# Cooper v. McDevitt & Street Co.

> Supreme Court of South Carolina · May 14, 1973 · 260 S.C. 463

URL: https://www.frixlaw.com/law-library/cases/9847405

## Case

- **Full name:** Jimmy COOPER, Appellant, v. McDEVITT & STREET COMPANY, and the Travelers Insurance Company, Respondents
- **Court:** Supreme Court of South Carolina
- **Decided:** May 14, 1973
- **Citations:** 260 S.C. 463; 196 S.E.2d 833; 1973 S.C. LEXIS 382
- **Precedential status:** Published
- **Opinion:** Dissent by Bussey
- **Judges:** Moss, Lewis, Littlejohn, Bussey, Brailsford
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9847405

## How later opinions describe it (automated extraction)

- explaining the commission was asked to determine if the claimant was an employee and that "before the provisions of the Workmen's Compensation Act can become applicable, the relation of master and servant, or employer and employee must exist"

## Opinion text

Bussey, Justice
(dissenting) :
*471 Being of the view that the lower court was in error and that the award of the full Commission should have been affirmed, I most respectfully dissent.
As I understand the majority opinion, it holds, in accordance with the clear weight of persuasive authority, that the claimant at the time of his injury was an employee, any misrepresentation or fraud on his part rendering the contract for his services not void but merely voidable.
The opinion then states the “general rule” as being that a false statement in an employment application will bar Workmen’s Compensation benefits if three named factors are present. Professor Larson, who is cited as the authority for the said “general rule”, states such not as a general rule but as a rule which “seems to be emerging”, citing the same cases as are cited in the majority opinion. Independent research on the part of the writer has unearthed no other cases which would lend any support to the said “general rule” and an examination of these fails to convince me that we would be warranted in adopting such as sound and harmonious with our Workmen’s Compensation Act.
The first cited case is that of Martin Co. v. Carpenter, 132 So. (2d) 400 (Fla.). The rule was there stated, in the course of rather lengthy and unnecessary dicta, the court concluding that the rule was sound, basing such conclusion in part on a second injury fund provision in the Florida statute and in part upon the 1929 decision of the United States Supreme Court in the F. E. L. A. case of Minneapolis, St. P. & S. S. M. Ry. Co. v. Rock, 279 U. S. 410 , 49 S. Ct. 363 , 73 L. Ed. 766 . In the Rock case the right to recover under the terms of the F. E. L. A. was denied because employment had been obtained by a whole series of fradulent misrepresentations, including having an imposter take the physical examination for the applicant. In the case of Still v. Norfolk & Western R. Co., 368 U. S. 35 , 82 S. Ct. 148 , 7 L. Ed. (2d) 103, the United States Supreme Court reviewed the Rock decision at length and *472 expressly limited the effect of its holding to the precise facts of that very extreme case. The decision here that the contract of employment was only voidable and not void is in accord with Still and not in accord with Rock . The second injury fund provision of the Florida statute, relied on by the court in Martin in support of the soundness of the stated rule, has no counterpart in our Workmen’s Compensation Act.
In the case of City of Miami v. Ford, 252 So. (2d) 228 (Fla.), the court, by a four to three vote, and without any re-examination of the soundness thereof, actually applied the rule stated by way of dictum in Martin. The Delaware case of Air Mod Corp. v. Newton, 215 A. (2d) 434, also rests in substantial part upon the Rock decision of the United States Supreme Court and in substantial part upon the second injury fund provision of its Workmen’s Compensation statute quite similar to, if not identical with, that of the Florida statute and which again has no counterpart in our Act.
The last cited case of Volunteers of America of Madison v. Ind. Commission, 30 Wis. (2d) 607, 141 N. W. (2d) 890 , rests upon a special epilepsy provision of the Wisconsin statute, which again has no counterpart in the South Carolina Act. When the statutory differences are considered, I do not regard any of the cited cases as being really in point or at all persuasive that we should adopt and apply the rule which Professor Larson describes as a seemingly emerging one.
There are numerous cases which could be cited and discussed wherein Workmen’s Compensation and F. E. L. A. benefits have been allowed despite various and sundry misrepresentations in applications for employment. There are, however, two cases that I regard as being both factually and legally in point with the case at bar, to-wit: H. J. Jefferies Truck Line v. Grisham (Okl.), 397 P. (2d) 637 , and General Motors Corp. v. Hargis, 114 Ga. App. 143, 150 S. E. (2d) 303 .
*473 In the Jefferies case the Oklahoma court expressly declined to follow the rationale of either the Rock case or the Martin case in Florida, pointing out that the Workmen’s Compensation Act of Oklahoma was silent as to the effect, if any, of the false representation there allegedly involved with respect to prior health of the employee. There was a dissenting opinion in this case but the dissent in substantial part was predicated upon the view of the writer that a particular section of the Compensation Act precluded recovery by the claimant.
In General Motors v. Hargis, the Georgia court expressly declined to follow the rationale of the Martin Company case or the Delaware case of Air Mod Corp. v. Newton, and pointed out that the Georgia statute had a provision expressly relating to the effect of false pre-employment statements concerning previous occupational disease, but that the Act was otherwise silent as to any effect of a claimant’s false representation as to his physical condition when applying for employment. The Court relied, inter alia, on the doctrine of inclusio unius est exclusio alterius and said:
“This problem is a legislative one and in the absence of a clear legislative intent, we do not feel at liberty to impose any limitations or exceptions upon the employee’s statutory right to recover compensation.”
Like the Georgia Act, our Act has a provision as to the effect of misrepresentation with respect to occupational disease when applying for employment. Code Sec. 72-257. We also have a statutory provision barring benefits when the injury or death was occasioned by the intoxication or willful intention on the part of the employee. Code Sec. 72-156. Code Sec. 72-155 also limits compensation in the event of certain willful conduct on the part of the employee. Nowhere in the Act, however, is there any provision which attempts to limit or bar compensation benefits by reason of misrepresentation on the part of the employee with respect to prior injury or physical disability other than occupational disease.
*474 It is elementary that our Act has to be liberally construed in favor of employees and to the end of including employees within coverage rather than excluding them. Contrary to this elementary principle, were we to adopt the rule enunciated in the majority opinion, formulated by other courts upon statutory provisions not present in our statute, we would, in effect, write into our Workmen’s Compensation Act a provision which would deny an employee benefits under certain circumstances when the legislature has not seen fit to do so.
Even, however, if the rule applied by the majority be sound, on the rather meager record before us I seriously doubt its applicability under the facts of the present case. Although the Columbia application is dated January 5, the date the claimant commenced to work, his testimony is to the effect that such was executed a week or ten days after his employment, and that he made the false statement to retain the employment which he had already secured. The record shows that the application was taken by the superintendent, Mr. George Sterns, who did not testify. It is thus strongly inferable that the false representation was not a substantial factor in the initial hiring in Columbia. Moreover, according to the weight of the evidence, he had been employed by the same employer on a different job site four months before with full knowledge of his prior back injury.
The conclusion of the lower court and the majority opinion to the effect that the knowledge of the employer’s agents as to the physical condition of the claimant was not imputable to the employer is, to say the least, open to quite serious question. The record does not disclose precisely the capacity of Mr. Hallman, the employer’s agent, in Charleston, but the evidence does disclose that in Charleston Mr. Hallman both hired and fired the claimant and knew at the time of hiring the claimant’s past history. The claimant’s immediate superior, both in Charleston and Columbia, was Mr. Musselwhite who admittedly knew of the claimant’s past history.
*475 Following the Christmas holidays, claimant was replaced in Charleston when unable to return promptly to work because of an automobile breakdown. When he did get in, Mr. Hallman told him he had been replaced and suggested that he go to Mr. Musselwhite who had already gone to Columbia to work on the stadium job. While Musselwhite did not have the ultimate authority to hire and fire, it is obvious that he was connected with the employment of the claimant because the record discloses that the claimant was employed in Columbia on the recommendation of Mussel-white and went to work for Musselwhite who knew of his history and qualifications and was in need of him. It is clearly inferable that but for Musselwhite and his recommendation, claimant would not have been employed. Under these circumstances, I do not think we are warranted in holding, as a matter of law, that the knowledge of Hallman and Musselwhite was not imputable to the employer.
Brailsford, J., concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9847405. Public record. Not legal advice.