Greer v. Greenville County

• Decision Date: 11 March 1965
• Docket Number: No. 18322,18322
• Citation: 141 S.E.2d 91,245 S.C. 442
• Court: South Carolina Supreme Court
• Parties: Janet Underwood GREER and Linda Gail Greer, Respondents and Cross-Appellants, v. GREENVILLE COUNTY and State Workmen's Compensation Fund, Appellants.

Page 91

141 S.E.2d 91

245 S.C. 442

Janet Underwood GREER and Linda Gail Greer, Respondents and Cross-Appellants, v. GREENVILLE COUNTY and State Workmen's Compensation Fund, Appellants.

No. 18322.

Supreme Court of South Carolina.

March 11, 1965.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. David Aiken, Columbia, Robert S. Galloway, Jr., Greenville, for appellants.

Leatherwood, Walker, Todd & Mann, Greenville, for respondents and cross-appellants.

MOSS, Justice.

This case arose under the South Carolina Workmen's Compensation Act, Section 72-1 et seq., Code of 1962. It involves a claim for compensation arising out of the death of A. J. Greer, Jr., who left surviving him his widow, Janet Underwood Greer, and a minor daughter, Linda Gail Greer, hereinafter referred to as the respondents. They allege that A. J. Greer, Jr. was a Deputy Sheriff of Greenville County and that he died of a coronary thrombosis on July 23, 1960. They assert that such was an accident arising out of and in the course of his employment as aforesaid and that his death was caused by unusual strain and overexertion in the performance of the duties of his employment and, therefore, was a compensable accident. Greenville County and State Workmen's Compensation Fund, the appellants herein, denied that the death of A. J. Greer, Jr. arose out of and in the course of his employment.

A hearing was held before a Single Commissioner on September 22, 1960. Thereafter, on November 16, 1960, the commissioner found that 'beginning on Wednesday night, July 20, 1960, the deceased did undergo excessive unusual stress and strain over and above his sedentary duties heretofore required of him, which precipitated a coronary thrombosis, causing his death on July 23, 1960.' Based upon this finding of fact compensation was awarded.

The appellants prosecuted an appeal to the Full Commission and by appropriate exceptions challenged the correctness of the findings of fact made by the Single Commissioner. They asserted that the only reasonable inference to be drawn from the evidence was that A. J. Greer, Jr. did not sustain an injury by accident arising out of and in the course of his employment, there being no competent evidence to support the conclusion that the deceased died from a heart attack induced by overexertion in the performance of his duties as a deputy sheriff. This appeal was heard on January 31, 1961 and, thereafter, a majority of the Full Commission did, on March 6, 1961, file its opinion reversing the Single Commissioner. We quote from such opinion, the following:

'The majority of the Commission is of the opinion that the hearing Commissioner was in error in awarding compensation to the dependents of the deceased employee. The testimony as presented by the claimants shows that the claim was based on alleged overexertion suffered by the deceased employee as a result of a stake-out that began at 11:00 p. m., on Wednesday night, July 20, and continuing until 4:00 a. m., on July 21, 1960. The testimony further revealed that the deceased employee served on this usual and accustomed duties on the following Thursday, Friday, and Saturday, and was discovered dead in his automobile Saturday night, the 23rd, at approximately 8:00 p. m. Two qualified doctors testified in this case, both of whom had treated the deceased employee for his heart condition prior to his death. They expressed opposite opinions as to the causal connection of the incident and the employee's death. The Commission accepts the well reasoned opinion of the physician in whose medical judgment there was no connection between the over-exertion and the death of the employee, A. J. Greer. Moreover, it is the considered opinion of the Commission that this long gap of time between the stake-out and the time that the employee was found dead on Saturday night, does not indicate any relationship between this incident and the employee's death.'

The respondents, after the decision heretofore referred to, filed with the Industrial Commission a petition for re-argument on the ground that the Commission overlooked and misapprehended certain portions of the testimony upon which the aforesaid decision was predicated. Specially, they assert that the Commission accepted the opinion of Dr. Everett B. Poole which was given in response to a hypothetical question. It is the position of the respondents that such expert testimony had no probative value because the hypothetical question propounded to Dr. Poole assumed facts which were not present in the record and omitted facts which were present. Additionally, the respondents took the position that the record shows that no guardian ad litem was appointed for the minor respondent, Linda Gail Greer, and hence the proceedings were null and void and of no effect. Application was also made to the Commission to take additional testimony which was in the nature of after and newly discovered evidence. The foregoing petition for reargument, and the application for permission to take additional testimony and to grant a new hearing after the appointment of a guardian ad litem on behalf of the minor respondent were denied by the Commission. The date of the foregoing applications was April 3, 1961.

The respondents here appealed to the Circuit Court from all of the orders of the Industrial Commission. The exceptions charge (1) That the Commission committed error in failing to remand this case to the Single Commissioner with directions that a guardian ad litem be appointed for the minor claimant, Linda Gail Greer, for the reason that it was apparent upon the face of the record that the said claimant was a minor and that no guardian ad litem had been appointed for her and the proceedings were accordingly null and void for the want of such appointment. (2) That it was error for the Commission to deny the application of the respondents for re-argument and for the taking of additional testimony. (3) That the Commission committed error in considering the testimony of Dr. Everett B. Poole in that his testimony had no probative value because the hypothetical question propounded to him assumed facts which were not present in the record and omitted facts which were present. (4) That the Commission was in error in reversing the opinion and award of the Hearing Commissioner which had directed the payment of compensation to the respondents.

The appeal of the respondents was heard by the Honorable James B. Pruitt, Presiding Judge of the Thirteenth Circuit, who, on November 4, 1961, issued his order reversing the orders of the Industrial Commission and remanding the case to the Hearing Commissioner for a further hearing. In his order he stated the following:

'After a thorough study of this record I am of the opinion that the hypothetical questions propounded to the witness, Dr. Poole, do not contain a proper hypothesis in that the witness was asked to assume facts which were not present in the record and further material facts which were present in the record were omitted from the hypothetical questions. It would, therefore, be this Court's opinion that Dr. Poole's testimony had no probative value and that the Majority Commission committed error in reversing the Hearing Commissioner's award in favor of the claimant.

'However, under all of the circumstances I feel that the case should be sent back to the original Hearing Commissioner with the instructions that a Guardian ad Litem be appointed on behalf of the minor claimant and with the further instructions that the parties be permitted to present such additional testimony as they deem advisable. As set forth above the claimants presented an application to the Industrial Commission to take additional testimony supporting said application by affidavits from Dr. Poole, and two lay witnesses. The Commission declined this application but in the opinion of this Court said application with supporting affidavits meets all of the requirements of the applicable rules and that accordingly said application should have been granted.'

All parties to this action have appealed to this Court from the order of the Circuit Court. We will first consider the exceptions of the appellants.

The first question for decision is whether the Circuit Court erred in remanding this case to the Hearing Commissioner with instructions that a guardian ad litem be appointed on behalf of the minor daughter of the deceased. Section 10-231 of the Code provides that when an infant is a party to a proceeding he must appear by a guardian ad litem and this includes a proceeding before the Industrial Commission. Section 10-233 of the Code provides that when an infant is plaintiff the guardian ad litem shall be appointed upon the application of such infant if he be of the age of fourteen years. We have held that the failure to appoint a guardian ad litem for an infant makes a judgment voidable and not void and such judgment will not be avoided unless it appears that substantial injustice has been done to the minor. While the Court will always be careful of the rights of an infant it will not in all cases set aside irregular judgments against such infant as of course. Robertson v. Blair & Co., 56 S.Ct. 96, 34 S.E. 11; Barfield v. Barnes, 108 S.C. 1, 93 S.E. 425.

A claimant who has attained the age of eighteen years is sui juris for the purpose of filing and prosecuting a claim for compensation pursuant to the provisions of the Workmen's Compensation Law. Section 72-183 of the Code. Brown v. Plowden Co., 216 S.C. 114, 57 S.E.2d 29. Here, the record shows that Linda Gail Greer was born December 4, 1942, and reached her eighteenth birthday on December 4, 1960. The hearing of this case before the Single Commissioner was held on September 22, 1960, and his award was made on November 16, 1960. The hearing before the Full Industrial Commission was held on January 31, 1961, and its decision was rendered on March 6, 1961. It thus appears that the minor had attained her...