4 S.E.2d 7 | S.C. | 1939
Order or Judge Grimbaee
This is an appeal from the South Carolina Industrial Commission’s award. By consent of all parties, this appeal was taken up before me at Aiken on January 23, 1939, at which time the appeal was argued by counsel, pro and con. Í reserved my decision to give thorough consideration to the matter involved.
The facts are, that Eugene Bannister was employed in this State to work for W. C. Shepherd, Bannister residing at
1. The Commission erred in failing to hold that the Georgia Industrial Commission did not have exclusive jurisdiction over the subject-matter herein involved.
2. The Commission erred in finding that it has jurisdiction over the subject-matter herein involved.
3. The Commission erred, as a matter of law, in placing the functional loss of the use of claimant’s leg at seventy-five per cent.; whereas, the same should have been fifty per cent.
4. The Commission erred, as a matter of law, in fixing the claimant’s average weekly wage at Fifteen and 82/100 ($15.82) Dollars; whereas, the same should have been fixed at Twelve and 50/100 ($12.50) Dollars.
As to the first exception. The compensation law of this State, Act July 17, 1935, 39 St. at Large, p. 1231, defines who are employers and who are employees, and also fixes the status of the carrier and the employer with reference to the benefits provided in the law for the employee. Upon consideration of the testimony, and particularly
Exception two covers practically the same matter as set forth hereinabove with reference to Exception one, except as to the feature pertaining to the exclusiveness of the statute. By reference to the Georgia statute, it will be seen that the statute anticipates recoveries in other states; but it appears from the testimony that the Commission not only had jurisdiction of the parties, but of the subject-matter as well; and that it has all machinery for enforcing the judgment or award of the Commission. It is elementary law that parties may contract with reference to the place of performance, and in that event the law of the place of performance would govern.
The third and fourth exceptions involve purely questions of fact, according to the adjudications of the Courts of this State. The doctor’s testimony was being considered by the Commission. He testified at one time that the loss was seventy-five per cent, and later that it may not exceed fifty per cent. However, all the testimony was before the Commission for its consideration. The Courts hold that where a witness’ testimony conflicts with other testimony, or where conflicts arise in his own testimony, it then becomes a matter of opinion for the triers of the facts, and I am not permitted to disturb findings of fact where there is testimony to sustain them. This principle is equally applicable to the fourth ground, there the average weekly wage is found. The testimony is that Bannister lived largely on the truck, eating and lodging wherever his work carried
Therefore, the appeal must be, and hereby is, denied and the award of the full Commission affirmed.
Order oe Judge Beeeinger
This matter comes before, me upon a rule to show cause heretofore issued by Judge Stoll, dated April 4, 1939, requiring the defendant, American Mutual Liability Insurance Company, if any it can, to show cause why the said defendant has not complied with the order and judgment of this Court with respect to the payment to be made to Eugene Bannister.
Judge Rice having disqualified himself, the matter comes before me by the written consent of the attorneys representing the respective parties.
It appears from the petition upon which the rule to show cause was issued, that the plaintiff was injured while in the employ of W. C. Shepherd, on or about September 2, 1937, and that pursuant to proceedings duly had on July 7, 1938, the Industrial Commission of South Carolina made an award of compensation to the plaintiff, in which it directed
It further appears that said carrier appealed to this Court from such award, and that by order of this Court the award was affirmed on Februar)?- 1, 1939.
The petition further shows that said carrier gave notice of intention to appeal to the Supreme Court from said order, but that said appeal has not been perfected, nor has the record herein been filed in the Supreme Court; and that said carrier has refused to make the payments required by the judgment of this Court, and that the plaintiff “is much in need of the compensation, not only for his own personal living purposes, but because he is in need of a leg.’’
The respondent appeared by counsel and made oral return to the rule, and admitted the facts contained in the petition but denied that the plaintiff was entitled to the relief sought, taking the position that the filing of the notice of intention to appeal to the Supreme Court from the order of this Court per se acted as a supersedeas, and that the order therefore could not be enforced until the final determination of the issues raised by the appeal. The defendants ask that the rule be dismissed.
Section 60 of Act No. 610, of the Acts of the General Assembly of South Carolina (Acts of 1936, pages 1231, 1260), provides: “§ 60. Award — Effect—-Appeal—Payment of Compensation During Appeal — The award of the Commission, as provided in Section 58, if not reviewed in due time, or an award of the Commission upon such review, as provided in Section 59, shall be conclusive and binding as to all questions of fact; but either party to the dispute may, within thirty days from the date of such award, or within thirty days after receipt of notice to 'be sent by registered mail of such award, but not thereafter appeal from the decision of said Commission to the Court of Common Pleas of the county in which the alleged accident happened, or in which the employer resides or has his principal office, for
The defendant takes the position that if it be required to make the payments provided for in the award and the Supreme Court should ultimately reverse the order and judgment of this Court and set aside the award that it would have ho way of recovering the payments finally determined not to be due and owing by it, and therefore if Section 60, supra, be so construed as to require the payments of such award during the pendency of its appeal that said section would deprive it of the equal protection of law and would therefore be unconstitutional.
The defendant further took the position that even if the Act should require the payment of the award pending the appeal that the Legislature intended the payment to be made to some one other than the plaintiff. This contention'of defendant is untenable because if the Legislature intended any such payment, it would have so stated, whereas the Legislature said that the “employer shall be required to make payment of the award involved in said appeal.” The award necessarily required payment thereof be made to the plaintiff.
Upon consideration of defendant’s first ground of objection, at first glance it does seem unfair to require the payment of the award during the pendency of an appeal, especially so, when there is no way prescribed for its recovery in the event the award should be set aside. But, however, when we consider the purpose of enacting the Workmen’s Compensation Act, i. e., to provide a system “whereby employers and employed might escape from personal injury litigation and every employee not guilty of
The Legislature has in clear and convincing language provided that an appeal shall only act as a supersedeas for a period of thirty days; whether or not this was a wise decision on the part of the General Assembly, it is not the province of this Court to say. This Court can only carry out the intention of the Legislature as expressed
Does Section 60 of the Act as herein construed deprive the defendant of the equal protection of the laws ? It does not, because one must have a legal right before one can claim that the Legislature unconstitutionally deprived him of it.
Under our American system of jurisprudence an ap~ pellant has no constitutional or other right entitling him to a supersedeas pending an appeal, in the absence of express statutory authorization. Here the statute in question (Section 60) gives the defendant a supersedeas, but only for the period of thirty days.
That the foregoing is true is well shown by the following-quotations. The authors of American Jurisprudence set forth the rule to be that: “In the absence of express statutory authorization, it is apparent that the appellant is not entitled to a supersedeas or stay of proceedings as a matter of right.” 3 Am. Jur., No. 538, page 196.
The authors of Corpus Juris secundum set forth the same rule in' these words: “The matter of supersedeas and stay of proceedings below on appeal or writ of error is in most jurisdictions, if not all, the subject of express statutory provision, and the general rule now is that a supersedeas or stay can be had as a matter of right only where it is provided for by statute, and a strict compliance with the terms and conditions prescribed by the statute. * * * The right to have an appeal or a writ of error made a supersedeas is not a constitutional right, and therefore the legislature may impose the terms upon which it shall be granted.” (Italics added.) 4 C. J. S., Appeal and Error, § 629, page 1110.
Illustrative of the underscored portion of the above quotation, the States of Georgia, Virginia and North Carolina, by their Workmen’s Compensation Acts, have specifically
In interpreting this statute, this Court is bound to seek to discover the legislative purpose in enacting it.
Brown v. Sikes, supra, and having done so it is apparent that the. legislative purpose was to allow a supersedeas for only thirty days, which was neither unreasonable nor unconstitutional, especially so when the facts of this particular case are considered. The accident happened September 2, 1937, the award was made July 7, 1938, and so far the claimant has as yet received not one cent on account of the award; the case is now on appeal to the Supreme Court and if this Court did not order the payment of the award another year might elapse before the claimant would receive any benefit from his award. It is entirely probable that it was to prevent just such dela)^, as here, that the Legislature only allowed a supersedeas for thirty days. It must also be borne in mind that the Workmen’s Compensation Act is a form of social legislation passed primarily for the benefit of the employee, and to prevent the burden of injured employees becoming charges upon society.
Therefore, the two cjuestions raised by the return of the respondent must be decided against it.
It is ordered, adjudged and decreed, that the defendant, American Mutual Liability Insurance Company, do pay unto
The opinion of the Court was delivered by
The case arose under the South Carolina Workmen’s Compensation Law. The full Commission made an award, which upon appeal to the Circuit Court was affirmed in an order by his Honor Wm. H. Grimball. After notice of intention to appeal from this order had been served, the claimant moved to require the appellants to comply with the award. Over the objection of the appellants, his Honor G. Duncan Bellinger filed an order directing the insurance carrier, American Mutual Liability Insurance Company, to pay the award pending the appeal. The case comes before us upon appeal from both of these orders.
The facts and circumstances giving rise to this litigation are fully set forth in the orders appealed from. We have given full and careful consideration to the issues involved, and are satisfied with the disposition made of those issues by the Circuit Court. In our opinion, that Court correctly decided the case. Let the order of Judge Grimball and the order of Judge Bellinger be reported.
Judgment affirmed.