Aetna Cas. & Sur. Co. v. Watson

• Decision Date: 17 March 1955
• Docket Number: 35570,No. 2,Nos. 35569,s. 35569,2
• Citation: 91 Ga.App. 657,86 S.E.2d 656
• Court: Georgia Court of Appeals
• Parties: AETNA CASUALTY & SURETY COMPANY et al. v. Carol S. WATSON. AETNA CASUALTY & SURETY COMPANY et al. v. D. E. VICKERS

Page 656

86 S.E.2d 656

91 Ga.App. 657

AETNA CASUALTY & SURETY COMPANY et al. v. Carol S. WATSON.

AETNA CASUALTY & SURETY COMPANY et al. v. D. E. VICKERS.

Nos. 35569, 35570.

Court of Appeals of Georgia, Division No. 2.

March 17, 1955.

Marshall, Greene & Neely, Atlanta, for plaintiffs in error.

Charlie L. Parker, Sr., Harry E. Monroe, Atlanta, for defendant in error Watson.

Cullen M. Werd, Maurice Hilliard, Atlanta, for defendant in error Vickers.

Syllabus Opinion by the Court.

CARLISLE, Judge.

1. In workmen's compensation cases the burden of proof is on the claimant to show that the injury to the employee arose both out of and in the course of his employment. Aetna Casualty & Surety Co. v. Honea, 71 Ga.App. 569(2), 31 S.E.2d 421; McClain v. Travelers Insurance Co., 71 Ga.App. 659, 31 S.E.2d 830; Gay v. Aetna Casualty & Surety Co., 72 Ga.App. 122, 33 S.E.2d 109; Harper v. National Traffic Guard Co., 73 Ga.App. 385, 36 S.E.2d 842.

2. 'No compensation shall be allowed for an injury or death due to the employee's wilful misconduct, including intentionally self-inflicted injury, or growing out of his attempt to injure another, or due to intoxication or wilful failure or refusal to use a safety appliance or perform a duty required by statute, or the wilful breach of any rule or regulation adopted by the employer and approved by the * * * [State Board of Workmen's Compensation], and brought to the knowledge of the employee prior to the accident. The burden of proof shall be upon him who claims an exemption or forfeiture under this section.'

3. Either of the burdens enumerated in divisions 1 and 2 may be established by circumstantial evidence if such evidence is sufficient to exclude every other reasonable hypothesis. See, in this connection, American Mutual Liability Ins. Co. v. Harden, 64 Ga.App. 593, 13 S.E.2d 685.

4. Although the evidence to support either of the two burdens enumerated in divisions 1 and 2 may be meager and conflicting, the findings of fact of the State Board of Workmen's Compensation are conclusive upon the courts of this State. Mitcham v. Singleton, 50 Ga.App. 457, 178 S.E. 465; American Mutual Liability Ins. Co. v. Sission, 198 Ga. 623, 32 S.E.2d 295, and citations.

5. Under an application of the foregoing principles of law to the evidence in this case, the superior court did not err in affirming the award of the State Board of Workmen's Compensation, granting compensation, in either of the two cases. From all the evidence and reasonable inferences to be drawn therefrom, the State Board of Workmen's Compensation was authorized to find that Mr. Watson and Mr. Vickers worked out of Atlanta for the Davey Tree Expert Company; that in August 1953 they were engaged on a job for the company in LaGrange, Georgia; that Mr. Watson worked under the supervision of Mr. Vickers, who was the foreman on the job there; that, during the course of their employment there, they needed an additional quantity of tree fertilizer, and Mr. Vickers telephoned his superior in Atlanta and informed him that he thought he was going to need the fertilizer, and his superior informed or instructed him that, when he needed it, to...