Baker v. Graniteville Co. , 197 S.C. 21 ( 1941 )

The claimant, Mrs. Annie Belle Posey Baker, has addressed to the Court a lengthy petition for a rehearing in this cause, in which it is suggested that it appears from the opinion filed that material testimony and applicable principles of law have been overlooked.

In the petition much stress is laid upon a death certificate given, prior to the hearing in this case, by Dr. Howell to a life insurance company which had issued a policy of insurance on the life of the deceased. No mention was made of this certificate in our opinion for the reason that we did not consider that it possessed any probative value.

At the end of an exhaustive examination of Dr. Howell, he testified as follows upon inquiry by the hearing commissioner:

"* * * I want to know what kind of certificate you gave the insurance company indicating what caused his death? What kind of arrangements were made?

"A. I placed as the cause of death, a series of facts as I knew them, a contusion of the elbow, erysipelas, cerebral embolism. That is in line, the insurance company asked me in my opinion if the death was accidental, and I told them that was for somebody else to decide, and I said I am going to put down all I have put down on the death certificate.

"Q. What did you put down? A. The same as I have just stated, a contusion of the elbow, an erysipelas, and cerebral embolism.

"Q. Interpret that last in laymen's terms, what you mean? A. I mean that the man came to me and gave me a history of having been hit on the back of the elbow; I mentioned that he later developed erysipelas, and I mentioned that the erysipelas caused his cerebral embolism which produced the sudden death."

A consideration of the evidence previously given by Dr. Howell shows beyond question that he regarded the blow suffered by the deceased on his right arm as having nothing whatever to do with the streptococcus infection which was followed by erysipelas and death. And he stated, as did the claimant herself, that the blow caused no visible bruise or contusion. This testimony he gave under oath in the trial of this cause, and he was the claimant's witness. He testified freely and without hostility, and neither the claimant nor the commissioner could discredit him. Testimony with reference to the contents of the death certificate was objected to by the defendant because the original had not been produced. But, assuming that such testimony was admissible, we fail to see how it could be accepted as proof of a substantive fact. State v. McKay, 89 S.C. 234,71 S.E., 858; State v. Nelson, 192 S.C. 422,7 S.E.2d 72. If admissible at all, it could serve only as an impeachment. When the testimony of Dr. Howell is read from end to end, it can give rise to only one reasonable inference, and that is that the accidental blow resulted in no hemorrhage or edema. As stated, this testimony was confirmed by that of the claimant.

The Court made no reference in its opinion to the testimony given by Mrs. Baker, the claimant, when she was recalled to the stand, because the commission made no finding based on her testimony.

In the forty-eighth paragraph of the award, the commissioner states: "It is found that Mrs. Annie Belle Baker, being recalled, positively testified that claimant did not have injured hands as result of a chicken fight, but that he frequently went to chicken fights." But the commission made no finding at all upon this testimony. Nor did this evidence in any sense support the charge that the accidental blow caused the death of Mr. Baker.

In another portion of Mrs. Baker's testimony she testified, over objection, that the deceased told her that he had injured his finger in the mill. This testimony was allowed, but no pertinent finding was made thereon. Because the commissioner made no reference to this testimony in his final conclusions, we made the statement in the opinion: "There is no suggestion that the injury to the fingers was sustained in connection with his employment." In the official report of the decision, this sentence will be changed so as to read: "The Commission made no finding that the injury to the fingers was sustained in connection with his employment."

The specific finding of the commission upon which the award was made is as follows: "From the preponderance of the testimony the commissioner finds as a fact that there was an accidental injury, which has never been denied or proven, which arose out of and in the course of this employee's employment the night of March 10, 1939, while he was working in the Warren Mill of the Graniteville Company, which together with any dormant or latent condition that might have existed immediately disabled claimant from Saturday, March 11th, on which day he did not work, until his death and which injury was the provoking and aggravating and accelerating cause of the condition from which he is alleged to have died, streptococcus, septicemia and erysipelas."

It will be noted that the pre-existing disease of erysipelas is, to all intents and purposes, found as a fact. The whole theory upon which the case was tried was that the erysipelas was in existence, either active or dormant, and that it was the blow, in conjunction with the erysipelas, which caused the death of the deceased. The commission placed no responsibility or liability on the defendant for the origin or inception of the disease; it was accepted as being present at the time the deceased received the blow.

The petitioner inadvertently errs in saying that the opinion contains the statement that the deceased used his arm for two days after the accidental blow. The opinion heretofore filed specifically states: "He never again returned to his work at the mill after March 10th (the night he received the blow)."

The answer to the petitioner's criticism with reference to the method of appeal followed by the defendant when asking for a review by the full commission is that the intention of the compensation act was to provide simplicity of procedure. The exception contained in the defendant's application for review by the full commission fully met the rule stated in McDonald v. Palmetto Theatres, S.C.,13 S.E.2d 602, 196 S.C. 460.

The petition has prompted a complete review of the record in this case. However, a re-examination convinces us anew that there is no competent evidence from which a reasonable inference can be drawn that the blow upon the arm accelerated or aggravated the pre-existing disease of erysipelas which caused the death of claimant's husband.