Sims v. S. C. State Commission of Forestry

109 S.E.2d 701, 235 S.C. 1, 1959 S.C. LEXIS 2

• Court: Supreme Court of South Carolina
• Decided: July 14, 1959
• Docket: 17554
• Status: Published

Opinions

Stukes, Chief Justice.

I respectfully dissent from the opinion of Mr. Justice Taylor because I think this court is very definitely committed to the unusual exertion or strain rule in heart cases arising under the workmen’s compensation law by Price v. B. F. Shaw Co., 224 S. C. 89, 77 S. E. (2d) 491, 494, and other decisions. I unsuccessfully dissented in the cited case, but I think that consistency and stare decisis require the court to follow it. I can see no ground of distinction between the cases. There it was said that the employee at the time of his fatal heart attack, quoting from the opinion, “was engaged in his usual work and was not subjected to any unusual strain.” Here climbing up and down the tower steps was not unusual in decedent’s work; it was usual and the very thing he had been doing for sixteen years and until he became ill. How can it be said that it was an unusual exertion or strain ?

It was said by the unanimous court in Colvin v. E. I. du Pont de Nemours Co., 227 S. C. 465, 88 S. E. (2d) 581, 583, of the Price case that it, quoting, “held that in heart cases, to be compensable, the attack must have been induced by unusual strain or exertion at work; moreover, there was proof that the workman had long suffered from heart disease.” The latter is the case here.

The Price case was cited with apparent approval, certainly not disapproval, in Ricker v. Village Management Corp., 231 S. C. 47, 97 S. E. (2d) 83, 87, although unusual exertion and strain were found to exist and award was affirmed. There was no known prior heart disease in that case as there was in the Price case and as in the instant case. It was said in the Ricker case, quoting from the opinion: “Under the unusual exertion or strain rule to which this Court has consistently adhered, there is evidence to sustain” the award.

The opinion of Mr. Justice Taylor concludes that climbing the tower was not normally unusual but became an act of unusual exertion and strain in the case of decedent because of his then physical condition. That is exactly what was advocated in the dissent in the Price case, supra [224 S. C. 89, 77 S. E. (2d) 496], in these words: “It was over-exertion (the carrying of heavy ‘skids’) for the employee in his weakened heart condition although it was part of his usual duties”; but it was rejected by the court.

I think the Price case is the settled law of heart cases in this jurisdiction and that the authority of it should be followed unless and until it is expressly overruled. That would require that this case be reversed, which I would do.

The majority of the Justices having concurred in this opinion, it is the judgment of this Court and the judgment of the lower Court is

Reversed.

Oxner, Legge and Moss, JJ., concur.