Black v. Barnwell County , 243 S.C. 531 ( 1964 )

Bussey, Justice

(dissenting).

Finding myself unable to agree with the majority opinion in this case, I feel it to be my duty to set forth the reasons for my dissent, particularly since the views I hold may possibly have some influence upon the just and proper disposition of similar cases in the future.

In my humble opinion, this case would not likely even be before this court, let alone disposed of in the manner it is being disposed of, were it not for what I regard to be some confusion as to what constitutes a “finding of fact” and what constitutes a “conclusion of law.”

In the instant case the hearing Commissioner, the late John W. Duncan, under the denomination of “findings of fact” made the following findings:

“That the claimant has failed to sustain the burden of proof necessary in proving his claim as required by our many Supreme Court decisions involving such death cases.

“That the claimant, Jeff Black, did not sustain any injury by accident arising out. of and in the course of his employment resulting in his death.”

No other even so-called findings of fact wére made which are pertinent to the appeal here. On appeal to the full Commission, the attorney for the claimant challenged the foregoing findings as being conclusions of law rather than findmgs of fact. The only conclusion of law stated as such by the hearing Commissioner was as follows:

“It is the conclusion of this Commissioner that Section 72-14 defines injury and personal injury.”

The full Commission, with the exception of Commissioner Reid, who filed an exhaustive and analytical dissent, affirmed the hearing Commissioner in a very brief order which did not set forth in any detail the basis upon which the hearing Commissioner was being affirmed.

On appeal to the circuit court counsel for claimant again challenged the above quoted so-called findings of fact as being mere conclusions of law rather than findings of fact, but the circuit court did not find it necessary to pass upon such issue since he concluded that under the undisputed facts disclosed by the competent evidence, the claimant was entitled to compensation as a matter of law. While the precise issue, as far as I can ascertain, has not previously been before this court, the entire weight of authority from other jurisdictions is to the effect that the findings here were mere conclusions of law, as contended by the claimant below, rather than findings of fact.

The general rule seems to be that where an ultimate conclusion can be arrived at only by applying a rule of law, the result so reached embodies a “conclusion of law” and is not a finding of fact and not binding upon the reviewing court. Courts from other jurisdictions have held so-called findings of fact almost identical in wording to the so-called findings of fact here, to be mere conclusions of law. Pribyl v. Standard Electric, 246 Iowa 333, 67 N. W. (2d) 438; Stoner v. Howard Sober, Inc., 124 Ind. App. 581, 118 N. E. (2d) 504; Tesch v. Industrial Commission, 200 Wis. 616, 229 N. W. 194; Pierce v. Phelps Dodge Corp., 42 Ariz. 436, 26 P. (2d) 1017; and other cases in 17 Words and Phrases “Finding of Fact” p. 23 et seq.

Since the award of the hearing Commissioner, affirmed by a majority of the full Commission, contained no “findmgs of fact, it follows that this court is not bound by any findings of fact adverse to the claimant, and since no such findings of fact were made, I think it incorrect for us to deny compensation to the claimant on the erroneous assumption that findings of fact were made and binding upon this court if supported by competent evidence.

There are, of course, cases in which implied findings of fact are necessarily involved in a conclusion arrived at by an Industrial Commission, but this is not such a case. Since the award of the Commission contains no findings of-fact and gives no reasons, the conclusion arrived at may have been reached on several theories other than findings of fact adverse to the claimant, supported by competent evidence.

The employer on the hearing offered the testimony of a doctor who expressed the view that the unusual strain and over-exertion endured by the claimant had no causal connection with the fatal heart attack. This evidence was objected to be counsel for the claimant on the ground that it was inadmissible and incompetent under the rules repeatedly laid down by this court governing the admissibility of expert testimony. Without bothering here to detail the testimony of this doctor, it is clear that claimant’s objection was well founded under the rules laid down by this court in numerous cases.

On appeal to the circuit court, the judge correctly held the testimony of this doctor to be inadmissible and incompetent, which ruling on the part of the circuit judge is not even challenged on this appeal. However, neither the hearing Commissioner nor the full Commission ruled on the claimant’s objection to this testimony and it is entirely possible that the conclusion of the Commission adverse to the claimant involved consideration of. this incompetent testimony. The fact that the hearing Commissioner may very well have considered it is borne out by his remarks disclosed by the record with respect to the medical witnesses when he made the following comment:

“ * * * it’s up to me in my humble and feeble way to get this and try to determine which of these witnesses I think is right.”

Aside from the incompetent evidence, the undisputed medical evidence is that there definitely was a causal connection between the unusual strain and overexertion testified to on the part of the claimant and the fatal heart attack he suffered.

The employer, in the course of the hearing, offered' evidence to the effect that there were other causal factors which helped to bring on the heart attack and since no reasons are given for the conclusion arrived at by the Commission, it is entirely conceivable that the Commission erroneously concluded that the unusual strain and exertion had to be the sole causative factor in order to entitle the claimant to compensation. Sweatt v. Marlboro Cotton Mills, 206 S. C. 476, 32 S. E. (2d) 762; Raley v. City of Camden, 222 S. C. 303, 72 S. E. (2d) 572.

While the foregoing are possible bases upon which the Commission may have arrived at its conclusion, I think from a review of the record that the most probable basis for.the denial of compensation was that the majority of the Commission concluded that under the undisputed facts no compensation was due as a matter of law. The record shows that throughout this case the employer has contended that, as a matter of law, it is not liable for compensation under the cases of Sims v. South Carolina State Commission of Forestry, 235 S. C. 1, 109 S. E. (2d) 701, and West v. City of Spartanburg, 236 S. C. 553, 155 S. E. (2d) 295. The hearing Commissioner was well known to every member of this court, as well as the rest of the judiciary and most of the bar of South Carolina. Whether one agreed or disagreed with his philosophy, his conscientious, constant dedication to protecting the rights of claimants to the full extent that the evidence and law permitted him to do so was well known. A reading of the record here rather clearly indicates,to me that at least his decision, if not that of other members of the Commission, in denying compensation was based on the belief that he considered the Sims case controlling, rather than upon any finding of fact adverse to the claimant. In the course of the hearing there was some discussion of the Sims case during which the following occurred:

“Commissioner: And the Supreme Court kicked me all over South Carolina on that case.

“Mr. Blatt: But of course we have an entirely different circumstance, here, sir.

“Commissioner: Yes. I’d like to see how that compares with this one.”

Under the undisputed facts disclosed by the record, it is inconceivable to me that the hearing Commissioner would have decided this case adversely to the claimant had he not been convinced that the Sims case was controlling. Of course, whether or not the other Commissioners who voted with him shared such conviction is simply not disclosed. No good purpose could be served by here discussing either the Sims case or the West case, but suffice it to say that a reading of the opinions in those cases will show that the facts in each of them are clearly distinguishable from the facts disclosed by the uncontradicted competent evidence in this case.

Of course, there are cases in which there is dispute and conflict in the evidence as to what a claimant usually or customarily did and disputes as to what a claimant was or was not doing at the time of the occurrence. Naturally, in such cases, a finding of fact by the Commission thereabout, supported by competent evidence, is binding upon the reviewing court. However, in the final analysis the decision as to what state of facts constitutes unusual strain and exertion so as to make a claim compensable has always been correctly' decided as a question of law, as will be borne out by the many decisions of this court dealing with heart attacks in Workmen’s Compensation cases.

Even if the Commission here found as a fact that there was nothing unusual or extraordinary about the activities of the sheriff, which it did not, I do not think it reasonably inferable from the competent evidence that the deceased in climbing the stairs of the jail was about his normal and usual duties of his employment as jailer. It is, of course, true that the sheriff as jailer was responsible for the operation of the jail, but the duties of a person holding the position of both sheriff and jailer are of necessity many and varied. The fact that the sheriff was responsible for the operation of the jail has no real bearing on the issue. The test here is simply what he normally and usually did and did not do in carrying out all of the duties imposed upon him by the position which he held.

The testimony of the widow and several law enforcement officers, including a member of SLED, is to the effect that the sheriff, while responsible for the operation of the jail, did not usually climb the stairs and did so only very rarely, and then only in case of emergency. The usual custom was for either arresting officers, or trusties who served as turnkeys, to take prisoners to and from the second floor of the jail and attend to their needs. No witnesses testified to the contrary. On the afternoon in question, under the undisputed evidence the deceased undertook to and did climb the stairs because two trusties, who usually performed such duties, were not present, one of them being busy out at a lot and barn, and the other away at a farm. Whatever the reason for his undertaking to climb the stairs on that occasion, the fact remains undisputed in the evidence that what the deceased did on the particular occasion was for him a most unusual and extraordinary exertion, rather than something which he usually and normally did in the course of the performance of his duties.

The right to compensation is not affected by the fact that the unusual excessive strain which jprecipitates a heart attack occurs while he' is performing work of the same general type as that in which he is regularly involved.

The phrase unusual or excessive strain’ used in many of the cases, is not so limited in its meaning as to include only work of an entirely different character from that customarily done.” Kearse v. South Carolina Wildlife Resources Dept., 236 S. C. 540, 115 S. E. (2d) 183.

The material facts disclosed by the competent evidence here being undisputed and uncontradicted, I conclude that the circuit judge was correct in deciding as a matter of law that the claim here is a compensable one. A review of such cases as Sweatt v. Marlboro Cotton Mills, 206 S. C. 476, 32 S. E. (2d) 762; Walsh v. United States Rubber Co., 238 S. C. 411, 120 S. E. (2d) 685; and Ricker v. Village Management Corp., 231 S. C. 47, 97 S. E. (2d) 83, shows that in each of said cases compensation was allowed under circumstances much less unusual than the circumstances disclosed by the evidence in this case.

In the Ricker case the claimant, a bus driver, was doing nothing more unusual than making a left turn from a proper lane of traffic. True, both the bus and traffiic were heavy, but there was nothing unusual thereabout. The only thing really unusual there was that, until some time shortly before the alleged accident, he had been making the particular turn from the right hand lane rather than from the left hand lane, to give him more room for turning, until an occurrence convinced him that it was not safe to do so.

For the foregoing reasons, I would affirm the decision of the lower court. If, however, I and the circuit judge be in error in our conclusions as to the sole reasonable factual inferences deducible from the evidence, and the majority be correct in concluding that the competent evidence is susceptible of more than one reasonable factual inference, it seems to me that the justice of this case demands that the rights of the parties be not finally concluded upon the record before us since we have no findings of fact by the Commission. The case should at least be remanded to the Commission with directions to make specific findings of fact about any factual issues which conceivably may be involved herein. I think it unfair and unjust to the widow to conclude her rights on the theory that findings of fact adverse to her were made by the Commission, when, actually, no such findings were made.

In any event, it might not be amiss to remark that the instant case points up the importance of the Industrial Commissioners clearly and specifically stating their findings of fact, particularly in a case such as this, rather than stating or affirming mere ultimate conclusions, so that the reviewing courts may more readily, correctly and justly decide any legal issues presented on appeal.