Frier v. South Carolina Penitentiary

Stukes, Justice. Appellant was employed by the South Carolina Penitentiary as a guard on June 22, 1947, and discharged August 31 following. Thereafter he filed for workmen’s compensation claiming total disability by reason of a heart attack on August 17 when he was climbing the steps to his wall guardpost and carrying arms and ammunition. Upon denial of liability by the employer there was a hearing before a single member of the Industrial Commission on November 24, 1947, and claimant was represented by his counsel. Also appearing was the Director of the State Workmen’s Compensation Fund, described in the record as “attorney for defendants.” *87 Claimant’s counsel offered in evidence the report of an examining physician, dated September 25, 1947, and explained that the doctor was sick and at a later time, if the commissioner or opposing counsel desired, could appear for examination. The commissioner ruled as follows: “At this time I can’t accept that, unless the attorney general, through Mr. DePass, agrees for it to be done. I will leave it to them and see if they agree. Otherwise I will give you an opportunity to have him here.” Toward the conclusion of the testimony of claimant and the others produced as witnesses the hearing commissioner again said, as follows: “I will not admit the medical statement of Dr. Dove until the attorney general approves or disapproves it, and if he disapproves it you will have opportunity to examine him.” All of the evidence and the rejected report of Dr. Dove, which latter was favorable to claimant, appear in full in the record before us but there is no need to further refer to it. Award was made by the hearing commissioner under date of December 3, 1947, in which he referred to the medical report which he had expressly excluded from the evidence, quoted from it and manifestly relied upon it for his conclusion that claimant suffered an accidental injury which resulted in total and permanent disability, and compensation was decreed. In due time defendants applied for review by the full commission (Sec. 7035-62, Code of 1942, and Rule 18 of the commission) upon exceptions or grounds which included the following: “3. That it appears that the facts in the case were not fully developed on behalf of the State, and the commission is requested to reopen the case for the taking of further testimony before the whole commission on the pertinent questions involved.” *88 In addition the attorney general submitted a written statement to the commission to which was attached letter from claimant to the Governor dated September 8, 1947. From the statement the following is quoted: “The record does not disclose that the attorney general ever approved the report of Doctor Dove, and it necessarily follows that the condition as imposed by the Hearing Commissioner was not met and the report of Doctor Dove is, therefore, not within the record. The attorney general does not admit the report of Doctor Dove in the absence of an opportunity to cross examine the physician and the opportunity to offer additional medical testimony by other physicians who are familiar with the condition of the claimant now and prior to his employment by the South Carolina Penitentiary.” This communication from the attorney general to the commission was received on the day before the review hearing on February 12, 1948, and it does not appear that any question was made by claimant that it was too late for consideration. At any rate it was considered and discussed at length in the “Opinion and Award” of the commission. The award of the hearing commissioner was affirmed. The defendants appealed to the circuit court upon several exceptions which include the point that the commission erred in considering the report of the physician which had been excluded from the evidence and appellant given no opportunity to examine the doctor. The exceptions were sustained by the circuit court which held that the employer had been deprived of its right to examine the physician and the latter's report was not a proper part of the record and the commission erred in basing its award upon it. The judgment was that the conclusions of fact and law and the award of the commission be reversed and the claim remanded to the commission for trial de novo. The brief of appellant begins with the statement that the real question presented is, quoting, “Can a litigant, on ap *89 peal to the Circuit Court and the Supreme Court, ask and obtain a reversal of the findings and award of the South Carolina Industrial Commission based on objections or exceptions which were not made oninterposed before the Hearing Commissioner ?” The order of the circuit court indicates, respondents say in their brief and appellant does not deny in his and it was likewise uncontroverted in oral argument, that appellant’s above stated position was not presented to the court upon argument of the appeal from the Industrial Commission. Under numerous authorities is it therefore not available to him on this appeal. See the multitude of cases collected in 2 S. E. Dig., Appeal and Error, Par. 169, 758 et seq. The rule was applied in the compensation case of Hamilton v. Little, 197 S. C. 434, 15 S. E. (2d) 662, 663, where it was said: “The second issue, which questions the sufficiency of respondents’ exception upon appeal to the Court of Common Pleas was not raised in the appeal before the Circuit Court, and therefore not passed upon, and is not properly before us.” For the foregoing reason it is unnecessary to review appellant’s other attacks upon the order of the circuit court. It has been carefully considered in the light of the briefs and we are satisfied that it correctly disposed of all questions with which it dealt. A recent case of considerable similarity is American Mut. Liability Ins. Co. v. Williams, 1947, 75 Ga. App. 129, 42 S. E. (2d) 578, where award of compensation was reversed for failure of the commission to provide opportunity for cross examination of a medical examiner. In view of the necessity of new trial de novo we have limited our reference to the facts disclosed by the record and we intimate no opinion upon them. Controversy arose in reference to the contents of the transcript of record for appeal to this court. It was settled by order from which claimant appealed. Amendments proposed by the respondents to the “State- *90 merit” were allowed which, upon consideration, we find to have been proper. Also allowed were proposed amendments which required the printing in full in the transcript of the communication of the attorney general to the commission and the accompanying letter of claimant to the Governor. The printing in full of these documents was unnecessary to proper presentation to this Court, hence claimant’s appeal from this feature of the order settling the case is sustained and the disbursement for printing will be taxed pro rata accordingly. Affirmed on the merits; reversed in part as to order settling case for appeal. Baker, C. J., and Fishburne and Oxner, JJ., concur. Taylor, J., dissents.