reached by him.

The Circuit decree, which will be reported, is affirmed.


MR. JUSTICE CARTER did not participate on account of illness.

Summaries of

Spearman v. F.S. Royster Guano Co. et al

Supreme Court of South Carolina
Oct 31, 1938
188 S.C. 393 (S.C. 1938)
Case details for

Spearman v. F.S. Royster Guano Co. et al

Case Details


Court:Supreme Court of South Carolina

Date published: Oct 31, 1938


188 S.C. 393 (S.C. 1938)
199 S.E. 530

Citing Cases

Green v. City of Bennettsville

524; 102 Pa. Super., 500; 77 P.S., 1 et seq.; 93 Pa. Super., 320, 322; 77 P.S., 1 et seq.; 193 A., 86, 88;…

Riddle v. Fairforest Finishing Co. et al

Proceeding under the Workmen's Compensation Act by Dan C. Riddle, employee, opposed by the Fairforest…