Complete Auto Transit, Inc. v. Baggett

• Decision Date: 26 February 1963
• Docket Number: No. 39989,No. 3,39989,3
• Citation: 107 Ga.App. 415,130 S.E.2d 271
• Parties: COMPLETE AUTO TRANSIT, INC. v. Lewis H. BAGGETT
• Court: Georgia Court of Appeals

Page 271

130 S.E.2d 271

107 Ga.App. 415

COMPLETE AUTO TRANSIT, INC. v. Lewis H. BAGGETT.

No. 39989.

Court of Appeals of Georgia, Division No. 3.

Feb. 26, 1963.

Woodruff, Savell, Lane & Williams, John M. Williams, Atlanta, for plaintiff in error.

William P. Johnson, Carrollton, for defendant in error.

Syllabus Opinion by the Court

HALL, Judge.

The plaintiff in error, hereinafter called the employer, assigns error on a judgment of the superior court affirming an award of the State Board of Workmen's Compensation. Held:

1. There was medical evidence that the claimant had a 35% disability due to falling from the employer's truck and that the claimant was unable to do manual labor but could only do light work. The claimant testified to the effect that the only work he had been qualified to do was manual labor and that he could no longer do this and had been advised by the doctor not to do heavy work, that he was not doing any kind of work, and that he had applied to the employer for light work. The claimant further testified that since his accident he had had an arrangement with a poultry company for raising chickens, but that his son did the heavy work. There was no evidence that he earned anything from this enterprise, or that he earned nothing. The evidence supported a finding that the claimant was totally disabled. The testimony about the claimant's raising chickens did not demand a finding that the claimant had an earning capacity and it was not per se inconsistent with a finding of total disability under Code Ann. § 114-404. The claimant was subject to cross-examination concerning his involvement in the chiecken business.

Since the claimant's evidence was sufficient to establish his total disability, if the claimant had a earning capacity this fact was essential to the employer's defense and the employer had the burden of persuasion thereon, or the 'risk of nonpersuasion' as it is termed by Wigmore, 9 Wigmore on Evidence 270, § 2485; 275, 278, § 2486; 285, § 2489; McCormick on Evidence 638, § 307.

Evidence sufficient to establish a proponent's case puts the adversary to the necessity of producing evidence to meet the prima facie case, or to produce evidence sufficient to create a state of equipoise between his proof and that of the adversary. Hawkins v. Davie, 136 Ga. 550, 552, 71 S.E. 873; Hyer v. C. E. Holmes & Co., 12 Ga.App. 837, 846, 79 S.E. 58; Phillips v. Lindsey, 31 Ga.App. 479, 482(2), 484(4), 120 S.E. 923; Davison Chemical Corp. v. Hart, 68 Ga.App. 413, 417, 23 S.E.2d 107; 4 Jones on Evidence 1884, § 999; 1 Jones on Evidence 367, 368, § 205; 379, § 207; 31 C.J.S. Evidence § 110, p. 718; 20 Am.Jur. 134, § 132; 137, § 134; 144, § 138.

2. The employer contends...