McDonald v. Palmetto Theaters

• Decision Date: 13 November 1940
• Docket Number: 15163.
• Parties: McDONALD et al. v. PALMETTO THEATERS et al. (two cases).
• Court: South Carolina Supreme Court

11 S.E.2d 444

196 S.C. 38

McDONALD et al. v. PALMETTO THEATERS et al. (two cases).

No. 15163.

Supreme Court of South Carolina

November 13, 1940

perfected proper bond and were entitled to a stay, were entitled to an injunction on rule to show cause where all parties concerned were accorded full opportunity to present and argue their respective contentions. Act July 17, 1935, 39 St. at Large, p. 1231; Code 1942, §§ 26, 782, 789.

Wise & Whaley, of Columbia, for petitioners.

Harold C. Seigler, of Columbia, and T. K. McDonald, of Winnsboro for respondents.

L. D LIDE, Acting Associate Justice.

On June 28, 1937, A. H. McDonald sustained an injury which it was alleged arose out of and in the course of his work for his employer, Palmetto Theaters, in the City of Columbia, and by reason thereof he received certain payments under the Workmen's Compensation Act, Act July 17, 1935, 39 St. at Large, p. 1231. He died on May 5, 1938, and it is contended by his heirs at law that his death resulted proximately from the injury sustained by him, and that hence they are entitled to receive the death benefits provided by Section 38 of the compensation act; while this is denied by his employer and its insurance carrier. A hearing was held on this dispute by Coleman C. Martin, Esq., a member of the South Carolina Industrial Commission, and in due course he filed his opinion and award dated August 11, 1939, wherein it was ordered that compensation be paid to the claimants above named in the sum of $18 per week, or $6 per week each, for a total of 350 weeks from May 5, 1938, less credit for certain previous payments. Thereafter and within due time an application for review was made to the Commission and such review was had resulting in an opinion by the full Commission to the effect that the award made by Commissioner Martin should be, and it was, reversed and the death claim denied. Subsequently an appeal was taken to the Court of Common Pleas for Richland County and in due course came on to be heard before Honorable G. Duncan Bellinger, Judge of the Fifth Circuit, who handed down his order dated June 18, 1940, to the effect that the full Commission erred in setting aside the award of Commissioner Martin, for the reason that in his opinion the exceptions to the hearing Commissioner's findings were too general and indefinite under the law as laid down in the case of Ham v. Mullins Lumber Company, 193 S.C. 66 7 S.E.2d 712. Hence Judge Bellinger concluded that the full Commission was without authority to reverse the findings of the hearing Commissioner or to set aside his award, and the opinion of the full Commission was reversed and the award of the hearing Commissioner reinstated. The employer and its insurance carrier appealed from this order of Judge Bellinger to this Court, and the appeal has been perfected and docketed, but has not yet been reached for a hearing.

Pursuant to this order of Judge Bellinger judgment was entered in the Court of Common Pleas for Richland County in favor of the claimants against the employer, Palmetto Theaters, and the insurance carrier, Employers Group. The judgment was signed and entered by the Clerk of Court August 22, 1940, and the amount specified as being then due was $2,142.

Thereafter, to wit, on August 31, 1940, a bond was duly entered into by the employer and its carrier with American Employers' Insurance Company, as surety, in the penal sum of $9,400.54, reciting that it was given because the employer and its carrier desired a stay of execution on the judgment aforesaid pending the hearing and determination of their appeal to the Supreme Court, agreeably to the provisions of Sections 782 and 789, Code 1932, and the condition of the bond is that they will pay or cause to be paid to claimants the full and just sum of the judgment aforesaid, with legal interest thereon, and any and all costs and damages which may be sustained by reason of the appeal, etc., the bond being in due and legal form, and no question being made as to the sufficiency of the surety.

However, it appears that upon motion of the claimants a rule to show cause was issued by Hon. A. L. Gaston, resident judge of the Sixth Circuit, during the absence of Judge Bellinger, but made returnable before him. This rule required the employer and its carrier to show cause why they should not be required to pay over to claimants the sums then due them under the award of the hearing Commissioner reinstated by the Court of Common Pleas, in accordance with the terms and conditions of the Workmen's Compensation Act. A return was duly made to this rule, and upon the hearing thereof on August 27, 1940, the same was taken under advisement by Judge Bellinger. Some time after the argument before him he was informed that the appeal from the order reinstating the award of the hearing Commissioner had been docketed in the Supreme Court on September 11, 1940, but notwithstanding this he handed down his order dated September 30, 1940, holding that under the authority of the case of Bannister v. Shepherd, 191 S.C. 165, 4 S. E.2d 7, 10, construing Section 60 of the compensation act, an appeal would act as a supersedeas for a period of thirty days only, and he therefore ordered the employer and its carrier to pay to the claimants the amount of the award, to wit, $18.00 per week from the 11th day of August, 1939, "until the final determination of the issues raised by the appeal [to the Supreme Court] ".

Notice of intention to appeal to this Court from the order of Judge Bellinger just mentioned, dated September 30, 1940, was duly given; but a verified petition was submitted to Mr. Justice Stukes, upon consideration of which he issued a rule to show cause under date of October 1, 1940, requiring the claimants to show cause before this Court at the October term, 1940, why they should not be enjoined from proceeding further against the petitioners, Palmetto Theaters and Employers Group, to require them to pay to the claimants Workmen's Compensation benefits pending the final determination of the appeal by the South Carolina Supreme Court from the judgment awarding compensation; and that in the meantime they be so restrained; and the rule is now before this Court upon the petition and the return thereto made by the claimants.

Since the order of Judge Bellinger requiring the immediate payment of compensation, notwithstanding the appeal from the judgment of the Court providing for the same had been perfected and docketed in this Court, is expressly based upon the authority of the Bannister case, supra, it would perhaps be well first to consider the facts and holdings of that case; and in this connection it will be observed that the order of the Circuit Judge in the Bannister case was approved by this Court (and it so happens that this order was also by Judge Bellinger), the opinion being delivered by Mr. Justice Fishburne, in which it is stated in effect that the order of Judge Grimball on the merits of the claim and the order of Judge Bellinger in reference to the payment of compensation pending appeal correctly decided the case, and that the Supreme Court was satisfied with the disposition made of the issues involved by the Circuit Court. In that case the claimant was injured on September 2, 1937, and on July 7, 1938, the full Commission made an award of compensation to him. An appeal was taken to the Court of Common Pleas from this award and by order of that Court the award was affirmed on February 1, 1939. Notice of appeal from the order of the Court of Common Pleas to this Court was given, but the appeal had not been perfected, nor had the record therein been filed with the Supreme Court, when the case came before Judge Bellinger on a rule to show cause issued by Judge Stoll, dated April 4, 1939, pursuant to which Judge Bellinger held that under the express terms of Section 60 of the Workmen's Compensation Act an appeal to the Court of Common Pleas from an award by the Commission operates as a supersedeas for thirty days only, and hence he directed the insurance carrier to pay to the claimant the amount of the award involved in the appeal until the issues "shall have been fully determined in accordance with the provisions of this Act". And there can be no doubt whatever, under the plain and explicit language of Section 60, that the claimant was entitled after the lapse of thirty days to have the award paid which had been made to him on July 7, 1938, of a weekly sum extending back to September 2, 1937, notwithstanding the appeal to the Court of Common Pleas. And after the appeal from the judgment of that Court to the Supreme Court there could also have been no stay, unless it had been granted by the presiding Judge, or unless a bond had been given pursuant to the provisions of Section 782, Code 1932; and no such stay was granted by the presiding Judge, nor was there any bond given, so far as the record shows. Hence the correctness of the decision in the Bannister case, upon its facts and circumstances, cannot be questioned. And indeed in the case at bar the petitioners make no attack thereon, but on the contrary point out some of the distinctions between that case and the case now before us.

The issues involved here must then be determined by a consideration of the terms and conditions of the Workmen's Compensation Act itself. Section 58 thereof provides that the Commission, or any of its members, shall hear the parties at issue and determine the dispute, and that the award so made, if any, with a...