Barr's Next of Kin v. Cherokee, Inc.

Decision Date07 November 1951
Docket NumberNo. 16556,16556
Citation220 S.C. 447,68 S.E.2d 440
PartiesBARR'S NEXT OF KIN et al. v. CHEROKEE, Inc. et al.
CourtSouth Carolina Supreme Court

The Order of Judge Grimball requested to be reported follows:

This case presents the problem as to who is entitled to the benefits under the Workmen's Compensation Law of South Carolina on account of the death of McCoy Barr.

It is admitted that McCoy Barr was employed by the defendant, Cherokee, Inc., on the fifth day of September, 1949, on which date he sustained injuries, arising out of and in the course of his employment, which resulted in his death. It was further admitted that, at that time Cherokee, Inc., was operating under and subject to the South Carolina Workmen's Compensation Act and all of its amendments, with St. Paul Meroury Indemnity Company as its insurance carrier. It was also admitted by the defendants that they are liable in the maximum amount ($6,000) and that they are prepared to pay such benefits to such party or parties as may be determined to be entitled thereto under the act.

There are now two classes of claimants who are seeking the benefits of the act:

1. Margaret Carol Brazell who claims as the illegitimate child of the deceased, McCoy Barr; and

2. Chester Barr, Inez Hutto Barr, James Barr and Roy Barr who respectively claim as the father, mother and brothers of the deceased, McCoy Barr.

The claims of these two classes were heard before a single commissioner of the South Carolina Industrial Commission in December, 1949, and subsequent thereto the Commissioner made an award finding as a matter of fact that Margaret Carol Brazell is the natural child of McCoy Barr and was dependent upon him for support, and, therefore, entitled to the benefits of the act. This award further provided for the payment of funeral expenses and medical, surgical, hospital and doctor's bills.

From the award of the Single Commissioner, appeal was taken to the full Commission by Chester Barr, Inez Hutto Barr, James Barr and Roy Barr. The appeal was based upon their statement, 'that the award of the Commissioner is contrary to the law and evidence.'

On appeal the full commission by a three to two vote reversed the single commissioner, and the benefits were awarded to Chester Barr, father, Inez Hutto Barr, mother, James Barr, brother and Roy Barr, brother. The majority of the commission found that Margaret Carol Brazell was not the illegitimate child of the deceased and not dependent upon him for support.

From that award a very vigorous dissenting opinion was filed by two members of the commission.

In due course an appeal to the Court of Common Pleas for Richland County from the majority award was filed in behalf of Margaret Carol Brazell, and it came on to be heard before me in November, 1950.

All of the evidence in the case at bar was presented at the hearing of the single commissioner--none was presented to the full commission. The evidence was referred to and discussed at length in the single commissioner's award; but none of the evidence is referred to or discussed in the award of the majority of the commission. Not one of the three members of the commission who signed the majority award was present when the hearing was held by the single commissioner, and not one of the witnesses in the case appeared before the full commission.

The record shows the following facts to be undisputed:

Mrs. Brazell, mother of the claimant, Margaret Carol, and her husband, Curtis Ellis Brazell, were separated around Christmas time, 1946, and remained separated about a year, living separate and apart and having no sexual relations during that time; that during this year Mr. Brazell spent some time in various hospitals with tuberculosis; that for a period during the early part of 1947 Mrs. Brazell and the deceased, McCoy Barr, lived together as man and wife in Jacksonville, Florida; that the claimant, Margaret Carol, was born to Mrs. Brazell on November 9, 1947; that Mr. and Mrs. Brazell later became reconciled for a short time, but when they separated, Mr. Brazell left her and at that time he told her that she would have to keep Barr's child (Margaret Carol); that Mr. Barr, the deceased, took this child and Mrs. Brazell to visit his cousins on more than one occasion; that Barr acknowledged Margaret Carol to be his child and named her for his cousin; and that he wanted his cousin to take care of Margaret Carol if anything should happen to him and Mrs. Brazell, because his family objected to his relationship with Mrs. Brazell; that he was living with Mrs. Brazell and Margaret Carol at the time of his death, and that his parents objected to it; that there was a strong physical resemblance between the deceased and Margaret Carol, and a complete dissimilarity of coloring and resemblance between Margaret Carol and Mr. Brazell; that all of the neighborhood knew that the deceased was living with Mrs. Brazell and Margaret Carol at the time of his death, and that he treated Margaret Carol just as any father would have treated his child.

In addition, there is the uncontradicted testimony of Mrs. Brazell that Barr, the deceased, is the father of Margaret Carol; and the testimony of Mr. Brazell that he is not the father of Margaret Carol and that he knew that his wife and Barr were running around, and living together; and the testimony of the deceased's cousin that Barr had brought Mrs. Brazell and Margaret Carol to visit in her home and that Barr acknowledged the paternity of Margaret Carol whom he named for his cousin.

What stronger testimony or evidence could be found?

If, other than the three members of this commission who voted to reverse the opinion and award of the hearing commissioner, there are any persons who did not know that Mrs. Brazell and Mr. Barr were living together as man and wife, and that he was the father of Margaret Carol, such persons are not disclosed in the record. The witnesses who took the stand knew it--none denied it.

From time immemorial, the Courts of this State have said that it is the duty of a reviewing body, in examining a record, to carefully review the entire record and to give due weight to the fact that the original factfinder 'saw the witnesses, heard the testimony delivered from the stand, and had the benefit of that personal observation of and contact with parties and witnesses which may be of peculiar value in arriving at a correct result'. Baylor et al. v. Bath et al., 189 S.C. 269, 1 S.E.2d 139, 143.

Even a casual examination in the case at bar shows that the hearing commissioner had the benefit of seeing, hearing and observing the demeanor of the mother of the child involved herein, the husband of the mother, the child itself, photographs of the deceased, the coloring of the husband of the child's mother, the parents of the deceased, the brother of the deceased, the cousin of the deceased, the exhibits in the case, neighbors and friends of the deceased, and the grandparents of the infant claimant. The benefit of all of this very important experience, information, observation and contact was not before the full commission when this case was heard by it.

The majority of the full commission completely and arbitrarily disregarded the evidence as well as those particular things which were of peculiar value to the hearing commissioner when he decided the case as he did. While that is a bold statement, it is nevertheless true because the record shows that there is absolutely no evidence rebutting the direct, positive, unequivocal and corroborated evidence that the deceased was the father of the infant Carol.

The General Assembly of South Carolina, in its wisdom, saw fit to provide in the Workmen's Compensation Act, compensation for an 'illegitimate child.' Sec. 7035-2(l) and 7035-42 of the Code of Laws of South Carolina, 1942. And, it is up to the commission and the Courts to see that the intent of the legislature is carried out.

North Carolina, too, has such an Act, and it is identical with South Carolina's. In a Workmen's Compensation case, Lippard et al. v. Southeastern Express Co., 207 N.C. 507, 177 S.E. 801, 802, the Supreme Court of North Carolina points out very clearly that, with regard to illegitimate children, the philosophy of the common law which denied such children any rights, legal or social, as against their father, has been discarded. The words of the Court are as follows:

'The dependency which the statute recognizes as the basis of the right of the child to compensation grows out of the relationship, which in itself imposes upon the father the duty to support the child, and confers upon the child the right to support by its father. The status of the child, social or legal, is immaterial.

'The philosophy of the common law which denied an illegitimate child any rights, legal or social, as against its father, and imposed no duty upon the father with respect to the child, is discarded by the statute.'

If the legislature wants illegitimate children taken care of then it is incumbent upon us to do so regardless of what our personal wishes, thoughts or desires in the matter may be. But--how can the intent of the legislature be carried out if a majority of the Commission and this Court turn their backs on the convincing testimony of the three persons (the mother, the father and the mother's husband) who, above all else, know the true facts.

Who, better than the mother, knows who is responsible for her pregnancy? Who, better than Mr. Brazell, knows that he is not responsible for Mrs. Brazell's pregnancy with Carol? Who, better than the deceased (Barr), knew that he was responsible for Carol's birth? And--he acknowledged it.

In the case of Morgan v. Susino Construction Co., 130 N.J.L. 418, 33 A.2d 607, 609, affirmed 131 N.J.L. 329, 36 A.2d 604, a case similar to the case at bar, in that it involves an illegitimate child claiming compensation on account of the death of his father, although the deceased was not...

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  • Kowalski v. Wojtkowski, A
    • United States
    • New Jersey Supreme Court
    • June 27, 1955
    ...293, 141 P.2d 832 (Sup.Ct.1943); Commonwealth v. Boyer, 168 Pa.Super. 16, 76 A.2d 230 (Super.Ct.1950); Barr's Next of Kin v. Cherokee, Inc., 220 S.C 447, 68 S.E.2d 440 (Sup.Ct.1951); Smith v. Smith, 71 S.D. 305, 24 N.W.2d 8 (Sup.Ct.1946); Jackson v. Thornton, 133 Tenn. 36, 179 S.W. 384 (Sup......
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    ...known to law." Hudson v. Blanton, 282 S.C. 70, 75, 316 S.E.2d 432, 434 (Ct.App.1984) citing Barr's Next of Kin v. Cherokee, Inc., 220 S.C. 447, 68 S.E.2d 440 (1951). "Every child born in wedlock is presumed to be legitimate." Id. (citing Tarleton v. Thompson, 125 S.C. 182, 118 S.E. 421 (192......
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    ...testimony as to non-access is offered. See Ray v. Ray, supra; Farley v. Farley, 136 W.Va. 598, 68 S.E.2d 353; Barr's Next of Kin v. Cherokee, Inc., 220 S.C. 447, 68 S.E.2d 440. Under modern authorities the prohibition against the mother and her husband testifying is limited merely to testim......
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  • Chapter Eight Paternity
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    • Marital Litigation in South Carolina (SCBar)
    • Invalid date
    ...to each other during the time of conception was only admissible if offered by third parties. Barr's Next of Kin v. Cherokee, Inc., 220 S.C. 447, 68 S.E.2d 440 (1951) (overturning for insufficiency of evidence the ruling of the trial court that a decedent's illegitimate daughter was entitled......

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