Miller v. SPRINGS COTTON MILLS

Oxner, Justice.

• This is an appeal from an order of the Circuit Court reversing an award for compensation made by the Industrial Commission. The major question presented is whether the employee sustained an injury by accident arising out of and in the course of her employment.

• • Claimant was employed in the cloth room of the Eureka Plant of the Springs Cotton Mills. The mill operated a cafeteria in the same building for the convenience of the employees, most of whom ate there," although some brought their food from home. Claimant’s hours of employment were from 6:00 a. m. to 2:00 p. m., with twenty minutes allowed for lunch. On October 26, 1951, she quit work at 11:50 a. m. and went to the cafeteria. She finished her meal fifteen minutes later and claims that she sustained an accidental injury as she arose from the table. Her description of the alleged accident is as follows:

“Q. After you finished eating lunch, what happened? A. I started to get up from the table and started falling to the right. My knee twisted, and I felt a sharp pain in my knee. I gfabbed the. table to keep from falling to the floor.

_■ “Q. Did you get all the way up from the table? A. Yes, sir, finally, by holding on to the table. I had to stand there a few minutes.

“Q. Did you start falling to the right or left? A. To the right, when my knee twisted.

“Q. That threw the weight on which foot? A. On my right foot, it twisted my knee.

“Q. What happened to your knee? A. They said it was-a ligament that got fastened under my knee cap.

“Q. I mean at that time, what happened? A. It just started hurting when it twisted, a sharp sudden pain struck my knee.

“Q. Why did you catch to the table? A. To keep from falling to the floor.

“Q. Would you have fallen if you had not grabbed the table with your hands? A. Yes, sir.

“O. You did not actually fall on the floor? A. No, sir. 1

“Q. Did you work on, after that? A. I stayed about two hours after that.

“Q. Did your knee hurt during that time? A. Oh, it was in awful pain.

“Q. When did you stop work? A. At stopping time. I had finished my eight hours.”

* =¡= *

“Q. Mrs. Miller, do you think of anything I have left out? A. No, sir, I just lost my balance and my knee twisted and I have been in pain ever since.

* * *

“Q. You say you got up from the table? A. Yes, sir.

“Q. And lost your balance? A. Yes, sir. •' •.( •

“Q. And twisted your knee ? A. That is right.

“Q. And that is how it happened? A. That is exactly how it happened.

“Q. And both your feet were flat on the floor? A. Yes, sir. It went just like that — (Snapping fingers).”

Claimant, who at the timé of the accident was 43 years of age and weighed approximately 200 lbs.,, further testified that she had never had any previous trouble with her knee. After the alleged injury, she spent many weeks in the hospital and finally an operation was performed. At the time of the hearing before the Industrial Commission, she had not been able to resume work. The record contains no medical testimony and, therefore, we have no way of knowing what caused the “twisting” of claimant’s knee.

We do not think claimant has shown an injury by accident — the first requisite for the payment of compensation. The foregoing testimony rather indicates that the failure of claimant’s knee to function normally was the cause of her near-fall and not the near-fall the cause of the injury to the knee. We have simply some internal failure or breakdown in the knee which might have happened at any time. The fact that it occurred in the cafeteria was purely coincidental. It would be wholly conjectural to say under the evidence before us that claimant’s employment was a contributing cause of her injury. To sustain an award of compensation in the instant case would necessitate opening the floodgates and holding that every internal failure suffered by an employee in the course of his employment becomes an accident just because it happens. An injury of the kind before us has been characterized by the Supreme Court of Oklahoma as “a lamentable result of an ordinary employment of the body unattended by any accidental circumstances.” Phillips Petroleum Co. v. Eaves, 200 Okl. 21, 190 P. (2d) 462, 463.

The foregoing conclusion is fully sustained by the case of Burnett v. Appleton Co., 208 S. C. 53, 37 S. E. (2d) 269, which was cited with approval and followed in the recent case of Fleming v. Appleton Co., 214 S. C. 81, 51 S. E. (2d) 363. In the Burnett case claimant testified that while pushing a truck loaded with cloth up a slight incline, described as “a rise-of an inch in four or five feet,” he “felt like something struck me or somebody struck me with a stick across the back of my right leg, and it caused a right smart of pain and began to swell then in just a few minutes’.” He admitted that nothing came in contact with his leg and that there was no visible evidence of injury, and stated that his physician had told him that “ ‘a blood artery clogged in my leg’.” It was held that he did not sustain an injury by accident.

The remaining question is whether appellant is entitled to temporary total disability in accordance with the award of the Industrial Commission, notwithstanding the fact that said award has been reversed and we have held that appellant has not sustained an accidental injury. She contends that payment of compensation, at least to this extent, is mandatory under the construction given Section 72-356 of the 1952 Code in Bannister v. Shepherd, 191 S. C. 165, 4 S. E. (2d) 7.

The award of the hearing Commissioner, which was filed on February 4, 1953, directed that temporary total disability be paid from October 26, 1951, the date of the alleged accident, to June 18, 1952, the date of the hearing, and left the case open “for the purpose of taking additional testimony to determine the extent, if any, of permanent disability and disfigurement.” This award.was affirmed by the full Commission, one member dissenting, on May 8, 1953, and counsel given notice thereof on May 13th. On June 11, 1953, counsel for the employer and carrier served notice and grounds of appeal to the Court of Common Pleas and on the same day requested the secretary of the Industrial Commission to certify the record to that Court. The Commission did not do so, however, until June 30th. Two days later counsel for the employer and carrier requested the resident Judge to hear the appeal at his earliest convenience, but his other engagements prevented an immediate hearing. On July 12, 1953, counsel for claimant gave notice of a motion for an order requiring the employer and carrier to pay forthwith the accrued amount of temporary total disability. This motion was heard along with the appeal on July 31st. On August 27, 1953, an order of the Circuit Court was filed reversing the award of the Industrial Commission and holding that claimant had not sustained an accidental injury and, further, that assuming that there was an injury by accident it did not arise out of and in the course of her employment. Having so found, the Judge concluded that it was unnecessary for him to pass upon the motion of claimant.

Section 72-356 allows either party to a dispute before the Industrial Commission to appeal to the Court of Common Pleas within thirty days after receipt of notice of the award, and further provides: “In case of an appeal from the decision of the Commission on questions of law, such appeal shall operate as a supersedeas for thirty days only and thereafter the employer shall be required to make payment of the award involved in the appeal or certification until the questions at issue therein shall have been fully determined in accordance with the provisions of this Title.”

As pointed out in Bannister v. Shepherd, supra, the quoted statutory provision was intended to afford immediate relief to injured employees and to insure speedy disposition of appeals. It was evidently concluded that the party appealing from an award of the Industrial Commission should be able to get same heard in the Court of Common Pleas within thirty days. In McDonald v. Palmetto Theaters, 196 S. C. 38, 11 S. E. (2d) 444, it was held that this provision related solely to an appeal from the Commission to the Court of Common Pleas and had no application to an appeal from that Court to this Court. Neither that case nor Bannister v. Shepherd, supra, decided the question now presented.

In the Bannister case, the Circuit Court on appeal affirmed the award of the Industrial Commission, making the award enforceable by entry of judgment under the terms of Section 72-357 of the 1952 Code, if the employee so desired. .The Insurance Company thereupon gave notice of intention to appeal to the Supreme Court and refused to make the payments provided for in the award. The appeal having not been perfected, several months later the employee obtained a rule to show cause why the Insurance Company should not forthwith pay the accrued benefits. At the time of the hearing by 1he Circuit Judge on the rule to show cause, the award could have been enforced by entry of judgment and execution thereon. It was held that the award at this stage entitled the employee to payment of weekly compensation during the pendency of the appeal to the Supreme Court.

The instant case presents an entirely different situation. Here the Circuit Court reversed the award of the Industrial Commission. Appellant’s award was neither “an award of the Commission unappealed from or an award of the Commission affirmed upon appeal,” Section 72-357, and, therefore, incapable of enforcement by entry of judgment. While this Court has recently held that a formal entry of judgment is not necessary to enforce the terms of an award of the Industrial Commission, McCants v. West Virginia Pulp & Paper Co., 223 S. C. 467, 76 S. E. (2d) 614, it is important to note in that case, as in the Bannister case, the award had attained the status of being capable of enforcement by such means.

Appellant’s rule to show cause was heard along with the appeal on the merits. The award was reversed by the Circuit Court. At no time did there ever exist an award capable of enforcement by judgment and, therefore, not capable of enforcement by the more expedient means perhaps of a rule to show cause. The Circuit Judge, apparently sensing this, soundly determined that it was unnecessary for him to pass upon the rule. To require payment by rule to show cause of benefits accrued under an award of the Industrial Commission reversed by the Circuit Court would result in compelling payment under an award which was forever incapable of enforcement by judgment.

There is this further anomaly under appellant’s view. When the award of the Industrial Commission was-reversed by the Circuit Court, it became of no effect and was no longer in existence. Appellant is now asking for enforcement by rule to show cause of an award of the Industrial Commission which has been declared void. Suppose following the decision on the merits, the Circuit Court had ordered payment of the award? Appellant would have become immediately bound to restore any payment so received, under the well-established principle that a party who has received payment under a judgment subsequently reversed must restore any advantages obtained thereby to his adversary. 3 Am. Jur., Appeal and Error, Sections 1191 and 1242; 5 C. J. S., Appeal and Error, § 1980. The foregoing principles have been applied in a number of decisions holding that where there has been an overpayment of compensation to an employee or a payment made through mistake or misrepresentation, the employee is "bound to restore the money so received. Samels v. Goodyear Tire & Rubber Co., 323 Mich. 251, 35 N. W. (2d) 265; Danford v. Contract Purchase Corp., 333 Mich. 559, 53 N. W. (2d) 377; Robin v. Brandin, La. App., 45 So. (2d) 423; Brophy v. Prudential Insurance Co. of America, 241 App. Div. 306, 271 N. Y. S. 819; Safway Steel Scaffold Co. v. Industrial Accident Commissions, 55 Cal. App. (2d) 388, 130 P. (2d) 484; State ex rel. Trent v. Pritt, 134 W. Va. 516, 59 S. E. (2d) 890. Our own case of Manning v. Gossett Mills, 192 S. C. 262, 6 S. E. (2d) 256, does not call for a different conclusion since the payment there involved was a voluntary one.

There are a few cases holding that since there is no provision in the compensation act authorizing a commission or compensation board to compel the restitution of money erroneously paid under an award, it is without authority to do so. Sassarro v. Wright Aeronautical Corporation, 46 A. (2d) 52, 24 N. J. Misc. 57; Parker v. Industrial Commission of Utah, 66 Utah 256, 241 P. 362; Ayers v. Public Service Co-ordinated Transport, 196 A. 466, 16 N. J. Misc. 60, But the statutory powers of the Industrial Commission are not involved here.

It is neither logical nor just for a Court by rule to show cause to compel one person to pay money to another when the latter is at once obligated to return the money so received.

For the foregoing reasons, appellant, under the facts presented, is not entitled to payment of the award for temporary total disability.

Judgment affirmed.

Sttjkes, J., concurs. Baker, C. J., and Taylor, J., concur in part and dissent in part.